[Congressional Record Volume 145, Number 77 (Wednesday, May 26, 1999)]
[Senate]
[Pages S6084-S6085]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           JUSTICE CLARENCE THOMAS: A GENTLEMAN OF PRINCIPLE

 Mr. HELMS. Mr. President, Monday morning I was delighted--and 
highly gratified--to find that the national media are finally catching 
up to a fact that many of us have known all along: The Honorable Mr. 
Justice Clarence Thomas is one of the brightest, most principled, and 
intellectually engaging member of the United States Supreme Court in a 
generation.
  An article in Monday's The Washington Post headed ``After a Quiet 
Spell, Justice Finds Voice'' drew a profile of a Justice who refuses to 
subvert to his own personal views the plain meaning of statutes passed 
by Congress; a Justice who is committed to protecting our basic 
American political structure by respecting state sovereignty; and who 
exercises the patient to undertake the exhaustive historical research 
needed to ascertain the original intent of the Founding Fathers in 
framing our Constitution.
  Clearly, Mr. President, Mr. Justice Thomas is a remarkable American--
one who bears no resemblance to the often cruel and totally false 
caricatures his critics have attempted to create. I shall not catalogue 
or dwell upon the many injustices Mr. Justice Thomas has suffered at 
the hands of those who--for their own petty political purposes--have 
heaped abuse upon this fine man except to make this simple observation: 
Clarence Thomas has found the strength to serve his country and remain 
true to his principles in the face of viciously unfair personal 
criticism and his courage speaks volumes about the strength of his 
character.
  Mr. President, I ask that the article from The Washington Post be 
printed in the Record.
  The article follows:

                [From the Washington Post, May 24, 1999]

 After a Quite Spell, Justice Finds Voice--Conservative Thomas Emerges 
                       From the Shadow of Scalia

                           (By Joan Biskupic)

       He's been known by the company he's kept.
       For the past eight years, Supreme Court Justice Clarence 
     Thomas has walked in the shadow of Justice Antonin Scalia. 
     The pair have voted together more than any other two 
     justices, staking out the court's conservative flank but also 
     inspiring criticism that Thomas is simply a ``clone'' or 
     ``puppet'' of the forceful, fiery-tempered Scalia.
       But increasingly, Thomas has been breaking from Scalia, 
     taking pains to elaborate his own views and securing his 
     position as the most conservative justice on the court.
       So far this term, Thomas has more than doubled the number 
     of opinions he has written to explain his individual 
     rationale, compared with the two previous terms. And even 
     though the most controversial, divisive cases of the term are 
     yet to be announced, Thomas already has voted differently 
     from Scalia in several significant disputes, including last 
     week's case on welfare payments for residents new to a state 
     and an earlier case on how public schools must treat disabled 
     children. Through these and other opinions, a more complex 
     portrait is emerging of the court's second black justice, who 
     had been best known among the public for the sexual 
     harassment accusations made against him during his 1991 
     confirmation hearings.
       ``I think Thomas has turned out to be a much more 
     interesting justice than his critics and probably even his 
     supporters expected,'' said Cass R. Sunstein, a University of 
     Chicago law professor. ``He is the strongest originalist on 
     the court, more willing to go back to history and `first 
     principles' of the Constitution.''
       ``People in conservative legal circles are definitely 
     noticing that Thomas has found his voice,'' said Daniel E. 
     Troy, a District lawyer and protege of former conservative 
     judge Robert H. Bork. ``He is more willing to strike out on 
     his own.''
       This term offers new evidence of Thomas's independent 
     thinking. Of the 45 decisions handed down so far (31 still 
     remain), Thomas has differed from Scalia in the bottom-line 
     ruling of five, and in five other cases he has been on the 
     same side as Scalia but has offered a separate rationale. 
     It's a substantial departure from their previous pattern: 
     Since 1991, Thomas and Scalia have voted together about 90 
     percent of the time. As recently as two years ago, the two 
     voted together in all but one case.
       For years, the reputations and practices of the two men 
     have helped feed the widespread impression that Thomas was 
     content to follow Scalia's lead. Scalia, a former law 
     professor at the University of Chicago and a longtime judge, 
     was already known for his narrow textualist reading of the 
     Constitution and federal statutes when he joined the high 
     court in 1986. His creative, aggressive approach inspired an 
     admiring appeals court judge to call Scalia a ``giant 
     flywheel in the great judicial machine.''
       Thomas, meanwhile, had little reputation as a scholar when 
     he joined the court in 1991. He had worked in the federal 
     bureaucracy for nearly a decade, becoming prominent as 
     chairman of the Equal Employment Opportunity Commission. His 
     conservatism, which included opposition to affirmative action 
     programs, was viewed mostly in political terms.
       These impressions were reinforced by the two justices' 
     behavior at the high court. Scalia, the first Italian 
     American justice, is a stylist of the first order, with a 
     sharp, sardonic edge. Last year, for example, when he 
     rejected a legal standard used by the majority, he took a 
     page from Cole Porter, saying: ``Today's opinion resuscitates 
     the ne plus ultra, the Napoleon Brandy, the Mahatma Ghandi, 
     the Celophane of subjectivity, th' ol' shocks-the-conscience' 
     test. In another case, he said, ``I join the opinion of the 
     court except that portion which takes seriously, and thus 
     encourages in the future, an argument that should be laughed 
     out of court.''
       Thomas, by contrast, was quiet in his early years, rarely 
     speaking during oral arguments and writing few of his own 
     concurring or dissenting opinions. He let Scalia hold the 
     pen: Whatever their joint views, Scalia, 63, tended to 
     write them up. Thomas, 50, merely signed on. Legal 
     scholars on both the right and left publicly criticized 
     Thomas as a pawn.
       Now, however, Thomas is showing an increased willingness to 
     express himself, speaking before broader audiences and 
     writing more of his own opinions.
       Thomas and Scalia are still very like-minded justices. More 
     than the other conservative members of the Rehnquist Court,

[[Page S6085]]

     they believe the Constitution should be interpreted by 
     looking at its exact words and establishing the intentions of 
     the men who wrote it. They are unwilling to read into a 
     statute anything not explicitly stated. They want the 
     government--particularly the federal government--to get out 
     of people's lives.
       But Thomas is becoming the more consistent standard-bearer 
     of this brand of conservatism. He would go further than 
     Scalia in overturning past court rulings that he believes 
     conflict with the Constitution. And he is more likely than 
     Scalia to delve into legal history predating the writing of 
     the Constitution in 1787 and more inclined to reject recent 
     case law.
       In last week's welfare case, for example, Thomas began by 
     tracing a core constitutional provision from the 1606 Charter 
     of Virginia: ``Unlike the majority, I would look to history 
     to ascertain the original meaning of the Clause,'' he wrote. 
     While Scalia signed onto the majority opinion striking down 
     limited welfare benefits for residents newly arrived in a 
     state, Thomas and Chief Justice William H. Rehnquist 
     dissented. Thomas wrote that the majority was wrongly 
     interpreting the 14th Amendment's Privileges or Immunities 
     Clause, raising ``the specter that the . . . Clause will 
     become yet another convenient tool for inventing new rights, 
     limited solely by the predilections of those who happen at 
     the time to be members of this court.''
       Thomas has also distinguished himself from Scalia by 
     seeking more strongly to buttress state authority. He has 
     emphasized that the Constitution's authority flows from ``the 
     consent of the people of each individual state, not the 
     consent of the undifferentiated people of the nation as a 
     whole.''
       This accent on states' rights was evident in a case earlier 
     this term when only Thomas fully dissented from a voting 
     rights decision that he believed too broadly interpreted a 
     federal law targeting discrimination at the polls. ``The 
     section's interference with state sovereignty is quite 
     drastic,'' he complained.
       In another example of Thomas's narrower reading of federal 
     law, he and Scalia were on opposite sides when the court 
     interpreted a statute intended to guarantee equal educational 
     opportunities for disabled school-children. Scalia voted with 
     the majority in the March case to find that the federal 
     disabilities law requires public schools to provide a wide 
     variety of medical care for children with severe handicaps.
       Thomas dissented with Justice Anthony M. Kennedy. 
     ``Congress enacted [the law] to increase the educational 
     opportunities available to disabled children, not to provide 
     medical care for them,'' Thomas wrote. ``[W]e must . . . 
     avoid saddling the states with obligations that they did not 
     anticipate.''
       Because Scalia did not write separately in any of those 
     three recent cases--on welfare, voting rights and disabled 
     children--it is impossible to compare directly his thinking 
     with Thomas's. But differences between the two were visible 
     when they both dissented from an April ruling that said 
     defendants who plead guilty do not lose their right to remain 
     silent during a sentencing hearing and that judges cannot use 
     their silence against them. Scalia wrote the main opinion for 
     the four dissenting justices, attempting to discredit the 
     case law on which the majority relied. But Thomas also wrote 
     a separate opinion that went still further, suggesting that 
     an earlier case should be overturned altogether. The ``so-
     called penalty'' of having one's silence used adversely, 
     Thomas wrote, ``lacks any constitutional significance.''
       Some legal experts observe that Thomas's willingness to 
     give voice to his solitary views recalls Rehnquist's position 
     on the court in the 1970s and Scalia's in the late 1980s, 
     before Thomas came on. He's at a point, said Troy and other 
     observers, where he is comfortable enough to express his 
     singular views but not so frustrated with writing alone that 
     he is prepared to compromise.
       ``Thomas comes to it more as an outsider,'' said Alan 
     Meese, a William and Mary law professor, who has followed the 
     writings of Scalia and Thomas. ``He probably says when he 
     looks at [an earlier ruling], `My God, we said that? That's 
     loony.' ''

  Mr. HELMS. Mr. President, it is abundantly clear that more judges 
like Clarence Thomas on the Supreme Court * * *. As further proof, I 
offer the disastrous decision of the Supreme Court--from which Justice 
Thomas sensibly dissented--in the case of Davis v. Monroe County School 
Board. By a 5-4 margin, the Supreme Court held that public schools can 
be held liable under federal law for failing to stop so-called sexual 
harassment on the part of school children.
  Exactly what constitutes sexual harassment on the part of children is 
not defined by the Court, Mr. President. Moreover, what constitutes the 
vague ``deliberate indifference'' standard that public school 
administrators must now avoid is anyone's guess. The meaning will no 
doubt be haggled over in countless frivolous lawsuits in federal court 
that will impose unnecessary financial costs on beleaguered school 
districts.
  As the cacophony countless exhortations to spend ever-increasing 
amounts of money on federal education programs continue, Mr. President, 
should we not also address the financial problems federal laws cause to 
local school boards in our increasingly litigious society? For if more 
distinguished judges like Clarence Thomas are not present to rein in 
lawsuit-happy interest groups (e.g. the National Women's Law Center, 
which brought this case in the first place), we will find even the most 
trivial aspects of children's regrettable but predictable boorishness 
regulated by federal judges.
  Playground teasing and immature behavior does not require a federal 
lawsuit, Mr. President; it may require a good spanking. Unfortunately, 
we often find that reasonable discipline measures result in legal 
action as well. Pity the taxpayer who pays the bill, Mr. President--and 
pity the students and teachers who must navigate this baffling legal 
minefield.
  So thank Heaven for Clarence Thomas, who is doing his level best to 
hold the line against foolish decisions. We must hope the Senate will 
soon act to rectify the devastating financial effects frivolous 
lawsuits are imposing on school boards and local taxpayers across the 
country.

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