Monday, July 13, 2009

Clarence Thomas: The Courage of His Convictions

Sorry for new posts for the past few weeks. Between work and a mini-vacation, I've been unable to post. With the Judge Sotomayor hearings beginning and the VA state campaigns in full swing, I'll be back on the saddle.

With this morning's start to the Sotomayor hearings, I wanted to post a fantastic article on Justice Thomas by Michael Barone from yesterday's Washington Examiner...

Clarence Thomas: The courage of his convictions
By Michael Barone, Senior Political Analyst

July 12, 2009

Justice Clarence Thomas has now served on the Supreme Court for 18 years, longer than most of the other 109 men and women who have sat on that high bench. Yet he remains an enigma to many. In the court’s open hearings he sits mute while most of his colleagues pepper counsel with questions. Yet he can be seen trading quips with his seatmate, Justice Stephen Breyer — a hint of the gregarious Clarence Thomas whose close friends describe him as a man with a wide-ranging intellect and gutsy sense of humor that takes flight in what they call “The Laugh.”

He is a man who says he does not read newspapers and seldom if ever watches newscasts. If true, it’s probably a good thing, because he has been the center of political controversy since his confirmation hearings in 1991 and the object of patronizing and dismissive commentary by many legal scholars. But though he was confirmed by the Senate by a slim 52-47 margin, he holds a lifetime appointment and has said that he intends to serve for 40 years — longer than any previous justice.

Thomas’s confirmation and role on the court are of special interest as the Senate Judiciary Committee begins its hearings tomorrow on the nomination of Judge Sonia Sotomayor to succeed the retired Justice David Souter. The vetting of Sotomayor promises to be a tame affair compared with the tumultuous and controversial grilling of Thomas in 1991, which he characterized as a “high-tech lynching.”

Sotomayor seems to share the views of Hispanic politicians and advocacy organizations and will face a committee controlled by the party of the president who nominated her. Thomas, by contrast, appeared before a hostile committee majority as a nominee who had disagreed with the views of most black politicians and civil rights organizations.

Thomas told the story of his life up to the time he took his seat on the court in his best-selling memoir “My Grandfather’s Son.” It’s a dramatic story, of growing up in the segregated Deep South, raised by a stern and hard-working grandfather (“the greatest man I have ever known”), of rebelling against him and rejecting his church (“I was an angry young black man”), of academic achievement and personal failings. At Yale Law School he took tax and corporation classes and did better than his detractors have suggested; tax law professor Boris Bittker every year set aside several anonymous exam bluebooks as examples of good work, and one year one of those bluebooks was Clarence Thomas’.

Most profiles of Thomas, and much of “My Grandfather’s Son,” concentrate on issues of race. The justice complains bitterly that he had few good job offers after graduating and that classmates and hiring partners assumed he must not be very smart. When he went to work for Missouri Attorney General John Danforth, he insisted on working on tax cases, but when Ronald Reagan appointed him head of the Equal Employment Opportunity Commission, he found himself in the center of controversy over race policy. His decision to emphasize individual cases rather than class actions and his speeches opposing racial quotas and preferences made him the target of traditional civil rights groups.

They tried to block his nomination to the Supreme Court and rallied to his former co-worker Anita Hill when she charged him with improper sexual advances. Ironically, it was EEOC Chairman Clarence Thomas who had persuaded Solicitor General Charles Fried to urge the Supreme Court to bar sexual harassment as a violation of Title VII of the Civil Rights Act.
All this is familiar stuff to those who remember the political controversies of the early 1990s or who have read “My Grandfather’s Son.” What is not so familiar is Thomas’ work as a judge — his majority opinions that determine what the law is, and his concurrences and dissents that have pointed the way to what the law may be in the future.

At first Thomas was dismissed as a clone of Justice Antonin Scalia. But today even liberal analysts of the court concede that he has set his own course. His opinions show an original and consistent approach to the law, and their distinctive prose — disciplined and graceful, but not flashy — indicates they are not the products of his law clerks but of the justice himself.
Two themes that run through his years on the court are illustrated by two of his opinions announced in the last full week of the court’s term last month. One of them was a dissent from the court’s 8-1 decision on the Voting Rights Act, Northwest Austin Municipal Utility District Number One v. Holder. The other was his opinion for the court in a 5-4 decision on maritime law, Atlantic Sounding Co. v. Townsend.

The first theme is that, as in Northwest Austin, Thomas has been willing to stand alone, or nearly alone, even against his natural allies. Chief Justice John Roberts’ opinion, with concurrences by seven other justices, raised serious doubts about the constitutionality of Section 5 of the Voting Rights Act, which requires Justice Department approval for changes in election laws in states that had low voter turnout in elections from 1964 to 1972. Thomas zeroed in on the issue the court sidestepped and argued that the law was unconstitutional. This was consistent with his view back in 1994 that almost all Voting Rights Act cases had been wrongly decided — and with his general willingness to overturn previous high court decisions he regards as wrong.

But it’s not fair to charge, as some critics have, that Thomas ignores past discrimination against blacks. His dissent paints a vivid picture of white Southerners’ “concerted acts of violence, terror and subterfuge to keep minorities from voting” from the 1870s to the 1960s, and endorses the court’s upholding the original provisions of the Voting Rights Act.

At the same time, he has objected to racial preferences in government contracting because they “stamp minorities with a badge of inferiority,” and in a 1995 case, he wrote, “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”

In the Atlantic Sounding case, he agreed with the four justices generally labeled liberal that an injured seaman may sue for punitive damages for “failure to pay maintenance and cure” — an admiralty law term. Thomas had similarly agreed with the liberals on the meaning of the Constitution’s ban on excessive fines. As in that earlier case, Thomas’ opinion went far back in history, citing English and American cases decided in 1676 and 1784 and interpreting the Jones Act of 1920.

Thomas’ willingness to write lonely opinions and to be guided by history has sometimes helped to change the law. For example, his 1997 concurring opinion setting out recent legal scholarship on the Second Amendment right to bear arms laid the groundwork for the court’s 2008 decision overturning the District of Columbia’s handgun ban. In setting his own course in case after case, Thomas has also done more than his detractors understand to change the course of the law.

The likely confirmation of Sotomayor and the possibility of future Obama appointments could change the balance on a court that has been closely divided on many major cases. But that seems unlikely to change the thrust of Thomas’ jurisprudence. He may write more dissenting opinions and fewer concurrences, but his insistence on going his own way may if anything become more pronounced. At the same time, his tendency to go back to first principles and to re-examine the origins of the law may prove, over time, persuasive and influential in ways surprising to both his critics and admirers — just as he has surprised both in his first 18 years on the court.

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