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HOW HE SEES IT Justice Thomas' record truly disturbing



Published: Fri, July 1, 2005 @ 12:00 a.m.



By BRIAN GILMORE

KNIGHT RIDDER/TRIBUNE

U.S. Supreme Court Justice Clarence Thomas never ceases to amaze me.

In 1991, when he was narrowly approved to sit on the Supreme Court, many of my friends and colleagues insisted that after his confirmation he would change, that his views would evolve because of his experience growing up poor in the South under Jim Crow.

No such luck.

Thomas is still the same judge the NAACP could not bring itself to endorse 14 years ago.

In the term that just ended, Thomas issued a baffling dissent in the death penalty case of Thomas Miller-El. The defendant, who was found guilty of murder and sentenced to death by a Dallas jury in 1986, won a reversal of his conviction from the Supreme Court.

Racial discrimination

The court found strong evidence of racial discrimination in the jury-selection process by the Dallas district attorney's office during Miller-El's trial. Justice David Souter wrote that the process was "replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race."

But Thomas, the lone black on the court who must know that black people were kept off juries in the South as standard practice for generations, dissented. He disputed the conclusion that the state "actually racially discriminated against potential jurors. ... However, we ought not even consider it" since the evidence wasn't presented during the state court proceedings.

This peculiar dissent reflects Thomas' hostility to the rights of defendants, a hostility he has demonstrated over and over again.

In Hudson v. McMillan (1992), he wrote that shackling, handcuffing and then beating prisoners is not "cruel and unusual punishment."

In Dickerson v. United States (2000), he sided with the opinion that said police officers do not have to give suspects Miranda warnings -- despite 40 years of public and judicial acceptance of this practice.

Death penalty

In Tennard v. Dretke (2004), he asserted that the mentally challenged should be eligible for the death penalty.

In Roper v. Simmons (2005), he held the opinion that juveniles should be put to death just like adults.

In regard to persons captured in the war on terror, Thomas agreed with the Bush administration last year that individuals, no matter what their story, have no right to due process, counsel or access to the court system. What's more, they need not ever be charged with anything. They can be held forever if need be, even if they were captured by mistake.

Luckily, none of Thomas' opinions on these important issues is the law of the land.

But that could change.

Rumor has it that Thomas is being considered to succeed Chief Justice William Rehnquist when Rehnquist steps down, which will likely be soon, given his poor health and age. Although a Thomas appointment would make history -- he would become the highest-ranking black judge ever -- it would be a terrible mistake.

Thomas' record would be an insult to the great equal justice legacy forged by his predecessor on the court, Justice Thurgood Marshall. And it would also be an insult to all fair-minded Americans.

X Brian Gilmore is a lawyer and writer for Progressive Media Project, a source of liberal commentary on domestic and international issues; it is affiliated with The Progressive magazine. Distributed by Knight Ridder/Tribune Information Services.




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