Justice Thomas Praised by Former Clerks, Colleagues on 25th Anniversary of Nomination

By Barbara Hollingsworth | July 1, 2016 | 10:47am EDT
U.S. Supreme Court Justice Clarence Thomas. (AP photo)

(CNSNews.com) – His former law clerks and colleagues in the Reagan administration had high praise for U.S. Supreme Court Justice Clarence Thomas, who was nominated by President George H.W. Bush to the high court on July 1, 1991 - 25 years ago today.

Thomas, who replaced Thurgood Marshall as the 106th justice, was described by those who’ve known him for more than a quarter century not only as a principled defender of the Constitution and therefore a foe of unlimited government power, but also as an engaging, gregarious mentor and friend who “knows everything about the Supreme Court, down to the names of the janitors.”

Professor John Yoo, who teaches law at the University of California/Berkeley, clerked for Thomas between 1994 and ’95. Yoo recalled that time as the jurist’s “coming out party, because he published a number of opinions in a large variety of cases that showed his true colors” as a constitutional originalist, Yoo told CNSNews.com.

University of California/ Berkeley Law Professor John Yoo. (UC)

“The view of the legal establishment over the last 30 to 40 years has been that the Constitution gives individuals rights, and the government recognizes those rights. But Justice Thomas has an 18th century view that every individual has natural rights, and had them before government existed, so the government cannot take them away,” Yoo said, adding that unlike Thomas, “very few justices have cited the Declaration of Independence as a legal text.”

Thomas’ view of natural rights has allowed him to “go a lot deeper in debates before the court” on issues ranging from rejecting affirmative action to defending state laws decriminalizing marijuana.

The conservative justice’s belief that “the Constitution means what it says, and we have to interpret it as the framers originally understood” also gives him a solid basis for rejecting past court decisions that did not hew to the founding document, Yoo told CNSNews.

“Justice Thomas, more than any other justice, is the one most likely to point out that the emperor has no clothes,” he pointed out. “It doesn’t matter if it’s 10, 20, 50 or even 100 years of Supreme Court precedent, Justice Thomas is the most likely to throw them out if they are not true to the original meaning” because he knows that past Supreme Courts have sometimes made mistakes, Yoo said.

During the last 25 years, Thomas has demonstrated a “stalwart resistance” to government operating outside its constitutional boundaries, Yoo noted. “Over the last two years in his opinions, Justice Thomas is definitely the leader on the court who has questioned regulations passed by agencies taking the place of statutes passed by Congress,” he told CNSNews.

Yoo predicted that “during the next 10 to 15 years, he will focus on the administrative state, because his originalist understanding [of the Constitution] is quite at odds with the huge bloated Fourth Branch” of government.

On a personal note, Yoo characterized Thomas as “a wonderful guy” who is likely to be named “most popular” by court employees.

“He talks to everybody, knows almost all of the court employees by their first names, and is very gregarious, with a loud boisterous laugh and a great sense of humor,” Yoo added. “He’s probably most like your next door neighbor,” the former law clerk said.

Prof.  Saikrishna Prakash, who teaches law at the University of Virginia, also clerked for Thomas the same year as Yoo.

University of Virginia Law Professor Saikrishna Prakash. (UVA)

‘I had the pleasure and honor of clerking for him in 1994 and 1995. That was a wonderful year. I was involved in a lot of interesting cases. Justice Thomas was then in his third year on the bench and he was thriving. I do recall him saying that it was the first year he had totally been comfortable on the court, that he’d finally gotten his sea legs,” Prakash reminisced.

Prakash cited Thomas’ concurring opinion in United States v. Lopez in 1995, one of the first cases in 60 years to limit the government’s use of the Commerce Clause, as one of his major accomplishments on the bench. 

“We have said that Congress may regulate not only ‘Commerce . . . among the several states,’ but also anything that has a ‘substantial effect’ on such commerce,” Thomas wrote. “This test, if taken to its logical extreme, would give Congress a ‘police power’ over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula.” 

“Up to that time, the court had regarded the Commerce Clause incredibly broadly. There didn’t seem like there were any limits to what the federal government could do,” Prakash pointed out.

One of several originalists on the court, including the late Justice Antonin Scalia and Justice Samuel Alito, Thomas was always more willing than they were “to overturn precedent that was not consistent with the Constitution,” the professor said.

Prakash predicted that Thomas will continue to “add to his legacy. I don’t think there will be a fundamental shift in how he approaches cases – or the Constitution,” he said.

Describing the conservative justice as “very much a people person,” Prakash castigated news media reports that “implied he was afraid to ask questions” because he seldom does so during oral arguments.

“The subtext is that he’s not smart enough to ask questions, which is ridiculous. It’s absurd,” he told CNSNews.

The late “Chief Justice [William] Rehnquist wanted to eliminate oral arguments because they’re more spectacle than substance. After 300 pages of arguments, how much can you really learn in a half hour?” Prakash noted, adding that it was “very rare” for a justice to change his opinion after oral arguments. 

Contrary to popular perception, Justice Thomas is “incredibly outgoing,” he said. “He’d talk with us in his chambers about cases, the Cowboys, his career, our careers. He was a wonderful mentor for somebody barely out of law school,” he recalled.

“He’s principled, he cares about getting it right, and is incredibly generous with his time. He’s unfailingly gracious and has lived an exemplary life. He’s like a hero,” Prakash said.

C. Boyden Gray, founding partner of the Washington law firm Boyden Gray & Associates, told CNSNews that he became friends with Thomas when they were both working at the Equal Employment Opportunity Commission (EEOC) during the Reagan years, where the future Supreme Court justice was seen as a “rising star”.

Gray recalled that when Thomas was nominated to the D.C. Court of Appeals for the District of Columbia Circuit in 1990, “we checked with members of the D.C. Circuit and there were no complaints about him. In fact, all were quite complimentary. He got high ratings from the ABA [American Bar Association]. There were no problems, no questions raised.”

C. Boyden Gray. (Boyden Gray & Assoc.)

However, Thomas’ Supreme Court nomination hearing in the Senate Judiciary Committee the following year was marred by accusations that he had sexually harassed Anita Hill, a former employee at the EEOC.

Thomas denied the accusations, calling the televised hearing a “high-tech lynching for uppity blacks.”

“I think he was a conservative minority, and nothing drives the Left more crazy than that,” Gray told CNSNews. “That’s also why they went after Miguel Estrada, because they knew that putting him on the D.C. Circuit would set him up to be a Supreme Court justice. And that’s totally unacceptable.”

Over the past 25 years, Justice Thomas has been “intellectually contributing on a whole range of issues, but I would say that his intense review of the deference doctrine is going to be one of his biggest legacies,” Gray said.

He also cited Thomas’ opposition to affirmative action. “In cases of individual discrimination, he would throw the book at you as chairman of the EEOC. But he was very opposed to group rights, because he felt in his own case, it diminished his achievements.

“He had trouble getting hired after law school because everyone assumed he was sub-par and was admitted to Yale because of affirmative action, when there was certainly nothing sub-par about him. One of his major contributions was doing away with quotas,” the attorney told CNSNews.

Gray predicted that Thomas will be the natural leader on the court in future attempts to rein-in the regulatory state.

 “I think the court’s going to have to lead the way on curbing the unconstrained growth” of the federal government, he added, noting several recent court decisions  - including National Labor Relations Board v. Noel Canning –  as examples of the court reversing executive overreach.

 “Thomas is already there,” he pointed out.

“He’s a great justice, no question about it,” Gray continued. “He has always been underestimated by the institutional media. When the press focuses on the fact that he never talks during oral arguments, they exhibit a totally distorted view of what judging is all about.”

“He’s universally liked, and as a friend, he’s very loyal,” he added.

Michael Carvin. (Jones Day)

Michael Carvin, a partner at Jones Day who also worked with Thomas at the EEOC, said the justice’s belief that judges should “interpret law neutrally according to the text and structure of the Constitution,” and his insistence on determining whether an issue before the court is consistent with the founding document, is his “major contribution to the court”.

“He then walks through the correct answer, even if it does not agree with precedent,” Carvin told CNSNews. “He’s remarkably consistent in his willingness to base his opinions on first principles, even more than Justice Scalia. He was also more willing to overturn precedent if it conflicted with the Constitution.”

“As Justice Thomas often said, he loves precedent, but he loves the Constitution more.”

After more than 30 years of friendship, Carvin described Thomas as “a gregarious, happy warrior” and “an eloquent spokesman for first principles”.

“I think history will portray him as one of the most thoughtful, principled, articulate and consistent Supreme Court justices we have ever had.”

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