[Congressional Record Volume 157, Number 158 (Thursday, October 20, 2011)]
[Senate]
[Pages S6859-S6864]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUSTICE CLARENCE THOMAS
Mr. HATCH. Mr. President, 20 years ago this week Justice Clarence
Thomas took his seat on the Supreme Court of the United States. With
the expectation that these are only the first two of his decades on the
Court, I want to offer a few thoughts about Clarence Thomas, both as a
judge and as a person.
Clarence Thomas was born on June 23, 1948, in Pinpoint, GA. Poverty
and segregation contributed to how he understands the past, present,
and future of our country but, as he has often said, rising above and
growing beyond difficulties is more important than the difficulties
themselves. That is a powerful part of his life and the hope that his
life represents for us all. Helping him on that path were his maternal
grandparents, Myers and Christine Anderson, with whom he lived after
the age of 7 and whose influence shaped his character. Few books have
had a more poignant title than Justice Thomas' autobiography, My
Grandfather's Son, for that is exactly what he was then and remains
today.
Clarence Thomas was an honor student in high school and the first
person in his family to attend college. He graduated cum laude from
Holy Cross College with a degree in English literature and in 1974
received his law degree from Yale. After serving as Assistant Attorney
General of Missouri under then-Missouri Attorney General John Ashcroft
and a stint with the Monsanto Corporation, Thomas accompanied Senator
John Ashcroft here to this body as a legislative assistant specializing
in energy issues.
President Reagan appointed Clarence Thomas first to be an Assistant
Secretary of Education and then Chairman of the Equal Employment
Opportunity Commission. He remains the longest serving chairman in EEOC
history. After he left for the judiciary, EEOC employees used their own
personal funds to purchase a plaque for the lobby.
Here is what it said:
Clarence Thomas, Chairman of the U.S. Equal Employment
Opportunity Commission . . . is honored here by the
Commission and its employees, with this expression of our
respect and profound appreciation for his dedicated
leadership exemplified by his personal integrity and
unwavering commitments to freedom, justice, and equality of
opportunity, and to the highest standards of government.
President George H.W. Bush appointed him to the U.S. Court of Appeals
for the D.C. Circuit in 1990 and to the Supreme Court in 1991.
So much can be said about any life and career, let alone one that is
already so full and rich. Analysts and pundits, admirers and enemies,
lawyer or layman, nearly everyone has at least an impression of Justice
Thomas, and nearly as many have an opinion. The Internet and library
shelves are rapidly filling with commentary, analysis, biography, and
even psychoanalysis. I will not attempt to do anything so sweeping, but
simply offer a few observations about Clarence Thomas as a judge and as
a person.
Professor Gary McDowell wrote at the time of Justice Thomas'
appointment that the ``true bone of contention here is . . . the proper
role of the Court in American society, and the about the nature and
extent of judicial power under a written Constitution.'' That is the
bone of contention in every judicial confirmation because the debate
over judicial appointments is really a debate over judicial power.
In general, the judicial power provided by Article III of the
Constitution means that Federal judges interpret and apply written law
to decide cases. The main source of judicial appointment controversy is
about how judges should do the first of these tasks, how they should
interpret written law such as statutes and, especially, the
Constitution.
Legislatures choose the words of statutes, and the people choose the
words of the Constitution. Judges may not pick the words of our laws,
but they do have to figure out what those words mean so that they can
decide cases. The dispute over judicial appointments is over whether
the meaning of our laws comes from those who make our laws or from
judges who interpret them.
There are innumerable variations and applications of these two
general approaches. After all, we lawyers spend three or more grueling
years learning how to make words mean whatever we want, to split a
single legal hair at least six different ways, and to make the simple
masquerade as the profound. But at its core, the battle over judicial
appointments is about whether statutes mean what the legislature meant,
and whether the Constitution means what the people meant. The
alternative is an increasingly powerful judiciary, able to change our
laws by changing their meaning.
Justice Thomas refuses to go there. Shortly after he became an
appeals court judge in 1990, he was speaking to a friend and reflecting
on his new judicial role.
He had, as I described a minute ago, worked in the legislative and
executive branches and was actively involved in the process of
developing policy and making law. Now, he told his friend, ``whenever I
put on my robe I have to remind myself that I am only a judge.''
Only a judge. That statement almost does not compute in 21st century
America. Judges today are asked, and many gladly accept the invitation,
to solve our problems, heal our wounds, revise our values, reconfigure
our rights, and even restructure our economy. We have traveled far from
Alexander Hamilton calling the judiciary the weakest and least
dangerous branch to Charles Evans Hughes saying that the Constitution
is whatever the judges say it is.
That is the wrong direction for Justice Thomas. His view that he is
only a judge means that while judges alone may properly play the
judicial role, that judicial role is part of a larger system of
government, which operates within a much larger culture and society.
Liberty requires that government, including judges, stay within their
proper bounds and allow people to make their own decisions and live
their own lives. Justice Thomas' view that liberty requires limits on
government, including on the judiciary, parallels the very principles
on which our country was founded and which are necessary for us to
remain free.
But for him this is more than theoretical. James Madison had said
that if men were angels, no government would be necessary and if angels
governed men, no limits on government would be necessary. Justice
Thomas not only knows those as axioms, but literally as life lessons.
Growing up in poverty and segregation, he experienced the dark side of
human nature. Studying and working in government, he knows the damage
it can do when government exceeds its proper limits.
[[Page S6860]]
The Senate knew from the beginning what kind of Judge Clarence Thomas
would be. While still EEOC chairman, he had written about a judiciary
``active in defending the Constitution but judicious in its restraint
and moderation.'' At the Judiciary Committee hearing for his appeals
court appointment, he said unambiguously that the ultimate purpose of
both statutory construction and constitutional interpretation is to
determine what the authors of the law intended. And he would later
write in a concurring opinion on the Supreme Court: ``Though the
temptation may be great, we must not succumb. The Constitution is not a
license for federal judges to further social policy goals.''
In my opening statement at Justice Thomas' hearing, I said that ``I
am confident that Judge Thomas will interpret the law according to its
original meaning, rather than substitute his own policy preferences for
the law.'' That is the kind of judge America needs, and that is what
Justice Thomas has consistently been for the past two decades.
Those who opposed Justice Thomas' appointment, and who continue to
criticize his service, take the opposite view. They believe that the
Constitution is a license for Federal judges to further social policy
goals. When I look at the social policy goals these folks want to
further, I am not surprised. Their political agenda is, to put it
mildly, unpopular with the American people and, therefore, unsuccessful
in legislatures. The only way for them to win is to impose their agenda
through the courts and that requires judges willing to do the imposing.
Justice Thomas is not their kind of judge.
Those whose political fortunes depend on political judges went to
extraordinary lengths to keep Justice Thomas off the Supreme Court.
When their efforts failed, they have gone to great lengths to belittle
and smear his service on the Court. For years, they said that Justice
Thomas was simply parroting his fellow originalist, Justice Scalia,
since they vote the same way so often. As recounted in the book Supreme
Discomfort, Justice Scalia said that this criticism is nothing but a
slur on both him and Justice Thomas. He said: ``The myth's persistence
is either racist or it's political hatred.''
Liberals never even mentioned, let alone criticized, that Justice
Thurgood Marshall voted even more often with fellow activist Justice
William Brennan. Why the double standard? Because liberals like
activist judges such as Marshall and don't like restrained judges such
as Thomas. The real point, after all, is not that two Justices agree
but what they agree on.
Or some take pot shots at the fact that Justice Thomas asks few
questions in oral argument. Needless to say, if he did speak up more
often, these same folks would nit-pick what he said. Justice Thomas has
said that the purpose of oral argument is for him to listen to the
lawyers, not for the lawyers to listen to him.
Other critics just call him names. In 1992, the New York Times called
him the youngest, cruelest justice for his dissent in an Eighth
Amendment case. Fast forward to this year, with Slate writer Dahlia
Lithwick calling him cruel and saying that he wrote ``one of the
meanest Supreme Court decisions ever.'' Anyone who knows Justice Thomas
knows that he just does not care how papers or pundits feel about his
opinions. The way many of them report or comment on his work, it's
doubtful they even read his opinions.
No, Justice Thomas does not care how critics feel, he cares only
whether he gets each case right and applies the law impartially.
Justice Thomas believes that our system of government and our written
Constitution define his judicial role and that he has no authority to
do otherwise. He is both principled and independent.
These are not attacks on Clarence Thomas the man, or even on Clarence
Thomas the Justice. Many times, they are really attacks on the kind of
Justice that he represents. Many times, they are attacks on the idea
that the Constitution is fixed and sure rather than malleable, that the
Constitution belongs to the people rather than to judges, that the
Constitution trumps politics.
I believe today what I said in Justice Thomas' hearing, that these
opponents actually fear that he will in fact be faithful to the
Constitution and to federal laws as we enact them, rather than to their
political agenda. Frankly, I am pleased to say that he has confirmed
that fear because Justice Thomas has steadfastly kept the Constitution,
rather than any political agenda, as his guide. The truth is that he is
writing some of the most persuasive, profound, and powerful opinions on
the Supreme Court today.
As a Justice, Clarence Thomas has had a significant impact on our
country and on the law. As a person, Clarence Thomas has similarly had
a profound impact on people's lives. These certainly include the dozens
of women and men who have served as his law clerks through the years. I
invited some of them to write letters offering their own reflections
and I will ask unanimous consent that these letters be printed in the
Record following my remarks. I urge my colleagues to read them. Some of
them include erudite analysis of Justice Thomas' approach to judging.
You don't get to be a Supreme Court clerk, after all, without at least
the potential for erudition. But every one of them includes personal
anecdotes and memories about how Justice Thomas continues to impact
their lives.
Federal judges in general, and Supreme Court Justices in particular,
receive dozens and even hundreds of invitations to speak at events of
all kinds. Justices appear at grand podiums in the great halls of the
nation's most prestigious academic institutions. Justice Thomas,
however, is more likely to be found speaking at schools known little
beyond the communities they serve.
Or speaking to young people who are trying to get their lives back on
track. On June 17, 1997, Justice Thomas gave a most memorable
graduation address. The institution was Youth for Tomorrow, a
residential program for at-risk youth founded by former Washington
Redskins head coach Joe Gibbs. The website of this wonderful program
states its mission: to provide these young people the opportunity and
motivation to focus their lives and develop the confidence, skills,
intellectual ability, spiritual insight and moral integrity to become
responsible and productive members of society.
June is the busiest month of the Supreme Court's term, with Justices
and clerks working longer and longer days to complete opinions for the
term's hardest cases. This graduation was on a weekday, and Youth for
Tomorrow is located out in Prince William County. But none of that
mattered to Justice Thomas. On that day, just one young man received a
high school diploma.
That's right, Justice Thomas was the commencement speaker for a high
school class of one. When that young man says that Justice Thomas was
his high school graduation speaker, he really means it.
Justice Thomas applauded the decisions that the young men in the
Youth for Tomorrow program were now making. He was proud to come to
them as a speaker, he said, rather than to have them come before him as
a judge.
Let me close by returning to the words of that plaque placed by EEOC
employees.
Through turbulence and calm, highs and lows, controversy and
consensus, Justice Clarence Thomas continues to exemplify personal
integrity and unwavering commitment to freedom, justice, and equality
of opportunity, and to the highest standards of government. He may be
only a judge, but Justice Clarence Thomas is truly a force for good in
our country.
I now ask unanimous consent that the letters to which I referred be
printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
University of California, Berkeley, School of Law,
Berkeley, CA, October 6, 2011.
Hon. Orrin G. Hatch,
United States Senator,
U.S. Senate, Washington, DC.
Dear Senator Hatch: Thank you for your speech commemorating
the twentieth anniversary of the United States Senate's
confirmation of Clarence Thomas as an Associate Justice of
the United States Supreme Court. I am honored that you asked
me, a former clerk to Justice Thomas and former general
counsel to the Senate Judiciary Committee during your
chairmanship, to contribute this letter for the Congressional
Record. Without your irreplaceable leadership, Justice Thomas
could never have been
[[Page S6861]]
confirmed, so you have been responsible for the two most
important years of my career.
Historians will always record that Justice Thomas was the
second African-American to serve on the Supreme Court,
following the great Thurgood Marshall. But this symbolism is
of secondary importance. Justice Thomas's contribution to our
Supreme Court is his powerful intellect and his unique
commitment to the principle that the Constitution means what
the framers thought it meant.
This can make Justice Thomas unpredictable to those who
view Supreme Court decisions through a partisan lens. He
agrees, for example, that the use of thermal imaging
technology by police in the street to scan for marijuana in
homes violates the Constitution's ban on unreasonable
searches. He opposes the Court's effort to place caps on
punitive damages as a violation of our federal system of
government. He has voted to strike down literally thousands
of harsher criminal sentences because they were based on
facts found by judges rather than juries, as required by the
Bill of Rights. He supports the right of anonymous political
speech, and wants advertising and other commercial speech to
receive the same rights as political speech, because he
believes them protected by the First Amendment.
No one, of course, would deny that Justice Thomas has
strong conservative views on constitutional law. He rejects
much of affirmative action, believes Roe v. Wade was wrongly
decided, recognizes broad executive powers in wartime, and
allows religious groups more participation in public life.
But I have long thought that there is a deeper principle of
political philosophy at work in Justice Thomas's thought that
goes beyond the close interpretation of disparate
constitutional text. What he brings to the Court as no other
justice does is a characteristically American skepticism of
social engineering promoted by elites--whether in the media,
academia or well-heeled lobbies in Washington--and a respect
for individual self-reliance and individual choice. He writes
not to be praised by professors or pundits, but for the
American people.
As his memoir, My Grandfather's Son, shows, Justice
Thomas's views were forged in the crucible of a truly
authentic American story. This is a black man with a much
greater range of personal experience than most. A man like
this on the Court is the very definition of the healthy
diversity that our misguided affirmative action programs
seek. As a result, Justice Thomas opposes affirmative action
not just because it violates the guarantee of racial equality
in the Equal Protection Clause, but because it subordinates
individual energy, ambition, and talents to misinformed and
misguided social planning. In his dissent from the Court's
approval of the use of race in law-school admissions, he
quoted Frederick Douglass: ``If the negro cannot stand on his
own legs, let him fall also. All I ask is, give him a chance
to stand on his own legs! Let him alone!'' Justice Thomas
observed: ``Like Douglass, I believe blacks can achieve in
every avenue of American life without the meddling of
university administrators.''
In a 1995 race case, Justice Thomas explained why he
thought the government's use of race was wrong. Racial quotas
and preferences run directly against the promise of the
Declaration of Independence that all men are created equal.
Affirmative action is ``racial paternalism'' whose
``unintended consequences can be as poisonous and pernicious
as any other form of discrimination.'' Justice Thomas speaks
from personal knowledge: ``So-called `benign' discrimination
teaches many that because of chronic and apparently immutable
handicaps, minorities cannot compete with them without their
patronizing indulgence.'' He argued that ``these programs
stamp minorities with a badge of inferiority and may cause
them to develop dependencies or to adopt an attitude that
they are `entitled' to preferences.''
One of the most admirable traits that I have witnessed in
Justice Thomas is his focus on speaking honestly about his
views, rather than concerning himself with the politics of
winning votes on the Court. By foreswearing the role of
coalition builder or swing voter, Justice Thomas has used his
opinions to highlight how the latest social theories hurt
those they are said to help. Because he both respects
grassroots democracy and knows more about poverty than most
people do, he dissented vigorously to the Court's 1999
decision to strike down a local law prohibiting loitering in
an effort to reduce inner-city gang activity. ``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.''
Justice Thomas is an admirer of the work of Friedrich Hayek
and Milton Friedman, both classical liberals. His firsthand
experience of poverty, bad schools and crime has led him to
favor bottom-up, decentralized solutions for such problems.
He rejects, for example, the massive, judicially-run
desegregation decrees that have produced school busing and
judicially-imposed tax hikes. A student of a segregated
school himself, Justice Thomas declares that ``it never
ceases to amaze me that the courts are so willing to assume
that anything that is predominantly black must be inferior.''
To Justice Thomas, the national government's command-and-
control policies have failed to make the poorest any better
off. Rather, they have simply suppressed innovation in
solving the nation's problems. He believes that the
Constitution allows not just states and cities, but religious
groups, to experiment to provide better education. In a 2002
concurrence supporting the use of school vouchers, Justice
Thomas again quoted Frederick Douglass: Education ``means
emancipation. It means light and liberty. It means the
uplifting of the soul of man into the glorious light of
truth, the light by which men can only be made free.''
Justice Thomas followed with the sad truth: ``Today many of
our inner-city public schools deny emancipation to urban
minority students.''
``While the romanticized ideal of universal public
education resonates with the cognoscenti who oppose
vouchers,'' Justice Thomas wrote, ``poor urban families just
want the best education for their children, who will
certainly need it to function in our high-tech and advanced
society.''
These are not the words of an angry justice, or a political
justice, but of a human justice. Justice Thomas's personal
story shows him to be all too aware of the imperfections in
our society and mindful of the limits of the government's
ability to solve them. That kind of understanding and
humility, and personal courage in the face of incessant
unjustified attack, is what most Americans would want on
their Supreme Court. Read a Thomas opinion on a subject like
affirmative action, religion, crime, or free speech, and you
cannot miss its authentic voice, unmistakable in its clarity,
logic and moving language.
During the administration of George W. Bush, in which I
served, there was speculation that the President might
elevate Justice Thomas to the Chief Justiceship to replace
Chief Justice William H. Rehnquist. That position, of course,
went to Chief Justice John G. Roberts. In the end, I believe
that the President did Justice Thomas and the country an
unintentional favor. I believe he can do more good for the
country as an outspoken associate justice than he could as
Chief Justice. Because he is not the Chief Justice, Thomas
has more freedom to speak his mind--and he does so on a
regular basis. Clarence Thomas, growing up in the segregated
South, beating poverty and hardship to succeed in his
education and survive in the political shark pool of
Washington, brings a unique outsider's perspective to the
Court and the Constitution. Without the burden of the chief
justiceship, Thomas can pull aside the curtain of clever
legal and intellectual argumentation to reveal the stark and
real policy choices being imposed by the Court on the nation.
Thank you for commemorating the twentieth anniversary of
Justice Thomas's confirmation to the Supreme Court. I am
honored that you asked me to contribute a few thoughts on the
occasion, and I continue to feel myself lucky to have worked
for both you and Justice Thomas in the years since.
Best wishes,
John Yoo,
Professor of Law.
____
George Mason University
School of Law,
Arlington, VA, October 8, 2011.
Hon. Orrin G. Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: I write on the occasion of Justice
Clarence Thomas' twentieth anniversary on the Supreme Court.
It was my great privilege to serve as a law clerk to Justice
Thomas during the October Term 2001.
In the past two decades, Justice Thomas has blazed an
influential path, focusing on the text and history of the
Constitution and following these wherever they may lead. Many
perceived his potential from the beginning of his tenure, but
now even his critics and skeptics have acknowledged his
distinct and important impact on the Court.
Lawyers, friends, and students often ask what it was like
to clerk for Justice Thomas. In his commitment to hard work
and careful thinking, Justice Thomas taught his clerks many
lessons in the law. The Justice encouraged us to debate the
merits of each case, digging into the finer points of law and
its particular application to the facts before the Court. We
provided our best assessments to the Justice while he was
deliberating. But once he decided, the debate ended. Whatever
points of disagreement may have remained, a clerk could
proceed knowing that the decision was based on the Justice's
honest judgment. The integrity of this process, without
intellectual compromise or concern for newspaper editorials,
reflected Justice Thomas' unwavering commitment to the law
and to his oath to uphold the Constitution of the United
States.
Yet the clerkship was more than legal training. Justice
Thomas shared rich experiences from his own life. He spent a
great deal of time talking with us--about our professional
futures, our families, and, of course, sports. In the years
following my clerkship, Justice Thomas has remained a mentor
and inspiration, providing professional and personal advice
whenever needed. He has an excellent way of helping one see
what is important.
Justice Thomas' generosity of spirit extends beyond his
``clerk family.'' He regularly speaks to student groups and
takes time from his busy schedule to meet with young people.
I have seen how this inspires them. A few years ago, he
volunteered to speak to my constitutional law class. No topic
was out of bounds as students asked the Justice about his
judicial philosophy, the
[[Page S6862]]
role of the Supreme Court, the dynamics between the justices,
and his personal history. With good humor, Justice Thomas
stayed after class until every student who wanted a signature
or picture had a turn.
This was not an unusual event--but simply one example of
the Justice's graciousness and engagement in a wider public
dialogue. In this regard, he elevates the role of the Supreme
Court through his public appearances and meetings. Although
he does not seek commendation or attention from the usual
sources, Justice Thomas seeks to inspire others by example,
just as he recognizes the importance of those who inspired
him along the way. Those who have met him, even just in a
public lecture, know his intelligence, candor, and bellowing
laugh.
Justice Thomas' tremendous jurisprudential contribution can
be read in the decisions of the Court-- his influence
increasingly documented by academics and justly recognized by
lawyers and the public. In this short letter I have shared
some personal reflections on Justice Thomas because this
record is less public and often obscured. Justice Thomas
presents a rare example from public life that one's
intellectual and personal legacies need not be inversely
related.
I am grateful for your leadership in the confirmation of
Justice Clarence Thomas. Having served as counsel to the
Senate Judiciary Committee under your Chairmanship during the
year before my clerkship, I am especially honored to have the
opportunity to join you in commemorating Justice Thomas'
first twenty years on the Supreme Court.
Best regards,
Neomi Rao.
____
October 12, 2011.
Hon. Orrin G. Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: This past weekend, we watched on CSPAN
key excerpts from the October 1991 U.S. Senate Judiciary
Committee confirmation hearings for justice Clarence Thomas.
It made us recall the critical role that you played in those
hearings, methodically debunking the absurd accusations
raised by liberal left interest groups and Senate staffers
who would stop at nothing to bring down a black man who
strayed from the ideological plantation. As Justice Thomas
said presciently at the time, America herself was harmed by
those attacks far more than he was. Our great institutions of
government--the U.S. Senate and the Supreme Court--were
harmed. Sadly, those injuries perdure.
But we share your joy in celebrating this day in 2011, as
you mark on the Senate floor the happy occasion of Justice
Thomas's twentieth anniversary on the Supreme Court. As two
of his former law clerks, who knew him from the days even
before he was on the Court, we speak for all Americans who
love Justice Thomas, our country, and our Constitution when
we say ``thank you'' for what you did in 1991, for your
prominent role in averting the ``high-tech lynching'' in the
Judiciary Committee, and for marking this milestone today.
The passing of these 20 years has only confirmed what you
knew back then: that Justice Thomas is an extraordinary
American, one of the greatest of his generation--indeed, of
any generation, and as our friend Bill Bennett recently said,
``the greatest living American.'' He has taught us to
understand the Constitution, this great gift the Founders
gave us, in its fullness and integrity: for example, that
without proper respect for private property (what the
Founders called ``the pursuit of happiness'' in the
Declaration of Independence), there can be no real freedom;
that freedom and equality are really two sides of the same
coin; and that if we are to be a nation of laws and not of
men, judges must look not from the point of view of their own
race, sex, religion, or other personal characteristics in
deciding cases, but to the truth of the law and the rule of
law, which is for all persons, at all times.
Justice Thomas reminds us that interpreting the U.S.
Constitution is ``not a game of cute phrases and glib remarks
in important documents.'' It is, rather, ``a deadly serious
business.'' He approaches each case with no preconceptions,
only an honest and incisive intellect and a dogged commitment
to ``get the law right'' based on a clear understanding of
the Constitution and the principles it was created to
vindicate--preservation of life, liberty, and property--and
to the structural Constitution that created a system of self-
government for the first time in history based upon a clear-
eyed view of human nature. He treats the great gift given to
us, and to all civilization, by the Founders as it should be
treated: as a precious treasure, not something to be twisted,
played with, or destroyed.
And those of us who have been his employees and friends
have been doubly blessed by having a boss of intense personal
loyalty, who sees us all as family, who not only guides and
encourages us in our legal and other professional endeavors,
but is always there for us in our personal lives when we need
advice or support--through cancer diagnoses, the illnesses
and deaths of family members, the births and baptisms and
deaths of children, and all the other joys and tragedies of
life.
We look back on these 20 years with pride--but not
surprise--at what the Great Man has accomplished on the
highest Court in the land. It is now undeniable, even to the
liberal left and the mainstream media that Justice Thomas is,
in fact, a leader and a powerful intellectual force on the
U.S. Supreme Court. America has learned from the
investigative reporting and writing of Jan Crawford, in
Supreme Conflict: The Inside Story of the Struggle for
Control of the Supreme Court, that Justice Thomas was a
powerful, independent, and influential voice on the Court
from the very first day he walked through the door, shortly
after the 1991 confirmation hearings ended and he was seated
as the junior Justice on the Court.
We can't let the moment pass without also noting that
Justice Thomas, notwithstanding his greatness, has always
been a man of deep and sincere humility, as befits a servant
of the law. He continues to be strengthened by his favorite
prayer, the Litany of Humility, which asks Jesus to ``deliver
me . . . from the desire of being loved, extolled, honored,
praised, [and] approved,'' and ``from the fear of being
humiliated, despised, ridiculed, [and] wronged. . . . ''
May all of our great Country's public servants, and all of
us citizens, pray with him the same prayer. We join you today
in honoring and praising a truly great man.
Respectfully yours,
Laura A. Ingraham and
Wendy Stone Long.
____
The University of Georgia
School of Law,
August 31, 2011.
Sen. Orrin Hatch,
Hart Senate Office Building, Washington, DC.
Dear Senator Hatch: Thank you for honoring the twentieth
anniversary of Justice Clarence Thomas's confirmation to the
Supreme Court of the United States. I had the privilege of
serving as one of Justice Thomas's law clerks during October
Term 1998. I cannot possibly hope to distill into a single
letter the lessons, reflections and memories of that
remarkable year. Hopefully, though, this letter in some small
way may give you, your colleagues in the Senate and the
American public some sense of this remarkable man.
October Term 1998 was not, to borrow an unfortunate term
from the media, a ``blockbuster'' It did not produce a slew
of decisions whose holdings made headlines. Of course, this
is not to say that the cases were insignificant--they surely
were for the litigants before the Court, for the broader
constituencies affected by the Court's decisions and for the
country. Perhaps precisely for this reason, we digested a
lesson that Justice Thomas taught us early in the term--our
job was to help him decide cases and to serve the Court. We
should not worry about the political impact of a decision or
its media significance. Nonetheless, we had to understand
that, for the litigants, the case may well be the most
important matter in their lives. Our job was to ``call them
like we see them'', to master the facts of a case and to
examine the relevant legal authorities.
This workmanlike approach infused everything we did--from
drafting memos for the ``cert pool'' to preparing bench
memoranda. He taught us to leave no stone unturned and to run
down obscure but potentially important jurisdictional snags
in cases. Consequently, when the day of oral argument came
around, he was prepared for everything. Thus, it was
unsurprising when he did not ask a lot of questions--he
already knew the answers!
Justice Thomas also taught us not to be afraid of the
truth. It would have been unforgivable for any of us to shade
a fact or twist a precedent in support of some preordained
result. There were right answers, and there were wrong ones.
To be sure, there were hard cases, and sometimes the right
answers were difficult to discern or required, ultimately, a
judgment. That process of discernment, however, required hard
work--to dig into the history of a constitutional amendment,
to focus on the language of the laws enacted by Congress and
not to be afraid where that research led us. When we met with
him--either privately or as a ``chambers team''--we presented
the results of our work with directness, honesty and
forthrightness. The result of a working atmosphere was a work
product that everyone could understand and believe in because
no corners had been cut.
These were not the only lessons that Justice Thomas taught
us. He also taught us the importance of treating people with
respect. As his elbow clerks, we often had the privilege of
accompanying him places--whether morning mass, breakfast in
the Court cafeteria or sometimes lunch over at his old
stomping ground in the Senate. On these outings, it never
ceased to amaze me how many people the Justice knew. Not only
did he know their names, he also asked after their families;
he could recall the names of their spouses, the activities of
their children and the last joke that they told. This was
true whether the person addressed was a former Senate staffer
or a cafeteria worker. Think about how often each of us
passes one of the countless, hardworking individuals like a
janitor or security guard--men and women who work often
without recognition, acknowledgement or a word of thanks. How
many of your Senate colleagues could name the janitors who
sweep the floors, clean the bathrooms and, on a daily basis,
ensure that the appearance of the building reflects the
dignity of the institution? Without exception, I know Justice
Thomas could name them all those who serve in the Court,
those who serve in the Senate and countless others into whom
he has come into contact. The example he set for us was
powerful, and I am reminded of it on a regular basis when I
try
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to accord the same respect to every individual with whom I
come into contact, just as he did.
Finally, no letter praising Justice Thomas would be
complete without reference to his family, especially his wife
Virginia. As you undoubtedly know, she is a rock for him, and
their marriage is an incredibly strong, indeed inspiring,
one. I had the privilege firsthand of benefiting from Justice
Thomas's keen insight into the importance of a strong
marriage as I faced a difficult dilemma during the end of my
clerkship. My fiancee and I were due to be married after the
clerkship, and I had already accepted a job in the Criminal
Division of the Justice Department (fulfilling a lifelong
dream to serve as a federal prosecutor). I had also made a
``prenuptial'' promise to my fiancee (who was from Europe)
that if the opportunity ever came along to live and work in
her home country, I would do so. In March 1999, I received an
offer from a law firm in Europe and confronted a dilemma--
pursue my dream job or fulfill that prenuptial promise? After
stewing on the dilemma for several hours, I sheepishly
knocked on Justice Thomas's door and asked if we could have a
``throwdown'' (his term for a conversation where we could put
all our concerns about a matter on the table). He listened
patiently as I laid out my dilemma to him. At the end of my
monologue, he looked me directly in the eye. and uttered
words I will never forget: ``Bo, a man goes where his wife
will be happy. The Justice Department will always be there,
but if you break this promise, you may wake up one day and
find your wife is not.'' The moral certainty behind his
advice helped me make the right decision. I called the
Justice Department, withdrew my application (a decision that,
to the Department's credit, was graciously accepted) and
accepted the position in Europe. My wife and I recently
celebrated our tenth anniversary, and not a day goes by when
I do not reflect on (and sometimes share) Justice Thomas's
advice.
As I read over this letter, I realize it does not begin to
scratch the surface of all the memories, reflections and
impressions created both during my year of service with
Justice Thomas and in the intervening thirteen years (for the
relationship endures long after the clerkship ends). All I
can say is thank you--for your unflagging support of this
true patriot and to Justice Thomas for his willingness to
serve the country.
Sincerely,
Peter B. Rutledge,
Professor of Law.
____
University of Notre Dame,
The Law School,
Notre Dame, IN, October 13, 2011.
Hon. Orrin Hatch,
U.S. Senator, U.S. Senate, 104 Hart Office Building,
Washington, DC.
Dear Senator Hatch: I am writing on the occasion of the
twentieth anniversary of Justice Clarence Thomas's
confirmation to the United States Supreme Court. During the
Supreme Court's 1998-1999 term, I had the great privilege of
serving as Justice Thomas's law clerk. The experience was one
of the most important and formative of my life. During my
year in his chambers, Justice Thomas--whom I had long admired
as a jurist--became my mentor, teacher, and friend. He taught
me, as he teaches all of his clerks, to be a better lawyer--
the kind of lawyer who always honors the law by seeking and
applying the correct answer, even when the correct answer
does not comport with personal preferences. But even more
importantly, Justice Thomas taught me, as he teaches all of
his clerks, to be a better person--the kind of person who
chooses right over wrong, serves when called, and always
treats every individual, regardless of rank or station, as
their equal.
In the years since his confirmation, Justice Thomas's
critics have begun to give him his due as a jurist. Legal
academics and public intellectuals, many of whom disagree
virulently with his approach to the law, now grudgingly
acknowledge the intellectual weight of his opinions, the
consistency and clarity of his jurisprudential approach to
constitutional questions, the respect accorded to him by his
colleagues, and the increasing evidence of his intellectual
leadership on the Court. Most importantly, Justice Thomas's
opinions reflect an unwavering fidelity to the Constitution
as it was intended to be understood, a steadfast commitment
to religious liberty and free expression, and a firm
insistence that equality of opportunity is best promoted
(indeed must be promoted) by equal treatment under the law.
I know that law professors usually write tributes about
Justices as jurists, so I hope you will understand if I
depart from the mold and begin with a few words about the
Justice as a man. I do so in part because I am sure that
there will be no shortage of reflections about Justice Thomas
as a jurist in the days and years to come. But I also do so
because, during my year as his law clerk and in the years
since, I was, and have been, impressed and formed by Justice
Thomas's humanity, as much as (or more than) his judicial
philosophy or the careful crafting of his opinions.
As you undoubtedly remember, during his confirmation
hearings, then-Judge Thomas described watching, through his
chamber's window, as shackled prisoners were led into the
federal courthouse. ``I say to myself almost every day,'' he
introspectively reflected, ``But for the grace of God there
go I.'' In the intervening years, more than one commentator
has accused Justice Thomas of reneging on his implicit
promise--embedded in his self-identification with the
prisoners--to look out for the little guy. According to these
critics, Thomas has turned out to be anything but empathetic
to the plight of the downtrodden. This view--that Justice
Thomas exhibits a disregard, even contempt, for the
difficulties facing the least fortunate among us--pervades
the popular imagination. These criticisms reflect a profound
misunderstanding of Justice Thomas and his jurisprudence.
There is a reason why Justice Thomas, upon his nomination to
the Supreme Court, first thanked his grandparents and the
Franciscan nuns who educated him in Savannah's segregated
Catholic schools: He sincerely believed that they saved his
life. And one need only spend a day with Justice Thomas to
realize that he still believes that, but for their
intervention--or perhaps more accurately, but for God's
intervention through them--his life might well have taken a
very different path.
In his years on the Supreme Court, Justice Thomas's
generosity has become increasingly difficult to ignore. Even
his critics have begun to acknowledge publicly his personal
efforts to help ``the little guy''--from his decision to
raise his sister's grandson, to his practice of welcoming
groups of poor and predominantly minority school children to
the Court, to his record of mentoring young people, to his
involvement in a scholarship program that sends first-
generation professionals to New York University School of Law
on a race-blind basis. It was one of the great privileges of
serving as his law clerk to witness these efforts up close--
and to see that these public acts of generosity were coupled
with dozens more private acts of kindness, each as natural as
it was reflective of Justice Thomas's generosity and
character. A few examples: Justice Thomas not only knew every
member of the Supreme Court's staff by name, he also knew the
names of their spouses and many of their children. (I arrived
early one morning to find six custodians crowded into his
office teasing him about a Dallas Cowboy's loss.) Walking on
the hill one day, Justice Thomas stopped to talk to a
homeless man whom, he explained, he had known for years.
Another day, he stopped in front of the Hart Senate Office
Building to ask a police officer about his son, who had just
started college. When we asked how he knew that the officer's
son was entering college, he explained he remembered the
officer from his days as a staffer for Senator Danforth.
(Justice Thomas worked for Senator Danforth from 1970 until
1981; I clerked for him seventeen years later.)
Contrary to elite opinion, Justice Thomas's concern for the
metaphorical ``little guy'' is also reflected in his
jurisprudence. Critics often overlook this fact because his
views about how the law can properly help the poor, the
marginalized, and (perhaps especially) racial minorities are
profoundly contrarian, at least as measured against
prevailing elite sentiments. But properly understood--that
is, understood in the context of Thomas's history and
teleology--the evidence of his attentiveness to the underdog
is undeniable. Opinions reflecting Thomas's concern for ``the
little guy'' contain at least three overlapping themes. The
first is an unwavering respect for, and faith in, the
competence and ingenuity of all people, regardless of race or
station. Consider, for example, his scathing indictment of
the compulsory integration programs at issue in Missouri v.
Jenkins (1995):
``It never ceases to amaze me,'' he began, ``that the
courts are so willing to assume that anything predominantly
black must be inferior.'' The second theme is a distrust of
many social programs designed to ``help'' the disadvantaged,
which is frequently interpreted as reflecting either
callousness, naivete or both. But Justice Thomas is acutely
aware of historical lessons suggesting that government
actions ostensibly designed to help sometimes mask illicit
motives, and he is deeply suspicious of ``window dressing''
efforts that enable elites to avoid rolling up their sleeves
and engaging in the difficult task of equipping the
disadvantaged with the skills they need to succeed. As he
observed in Grutter v. Bollinger (2003), which upheld the
University of Michigan Law School's affirmative action
program, ``It must be remembered that the Law School's racial
discrimination does nothing for those too poor or uneducated
to participate in elite higher education and therefore
presents only an illusory solution to the challenges facing
our Nation.'' The third theme reflects, in my view, the
genuineness of Justice Thomas's ``window dressing'' concern.
Thomas is jealously protective of the kind of ``back-to-
basics'' efforts that he believes will actually help the
disadvantaged. His frustration with opponents of these
efforts is palpable, and reflected in several opinions that
warning that decisions invalidating such efforts will have
devastating consequences for our most vulnerable citizens.
For example, he began his concurrence in Zelman v. Simmons-
Harris (2002), which upheld a school choice program in
Cleveland, by quoting Frederick Douglass: ``[E]ducation . . .
means emancipation. It means light and liberty. It means the
uplifting of the soul of man into the glorious light of
truth, the light by which men can only be made free.'' He
continued, ``[M]any of our inner-city public schools deny
emancipation to urban minority students. . . . [S]chool
choice programs . . . provide the greatest educational
opportunities for . . . children in struggling communities.''
I do not make these observations to prove the wisdom of
Justice Thomas's views on the
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merits, but rather to respond to a particularly pernicious
and deeply misguided criticism of his life and his
jurisprudence. Nor should my reflections be interpreted as
evidence that he is, as some have claimed, a results-oriented
jurist. That Justice Thomas's expressed constitutional
commitments are both genuine and self-binding is, in my view,
established in an undeniable record of reaching conclusions
that run counter to his personal preferences. And, I think it
important to note, Justice Thomas himself has spoken on the
subject of how a judge best serves the ``little guy'' and
that is to maintain fidelity to the law. As Thomas once
explained, ``A judge must get the decision right because,
when all is said and done, the little guy, the average
person, the people of Pinpoint, the real people of America
will be affected not only by what we as judges do, but by the
way we do our jobs.'' And, in living out that aspiration,
every day, Justice Thomas has become a model jurist, worthy
of our commendations on this day.
Sincerely,
Nicole Garnett,
Professor of Law.
____________________