Friday, October 24, 2008

Justice Thomas Speech

From a Georgia newspaper:
Justice Thomas Extols the Need to Listen

The U.S. Supreme Court justice least likely to speak up during oral arguments told lawyers gathered in Atlanta on Thursday that judges should spend more time listening and less time talking.

"I believe quite strongly we, as judges, need to take the approach we're here to solve difficult problems, not debate with lawyers," said Justice Clarence Thomas.

Speaking on the 17th anniversary of the day he took his seat on the Supreme Court, the Georgia native delivered a wide-ranging 30-minute talk and participated in a panel discussion on professionalism at the 11th Circuit Appellate Practice Institute.

He spoke before a crowd of about 200 at the State Bar of Georgia headquarters in Atlanta.

Thomas said that he made 30 to 40 oral arguments before appellate courts while practicing law in Missouri, and he was always impressed by how intently the judges listened to arguments.

"They seemed to be soaking up what I was saying," he said.

That behavior was in stark contrast to that exhibited by members of Congress during the 60-plus Capitol Hill hearings Thomas said he attended while working at the U.S. Department of Education and the federal Equal Employment Opportunity Commission in the 1980s.

"Those hearings were different than a court hearing -- you were badgered, you were cajoled," Thomas said.

Instead of being probative, "questions were designed for sound bites, to elicit a laugh," he added.

Thomas also emphasized the importance of well-written briefs when dealing with any higher court. It's the brief, not the oral argument, where the heavy lifting is done, he said.

Well-written doesn't mean long, he added.

"Do not assume that a judge is reading only your brief this week," he said.

"I always wrote a brief thinking: This is the last thing this judge wants to read," Thomas continued, provoking laughter from the audience.

"We overemphasize the oral advocacy," Thomas said during a panel discussion that followed his remarks.

"The written advocacy is far more important," he said.

In nine of 10 cases, the position he had when leaving the bench after hearing oral arguments is the same as when he first sat down.

"I do believe," Thomas said, "you can lose your case at oral argument."

Still, oral arguments are essential on a broader level, Thomas said.

"It's important for people in our society to feel they can have their say," he said.

In response to a question from an audience member about the high court's shrinking caseload, Thomas said the Supreme Court should hear more cases each year. When he joined the Court, the justices would hear about 120 cases a session.

"That is four cases a day. It kept you busy. It gave justices less time to ask questions."

The Court today hears about 80 cases a year.

Thomas emphasized civility in his remarks.

"It's not helpful to say, 'I'm right because that person is stupid,'" said Thomas. It's important to be respectful even when disagreeing, he said. When writing a dissenting opinion, Thomas said he tells fellow justices reading his draft, "If there is anything in there that offends you, it's out."

Not only is it unkind to disparage a fellow justice in an opinion, it is unwise.

"If you insult them,” Thomas said, “it is very difficult in close cases to sway them."

Monday, October 20, 2008

Justice Thomas Lecture at Manhattan Institute

Justice Thomas delivered the Wriston Lecture at the Manhattan Institute in 2008. Excerpts are here:
The following is an excerpt from Supreme Court Justice Clarence Thomas's Wriston Lecture to the Manhattan Institute last Thursday:

When John F. Kennedy said in his inaugural address, "Ask not what your country can do for you -- ask what you can do for your country," we heard his words with ears that had been conditioned to receive this message and hearts that did not resist it. We heard it surrounded by fellow citizens who had known lives of sacrifice and hardships from war, the Great Depression and segregation. All around us seemed to ingest and echo his sentiment and his words. Our country and our principles were more important than our individual wants, and by discharging our responsibilities as citizens, neighbors, and students we would make our country better. It all made sense.

Today, we live in a far different environment. My generation, the self-indulgent "me" generation, has had a profound effect on much around us. Rarely do we hear a message of sacrifice -- unless it is a justification for more taxation and transfers of wealth to others. Nor do we hear from leaders or politicians the message that there is something larger and more important than the government providing for all of our needs and wants -- large and small. The message today seems more like: Ask not what you can do for yourselves or your country, but what your country must do for you.

This brings to mind the question that seems more explicit in informed discussions about political theory and implicit in shallow political speeches. What is the role of government? Or more to the point, what is the role of our government? Interestingly, this is the question that our framers answered more than 200 years ago when they declared our independence and adopted our written Constitution. They established the form of government that they trusted would be best to preserve liberty and allow a free people to prosper. And that it has done for over two centuries. Of course, there were major flaws such as the issue of slavery, which would eventually lead to a civil war and casualties of fellow citizens that dwarf those of any of the wars that our country has since been involved in.

Though we have amended the Constitution, we have not changed its structure or the core of the document itself. So what has changed? That is the question that I have asked myself and my law clerks countless times during my 17 years on the court.

As I have traveled across the country, I have been astounded just how many of our fellow citizens feel strongly about their constitutional rights but have no idea what they are, or for that matter, what the Constitution says. I am not suggesting that they become Constitutional scholars -- whatever that means. I am suggesting, however, that if one feels strongly about his or her rights, it does make sense to know generally what the Constitution says about them. It is at least as easy to understand as a cell phone contract -- and vastly more important.

The Declaration of Independence sets out the basic underlying principle of our Constitution. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . ."

The framers structured the Constitution to assure that our national government be by the consent of the people. To do this, they limited its powers. The national government was to be strong enough to protect us from each other and from foreign enemies, but not so strong as to tyrannize us. So, the framers structured the Constitution to limit the powers of the national government. Its powers were specifically enumerated; it was divided into three co-equal branches; and the powers not given to the national government remained with the states and the people. The relationship between the two political branches (the executive and the legislative) was to be somewhat contentious providing checks and balances, while frequent elections would assure some measure of accountability. And, the often divergent interests of the states and the national government provided further protection of liberty behind the shield of federalism. The third branch, and least dangerous branch, was not similarly constrained or hobbled.

Since Marbury v. Madison the federal judiciary has assumed the role of the interpreter and, now, final arbiter of our Constitution. But, what rules must judges follow in doing so? What informs, guides and limits our interpretation of the admittedly broad provisions of the Constitution? And, more directly, what restrains us from imposing our personal views and policy preferences on our fellow citizens under the guise of Constitutional interpretation?

To assure the independence of federal judges, the framers provided us with life tenure and an irreducible salary -- though inflation has found a way around the latter. This independence, in turn, was to assure our neutrality and impartiality, which are at the very core of judging -- and being a judge. Yet, this independence can also insulate a judge from accountability for venturing beyond the proper role of a judge. But, what exactly is the proper role of a judge? We must understand that before we can praise or criticize a judge. In every endeavor from economics to games there is some way to measure performance.

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
UPDATE: C-Span has posted the video here.

Friday, September 26, 2008

Justice Thomas and Football

From the University of Georgia newspaper:
The football team was paid a supreme visit on Thursday as U.S. Supreme Court Justice Clarence Thomas attended the Bulldogs' practice.

Thomas was seen going down the elevator at the Butts-Mehre building as reporters were coming in for head coach Mark Richt's pre-practice news conference.

"He's here, man, that fires me up," Richt said. "I just met him and that was fun. He's a very delightful man and just in the small time you're with him, you can tell he's a very humble man, considering who he is."

Thomas will be in attendance this Saturday at Sanford Stadium when Georgia hosts Alabama. Thomas is a native of Pin Point, Ga., and is a self-proclaimed Georgia fan, even though the Bulldogs are not his No. 1 favorite.

However, Richt would not divulge the one team Thomas likes more than Georgia.

"He's a Georgia fan but I don't know if I should tell anyone but he has a No. 1 team ahead of Georgia. He told me not to tell anybody so I won't. But it's somebody way far away from here and in a different conference."

Wednesday, June 25, 2008

Wendy Long Book Review

Wendy Long, a former clerk for Justice Thomas, has this lengthy book review of several books about and by Justice Thomas. The review appears in the Claremont Review of Books.

Bearing Witness

By Wendy E. Long
Posted June 23, 2008

Books discussed in this essay:

My Grandfather's Son: A Memoir, by Clarence Thomas

Supreme Discomfort: The Divided Soul of Clarence Thomas, by Kevin Merida and Michael A. Fletcher

Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, by Jan Crawford Greenburg

The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative's Perspective, edited by Henry Mark Holzer

First Principles: The Jurisprudence of Clarence Thomas, by Scott Douglas Gerber

Justice Clarence Thomas introduces his memoir, My Grandfather's Son, as "the story of an ordinary man to whom extraordinary things happened." That's the only part he got wrong. As his autobiography makes clear, it is the man who is extraordinary, not the circumstances. "The freest black man in America," Shelby Steele calls him. "The greatest living American," says Bill Bennett. To these, we should add the essential American: the black man on the center stage of our public life who has dared to say he loves America, and loved her from her start, even when that love seemed painfully unrequited.

In the 17 years since Justice Thomas took his seat on the Supreme Court, various friends, adversaries, journalists, and scholars have tried to tell his story. But, as he explains in his memoir (quoting the late William F. Buckley, Jr.), "Only the man who makes the voyage can speak truly about it." The most recent spate of books on Thomas—some released within months of his own memoir—prove to varying degrees that he and Buckley are correct. My Grandfather's Son is beautifully written, evocative, and jarring in its candor about the lowest points in his life—the bigotry he encountered, his struggles with alcohol, finances, his first marriage and divorce, the loss and rediscovery of his faith, and of course, his Senate confirmation saga. It's the full story of Thomas's life up to the moment he joins the Supreme Court. (As a sitting Justice, he can't go further and discuss matters on the Court.)

Daddy's Son

Only Thomas can really tell the story suggested by his book's title, which centers on the man who raised and molded him: his maternal grandfather, whom he called "Daddy." Myers Anderson, the relentlessly disciplined, hard-working, Catholic convert and ultimate tough-love parent—"dark, strong, proud"—was "the one hero in my life," writes Thomas. "What I am is what he made me." Thomas's biological father merely "sired" Clarence and his two siblings; their mother divorced M.C. Thomas in 1950, two years after Clarence was born. After their shanty in Pinpoint, Georgia, burned down when Thomas was six, he moved with his mother to a tenement in Savannah, which he describes as "hell": "[o]vernight I moved from the comparative safety and cleanliness of rural poverty to the foulest kind of urban squalor." Earning ten dollars per week for housekeeping, receiving zero child support, and refusing to go on welfare, Thomas's mother decided to send her sons to live with her father and his wife, who lived in a cinder block house painted a "gleaming white."

Daddy told the boys that if they learned how to work, they could live as well as he did, and that would be their "inheritance." The boys' first job, he said, was to get a good education. "It would be too generous," Thomas writes, to call Daddy himself "semiliterate"; he "struggled mightily with the newspaper and the Bible, and once he mastered a passage of Scripture he would read it over and over again." But Daddy's self-reliance is a piece of the segregated South that liberals today like to forget. He exhorted the young Clarence to learn, keep the faith, never give up, and never mind what other people do, say, or think. His staunch refusal to view himself as a victim was summed up in his advice to Thomas to "play the hand you're dealt." The cover photograph on My Grandfather's Son shows Thomas, apparently looking at the (off camera) bust of Myers Anderson that sits in his Supreme Court chambers, bearing as its inscription one of his favorite sayings to Clarence: "Old Man Can't is dead. I helped bury him."

In Savannah, Georgia, the boys worked every day after school and all day Saturday with Daddy in his fuel-oil delivery business, and in summers, on a farm in nearby Liberty County (where they built a four-room cinder block house with their own hands), plowing, planting, cutting wood, cleaning fish, skinning animals, killing chickens, all the while fighting off heat, gnats, flies, mosquitoes, and snakes—the last of which reappear metaphorically in the book. As a boy, Thomas learned that Georgia rattlesnakes, while deadly, at least give some advance notice of their attack. He later reflects that they were like the Southerners who were "up front about their bigotry"; at least "you knew exactly where they were coming from." Worse were the water moccasins, which strike without warning. He thinks of them when he encounters "paternalistic big-city whites" who "pretended to side with black people while using them to further their own political and social ends, turning against them when it suited their purposes."

Daddy had converted to Roman Catholicism in 1949 (the year after Thomas was born), and faithfully brought the boys to the pre-Vatican II mass where they learned their Latin responses by heart and served as altar boys. The nuns at Catholic school taught them that "God made all men equal, that blacks were inherently equal to whites." Young Clarence learned—at the age when children can drink in such truth—that God loves him infinitely, that he was the equal in God's eyes of any other man, and that every man's rights flow from God, not from any earthly master. This, combined with Daddy's lessons in discipline, work habits, and self-denial, formed Thomas's soul. Still, when a restive Clarence once told Daddy that "slavery was over," he replied: "Not in my house."

Later, Thomas strayed from his grandfather's principles. In the 1960s at Holy Cross, he became an angry black radical. He left the Church. When "the beast of rage...slipped its leash," or when the mounting injustices and humiliations seemed unendurable, he was consumed with anger and despair. But the story of My Grandfather's Son is how Thomas comes full circle, returning to the roots that Daddy nurtured. It is a story of incredible triumph, always tinged with the great sadness that Thomas never fully reconciled with Daddy before his death. Thomas's poignant response to this—vowing "to live my life as a memorial" to his—suggests a path for anyone who did not fully appreciate his parents until they were gone.

High-Tech Lynching

The brutal honesty of the memoir is all the more remarkable because most public figures are far more guarded in writing about themselves; their memoirs are designed to further political or other ambitions. But Thomas wrote his book to "bear witness" to what Daddy and others have done for him, to tell his story accurately and not "to leave the telling to those with careless hands or malicious hearts," and to inspire those who might identify with some part of his story and need hope, as he did, to go on. And unlike most other public figures, Thomas really can write. Literature transported his young mind beyond the segregated South while at the same time helping him to understand it. He studied Latin as a teenager and English literature in college. As an adult, his "interest in Churchill kindled a love of reading for its own sake."

Of course, Thomas's most famous utterance was his statement before the United States Senate Judiciary Committee:
I think that this hearing should never occur in America.... And from my standpoint, as a black is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured, by a committee of the U.S. Senate rather than hung from a tree.
In My Grandfather's Son, we learn how those words came together only moments before they were delivered to the Senate and the nation, as a drained Thomas lay on a couch in the dimmed light of early evening in Senator John Danforth's office. He must have been thinking, he writes, of Atticus Finch's closing argument in To Kill a Mockingbird, about how the white mob's purpose was to keep a black man in his place, when he seized Danforth's legal pad and scrawled, "HIGH-TECH LYNCHING."

Thomas and his advisors knew any nomination that President George H.W. Bush made to the Supreme Court in 1991 was going to be highly politicized. They knew that Democratic senators, with the aid and encouragement of liberal interest groups, would try to use the confirmation hearings to "Bork" Clarence Thomas—a verb that had entered the lexicon four years earlier when the same coalition, using smears, innuendo, and outright lies, had defeated Reagan Supreme Court nominee Robert Bork. But no one knew the ferocity with which liberals would attack a black man who strayed from the ideological plantation. Thomas met with board members of the NAACP—"a waste of time," he notes—and the organization, predictably, announced its opposition to his nomination quickly thereafter, "apparently at the insistence of the AFL-CIO." The NAACP "was in effect giving a green light to the various groups that opposed my nomination, tacitly assuring them that it was now all right for them to smear a black man."

The post-nomination courtesy calls with senators revealed a similar dynamic at work. Alabama's Howell Heflin (who was commonly referred to as "courtly," but whose manner reminded Thomas of "a slave owner sitting on the porch of a plantation house") asked Thomas to return for further meetings, "but it soon became evident that his sole purpose in continuing to meet with me was to find reasons to vote against me." Bob Packwood was "direct," saying he simply could not vote for Thomas because the senator's "political career depended on support from the same women's groups that were opposing" the nomination. Al Gore said he'd vote for Thomas "if [Gore] decided not to run for President." And Fritz Hollings confessed that in order to support Thomas he'd first have to resolve "a political problem with the NAACP in his home state of South Carolina." Thomas recalls, "Strange as it may sound, I appreciated that kind of honesty" from senators who would "admit their real reasons for voting against me instead of making up some transparent excuse."

Thomas describes hauntingly the feeling he had after five days of testimony before the Senate Judiciary Committee in which Democratic senators had "pummel[ed] me with loaded questions," including attempted traps involving abortion and natural law. Everyone assumed that the hearings were over. He had been through a political meat-grinder, and "after two and a half months of constant preparation and unrelenting attacks," he and his wife Virginia promptly left Washington to try to relax in the quiet resort town of Cape May, New Jersey. But Thomas "couldn't shake the feeling that for all the intensity of their effort, my opponents were still holding something in reserve."

Sordid Tale

Having followed the humiliations and heartbreaks that had brought Thomas to this point in the book, the reader can begin to understand what it was like to be in his shoes as the events described at the beginning of the ninth chapter—aptly titled "Invitation to a Lynching"—unfolded. The same deadly farce had been played out before in the lives of others, in history and in literature, so many times, in so many ways. It had played out in smaller ways—almost rehearsals—in Thomas's own life: the childhood in the Jim Crow South, where his friends told him to let go of his "foolish dreams," because "‘[t]he man ain't goin' let you do nothin'"; the seminary, where a classmate's response to the shooting of Martin Luther King, Jr.—"[t]hat's good, I hope the son of a bitch dies"—ended both Thomas's vocation to the priesthood and his "youthful innocence about race"; the devastation, after compiling a record of high achievement at Holy Cross and Yale, of finding it impossible to get a law firm job because his Ivy League degree was "tainted" by racial preference. (Finally, a young Missouri Attorney General named John Danforth hired Thomas as a staff lawyer in St. Louis. When Danforth was elected to the U.S. Senate, Thomas followed him to Washington, where he caught the attention of the Reagan Administration.)

It seemed unthinkable, yet at the same time all too predictable. One day, two FBI agents arrived at his house, and "started asking questions before I could close the door behind them." Did he know Anita Hill? Had he made sexual advances to her? From that moment, it was clear Thomas would have to prove a negative. He recalled Franz Kafka's The Trial: "Someone must have been telling lies about Josef K., for without having done anything wrong he was arrested one fine morning." His enemies thought they had found the perfect weapon to destroy him.

Ironically, in preparing for his first round of confirmation hearings, Thomas had penciled in Anita Hill as a "liberal whom I could call as a witness on my behalf should it become necessary." Others have told pieces of the story before (some blatantly false), but to hear it finally from Thomas himself—it all makes sense. Hill was a liberal. Thomas knew this all along; in her first interview with him for a position at the Department of Education in 1981 (he was the assistant secretary for civil rights), she had told him that she "detested" Ronald Reagan. But Thomas's close friend Gil Hardy (a black buddy from Holy Cross) had asked him to "help a sister" who was leaving Hardy's law firm. Hill had told Thomas she could not get a recommendation from the firm because she had been sexually harassed there. So he found a way to hire her as a non-political appointee. Though her work was only "adequate," and though she had been "touchy and apt to overreact," he continued to help her, at Hardy's insistence, and allowed her to follow him in 1982 when President Reagan named him chairman of the Equal Employment Opportunity Commission (EEOC).

When Thomas appointed Allyson Duncan, another black woman and "a consummate professional whose work had been consistently outstanding" as his EEOC chief of staff in 1983, Hill "stormed into" his office to protest that she had not been promoted. Hardy again pleaded with Thomas "to be patient with her." Thomas soon after saw an opening to recommend Hill as a law professor in her native Oklahoma, and she accepted. But she continued to call Thomas over the years that followed, and the last time he remembered seeing her, she insisted on driving him to the airport after a speech she'd asked him to give in Tulsa.

Just days before the full Senate was scheduled for the final vote on Thomas's nomination, the supposedly confidential FBI report with Hill's wild allegations was leaked to the national media. In his memoir, Thomas describes meeting, via news reports,
for the first time an Anita Hill who bore little resemblance to the woman who had worked for me at EEOC and the Education Department. Somewhere along the line she had been transformed into a conservative, devoutly religious Reagan-administration employee.... But truth was no longer relevant: keeping me off the Supreme Court was all that mattered. These pieces of her sordid tale only needed to hold up long enough to help her establish her credibility with the public. They fell away as the rest of the story gained traction in the media, just as the fuel tank and booster rockets drop away from a space shuttle once it reaches the upper atmosphere.
Defiance of Facts

Immediately after the release of my Grandfather's Son, the national media grabbed the news hook to repeat Hill's allegations and to pronounce that the "he said, she said" remains a mystery. But a rigorous journalistic assessment of the Hill tale was nowhere to be found. A case study in this failure of critical, objective journalism is Supreme Discomfort: The Divided Soul of Clarence Thomas, released just months before Thomas's own book. Authors and Washington Post reporters Kevin Merida and Michael Fletcher fail to grapple with fundamental points about the Hill tale that don't add up. In 16 years, no one has ever offered a plausible explanation why Anita Hill, a Yale-educated lawyer and avowed liberal, would leave the equivalent of a civil service job at the Department of Education to follow Clarence Thomas to the EEOC if she were being sexually harassed. No one, including Hill, has explained why she would continue to contact Thomas, repeatedly and insistently leaving telephone messages, including her hotel room number, inviting him to her law school in Oklahoma to speak, and insisting on driving him to the airport, if her allegations were true. No one has ever cited a case of sexual harassment where the plaintiff behaved as Anita Hill did following the alleged harassment. And the Senate testimony attempting to corroborate her own testimony was full of holes. Susan Hoerchner, Hill's main witness, had a record of liberal activism and, when interviewed by Senate staffers, contradicted Hill's testimony as to when the alleged harassment took place. Hill's attorney, who was also advising Hoerchner, called for a break when the discrepancy emerged. After the break, Hoerchner had a "failure of memory" that became her storyline at the hearings. Hill gave the FBI the names of two other employees who she said would corroborate her story. Neither did.

Of the three women who provided statements supporting Hill, Thomas had fired two of them for poor job performance and had declined to reappoint the third after she failed the bar exam. The overwhelming number of professional women who worked side-by-side with Clarence Thomas over the years, including pro-choice women, Democrats, liberals, and feminists, said Hill's story was flatly inconsistent with what they knew of him. Pam Talkin, Thomas's EEOC chief of staff, testified that her boss
was adamant that the women in the office be treated with dignity and respect. And his own behavior towards women was scrupulous. There was never a hint of impropriety, and I mean a hint. Never a gesture, never a look, never a word, never body language. None of these things that we women have a sixth sense about.
Talkin and the other women who testified similarly before the Senate committee were not allowed to do so until 2 o'clock in the morning.

A Man of Principle

Merida and Fletcher try to paint Thomas as a tormented figure, "uncomfortable" in both the "white world" and the "black world." They tout the countless interviews and original research they conducted to figure out which is the "real" Clarence Thomas: the "magnetic" figure who strikes up friendships wherever he goes, the "ideological" figure who is a "hero of the conservative right," or the "despised" figure who is a traitor to his race and to liberal ideals, a sellout, an Uncle Tom.

Although the first two portraits are true to different degrees, Merida and Fletcher clearly favor the third, and they twist every opportunity to portray Thomas as an Uncle Tom who, among other things, schemed to get on the Supreme Court, even lying to civil rights groups about his views. This assertion, like so many in their book, flies in the face of fact: for more than a decade, Thomas had hidden his views from no one, and battled not only with the civil rights establishment but with his fellow Reagan Administration officials.

Supreme Discomfort's snide, breathless tone may be gathered from tabloid excesses like this: "Even in his cloistered, rarefied world as a member of the most important judicial body in existence, Thomas will always be black and he knows it." Such statements are embarrassing, not only for two black journalists, but particularly when held up against the depth and nuance expressed in My Grandfather's Son.

Because the authors of Supreme Discomfort are so wedded to their "Uncle Tom" thesis, they latch onto the liberal establishment line that although Thomas was the beneficiary of affirmative action all his life, now that he's climbed to the top of the heap he has pulled up the rope behind him, and would deny the same advantage to other blacks. Yet they acknowledge that "race did not appear to play a role in Thomas's acceptance to Holy Cross" and that "Yale officials cannot say whether Thomas would have been admitted to the prestigious law school without affirmative action" because by the time he was admitted, the university had refined its affirmative action efforts, admitting minority applicants only if it believed they could do the work and thrive at Yale. Interestingly, this goes precisely to Thomas's criticism of affirmative action as it came to be practiced more broadly in the 1970s, '80s, and '90s: that it resulted in minority students being accepted into schools and environments where they could not thrive, just in order to satisfy grand theories about minority admissions or to provide a "diverse" environment that would somehow enhance the white folks' experience, irrespective of the effect it would have on the minority students.

Merida and Fletcher also repeat the canard that Thomas is a "flunky" of Justice Antonin Scalia, even as Thurgood Marshall was dismissed as the "lackey" of Justice William Brennan. Neither Marshall nor Thomas has ever been regarded as an "intellectual force," they say—though they are careful not to make that assertion themselves (instead invoking the frequently unattributed, unfootnoted comments of others). They note that both pairs of Justices voted together 90% of the time, and smugly conclude, "no one has ever suggested that Scalia and Brennan followed the lead of their black brethren."

By lumping Thomas and Marshall together in this way, they make the truth more difficult to untangle. On the other hand, they insulate Marshall from justifiable criticism, twisting and mischaracterizing facts to obscure the claim's absurdity with respect to Thomas. The fact is, Marshall did follow Brennan, "consistently and predictably," as Supreme Court historian Henry Abraham, among others, has noted. Marshall was not the only—though probably the most reliable—Justice whom Brennan mustered to create many of the 5-4 majorities whose decisions live in the annals of judicial activism. On the other hand, Scalia, unlike the diplomat Brennan, frequently writes only for himself and, while Scalia is renowned for many things, coalition-building is not one of them. He and Thomas have come out on opposite sides of important constitutional cases, such as First Amendment protection for anonymous political speech, forfeiture of cash under the Eighth Amendment's "excessive fines" clause, and the wholly intrastate, medical use of cannabis as permitted by state law. In Hamdi v. Rumsfeld (2004), Scalia invoked Blackstone and English common law to argue that the president did not have the power to detain Yaser Esam Hamdi; Thomas instead analyzed the issue in light of the principles of executive power outlined in The Federalist, concluding that such military decisions of the commander-in-chief can't be second-guessed by the Court.

And even when Scalia and Thomas agree on the outcome, they sometimes employ separate reasoning, writing their own dissents and concurrences, as Thomas did in United States v. Lopez (1995), in which he called into question the Court's precedents holding that Congress can legislate not only to regulate commerce "among the several States," as the Constitution prescribes, but also in areas where there is merely a "substantial effect" on interstate commerce. Another example: although both Scalia and Thomas have dissented from the misguided line of cases holding public expressions of religion to violate the Constitution, only Thomas has explained the Establishment Clause of the First Amendment as the framers understood it, as a "federalism provision" that "protects state establishments from federal interference." Overall, Thomas is more willing than Scalia to reexamine flawed precedents and return straight to the Constitution's text and principles. In the words of one legal scholar, "when it comes to enumerated federal powers," only Thomas is "willing to put the mandate of the Constitution above his...own views of either policy or what would make a better constitution than the one enacted." No one ever said that about Thurgood Marshall.

Quiet Conviction

Fortunately, another journalist—one with legal training, unlike Merida and Fletcher—has taken the time to investigate the charge that Thomas merely follows Scalia. Jan Crawford Greenburg, a graduate of the University of Chicago Law School and an ABC News legal correspondent, researched the papers of the late Justice Harry Blackmun and conducted scores of interviews of the law clerks present during Thomas's early terms on the Court. Her book, Supreme Conflict: The Inside Story of the Struggle for Control of the Supreme Court, shatters the myth that Thomas follows Scalia's lead. It goes even deeper than the refutations already provided on this point by other authors, such as journalist Ken Foskett, Thomas biographer Andrew Peyton Thomas (no relation), and law professor Scott Gerber. Greenburg's research reveals that Thomas was a powerful, independent voice on the Court, with his own thoughts about the Constitution and judging that diverged in significant respects from Scalia's.

For example, Greenburg reveals that at Thomas's very first conference (the meeting where the Justices exchange views, in order of seniority, on the cases argued that day), the Justices unanimously agreed in Foucha v. Louisiana (1992) that a Louisiana law was unconstitutional in allowing the state to confine to a mental institution an inmate found not guilty by reason of insanity, after doctors concluded he was no longer insane. But the next day, Thomas went to Chief Justice William Rehnquist and said he would be the lone dissenter. When Thomas circulated his written dissent to the Court, Rehnquist and Scalia quickly switched their votes and joined him, persuaded by his argument that Foucha had no constitutional right to be released even if it made sense as a policy matter. Justice Anthony Kennedy switched his vote, too, though he wrote his own dissent. The case, which was unanimous before Thomas spoke up, was decided 5-4.

Almost immediately, Thomas again was the sole dissenter. In Hudson v. McMillian (1992), a prisoner had been beaten by guards and claimed he had been subjected to "cruel and unusual punishment" in violation of the Eighth Amendment. Blackmun's notes reflect the shock in the conference at Thomas's lone position. But when Thomas circulated his dissent, arguing that a prison guard's actions, however wrong, are not the equivalent of official punishment meted out by the state, Scalia promptly switched his vote, persuaded again by the force of Thomas's reasoning.

Thomas has often been criticized for not speaking during oral argument, when other Justices interrupt each other and pepper the lawyers with questions. Incredibly, Merida and Fletcher devote an entire chapter, "Silent Justice," to this subject, surveying at seemingly endless length everyone from high school students visiting the Supreme Court to former Reagan Solicitor General Charles Fried. Thomas has explained publicly, more than once, that there are very few questions that need to be asked once a Justice has done a thorough job reading all the briefs in the case. Almost all of the questioning is for sport among the Justices, or to put on a show for the media.

View of the Founding

In the chapter on Marshall and Thomas, Supreme Discomfort touches upon the most significant difference between the only two black Supreme Court Justices in our nation's history. Marshall believed that the Constitution "was defective from the start" because it permitted slavery and did not allow women to vote. In 1987, as America celebrated the Constitution's bicentennial, Marshall asserted that the American Founders
could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the people no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of liberty, justice, and equality, and who strived to better them.
In other words, the credit belongs not to the founders, but to Marshall and to others like him.

Thomas was "chief among the condemners" of Marshall's bicentennial speech, according to Merida and Fletcher. The authors defend Marshall, insisting that he "spent considerable time thinking his speech over" and "ran it by renowned historian John Hope Franklin, who...wrote the mega-best-selling history of African Americans, From Slavery to Freedom." But the fact that Marshall had put so much thought into the speech—that it was not an off-the-cuff statement of an aging justice—only makes clearer that Marshall detested and misunderstood the American Founding.

The condemnation of the founding as defective for its treatment of blacks and women is not unique to Marshall; perhaps its most vehement recent expressions belong to Barack Obama's pastor, Reverend Jeremiah Wright. And Obama's own campaign stump line, "We are the ones we've been waiting for," means essentially what Marshall said: the founders got it wrong, but we enlightened liberals are fixing things up.

The contrast to Clarence Thomas's view could not be more stark. Thomas describes in My Grandfather's Son how he deliberately set out, beginning in 1986 as chairman of the EEOC, to explore with Claremont Institute scholars Ken Masugi and John Marini "the natural-law philosophy with which the Declaration of Independence, America's first founding document, is permeated." Recounting the tutorials of some 20 years ago, Thomas writes,
if all men are created equal, then no man can own another man, and we can only be governed by our consent. How, then, could a country founded on those principles have permitted slavery and segregation to exist? The answer was that it couldn't—not without being untrue to its own ideals.

If Thurgood Marshall and his ilk had had their way—if the North had refused to compromise with slavery in 1787, if the Three-Fifths Clause had never been written—no United States would have existed, and slavery could never have been put, as Lincoln said, "on the course of ultimate extinction." Thomas explains:
The Founders made the political judgment that, given the circumstances at the time, the best defense of the Constitution's principles and, ironically, the most beneficial course for the slaves themselves was to compromise with slavery while, at the same time, establishing a union that, at its root, was devoted to the principle of human equality.

Other Opinions

In his newly revised and expanded book, The Supreme Court Opinions of Clarence Thomas, 1991-2006: A Conservative's Perspective, Brooklyn Law School professor emeritus Henry Mark Holzer provides a sympathetic, indeed reverential, take on the Justice's official oeuvre, but unfortunately the book at times appears to reflect more of Holzer's views than Thomas's. To his credit, Holzer characterizes the Constitution as implementing the Declaration, but he makes some dubious statements that surely should not be attributed to Thomas, such as that the principles of the Declaration "were virtually unknown in the history of man." Thomas himself has discussed the natural rights of life, liberty, and property in the thought of John Locke and others upon whom the founders drew. The book does contain excerpts from many of Thomas's most constitutionally significant cases, but the choice of excerpts is narrow, and the editing diminishes them further, as does the analysis (or lack of it). The reader would be better advised simply to read Thomas's opinions for himself.

A more scholarly and complete book examining Thomas's Supreme Court opinions is Scott Gerber's First Principles: The Jurisprudence of Clarence Thomas. First published in 1999 as a review of Thomas's first five terms on the Court, it was expanded and republished in 2002. Gerber, a professor of law at Ohio Northern University, calls himself a "classical liberal" and undertakes a truly dispassionate study, taking pains to avoid weighing in either for or against Thomas's work. He avoids the term "Justice Thomas's judicial philosophy," which is fitting, because, as Thomas himself explains in his memoir, at the time of his nomination "I didn't have one."

Thomas still resists the idea that he has a "judicial philosophy." He just does his best to decide cases on the bases of the Constitution's text and principles and the laws enacted by the branches of government accountable to the "consent of the governed." Quoting Thomas's Senate testimony and speeches, Gerber takes the time to explain the Justice's stance, better labeled "judicial neutrality." Thomas articulated more fully, and several years earlier, the same posture of judicial neutrality for which John Roberts won so much acclaim at his own Senate confirmation hearings in 2005, when he described a judge as an "umpire" in a ball game. As Thomas put it,
If we are to be a nation of laws and not of men, judges must be impartial referees who are willing at times to defend constitutional principles from attempts by different groups, parties, or the people as a whole, to overwhelm them in the name of expediency.... A judge does not look to his or her sex or racial, social, or religious background when deciding a case.... [A] person must attempt to exorcise himself or herself of the passions, thoughts, and emotions that fill any frail human being.... Otherwise, he is not a judge, but a legislator, for whom it is entirely appropriate to consider personal or group interests.

Gerber's balanced, scholarly study should be reprised, and soon—taking into account not only Thomas's opinions of the past five years, but also his memoir and Greenburg's research in the meantime. It would be even better if Gerber, or someone else, would produce a compendium and analysis of Thomas's opinions based not on standard legal categories such as "federalism" and "civil rights," but on the themes that emerge from his defense of the Constitution over the last 16 years on the Court: themes such as the necessity of good education for the success of the American regime of self-government, and the idea that the right to keep the property that one has earned by the sweat of one's brow is a first and fundamental freedom.

Thomas has said that the Justice's job of protecting the Constitution and the principles that underlie it "is not a game of cute phrases and glib remarks in important documents" but rather is a "deadly serious business." Whether the American experiment in self-government endures will depend, in large part, upon whether the Constitution can be preserved against the depredations of judicial activism. And that, in turn, just might depend upon whether the principles outlined in the opinions of Justice Clarence Thomas continue to persuade members of the Supreme Court and his fellow citizens.

"I've never doubted the greatness of a country in which a person like me could travel all the way from Pinpoint to Capitol Hill," Thomas writes. My Grandfather's Son is an amazing tale that can embolden us all as we face the hardest moments in life, and give us hope for the future of our country and her principles.

Friday, May 30, 2008

Justice Thomas Graduation Speech

From the Washington Times:
Thomas inspires boys school grads
Justice speaks to class of 18

Friday, May 30, 2008

It was no ordinary occurrence for no ordinary students at no ordinary school.

Supreme Court Justice Clarence Thomas - accustomed to commanding audiences of thousands at major universities - instead delivered a commencement address last night for 18 graduating middle-school boys at the highly regarded Washington Jesuit Academy in Northeast.

Washington Jesuit is a tuition-free private boarding school for underprivileged but academically promising youths run by the Jesuits - an influential order of Catholic priests legendary for centuries of educational excellence. Inspired academic instruction is but one feature of a boy's life at the school.

Within Washington Jesuit's walls, at least, character counts, and it showed in the eighth-graders' polite demeanor last night.

"It is truly up to each of you to decide what type of building block you will become with your actions," Justice Thomas told the class of primarily black students during his speech.

Like his audience, Justice Thomas came up the hard way - raised in impoverished Pin Point, Ga., and abandoned by his father - but he benefited mightily from a Jesuit education at Holy Cross College. The former seminarian was nominated to the court by President George H.W. Bush in 1991.

Allison Shelley/The Washington Times Supreme Court Justice Clarence Thomas meets with the graduating class at Washington Jesuit Academy, including (from left) Demitrius McNeil, Marcus Cain and Olushola Shokunbi. Demitrius, 14, said he could relate to Justice Thomas' rise from poverty.

He was sworn in after perhaps the most bitter Supreme Court confirmation fight in memory. A former head of the U.S. Equal Employment Opportunity Commission, he is the only black on the court.

"Remember that life is not easy for any of us, it probably won't be fair and it certainly isn't all about you," he said. "The gray hair and wrinkles you see on older people have been earned the hard way."

The students wore navy sport coats, white and green barber-striped ties and khakis. They gave firm handshakes and made eye contact as they spoke with Justice Thomas about their plans for high school, college and life.

The justice returned the gestures and encouraged each boy with firm pats and a few words such as "congratulations" and "don't stop now."

"It's an honor [to meet the justice]. It's very inspiring that he got past segregation," said valedictorian Airton Kamdem, 14, of Silver Spring. Airton will attend Georgetown Prep in North Bethesda for high school.

"It's a pleasure," said Demitrius McNeil, 14, of Fairfax. "I grew up in a bad neighborhood so I can relate [to Justice Thomas]. It's about making something out of your life." Demitrius will go to Gonzaga College High School in Northwest this fall.

Justice Thomas praised the school for helping prepare academically promising but underprivileged students for the time when they will enter a more competitive collegiate environment, up against students born with more advantages.

"When I was coming up, there was a problem with throwing young people into the fire on the collegiate level without preparing them ... they can't win," he said. "In this situation, they now can win."

The school, which is near Catholic University, was founded in 2002 and helps the boys succeed with small class sizes, 12-hour school days and an 11-month school year.

The academy says only about 11 percent of its students enter the school reading at their grade level, but 95 percent of them graduate doing so. The school also boasts double-digit improvements in students' standardized tests scores after two years.

There are only 38 alumni, but all are in high school and nearly all are in college preparatory programs.

School President William B. Whitaker said the speech was important to the students because Justice Thomas' life shows that anyone can achieve greatness.

"A lot the boys think they can't, they won't," Mr. Whitaker said. "But we try to encourage them and say 'you can, you will and you should.'

Allison Shelley/The Washington Times Supreme Court Justice Clarence Thomas meets with the graduating class at Washington Jesuit Academy, including (from left) Demitrius McNeil, Marcus Cain and Olushola Shokunbi. Demitrius, 14, said he could relate to Justice Thomas' rise from poverty.

Monday, May 12, 2008

Justice Thomas Speaks at UGA

From Online Athens:
Thomas tells grads of goal blocked by injustice
By Blake Aued
Sunday, May 11, 2008

U.S. Supreme Court Justice Clarence Thomas, the fifth Georgian to serve on the high court, would have been the first black University of Georgia graduate if he'd had his way.

Thomas wanted to be a Bulldog, but segregation stopped him, he said Saturday during his commencement address at Sanford Stadium.

"Forty-one years ago, when I graduated from high school in Savannah, attending the University of Georgia was not an option," he said. "Thankfully, much has changed in my lifetime. Knowing what I know today, I would go to school here in a heartbeat. Georgia is home, and Georgia is where I belong."

. . .

He credited his grandparents, relatives and friends - farmers, yard workers and maids, mostly - in his native Pin Point for raising him right.

"They went along with their lives doing their best with what they had, knowing all the while that this was not necessarily fair," he said. "They played the hand they were dealt, and through it all, they were unfailingly good, decent and kind people, whose unrequited love for our great country and hope for our future were shining examples for all of us to emulate in our own struggles."

The controversial justice spurned politics, jurisprudence and the usual lofty rhetoric of commencement speakers. Instead, he praised old-fashioned virtues like faith, gratitude, honesty, discipline, politeness, punctuality and sincerity.

"Look, many have been angry at me because I refuse to be angry, bitter or full of grievances, and some will be angry at you for not becoming agents of their most recent cynical causes," he said. "Don't worry about it. No monuments are ever built to cynics."

Thomas recalled when the socialist writer Michael Harrington spoke at his own commencement in 1971. But Thomas said he was more worried at the time about paying off his student loans and his upcoming wedding than about Harrington's message.

"He seemed to be exhorting us on to solve the problems of poverty and injustice," Thomas said. "As important as that was, I, like most people sitting here today, was focused on solving my own problems, so I would not become a problem for or a burden to others."

Some faculty and students criticized UGA President Michael Adams' selection of Thomas to deliver the commencement address. About 1,200 people signed an online petition opposing the choice. Thomas was accused of sexual harassment during his 1991 Senate confirmation hearings, and a rash of harassment scandals has plagued UGA lately.

But he received a standing ovation Saturday, and graduates said his speech's humor and homespun wisdom resonated with them.

"A lot of the things he said are the same things my mother and auntie say all the time," psychology and pre-med major LaKeithia Glover said.

. . .

U.S. Supreme Court Justice Clarence Thomas, left, shares a laugh Saturday with University of Georgia President Michael Adams during commencement ceremonies in Sanford Stadium.
From the Atlanta Journal-Constitution:
Thomas gives grads familiar advice

By Jeffry Scott
The Atlanta Journal-Constitution
Published on: 05/11/08

Athens —- U.S. Supreme Court Justice Clarence Thomas, the commencement speaker before the 2008 graduating class of the University of Georgia, said when he graduated from high school 41 years ago, attending UGA "was not an option" because schools in the state were still largely segregated.

But then Thomas, who grew up in Pin Point, outside Savannah, told the approximately 3,500 graduating students gathered on the field at Sanford Stadium on Saturday that he was happy to be back at the school, where he gave the law school commencement address in 2003.

"Georgia is my home," he said. "Georgia is where I belong."

In recent weeks the UGA administration had come under criticism from some faculty members for inviting Thomas, because of allegations of sexual harassment brought against him 17 years ago during his Supreme Court confirmation hearings before the U.S. Senate.

There were no fireworks Saturday, either outside the ceremony —- where there were no protests —- nor in the text of his address, which was heavy on chestnuts of wisdom such as "I urge you to do the best to be your best."

Thomas, who seldom gives interviews and has been criticized for not asking questions from the bench —- he once went two years and sat in on 142 cases in the Supreme Court without speaking in the courtroom —- seemed uncomfortable straying from his prepared text.

At least twice he misread what was written, and doubled back to correct himself. But he was offering wisdom, not inspiration.

"The rewards of self-indulgence are not nearly as great as the rewards of self-discipline," he told the students.

He spoke highly of the lessons his grandparents taught him and how only in his later years he has come to realize the value of those lessons.

He recalled how 30 years ago a janitor who worked in the U.S. Senate saw Thomas was troubled and pulled him aside to tell him he needed to be strong and unselfish to benefit others.

"He told me 'Son, you cannot give what you do not have,' " Thomas said.

When he left the podium, Thomas, who spoke for 22 minutes, received a standing ovation.

Monday, May 5, 2008

Faculty Embarrass Themselves

At the University of Georgia. See here:
As is the case with most conservative speakers at those pesky liberal bastions (aka colleges), the choice of Supreme Court Justice Clarence Thomas as the University of Georgia's commencement speaker has inspired a "reaction that ranges from surprise to infuriation," the Red and Black reports. "Many would consider him a divisive figure because of his voting record and the past allegations of sexual harassment with Anita Hill," said a psychology professor.

The speaker announcement caps a year of sexual harassment scandals on the Georgia campus (three professors have resigned since September because of sexual harassment complaints). But it also comes at a time when faculty members believe the school has made progress on the issue. "What a slap in the face this is to everyone who has been working to bring to light the realities of sexual harassment at [the university]," said the women's studies director.
The President of the University of Georgia defends the choice to invite Justice Thomas:
Clarence Thomas: Suitable speaker at UGA? Yes

Published on: 04/25/08

The University of Georgia has never had, and will never have, I hope, a political litmus test for the speakers who appear at commencement or other events. Associate Justice Clarence Thomas has been generous and gracious with his time and in his support of UGA. In 2006, he spoke at the Blue Key banquet here and received the Blue Key Service Award. At the invitation of Dean David Shipley, he spoke at the School of Law's commencement ceremony in 2003. He has lectured in both the law school and the Honors program, and has given hours of his time in his Washington office to talk with UGA Foundation Fellows.

He has been very helpful to UGA law students who have aspirations to clerk in the Supreme Court. He has also joined me in Sanford Stadium to cheer on the Bulldogs.

As a native Georgian, Justice Thomas has honored his home state with his service on the Supreme Court, and we are honored that he accepted the invitation to speak at commencement. He is welcome on this campus anytime, as is any other sitting or former justice of the Supreme Court of the United States.

The tradition of free and open discourse on a university campus is one of the fundamental tenets undergirding all that we do in academe. It is important for our students to hear a wide variety of voices and reach their own conclusions about the important issues of the day. Last year, Associate Justice Stephen Breyer participated in the three-day retrospective on the 30th anniversary of the inauguration of Jimmy Carter. Just last month, we welcomed five former secretaries of state for a round-table discussion sponsored by the School of Law and the School of Public and International Affairs; two of them served Democratic presidents and three served in Republican administrations.

On a single day in April 2006, we hosted former President George H.W. Bush, a Republican, who participated in the dedication of the Coverdell Center, and former Sen. John Edwards, a Democrat, who was campaigning for the presidency.

The roster of recent commencement speakers demonstrates a variety of points of view, as it should. We have hosted Georgia governors of both parties; Ted Turner; Time Magazine Editor in Chief John Huey; U.S. Sens. Phil Gramm, Zell Miller and Saxby Chambliss; U.S Rep. Sanford Bishop; and Clark Atlanta University President Walter Broadnax.

At a large academic institution, opinions will always differ regarding the choice of commencement speaker, but each of us should remember that graduation day is a day for the students, those who have completed their academic work and are looking forward to careers or graduate school.

Commencement is truly a grand, celebratory occasion at the University of Georgia, and our focus on May 10 in Sanford Stadium will be on the accomplishments of the 4,000-plus bright undergraduates who will graduate that morning.

Michael F. Adams is president of the University of Georgia.

Commencement Speech at High Point University

An article:
Supreme Court justice speaks at HPU commencement
By Nancy H. McLaughlin
Staff Writer
Sunday, May. 4, 2008 3:00 am

HIGH POINT — If Supreme Court Justice Clarence Thomas were to package Saturday's commencement speech at High Point University into an inspirational book about learning everything needed for life, he could call it "Those old folks are right."

"Good manners will open doors that nothing else will open," Thomas told graduates seated on the manicured lawn of the private college. More than 600 diplomas were awarded on a morning fraught with sporadic wind bursts heavy enough to upend stacks of printed programs.

Other advice from Thomas: "Remember the rewards of self-indulgence are not nearly as great as the rewards of self-discipline. Remember that life is not easy and probably will not be fair."

"When I was younger and acted as though I knew everything, the older people knew better. ... The older I have gotten, the smarter they have become," said Thomas, who became a jurist of the country's highest court when most of the HPU graduates had not even begun first grade.

"Chief among those who have grown in stature is my grandfather, who seemed small and irrelevant when I sat where you sit," Thomas said of his own graduation day.

"Today, he is the greatest man I've ever known."

. . .

In his remarks, Thomas would go on to describe a life shaped by faith, discipline and the power of positive thinking.

"I was 9 years old when I met my father," Thomas said. "The point is not to complain, but rather to say: Just because it starts a certain way doesn't mean it has to end that way."

. . .

Saturday, April 19, 2008

Justice Thomas to Speak at University of Georgia

From Athens, Georgia:
U.S. Supreme Court Justice Clarence Thomas will return to the University of Georgia next month to deliver the address at the university's undergraduate commencement exercise.

Thomas, 59, was the commencement speaker for the UGA School of Law in 2003, and also has addressed the UGA Blue Key Awards Banquet and visited with students and faculty in the law school.

Thomas, who has been on the Supreme Court for 16 years, will be the main speaker at the May 10 commencement, which is scheduled for 9:30 a.m. in Sanford Stadium. If the weather is bad, UGA will split the graduation into two ceremonies, at 9:30 and 11:30 a.m., and move them into Stegeman Coliseum.

Saturday, March 22, 2008

Wall Street Journal Interview

The Wall Street Journal has an interview with Justice Thomas:
Clarence Thomas
Mr. Constitution

March 22, 2008; Page A25

Clarence Thomas leaps from his chair. He retrieves a wire coat hanger from his closet for a demonstration -- the same demonstration he gives his law clerks. He bends it and says: "How do you compensate? So, you say well, deal with it. Bend this over here. Oh, wait a minute, bend it a little bit there. And you're saying that it throws everything out of whack. What do you do?"

He holds up a twisted wire, useless now for its original purpose and the point is made. "If you notice sometimes I will write just to point out that I think that we've gone down a track that's going to cause some distortion, then it's quite precisely because of that. I don't do things that I think are illegitimate in other areas, just to bend it back to compensate for what's already happened."

Interpreting the Constitution is the Supreme Court's most important and most difficult task. An even harder question is how to approach a Constitution that, in fact, is no longer in pristine form -- with the Framers' design having been warped over the years by waves of judicial mischief. There is an obvious temptation to redress the imbalance, which Associate Justice Thomas decisively rejects. Thus his coat hanger metaphor.

So is the most controversial Supreme Court justice an "originalist" when it comes to Constitutional interpretation? He says he doesn't like labels, though he does admit to being a "meat and potatoes" kind of guy.

Upon entering his spacious office overlooking the Capitol Dome in Washington, D.C., the first thing to catch your eye is his Nebraska Cornhuskers screen saver. Mr. Thomas never attended the University of Nebraska, or even lived in the state. He's just a fan. His office is also decorated with pictures of the historical figures he admires, Frederick Douglass, Abraham Lincoln, Booker T. Washington, Thomas More and Winston Churchill, and he speaks of them with knowledge and passion. Watching over all is a bust of his grandfather atop Mr. Thomas's bookcase -- its countenance as stern as a Roman consul. There is little doubt this man was the driving force in Mr. Thomas's life -- a fact he confirms, and which is reflected in the title of his recently published memoir, "My Grandfather's Son."

Mr. Thomas faced one of the most destructive and personally vicious Supreme Court confirmation hearings in American history -- described at the time by Mr. Thomas himself as a "high-tech lynching." Mr. Thomas's opponents smeared his character and integrity. To this day, disappointed and embittered, they feel entitled to insult his qualifications, intelligence and record.

In 2004, when Mr. Thomas's name was floated as a possible replacement for ailing Chief Justice William Rehnquist, then Senate Minority Leader Harry Reid called him an "embarrassment" to the Court, and attacked his opinions as "poorly written."

In point of fact, Mr. Thomas's opinions are well-written, displaying a distinctive style -- a sure sign that the Justice and not his clerks does most of the writing.

As for his judicial philosophy, "I don't put myself in a category. Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it."

In that process, the first place to look is the document itself. "And when I can't find something in that document or in the tradition or history around that document, then I am getting on dangerous ground. Because that's when you drift so much more towards your own policy preferences."

It is the insertion of those policy preferences into the interpretive process that Mr. Thomas finds particularly illegitimate. "People can say you are an originalist, I just think that we should interpret the Constitution as it's drafted, not as we would have drafted it."

Mr. Thomas acknowledges that discerning a two-hundred-year-old document's meaning is not always easy. Mistakes are possible, if not inevitable, as advocates of a malleable "living constitution," subject to endless judicial revision, never tire of pointing out. "Of course it's flawed" agrees Mr. Thomas, "but all interpretive models are flawed."

Simply following your own preferences is both flawed and illegitimate, he says. "But if that is difficult, does that difficulty legitimate just simply watching your own preference?" By doing that "I haven't cleared up the problem, I've simply trumped it with my personal preferences."

Mr. Thomas has also been criticized for his supposed lack of respect for precedent. Even his fellow conservative, Justice Antonin Scalia, was reported by a Thomas biographer to have claimed that Mr. Thomas just doesn't believe in "stare decisis." Latin for "let the decision stand," stare decisis is an important aspect of the Anglo-American system of precedent -- deciding new cases based on what the courts have done before and leaving long established rules in place.

Mr. Thomas, however, is less absolute here than his critics suggest. He understands the Supreme Court can't simply erase decades, or even centuries, of precedent -- "you can't do it."

At the same time, he views precedent with respect, not veneration. "You have people who will just constantly point out stare decisis, stare decisis, stare decisis . . . then it is one big ratchet. It is something that you wrestle with." History would seem to vindicate Mr. Thomas and his insistence on "getting it right" -- even if that does mean questioning precedent.

The perfect example is Brown v. Board of Education (1954), where the Supreme Court overruled the racist "separate but equal" rule of Plessy v. Ferguson (1896), which permitted legally enforced segregation and had been settled precedent for nearly 60 years.

It is the Plessy dissent of Justice John Marshall Harlan to which Mr. Thomas points for an example of a Justice putting his personal predilections aside to keep faith with the Constitution. Harlan was a Kentucky aristocrat and former slaveowner, although he was also a Unionist who fought for the North during the Civil War. A man of his time, he believed in white superiority, if not supremacy, and wrote in Plessy that the "white race" would continue to be dominant in the United States "in prestige, in achievements, in education, in wealth and in power . . . for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty."

"But," Harlan continued, "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens."

That, for Mr. Thomas, is the "great 'But,'" where Harlan's intellectual honesty trumped his personal prejudice, causing Mr. Thomas to describe Harlan as his favorite justice and even a role model. For both of them, justice is truly blind to everything but the law.

More than anything else, this explains Mr. Thomas's own understanding of his job -- a determination to put "a firewall between my [PERSONAL\]view and the way that I interpret the Constitution," and to vindicate his oath "that I will administer justice without respect to person, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States."

This insistence by the Justice on judging based upon the law, and not on who the parties are, presents a stark contrast with today's liberal orthodoxy. The liberal approach -- which confuses law-driven judging with compassion-driven politics, enthused with a heavy distrust of the American political system's fairness -- was recently articulated by Democratic presidential candidate Barack Obama, who emphasized the need for judges with "heart" and "empathy" for the less fortunate, judges willing to favor the disempowered.

Born in rural Georgia in 1948, Mr. Thomas and his brother were mostly raised in Savannah by their maternal grandparents. His grandfather, Myers Anderson, believed in work, and that rights come with responsibilities. According to his book, Mr. Anderson told the seven-year-old Clarence that "the damn vacation is over" the morning he moved in.

Says Mr. Thomas: "Being willing to accept responsibility, that sort of dark side of freedom, first -- before you accept all the benefits. Being ready to be responsible for yourself -- you want to be independent. That was my grandfather." Anderson also taught his grandson to arrive at his conclusions honestly and not "to be bullied away from opinions that I think are legitimate. You know, not being unreasonable, but not being bullied away."

For a man who has been subjected to a great deal of vitriol, Mr. Thomas manifests remarkable serenity. He rejoices in life outside the Court, regaling us with stories about his travels throughout the U.S., his many encounters with ordinary Americans, and his love of sports -- especially the Cornhuskers, the Dallas Cowboys and Nascar.

Mr. Thomas isn't much bothered by his critics. "I can't answer the cynics and the negative people. I can't answer them because they can always be cynical about something."

Mr. Thomas speaks movingly about the Court as an institution, and about his colleagues, both past and present. He sees them all, despite their differences, as honorable, each possessing a distinctive voice, and trying to do right as they see it. Our job, he concludes, is "to do it right. It's no more than that. We can talk about methodology. It's merely a methodology. It's not a religion. It is in the approach to doing the job right. And at bottom what it comes to, is to choose to interpret this document as carefully and as accurately and as legitimately as I can, versus inflicting my personal opinion or imposing my personal opinion on the rest of the country."

And why doesn't he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court's early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. "This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."

Messrs. Rivkin and Casey served in the Justice Department under President George H.W. Bush.

Thursday, March 13, 2008

Justice Thomas Highway in Georgia

In Georgia news:
ATLANTA (AP) -- Here's how some legislation fared on "crossover" day at the Georgia state Capitol:

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The interchange of I-95 and I-16 would be named after Supreme Court Justice Clarence Thomas, under a measure that passed unanimously. Thomas is a native of Pin Point, near where the two highways meet.

Saturday, January 5, 2008

Justice Thomas Interview with EWTN

Raymond Arroyo of the Catholic channel EWTN interviewed Justice Clarence Thomas in mid-December on his program "The World Over." Audio of the program is available here, and you can download the entire file by clicking here. It's the Dec. 14, 2007 interview. This was tricky to find, however, because EWTN's website incorrectly states that Arroyo had interviewed a Father John Berg. That label is incorrect. It's an hour-long program; Justice Thomas's interview starts at about 9:22 and lasts the rest of the hour.

This website explains the mislabeling:
Many who watched "The World Over" on Friday, December 14th, expected to see the interview with Fr. Berg but were instead treated to a rare interview with Supreme Court Justice Clarence Thomas. The taped interview with Justice Thomas was quite extensive, and apparently a last-minute decision was made by EWTN to postpone the broadcast of the interview with Fr. Berg to a later time so that the whole interview with Clarence Thomas could be aired within one show.
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