[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

[[Page S6863]]

     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

[[Page S6864]]

     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.

                          ____________________