E630 CONGRESSIONAL RECORD Ð Extensions of Remarks April 13, 1999 of optimism and pessimism.'' Leon You can become an exemplar of fairness because of Brown v. Board of Education and Higginbotham knew and understood the ter- and the rational interpretation of the Con- who stood in the way of almost every meas- rible history of racial discrimination in the jus- stitution, or you can become an archetype of ure ensure gender and racial advancement. inequality and the retrogressive evaluation Of the fifty-two Senators who vote in favor tice system. He knew that this history could of human rights. The choice as to whether of your confirmation some thirteen hailed never be forgotten if black Americans ever you will build a decisional record of true from nine Southern states. Some may have hope to achieve equal justice under law. For greatness or of mere mediocrity is yours. voted for you because they agreed with this reason, Judge Higginbotham shared my Black Ivy League alumni [Higginbotham President Bush's assessment that you were dismay when former President George Bush and Thomas finished Yale] in particular ``the best person for the position.'' But, can- presented Clarence Thomas as his choice to should never be too impressed by the edu- didly, Justice Thomas, I do not believe that replace justice Thurgood Marshall as Asso- cational pedigrees of Supreme Court Jus- you were indeed the most competent person ciate Supreme Court Justice. On that day, tices. The most wretched decision ever ren- to be on the Supreme Court. Charles Bowser, dered against black people in the past cen- a distinguished African-American Philadel- independent-minded women were appalled, tury was Plessy v. Ferguson. It was written phia lawyer said: ``I'd be willing to bet that knowledgeable black Americans were out- in 1896 by Justice Henry Billings Brown who not one of the Senators who voted to confirm raged and advocates for the poor abandoned attended both Yale and Harvard law schools. Clarence Thomas would hire him as their their hopes. Then, the disastrous day came The opinion was joined by Justice George lawyer.'' when the U.S. Senate confirmed Clarence Shiras, a graduate of Yale Law School, as Later, Judge Higginbotham questioned the Thomas' appointment and the waves of de- well as by Chief Justice Melville Fuller and decision of the Judicial Council of the National spair washed over millions who had fought, Justice Horace Gray, both alumni of Harvard Bar Association which had invited Supreme sacrificed, and suffered to overcome centuries Law School. If those four Ivy League alumni on the Su- Court Justice Clarence Thomas to address its of discrimination and to achieve respect and preme Court in 1896 had been as faithful in annual convention. In that letter, which ap- quality. In Black America, six months after their interpretation of the Constitution as peared in the September 1988 edition of Thomas' appointment the attitude and senti- Justice John Harlan, a graduate of Transyl- Emerge magazine, Higginbotham explained ment toward him as a person was reflected in vania, a small law school in Kentucky, then why he was ``shocked'' to learn of Thomas' in- the words of Judge Higginbotham who wrote: the venal precedent of Plessy v. Ferguson, vitation: Suppose someone wanted to steal back which established the federal ``separate but I will not take a position as to whether he past achievements, reign in the present gains equal'' doctrine and legitimized the worst should be disinvited, and leave that signifi- and cutoff future expectations among Afri- forms of race discrimination, would not have cant responsibility to the judgment of the can-Americans about participation in the been the law of our nation for sixty years. Executive Committee. I am not one who be- Judicial process. that person would have The separate but equal doctrine; also known lieves there is, or should be, a monolithic found it difficult to devise a better plan than as Jim Crow, created the foundations of sep- view within the African-American commu- nominating Clarence Thomas to the Su- arate and unequal allocation of resources, nity on all issues; but, I do think there are preme Court which decreasing the number of and oppression of the human rights of certain undisputable common denominators African-Americans on the federal bench. blacks. as to what constitutes progress or regress. Mr. Speaker. Judge Higginbotham was de- The tragedy with Plessy v. Ferguson is not Within that context and from the perspec- voted to educating this nation about the perils that the Justices had the ``wrong'' edu- tive of almost every constitutional law cation, or that they attended the ``wrong'' of one black man, Clarence Thomas, being scholar, there is no doubt that Justice law schools. The tragedy is that the Justices Thomas had done more to turn back the misconstrued as a respectable replacement had the wrong values, and that these values clock of racial progress than has perhaps any for Thurgood Marshall who was a bonafide poisoned this society for decades. other African-American public official in the representative of the hopes, dreams and aspi- I have read almost every article you have history of this country. published, every speech you have given, and rations of black Americans. In this under- Higginbotham continued, mentioning those taking, Judge Leon Higginbotham wrote to virtually every public comment you have made during the past decade. Until your con- ruling in which Thomas overlooked history to Clarence Thomas upon His confirmation to the undermine the progress of black Americans in Supreme Court. Higginbotham documented firmation hearing, I could not find one shred of evidence suggesting an insightful under- the civil rights struggle and wrote: the legal struggles that had abolished impedi- standing on your part on how the evolution- In view of his harsh conservative record, ments to the freedom of black people and ary movement of the Constitution and the please explain to me why you invited Justice enunciated the underlying personal values and work of civil rights organizations have bene- Thomas, who has voted consistently against courage which guided those who led these fited you. the interest of African Americans, minori- battles. In this letter, Higginbotham challenged While you were a presidential appointee ties and women. Thomas to recall, to understand and to emu- for eight years, as Chairman of the Equal Mr. Speaker, a few years ago, Judge Employment Opportunity Commission and late the lives of those great gladiators who Higginbotham underwent open heart surgery. changed the course of history. In this open let- as an Assistant Secretary at the Department of Education, you made what I would regard After his recovery he wrote to his many friends ter, Higginbotham cited the damage done to as unwarranted criticisms of civil rights or- thanking them for their expressions of concern the cause of black America and the crisis in ganizations of the Warren Court, and even of and prayers. In his note, the judge quoted race relations spurred by Judge Thomas' con- Justice Thurgood Marshall. Perhaps these what a renown heart specialist had said: firmation. Excerpts from this letter provide the criticisms were motivated by what you per- During the last twenty years, I have talked details of his message: ceived to be your political duty to the to many dying patients. I have never met At first I thought that I should write you Reagan and Bush administrations. Now that one who wished that s/he had spent more privatelyÐthe way one normally corresponds you have assumed what should be the non- time at the office, but I have met thousands with a colleague or friend. I still feel ambiv- partisan role of a Supreme Court Justice, I who regretted that they did not spend more alent about making this letter public, but I hope you will take time out to carefully time enjoying their family and pursuing less do so because your appointment is pro- evaluate some these unjustified attacks. stressful options. foundly important to this country and the But your comments troubled me then and trouble me still because they convey a stunt- Judge Higginbotham did reduce his volumi- world, and because all Americans need to un- nous schedule of activities, but fortunately he derstand the issues you will face on the Su- ed knowledge of history and an unformed ju- preme Court. In short, Justice Thomas, I dicial philosophy. You are no longer remained a powerful voice which helped to write this letter as a public record so that privileged to offer flashy one-liners to de- shape attitudes and influence opinions about this generation can understand the chal- light the conservative establishment. Now race and racism in this country. His contribu- lenges you face as an Associate Justice to what you write must inform, not entertain. tions to the civil rights movement will be for- the Supreme Court, and the next generation Now your statements and your votes can ever cherished. can evaluate the choices you have made or shape the destiny of the entire nation. f will make. During the last ten years, you have often By elevating you to the Supreme Court, described yourself as a black conservative. I THE CORRECT APPROACH TO President Bush has suddenly vested in you must confess that, other than their own self- GLOBALIZATION the option to preserve or dilute the gains advancement, I am at a loss to understand this country has made in the struggle for what is it that the so-called black conserv- equality. This is a grave responsibility in- atives are so anxious to conserve. Now that HON. BARNEY FRANK deed. And while much has been said you no longer have to be outspoken on their OF MASSACHUSETTS about your admirable determination to over- behalf, perhaps you will recognize that in the IN THE HOUSE OF REPRESENTATIVES come terrible obstacles, it is also important past it was the white ``conservatives'' who Tuesday, April 13, 1999 to remember how you arrived where you are screamed ``Segregation now, Segregation now, because you did not get there by your- forever!'' It was primarily the conservative Mr.