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Clarence Thomas

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{{Infobox Judge | name = Clarence Thomas | image = Clarence Thomas official.jpg | imagesize = | caption = Clarence Thomas | office = Associate Justice of the United States Supreme Court | terBLACK ASS!!!! Rush Recounts His Trip to Lincoln, www.rushlimbaugh.com, September 17, 2007.</ref>

Career

Early career

Official Equal Employment Opportunity Commission portrait of Thomas

From 1974 to 1977, Thomas was an Assistant Attorney General of Missouri under then State Attorney General John Danforth. When Danforth was elected to the U.S. Senate in 1976 to 1979, Thomas left to become an attorney with Monsanto in St. Louis, Missouri. He returned to work for Danforth from 1979 to 1981 as a Legislative Assistant. Both men shared a common bond in that both had studied to be ordained (although Thomas was Roman Catholic and Danforth was ordained Episcopalian). Danforth was to be instrumental in championing Thomas for the Supreme Court.

In 1981, he joined the Reagan administration. From 1981 to 1982, he served as Assistant Secretary of Education for the Office of Civil Rights in the U.S. Department of Education. From 1982 to 1990 he was Chairman of the US Equal Employment Opportunity Commission ("EEOC").

In 1990, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit.

Supreme Court appointment

Main article: Clarence Thomas Supreme Court nomination

On July 1, 1991 President George H. W. Bush nominated Thomas to replace Thurgood Marshall who had recently announced his retirement. Marshall had been the only African American justice on the court. The selection of Thomas preserved the existing racial composition of the court, but it was seen as likely to move the ideological balance to the right.

American Bar Association's (ABA) rating for Judge Thomas was split between "qualified" and "not qualified."

Organizations including the NAACP, the Urban League and the National Organization for Women opposed the appointment based on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of the Supreme Court judgment in Roe v. Wade. Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision.

Some of the public statements of Thomas's opponents foreshadowed the confirmation fight that would occur. One such statement came from activist Florence Kennedy at a July 1991 conference of the National Organization for Women in New York City. Making reference to the failure of Robert Bork's nomination, she said of Thomas, "We're going to 'bork' him."


This article may be unbalanced toward certain viewpoints. Please improve the article by adding information on neglected viewpoints, or discuss the issue on the talk page.

Allegations of sexual harassment

Toward the end of the confirmation hearings, information was leaked to the press from an FBI interview with Anita Hill, an attorney who had worked for Thomas at the Department of Education and the EEOC. On October 11, 1991, Hill was called to testify during the Senate confirmation hearing.

Hill said: "He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes....On several occasions, Thomas told me graphically of his own sexual prowess....Thomas was drinking a Coke in his office, he got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, 'Who has put pubic hair on my Coke?'" Hill also indicated that Thomas made reference to the pornographic actor Long Dong Silver.

Angela Wright, who worked with Thomas at the EEOC, told staff of members of the Senate Judiciary Committee during an interview that Thomas had repeatedly made comments to her, much like those Hill says he made to her, including pressuring her for dates and commenting on her body.Cite error: A <ref> tag is missing the closing </ref> (see the help page). Additionally, Ellen Wells, John W. Carr, Judge Susan Hoerchner, and Joel Paul testified that Hill had discussed Thomas's actions at the time she worked for Thomas and that she had characterized them as sexual harassment.Cite error: A <ref> tag is missing the closing </ref> (see the help page). According to Jan Crawford Greenburg, Justice Blackmun allowed his clerks to refer to Christopher Landau, a Thomas clerk, as "Justice," because they saw him as the one really "running the show." Greenburg called this "a rude and glaring breach of protocol." Greenburg says that pundits' portrayal of Thomas as Scalia's understudy was grossly inaccurate - she says that from early on, it was more often Scalia changing his mind to agree with Thomas, rather than the other way around. However, Greenburg points out that the extremity of Thomas's views pushed Justices Souter, O'Connor, and Kennedy away.

Judicial philosophy

Clarence Thomas being sworn in by Byron White, as wife Virginia Lamp Thomas looks on.

Clarence Thomas is a conservative who acknowledges having some "libertarian leanings." Thomas is often described as an originalist. Although he has been compared to Antonin Scalia, he is less devoted to precedent than Scalia, who told Thomas' biographer that Thomas "doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say let's get it right." In Elk Grove Unified School District v. Newdow and Cutter v. Wilkinson, Thomas argued that the Establishment Clause was not incorporated to states by the Fourteenth Amendment, directly challenging the precedent Everson v. Board of Education. He has advocated the reversal of Roe v. Wade, joining the dissenting opinion in Planned Parenthood v. Casey, and writing the concurrence in Gonzales v. Carhart. Thomas voted with Scalia 91 percent of the time during the court's 2006–07 session. He voted with Justice John Paul Stevens the least, only 36% of the time. Justice Thomas's forceful views have pushed moderates like Sandra Day O'Connor further to the left.

Commerce Clause and states' rights

Thomas consistently supports a strict interpretation of the Constitution's interstate commerce clause and supports limits on the power of federal government in favor of states' rights. In both United States v. Lopez and United States v. Morrison Thomas wrote a separate concurring opinion arguing for the original meaning of the commerce clause and criticizing the substantial effects formula. He wrote a sharply worded dissent in Gonzales v. Raich, a decision that permitted the federal government to arrest, prosecute, and imprison patients who were using medical marijuana. However, he previously authored United States v. Oakland Cannabis Buyers' Cooperative, an earlier case that also permitted the federal government to inspect medical marijuana dispensaries (the Oakland case dealt with the issue of medical necessity rather than federalism).

Capital punishment

Thomas was among the dissenters in both Atkins v. Virginia and Roper v. Simmons, which held that the Constitution prohibited the application of the death penalty to certain classes of persons. In Kansas v. Marsh, his opinion for the court indicated a belief that the Constitution affords states broad procedural latitude in imposing the death penalty provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the court had reversed its 1972 ban on death sentences as long as states followed certain procedural guidelines.

Fourth Amendment

In the cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants, although not always—he was in the majority in Kyllo v. United States and wrote separately in Indianapolis v. Edmond the opinion that the Constitution does not allow random stops of drivers. His opinion for the court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and wrote again for the court in Samson v. California, permitting random searches on parolees. He dissented in the case Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the case was controlled by the court's decision in Coolidge v. New Hampshire.

Free speech

Among Supreme Court Justices, Thomas is typically the second most likely to uphold free speech claims (he is tied with Souter). He has voted in favor of First Amendment claims in cases involving a wide variety of issues, including pornography, campaign contributions, political leafletting, religious speech, and commercial speech. On occasion, however, he disagrees with free speech claimants. For example, he dissented in Virginia v. Black, a case that struck down a Virginia statute that banned cross-burning, and authored ACLU v. Ashcroft, which referred the Child Online Protection Act back to District Court, where COPA was overturned. In addition, Thomas believes that students have limited free speech rights in public schools, a view he expressed in his concurrence in Morse v. Frederick. In that case, he argued that the precedent of Tinker v. Des Moines should be overruled.

Executive power

Thomas has argued that the executive branch has broad powers under the constitution. In Hamdi v. Rumsfeld, he was the only Justice who sided entirely with the government and the Fourth Circuit's ruling, arguing for the important security interests at stake and the President's broad war-making powers. He also was one of three justices who dissented in Hamdan v. Rumsfeld, which held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay required explicit congressional authorization because they conflicted with both the Unified Military Code of Justice and "at least" Common Article 3 of the Geneva Convention...." Thomas argued that Hamdan is an illegal combatant and therefore not protected by the Geneva convention, and also agreed with Justice Scalia that the Court was "patently erroneous" in it's declaration of jurisdiction in this case.

Prisoners' Rights

In the Foucha case of Thomas's first term, Thomas dissented from the majority Supreme Court opinion removing from a mental institution a prisoner who had become sane. Thomas cast the issue as a states' rights matter.

In 1992's Hudson v. McMillan, Thomas said that injuries to a prisoner that involved a cracked lip, broken dental plate, loosened teeth, and cuts and bruises (all from what Thomas said was admittedly criminal police brutality) "did not rise to the level" of cruel and unusual punishment. Thomas's vote, the only one against the prisoner and an early example of Thomas's willingness to be the sole dissenter, would have rejected the prisoner's lawsuit had it been the majority view (Scalia later joined the opinion).

In 1992's Doggett v. United States, Thomas wrote a dissenting opinion for himself and Rehnquist to uphold the conviction of a man who was indicted on a drug charge, but then not arrested for almost nine years. Thomas wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role."

Approach to oral arguments

Thomas is well-known for listening rather than asking questions during oral arguments of the Court. He has offered several reasons for this, including that he developed a habit of listening as a young man. Thomas comes from the Gullah/Geechee cultural region of coastal Georgia and is a member of this distinct African American ethnic group; he grew up speaking the Gullah language, which is a hybrid of English and various West African languages. Later in life, Thomas began to acquire an enthusiasm for his heritage, writing about it in the December 14 2000 issue of The New York Times:

"When I was 16, I was sitting as the only black kid in my class, and I had grown up speaking a kind of a dialect. It's called Geechee. Some people call it now, and people praise it now. But they used to make fun of us back then. It's not standard English. When I transferred to an all-white school at a young age, I was self-conscious, like we all are... So I...just started developing the habit of listening."

However, Jeffrey Toobin in The Nine calls into question Thomas's explanation, showing that Thomas knew how to speak English well from an early age, because he lived with his English-speaking grandfather from the age of six, attended only English-speaking parochial schools, and earned excellent school grades. The New York Times also casts doubt on Thomas's Gullah explanation.

Thomas has stated that he wishes to write a book about the Gullah culture.

Another theory, asserted by one set of Thomas biographers, is that he believes oral arguments are mostly unnecessary, and that the back-and-forth in oral arguments is often disrespectful to the attorneys trying to present their cases. (This view has been supported by Ann Scarlett, Professor at the Saint Louis University School of Law, who was one of his law clerks.) The same biographers also theorize Thomas is uncomfortable in the rapid pacing of oral argument discussions, the supposition being he prefers a more cerebral, quieter environment in which to carefully contemplate matters of constitutional law.

In comments in November 2007, Thomas proffered his position on the subject: "My colleagues should shut up!" he said to an audience at Hillsdale College in Michigan. He later explained, "I don't think that for judging, and for what we are doing, all those questions are necessary", and compared his profession to the medical arts: "Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gall bladder surgery."

Though Thomas is silent during most arguments before the Supreme Court, he had, up until his 16th term, spoken a few times each term. During the oral argument for NASA v. FLRA, In Apprendi v. New Jersey (2000), Thomas raised an issue which would become important in the opinions ("the distinction... between an element of the offense and an enhancement factor"). In Capitol Square Review Board v. Pinette (1995), Virginia v. Black (2003), and Georgia v. Randolph (2006), Thomas presaged his eventual dissent with comments at oral argument.

Upon the conclusion of the 2006-2007 term of the Supreme Court, it was widely noted that Thomas had failed to utter a single word from the bench during the course of the entire term. In November 2007, in a tongue-in-cheek manner, the Law Blog of the Wall Street Journal initiated the "When-Will-Justice-Thomas-Ask-a-Question Watch", noting that the justice had not asked a single question during oral arguments since February 22, 2006. February 22, 2008, marked the two year anniversary of Thomas's last question during oral argument, a milestone which was noted by several media outlets, including CNN. Another reference to his silence was made in the Boston Legal episode The Court Supreme where Denny Crane made a bet regarding whether Alan Shore could get the fictional Justice Thomas to talk.

Bibliography

References

This section uses citations that link to broken or outdated sources. Please improve the article by addressing link rot or discuss this issue on the talk page. (January 2008) (Learn how and when to remove this message)
  1. New York Times
  2. It is routine for nominees, at all levels of the Federal judiciary, to refuse to discuss cases during their confirmation hearings that might come before them if they are confirmed. Clinton appointed Associate Justices Ruth Bader Ginsburg and Steven Breyer both refused to discuss Roe before the Judiciary Committee, even though Ginsburg has worked for years for the ALCU defending it. Despite this nearly universal refusal of nominees to discuss hot button issues such as Roe, members of the Senate Judiciary Committee nearly always try to draw the nominee's view out during confirmation hearings.
  3. Wall Street Journal's Opinion Journal
  4. Opening Statement: Sexual Harassment Hearings Concerning Judge Clarence Thomas," Women's Speeches from Around the World.
  5. "United States Senate, Transcript of Proceedings" (pdf). gpoaccess.gov. 1991-10-10. pp. pp. 442-511. Retrieved 2008-09-18. {{cite web}}: |pages= has extra text (help)
  6. http://www.fair.org/index.php?page=1896
  7. http://hnn.us/comments/121846.html
  8. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Pages 112-113.
  9. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 115.
  10. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Pages 115-116.
  11. Kauffman B., "Clarence Thomas", Reason Magazine, November 1987, Accessed May 7, 2007.
  12. "A Big Question About Clarence Thomas", The Washington Post, October 14, 2004. Accessed May 7, 2007.
  13. Greenhouse, Linda."In Steps Big and Small, Supreme Court Moved Right", New York Times, July 1, 2007.
  14. Greenhouse, Linda. "In Steps Big and Small, Supreme Court, Moved Right", The New York Times, July 1, 2007.
  15. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 166.
  16. Volokh, Eugene. How the Justices Voted in Free Speech Cases, 1994-2002, UCLA Law
  17. Hamdan v. Rumsfeld, Supreme Court Syllabus, pg. 4., point 4.
  18. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 117.
  19. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 117.
  20. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 119.
  21. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 119.
  22. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 123.
  23. Greenburg, Jan Crawford. Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.2007. Penguin Books. Page 123.
  24. Linguistics
  25. Jeffrey Toobin, The Nine. Page 106. 2007. Doubleday. ISBN 0385516401.
  26. http://www.nytimes.com/2007/06/17/books/review/Patterson-t.html?_r=1&pagewanted=2&oref=slogin
  27. Gullah
  28. This information was related in a 2006 conversation with law student Daren Rich, when asked why Justice Thomas was often silent during oral arguments.
  29. Blog
  30. U.S. News & World Report
  31. New York Times
  32. 527 U.S. 229 (1999)
  33. 515 U.S. 753
  34. Law.com
  35. Wall Street Journal Law Blog
  36. CNN article on lack of questions for 2 years

Sources

External links

Legal offices
Preceded byRobert Bork Judge of the U.S. Court of Appeals for the D.C. Circuit
1990-1991 		Succeeded byJudith Ann Wilson Rogers
Preceded byThurgood Marshall Associate Justice of the Supreme Court of the United States
1991-present
U.S. order of precedence (ceremonial)
Preceded byDavid Souter
Associate Justice of the Supreme Court of the United States 		United States order of precedence
Associate Justice of the Supreme Court of the United States 		Succeeded byRuth Bader Ginsburg
Associate Justice of the Supreme Court of the United States
Judicial opinions of Clarence Thomas
U.S. Court of Appeals for the D.C. Circuit (March 6, 1990 – October 17, 1991); by calendar year
Supreme Court of the United States (October 18, 1991 – present); by term

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