how Thomas got on the Court

[Larry Tribe]

For whatever it's worth, and without meaning to suggest anything at all
about the reasons for the selection of Clarence Thomas for the Court, I have
to concede that I have come to regard Justice Thomas's opinions, with many
of which I strongly disagree, as among the best crafted and most thoughtful,
and occasionally thought-provoking, on the Court -- particularly on the
occasions when he parts company with Justice Scalia, whose opinions I also
tend to admire greatly even when I could hardly disagree more with them, and
sometimes even when I find their tone and flavor distasteful.

Some people to whom I've said this leap to the conclusion that, insofar as
Justice Thomas's opinions are probing and scholarly and at times eloquent,
"surely" the explanation must be that he lets his law clerks do all the
writing. It's hard to know whether people are quicker to say that of this
Justice than they were of Justice Brennan, to pick one of my own heroes
(with whom I also didn't always agree, though I agreed with him vastly more
often than I agree with Thomas) because of the Justice's race, or because of
his background, because of his ideology ("right-wingers couldn't possibly be
smart enough to write x or y or z ..."), or because of assumptions relating
to the supposed mode of his selection, but it doesn't require much thought
to dispose of most of those ostensible justifications for the typical Thomas
put-down. There was nothing especially noble about the way President
Eisenhower chose Justice Brennan either, and if anyone imagines that only
those sharing his or her substantive outlook could possibly be bright enough
to write great opinions, then the person doing the imagining isn't as smart
as he or she thinks he or she is. Besides, whoever suspects that "Justice X
couldn't have written that opinion, his law clerk C must've written it," has
to take into account that X selected C, that C's substantive views may well
align closely with those of X, and that X had at least a veto over what left
X's chambers under X's name. Then there's the stuff about how Justice Thomas
couldn't be writing all those impressive opinions because, after all, he
almost never says a word on the bench. Again, a stupid non sequitur. For
instance, Justices Brennan and Blackmun, both of whom many of us know first
hand wrote a good bit of what went out over their signatures, sometimes went
months without uttering a word or asking a question from the bench.

I hope members of this list will forgive the rant, but with every passing
Term, I grow increasingly mystified by the degree to which some people whom
I otherwise like and indeed respect are prepared to dismiss Justice Thomas's
work (and, in some instances, also the work of Justices O'Connor and
Kennedy) pretty much out of hand, treating him (and sometimes them) as putty
in the hands of clever and well-spoken law clerks when we owe it not only to
him (and to the two of them) but to ourselves and to our students to take
their work seriously, on its own terms, and not to regard it dismissively,
even if only implicitly and without clear articulation.

-- Larry Tribe

-----Original Message-----
From: Tom West [mailto:tomwest at ACAD.UDALLAS.EDU]
Sent: Friday, August 04, 2000 4:23 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: how Thomas got on the Court


A couple of people on this list have suggested that
Clarence Thomas was put on the Supreme Court primarily
because of his race. E.g., Sandy Levinson asks, "Does
anyone seriously believe that . . . Clarence Thomas was the
best candidate for the Court? . . . it is inconceivable that . . .
Clarence Thomas would have been nominated had he been
white."

It never ceases to amaze me how quickly people are ready to
jump to this conclusion about Thomas. Why do we hear so
little about the minimal qualifications of Souter, Breyer, and
Ginsburg? Are they so much superior to Thomas in their
understanding of the Constitution and the laws?

More to the point, the opinions of Thomas that I have read
seem more intellectually serious than most of what has come
out of the Court in years. His Lopez opinion on the
commerce clause, Missouri v Jenkins II on equity, etc.--
these are truly impressive examples of originalist
jurisprudence.

As to the question of how Thomas got appointed, I have
been told a different story from what Sandy Levinson seems
to think. I tell it from memory, so some details may be wrong.
But I am confident that the gist is true. Perhaps someone on
this list can correct me where I am wrong.

The story starts in a Senate hearing on the EEOC, in which
Senator Metzenbaum attacked Thomas for his supposed lax
enforcement of civil rights laws. Thomas responded (I
paraphrase): "At least we at the EEOC acknowledge that we
are obliged to enforce the laws. In fact I am doing just that.
But you in Congress don't even bother to pretend to obey
many of our laws. You exempt yourselves from the civil
rights laws and many others."

Thomas's counterattack on what was at that time (late 80s) a
very aggressive Democratic Congress got a lot of press.
The Washington Post ran a series on the laws that
Congress exempted itself from, including OSHA. The Post
reported that Congress was were paying workers less than
minimum wage to work in unventilated rooms in the printing
area. Congress came out looking pretty bad.

Thomas went on to make some related speeches on
Congressional misbehavior, discussing topics like
separation of powers, the rule of law, Congress involving
itself in the administrative process, etc.

One of the people who read about Thomas's views on
Congress and the separation of powers, and the media
follow-up, was Boyden Gray, Pres. Bush's legal counsel.
Gray told Bush what Thomas was saying, and Bush, I am
told, was impressed.

Gray probably suggested to Bush that he put Thomas on
the Supreme Court--not because he is black, but because he
was one of the few in D.C. who seemed to be interested in,
and knowledgeable about, constitutionalism in the broad
sense of an institutional arrangement set up by the founders
to secure liberty. (Lots of D.C. conservatives are interested
in "constitutional law,"which is not the same thing.)

When Bush offered Thomas the the DC Circuit
appointment, Thomas was reluctant to accept. He was
thinking about running for public office or doing something
else. He told Bush he wasn't interested in being a lifetime
circuit court judge. But Bush told Thomas that he wanted to
put him on the Supreme Court, so Thomas accepted.

When the Souter seat came open, Bush wanted to nominate
Thomas. At that time Thurgood Marshall was still on the
Court, so it wasn't about a "black seat." Sununu, Bush's
chief of staff, and Rudman of NH, talked Bush out of it. He
convinced Bush to choose New Hampshirite Souter, the
famous "stealth candidate" who turned out to be a stealth
weapon of the liberals, instead of Thomas.

When the next vacancy occurred, Bush again wanted to
appoint Thomas, who had been his first choice all along.
Once again, some of his advisors argued against it, this time
on the ground that since it was Marshall's seat, Bush
should appoint a white to avoid the appearance of viewing
it as a "black seat." Bush replied that this might be his last
chance to appoint Thomas, so he insisted on going ahead
with it. (Bush was right--this was his last Court
appointment.)

It seems to me that everything we have seen of Thomas
since then vindicates Bush, and makes Sununu and Rudman
look pretty bad.

By the way, Thomas was not the only critic of Congress to
come to Bush's attention. Congressman Lynn Martin picked
up on Thomas's theme of Congress exempting itself from the
law. Bush noticed, and he appointed her Secretary of
Commerce.

Tom West

Thomas G. West
Professor of Politics, University of Dallas and
Senior Fellow, The Claremont Institute
1845 E. Northgate
Irving, TX 75062
972-721-5278