The new voice of America

Four years ago Clarence Thomas was in the dock - now he leads the backlash against affirmative action. Rupert Cornwell reports

Could that have been a great booming laugh, rumbling somewhere deep within the glistening white marble palace that houses the Supreme Court of the United States? Of course not: the third branch of constitutional power is far too solemn and austere to admit such frivolity, particularly when it is issuing a judgment remoulding the law of the land. But then again, one day last week, such an error could have been forgiven.

To those who know him, such a laugh used to be the trademark of Clarence Thomas, the Court's sole black Justice - at least before the circus of his 1991 confirmation hearings, and the ghastly primetime humiliation of the sexual harassment allegations by Anita Hill. But sooner or later every tribulation ends. The smear of Professor Hill's unproven charges may never be erased, and his jurisprudence still wins few admirers. His ideas, however, are coming into their own.

An historic judgment delivered by the Supreme Court on 12 June could sound the death knell of government programmes awarding benefits based on race. One of its architects was Clarence Thomas. Unabashed Republican conservatism may have rendered him an Uncle Tom to most blacks and white liberals, but in his assault on affirmative action, the country is behind him.

The history of affirmative action is almost as long as the US civil rights era itself. In the late Fifties President Eisenhower set up two committees to prevent discriminatory recruitment by the government, which the Kennedy Administration in 1961 decided to merge. A black lawyer from Detroit called Hobart Taylor was summoned to draw up the executive order. He wondered whether to name the policy "positive action" or "affirmative action", before opting for the second. "I liked the alliteration," Hobart explained.

Thus was born a basic phrase in the lexicon of race, and which under Presidents Johnson, Nixon, Ford and Carter spawned 160 federal programmes, involving tens of billions of dollars of government contracts and affecting a quarter of all American companies. Then came 12 June and the Court's judgment in Adarand Constructors vs Pena - a text-book case of affirmative action turning into reverse discrimination.

Adarand is a small building business in Colorado, which in 1989 bid for a subcontract to install guardrails on a new federal road in the state. Its tender was $1,700 lower than its chief rival, Gonzales Construction. Gonzales, however, was Hispanic-owned, qualifying as an "economic and socially disadvantaged" enterprise and entitling the head contractor to a $10,000 bonus if it awarded the guardrail business to Gonzales. Not surprisingly, Adarand's bid, although lower, was rejected. The company sued, only to lose in the lower courts, and again on appeal.

The Supreme Court thought otherwise, pronouncing "all racial classifications" unconstitutional, unless government could show a "compelling interest" for them in a narrowly drawn, specific instance. By sending the case back to the District court, which will now apply that rule, it opened the legal floodgates: scores of similar appeals will be lodged. If they are upheld, affirmative action will be virtually dead. As for Clarence Thomas, he would have chosen to go further than the actual opinion which won a five-four majority among the justices, not simply making racial preferences far harder to justify, but abolishing them outright. Arguably, his approach is the truer reflection of the times.

When Clarence Thomas was nominated by George Bush on 1 July 1991 on the lawn of the President's home at Kennebunkport, Maine, a wheel was coming full circle. He was only the second black so honoured. The first, the man he was succeeding, was the legendary Thurgood Marshall, a lion of the civil rights struggle; he was the crusading attorney who argued for Brown vs the Board of Education in 1954, the case that outlawed segregated schools. Thomas is cut from back-to-first-principles Republican cloth, a believer in natural law and self-determination. In his Yale Law School days he once voted for George McGovern; more indicative of his politics, however, was his officiating at the recent wedding of the conservative talk radio superstar Rush Limbaugh. A black who was a liberal beacon on his Court was succeeded by one who is the most conservative member of the current one.

The paradox is that Thomas largely owes his present eminence to the very practice he now wants to eradicate. An informal system of racial set-asides helped his admission to white Catholic colleges in the 1960s, then to Yale, and certainly his elevation to the Supreme Court by Mr Bush - as President, the highest-ranking federal contractor of them all. The ploy sent black and liberal America into contortions, fervently in favour of blacks and minorities on the Court but aghast that it should be Thomas.

Clarence Thomas, Bush said with a straight face that sunny day in Kenne- bunkport, was "the best qualified candidate". Even discarding some of the more extreme dismissals of Thomas' ability as a lawyer, that was a shameless exaggeration: the American Bar Association deemed him merely "qualified". The most venerable black civil rights group, the NAACP, came out against him, as did every liberal pressure group. Their instrument of vengeance would be Anita Hill, the black law professor who had worked with Thomas when he was chief of the Equal Employment Opportunity Commission, the federal agency which is affirmative action incarnate. Thomas called the confirmation hearings "the high-tech lynching of an uppity black". It was a lynching he survived, just. But the trauma would long linger. Only now are his opinions gaining self-confidence, and a real public echo.

Sometimes the Supreme Court lags behind public opinion; sometimes, as in the golden age of civil rights that began with Brown vs Board of Education, it leads public opinion. Today, on affirmative action, it is more or less at one with it. Thomas believes the practice, however well-meaning, can be as harmful as old-fashioned racial prejudice. In a concurring opinion, he wrote scathingly of "racial paternalism" whose unintended consequences could be "as poisonous and pernicious as any other form of discrimination". Racial preference programmes, he wrote, "stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences".

It is classic conservatism, whose logical goal is the "colour-blind society". But life does not always obey logic: what about the less fortunate, say the defenders of affirmative action, blacks who did not have Thomas' advantages, victims of discrimination in an obstinately racist world? For blacks there was the added fury at a man biting the hand which had fed him - "a traitor to the social justice movement that enabled him to get where he is," in the words of Jesse Jackson.

But many whites and a small but growing contingent of blacks agree with Thomas. Black conservatives like Alan Keyes, the Republican Presidential candidate who is running a fiery campaign attacking the "moral crisis" eating at America, insist that civil rights solutions should not be applied to essentially social and economic problems.

This is no proclamation of victory over America's most intractable problem; rather the acknowledgement that despite 40 years of civil rights gains, race still corrodes the country. And all the while inner-city decay, poverty, crime, drugs and illegitimacy are worsening problems, all related to race.

For Thomas, the answer lies not in equality of result, but equality of opportunity. Rather than allot a certain number of medical school places to blacks, far better to guarantee equal education, and thus an equal shot at the entrance grades they need. Instead of making companies hire a proportion of minority workers, much better to ensure that minorities have equal access to mortgages and bank credit, to buy their own homes and set up their own businesses, at no disadvantage to whites. To those who insist there must be some legal mechanism to fight discrimination, Thomas points to the "equal protection" clause of the 14th amendment, which gives redress to any person of any race if he or she is unfairly treated.

The turn against affirmative action is but a facet of America's ideological lurch rightward. The much dissected phenomenon of the "angry white male" was part of an uprising against government meddling: not just race preferences, but gun control, taxation and much else. And the pressure is not likely to relent before next year's election.

Three leading Republican candidates, Senators Bob Dole and Phil Gramm and Governor Pete Wilson of California, have declared war on affirmative action. If Mr Clinton stands pat, he will upset white voters. Worse still, California is in the forefront of the campaign; almost certainly an initiative barring the practice entirely will be on the state ballot in 1996. But if he goes too far, Jesse Jackson could be stirred into an independent run that would deprive Mr Clinton of the black vote.

The Republicans have a "wedge issue" of which political strategists dream - forcing Bill Clinton into a choice between mainstream whites and blacks which the master compromiser himself will find impossible to fudge. Small wonder a promised White House review of affirmative action is months behind schedule. Clarence Thomas, meanwhile, finds himself at the vanguard of a creeping revolution. Maybe there really was a boom of laughter that day at the Supreme Court.