LET'S CONSIDER JUDGE THOMAS IN HIS OWN WRITINGS, SPEECHES

The best answer to the critics of President Bush's Supreme Court nominee Clarence Thomas is the remarkable life of Clarence Thomas. Likewise, the best way to get a feel for what this man is like is to read him in his own eloquent words. Let's do that today.

In a 1987 speech, Thomas said:

"I was raised to survive under the totalitarianism of segregation, not only without the active assistance of government but with its active opposition," he said in a speech entitled "Why Black Americans Should Look to Conservative Policies."

"I am of the view that black Americans will move inexorably and naturally toward conservatism when we stop discouraging them; when they are treated as a diverse group with differing interests; and when conservatives stand up for what they believe in rather than stand against blacks.

"This is not a prescription for success, but rather an assertion that black Americans know what they want, and it is not timidity and condescension.

"I don't believe in quotas. America was founded on a philosophy of individual rights, not group rights. The civil rights movement was at its greatest when it proclaimed the highest principles on which this country was founded principles such as the Declaration of Independence, which were betrayed in the case of blacks and other minorities.

"I believe that society is now in a position to vigorously enforce equal rights for all Americans ... But I believe in compensation for actual victims, not for people whose only claim to victimization is that they are members of a historically oppressed group.

"America should not fall into the trap of blaming all the problems faced by blacks or other minorities on others. We are not beggars or objects of charity. We don't get smarter just because we sit next to white people in class, and we don't progress just because society is ready with handouts. As a people, we need to find solutions to problems through independence, perseverance and integrity. As a society, we should develop better policies to deal with the underclass than the failed solutions of the past."

From a recent interview with young author and scholar Dinesh D'Souza, Mr. Thomas had these comments:

"Basically, the job of a judge is to figure out what the law says, not what he wants it to say. There is a difference between the role of a judge and that of a policy maker. [Judge Robert] Bork was right about that, no question. Judging requires a certain impartiality."

At the same time, "impartiality is not the same thing as indifference. This isn't law school speculation. When I hear a case, I know damn well that something is going to happen as a result of what I decide. People's lives are affected. Sometimes a man's life depends on the outcome. And these are people looking to me, to the judge, to find out what's just, to correctly apply the law. That's not a responsibility I take lightly. No way."

D'Souza offers a unique insight into how a Justice Thomas is likely to differ from Justice Marshall, whose place he would take if confirmed. "When reminded of Thurgood Marshall's comment that he could not celebrate the bicentennial of the American founding because the Constitution permitted slavery, Mr. Thomas shook his head. `I have felt the pain of racism as much as anyone else,' Mr. Thomas says passionately. `Yet I am wild about the Constitution and the Declaration. Abraham Lincoln once said that the American founders declared the right of equality whose enforcement would follow as soon as circumstances permitted. The more I learn about the ideals of those men, the more enthusiastic I get ... I believe in the American dream, the American proposition, because I've seen it in my own life.'

"My grandfather has been the greatest influence on my life."

In 1987, Mr. Thomas told the Atlantic: "When the civil rights people indict me, the man they are indicting is that man. Let them call him from the grave and indict him."

D'Souza continues:

"As Mr. Thomas remembers, his grandfather believed that `Man ain't got no business on relief as long as he can work. Damn welfare, that relief!'"

"... Eventually, he took a job with Missouri Attorney General (now Senator) John Danforth because `he promised to treat me like anyone else. He promised to ignore the hell out of me.'"

An important insight into how Judge Thomas views the law and the restrained role of judging in our constitutional scheme concerns the judicial doctrine of "standing." Standing is a crucial doctrine and an indispensable barrier to judicial activism, whether of the left or right. Legal scholar Gordon Crovitz explains:

"The Constitution requires a case or controversy before judges can issue an opinion; there must be real parties with real issues in dispute. Judicial activists often ignore standing issues, and wave non-cases into court by giving special-interest groups and occasionally even dolphins and trees standing to sue. Judge Thomas took the more traditional approach in a partial dissent when a ferry company challenged an exemption from a regulation that the Interstate Commerce Commission granted to one of its competitors.

"Judge Thomas wrote in a partial dissent that the ferry company had no business in court because it wasn't an `aggrieved' party, as required by the statute ...

"The company wanted the judges to force the ICC to prepare an environmental impact statement before granting new routes to its competitor. `I agree that as a matter of policy, it probably should,' Judge Thomas wrote. `As a matter of law, however, the Commission has no power to regulate ferries for environmental reasons.'

Legal scholar Crovitz continues, with a paragraph containing a quote from Judge Thomas that is a classic statement of judicial self-restraint:

"This meant the ferry company had no standing to sue, so judges had no right to hear the case. `When federal jurisdiction does not exist, federal judges have no authority to exercise it, even if everyone judges, parties, members of the public wants the dispute resolved,' Judge Thomas wrote.

"`A federal court may not decide cases when it cannot decide cases, and it must determine whether it can before it may,' Thomas concluded.

"This," continues Crovitz, "is an important statement of separation of powers not the view of a justice who would take social questions away from the political branches of government."

Dean William Robinson of the District of Columbia School of Law said of his friend Judge Thomas, "People often confuse what Clarence thinks with what some of his friends on the right think, but Clarence is his own man."

Or listen to D'Souza, again:

"While at the EEOC, Mr. Thomas gave speeches accusing the Republican Party of `blatant indifference' toward black voters, and he chastised Ronald Reagan in particular for letting Bob Jones University get away with racial discrimination, and for `foot dragging' on the Voting Rights Act extension.

A few weeks before the nomination, Mr. Thomas confessed in the interview with D'Souza that he was slightly bemused with all the attention being paid to him by scholars and courtwatchers. "The problem for my opponents, and for my friends, is that I don't think I fit any of these molds very well. Once people figure this out, maybe they'll leave me alone."

Behold, the Clarence Thomas era on the United States Supreme Court. In the year 2030, Lord willing, he'll be the same age as the man whose seat he'll take. To this distinguished American, here's wishing good health, and long life.