Few figures in conservativism are more revered than Thomas Sowell. A free-market economist, social theorist and philosopher, Sowell’s work has spanned decades and influenced generations.
Sowell wrote a nationally syndicated column, authored dozens of books and dazzled television audiences time and time again with his common sense, anti-intellectual approach to political and cultural issues.
The following story is part of The Western Journal’s exclusive series “The Sowell Digest.” Each issue will break down and summarize one of Sowell’s many influential works.
In 1987, Thomas Sowell appeared before the Senate Judiciary Committee to testify in support of Judge Robert Bork, whom then-President Ronald Reagan had nominated to the U.S. Supreme Court.
Sowell opened with a statement defending Bork’s record and views. Then, he answered questions from the committee chair, Democratic Sen. Joe Biden of Delaware.
Both Sowell’s opening statement and his answers to Biden reflected the intense atmosphere surrounding the nomination hearing. As usual, Sowell made his case with restrained eloquence, but he also knew that important principles were at stake. While endorsing Bork, Sowell gave a powerful defense of both equality before the law and constitutional originalism.
Reagan announced Bork’s nomination on July 1. Liberal Democrats responded, as they always have, by stoking fear and playing what we now call “identity politics.” Democratic Sen. Ted Kennedy of Massachusetts took the lead.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens,” Kennedy said according to the New York Times.
Thus, with the slanderous charge that Bork supported “segregated lunch counters,” among other things, Kennedy set the tone for the most contentious Supreme Court nomination in U.S. history.
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It was in this context that Sowell appeared before Biden’s committee.
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In his opening statement, Sowell rejected the Democrats’ use of categories such as sex and race to evaluate Bork’s record.
“The statistics thrown around recklessly as to how Judge Bork has allegedly voted against women X percent of the time, or for some other class of litigants Y percent of the time, are no more reliable than the definitions used by the special-interest sources from which they come,” Sowell said.
Then, Sowell made it clear that he spoke for the principle of equality before the law.
“Civil rights need to be understood not simply as a special benefit to minorities but as something essential to everyone,” he said.
Later, Biden engaged Sowell on the subject of school desegregation.
The exchange revealed much confusion on Biden’s part — a confusion common among those on the political left who struggle to understand certain aspects of constitutional originalism.
For instance, in the 1950s and 1960s, a leftist and a constitutional originalist would have agreed on the need for school desegregation. However, where a constitutional originalist would have said that segregation violated the Constitution, a leftist would have argued that the government had a special responsibility to look after certain groups and to adjudicate their interests according to historical grievances, which required that judges expand the Constitution’s original meaning to suit modern needs.
Sowell made all of this clear in his exchange with Biden.
“The problem is not whether you believe that school segregation should have ended. I believe that it should have ended long before. Judge Bork believes it should have ended long before. What he and what I have objected to are the principles used in that decision because those principles take on a life of their own, and they come back to haunt you in other areas. Obviously, there’s this old phrase ‘hard cases make bad law’ derived from that fact. You dream up a principle to reach this result, and then the principle has a life of its own,” Sowell said.
Biden seemed confused.
“So the principle of desegregating the schools,” he began before Sowell quickly interrupted and corrected him.
“No. That wasn’t the principle. The principle was the reason that they picked for it,” Sowell said.
“Well, that’s all I’m saying. OK. The reasons they picked for desegregating the schools you and Judge Bork agree were wrong principles and they, should have not, the court shouldn’t have done that,” Biden said in a vain attempt to clarify.
“No. No. The court should have done it,” Sowell replied. “Both of us have said the court should have done it. And in my case and I think in his case the court should have done it a lot sooner,” he added.
“How?” Biden asked.
“They should have ruled that it wasn’t equal protection of the law because nobody in his right mind believes that there was equal protection of the law in the Jim Crow Era of these school systems,” Sowell responded.
“I’m just trying to figure out what you’re saying,” Biden said. Clearly, the chairman of the Senate Judiciary Committee was out of his depth.
Sowell then reached his argument’s crescendo. In short, he said, anyone who supports special treatment under the law supports the principle of segregation.
“See, this is what bothers me. People are talking about how judges should be sensitive to this particular group or that particular group, and if that means anything, if it means he’s applying the law differently, that’s precisely how blacks were held down for generations in the South, by applying the law differently,” Sowell said.
It was a masterful conclusion to an impressive testimony.
Biden, who struggled to follow Sowell’s reasoning, refused to recommend Bork for the full Senate’s approval. On Oct. 23, 1987, the Senate voted 58-42 against confirmation.
