[Congressional Record Volume 162, Number 144 (Thursday, September 22, 2016)]
[Senate]
[Pages S5977-S5981]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUSTICE CLARENCE THOMAS
Mr. HATCH. Mr. President, I rise today to celebrate an event that
both represents and helps preserve what is best about this great
country. I ask unanimous consent that I be permitted to finish these
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, 25 years ago next month, the Senate
confirmed, and President George H.W. Bush appointed, Clarence Thomas to
be an Associate Justice of the U.S. Supreme Court. To paraphrase John
F. Kennedy, I would like to note both what this country has done for
Justice Thomas and what Justice Thomas is doing for this country.
President Bush made the announcement of then-Judge Thomas's Supreme
Court nomination on July 1, 1991, at the Bush home in Maine. In his
brief remarks, Judge Thomas said: ``Only in America could this have
been possible.'' He was right. It would be difficult to find a more
powerful story about how far someone can go in this country.
Clarence Thomas was born on June 23, 1948, in a small wood-frame
house in the rural town of Pin Point, GA. Six people lived in that
house, which had no indoor plumbing.
Life in the world of Clarence's youth was fully segregated. In 1955,
the year after the Supreme Court ruled segregated education
unconstitutional, he and his brother moved in with his maternal
grandparents, Myers and Christine Anderson. Myers Anderson lacked the
outward material signs of success that many prize so highly today. He
grew up poor, without a father, and had only a third grade education.
Yet it was what he had, rather than what he lacked, that would make him
the most profound influence on his grandson, Clarence Thomas. Mr.
Anderson's strength of character, his principles and values, and his
example shaped the man whose memoir would later be titled, ``My
Grandfather's Son.''
Clarence's grandparents were honest, hardworking, and deeply
religious people. They taught decency and respect for others, insisting
that Clarence never refuse to do an errand for a neighbor. Mr. Anderson
wanted his grandson to be self-sufficient, able to stand on his own two
feet even in a hostile world where the odds seemed heavily stacked
against him.
The other powerful influences for young Clarence were the nuns who
taught him at St. Benedict's Grammar School. There, and at St.
Benedict's Catholic Church, Clarence learned that all people are
inherently equal, no matter what the law or society might say at a
particular time.
Clarence graduated from high school in 1967, the only Black student
in his class, and was the first person in his family to attend college.
After graduating from Yale Law School, Clarence went to work for
Missouri attorney general John Danforth--known as Jack Danforth by us--
arguing his first case before the Missouri Supreme Court just 3 days
after having been sworn in as a member of the Missouri Bar. He came to
Washington in 1979 to join then-Senator Danforth as a legislative
assistant.
Clarence Thomas was confirmed by the Senate for the first of five
times in 1981 as Assistant Secretary of Education for Civil Rights. I
think I was the chairman at that time. He would become the longest
serving chairman of the Equal Employment Opportunity Commission in
1982, a judge on the U.S. Court of Appeals for the D.C. Circuit in
1990, and a Supreme Court Justice in 1991 at the age of 43. America
gave him opportunities that do not exist anywhere else in the world.
Since this anniversary is about Justice Thomas's service on the
Supreme Court, let me turn from what America has done for him to what
he is doing for America. I have known Clarence for 35 years and chaired
or served on the committees that oversaw each of his appointments. His
impact on our Nation comes from his own strength of character fueling
his deep conviction about the principles of liberty and other great
principles as well.
I have already touched on some of the building blocks of Clarence's
character, including his grandfather's example of standing firm in his
beliefs. In one interview, Clarence said that his professional career
is a vindication of the way he was raised. He described that upbringing
in this way in a 1986 article:
But my training by the nuns and my grandparents paid off. I
decided then . . . that it was better to be respected than
liked.
At the time of Clarence's Supreme Court nomination, reporters noted
that he defied categorization and refused to uncritically accept
orthodoxy of any stripe. Even liberal columnists acknowledged the
nominee's intellectual independence was great. This strength of
character has not changed and makes it possible for Justice Thomas to
advance his deep conviction about the principles of liberty.
The first principle is the inherent equality of every human being. As
the Declaration of Independence states, government exists to secure the
inalienable rights of individuals. Justice
[[Page S5978]]
Thomas has called the Constitution ``a logical extension of [the
Declaration's] principles.''
The second principle of liberty that defines Justice Thomas's service
is the necessity of limits on government, including judges. In 1988,
while Chairman of the EEOC, he made an important presentation at the
Federalist Society's annual symposium. The related principles of
equality and God-given inalienable rights, he said, are ``the best
defense of limited government, of the separation of powers, and of the
judicial restraint that flows from the commitment to limited
government.''
Justice Thomas has said many times that he resists a single label or
category for his judicial philosophy or his understanding of the power
and role of judges in our system of government. In that 1988 speech,
however, he said that liberty and limited government are the foundation
for what he called ``a judiciary active in defending the Constitution,
but judicious in its restraint and moderation.'' This judiciary, he
explained, ``is the only alternative to the willfulness of both run-
amok majorities and run-amok judges.''
To put it simply, Justice Thomas draws a direct connection between
equality and God-given inalienable rights, limited government, and
liberty itself. This means that each branch of government, including
the judiciary, should be active but only within its proper bounds. A
judiciary consistent with liberty will be active in properly
interpreting and applying the Constitution and will be restrained in
declining to exercise power to manipulate or change the law.
In 1990, after being appointed to the U.S. court of appeals, Clarence
had lunch with a friend and reflected on his new judicial role. He
said: Every time I put on the robe, I have to remember that I am only a
judge. The only reason that sounds unusual today is that we live in an
era of run-amok judges engaging in what the late Justice Antonin Scalia
called power-judging.
Justice Thomas's statement would not, however, have sounded strange
to America's Founders. Alexander Hamilton, after all, wrote that
because the judiciary may exercise judgment but may not exercise will,
it is the weakest and least dangerous branch.
In 2008, two legal scholars wrote about Justice Thomas in the Wall
Street Journal. They quoted him describing his basic yet profound
judicial philosophy this way: ``It's not my Constitution to play around
with,'' he said. ``I just think that we should interpret the
Constitution as it's drafted, not as we would have drafted it.''
A properly active judiciary will interpret the Constitution as it is
already drafted, and a properly restrained judiciary will refuse to
interpret the Constitution the way judges would have drafted it. That
is what judges are supposed to do in our system of government. They are
supposed to interpret the Constitution as it was drafted. Judges must
take the law as they find it and apply it impartially to decide cases.
That is their job, their part of the system of government that supports
liberty and freedom.
This is the kind of Justice that we knew Clarence Thomas would be: A
Justice who knows both the purpose and the limits of the power the
Constitution gives him. This is also the reason that many fought so
hard against his appointment and continue to criticize his service. The
debate over Justice Thomas's Supreme Court nomination was a debate over
what kind of Justice should be appointed in America. His opponents and
critics want Justices who will interpret the Constitution as those
particular Justices would have drafted it. In other words, they want a
judiciary that is inconsistent with liberty, a judiciary that will
control the law rather than be controlled by the law. They are
concerned more about power than about liberty.
Thankfully, Justice Thomas is the kind of Justice that our liberty
requires, and defending liberty is what he is doing for America and for
each one of us. We have all passed by the National Archives building,
which sits on Constitution Avenue just a few blocks from here. One of
the statues in front bears the inscription, ``Eternal vigilance is the
price of liberty.'' Justice Thomas is paying that price of vigilance.
A Justice's clerks, in a unique and special way, become a family.
Justice Thomas's clerks have become partners in America's best law
firms and professors at her finest law schools, carrying with them the
principles and lessons he taught about how to protect liberty. As I did
5 years ago when celebrating Justice Thomas's 20th anniversary, I asked
some of his former clerks to send letters about the Justice.
Mr. President, I ask unanimous consent that these letters be printed
in the Record following my remarks.
The principles of liberty established by America's Founders are the
same principles to which Clarence Thomas is deeply committed. But it is
when those principles are fueled by personal character, integrity, and
brilliance that they become a powerful force that defines a nation and
helps chart its future.
On July 1, 1991, when President Bush announced that he was nominating
Clarence Thomas to the Supreme Court, Clarence said that his
grandparents, his mother, and the nuns who taught him ``were adamant
that I grow up and make something of myself.'' To my friend Clarence, I
have to say that not only did you exceed all of those expectations, but
your service, character, and example are helping to make something good
out of the rest of us.
Also, on a more personal note, the unexpected death of Justice Scalia
has been a profound loss in many ways, including for his friend and
colleague Clarence Thomas. On several different levels--personally,
philosophically, even spiritually--they were close--fellow travelers,
if you will. Justice Scalia's death is a great personal loss, but it
also created a void that I am confident Justice Thomas is already
filling in continuing to stand for the principles they mutually shared.
A few months ago, Justice Thomas was the commencement speaker at
Hillsdale College in Michigan. He cautioned that today there is more
emphasis on our rights and what we are owed than on our obligations and
what we can give. He asked this question: ``If we are not making
deposits to replenish our liberties, then who is?''
By his character and convictions, Clarence Thomas continues to make
those deposits and maintain the vigilance necessary to replenish and
protect our liberty. America gave him much, and he is returning even
more.
As a personal friend of most of the Justices, but especially Clarence
Thomas, he has far exceeded what many of us thought he would be able to
do on the Court. I thought that he would be great and that he would do
a great job as a Justice on the Supreme Court, but he has gone even
beyond my expectations. He is a great Justice. He is a person of great
quality, of great character, and great spirit. You cannot be around him
very long without laughing and enjoying life. You can't be around him
very long without knowing that this is one heck of a unique
individual--somebody who really deserves to be on the Supreme Court,
who has made a process of being a great Justice.
I am proud of him. I am proud of what he has been able to do. I am
proud of what he has become. I am proud of the growth that he
continually makes in life. I have always been proud of Clarence Thomas,
Justice of the U.S. Supreme Court.
I yield the floor.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Judicial Crisis Network,
Washington, DC, September 16, 2016.
Senator Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: This year we celebrate the twenty-fifth
anniversary of Supreme Court Justice Clarence Thomas's
confirmation. His significance on the Court has often been
underappreciated by commentators and politicians alike.
Justice Scalia's outspokenness and Thomas's silence at oral
arguments may have captured the fancy of reporters who favor
rhetorical flash over a quarter-century of studious opinions.
But as Thomas moves into the most senior position among the
Court's conservatives, his influence will soon become clearly
recognizable.
Thomas joined the Court after the 1991 October Term had
already begun. He had just spent the summer battling those
who would do anything to ensure that Justice Thurgood
Marshall could not be replaced by a conservative African-
American Justice.
He won those battles, but he had a new challenge waiting
for him at the Supreme Court. Whereas his new colleagues had
had months to prepare for the Term's cases, Thomas was
thrown, metaphorically speaking, into the deep end. Or, as
Thomas himself
[[Page S5979]]
would describe it later, he was building his wagon as he was
riding in it.
But despite that initial disadvantage, Thomas made clear to
his colleagues from his first week on the Court that he would
mount a serious challenge to the liberal status quo. In the
third case he heard, he shocked his colleagues by emerging as
the lone dissenter. After his powerful dissent was circulated
to the other justices, his position gained three additional
votes. It wasn't enough to change the outcome of that
particular case, but it made clear to the other justices that
a new wind was blowing from an unexpected direction.
Those outside the Courthouse's marble walls were only
rarely aware of Thomas's influence. For example, in one case
in which he and Scalia were the only two dissenters, many in
the press depicted Thomas as Scalia's puppet. When internal
records from the term were released decades later, however,
the truth became clear: Thomas started out as the lone
dissenter in that case, and it was Scalia who had moved to
join him As he had done before, time and again, Thomas was
blazing his own trail.
Thomas's life experiences--a childhood lived under state-
mandated racial segregation and a society that punished
federal judges who tried to enforce constitutional
requirements of race neutrality--undergird his commitment to
principled constitutionalism. He shares the Founders'
skepticism of untrammeled governmental power, as well as
their belief that the Constitution keeps government from
encroaching on our foundational liberties. And he recognizes
that making the right decisions in the face of harsh
criticism takes courage.
So last Term Justice Thomas penned several opinions
advancing a serious critique of the administrative state, the
growing army of unelected bureaucrats who increasingly write
laws that, at least under the Constitution, are the sole
responsibility of our elected representatives in Congress.
Even staunch originalists like Justice Scalia hadn't taken on
that behemoth.
He makes decisions based on legal principles, not politics.
That means that Thomas is just as willing to upholds laws he
may consider wrong and strike down those he may like, voting
to strike down even ``conservative'' federal laws such as
those regulating locally-grown and distributed marijuana. He
may like the policies behind those laws, but he doesn't think
the federal government has the constitutional power to pass
them in the first place.
He also refuses to invent new law to reach ``hard cases.''
As he sees it, judges shouldn't do damage control for
lawmakers who don't do a good job writing laws.
Nor is it his job to edit the Constitution to fit his own
views. He makes numerous ``liberal'' pro-defendant decisions
that are dictated by the constitutional right to a jury trial
or to confront one's accusers. It's not because he thinks
those criminals are innocent; it's because he takes seriously
his oath to uphold the Constitution.
I was privileged to clerk for Justice Thomas nine years
ago. While his judicial integrity and commitment to the
Constitution are truly remarkable, his clerks most admire his
personal integrity. His high standards helped us reach our
own potential and his continued mentorship and guidance have
truly made him a father figure to a growing clerk ``family''.
Through him we learned how to wear the mantle of authority
lightly, how to maintain humility and perspective in the face
of adulation, and even how to stay the course with fortitude
when faced with criticism and personal attack.
As the Court prepares to change with Scalia's successor, I
predict that the importance of Thomas's calls for a
courageous and principled constitutionalism will soon be
recognized much more widely. Many who overlooked or
downplayed the importance of his steady hand will soon begin
to realize how significant he has been all along.
Sincerely,
Carrie Severino,
Chief Counsel and Policy Director,
Judicial Crisis Network.
____
Washington, DC,
September 16, 2016.
Hon. Orrin Hatch,
Hart Senate Office Building,
Washington, DC.
Dear Senator Hatch: Twenty-five years ago, Justice Clarence
Thomas took his seat as an Associate Justice of the Supreme
Court of the United States. I had the privilege of serving as
one of Justice Thomas's first law clerks, during the Court's
October Term 1991.
By now, Justice Thomas's jurisprudence is apparent. He
favors text over policy, original meaning over evolving
standards, history over legislative history, rules over
standards, and getting it right over following precedent. He
understands that the Constitution limits the government in
order to secure individual liberty. He further understands
that maintaining our constitutional structure--including the
separation of powers and federalism--is critical to
preserving that liberty. He broadly enforces the
Constitution, but recognizes that it leaves ample room for
citizens to govern themselves through democratic processes.
In areas related to race, he worries about the laws of
unintended consequences, and his views are informed by his
own remarkable experiences growing up in the segregated
South.
Even as early as 1991, much of this was already becoming
apparent. During his very first sitting, he was the sole
dissenter in three different cases during the justices'
initial voting. (I can tell this story because all of the
pertinent information has already been disclosed.) Despite
being a brand-new, 43-year-old justice, he never flinched at
going it alone, and it never occurred to him to do anything
other than call the balls and strikes exactly as he saw them.
His positions in these three cases were eminently sensible:
(1) if a capital defendant puts on mitigating evidence of
good character, the prosecutor may respond with
countervailing evidence that the defendant belonged to a
white supremacist prison gang; (2) state tort law, rather
than the constitutional prohibition on cruel and unusual
punishment, governs the routine mistreatment of prisoners;
and (3) if a criminal defendant secures an acquittal on the
ground of insanity, he may be civilly confined for as long as
he remains dangerous. The first of these cases was ultimately
decided by an 8-1 margin, the second by 7-2, and the third by
5-4. In the second and third cases, Justice Scalia switched
his original vote from the majority to the dissent. So, while
outside observers were speculating that Justice Thomas seemed
to be reflexively following Justice Scalia, in significant
part it was Justice Scalia who was following Justice Thomas.
Another striking opinion from that year was Wright v. West.
On a superficial level, the case involved an unusually narrow
question about whether there was enough evidence to support a
particular criminal conviction. The lower court had said no,
and the Justices unanimously said yes. Rather than simply
reinstate the conviction, Justice Thomas wrote a long,
scholarly opinion explaining why it was wrong for a federal
court to review the conviction at all without giving respect
to the views of the state court in which the defendant had
been originally convicted. His ambitious opinion fractured
the Court into a 3-3-1-1-1 split. But, four years later,
Congress codified his view in the Antiterrorism and Effective
Death Penalty Act of 1996, thereby fundamentally changing the
law and practice of federal habeas corpus.
Then there was United States v. Fordice, which involved the
desegregation of public universities. The majority opinion,
which Justice Thomas joined, contained much lofty rhetoric
about the urgent need for desegregation. At the same time,
Justice Thomas worried about harming historically black
colleges, and he wrote separately to urge their preservation:
``It would be ironic, to say the least, if the institutions
that sustained blacks during segregation were themselves
destroyed in an effort to combat its vestiges.''
Since that year, Justice Thomas has staked out strikingly
original positions in a wide range of areas including the
Commerce Clause, the non-delegation doctrine, federal war
powers, deference to federal agencies, the Establishment
Clause, retroactivity, implied preemption, race neutrality,
and cross burning, to name only a few examples. With the loss
of Justice Scalia, he is the Court's only remaining
originalist. While his views have not always garnered a
majority, he has done more than any other Justice in the last
half-century to lay out what the words of the Constitution
meant to those who ratified it--and to show how far the
current Court has strayed from that original understanding.
The Court has been, and will be, greatly enriched by his
service.
Sincerely,
Gregory G. Katsas.
____
McLean, Virginia,
September 16, 2016.
Re Celebrating Justice Thomas's 25 Years of Service on the
Supreme Court
Hon. Orrin G. Hatch,
U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Senator Hatch: As a lawyer who had the great fortune
to serve as a law clerk to Justice Clarence Thomas during
October Term 1992 on the Supreme Court, and as an American
who cares deeply about the constitutional foundations of our
Republic, I write with pleasure and gratitude to commemorate
the first 25 years of Justice Thomas's tenure as an Associate
Justice. Through his dedicated and principled work on the
Court, through his humble jurisprudence and worldview as a
judge, and through his amazing personal story and lifetime of
experience and relationships, Justice Thomas has made a
singularly historic and positive contribution to the life of
our Nation and to the legacy of the Court.
Before offering my perspective on the lasting impact of
Justice Thomas's first 25 years of service, let me say a word
of tribute to the President who nominated him to the Court.
The selection of Clarence Thomas to serve as Associate
Justice on the Supreme Court of the United States was one of
the most consequential, world-improving decisions made by
President George H.W. Bush during his term of office. I
believe all Americans, of all backgrounds and all political
persuasions, have benefited (probably far more than they
realize) from the fact that Justice Thomas has occupied one
of the nine seats on the Court's bench since 1991.
I also want to express my deep personal thanks to you,
Senator Hatch, for the pivotal role you played in securing
the confirmation of Justice Thomas in 1991. As a leader on
the Judiciary Committee, you were the essential, stalwart
champion in support of the nomination. I trust you take
enormous pride in the legacy of Justice Thomas's
[[Page S5980]]
service on the Court and the gift to our country that you
helped to bring about.
The Most Personable and Authentic Justice
After emerging from the searing cauldron of his
confirmation hearings, Justice Thomas was often portrayed in
the press as a wounded and brooding figure, quietly stewing
in anger in the inner chambers of the Supreme Court Building.
Certainly anger would have been a natural and justifiable
emotion for someone who suffered through a nationally
televised inquisition and whose home had been picketed by
activists who called him many things, including
(astoundingly) ``inauthentic.'' The truth, however, is that
this portrayal of the smoldering, angry, reclusive Justice is
the absolute opposite of reality.
I would venture to say that few Justices in history have
been more personable, accessible, and, yes, authentic. He is
a good man, a warm and caring man, a Justice who takes the
time and personal attention to become a real friend to
everyone who works with him in the Supreme Court family. He
is utterly open and candid with his life experiences.
And what experiences they have been! From the abject
poverty and racial suppression of Pin Point, Georgia; to the
up-by-the-bootstraps discipline of life with his self-
sufficient grandfather, Myers Anderson; to the unwavering
kindness and motivating strictness of the nuns of St.
Benedict the Moor Grammar School; to the challenge of forging
his own career path at Holy Cross, at Yale Law School, in the
private sector, and with John Danforth; and finally to the
Education Department and EEOC of the Reagan Administration
before his appointment as a judge on the court of appeals.
Few of us can imagine what it took for him to navigate that
extraordinary upward journey. But the meaning and value of
those life experiences shine through in his smile, his warm
hugs for friends in need, and his deep and generous laugh.
And, of course, they animate his loving marriage with Ginni.
Justice Thomas's life experiences also shine through in the
way he opens his Chambers and his heart to all manner of
school groups and other visitors eager to meet him and share
in his life story. He may have set a record for the number of
visitors to the Court, and these guests come to meet with him
from all walks of life and from every corner of the United
States.
More than that, his life and personality come through in
the way he approaches the drafting of Supreme Court opinions.
From his first Term on the Court, and consistently today as a
veteran Justice, he takes care to ensure that his opinions
are written for the everyday American, so that the average
person can understand the issues at play and the force and
track of his reasoning. That has always been a top priority
and objective in every case he handles.
For me as his former law clerk, his example was and remains
a true lesson in humility--a lesson in how all of us who
appear in the federal courts, whether as advocate or judge,
should approach our roles humbly. Justice Thomas's humility
comes from the recognition that to participate in the law is
to uphold a sacred trust, because our legal system is an
essential part of the American experiment in self-government.
And the Supreme Court, as the paramount court in the United
States, is the most important guardian of that trust.
Defender of Freedom and Equal Justice under Law
True to this sacred trust, Justice Thomas brings an
unwavering vigilance to the work of the Court. For him, every
time the Court resolves a case, including in the way the
Justices reason through the issues, the Court affects the
freedom and individual liberty of all Americans. In
approaching his role on the Court, even in cases involving
technical questions of statutory interpretation, just as in
the most momentous decisions of constitutional law, Justice
Thomas maintains a constant mindfulness that the Court can
and should contribute to the preservation of freedom and
to the promotion of equal justice for all Americans.
He is steadfastly attentive to the proper limits of the
Court's role as an interpreter of the law, rather than a
creator of new legal norms, and to the opportunities the
Court has to decide cases in ways that will preserve and
vindicate the Founders' original understanding of our
constitutional system and the true nature of the rights
protected by the Constitution. He knows that remaining true
to the originating vision of the Founders is the surest
guarantee of liberty.
I am not revealing some secret or nonpublic information.
This vigilance is manifest in the words and structure of each
opinion he authors, whether speaking for a majority of the
Court or in a separate concurrence or dissent.
Many of his influential opinions are directed at the
judicial function itself. Federal judges are not elected, and
once they are confirmed to lifetime appointments, they are
not accountable to the people. That means that the most basic
freedom of a self-governing people to make policy choices
through their elected representatives and to redirect the
agenda of government at all levels according to the changing
priorities of the popular will depends critically upon the
discipline and consistency with which the judiciary honors
its institutional limits.
Thus, Justice Thomas has defended the political freedom of
the people by urging the courts to stick to clear, simple,
and consistent principles of decision and to avoid using
malleable balancing tests and multi-factor standards that
allow judges to supersede the will of the legislators with
their own preferred policy outcomes. His concurring opinion
in Holder v. Hall (1994), construing section 2 of the Voting
Rights Act, is a model of such defense: ``I can no longer
adhere to a reading of the Act that does not comport with the
terms of the statute and that has produced such a disastrous
misadventure in judicial policymaking.''
Knowing that the Constitution, not the niceties of stare
decisis, is the true bastion of the people's liberty, Justice
Thomas has often been the lone voice urging the Court to
return to the foundational understanding of the
Constitution's great clauses and to cast aside decades of
misguided judicial gloss. He is the only Justice on the
current Court calling for a complete course correction back
to the original meaning of the Commerce Clause, which has
become, as reinterpreted by the Court, the prime springboard
for the runaway growth of the federal government. In voting
with the Court to protect an individual's right to keep and
bear arms against abridgment by a municipal government in
McDonald v. City of Chicago (2010), he was also the only
Justice who actively urged the restoration of the Privileges
or Immunities Clause of the Fourteenth Amendment to its
rightful place as the surest bulwark against the suppression
of fundamental liberties by the States.
Justice Thomas's allegiance to the text and original
meaning of the Constitution has often led him to assert
broader, bolder, and less compromising protection for the
guarantees enshrined in the Bill of Rights. He has been among
the staunchest upholders of the First Amendment on the Court
and has consistently urged full protection for commercial
speech, free from judge-made balancing tests. And he has
joined Justice Scalia and others to reestablish the force and
imperative of the Confrontation Clause as a fundamental
protection for criminal defendants.
With similar boldness, Justice Thomas has refused to
compromise in pursuing the goal of equal treatment under the
law for all Americans. He knows well that despite the best of
intentions, government only exacerbates prejudice and
inequality when it persists in granting preferences or
imposing disadvantages on the basis of race. And he believes
that such programs are inconsistent with the colorblind
commands of the Fourteenth Amendment.
As he wrote in his concurrence in Adarand Constructors v.
Pena (1995), ``Purchased at the price of immeasurable human
suffering, the equal protection principle reflects our
Nation's understanding that such classifications ultimately
have a destructive impact on the individual and our
society.'' In his understanding of the Constitution, ``there
can be no doubt that racial paternalism and its unintended
consequences can be as poisonous and pernicious as any other
form of discrimination,'' since it ``teaches many that
because of chronic and apparently immutable handicaps,
minorities cannot compete with them without their patronizing
indulgence. Inevitably, such programs engender attitudes of
superiority or, alternatively, provoke resentment among those
who believe that they have been wronged by the government's
use of race.''
The Most Courageous Justice
Justice Thomas's plea for a colorblind Constitution is just
one example of what may be his most distinguishing quality as
a judge: the courage of his conviction.
He showed that courage from his first days on the Court
when he wrote fearless opinions as the lone dissenter on hot-
button issues, like the application of the Eighth Amendment
to the treatment of prisoners in state institutions in Hudson
v. McMillian (1992). When, in reaction, the New York Times
reflexively labeled him the ``cruelest Justice,'' many of us
knew that he was actually the most courageous.
This flame of courage has continued to burn steadily over
the past 25 years.
It was burning bright in Graham v. Collins in 1993 when he
concluded that the ``mitigating circumstances'' prong of the
Court's death penalty jurisprudence invited capital juries to
engage in the same unbounded and potentially irrational and
discriminatory sentencing judgments that the Court first
condemned in Furman v. Georgia (1972):
``Any determination that death is or is not the fitting
punishment for a particular crime will necessarily be a moral
one, whether made by a jury, a judge, or a legislature. But
beware the word `moral' when used in an opinion of this
Court. This word is a vessel of nearly infinite capacity--
just as it may allow the sentencer to express benevolence, it
may allow him to cloak latent animus. A judgment that some
will consider a `moral response' may secretly be based on
caprice or even outright prejudice. When our review of death
penalty procedures turns on whether jurors can give `full
mitigating effect' to the defendant's background and
character, and on whether juries are free to disregard the
State's chosen sentencing criteria and return a verdict that
a majority of this Court will label `moral,' we have thrown
open the back door to arbitrary and irrational sentencing.''
His courage was also on display in Elk Grove Unified School
District v. Newdow in 2004, where Justice Thomas had the
temerity to suggest that the Establishment Clause may not
protect an individual right and may not be incorporated fully
against the States through the Fourteenth Amendment--a
proposition often raised by respected law
[[Page S5981]]
professors but shunned as anathema by the modern Court.
And this courage flamed again in 2009 in Northwest Austin
Municipal Utility District Number One v. Holder when Justice
Thomas was the first Member of the Court to reach the
conclusion that section 5 of the Voting Rights Act is no
longer constitutionally sustainable as a countermeasure for a
historical pattern of voter discrimination and
disenfranchisement in the covered States.
Many of us (including me) will not agree with every
position Justice Thomas has espoused in his opinions. But all
of us, I believe, should recognize and respect the conviction
with which he approaches his duties on the Court and the
boldness and courage he has consistently exhibited in voicing
his convictions.
We live in times today when the courage of conviction is in
short supply among our leaders but is most needed by our
Nation. We are therefore blessed, indeed, that courage and
conviction have full expression on the Supreme Court of the
United States through the voice of Justice Thomas.
Thank you, Senator Hatch, for giving me the opportunity to
share my thoughts on the important contributions of Justice
Thomas to our Nation and to the Supreme Court on the historic
25th anniversary of his appointment as Associate Justice.
Respectfully submitted,
Steven Gill Bradbury.
The PRESIDING OFFICER. The Senator from Louisiana.
____________________