Monday, September 24, 2007

"The Education of Clarence Thomas"

An article by Tony Mauro. Those who doubt Thomas's intelligence, note the bolded remark:
The Education of Clarence Thomas

Ten years after his confirmation fight, the high court's only black justice receives grudging respect and enduring disdain

Tony Mauro
The American Lawyer

In the hands of any other Supreme Court justice, the Law Day luncheon speech before the Savannah Bar Association would have been routine. But Clarence Thomas never gives a routine speech, especially not in Savannah, Ga., where he grew up, close by Pin Point, the ramshackle community where he was born.

In his talk Thomas paid tribute to the elders of the Savannah Bar for their decades of service to the legal profession. Nothing remarkable so far. Then, Thomas pointed to one of the lawyers to be honored: Joe Bergen, 76, a bow-tied gentleman with a shock of Strom Thurmond-like red hair, who beamed as Thomas spoke. Thomas said that Bergen, of the Savannah firm Joseph B. Bergen and Frederic S. Bergen, had become a close friend to his mother, Leola Williams, during the last decade. When Thomas decided in 1997 to take custody of his grandnephew Mark Martin Jr., the grandson of his sister Emma Mae Martin, it had been Joe Bergen that he called upon to handle the paperwork.

"It had to be done very quickly, very quietly, very sensitively," Thomas told the audience, and then he stopped. He gulped back tears. He shook his head to regain his composure. But tears flowed. It was an awkward few minutes before Thomas could continue. As Thomas wept, a lawyer from the back of the dining room called out to him, "You're home." Applause broke out, and one of his cousins in the audience brought Thomas a handkerchief.

It was an extraordinary moment, not only for the emotion displayed by a member of the high court, but for the mainly white Savannah establishment's embrace of its hometown hero. After the speech, Bergen and others formed a protective ring around Thomas and his relatives, who were attending the lunch. Reporters could not approach.

* * *

And as a man, Thomas has become the embodiment of the words that Myers Anderson, the grandfather who raised him, recited often, words that Thomas repeats in almost every public appearance: "Old man 'can't' is dead. I helped bury him."

It was to honor his grandfather, friends say, that Thomas adopted his grandnephew, Mark Martin Jr., taking 6-year-old Mark in at about the same age that Thomas had been when his grandfather took him in. And, as his Savannah speech revealed, the adoption of Mark -- more than any decision Thomas has written -- is the signature event in Thomas' life during the last decade. While most of his fellow justices accumulate grandchildren and ponder retirement, Thomas, 53, has become the equivalent of a father again. And it has transformed him.

Neither Thomas nor his wife nor several Savannah sources contacted for this story would discuss the circumstances behind Thomas' taking custody of Mark. But others say that the situation, while not dire, called for a responsible person to step in quickly. Mark Sr., Thomas' nephew, had been in prison on cocaine trafficking charges. And Mark Jr.'s mother, Susan, was struggling with her own problems, raising four children, including young Mark Jr., on her own. Thomas believed that the boy would face lifelong trouble if he were not removed from his environment soon, and the parents agreed. "He was paying back his own grandfather by taking care of Mark," says one friend.

At the Chatham County courthouse in Savannah, the documents relating to the custody, titled Ex Parte Mark Elliott Martin Jr., a minor, by Clarence Thomas as an interested party, offer no hint of a family emergency that could have triggered Thomas' tears. The papers state that Mark "has lived with his biological mother, and intermittently with his biological father." The father surrendered his rights to Mark, attesting that "my male child should receive the benefits and advantages of a good home to the end that he may be fitted for the requirements of life." At first, in November 1997, the petition sought custody of the child for Thomas alone, but in January 1998 it was amended to include Thomas' wife, Virginia.

Whatever the reasons for the custody decision, Mark's arrival in Thomas' life has invigorated the justice, friends say. Thomas' son Jamal, from a previous marriage, is grown now, so Mark is the only child in the house. One friend says that Mark calls Thomas and Virginia "dad and mom."

Thomas now heads into the Court as early as 5 a.m. -- often stopping off at a Catholic church on Capitol Hill to pray -- so that he can head home to pick Mark up from school at 3 and take him to soccer games or other after-school activities. Frustrated with Fairfax County, Va., public school schedules, which include too many half-days, Thomas moved Mark to a private school and has even said that, if he could, he would send Mark to school on Saturdays. Clearly, Thomas is trying to pass on his grandfather's lessons of hard work in generation-skipping fashion.

The Thomas household's summer vacations are different these days, too. The justice bought a bus in Phoenix a few years ago and drove it home, says a friend: "It's a real Greyhound kind of bus, set up as a house on wheels." It is outfitted with beds and a kitchen, and every summer Thomas, Virginia and Mark hit the road in search of small-town America. Thomas is recognized sometimes, but not so often that it ruins the fun of getting away from Washington.

Another aspect of Thomas' payback to his grandfather is his deep commitment to children, especially black children with poor or troubled backgrounds. It is a commitment he delivers through dozens of speaking engagements and in frequent private meetings. "Have we ever had a justice who has done as much outreach to young people as Thomas?" asks David Garrow, a professor at Emory University School of Law.

One of Thomas' most notable encounters with children is described in the 1998 book "A Hope in the Unseen," by Ron Suskind. The book traces the journey of Cedric Jennings, a black student from inner-city Washington, to academic success and acceptance at Brown University. Suskind had written about Jennings in The Wall Street Journal. Thomas read the piece and invited Jennings to stop by his office. The meeting lasted more than three hours. Jennings took notes afterwards, and Suskind later visited Thomas to check the notes and reconstruct the conversation.

"I sense that you and I are a lot alike," Thomas told Jennings, according to the book. "I have a sense of what you've been through." They swapped stories of the hardships of their childhood. When Jennings told Thomas that he would be attending Brown University, Thomas shook his head and said, "Well, that's fine, but I'm not sure if I would have selected an Ivy League school. You're going to be up there with a lot of smart kids, and, if you're not sure about who you are, you could get eaten alive."

Thomas asked the wide-eyed boy what he plans to major in at Brown. Math, he was told. "Good, good. That's what I look for in hiring my clerks -- the cream of the crop. I look for the maths and the sciences, real classes, none of that Afro-American studies stuff. If they've taken that stuff as an undergraduate, I don't want them."

Comments such as this move some critics to say that Thomas is afflicted by racial self-hatred. And, in fact, Thomas has had only one African-American clerk among the 40 he has employed in his 10 years on the court. But his supporters say that his curricular demands are just another example of Thomas' trying to eliminate what he sees as signs of weakness -- for example, taking African- American studies classes -- that enable whites to view blacks as inferior.

In that vein, Thomas also told the young Jennings, "You can't be going out, partying on weekends or going to Florida on spring break. You just have to keep studying, like your life depends on it. Some of these kids will be ahead of you, for sure, but you just have to outwork them. That's the way you'll beat them. It was that way with me, too. There was no safety net. No choice. To fail means to drop all the way to the bottom. It was that way for me. Same for you."

That mantra of self-reliance, of burying "old man 'can't,' " has such force in Thomas' life, critics say, that it has spilled over into his jurisprudence. They complain that it leaves him blind to the consequences his own decisions have on the poor, the imprisoned, the disabled -- on those who can't put "old man 'can't' " six feet under.

* * *

In the 1999 case of Chicago v. Morales, the Court struck down a Chicago ordinance that authorized police to arrest suspected gang members who were loitering and who refused to obey an order to disperse. The ordinance was attacked for giving police too much discretion to hassle people whose only offense was looking like gang members -- a sort of racial profiling for people who are standing still rather than driving.

Thomas dissented and would have upheld the ordinance -- a stance that was viewed by critics as a sign that he has no appreciation for the plight of fellow African-Americans targeted by police. But Thompson says instead that the dissent shows tremendous empathy -- not for suspected gang members, but for the law-abiding families terrorized by gang violence in urban neighborhoods.

"Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes," wrote Thomas. Compared to that reality, the ordinance amounts to an entirely constitutional "return to basics," he added. "The ordinance does nothing more than confirm the well-established principle that the police have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it."

Says Thompson: "How can he be accused of not caring? He is eloquently on the side of low-income, law-abiding citizens, not on the side of the criminals."

* * *

As for his jurisprudence, however, at least before Bush v. Gore, most academics were beginning to agree that Thomas had developed a consistency, an integrity, and a uniquely Thomas stamp. The borderline-racist allegations that Thomas' opinions are ghostwritten by Scalia or foisted on him by clerks smarter than he is are made less and less often. Thomas uses his clerks heavily, but no more than do most of his colleagues. And he and Scalia are not close friends. Scalia has been heard to lament that Thomas never invites him to his house, and Thomas remarked sarcastically at a recent public appearance, "I rarely see him, so he must have a chip in my brain, and he controls me that way."

Emory's Garrow, a keen court watcher who was not optimistic about Thomas a decade ago, says now, "The big news after 10 years is that Clarence Thomas has emerged as a reputable, independent justice. And he's not any follower of Scalia."

Stephen McAllister, a former Thomas clerk and now the dean of the University of Kansas School of Law, puts it more succinctly: "He has found his voice, and it's not the one he uses at oral argument." Once, people reacted awkwardly when McAllister told them whom he clerked for: "Now, they react much more positively and say, 'That's great.' "

Words of admiration for Thomas now flow more freely from the justices themselves. During a judicial conference in May, Justice Anthony Kennedy described Thomas as the justice the other eight turn to when they are unclear about some factual detail in the cases before them. "Clarence has a photographic memory of the record," Kennedy said glowingly. Thomas is also the Court's most computer-savvy justice -- partly out of necessity, since he often works at home and needs to stay in touch with the Court in encrypted ways that calm the Court staff's fear of hackers.

* * *

Thomas is defiantly reticent in some venues, but in others he has done more public soul-searching than has anyone this side of "The Oprah Winfrey Show." (Indeed, both Winfrey and Barbara Walters have tried to get him on the air.) When Thomas gives speeches -- and he is incapable of giving a dull one -- the door is often open to C-SPAN, which airs them unedited. The talks generate considerable mail to Thomas and give him an uncommon direct line to the public.

In one speech last year in Tampa, Fla., Thomas brought the audience into his most private thoughts, revealing the emotions he had felt at his brother's funeral a few months before. "The permanent things come back to the three F's [faith, family and friends]. And as I stood there at the funeral parlor, having taken a week away from work, work became meaningless. Being on the Supreme Court was meaningless."

In a speech before high school students the day after the Court's decision in Bush v. Gore, Thomas revealed, though not for the first time, his childhood fear of public speaking. Asked why he does not pose questions during oral argument, Thomas said that he grew up speaking Gullah, a low-country southern dialect. When his grandfather sent him to a Catholic boarding school for young men considering the priesthood, Thomas was often the only black student, and other kids made fun of him. That experience turned him into a listener, not a talker, Thomas said. "I was self-conscious, like we all are. It's like if we get pimples at 16, or we grow 6 inches and we're taller than everybody else, or our feet grow or something; we get self-conscious." Thomas connected with his young audience as few other public officials could.

But always, he turns these stories into lessons in perseverance, offering himself as living proof that hardships can be overcome without the help of government. "All of us are easily tempted to think of ourselves as victims and thereby permit adversity to be the defining feature of our lives," Thomas said in a 1996 speech at Regent University, the Virginia school founded by religious broadcaster Pat Robertson. "In so doing, we deny the very attributes that are at the core of human dignity. ... Victimhood destroys the human spirit."

He strikes a defiant tone as well, telling a conservative American Enterprise Institute audience in February not to falter in the face of criticism. "By yielding to a false form of 'civility,' we sometimes allow our critics to intimidate us. As I have said, active citizens are often subjected to truly vile attacks; they are branded as mean-spirited, racist, Uncle Tom, homophobic, sexist, etc. To this we often respond (if not succumb), so as not to be constantly fighting, by trying to be tolerant and nonjudgmental -- i.e., we censor ourselves. This is not civility. It is cowardice, or well-intentioned self-deception at best."

Not the bland fare of most after-dinner speeches.

More often than not in his talks, Thomas also manages to make mention of his confirmation battle, leaving him open to a public perception that he is still bitter, still weighed down by the awfulness of the ordeal he endured. But his friends insist that he alludes to the episode as just another cross he has had to bear, an adversity to overcome, an enemy to defeat through persistence. "What they did to him 10 years ago was a travesty," says Chapman University School of Law Professor John Eastman, also a former Thomas clerk. "If he mentions it in his speeches, there's a good reason, which is to demonstrate that self-sufficiency can overcome any adversity. It's a wonderful American tradition."

Some also see in his speeches a self-conscious effort to explain to his family -- and perhaps to himself -- why he left Savannah. When he was sworn in at age 43, he told friends that he planned to double his age on the Supreme Court, in hopes of outliving his detractors. Ten years into that commitment, as he indicated in his Savannah speech, he still has second thoughts about leaving his roots behind. His rationale seems to be that his appointment to the Supreme Court is a calling, an assignment from God to inspire a broader audience, which makes leaving Savannah easier to justify.

But it has taken Thomas several years to reach the point where he feels strong enough to be an inspiration to others. Kansas dean McAllister remembers the days when Thomas seemed to have hit bottom. McAllister was one of Thomas' first clerks at the high court, meeting him when he arrived bruised and beaten from his confirmation ordeal. "He shut down at first. He was an exhausted, beat-up person. The only outside media he would read was the Dallas Cowboys fan newspaper."

But now McAllister sees "a powerful person, with strength that comes from the inside, a strong sense of who he is." And his years of fullest power are probably still ahead of him. Thomas right now is the junior justice of the conservative wing, which means that he is assigned to write many of the Court's least noted decisions, like Hiles. Thomas says he enjoys tackling the cases others regard as dogs.

Georgetown University Law Center Professor Mark Tushnet, a longtime Thomas critic, thinks Thomas gets the dregs for more substantive reasons than his junior status. "The other justices may have misgivings about his ability to write opinions that will hold onto five votes."

His past term may have proven Tushnet wrong. Thomas wrote the majority in several major cases that Rehnquist could have assigned to others -- including, most notably, Good News Club v. Milford Central School, a religious free speech case that may bolster the chances of school vouchers and of President Bush's faith-based initiative. With one or two Bush appointees likely in the years ahead, Thomas will rise in seniority and gain even more influence within the Court.

As Thomas' self-confidence grows, he and Scalia have parted company in significant cases, though they vote together almost all the time. And they have different approaches to original intent -- the touchstone of conservative judging. Although both justices will exhaustively probe the intentions and practices of the founding fathers and their countrymen in deciding how to rule today, Scalia will sometimes factor in contrary precedents and legislation of more recent vintage.

"Thomas' is a more radical version of originalism than Scalia's, who is sometimes willing to let bygones be bygones," says Lazarus, the former Blackmun clerk. "The critique of it is that it is a neutral cloak for result-oriented decisions."

Says Drake University Law School Professor Thomas Baker: "Thomas knows his own mind, and he follows his own lights, the lights of original meaning, to which he is the most faithful of the nine justices. He has come into his own as a justice over the last decade. Thomas has grown increasingly independent from Scalia, and when they diverge, it is Thomas who often goes further out on a doctrinal limb."

In February's decision in Whitman v. American Trucking Associations, Inc., Scalia upheld the Environmental Protection Agency's air quality standards, but said that the agency had exceeded its congressional mandate in implementing them. Thomas wrote separately to say that he would have examined whether the EPA policy amounted to an unconstitutional delegation of congressional power -- a more novel, and far riskier, path to the same destination.

In the 1997 case Printz v. United States, Scalia's majority opinion struck down parts of the Brady Bill on handguns on 10th Amendment grounds. But Thomas indicated that he was ready to examine the law in light of the Second Amendment -- a constitutional third rail.

"When he writes separately, Thomas identifies the place where, deep in his heart, Scalia wants to go, but Scalia is more politic about it," says Tushnet.

Thomas has also shown himself to be something of a First Amendment purist -- certainly more pure than is Scalia. In the 1995 case McIntyre v. Ohio, the majority invoked the honorable tradition of anonymous pamphleteers in striking down an Ohio law that required the authors of political leaflets to be identified. That tradition was not enough for Thomas, who wrote a separate concurrence to explore, at length, "whether the phrase 'freedom of speech, or of the press,' as originally understood, protected anonymous political leafletting." He ended up in the same place as had the majority, but through his own originalist reasoning.

A frustrated Scalia dissented, taking the majority -- including Thomas -- to task for its historical pursuit and for ignoring "the considered judgment of the American people's elected representatives from coast to coast" who have enacted laws such as Ohio's as a campaign reform. Even Scalia was willing to acknowledge 20th-century sensibilities, but the 18th century, it seems, was where Thomas wanted to be.

It is Thomas' unconventional, unblinking brand of originalism that has quieted the doubts of academics who once might have thought that Thomas' colleagues -- or his clerks -- were manipulating him. His decisions have even earned Thomas the first book-length examination of his jurisprudence, something several of his colleagues have not yet warranted.

The book is "First Principles: The Jurisprudence of Clarence Thomas." In a recent C-SPAN interview, author Scott Gerber, professor at Roger Williams University School of Law, said of Thomas, "He is a bold and adventurous justice -- very principled, actually."

Adding to Thomas' unique jurisprudence is the remarkable degree to which his own approach to life has found its way into his written opinions. He once told conservative columnist Armstrong Williams that it would violate his deeply held religious beliefs in equality to put pen to paper in support of affirmative action. Thomas may have been thinking of the critics who said he was appointed to the Court only because of his race when he wrote, in the 1995 case Adarand Constructors v. Pena, "There can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence."

In the term just ended, a slim 5-to-4 majority of the Court finally approved of a congressional district that had been created using racial demographics to strengthen minority voting power. Thomas wrote the dissent in Hunt v. Cromartie, refusing to budge from his insistence that a nobly motivated consideration of race is just as evil as the Jim Crow kind: "Racial gerrymandering offends the Constitution whether the motivation is malicious or benign. It is not a defense that the legislature merely may have drawn the district based on the stereotype that blacks are reliable Democratic voters."

In Missouri v. Jenkins, a 1995 case, Thomas' anger toward the benign consideration of race boiled over in an attack on school desegregation orders that continue without end and without scrutiny. "It never ceases to amaze me that the courts are willing to assume that anything that is predominantly black must be inferior," Thomas wrote.

As bold as Thomas has become in his opinion-writing, Thomas insists that he adheres to the view that the elected branches, not the judiciary, should have the final word. "People think we can make up rights by whim or fancy," Thomas said in his Louisville speech last year. "Judges have a limited role in society, limited authority." As unpopular as that makes judges, though, Thomas said, judicial independence is guaranteed by life tenure. Then, the Thomas bravado kicked in -- revealing the defiant, self-confident justice Thomas has become. "You have no way to get me off the bench," Thomas told the students. "Except," he added, "if you want to wait for me to disappear."

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