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Black judge reminds Thomas of civil rights debt in unusual open letter

Published Oct. 10, 2005

In an unusual open letter, a respected veteran black federal judge has implored Supreme Court Justice Clarence Thomas, the only black person on the court, not to join the court majority in its "retreat from protecting the rights of the poor, women, the disadvantaged, minorities and the powerless."

A. Leon Higginbotham Jr., a federal appeals court judge in Philadelphia, pointedly tells Thomas in the letter that he owes a considerable debt to the civil rights movement, not simply to family members who helped him get where he is. The letter is published in the University of Pennsylvania Law Review.

"When I think of your appointment to the Supreme Court, I see not only the result of your own ambition, but also the culmination of years of heartbreaking work by thousands who preceded you," wrote Higginbotham, who was appointed as a U.S. district judge in 1964 by President Johnson and elevated to the federal appeals court by President Carter in 1977.

"I know that you may not want to be burdened by the memory of their sacrifices. But I also know that you have no right to forget that history," wrote Higginbotham, 63, who wrote In the Matter of Color, a 1978 book on race and the American legal process. "Your life is very different from what it would have been had these men and women never lived."

Higginbotham notes that Thomas could have been imprisoned for marrying his current wife in Virginia as recently as 25 years ago because of laws prohibiting interracial marriage and that but for the work of civil rights lawyers he could not live where he does.

Moreover, the letter directly states that Thomas was not "the most competent" candidate for the Supreme Court seat vacated last year by Thurgood Marshall, the court's first black justice.

But he also writes that many prior justices have grown on the job, and he presents a clear challenge to Thomas: "You can become an exemplar of fairness and the rational interpretation of the Constitution, or you can become an archetype of inequality and the retrogressive evaluation of human rights."

Harvard University constitutional law expert Lawrence Tribe said it was unprecedented for a federal judge to publicly write such a letter to a sitting Supreme Court justice. Other legal scholars agreed.