Biglaw Lawyers Come To the Defense Of Justice Clarence Thomas

Defenses of the controversial justice -- from surprising sources.

Justice Clarence Thomas

Justice Clarence Thomas

Later this month, on October 23, Justice Clarence Thomas will celebrate his 25th anniversary as an associate justice of the U.S. Supreme Court. During his quarter-century of service on the Court, he has proven himself to be an eloquent advocate of originalism and a strong critic of stare decisis (one of several points of disagreement between him and the late Justice Antonin Scalia, contrary to the widespread misconception that Thomas was just a Scalia clone).

Even people who disagree with Justice Thomas’s views have acknowledged his distinctive and powerful jurisprudence. As prominent liberal legal commentator Ian Millhiser wrote over at Think Progress, “Clarence Thomas is not a lightweight. He is one of the more intelligent members of the Supreme Court. And he is one of the most dangerous men in America. Progressives dismiss his intellect at their peril.”

Despite his distinguished tenure on SCOTUS, Justice Thomas can’t get no respect from some quarters. For example, despite being only the second African-American to serve on the Court, Justice Thomas “is practically absent from the new National Museum of African American History and Culture” — while Anita Hill, who famously accused Thomas of sexual harassment, “is given prominent billing.”

But Justice Thomas does have his defenders — in the halls of Biglaw, interestingly enough. Large law firms tend to be rather liberal, so it’s somewhat surprising to find staunch supporters of CT among the ranks of Biglaw partners and counsel.

Here’s a complaint we recently received from a source at Sidley Austin in D.C.:

Email from a partner at Sidley D.C. [last Thursday] morning announcing that the firm had seats at its table for the National Women’s Law Center annual dinner, and that she was “proud to share” that Anita Hill (among others) would be part of the program. So far, nothing unusual.

But the response from another partner — co-chair of the D.C. hiring committee — and sent to all D.C. office lawyers (see screenshot) really horrified a lot of the associates…. Hard to imagine how any woman, especially women of color, would want to keep working with this guy.

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So what was the supposedly “horrif[ying]” email? Here’s the message in question, from litigation partner Jonathan F. Cohn:

For anyone who is not “proud” to hear from Anita Hill, I am happy to buy drinks at the St. Regis for anyone that evening (10/18) at 6 pm. My treat.

Snarky? Sure. Politically incorrect? Perhaps. But I wouldn’t call it “horrif[ying],” and I don’t think it should give any woman lawyer pause over working with Cohn. (Disclosure: Jon Cohn and I clerked for the same Ninth Circuit judge and are friendly, although I haven’t seen or spoken to him in a while.)

An important piece of context: Jon Cohn clerked for Justice Thomas. So it shouldn’t surprise or upset anyone to see him coming to the defense of his former boss, who enjoys great loyalty, respect, and affection from his former clerks, many of them women (such as U.S. Senate candidate Wendy Long, who calls Thomas “the greatest living American”). Justice Thomas has consistently maintained his innocence of the charges against him, and it would not be reasonable to expect someone as close to him as a former law clerk to believe the charges simply because HBO made a movie about them.

Which brings us to the second Biglaw attorney speaking up in CT’s defense lately. Mark Paoletta, of counsel in the D.C. office of DLA Piper, has made headlines with his vocal criticism of Confirmation, HBO’s (disappointing) dramatization of Clarence Thomas’s confirmation hearings. Paoletta, who worked on the Thomas nomination while in the White House Counsel’s Office, has set up a website, ConfirmationBiased.com, to identify the inaccuracies and biases that he perceives in the film.

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I doubt we will ever know for certain, so many years later, exactly what transpired between Clarence Thomas and Anita Hill (and query whether even the two of them have perfect memories of what occurred). I’ll leave you with the words of Harvard law professor Jeannie Suk Gersen — a former law clerk to Justice David Souter, and far from a card-carrying member of the Federalist Society — who wrote, “One need not be soft on sexual harassment to realize… that our country put Clarence Thomas through hell on the basis of accusations that don’t approach the sexual allegations that we have rightly allowed to recede into the background of Bill Clinton’s distinguished career. The high-tech lynching didn’t keep Justice Thomas off the Court, but it did plenty of damage that, on closer scrutiny today, doesn’t look fair by our own standards.”

Confirmation Biased [official website]
The Unexpected Importance of Clarence Thomas [Politico]
Coming of Age With Clarence [Wall Street Journal]

Earlier: Clarence Thomas, And All The Other Heroes Unfairly Excluded From The African-American History Museum
Standard Of Review: Confirming That You Don’t Need To Watch ‘Confirmation’


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].