Via NY Transfer News Service 718-448-2358, 718-448-2683 From ccr Mon Aug 26 102253 1991 Th

 Via NY Transfer News Service 718-448-2358, 718-448-2683
 From ccr Mon Aug 26 10:22:53 1991

                     The Center For Constitutional Rights
                           666 Broadway, 7th Floor
                           New York, New York 10012
                             Tel. (212) 614-6464
                             Fax. (212) 614-6499


                                 STATEMENT BY
                     THE CENTER FOR CONSTITUTIONAL RIGHTS
                          AGAINST THE NOMINATION OF
                            JUDGE CLARENCE THOMAS
                          TO THE U.S. SUPREME COURT

 The Center for Constitutional Rights urges all groups and individuals who are
concerned with social justice to vigorously oppose the nomination of Judge
Clarence Thomas to the Supreme Court.

 This nomination is completely unacceptable for the many reasons detailed
below, which include Judge Thomas' controversial role as administrator of the
Equal Employment Opportunity Commission (EEOC), his views on the most serious
issues currently facing women and people of color, and his judicial
qualifications, which, like most of the Bush-Reagan appointments to the
federal bench, reflect slender legal and judicial experience.

 Moreover, this nomination is an insult to the African-American community
which must now endure, if President Bush has his way, the replacement of a
legendary African-American fighter for human rights -- Justice Thurgood
Marshall -- with a right-wing African- American bureaucrat -- Judge Clarence
Thomas.

 It is also an affront to millions of Americans -- people of color, women,
laboring people, the poor, the elderly -- who, for  the past 25 years, looked
to the Supreme Court as the final arbiter and protector of their rights.

 By selecting Judge Thomas, President Bush seeks to get one step closer to the
goal he and President Reagan charted 11 years ago, and which they have nearly
accomplished: the appointment of conservative judges to all levels of the
federal court system, including the Supreme Court, who will alter the judicial
face of our country for generations to come.

 While President Bush, who recently demonstrated his dedication to civil
rights by opposing the Civil Rights Bill, cynically plays on the legitimate
desire of many people to see diversity on the court, let there be no doubt
about it: he intends to utilize a person of color to put the last nail in the
coffin containing the progressive legacy of Justice Marshall. This nomination
raises the nightmarish prospect of right-wing presidents using women and
people of color to reverse the gains won over the past three decades, gains
won with blood and tears. It cannot -- to use President Bush's own words in
another grim context -- be allowed to stand.

 Judge Thomas is an unsuitable candidate for the following reasons:


             Record as Chair of the Equal Employment Commission 

 While serving as Chairman of the EEOC, the agency which enforces federal laws
prohibiting employment discrimination on the basis of race, sex, national
origin and age, Judge Thomas informed a senate committee that more than 13,000
age discrimination complaints were at risk of being lost because they were not
processed before the expiration of the two-year statute of limitations.1

 During his tenure, the number of class action suits declined precipitously in
comparison to the number of individual cases. This meant that the agency was
more concerned with individual cases than with challenges to systemic
discrimination. In fact, Judge Thomas wrote, "most of our cases involve
discrimination by a particular manager or supervisor, rather than a 'policy'
of discrimination..."2

 Judge Thomas' methodology was described as follows in a profile in the
Atlantic Monthly:
  
   If an employer over the years denies jobs to hundreds of
   qualified women or blacks because he does not want women
   or blacks working for him, Thomas is not prepared to see
   a "pattern and practice" of discrimination. He sees
   hundreds of local, individual acts of discrimination.
   Thomas would require every woman or black whom that
   employer had discriminated against to come to the
   government and prove his or her allegation. The burden
   is on the individual. The remedy is back pay and a job.
   "Anyone asking the government to do more is barking up
   the wrong tree," Thomas says.3

 The General Accounting Office found in 1988 that a large number of cases were
closed -- from 40 to 87 percent -- because allegations were not fully
investigated by the field offices and state fair employment practices
agencies.4 In addition, the backlog of cases at the EEOC rose from 31,500 in
1983 to 46,000 in 1989, as did the processing time -- from 4 to 7 months in
1983 to almost 10 months in 1989.5 The number of equal pay cases declined from
35 in 1982 to 7 in 1989.6 And the agency ceased to aggressively pursue its
mandate: former EEOC Chair Eleanor Holmes Norton wrote, "The EEOC effectively
has lost the role as lead agency conferred to it by the historic Civil Rights
Reorganization of 1978, not because of any change in law, but by abdication to
the Justice Department."7 Finally, even the Civil Rights Commission, which had
lost much of its steam in the Reagan years, reported in 1987 that "on a number
of policy issues requiring regulatory activity, the EEOC to date has
accomplished very little."8

                  Actions and views about affirmative action.

 Judge Thomas regards affirmative action as useless and harmful to the
initiative of African-Americans (this despite the fact that he took advantage
of an affirmative action policy at Yale Law School). The author of the
Atlantic Monthly portrait described Judge Thomas as believing that "There is
no governmental solution" [to historical discrimination], and that "government
simply cannot make amends, and therefore should not try."9

 In an interview in the New York Times in July 1982, Judge Thomas said:
  
   I am unalterably opposed to programs that force or even
   cajole people to hire a certain percentage of minorities.
   I watched the operation of such affirmative-action
   policies when I was in college, and I watched the
   destruction of many kids as a result. It was wrong for
   those kids, and it was wrong to give that kind of false
   hope.10

  He wrote, "A positive civil rights policy would aim at reducing barriers to
employment, instead of trying to get 'good numbers.'"11

 And further:

   I don't think that government should be in the business
   of parceling out rights or benefits. Rights emanate from
   the Constitution and from the Declaration. They are
   there, and they should be protected. I am not confident
   that Washington is any more moral or stronger than anyone
   else to assign rights, or even better able to do it. We
   should be careful not to concede the rights of
   individuals in our society in order to gain something
   such as parity. Ultimately that will do us a
   disservice.12

 While heading up the EEOC, Judge Thomas changed its previous practice of
setting goals and timetables for employers to make jobs available to women
and people of color. In 1985, according to an Alliance for Justice report,
"the EEOC acting general counsel, with the Chairman's support, ordered EEOC
regional attorneys not to include goals and timetables for settlements or in
actions in which the EEOC had intervened. The general counsel also ordered
legal staff not to seek enforcement of goals and timetables in existing
consent decrees." This prompted a protest by five congresspersons who stated
that the "Commission is forfeiting the most effective tool to combat centuries
of discrimination." It was only when the Supreme Court handed down three
decisions in May and June 1986 upholding the use of goals and timetables that
Judge Thomas promised to reinstate the policy.13

  Judge Thomas acknowledged the deeply entrenched racism in this country when
he said, "There is nothing you can do to get past black skin. I don't care how
educated you are, how good you are at what you do -- you'll never have the
same contacts or opportunities, you'll never be seen as equal to whites."14
Yet he eschews affirmative action as a way to reduce "barriers to employment,"
and offers no other alternatives, leaving women and people of color to the
mercy of the very people he distrusts.

                             Other racial matters

 Judge Thomas complained about civil rights leaders who "bitch, bitch, bitch,
moan and moan and whine" about the Reagan Administration.15

 A sharp exchange took place between Judge Thomas and Joseph H. Duff in a
symposium on affirmative action:

   Thomas: A race-conscious law is one that defines rights based 
   on race. Segregation and apartheid are race-conscious laws.

   Duff: I was admitted to law school under the University of
   California's Equal Opportunity Program. I passed the bar
   exam, and now practice law in the community. That is a good
   race policy.

   Thomas: It is good for you.

   Duff: It is also good for the community and the society.

   Thomas:  No, I think it is good for you. When I went to
   college the problems with those policies were quite
   significant as were the animosities they generated.16


              "Right to life," the family, and contraception

 Although Judge Thomas has not ruled directly on these issues during his
tenure as a judge, a good idea of his general attitude about family issues can
be obtained from the 1987 report issued by President Reagan's Working Group on
the Family, of which Judge Thomas was a member. This report is such a litany
of right-wing views about the family that it is worthwhile quoting it at
length. It includes discussions about the nature of the family (preferably, a
traditional nuclear constellation), divorce (it should be made harder to
obtain); the Supreme Court's "weakening" of the traditional family; teen-age
sexuality (it must be restricted); women staying at home to care for children
(it should be encouraged), and so on:

   ...If an ever larger percentage of adults choose not to
   marry or choose to remain without children, there will be
   public implications...With current fertility levels and
   without immigration, our population will decline; this is
   a problem we share with much of the western world...17

   The disconcerting truth is that judicial activism over
   the last several decades has eroded this special status
   [of the family] considerably.18

   ...[In the past 25 years the Supreme Court has handed]
   down a series of decisions which would abruptly strip the
   family of its legal protections and pose the question of
   whether this most fundamental of American institutions
   retains any standing...The Court has struck down State
   attempts to protect the life of children in utero, to
   protect paternal interest in the life of the child before
   birth, and to respect parental authority over minor
   children in abortion decisions...The Supreme Court has
   turned the fundamental freedom to marry into a right to
   divorce without paying court costs. It has journeyed
   from protection of the "intimate relation of husband and
   wife" in its contraception cases to the dictum that "the
   marital couple is not an independent entity with a heart
   and mind of its own..."19

   ...traditional divorce laws inhibited easy
   separations...In so doing, they sometimes made things
   difficult, and changes in divorce law may well have been
   overdue. But in a relatively short period of time,
   almost all the states adopted a model divorce law that
   established, in effect, no-fault divorce.20

   ...enrollment in a family planning program appeared to
   raise a teenager's chances of becoming pregnant and of
   having an abortion.21

   At a minimum, no Federal program should provide
   incentives for sexual activity by teens. No Federal
   activity should contravene the approach we have taken to
   drug abuse: we do not compromise with self-destructive
   behavior. We insist that it stop and we provide
   assistance to those young people who want to regain
   control of their future.22

   Government should not provide incentives -- or make
   things easier -- for teenagers tempted to promiscuity.
   For example, AFDC benefits should be restructured to
   limit their availability to those minors who agree to
   continue to live with their parents. This step would go
   a long way toward making illegitimate motherhood less
   attractive in the poverty culture.23

   Unlike Sweden, for example, the mothers of America
   managed to avoid becoming just so many more cogs in the
   wheels of commerce.24

   In one of the great tragedies of American life, tens of
   thousands of childless families wait for children to
   adopt while 1.8 million other Americans abort their
   unborn children each year.25


 Judge Thomas' comments about abortion have raised such enormous concern that
most leading women's organizations are opposing his nomination. In a speech he
made in 1987 to the Heritage Foundation Judge Thomas spoke favorably about an
article written by another conservative, Lewis E. Lehrman, in which Lehrman
wrote:

   Adapting Lincoln's words from his patient struggle for
   the inalienable right to liberty in the 1850's, we may
   now say that the "durable" moral issue of our age is the
   struggle for the inalienable right to life of the child-
   in-the-womb -- and thus the right to life of all future
   generations...

   May it be reasonably supposed that an expressly
   stipulated right to life, as set forth in the Declaration
   and the Constitution, is to be set aside in favor of the
   conjured right to abortion in Roe v. Wade, a spurious
   right born exclusively of judicial supremacy with not a
   single trace of lawful authority, implicit or explicit,
   in the actual text or history of the Constitution itself?

   Are we finally to suppose that the right to life of the
   child-about-to-be-born -- an inalienable right, the first
   in the sequence of God-given rights warranted in the
   Declaration of Independence and also enumerated first
   among the basic positive rights to life, liberty, and
   property stipulated in the Fifth and Fourteenth
   Amendments of the Constitution -- are we, against all
   reason and American history, to suppose that the right to
   life as set forth in the American Constitution may be
   lawfully eviscerated and amended by the Supreme Court of
   the United States, with neither warrant nor amendment
   directly or indirectly from the American people
   whatsoever?26

 Judge Thomas said Lehrman's article "on the Declaration of Independence and
the meaning of the right to life is a splendid example of applying natural
law."27 This view, according to some legal scholars, puts Judge Thomas to the
right even of Justice Scalia in the matter of abortion, since no justice
currently on the Supreme Court has voiced the view that the fetus has either
God- given or constitutional rights. Translated into current realities, a
court that took this position could not only overturn Roe but could make
abortion illegal in all states.

 The Griswold v. Connecticut decision, which gave married couples the right to
obtain legal contraceptives, also caused Judge Thomas some unease. He wrote:

   Some senators and scholars are horrified by Judge Bork's
   dismissal of the Ninth Amendment, as others were
   horrified by Justice Arthur Goldberg's discovery, or
   rather invention, of it in Griswold v. Connecticut."
   ["The enumeration in the Constitution, of certain rights,
   shall not be construed to deny or disparage others
   retained by the people."]

   ...A major question remains:  Does the Ninth Amendment,
   as Justice Goldberg contended, give to the Supreme Court
   certain powers to strike down legislation?  That would
   seem to be a blank check. The Court could designate
   something to be a right and then strike down any law it
   thought violated that right. And Congress might also use
   its powers to protect such rights -- say a "right" to
   welfare.28


                 Economic issues and congressional oversight

 As illustrated above, Judge Thomas' distaste for welfare surfaces in many of
his writings and speeches, but probably his most widely-publicized comment was
made about his own sister, who received public assistance for six years while
she cared for the aged aunt who had helped raise her. Judge Thomas said, "She
gets mad when the mailman is late with her welfare check. That is how
dependent she is. What's worse is that now her kids feel entitled to the check
too. They have no motivation for doing better or getting out of that
situation."29 His distrust of governmental economic aid extends to criticisms
of minimum wage laws and unfair labor practices as unnatural interference with
the economic process.30

 Judge Thomas also appears to distrust congress. He wrote that congress was
"out of control," and cited none other than Ollie North as a person competent
to assess this: "Congress remains the keystone of the Washington
establishment. Over the past several years, Congress has cleverly assumed a
neutral ombudsman role and has thrust the tough choices on the bureaucracy,
which Congress dominates through its oversight function. As Lt. Col. Oliver
North made it perfectly clear last summer, it is Congress that is out of
control."31 Legal scholars fear that Judge Thomas may be unsympathetic to
congressional initiatives on oversight.

                             Judicial Experience

 The idea that President Bush chose the best-qualified person for this job is
not credible.

 Judge Thomas has served on the U.S. District Court of Appeals for only 16
months. Before that, he was Chairman of the Equal Employment Opportunities
Commission for eight years, an administrative role which was much-criticized
and controversial. His actual legal experience includes three years in then-
Missouri Attorney General John Danforth's office, followed by a two-year stint
at the Monsanto Corporation. He then served as a legislative assistant to
Danforth for two years, and served for a year at the Department of Education's
civil rights division.

 In the days following the nomination many legal scholars expressed concern
about the question of qualifications, especially Professor Derrick Bell of
Harvard, who commented, "Even had Bush limited his selection pool to black
judges on the federal courts of appeal, there are at least a half-dozen other
black judges whose accomplishments, both on the bench and before becoming
federal judges, put those of Thomas to shame."32

 Judge Thomas' record since becoming an appeals judge is undistinguished and
spotty. As of July 3, 1991 Judge Thomas had authored 16 opinions. While these
opinions, standing alone, offer no clear indication of what positions Judge
Thomas will take in civil rights and women's rights cases if he is elevated to
the Supreme Court, it appears that he will provide an additional vote to the
Court's present conservative majority in criminal cases.

 Two decisions, however, should be of concern to workers and
environmentalists. In one case,33 Judge Thomas rejected a union challenge to a
Labor Department decision permitting a mine owner in Alabama to use a high-
voltage electrical cable within 150 feet of a working mine face in violation
of federal regulations. The union had argued that use of these cables would
increase miners' exposure to dust and methane, create ventilation problems and
make escape from the mines more difficult. In another case,34 Judge Thomas
rejected a challenge by an alliance of Toledo, Ohio residents to a Federal
Aviation Administration decision authorizing expansion of a local airport. The
residents contended that the FAA had violated several environmental statutes
and regulations.

 The qualifications issue existed even when Judge Thomas was nominated to his
present post on the U.S. district court: fourteen members of congress, all
chairpersons and high-ranking members of house committees which oversee the
Equal Employment Opportunity Commission, opposed it. At that time,
representatives of more than 20 public interest organizations expressed
concerns about Judge Thomas' qualifications during Senate Judiciary Committee
hearings.

                                  Conclusion

 Judge Thomas, who called Robert Bork's defeat "disgraceful,"35 is a
complicated man, at once a dedicated conservative and a self- described
admirer of both Dr. Martin Luther King, Jr. and Malcolm X, something of a
nationalist, a critic of affirmative action and a "bootstrapper," a man who
suffered extreme poverty and discrimination but one who believes in little or
no government assistance to combat these conditions. His nomination has
appalled otherwise moderately conservative African-American commentators like
Carl Rowan:
  
   It horrifies me that the country might have to endure 40
   years of opinions of a black man who has shown no sense
   of compassion for the needs of the poor, who hasn't the
   guts to acknowledge that 'self-help' isn't enough in a
   milieu of institutionalized racism, and who embraces
   heartless legalisms where abortion and other rights of
   women are at issue.36

 The Center for Constitutional Rights believes that Judge Thomas'
inconsistency and complexity should be scant comfort to progressive-minded
people.

  As Christopher Edley, an African- American commentator, wrote in the
Washington Post: "If there were a snowball's chance in Hades that Thomas would
be a moderate on the court, he would not have been nominated."37

 In fact, we fear that Judge Thomas' successful appointment will impact on the
court in a way that goes beyond mere conservatism. His voice will be used to
permit extreme conservatism to re-emerge. That it comes from an African-
American will be used as tragic legitimation of those views. Judge Thomas will
likely participate in the end of legal abortion in this country; and he may
also extend new economic concepts of deregulation, which will make life even
more difficult for the great majority of people in this country.

 Even if, as some people predict, a defeat of this nomination is followed by
the selection of someone even less suitable, the Center for Constitutional
Rights believes that this battle is worthwhile. Though the conservative tide
is lapping over the steps of the Supreme Court, there are many millions of
people who will continue to search -- and who will find -- a way to struggle
successfully for their human rights. It is this standard of human rights to
which we must insist that all prospective Supreme Court justices subscribe.

 We urge all civil rights and civil liberties organizations to take a position
against the nomination of Judge Thomas and request all such organizations that
haven't issued conclusive positions to do so as soon as possible. This
nomination is an insult, not a pat on the back. Finally, we urge all fair-
minded people to communicate their ideas and thoughts on this subject to the
members of the Senate Judiciary Committee, to their congressperson and
senator, and to their local newspapers and media outlets. We remain convinced
that the voices of the millions of people to whom this is a vital concern will
be heard.

  New York City
  August 22, 1991


  The Center for Constitutional Rights is a non-profit legal and educational
organization dedicated to advancing and protecting the rights guaranteed by
the United States Constitution and the Universal Declaration of Human Rights.

  For further information contact:

  Joan Gibbs, Dorothy Zellner, Frank Deale or Vernice Miller at:
  (212) 614-6464
  (212) 614-6499 (fax)

  For distribution and computer networking, contact Chris Agee at CCR:
  (212) 614-6437
  
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