Clarence Thomas High-Fived Me

I washed my hands of him. So should the country.

The characters in this (true) story include me, Justice Clarence Thomas, the President of the University of Notre Dame, Marvin Hamlisch, “Mikey,” a possible NSA spook, and Reggie Bush.  We did not all walk into a bar together, so don’t wait for the punch line.

In 2005 I was working at the University of Notre Dame.  My title, reduced to an acronym in the interest of levity, was JMLLDPAUND&FEDMPDCPAUND.  It wouldn’t fit on my badge or business card.  It was an endowed position (don’t ask me how well endowed - it’s a stale joke.)

I was the Judd and Mary Lou Leighton Director for the Performing Arts and Founding Executive Director of the Marie P. DeBartolo Center for the Performing Arts at the University of Notre Dame. No shit.  That was my official title.

In that capacity I was, in addition to a number of other things, responsible for bringing celebrated artists to appear in the new performing arts center, the final design, construction, and launch of which I had overseen.  In just the first few years, I presented - among others - Wynton Marsalis and his Jazz at Lincoln Center Orchestra, the New York Philharmonic, Ladysmith Black Mambazo, Dawn Upshaw, Itzhak Perlman, Anoushka Shankar, the Soweto Gospel Choir, Mark O’Conner, Marcus Roberts, Dave Brubeck, The Chieftains (of course), Emerson String Quartet, Vince Gill, and - more to the point of this story - Marvin Hamlisch.

A few days after my birthday in October 2005 (the exact date I share with John Lennon, by the way) I welcomed Marvin Hamlisch to campus to perform a medley of his hits.  Not all of them, which would have taken 5-6  hours, inasmuch as he had by then won four Emmys, four Grammys, three Oscars, a Tony (only one, poor dear), and a Pulitzer Prize.  Only Richard Rogers shared the distinction of scoring an EGOT and a Pulitzer.  But Marvin was admitted to Julliard at the age of six, so he had a hell of a head start on everyone else.

Marvin was one of the loveliest men I ever met.  Smart, funny, charming as hell, self-effacing, creative.  A true American genius.  His Friday night concert was received rapturously and he played at least 5 or 6 encores.  I had invited him to stay an extra day and go to the Saturday game as my guest.  Notre Dame vs. USC.  He accepted somewhat tentatively.

“I’ve never been to a football game,” he said.

“Really?!?” Having gone to high school and college in Texas, myself, (Hook ‘em, Horns!) this verged on the unimaginable to me.  How could this be? A grown man, however sophisticated, who had never been to a football game?

He explained. “I’m a Jewish boy from Manhattan and Julliard didn’t have a team.”

Saturday was perfect game day weather. Cool, breezy, clear, and sunny. The Notre Dame campus had been planted for fall color a hundred years ago, and with its collegiate gothic architecture, would be a perfect cinematic set for a college musical.  Marvin and I set off on a walking tour of campus to enjoy the pre-game festivities.  He showed up in a white shirt and tie.  “No, Marvin,” I said.  “You need gear.”

Our first stop was the ND Bookstore, like so many of its kind, more t-shirts than books.  Marvin picked one he liked and just pulled it over his shirt and tie.  Whatever.  It was a very geeky look, but he sported it without a trace of self-consciousness.

Notre Dame has no Greek student life tradition.  Residence halls are the basis for student tribal identity, and on game day each residence hall jockeys to outdo the others in sheer decibel production, and sells a variety of game day food at stands and tables - hotdogs, burgers, sodas, etc.  We grazed at several and I was delighted at how many kids recognized Marvin and were excited to meet him.  For his part, Marvin was energized and gracious to all. Roving parents were surprised and delighted to see Marvin Hamlisch mingling among the students.  He was having a ball.

When time came we marched across campus with the Notre Dame Band, into the stadium, through the tunnel and onto the field. (I had some pull.) 80,000 fans were cheering.  Now, whenever I had a VIP in tow I was allowed to sit in the press box with them, alongside a phalanx of major donors and illustrious alumni.  I tried to score VIPs as often as possible, since by late October the stadium itself could be cold, wet, and deafening. But Marvin was special, sort of a VIP+, and I had scored an invitation to the President’s private box this time.

Father John Jenkins was, by less than a month, the newly inaugurated President of Notre Dame.  He almost seemed shy about having the privileges that attend the office, which, having taken a vow of poverty as a priest of the Order of the Holy Cross, were pretty modest by major university standards.  But a private box in which to entertain the high and mighty was one of them.  Marvin and I entered onto this holy ground with some trepidation, a Jew and a (secret, for obvious reasons) Atheist.

The box itself holds perhaps 25 seats and has a superb view of the field through tall floor-to-ceiling windows.  The seats are steeply raked, providing clear sightlines. Oddly, there were only a handful of guests that day.  Perhaps Father John wasn’t in the swing of being a glad-handing, fundraising, university president quite yet. He was sitting in the front row.  I sat about five rows back, just behind and one seat to the left of a bulky, Black gentleman dressed casually.  Initially, Marvin stood in the back.  A few university bureaucrats flitted in and out, and quiet servers tended to the snacks, far too many of them for the people actually on hand.  Father John chatted with the Black man, whose face I could not see. Anyway, my eyes were on the field. There were a few other guys scattered in the first few rows who I later learned were law school profs.

Somewhere during the course of the first quarter I realized that the Black dude in front of me was Justice Clarence Thomas.  He was more jocular than I would have expected, chatting and laughing with the lawyers in front of him. The School of Law had invited him to give a lecture or receive an award or some damn thing, on the same weekend I’d invited Marvin to play and sing. The arts crowd definitely got the better part of that deal.

I will pause in my story to tell you that everything that Justice Thomas stands for is anathema to me.  He never should have been confirmed in the first place.  Anita Hill was unjustly humiliated in the glare of a nationally televised hearing, while Thomas lied his way past her and onto the court, an appalling affront to the legacy of the towering figure whose seat he took, Thurgood Marshall.  Joe Biden owes us all BIG TIME for that one. Thomas’s basic interpretation of the Constitution is bullshit.  His opinions are generally both well-written and entirely specious.  His dissenting opinion in the case of Obergefell v. Hodges, which asserted the right to same-sex marriage, is a classic of unadulterated hypocrisy.  Thomas argued that the only liberty that falls under Due Process Clause protection is freedom from "physical restraint.”  But his marriage to Ginni Thomas might well have been impermissible if not for the decision in Loving v. Virginia, that freed Whites and Blacks to marry (but evidently only if they were of the opposite sex.)  He is a bitter, resentful mediocrity.  He sat in judgement for ten years without asking a single question from the bench.  He has been a major player in the history of American jurisprudence in only one respect - politicizing what should be the most apolitical branch of government, and has lately brought it into disrepute.  More on that shortly.

About all it took to be celebrated as a legal scholar at Notre Dame was a relentless opposition to abortion. This Opus Dei hellhole gave us Justice Amy Coney Barrett, forced down the throats of American jurisprudence in the waning days of the Trump administration, his parting boost to the establishment of a permanent Christofascist legal regime. She was sworn in almost exactly 15 years after the day of the Big Game, and Roe v Wade was overturned less than 18 months later, ending a right enshrined in “the law of the land” for almost 50 years.

But on this day Clarence Thomas was a Notre Dame football fan. Go Irish!

Notre Dame has more arch rivals in football than most schools, and USC is one of the fiercest among them.  The University of Spoiled Children, as it is known in South Bend, came to campus that day as the defending national champ and the  undisputed number one team in the country, sporting a 27-game winning streak.  Notre Dame was on a three game slide and eager for revenge against USC, who’d beaten the Irish by 31 points in each of their three previous games.  The Notre Dame pep rally was so huge it had to be held in the stadium and was televised nationally by ESPN.  Rudy Ruettiger was the MC. Joe Montana riled up the crowd. This was a BFD, hyped in advance as the “game of the century.” (Personal note:  The Game of the Century was actually to come a few months later in the Rose Bowl when my alma mater, Texas, whipped the Trojans in what has since been described as the greatest college football game ever played.)

It was an exciting, back-and-forth game. Perfect for Marvin’s first football experience and he was into it.  With the game tied at 14-all, Tom Zbikowski (known on campus as “Zibby) returned a Trojan punt 60 yards for a touchdown and the first Irish lead of the game.  The stadium erupted.  The President’s box erupted, and in the elation of the moment, Supreme Court Justice Clarence Thomas turned around and high-fived me. Whack!  By this point in my narrative you can imagine my mixed feelings at that moment.

The Irish took a 21-14 lead into the locker room at halftime.  I went to the men’s room to see a man about a dog and washed my hands with the kind of vigor I didn’t repeat until the depth of the Covid epidemic.

As a mark of the intensity of their rivalry, USC brings their entire marching band to every game they play at Notre Dame stadium.  Now, if you’ve ever watched or attended a USC football game, you will know that the Trojan Marching Band, The Spirit of Troy, with their helmets and too-cool-for-school shades, plays a little eight-bar riff after pretty much every goddamn play, just to annoy their opponents. It certainly annoyed me.  Early in the 3rd quarter, talking to the back of his head, I said “Justice Thomas, can you please issue a retraining order against that damn band?”  He actually roared with laughter.

An aside: The director of the Trojan marching band, Art Bartner, was actually a friend of mine. A few years earlier we had been among a small group of arts leaders invited to attend a conference of China’s cultural ministers in Nanjing to speak about the business of arts and culture in America.  Later we spent several days in Beijing together.  When I told Art that I’d tried to get a Supreme Court Justice to shut him up  he was greatly amused.

Later in the third quarter, Reggie Bush took off on a 45 yard romp that tied the game at 21-21 going into the fourth quarter.  Bush scored again with five minutes left in the game to lift the Trojans ahead again, but with only 2:00 on the game clock, Irish QB Brady Quinn (nice kid, by the way) ran it in from the five to give Notre Dame a 31-28 lead.  Marvin left at this point to catch his flight back to New York, having enjoyed his first (and last) football game enormously.  He had become a Notre Dame fan and flew home in the flush of an exciting victory.

With only 1:30 left, USC QB Matt Leinart slipped out of a fourth-and-nine hole from his own 26-yard line with a pass to Dwayne Jarrett, who raced to the Irish 13.  Reggie Bush punched it to the 2-yard line, but Leinart fumbled out of bounds with 7 seconds left.  A USC assistant called for a timeout, although the Trojans had none remaining - a 15-yard penalty.  The penalty was not called. The clock ran out.  The scoreboard read ND 31-USC 28.  Students rushed the field in a paroxysm of Irish joy.  Everyone in the President’s box was cheering and high-fiving. Clarence whacked me again.

Then the officials put 7 seconds back on the clock, cleared the field, and placed the ball at the one yard line.

There was no joy in Mudville.

With seven seconds left on the clock, Matt Leinart went for the QB sneak and was initially stone-walled, but Reggie Bush pushed him forcibly across the goal line.  It was a patently illegal move, but the Pac-10 officiating crew did not call it. It became infamous as the “Bush Push.” The game ended.  USC 34- ND 31. The President’s box deflated like a whoopee cushion on the chair of a sumo wrestler. We all left the stadium and went our own way without another word, dejected and pissed off.

Reggie went on to win the 2005 Heisman Trophy.

The Aftermath

USC went on to lose the Rose Bowl in dramatic fashion to my Texas team, when Longhorn QB Vince Young took a fourth down shotgun snap at the Trojan 9-yard line and ran it in for his third TD of the game with 19 seconds left on the clock. This time the refs did not interfere. I felt doubly vindicated.  I still wear my personalized Vince Young #10 burnt orange jersey to watch Longhorn games.

Reggie had his Heisman stripped for taking money from a booster.  The Trojans had their entire 2005 season vacated when Reggie was retroactively ruled to be ineligible.  NCAA records now show the Trojan 2005 season as 0-0. No wins, no losses. USC’s own website of historical football results jumps from 2004 to 2006.   

A few weeks later, a friend of mine, a Notre Dame grad and beefy, cigar-chomping retired Marine who I will call “Mikey,” and who I’m pretty sure was then an NSA spook, called me in my office in the performing arts center and asked if he could drop by.  “Sure,” I said.  “Where are you now?”

“Go outside,” he said.  I did.  There was a helicopter hovering over DeBartolo Quad.  He indicated that he was going to land and I had to frantically wave him off.  He could have killed a student.  But he was that reckless … and dangerously fun to hang out with.  He found a spot at the local radio station reserved for their traffic copter and set down.  We went to lunch.

Mikey told me that he’d been at a cocktail party in D.C. recently and overheard Justice Alito telling a story that Justice Thomas had told him about attending a Notre Dame football game where someone asked him for a restraining order to muzzle the USC marching band.  There was apparently much laughter.  “Mikey,” I said, “That was me.”  It was the first time I ever went viral.

The opposing quarterbacks on that day in South Bend, Matt Leinart for USC and Brady Quinn for Notre Dame, later fetched up as color commentaters on the Fox Sports Network.

Father John is now in his fourth 5-year term as Notre Dame’s president. He presided over his own NCAA kerfuffle when the Fighting Irish were stripped of all their victories in the 2012 and 2013 seasons on account of academic misconduct.

Seven years later Marvin collapsed on a street in Los Angeles and died later that same day.  I was heartbroken when I heard.  Marvin was a mensch. We will not see his like again.

Now it has become apparent that Clarence Thomas, like Reggie Bush, took money and gifts from a booster.  He has besmirched the Court just as badly as Reggie besmirched Trojan football. Thomas hasn’t got a Heisman to strip, but he ought to be impeached.  It’s just a shame that his entire record can’t be vacated like USC’s was, and the decisions in which he participated re-evaluated accordingly. He is a grifter. Multiple new allegations of impropriety have surfaced just while I was writing this piece. I feel like I better hurry before he’s busted.

His wife unapoligetically participated in an effort to overthrow a free and fair election.  It is a strange and terrible irony that Ginni Thomas was trying to block the very man who had allowed her husband to slip past the guards and onto the Court.  The wheels of justice grind slow, too slow of late, but the Thomases may yet be held to account.  I sure hope so. The Rule of Law in America needs a refresher.

I washed my hands of Clarence Thomas.  So should the country.