Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 28, 2003
LAW: We Own Your Opinions

One of the most offensive arguments about affirmative action is perfectly captured by Maureen Dowd's broadside against Clarence Thomas:

He knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race. . . . The dissent is a clinical study of a man who has been driven barking mad by the beneficial treatment he has received. . . It makes him crazy that people think he is where he is because of his race, but he is where he is because of his race. . . .It's impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.

Eugene Volokh rightly takes to task the idea that good judging requires a judge to be biased in favor of "gratitude" for whatever social privileges he's obtained in his life. But the problem goes deeper than that.

You see, for its supporters, affirmative action isn't the repayment of a debt after all: it's a loan that can and is called in whenever needed. Justice Thomas hasn't simply been given a helping hand and set free; rather, he's required to declare perpetual fealty to the cause of racial preferences, even when his better judgment and his understanding of the law tells him otherwise, because he owes. His very thought is shackled by the stigma, so gleefully thrown in his face at every opportunity: we bought you, and we expect you to stay bought! You're nothing without us! You really think you are qualified for the job you hold, or even for your degree to practice law in the first place?

Read Dowd's piece and ask yourself if she really believes that Clarence Thomas has earned the right to make up his own mind. So much for dignity and respect.

Of course, to complete this picture, it's also fair to note that if Justice Thomas supported racial preferences in higher education, conservatives who oppose such preferences would also be all over him for being corrupted by the programs to which he was indebted. (As I've pointed out before, and as Dowd raises again, a similar stigma sticks to those, like President Bush, who got into college as children of alumni). But does that make preferences better? Either way, Thomas is damned by his history; he is not free, in the way that you or I are free, in the way that someone about whom it is known that he has made it on his own merits is free. Is that the legacy we want for still more generations of African-Americans -- unfree to act, rather than be acted on, unfree to think, rather than be thought about?

Posted by Baseball Crank at 11:46 AM | Law | Comments (0) | TrackBack (0)
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