Defends His Conservatism
Memphis, TN, July 28, 1998
Mr. Mayor, my fellow colleagues of both bench and bar, it's a pleasure to be here. And one advantage is that similar to being on the bench, I have heard all of the arguments, and will take them under advisement. I have been told recently that Judge Bailey does not take matters under advisement that frequently, so I will stay out of his court. But it is indeed a pleasure to be here.
A friend of mine who passed away some nine years ago was an active member of the NBA. And many of you may remember him, Gil Hardy. [applause.] Probably one of the most painful tragedies for me of my confirmation was to see the name of one of the nicest, most decent human beings I had ever met, besmirched. And Gil was my best friend at both college and at Yale Law School. He was the best man at my wedding and he is the person to whom I went for solace.
For those of you with whom I do not share the same opinion, and perhaps that is many, I will take only 30 minutes of your time. And perhaps at least we can part company having known we at least visited for 30 minutes.
Thank you, Judge Keith, for your kind, warm words. As always, I deeply appreciate the manner in which you have made yourself available over the years for counsel and advice. And I appreciate your courteous and dignified example over the past 15 years. And I might add parenthetically here, I met Judge Keith in the early '80s when I was trying to figure out a way to distribute in excess of 10-million dollars to minorities for scholarships, and was being opposed by individuals who should have been supporting us. And it was his advice and counsel that bolstered us in that effort. We who are just commencing our tenures as judges can only hope to emulate your positive spirit and the strength of character that you've always demonstrated.
I'd also like to thank President Jones for his support, Justice Johnson for your strength and your courage and you stick-to-it-tivity, Judge Bailey- who I thought I had gotten into a mess, but having had dinner with him, he got me into a mess - but I have enjoyed your company and the opportunity to learn from you, to get to know you, and perhaps to develop a friendship over the years. And I would like to thank the other members of the Judicial Council for the National Bar Association who have been so courageous and forthright and kind to invite me to join you this afternoon.
As has become the custom, a wearisome one I admit, this invitation has not been without controversy. Though unfortunate, this controversy has added little value in the calculus of my decision to be here.
Thirty years ago, we all focused intently on this city as the trauma of Dr. King's death first exploded, then sank into our lives. For so many of us who were trying hard to do what we thought was required of us in the process of integrating this society, the rush of hopelessness and isolation was immediate and overwhelming. It seemed that the whole world had gone mad. I am certain that each of us has his or her memories of that terrible day in 1968. For me it was the final straw in the struggle to retain my vocation to become a Catholic priest. Suddenly, this cataclysmic event ripped me from the moorings of my grandparents, my youth and my faith, and catapulted me headlong into the abyss that Richard Wright seemed to describe years earlier.
It was this event that shattered my faith in my religion and my country. I had spent the mid-'60s as a successful student in a virtually white environment. I had learned Latin, physics and chemistry. I had accepted the loneliness that came with being "the integrator," the first and the only. But this event, this trauma I could not take, especially when one of my fellow seminarians, not knowing that I was standing behind him, declared that he hoped the S.O.B. died. This was a man of God, mortally stricken by an assassin's bullet, and one preparing for the priesthood had wished evil upon him.
The life I had dreamed of so often during those hot summers on the farm in Georgia or during what seemed like endless hours on the oil truck with my grandfather, expired as Dr. King expired. As so many of you do, I still know exactly where I was when I heard the news. It was a low moment in our nation's history and a demarcation between hope and hopelessness for many of us.
But three decades have evaporated in our lives, too quickly and without sufficient residual evidence of their importance. But much has changed since then. The hope that there would be expeditious resolutions to our myriad problems has long since evaporated with those years. Many who debated and hoped then, now do neither. There now seems to be a broad acceptance of the racial divide as a permanent state. While we once celebrated those things that we had in common with our fellow citizens who did not share our race, so many now are triumphal about our differences, finding little, if anything, in common. Indeed, some go so far as to all but define each of us by our race and establish the range of our thinking and our opinions, if not our deeds by our color.
I, for one, see this in much the same way I saw our denial of rights --as nothing short of a denial of our humanity. Not one of us has the"gospel," nor are our opinions based upon some revealed precepts to be taken as faith. As thinking, rational individuals, not one of us can claim infallibility, even from the overwhelming advantage of hindsight and Monday-morning quarter-backing.
This makes it all the more important that our fallible ideas be examined as all ideas are in the realm of reason, not as some doctrinal or racial heresy. None of us-- none of us-- have been appointed by God or appointed God. And if any of us has, then my question is why hasn't he or she solved all these problems?
I make no apologies for this view now, nor do I intend to do so in the future. I have now been on the Court for seven terms. For the most part, it has been much like other endeavors in life. It has its challenges and requires much of the individual to master the workings of the institution. We all know that. It is, I must say, quite different from what I might have anticipated if I had the opportunity to do so.
Unlike the unfortunate practice or custom in Washington and in much of the country, the Court is a model of civility. It's a wonderful place. Though there have been many contentious issues to come before the Court during these initial years of my tenure, I have yet to hear the first unkind words exchanged among my colleagues. And quite frankly, I think that such civility is the sine qua non of conducting the affairs of the Court and the business of the country.
As such, I think that it would be in derogation of our respective oaths and our institutional obligations to our country to engage in uncivil behavior. It would also be demeaning to any of us who engages in such conduct. Having worn the robe, we have a lifetime obligation to conduct ourselves as having deserved to wear the robe in the first instance.
One of the interesting surprises is the virtual isolation, even within the Court. It is quite rare that the members of the Court see each other during those periods when we're not sitting or when we're not in conference. And the most regular contact beyond those two formal events are the lunches we have on conference and court days.
With respect to my following, or, more accurately, being led by other members of the Court, that is silly, but expected, since I couldn't possibly think for myself. And what else could possibly be the explanation when I fail to follow the jurisprudential, ideological and intellectual, if not anti-intellectual, prescription assigned to blacks. Since thinking beyond this prescription is presumptively beyond my abilities, obviously someone must be putting these strange ideas into my mind and my opinions. Though being underestimated has its advantages, the stench of racial inferiority still confounds my olfactory nerves.
As Ralph Ellison wrote more than 35 years ago, "Why is it so often true that when critics confront the American as Negro, they suddenly drop their advanced critical armament and revert with an air of confident superiority to quite primitive modes of analysis?" Those matters accomplished by whites are routinely subjected to sophisticated modes of analysis. But the when the selfsame matters are accomplished by blacks, the opaque racial prism of analysis precludes such sophistication, and all is seen in black and white. And some who would not venture onto the more sophisticated analytical turf are quite content to play in the minor leagues of primitive harping.
The more things change, the more they remain the same. Of course there is much criticism of the Court by this group or that, depending on the Court's decisions in various highly publicized cases. Some of the criticism is profoundly uninformed and unhelpful. And all too often, uncivil second-guessing is not encumbered by the constraints of facts, logic or reasoned analysis.
On the other hand, the constructive and often scholarly criticism is almost always helpful in thinking about or rethinking decisions. It is my view that constructive criticism goes with the turf, especially when the stakes are so high and the cases arouse passions and emotions. And, in a free society, [where is found] the precious freedom of speech and the strength of ideas, we at the Court could not possibly claim exemption from such criticism. Moreover, we are not infallible, just final. [subdued laughter.]
As I have noted, I find a thoughtful, analytical criticism most helpful. I do not think any judge can address a vast array of cases and issues without testing and re-testing his or her reasoning and opinions in the crucible of debate. However, since we are quite limited in public debate about matters that may come before the Court, such debate must, for the most part, occur intramurally, thus placing a premium on outside scholarship.
Unfortunately, from time to time, the criticism of the Court goes beyond the bounds of civil debate and discourse. Today it seems quite acceptable to attack the Court and other institutions when one disagree with an opinion or policy.
I can still remember traveling along Highway 17 in south Georgia, the Coastal Highway, during the '50s and '60s, and seeing the "Impeach Earl Warren" signs. Clearly, heated reactions to the Court or to its members are not unusual. Certainly, Justice Blackmun was attacked repeatedly because many disagreed, as I have, with the opinion he offered on behalf of the court in Roe vs. Wade. Though I have joined opinions disagreeing with Justice Blackmun, I could not imagine ever being discourteous to him merely because we disagreed.
I've found during my almost 20 years in Washington that the tendency to personalize differences has grown to be an accepted way of doing business. One need not do the hard work of dissecting an argument. One need only attack and thus discredit the person making the argument. Though the matter being debated is not effectively resolved, the debate is reduced to unilateral pronouncements and glib but quotable cliches.
I, for one, have been singled out for particularly bilious and venomous assaults. These criticisms, as near as I can tell, and I admit that it is rare that I take notice of this calumny, have little to do with any particular opinion, though each opinion does provide one more occasion to criticize. Rather, the principal problem seems to be a deeper antecedent offense: I have no right to think the way I do because I'm black.
Though the ideas and opinions themselves are not necessarily illegitimate if held by non-black individuals, they, and the person enunciating them, are illegitimate if that person happens to be black. Thus, there's a subset of criticism that must of necessity be reserved for me, even if every non-black member of the Court agrees with the idea or the opinion. You see, they are exempt from this kind of criticism, precisely because they are not black. As noted earlier, they are more often than not subjected to the whites-only sophisticated analysis.
I will not catalogue my opinions to which there have been objections since they are a matter of public record. But I must note in passing that I can't help but wonder if some of my critics can read.
One opinion that is trotted out for propaganda, for the propaganda parade, is my dissent in Hudson vs. McMillian. The conclusion reached by the long arms of the critics is that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion.
Though one can disagree with my dissent, and certainly the majority of the Court disagreed, no honest reading can reach such a conclusion. Indeed, we took the case to decide the quite narrow issue, whether a prisoner's rights were violated under the "cruel and unusual punishment" clause of the Eighth Amendment as a result of a single incident of force by the prison guards which did not cause a significant injury.
In the first section of my dissent, I stated the following: "In my view, a use of force that causes only insignificant harm to a prisoner may be immoral; it may be tortuous; it may be criminal, and it may even be remediable under other provisions of the Federal Constitution. But it is not cruel and unusual punishment."
Obviously, beating prisoners is bad. But we did not take the case to answer this larger moral question or a larger legal question of remedies under other statutes or provisions of the Constitution. How one can extrapolate these larger conclusions from the narrow question before the Court is beyond me, unless, of course, there's a special segregated mode of analysis.
It should be obvious that the criticism of this opinion serves not to present counter-arguments, but to discredit and attack me because I've deviated from the prescribed path. In his intriguing and thoughtful essay on"My Race Problem and Ours," Harvard law professor Randall Kennedy, a self-described social Democrat, correctly observes that "if racial loyalty is deemed essentially and morally virtuous, then a black person's adoption of positions that are deemed racially disloyal will be seen by racial loyalists as a supremely threatening sin, one warranting the harsh punishments that have historically been visited upon alleged traitors." Perhaps this is the defensive solidarity to which Richard Wright refers. If so, it is a reaction I understand, but resolutely decline to follow.
In the final weeks of my seminary days, shortly after Dr. King's death, I found myself becoming consumed by feelings of animosity and anger. I was disenchanted with my church and my country. I was tired of being in the minority, and I was tired of turning the other cheek. I, along with many blacks, found ways to protest and try to change the treatment we received in this country. Perhaps my passion for Richard Wright novels was affecting me. Perhaps it was listening too intently to Nina Simone. Perhaps, like Bigger Thomas, I was being consumed by the circumstances in which I found myself, circumstances that I saw as responding only to race.
My feelings were reaffirmed during the summer of 1968 as a result of the lingering stench of racism in Savannah and the assassination of Bobby Kennedy. No matter what the reasons were, I closed out the '60s as one angry young man waiting on the revolution that I was certain would soon come. I saw no way out. I, like many others, felt the deep chronic agony of anomie and alienation. All seemed to be defined by race. We became a reaction to the "man," his ominous reflection.
The intensity of my feelings was reinforced by other events of the late '60s: the riots, the marches, the sense that something had to be done, done quickly to resolve the issue of race. In college there was an air of excitement, apprehension and anger. We started the Black Students' Union. We protested. We worked in the Free Breakfast Program. We would walk out of school in the winter of 1969 in protest.
But the questioning for me started in the spring of 1970 after an unauthorized demonstration in Cambridge, Massachusetts, to "free the political prisoners." Why was I doing this rather than using my intellect? Perhaps I was empowered by the anger and relieved that I could now strike back at the faceless oppressor. But why was I conceding my intellect and rather fighting much like a brute? This I could not answer, except to say that I was tired of being restrained.
Somehow I knew that unless I contained the anger within me I would suffer the fates of Bigger Thomas and Cross Damon. It was intoxicating to act upon one's rage, to wear it on one's shoulder, to be defined by it. Yet, ultimately, it was destructive, and I knew it.
So in the spring of 1970, in a nihilistic fog, I prayed that I'd be relieved of the anger and the animosity that ate at my soul. I did not want to hate any more, and I had to stop before it totally consumed me. I had to make a fundamental choice. Do I believe in the principles of this country or not? After such angst, I concluded that I did. But the battle between passion and reason would continue, although abated, still intense.
Ironically, many of the people who are critics today were among those we called half-steppers, who had co-opted by "the man" because they were part of the system that oppressed us. When the revolution came, all of the so-called Negroes needed to be dealt with. It is interesting to remember that someone gave me a copy of Professor Thomas Sowell's book, "Education, Myths and Tragedies," in which he predicted much of what has happened to blacks and education. I threw it in the trash, unread, declaring that he was not a black man since no black could take the positions that he had taken, whatever they were, since I had only heard his views were not those of a black man.
I was also upset to hear of a black conservative in Virginia named Jay Parker. How could a black man call himself a conservative? In a twist of fate, they both are dear friends today, and the youthful wrath I visited upon them is now being visited upon me, though without the youth.
What goes around does indeed come around.
The summer of 1971 was perhaps one of the most difficult of my life. It was clear to me that the road to destruction was paved with anger, resentment and rage. But where were we to go? I would often spend hours in our small efficiency apartment in New Haven pondering this question and listening to Marvin Gaye's then new album, "What's Going On?"
To say the least, it was a depressing summer. What were we to do? What's going on?
As I think back on those years, I find it interesting that many people seemed to have trouble with their identities as black men. Having had to accept my blackness in the caldron of ridicule from some of my black schoolmates under segregation, then immediately thereafter remain secure in that identity during my years at all-white seminary, I had few racial identity problems. I knew who I was and needed no gimmicks to affirm my identity. Nor, might I add, do I need anyone telling me who I am today. This is especially true of the psycho-silliness about forgetting my roots or self-hatred.
If anything, this shows that some people have too much time on their hands. There's a rush today to prescribe who is black, to prescribe what [are] our differences, or to ignore what our differences are. Of course, those of us who came from the rural South were different from the blacks who came from the large northern cities, such as Philadelphia and New York. We were all black. But that similarity did not mask the richness of our differences. Indeed, one of the advantages of growing up in a black neighborhood was that we were richly blessed with the ability to see the individuality of each black person with all its fullness and complexity. We saw those differences at school, at home, at church, and definitely at the barber-shop on Saturday morning.
Intra-racially, we consistently recognized our differences. It is quite counter-factual to suggest that such differences have not existed throughout our history. Indeed, when I was on the other side of the ideological divide, arguing strenuously with my grandfather that the revolution was imminent and that we all had to stick together as black people, he was quick to remind me that he had lived much longer than I had, and during far more difficult times, and that, in any case, it took all kinds to make a world.
I agree with Ralph Ellison when he asked, perhaps rhetorically, why is it that so many of those who would tell us the meaning of Negro, of Negro life, never bothered to learn how varied it really is. That is particularly true of many whites who have elevated condescension to an art form by advancing a monolithic view of blacks in much the same way that the mythic, disgusting image of the lazy, dumb black was advanced by open, rather than disguised, bigots.
Today, of course, it is customary to collapse, if not overwrite, our individual characteristics into new, but now acceptable stereotypes. It no longer matters whether one is from urban New York City or rural Georgia. It doesn't matter whether we came from a highly educated family or a barely literate one. It does not matter if you are a Roman Catholic or a Southern Baptist. All of these differences are canceled by race, and a revised set of acceptable stereotypes have been put in place.
Long gone is the time when we opposed the notion that we all looked alike and talked alike. Somehow we have come to exalt the new black stereotype above all and to demand conformity to that norm. It is this notion -- that our race defines us -- that Ralph Ellison so eloquently rebuts in his essay, "The World and the Jug." He sees the lives of black people as more than a burden, but also a discipline, just as any human life which has endured so long is a discipline, teaching its own insights into the human condition, its own strategies of survival. There's a fullness and even a richness here. And here despite the realities of politics, perhaps, but nevertheless here and real because it is human life.
Despite some of the nonsense that has been said about me by those who should know better, and so much nonsense, or some of which subtracts from the sum total of human knowledge, despite this all, I am a man, a black man, an American. And my history is not unlike that of many blacks from the deep South. And in many ways it is not that much different from that of many other Americans.
It goes without saying that I understand the comforts and security of racial solidarity, defensive or otherwise. Only those who have not been set upon by hatred and repelled by rejection fail to understand its attraction. As I have suggested, I have been there. The inverse relationship between the bold promises and the effectiveness of the proposed solutions, the frustrations with the so-called system, the subtle and not-so-subtle bigotry and animus towards members of my race made radicals and nationalists of many of us. Yes, I understand the reasons why this is attractive. But it is precisely this -- in its historic form, not its present-day diluted form-- that I have rejected.
My question was whether as an individual I truly believed that I was the equal of individuals who were white. This I had answered with a resounding "yes" in 1964 during my sophomore year in the seminary. And that answer continues to be yes. Accordingly, my words and my deeds are consistent with this answer.
Any effort, policy or program that has as a prerequisite the acceptance of the notion that blacks are inferior is a non-starter with me. I do not believe that kneeling is a position of strength. Nor do I believe that begging is an effective tactic. I am confident that the individual approach, not the group approach, is the better, more acceptable, more supportable and less dangerous one. This approach is also consistent with the underlying principles of this country and the guarantees of freedom through government by consent. I, like Frederick Douglass, believe that whites and blacks can live together and be blended into a common nationality.
Do I believe that my views or opinions are perfect or infallible? No, I do not. But in admitting that I have no claim to perfection or infallibility, I am also asserting that competing or differing views similarly have no such claim. And they should not be accorded a status of infallibility or any status that suggests otherwise.
With differing, but equally fallible views, I think it is best that they be aired and sorted out in an environment of civility, consistent with the institutions in which we are involved. In this case, the judicial system.
It pains me deeply, or more deeply than any of you can imagine, to be perceived by so many members of my race as doing them harm. All the sacrifice, all the long hours of preparation were to help, not to hurt. But what hurts more, much more, is the amount of time and attention spent on manufactured controversies and media sideshows when so many problems cry out for constructive attention.
I have come here today not in anger or to anger, though my mere presence has been sufficient, obviously, to anger some. Nor have I come to defend my views, but rather to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I'm black. I come to state that I'm a man, free to think for myself and do as I please. I've come to assert that I am a judge and I will not be consigned the unquestioned opinions of others.
But even more than that, I have come to say that isn't it time to move on? Isn't it time to realize that being angry with me solves no problems?
Isn't it time to acknowledge that the problem of race has defied simple solutions and that not one of us, not a single one of us can lay claim to the solution?
Isn't it time that we respect ourselves and each other as we have demanded respect from others?
Isn't it time to ignore those whose sole occupation is sowing seeds of discord and animus? That is self-hatred.
Isn't it time to continue diligently to search for lasting solutions?
I believe that the time has come today.
God bless each of you, and may God keep you.