Enamored of the hit‐and‐run style, Taylor suggests that Thomas has been less than candid about the role of affirmative action in his admission to Yale; has issued opinions that “may be largely clerk‐written” (which “does not distinguish him from most other members of the Supreme Court”); and may have perjured himself in his 1991 confirmation bearing (just like Bill Clinton in the Paula Jones matter). Those qualifications, far from dispelling the aroma of dishonesty, only enhance it, of course, with a touch of “balance.”
Take the admissions matter. In a recent speech, Thomas said that when he was at Yale “they had reduced black admissions from 40 to 12. We were all there on our own merit.”
All there on merit? That plays well in Thomas’ colorblind jurisprudence, Taylor notes, but it’s “at odds with the historical record.” Yes, Yale had scaled back affirmative action “a bit,” but there was still a program in place for 10 percent of the entering positions that operated “by preferring qualified minority applicants over whites with higher grades and test scores.” Thus does Thomas play fast and loose with the facts.
Or is it Taylor who is fast and loose? After all, whether Thomas and other minorities were at Yale on merit depends, first, on what “merit” means and, second, on the facts. For Taylor, “merit” seems to be a function of grades and test scores alone. But suppose, not implausibly, that good grades and scores in the face of adversity were part of the “merit” equation. Then Taylor’s remark regarding the LSAT — that “raw statistics probability suggests that Thomas might not have made it on merit alone — is not only implicitly racist but gratuitous as well.
Regarding the facts, Taylor has little ground for casting aspersions on Thomas, for he grants that Thomas “had very good college grades” and be admits no knowledge’ about Thomas’ LSAT score. Nevertheless, he feels constrained to elite Yale’s former dean to the effect that “only ‘a handful’ of the 12 blacks in Thomas’ entering class would have been admitted under the kind of race‐blind policy that Thomas now champions.”
More broadly, however, Thomas is absolutely right to complain that affirmative action programs “stamp minorities with a badge of inferiority.’ Indeed, Taylor himself only confuses the point when he notes, as “fact,” that colorblind policies “would produce something close to de facto resegregation of our elite universities.” Who is being dishonest here: Thomas for ignoring that “fact,” as Taylor suggests; or Taylor for accepting the “fact” and ignoring the “inferiority” implications that follow?
But it is Thomas the “ideological warrior,” the Thomas who “exudes the concede‐nothing, bellicose absolutism of a seething ideological zealot” who seems most to disturb Taylor. By way of contrast, he offers Learned Hand, “who wisely said in 1944: ‘The spirit of liberty is the spirit which is not too sure that it is right.’ ” (Tell that to Patrick Henry. Or Sam Adams. Or many of the other Founders who knew something, firsthand, about “the spirit of liberty.”)
To illustrate his point, Taylor cites the Thomas of Adarand: “I believe that there is a ‘moral [and] constitutional equivalence’ … between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.”
Taylor’s response cuts to the quick, he believes: “It borders on fanaticism to suggest that such preferences are just as bad as was the longstanding oppression of blacks through the apartheid regime of official segregation and Jim Crow laws” (Emphasis in original.)
Just as bad? That’s not what Thomas said. He spoke of “moral and constitutional equivalence.” To an untrained eye, that may translate as Taylor has translated it. But “moral” is a systematically ambiguous idea: It may refer to the theory of rights or to the theory of value. Since the constitution is a product primarily of the former — as Thomas well understands — then it makes perfect sense to say that, as a matter of strict moral principle, of equal rights, laws that discriminate against are morally and constitutionally equivalent to laws that discriminate “for.”
In fact, Thomas goes on in his Adarand concurrence to make just that point: “As far as the Constitution is concerned it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.”
Fanaticism? That is constitutionalism at its best. Would Taylor, à la Hand, have Thomas “not too sure” about equal rights? “Even‐handedness, humility, and openness to new evidence and perspectives” may be marks of a wise judge — if not the mark, as Taylor concludes. But those qualities must operate within an intellectual framework. There are principles on which principled jurists must stand, “fanatically,” even as they distinguish such matters from matters of degree, about which reasonable people may disagree. A truly wise judge will know the difference.