Where, but for the Grace of God, Goes He? the Search for Empathy in the Criminal Jurisprudence of Clarence Thomas

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I. "BUT FOR THE GRACE OF GOD THERE GO I"

It was a riveting moment. Asked by a senator "why you want this job,"(1) then-Judge Clarence Thomas volunteered this to the Senate Judiciary Committee and the nation:

You know, on my current court, I have occasion to look out

the window that faces C Street, and there are converted buses

that bring in the criminal defendants to our criminal justice

system, busload after busload. And you look out, and you say

to yourself, and I say to myself almost every day, But for the

grace of God there go I.(2)

As an Associate Justice of the United States Supreme Court, Judge Thomas said he would have the chance to "bring something different to the Court, ... [to] walk in the shoes of the people who are affected by what the Court does."(3)

These striking images were part of a larger strategy to link the nominee with the tradition of Thurgood Marshall, the man he had been nominated to replace. Marshall had spent a career walking in the shoes of the least fortunate, both as an attorney and as a judge. President Bush's decision to replace Marshall with Thomas, whose career and commitments seemed so at odds with Marshall's, had triggered concern from some quarters, protest from others.(4) Judge Thomas's advisers in the Bush Administration tried to blunt the opposition by encouraging Thomas to adopt what they called the "Pin Point Strategy" -- a strategy of emphasizing his impoverished, racism-tinged upbringing in the tiny town of Pin Point, Georgia, rather than his professional accomplishments and commitments.(5)

The Pin Point Strategy was ultimately a strategy of persuading Thomas's inquisitors of his powers of empathy. In his opening statement to the Senate Judiciary Committee, Thomas recalled a time just after graduating from Yale Law School, when he had no money and no place to live. Margaret Bush Wilson, who, Thomas reminded the committee, "would later become chairperson of the NAACP,"(6) offered Thomas lodging at her house. As he was leaving at the end of the summer, he asked her what he owed her. She said, "'Just along the way help someone who is in your position."(7) This was what Thomas said he would bring to the Court: a commitment to helping those least able to help themselves. "[W]hen all is said and done," Thomas concluded, "the little guy, the average person, the people of Pin Point, the real people of America will be affected not only by what we as judges do, but by the way we do our jobs."(8)

Thomas went no further in identifying the "little guy," the person "in his position," with whom he professed a special capacity for empathy. He did not explicitly describe the "little guy" as black, or as poor, or as the victim of race- or class-based discrimination. But sensitivity to race and class bias were plainly behind his words. From the first moment of his testimony, he emphasized to the Committee that his life in Pin Point had been one of grinding poverty(9) and of vicious race discrimination.(10) He was also careful to place himself openly on the path of the civil rights movement many had accused him of abandoning. He first praised Thurgood Marshall as "one of the great architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in the Pin Point, [Georgia's] of the world."(11) Next came kind words for "[t]he civil rights movement, Rev. Martin Luther King and the SCLC, Roy Wilkins and the NAACP, Whitney Young and the Urban League, Fannie Lou Haemer, Rosa Parks and Dorothy Hite": "But for them," Thomas said, "there would have been no road to travel."(12) Finally, when the Judiciary Committee took up Anita Hill's allegations that he had sexually harassed her, Thomas immediately labelled the accusations as racist,(13) and based on white America's most vicious stereotypes of black men. …