April 13, 1999 EXTENSIONS OF REMARKS 6393 must continue to increase funding to reach the ican Legal Process’’ and ‘‘Shades of Free- misconstrued as a respectable replacement 40% of the average pupil expenditure funding dom.’’ for who was a bonafide level mandated in law. Without these federal I first met Judge Higginbotham when he representative of the hopes, dreams and aspi- IDEA funds, local school districts must cover was supporting Senator John F. Kennedy in rations of black Americans. In this under- the unpaid federal share. his campaign for President. In the past twenty taking, Judge Leon Higginbotham wrote to President Clinton proposes to level fund years we developed a closer friendship, ex- Clarence Thomas upon His confirmation to the IDEA for FY2000. Considering that the num- changing telephone calls and letters. I admired Supreme Court. Higginbotham documented ber of children with disabilities is projected to and respected the Judge for his intellectual the legal struggles that had abolished impedi- increase by 123,000 from 1999 to 2000, the prowess and his untiring commitment to civil ments to the freedom of black people and President’s budget request actually cuts fund- rights. enunciated the underlying personal values and ing for children with disabilities from $702 per At the time of his death last December, courage which guided those who led these child in FY1999 to $688 per child in FY2000. Judge Higginbotham was a retired Chief battles. In this letter, Higginbotham challenged Congress must ensure that the Federal gov- Judge Emeritus of the United States Court of Thomas to recall, to understand and to emu- ernment lives up to the promises it made to Appeals, the Public Service Professor of Juris- late the lives of those great gladiators who the students, parents, and schools over two prudence at the John F. Kennedy School of changed the course of history. In this open let- decades ago. We must fully fund IDEA before Government at Harvard, and Counsel to the ter, Higginbotham cited the damage done to Washington creates new education programs. law firm of Paul, Weiss, Rifkind, Wharton & the cause of black America and the crisis in Once the Federal government begins to pay Garrison in New York. During his life, Judge race relations spurred by Judge Thomas’ con- its fair share under IDEA, local funds will be Higginbotham received numerous honors in- firmation. Excerpts from this letter provide the freed up, allowing local schools to hire and cluding the Presidential Medal of Freedom the details of his message: train high-quality teachers, reduce class size, National Human Relations Award of the Na- At first I thought that I should write you build and renovate classrooms, and invest in tional Conference of Christians and Jews, the privately—the way one normally corresponds technology. National Urban Award for outstanding con- with a colleague or friend. I still feel ambiv- alent about making this letter public, but I The resolution I introduce today urges Con- tributions towards the goal of equal oppor- tunity, the 81st NAACP Spingarn Medal for the do so because your appointment is pro- gress to fully fund IDEA while maintaining its foundly important to this country and the commitment to existing federal education pro- highest and noblest achievement by an Afri- can-American, and the 1994 recipient of the world, and because all Americans need to un- grams. We can both ensure that children with derstand the issues you will face on the Su- disabilities receive a free and appropriate pub- Congressional Black Caucus’ Leland Humani- preme Court. In short, Justice Thomas, I lic education and ensure that all children have tarian Award. write this letter as a public record so that In 1996, Higginbotham became an advisor the best education possible if we just provide this generation can understand the chal- to Texaco, Inc. after the company agreed to a fair federal funding for special education. lenges you face as an Associate Justice to $176 million settlement of a race-discrimina- the Supreme Court, and the next generation I urge everyone to support this important tion case. There he initiated a formal evalua- can evaluate the choices you have made or resolution. Congress must fulfill its commit- tion of the company’s human resource policies will make. . . ment to assist States and localities with edu- and diversity practices in an effort to make By elevating you to the Supreme Court, cating children with disabilities. President Bush has suddenly vested in you Texaco an industry model for its hiring and f the option to preserve or dilute the gains promotion of black employees. In an interview this country has made in the struggle for TRIBUTE TO JUDGE A. LEON that year with the St. Louis Post-Diatch, Judge equality. This is a grave responsibility in- HIGGINBOTHAM Higginbotham was described as seeing ‘‘the deed. . . . And while much has been said future of race relations with an equal mixture about your admirable determination to over- HON. WILLIAM (BILL) CLAY of optimism and pessimism.’’ Leon come terrible obstacles, it is also important Higginbotham knew and understood the ter- to remember how you arrived where you are OF MISSOURI rible history of racial discrimination in the jus- now, because you did not get there by your- IN THE HOUSE OF REPRESENTATIVES self. tice system. He knew that this history could You can become an exemplar of fairness Tuesday, April 13, 1999 never be forgotten if black Americans ever and the rational interpretation of the Con- Mr. CLAY Mr. Speaker, It is my honor to hope to achieve equal justice under law. For stitution, or you can become an archetype of rise in tribute to the late A. Leon this reason, Judge Higginbotham shared my inequality and the retrogressive evaluation Higginbotham, Jr. He was a great American dismay when former President George Bush of human rights. The choice as to whether you will build a decisional record of true and a great friend. Higginbotham was a man presented Clarence Thomas as his choice to replace justice Thurgood Marshall as Asso- greatness or of mere mediocrity is yours. who excelled in many disciplines. He was a Black Ivy League alumni [Higginbotham scholar, a writer, a lawyer, a judge and espe- ciate Supreme Court Justice. On that day, and Thomas finished Yale] in particular cially a humanitarian. independent-minded women were appalled, should never be too impressed by the edu- Leon Higginbotham studied engineering a knowledgeable black Americans were out- cational pedigrees of Supreme Court Jus- Purdue University, continued his education at raged and advocates for the poor abandoned tices. The most wretched decision ever ren- Antioch College and received a LL.B. from their hopes. Then, the disastrous day came dered against black people in the past cen- when the U.S. Senate confirmed Clarence tury was Plessy v. Ferguson. It was written Yale University in 1952. Eighteen years later, in 1896 by Justice who he became the first black elected trustee of Thomas’ appointment and the waves of de- spair washed over millions who had fought, attended both Yale and Harvard law schools. Yale after defeating five other distinguished The opinion was joined by Justice George alumni in a nationwide ballot sacrificed, and suffered to overcome centuries Shiras, a graduate of Yale Law School, as In 1963, President Kennedy nominated A. of discrimination and to achieve respect and well as by Chief Justice and Leon Higginbotham, Jr. for the U.S District quality. In Black America, six months after Justice , both alumni of Harvard Court of Eastern Pennsylvania. However, Sen- Thomas’ appointment the attitude and senti- Law School. If those four Ivy League alumni on the Su- ator James Eastland of Mississippi blocked his ment toward him as a person was reflected in the words of Judge Higginbotham who wrote: preme Court in 1896 had been as faithful in confirmation by the Senate. After Kennedys their interpretation of the Constitution as Suppose someone wanted to steal back assassination, President Johnson nominated Justice John Harlan, a graduate of Transyl- past achievements, reign in the present gains Higginbotham, and in 1964 appointed him to a vania, a small law school in Kentucky, then and cutoff future expectations among Afri- the venal precedent of Plessy v. Ferguson, seat on the U.S. District Court of Eastern can-Americans about participation in the which established the federal ‘‘separate but Pennsylvania. In 1977, Judge Higginbotham Judicial process. that person would have equal’’ doctrine and legitimized the worst was elevated to the 3rd US Circuit Court of found it difficult to devise a better plan than forms of race discrimination, would not have Appeals. He served as the Chief Judge of the nominating Clarence Thomas to the Su- been the law of our nation for sixty years. preme Court which decreasing the number of Appeals Court from 1990 to 1993. His cele- The separate but equal doctrine; also known African-Americans on the federal bench. brated career was filled with judicial accom- as Jim Crow, created the foundations of sep- plishments. He was the author of more than Mr. Speaker. Judge Higginbotham was de- arate and unequal allocation of resources, 600 published opinions and books, including voted to educating this nation about the perils and oppression of the human rights of ‘‘In the Matter of Race: Race and the Amer- of one black man, Clarence Thomas, being blacks.

VerDate jul 14 2003 09:29 Sep 29, 2004 Jkt 069102 PO 00000 Frm 00018 Fmt 0689 Sfmt 0634 E:\BR99\E13AP9.000 E13AP9 6394 EXTENSIONS OF REMARKS April 13, 1999 The tragedy with Plessy v. Ferguson is not view within the African-American commu- Second, I insert an article by Bruce Freed that the Justices had the ‘‘wrong’’ edu- nity on all issues; but, I do think there are who has been writing very thoughtfully in com- cation, or that they attended the ‘‘wrong’’ certain undisputable common denominators mentary aimed at the enlightened leadership law schools. The tragedy is that the Justices as to what constitutes progress or regress. had the wrong values, and that these values Within that context and from the perspec- of the business community. poisoned this society for decades. tive of almost every constitutional law Third, I insert a very thoughtful article by I have read almost every article you have scholar, there is no doubt that Justice one of the most thoughtful of our contem- published, every speech you have given, and Thomas had done more to turn back the porary journalists, E.J. Dionne, on the theo- virtually every public comment you have clock of racial progress than has perhaps any retical aspects of this broader question. made during the past decade. Until your con- other African-American public official in the firmation hearing, I could not find one shred history of this country. REMARKS BY JOHN SWEENEY, PRESIDENT OF THE AFL–CIO, 1999 ANNUAL MEETING of evidence suggesting an insightful under- Higginbotham continued, mentioning those standing on your part on how the evolution- WORLD, ECONOMIC FORUM, DAVOS, SWITZER- ruling in which Thomas overlooked history to LAND, JANUARY 30, 1999 ary movement of the Constitution and the undermine the progress of black Americans in work of civil rights organizations have bene- It is a delight to be here once more, and to fited you. . . . the civil rights struggle and wrote: have this opportunity to share with you While you were a presidential appointee In view of his harsh conservative record, some of the perspectives of the 40 million for eight years, as Chairman of the Equal please explain to me why you invited Justice working men and women in households rep- Employment Opportunity Commission and Thomas, who has voted consistently against resented by the AFL–CIO. as an Assistant Secretary at the Department the interest of African Americans, minori- We’ve been asked to talk about how to of Education, you made what I would regard ties and women. ‘‘manage the social impact of globalization.’’ as unwarranted criticisms of civil rights or- Mr. Speaker, a few years ago, Judge But let us not think of globalization as a ganizations of the Warren Court, and even of Higginbotham underwent open heart surgery. natural phenomenon with regrettable social Justice Thurgood Marshall. Perhaps these After his recovery he wrote to his many friends side effects. The forces of globalization now criticisms were motivated by what you per- thanking them for their expressions of concern wracking the world are the creation of man, ceived to be your political duty to the and prayers. In his note, the judge quoted not of God. Our task is not to make societies Reagan and Bush administrations. Now that safe for globalization, but to make the global you have assumed what should be the non- what a renown heart specialist had said: system safe for decent societies. partisan role of a Supreme Court Justice, I During the last twenty years, I have talked This is not a quibble about words. As we hope you will take time out to carefully to many dying patients. I have never met meet, about a third of the world’s economy evaluate some these unjustified attacks. one who wished that s/he had spent more is in recession. 100 million people who But your comments troubled me then and time at the office, but I have met thousands thought they were part of a growing middle trouble me still because they convey a stunt- who regretted that they did not spend more class have been brutally thrust back into ed knowledge of history and an unformed ju- time enjoying their family and pursuing less poverty. And, as recent events in Brazil have dicial philosophy. . . . You are no longer stressful options. shown, the crisis is far from over. privileged to offer flashy one-liners to de- Judge Higginbotham did reduce his volumi- Global deflation is now the nightmare of light the conservative establishment. Now nous schedule of activities, but fortunately he central bankers. Too many goods, too much what you write must inform, not entertain. remained a powerful voice which helped to productive capacity chasing too few con- Now your statements and your votes can shape attitudes and influence opinions about sumers with too little money. In the crisis, shape the destiny of the entire nation. the US is the buyer of last resort. But US During the last ten years, you have often race and racism in this country. His contribu- tions to the civil rights movement will be for- consumers are already spending more than described yourself as a black conservative. I they make. US manufacturers are in reces- must confess that, other than their own self- ever cherished. sion. In recent months, 10,000 steelworkers advancement, I am at a loss to understand f have lost their jobs to a flood of imports, what is it that the so-called black conserv- THE CORRECT APPROACH TO their families disrupted, their communities atives are so anxious to conserve. Now that devastated. The US trade deficit is headed to you no longer have to be outspoken on their GLOBALIZATION unsustainable new heights. behalf, perhaps you will recognize that in the The terrible human costs can have one past it was the white ‘‘conservatives’’ who HON. BARNEY FRANK good effect. They can sober the debate about screamed ‘‘Segregation now, Segregation OF MASSACHUSETTS the global economy. For two decades, con- forever!’’ It was primarily the conservative IN THE HOUSE OF REPRESENTATIVES servative governments have been on a binge, who attacked the Warren Court relentlessly dismantling controls over capital, cur- because of Brown v. Board of Education and Tuesday, April 13, 1999 rencies, and corporations. Now we awake the who stood in the way of almost every meas- Mr. FRANK of Massachusetts. Mr. Speaker, morning after, our heads aching, our hearts ure ensure gender and racial advancement. burdened by the destruction that we see Of the fifty-two Senators who vote in favor no issue facing us is more important than how we respond to the question of adapting to the around us. of your confirmation some thirteen hailed Globalization—in the extreme, corporate from nine Southern states. Some may have new global economy. Until fairly recently, the accepted wisdom was that all governments dominated, de-regulated form we have wit- voted for you because they agreed with nessed—is not the scapegoat of the current President Bush’s assessment that you were had to do was to allow capital to find its most crisis; it is the cause of it. After two decades, ‘‘the best person for the position.’’ But, can- profitable niche, and we would all reap the the results are very clear. The global casino didly, Justice Thomas, I do not believe that benefits. Increasingly people understand that of capital and currency speculation has gen- you were indeed the most competent person this is an incomplete approach to governance erated booms and busts of increasing sever- to be on the Supreme Court. Charles Bowser, and an inadequate response to the social eco- ity and frequency, as World Bank economist a distinguished African-American Philadel- Joseph Stiglitz has warned. And it has pro- phia lawyer said: ‘‘I’d be willing to bet that nomic and political problems posed by the new global economy. In the interest of fos- duced slower growth and greater inequality not one of the Senators who voted to confirm in countries large and small, developed and Clarence Thomas would hire him as their tering discussion of this important set of issues, I ask unanimous consent to insert into developing—as governments scramble to pro- lawyer.’’ tect themselves from the global storms. Later, Judge Higginbotham questioned the the RECORD at this point three commentaries In its current form, globalization cannot decision of the Judicial Council of the National on this issue which while diverse in the per- be sustained. Democratic societies will not Bar Association which had invited Supreme spective from which they are made, share a support it. Authoritarian leaders will fear to Court Justice Clarence Thomas to address its common understanding of the general direc- impose it. The so-called Washington con- annual convention. In that letter, which ap- tion in which we should be going, and are also sensus is no longer the consensus even in peared in the September 1988 edition of distinguished by a strong intelligence. Washington. First, I insert a speech given by John Over the last year and one-half, workers, Emerge magazine, Higginbotham explained environmentalists, consumers—reflecting why he was ‘‘shocked’’ to learn of Thomas’ in- Sweeney, President of the AFL–CIO, at Davos. John Sweeney’s thoughtful leadership the opinion of the vast majority of Ameri- vitation: cans—came together to block the president’s I will not take a position as to whether he in trying to find a way to reconcile the request for fast track trade authority not should be disinvited, and leave that signifi- strengths of the market with policies that offset once, but twice. cant responsibility to the judgment of the the negative effects of a pure market ap- We insisted that enforceable worker rights Executive Committee. I am not one who be- proach is a genuine asset for the United and environmental protections be central to lieves there is, or should be, a monolithic States in our efforts to deal with this matter. any new round of trade negotiations.

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