PRINT January 1992

Democracy, Inc.

Maurice Berger

DURING A RECENT, EXTRAORDINARY EPISODE of the CBS sitcom Designing Women, cast members engaged in an alternately horrifying and hilarious recapitulation of the divisive issues raised by the Hill-Thomas hearings. Mary Jo Shively, for example, an angry, newly committed feminist who wore a green shirt emblazoned with the words “He Did It,” wondered if Senator John C. Danforth’s off-the-wall theories about Professor Hill’s sanity were a reflection of his own mental problems. The preppy, uptight Allison Sugarbaker, donning a shirt that read “She Lied,” insisted that Judge Thomas was the victim of some kind of liberal conspiracy. While the two adversaries were, like the rest of America, fixated on the question of who was telling the truth, Anthony Bouvier, an African-American law student and the women’s copartner in an Atlanta interior design firm, went right to the political heart of the matter. Reflecting on what he believed were the cynical motives of the Senate Judiciary Committee, Bouvier questioned Thomas’ qualifications: “I don’t need 14 white men to tell me how remarkable it is for [Thomas] to pull himself up from his roots. But that does not a Supreme Court Justice make. . . .What amazes me is how all those senators sat there and let him make that speech about how all these liberal groups are persecuting him because he’s black when it is painfully obvious that that is the only thing they like about him.”

In the mostly white, prime-time world of Designing Women, it seemed appropriate to relegate to the show’s sole black character the role of commenting on Thomas’ worthiness to serve on the court. On some level, the episode’s producers and writers realized that the answer to the vexing question of Thomas’ nomination—a question first put on the table by a president no less cynical than George Bush—really belonged to African-Americans. What the Thomas-Hill hearings tended to obscure, after months of debate on the nomination itself, were the long-term political implications of replacing the nation’s first African-American Supreme Court justice, the venerated civil-rights activist Thurgood Marshall, with Thomas, a neoconservative who has taken initiatives to turn back the clock on civil rights. And while Hill’s brave testimony reflected on the issue of Thomas’ fitness to serve on the court, the White House, the Judiciary Committee, and the media turned these hearings into a grotesque spectacle where the issues at hand—sexual harassment, Thomas’ hypocrisy, and the question of how America’s most judicially oppressed minority would be represented on the court—were trivialized or ignored. Instead, the nation helplessly witnessed the “high-tech” rape of Hill, and the manipulative stonewalling of a man who would become only the second black to serve on the United States Supreme Court.

And the question of Thomas’ juridical role got lost. In a country where African-Americans constitute just under 15 percent of the general population, and a vastly disproportionate percentage of people in prison or on death row, it would seem imperative to have at least one black justice on America’s tribunal of last resort. The need for a “black seat” does not imply that a fair and progressive white justice could not effectively represent the interests of disenfranchised Americans; rather, it is becoming increasingly difficult to believe in the fairness of a court that is resolutely upper-class, white, and male. Our present court of seven white men, one white woman, and one black man is bent on a political agenda so severe that even President Bush agreed, albeit with appalling reluctance, to sign legislation that overturns aspects of the court’s most strident anti-civil-rights rulings.

In this light, an African-American presence on the court, even as part of an outnumbered minority, is needed to give hope to those who have traditionally turned to legal channels to remedy the effects of bigotry. Ever since his appointment by Lyndon Johnson in 1967, Associate Justice Marshall represented this hope. William J. Daniels writes, for example, that the jurist’s position on the Burger Court was “largely that of a dissenting justice.” In effect, Marshall used the dissenting opinion as a powerful political tool, as a means of “keeping alive a political issue and appealing to the ‘intelligence of a future day’ . . . when new opportunities [might arise] for an issue to be considered.” And if, as Michael J. Perry has argued, every judge, like every policymaker, is a member of “a morally pluralistic community” whose interpretation of the Constitution should serve as the standard, then it is even clearer that a moral imperative exists to maintain an African-American seat on the court.

Thus the choice of whether Thomas should assume Marshall’s seat could be said to belong, first and foremost, to American blacks. But many civil-rights organizations, the N.A.A.C.P. among them, decided that no black presence would be preferable to that of the reactionary Thomas. Their reasoning, ignored or misunderstood by many senators, was further displaced by the spectacle of the Hill-Thomas hearings. And, as the arguments of these civil-rights organizations, caught between conflicting loyalties to race and gender, were effectively silenced, rank-and-file blacks, particularly in the South, grew ever more wary of a process that could allow 14 white male representatives from an all-white United States Senate to interrogate, insult, and judge two prominent African-Americans. Ironically, the Thomas question may have been decided, in part, by these Southern blacks. On the morning of the confirmation vote, a number of liberal Southern Democratic senators found their offices flooded with thousands of calls in support of Thomas from their black constituents. Rather than “misjudge” this man and possibly be wrong about his culpability, many of these constituents decided to give him the benefit of the doubt. In light of America’s horrific racism, such an attitude is understandable. Dependent on these black voters for their political survival, a handful of undecided senators opted at the last minute to vote for Thomas, thus assuring his confirmation. Yet sadly, the judge’s ascendance to the nation’s highest court was predicated on a cynical and perverse situation that had whirled out of control. The price that all Americans will probably pay for this fiasco is the further destruction of Marshall’s agenda of dissent—a legacy of equality and justice that now must sadly wait for the intelligence of a future day.

Maurice Berger is a cultural historian and art critic. His most recent book is How Art Becomes History: Essays on Art, Society, and Culture in Post–New Deal America, published by HarperCollins, New York.