[Congressional Record Volume 157, Number 164 (Monday, October 31, 2011)]
[Senate]
[Pages S6913-S6914]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     20TH ANNIVERSARY OF THE APPOINTMENT OF JUSTICE CLARENCE THOMAS

  Mr. HATCH. Mr. President, on October 20, I paid tribute to the 20th 
anniversary of Justice Clarence Thomas' appointment to the Supreme 
Court. I entered into the Record following my remarks letters from 
several of his former clerks giving their own reflections. I ask 
unanimous consent to have printed in the Record today letters from 
three other clerks: John Eastman, Jeffrey Wall, and Chris Landau.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Chapman University,

                                     Orange, CA, October 12, 2011.
     Hon. Orrin G. Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: I was honored to serve as a law clerk 
     with Justice Clarence Thomas during the Supreme Court's 
     October 1996 Term. The Justice's mentorship, foresight, and 
     depth of understanding of the principles of the American 
     Founding ensured that my service with him would be one of the 
     highlights of my professional career, no matter where that 
     career would lead in the fullness of time. So I am 
     particularly grateful for the opportunity to provide a letter 
     for the Congressional Record commemorating the twentieth 
     anniversary of his confirmation and appointment as Associate 
     Justice of the Supreme Court of the United States.
       I also want to express my sincere thanks to you, for your 
     extraordinary efforts in advancing Justice Thomas's 
     confirmation in the U.S. Senate twenty years ago. What a 
     difference twenty years makes! Back then, even after the 
     scurrilous efforts to derail the confirmation failed, there 
     was a sustained effort to belittle the unbelievable 
     accomplishments of this truly great man. Instead of taking 
     American pride in the Justice's phenomenal rise from the 
     depths of poverty to one of the highest offices in the land, 
     a true Horatio Alger story if ever there was one, some of our 
     fellow citizens continued their efforts to discredit. Justice 
     Thomas was merely the ``puppet'' of Justice Antonin Scalia, 
     we were told, because the two voted together roughly ninety 
     percent of the time. (I never saw a similar claim that 
     Justice Ginsburg was merely the ``puppet'' of Justice Stevens 
     because of similarly high vote agreement, and I'm still 
     waiting for the ``puppet'' charge to be applied to Justice 
     Kagan, who this past year agreed with Justices Sotomayor and 
     Ginsburg 94% and 90% of the time, respectively). The New York 
     Times called him the ``cruelest'' Justice early in his tenure 
     on the bench because of an opinion he authored faithfully 
     adhering to the Constitution's text in a case involving an 
     assault on a prisoner. One federal appellate judge even went 
     so far as to claim that no Supreme Court decision decided by 
     a 5-4 vote with Justice Thomas in the majority should be 
     deemed binding precedent!
       And yet, despite all this, the Justice persevered, building 
     over the years such a coherent and profound body of law that 
     even some of his most vocal critics from the early years have 
     had to concede that they were wrong. This past summer, the 
     New Yorker Magazine acknowledged that in ``several of the 
     most important areas of constitutional law, Thomas has 
     emerged as an intellectual leader of the Supreme Court.'' His 
     concurring opinion in the 1997 decision of Printz v. United 
     States invited a long-overdue consideration of whether the 
     Second Amendment conferred ``a personal right to `keep and 
     bear arms,' '' an invitation that the Court accepted and 
     vindicated a decade later in the landmark case of Heller v. 
     District of Columbia. His concurring opinion in Simmons v. 
     Zelman-Harris, the 2002 Ohio school vouchers case, has 
     created a virtual cottage industry in legal scholarship 
     assessing his contention that the Establishment Clause was 
     primarily a federalism provision, and thereby not as 
     susceptible to being incorporated and made applicable to the 
     States via the Fourteenth Amendment as the other clauses of 
     the First Amendment, certainly without a more thorough 
     analysis than had previously been provided by the Court.
       But the Justice's most profound intellectual leadership on 
     the Court has involved his commitment to our nation's 
     founding principles. He has been at the forefront of the 
     effort to revive the idea that the federal government is one 
     of only limited, enumerated powers, and that it is the solemn 
     duty of the Court to serve as a check against a Congress bent 
     on ignoring the limits on its own power, in order to protect 
     the cause of liberty. Even more important than his dedication 
     to limited government, though, has been his devotion to the 
     natural rights political theory of the Founders on which the 
     idea of limited government is grounded, particularly as 
     espoused in the Declaration of Independence. The Justice has 
     famously disagreed with Justice Scalia about the role of the 
     Declaration in constitutional interpretation, finding that 
     the principles espoused there are not only relevant but 
     binding. In the 1995 case of Adarand Constructors, Inc. v. 
     Pena, for example, Justice Thomas objected to the federal 
     government's use of racial preferences in government 
     contracting, stating that there ``can be no doubt that the 
     paternalism that appears to lie at the heart of this program 
     is at war with the principle of inherent equality that 
     underlies and infuses our Constitution.'' The citation he 
     provided for that simple but important proposition--paragraph 
     two of the Declaration of Independence (``We hold these 
     truths to be self evident, that all men are created equal, 
     that they are endowed by their Creator with certain 
     unalienable Rights, that among these are Life, Liberty, and 
     the pursuit of Happiness'').
       When he nominated Justice Thomas to the Supreme Court, 
     President Bush asserted that he was the most qualified person 
     in the country for the job. Many disparaged the President's 
     statement at the time, as so patently false that even the 
     President himself could not possibly have believed it. 
     Instead, it was said, the President was merely claiming that 
     Thomas was the most qualified conservative African-American 
     with judicial experience who could be nominated to fill the 
     seat from which the first African-American to serve on the 
     high Court, Thurgood Marshall, had just retired. And in that 
     category of one, Thomas was the most qualified. Quite apart 
     from the fact that the very idea of race-based allotments of 
     seats on the Supreme Court runs counter to Justice Thomas's 
     deep devotion to a color-blind constitution, the derogatory 
     interpretation of the President's claim has, happily, been 
     thoroughly debunked by the Justice's own jurisprudence. At a 
     time when our understanding of the Law has been infected with 
     a morally relativistic legal positivism, Justice Thomas's 
     revival of the Declaration's recognition that there is a 
     higher law that governs the affairs of man, that our 
     inalienable rights to life, liberty, and the pursuit of 
     happiness come not from any government but by our Creator, 
     and that the sole legitimate purpose of government is to 
     secure those rights, has proved beyond measure that the 
     President was correct.
       And increasingly, the Court is following his lead. As the 
     New Yorker magazine recognized, ``the majority has followed 
     where Thomas has been leading for a decade or more. Rarely 
     has a Supreme Court Justice enjoyed such broad or significant 
     vindication.''
       The American founding was one of the great episodes in all 
     of human history. The United States of America became a 
     beacon of hope to the world, a shining city on a hill 
     lighting the path of freedom for all. We had lost that 
     wonderful legacy for a time, but we have begun to reclaim it, 
     in no small part because of the efforts of Justice Clarence 
     Thomas, of those who taught him, and of those who learned and 
     continue to learn from him. Please join me in thanking 
     Justice Thomas for his dedication to our nation's founding 
     principles, congratulating him on this 20-year milestone, and 
     wishing him Godspeed for the next twenty years as he 
     continues his efforts on and off the bench on behalf of the 
     principles of liberty.
           With utmost respect and admiration,

                                              John C. Eastman,

                                         Henry Salvatori Professor
                                       of Law & Community Service.

[[Page S6914]]

     
                                  ____
                                                 October 13, 2011.
     Hon. Orrin G. Hatch,
     U.S. Senate, Hart Office Building, Washington, DC.
       Dear Senator Hatch: Thank you for honoring Justice Thomas 
     on the twentieth anniversary of his confirmation to the 
     Supreme Court of the United States. Thank you also for 
     inviting me to offer my own thoughts on this important 
     anniversary.
       In their letters, many of my fellow law clerks to Justice 
     Thomas describe his contributions to the development of the 
     law. As they observe, he has articulated a clear, consistent 
     approach to judging that focuses on the text and history of 
     the Constitution and federal statutes. It would be a mistake 
     then to pigeonhole the Justice's views as either results-
     oriented or outdated. On the one hand, it would not explain 
     many of his opinions--for instance, his view that the Eighth 
     Amendment does not place limits on the amount of punitive 
     damages that plaintiffs may recover against defendants, or 
     his view that the Sixth Amendment places limits on the 
     government's ability to introduce evidence from absent 
     witnesses at criminal trials. On the other hand, it would not 
     explain the areas in which Justice Thomas's attention to 
     history has foreshadowed the later direction of the Court--
     for instance, his discussion of the Second Amendment in 
     Printz v. United States, eleven years before the Court 
     recognized an individual right to bear arms in District of 
     Columbia v. Heller. Justice Thomas's contributions to the law 
     have been principled and important, and their influence over 
     the past two decades merits serious consideration.
       I would like to focus, though, on something that receives 
     less public attention: his decency, both as a judge and as a 
     human being. Because Justice Thomas seldom asks questions at 
     oral argument, it would be easy to assume that he is a quiet, 
     reserved individual, detached from the life of the Court and 
     the lives of those around him. Nothing could be further from 
     the truth. Before the Supreme Court hears cases, it is common 
     for the Justices to discuss those cases with their law 
     clerks. I still remember the first of those conferences when 
     I clerked for Justice Thomas: it lasted nearly two days. He 
     discussed our views on the cases for hours--challenging us to 
     clarify our thoughts, defend our positions, and explain our 
     differences. In the end, of course, the Justice reached his 
     own views, but no litigant should ever walk away from the 
     Court thinking that his arguments fell on deaf ears. Indeed, 
     Justice Thomas's reluctance to participate in oral argument 
     is driven in large part by his desire to hear from the 
     advocates. Many of them have worked for years to bring the 
     country's most important cases before its highest Court, and 
     he believes that they should have the opportunity to be 
     heard. Whatever one thinks of that approach, it is'born of a 
     respect for other people and what matters to them.
       Our conferences and conversations with the Justice also 
     ranged far beyond the law. He wanted to get to know us as 
     people--to understand where we grew up, what we enjoy, and 
     what we hope for our futures. It is not an exaggeration to 
     say that Justice Thomas treats his clerks, his staff, and his 
     colleagues like a family. And like any family, he takes on 
     our cares and concerns, our highs and lows. Several years 
     ago, a member of my family was having an issue with her 
     health, and I happened to mention it in passing to the 
     Justice as something that had been weighing on my mind. The 
     next day, without any indication to me, the Justice contacted 
     her to see whether there was anything that he could do. 
     Perhaps the most remarkable thing is, that story will not 
     surprise anyone who knows him: all of us can recall a time 
     when he reached out to offer encouragement in an hour of 
     need. He does not provide that support publicly, where he 
     could receive recognition, which reminds me of Matthew's 
     admonition to give alms in private and not for the glory of 
     others. I suspect that if Justice Thomas ever reads this 
     letter, he will be upset with me for bringing his humanity 
     into the spotlight.
       Several years ago, Justice Thomas gave a talk to students 
     at the University of Alabama Law School. During the flight, 
     he struck up conversation with a lawyer returning home to 
     Birmingham. They talked about legal practice, their families, 
     and Alabama football--all without the attorney's having any 
     idea that he was conversing with a Supreme Court Justice. At 
     the law school, Justice Thomas spoke before a packed house of 
     hundreds of students, and afterward he stood for hours, 
     meeting and taking pictures with every last student who had 
     waited in line. At a similar visit to the University of 
     Tennessee, he literally closed down the law school, waiting 
     until everyone had left and then thanking the janitorial 
     staff who were cleaning up from the event. From a lawyer in 
     Birmingham, to students in Tuscaloosa, to employees in 
     Knoxville, there are countless people across America who can 
     testify to Justice Thomas's warmth and his deep, booming 
     laugh. Wherever he goes, he connects with strangers from all 
     walks of life, because he is sincerely interested in their 
     backgrounds and genuinely grateful for their contributions. 
     He reminds all of us that we are never too busy or important 
     to be considerate to others, and he deserves the highest of 
     compliments that I can pay to a fellow Georgian: he has never 
     forgotten who he is or where he came from.
       Finally, any recognition of Justice Thomas's time on the 
     Court would be incomplete without also recognizing his wife, 
     Mrs. Ginni Thomas. She has been there every step of the way, 
     sharing in the substantial burdens that serving as a Justice 
     can impose. Justice Thomas often says that he could not do 
     his job without her support, and I am sure that he would want 
     any commemoration of his service to extend to her as well. 
     Thank you for recognizing them on the twentieth anniversary 
     of Justice Thomas's confirmation to the Supreme Court.
           Sincerely,
                                                  Jeffrey B. Wall,
     Law Clerk to Justice Thomas, 2004-2005.
                                  ____



                                               Washington, DC,

                                                 October 17, 2011.
     Hon. Orrin G. Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch, Thank you so much for inviting me to 
     participate in your tribute to Justice Thomas on his 
     twentieth anniversary on the Supreme Court.
       Justice Thomas didn't want to be Justice Thomas. I know 
     this for a fact, because I was with him on June 27, 1991, 
     when he received word that Justice Thurgood Marshall had 
     announced his retirement and that the White House was calling 
     for an interview. Time stood still for a moment as then-Judge 
     Thomas absorbed this information and its obvious 
     implications. It wasn't a moment of excitement or 
     exhilaration; rather, he accepted a stack of pink phone slips 
     as if each one were an iron weight. He had just turned forty-
     three, and had been a judge on the D.C. Circuit for little 
     over a year.
       Ironically, one of the best qualifications for serving on 
     the Supreme Court may be the lack of a craving to do so. For 
     Justice Thomas, service on the Court is a job, not a calling. 
     He gets up in the morning, goes into the office, decides 
     cases, and then goes home again. He isn't impressed by 
     important people, and doesn't try to impress anyone. He 
     enjoys his job, but it doesn't define him.
       The job may come easier to him than to others because of 
     his firm views about the limited role of federal judges. He 
     doesn't believe it's his business to make tough policy 
     choices, but to enforce the policy choices made by others. 
     He's often voted for results that I'm quite sure he would 
     oppose as a legislator. His concern is deciding cases 
     correctly, not garnering either votes or accolades.
       I vividly recall a case argued during Justice Thomas' very 
     first sitting on the Supreme Court in November 1991. The 
     Justice returned to Chambers after Conference and sheepishly 
     admitted that he'd switched his intended vote because every 
     one of his colleagues had voted the other way. The next 
     morning, however, he summoned his law clerks into his office 
     to tell us that he'd had trouble sleeping because he still 
     couldn't justify that vote, and had just informed the Chief 
     Justice that he would try his hand at a dissent. That dissent 
     ultimately picked up a number of other votes, and the result 
     in the case nearly flipped. When a similar issue reached the 
     Court a few years later, Justice Thomas wrote the majority 
     opinion.
       I don't think that Justice Thomas has spent many sleepless 
     nights since then. He knows who he is as a person and a 
     judge, and is comfortable on both scores. His judicial voice 
     is confident, original, and compelling. There can be little 
     doubt that he has brought true diversity to the Supreme 
     Court.
       Finally, no tribute to Justice Thomas would be complete 
     without acknowledging his warm personality, perfectly 
     captured by his booming laugh. From a parochial perspective, 
     he takes a real interest in his law clerks, both before and 
     after the clerkship. He enjoys having lunch on a regular 
     basis with those of us who live in the Washington area, not 
     only so that he can keep up with us, but also so that we can 
     keep up with each other. And, through it all, he derives 
     great strength and comfort from his wife Ginni. Without her, 
     he never would have found his beloved Cornhuskers!
       I appreciate the opportunity to share these thoughts.
           Sincerely yours,
     Christopher Landau,
       Law clerk to Judge Thomas, D.C. Circuit, 1990,
       Law clerk to Justice Thomas, Supreme Court, 1991-92.

                          ____________________