[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.

                          ____________________