At the minimum, he
lied about his propensity to use and discuss pornography. We all know
about Anita Hill's courageous testimony. But the Senate failed to call
others who could have supported her.
Among them were now-retired federal
judge Lillian McEwen, who was romantically involved with Thomas during
the early 1980s. She published this year a fascinating book about her
life, DC Unmasked and Undressed.
Responding to a listener
on my "Washington update" radio show last week who wanted to know if
Thomas could be impeached, she described how Thomas used to talk in the
early 1980s about a porno star named "Long Dong Silver." That was
exactly the same actor whom Hill described at the confirmation hearings.
Thomas and his allies piously rejected under oath that he would have engaged in such talk, much less the kinds of other actions McEwen describes.
Also, the Schuster Institute for Investigative Journalism's Founding Director Florence George Graves has extensively published on flaws in the Thomas confirmation hearings, synopsized here.
Even so, Thomas cleared the disgracefully short and otherwise unfair Senate confirmation hearing by a 52-48 vote. That gives him the most opposition of any Court candidate in U.S. history.
On
substantive matters including the death penalty, Thomas has carefully
positioned himself to carry water for those who are remaking the
country's laws, politics and economy. So, Thomas has been free to do pretty much what he and his backers
want on the Court, and receive along with his wife vast sums in disreputable gifts from their backers. All of this is assisted by the judiciary's
traditional independence from outside review under our constitutional
system.
Fostering popular support for the death
penalty is an important part of that jurisprudence because it helps
maintain an image of populist concern by the Court. Washington Post
columnist E.J. Dionne, Jr. put this into perspective with a column Sept. 26:
"It's hard to imagine now, but in 1966, more Americans opposed the death penalty than supported it -- by 47 percent to 42 percent. But the crime wave that began in the late 1960s and the sense that the criminal justice system was untrustworthy sent support for capital punishment soaring. By 1994, 80 percent of Americans said they favored the death penalty, and only 16 percent were opposed."
No one on the Supreme Court has been more reluctant to grant review to those facing death than Thomas, who shamed the Senate into voting for him with his vicious and deceitful "high-tech lynching" tirade and his half-truths about an impoverished childhood in Pinpoint and Savannah, Georgia. Dionne's Washington Post colleagues Kevin Merida and Michael Fletcher documented his death penalty jurisprudence in their outstanding biography of Thomas in 2007, Supreme Discomfort. They wrote:
"Strictly speaking, death appeals are decided on the legal merits. But the issues are so subjective -- was an appellant's claim new? was it substantial -- that, as a practical matter, the appeals often turn on whether or not a justice supports capital punishment."
A similar assessment based on the first years of the Thomas jurisprudence is contained in the 1994 book, Strange Justice: The Selling of Clarence Thomas,
by then-Wall Street Journal staffers Jane Mayer and Jill Abramson.
Mayer is now an investigative reporter at the New Yorker. Abramson is
the executive editor of the New York Times.
Thomas ends his own 2007 autobiography, My Grandfather's Son, with his 1991 installation in office, cleverly avoiding much in the way of real analysis, aside from his bromides and complaints against critics. For that, he pocketed his $1.5 million advance from Rupert Murdoch-owned HarperCollins. In the absence of much substance there, let's return to the Merida / Fletcher assessment:
"Two former clerks for other justices say that Thomas almost always votes against death penalty appeals -- "reflexively," says one -- even in cases that appear to be close calls. "That's just unbelievable -- even if you are an ardent death penalty fan," observes the other former clerk. All that is made known outside the court is whether or not an appeal is granted, so that clerk's view is impossible to quantify. But this much is clear: Thomas has proven to be among the justices most reluctant to throw out death sentences that come under Supreme Court review."
The Davis Execution
This
background helps decipher the review process in the Davis murder
conviction for a 1989 fatal shooting during a mugging outside a
fast-food restaurant in Savannah. The victim was off-duty policeman Mark
MacPhail, 27, who left a wife and daughter. A jury of seven blacks and five whites sentenced Davis to
death based on now-disputed eyewitness testimony.
A worldwide clemency campaign
led by Color of Change
and similar death penalty opponents and skeptics generated hundreds of
thousands of signatures saying that even a 174-page district court
review of the case in 2010 did not provide a just result.
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