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Jewish World Review Nov. 12, 2002 / 7 Kislev, 5763

Nat Hentoff

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Barring Clarence Thomas | In researching Clarence Thomas' record when he was nominated to the Supreme Court, I was struck by his passionate reliance on the Declaration of Independence as a foundation for his approach to the law. In that devotion to the Declaration, he is in the tradition of Abraham Lincoln, Martin Luther King and Frederick Douglas.

A fascinating new book on the history and continuing vitality of that document, ""The Declaration of Independence: Origins and Impact", shows the essence of Thomas' attachment to the Declaration in notes he wrote in 1987: "Here we find both moral backbone and the strongest defense of individual rights against collectivist schemes, whether by race or over the economy."

The book, which contains essays by 12 scholars on the pervasive effects of this basic American credo, was conceived and edited by Scott Gerber, a law professor at Ohio Northern University. His previous book on Thomas, ""First Principles: The Jurisprudence of Clarence Thomas" , established Gerber's reputation as a constitutional historian. Gerber is neither a fan nor a detractor of Thomas; he is a judicious analyst of his work on the court.

Clearly the most controversial member of the Supreme Court, followed closely by Antonin Scalia, Clarence Thomas is more complex than his stereotypers recognize. For example, University of California in Los Angeles constitutional law professor Eugene Volokh, in his chapter, "How the Justices Voted in Free Speech Cases 1994-2002," points out that Thomas -- second only to Justice Anthony Kennedy -- has the most sterling First Amendment record on the court.

On the other hand, though warm and generous of spirit off the bench, Thomas, because he is a textualist -- holding as sacred the original language of the Constitution -- can be unmoved and ice-cold on capital punishment cases and the rights of other prisoners, as though we were still in the 18th century.

Thomas has again become the focus of controversy over this new book. Gerber wanted to dedicate the book to Thomas because he "has said more about the Declaration of Independence than any other public figure since Martin Luther King Jr." But Congressional Quarterly Press refused to permit the dedication. Gerber says he will not write for that publisher again.

Niko Pfund published Gerber's book on Thomas for New York University Press and is now academic publisher of Oxford University Press. Pfund says, "I'm not aware of a situation in which a press has dictated to whom an author can or cannot dedicate a book." I have written more than 20 books, published by various, well-known publishers, and none of them has ever questioned my right to decide whom I wanted to dedicate the books to.

However, John Jenkins, general manager of the Congressional Quarterly Press, maintains that the firm has never permitted a book "to be dedicated to a sitting member of government" because that would mar Congressional Quarterly's reputation as a "nonpartisan, unbiased source of information about what happens in Congress and government." Having recently spent several hundred dollars buying the firm's reference books on the Supreme Court, I can attest to the useful catalog of Congressional Quarterly Press. But why has Congressional Quarterly allowed forewords of its books to be written by government members Justices William Rehnquist and Ruth Bader Ginsburg?

Jenkins says that "forewords (unlike dedications) merely commend to the reader the content that follows." This strikes me as a classic distinction without a difference.

A contributor to the embattled book, Dr. Garrett Ward Sheldon, professor of political and social science at the University of Virginia's College at Wise, wrote Jenkins that, "My guess is that your decision was motivated by prudential marketing concerns (namely, that the majority of professors who might adopt the book are politically Liberal, and would not adopt it if it were dedicated to a Conservative Supreme Court Justice.)"

In a letter to Gerber, Kathryn Suarez, Congressional Quarterly's director of Reference Publishing, said, "A dedication to a public figure undermines our commitment of objectivity and may be interpreted as presenting an unnecessary partisan or political stand, thus jeopardizing sales of the volume and our reputation." What do sales have to with the sanctity of nonpartisanship?

The basic fact is that there is no present member of government more attached in his writings to the Declaration of Independence than Clarence Thomas. There is a vintage vernacular word that describes Congressional Quarterly Press' barring of Thomas in this matter: pigheaded.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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