[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.
____________________