Judge Clarence Thomas meets Prof. Kingsfield

Expanded from the 9-15-1991 Daily Sparks (Nev.) Tribune as re-printed in the Los Angeles and
San Francisco Daily Legal Journals, week of 11-25-91

Update 10-7-2007: Clarence Thomas still stalks Anita Hill
Update 12-20-2009: Barack Obama — A bit too much of Clarence, too?
Update 5-16-2010: Former Nevada Chief Justice Al Gunderson dies in Las Vegas at age 80
UPDATE: Predictions from 1991 sadly come true. Clarence Thomas, Little Anthony & the Imperials gut the 1965 Voting Rights Act
Barbwire by Barbano / Expanded from the 6-27-2013 Daily Sparks Tribune

In 1983, the Southwestern University Law Review published an article by former Nevada Supreme Court Chief Justice Al Gunderson entitled Jurispridential Character: the Typology of James David Barber in a Judicial Context.

In 1972, Duke University political science professor Barber had written a bestseller entitled The Presidential Character: Predicting Performance in the White House. (Prentice-Hall)

While never purporting to be all-inclusive, Barber delineated four personality types and proceeded to describe which U.S. presidents fit where.

Gunderson, now a professor at Southwestern, took the four types and applied them to the judiciary.

"Barber's typology of personality may help to predict not only individual performance as a judge, but also a candidate's likely impact on any court to which he or she is appointed," Gunderson wrote.

Maybe Gunderson's monograph can help us foretell the future of Justice Clarence Thomas.

Here are Barber's four personality pigeonholes, along with some probable pigeons (some are theirs, some mine): active-positive (Franklin Roosevelt, Earl Warren, William O. Douglas); active-negative (Richard Nixon, Felix Frankfurter, Harry Blackmun); passive-positive (William Howard Taft, Ronald Reagan, Warren Harding); passive-negative (Warren Burger, Jerry Brown).

Gunderson, quoting Barber, summarized the four types this way: "Passive-positives are after love. Passive-negatives emphasize their civic virtue. Active-positives most want to achieve results...social productivity. Active-negatives aim to get and keep power. The relation of activity to enjoyment tends to outline related clusters of characteristics which set apart the compliant, withdrawn, adapted and compulsive types."

Gunderson noted that "the core of Barber's theory is that character — the basic stance a person takes toward official experience — comes in four varieties...defined according to (a) how active he or she is and (b) whether or not he or she appears to enjoy political life. The activity baseline refers to what one does, the affect (affection) baseline to how one feels about doing it," Gunderson wrote, adding that "in Barber's system, both are crude clues to character."

Barber said they are "leads into four basic character patterns long familiar in psychological research."

Does Clarence Thomas fit into Gunderson's analysis? I think so, as a compliant passive-positive.

Gunderson wrote that "a passive-positive is a receptive, compliant, other-directed character, whose life is a search for affection as a reward for being agreeable and cooperative rather than being personally assertive. There is a contradiction between low self-esteem (on grounds of being unlovable, unattractive) and a superficial optimism.

"A hopeful attitude helps dispel doubt and elicits encouragement from others. Still, although passive-positive types help soften the harsh edges of politics, 'their dependence and the fragility of their hopes and enjoyments make disappointment in politics likely,'" Gunderson asserted, quoting Barber.

Barber said "the passive-positive type lives in a marketplace of affection, trading bright smiles in return. What threatens the fragile structure of that adaptation is conflict and particularly conflict at close quarters." (Remember smiling Ronald Reagan's distaste for confrontations between staff and how he preferred just walking away?)

"In drafting opinions," Gunderson said, "a passive-positive therefore may be expected to avoid language calculated to exploit or sanction other court members. (After all, this character type seeks affection, not personal aggrandizement or affirmation of personal virtue. Nor is any policy goal apt to seem worth even transitory loss of harmony.) Seeking not to offend either colleagues or members of the bar, a passive-positive is likely to be a cautious draftsman, using dicta sparingly, and deciding only what is necessary to dispose of the immediate case. Sensitive to everyone's positions and views, it would seem consistent for such a person to be attuned to fairness and equal justice as values," Gunderson wrote.

In Gunderson's opinion, "at draft conference, a passive-positive should typically be friendly and cooperative, accept criticism of his or her own opinions in good grace, and readily acquiesce in modifications, seeking to formulate a rationale palatable to all. When drafts prepared by others are discussed, he or she will be moderate and tactful in criticism — perhaps to the point of self-effacement. The hopeful friend of all court members, such a person is not likely to foster coalitions that engage in 'vote-swapping' or 'log rolling' practices."

Gunderson added that "this type of person may function as the court's 'social leader.' Either as a chief justice or otherwise, he or she will seem considerate and kind when dealing with attorneys or court personnel. Procedural concessions will be granted to lawyers readily, if not routinely. Indeed, blessed with a supportive court environment, in which no occasion arises to take strong stands on principle, a passive-positive might well seem the very embodiment of 'judicial temperament' as popularly conceived. Still, such compliancy carries costs," Gunderson warned.

"Returning to the matter of draft opinions, it should be expected that a passive-positive may capitulate on important issues of principle or acquiesce in the inclusion of unnecessary and dangerous dicta — if necessary to avoid rancor at close quarters.

Read more about it

Nevada Gov. Kenny Guinn put under the James David Barber executive character microscope —

Gov. Guinn:
Nowhere Man as Likeable Ike and Silent Cal


Confessions of Nevada's Undercover Reagan-Bush P.R. Man

Dec. 20, 2009:

Barack Obama: Déjà vu all over again and again and again?


"Indeed, this sort of individual may tolerate all manner of deviations from legal and consensual norms by other justices, rather than engage in any sort of confrontation. Furthermore, in administrative matters, the passive-positive will be a responder, not an initiator or a pusher. Derelict or delinquent attorneys and court personnel will go undisciplined. The more dedicated will be left to drift," Gunderson wrote.

Distaste for confrontation and letting screwups go unpunished is classic Ronald Reagan. He and fellow passive-positive Warren Harding arguably ran the two most corrupt presidencies of this century.

"To get along, go along" seems to typify the career of Clarence Thomas. Acting like quite the passive-positive, he has only been personally assertive in selling out his people and the system they changed which gave him opportunity to raise his status. He has squandered his heritage while promoting himself to the Reaganaut right.

Gunderson, quoting Barber, wrote that "what passive-positives fear is the double-binding situation in which mass love can be sustained 'only by firm aggressive action against their close friends.'"

Would such a person publicly trash his beloved sister who lives on welfare?

"The type's attunement to the present, the immediate — the emotional weather of this room, this day — means that the pressure exerted by friends usually wins out," Barber wrote.

Does Clarence Thomas have a bad case of "any way the wind blows?"

Gunderson and Barber seem to issue many warnings but also give us hope that basic fairness still resides in him and that he may one day honorably fill the gigantic shoes of Thurgood Marshall.

ABOUT THE COLUMN TITLE: Since so much time has passed, it's worth noting that the role of hardassed Prof. Kingsfield won legendary actor John Houseman a best supporting actor Academy Award for the 1973 film The Paper Chase, a movie about law school co-starring Timothy Bottoms and Lindsay Wagner.

Be well. Raise hell.

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Copyright © 1991, 2002, 2004, 2007, 2009, 2010, 2013 Andrew Barbano

Quotations from his monograph used with Justice Gunderson's permission.
Copyright © 1983 Elmer Millard Gunderson

Andrew Barbano is a 33-year Nevadan, a member Communications Workers of America Local 9413 and editor of NevadaLabor.com and JoeNeal.org/ He hosts Deciding Factors on several Nevada television stations. Barbwire by Barbano has originated in the Daily Sparks (Nev.) Tribune since 1988.

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