Clarence Thomas

Speaker, Title, Party Statements
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. Good morning, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Good morning, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome. Welcome to the blinding lights. It is a pleasure to have you here. Let me begin also by indicating that the morning is going to be painless, Judge—or maybe the most painful part of the whole process because you are going to hear from all of the committee who have an opening statement, and then a half a dozen Senators who are going to introduce you. So you will hear from about 20 Senators before you get to speak. It could be the most painful part of the process. But let me begin today, Judge, on a slightly more serious note. This committee begins its sixth set of Supreme Court confirmation hearings held in the last 5 years, a rate of change that is unequaled in recent times. If you are confirmed, Judge Thomas, you will come to the Su self-restraint from interference in fundamental social decisions about the regulation of health care, the environment, and the economy are also being called into question. Judge Thomas, you come before this committee in this time of change with a philosophy different from that which we have seen in any Supreme Court nominee in the 19 years since I have been in the Senate. For as has been widely discussed and debated in the press, you are an adherent to the view that natural law philosophy should inform the Constitution. Finding out what you mean when you say that you would apply the natural law philosophy to the Constitution is, in my view, the single most important task of this committee and, in my view, your most significant obligation to this committee. This is particularly true because of the period of vast change in which your nomination comes before us. Judge, to explain why this is such an important question, at least to me, we need only look at the three types of natural law thinking which have, in fact, been adopted by the Supreme Court of the United States in the past and which are being discussed and debated by constitutional scholars today. The first of these views: Seize natural law as a moral code, a set of rules saying what is right and what is wrong, a set of rules and a moral code which the Supreme Court should impose upon the country. In this view, personal freedom to make moral choices about how we live our own lives should be replaced by a morality imposed on the conduct of our private and family lives by the Court. The Supreme Court, as you know, Judge, actually took such an approach in the past, holding in 1873, for example, that women could not become lawyers because it was not, in the Court's phrase, in their nature. Now, no one wants to go back to 1873; no one wants to go back that far today. But there are natural law advocates who extol the 20th century version of this philosophy, for they believe that it is the job of the courts to judge the morality of all our activities, wherever they occur, paying no respect to the privacy of our homes and our bedrooms. They believe the Court should forbid any activity contrary to their view of morality and their view of natural law. Those who subscribe to this moral-code view of natural law call into question a wide range of personal and family rights, from reproductive freedom to each individual's choice over procreation, to the very private decision we now make about what is and what is not a family. They want to see the Government make these choices for us by applying, to quote one report, "their values and norms"; or, if the legislature doesn't do it, by judges applying their values and norms. Needless to say, Judge Thomas, this sort of natural law philosophy is one which I believe this Nation cannot accept. But it is not the only radical natural law philosophy that is being debated as we sit here today—it is being debated in the law schools and among the philosophers of this country—for there is another group that wants to reinvigorate another period of the Supreme Court's past. When the Court used natural law to strike down a whole series of Government actions aimed at making the Nation a better place for Americans to live, those natural law rulings struck down such laws as the child labor laws, minimum wage laws, and laws that required safe working conditions. They held that the natural law of freedom of contract and the natural law right to property created rights for businesses and corporations that rose above the efforts of Government to prevent the ills they created. They put these socalled economic rights into a zone of protection so high that even reasonable laws aimed at curbing corporate excesses were struck down. Now, again, no one is proposing to take us all the way back to the so-called Lockner era. But there are those who wish to employ the same reasoning that was used in that era. Today, natural law proponents of what they term new economic rights and new property rights have called into question many of the most important laws enacted in this century: Laws protecting the environment, our water and our air; laws regulating child care and senior citizen facilities; and even called into question the constitutionality of the Social Security system. Now, Judge Thomas, you have made it abundantly clear that you do not subscribe to the most extreme of these views. But you have said that you find some of these views, to quote you, "attractive," and that you support the idea "of an activist Supreme Court that would strike down laws regulating economic rights." Again, this is a vision of natural law that we have moved far beyond and that most Americans have no desire to return to. And there is a third type of natural law, Judge. It is the one that mirrors how the Supreme Court has understood our Constitution for the bulk of this century, and it is the one that I believe most Americans subscribe to. It is this view of natural law that I believe—I personally, to be up front about it, think is appropriate. In this view of natural law, the Constitution should protect personal rights falling within the zone of privacy, speech, and religion most zealously. Those rights that fall within that zone should be most zealously protected. These personal freedoms should not be restricted by a moral code imposed on us by the Supreme Court or by unjust laws passed in legislative bodies. Indeed, the Supreme Court has protected these freedoms by striking down laws that would prohibit married couples from using contraception, deny the right of people to marry whomever they wish, or laws that tell parents that they could not teach their children a second language or could not send them to a private school. They struck down those legislative initiatives in the past. While recognizing that natural law and our Constitution protect these rights, the same Court has also recognized that Government must act to protect us from many of the dangers of modern life, that Government should stop polluters from polluting, stop businesses from creating unsafe working conditions and so on. Yes, these Government actions do limit freedom. They do limit freedom. They limit the freedom to contract. They limit the freedom to use one's property exactly as they would wish. They limit the freedom to pollute. They limit freedom. Or, as we saw in North Carolina recently, they limit the freedom of a factory manager to lock his employees into a building where 25 of them perished in a fire. But this limitation on property, recognized as constitutional by the Court, is a balanced liberty that we have come to expect our Government to provide. This is the balance, in my view, that the Framers of our Constitution enshrined in that great document. They wanted, to use their words, "an energetic Government." But they also wanted a Government to protect fundamental personal freedom, and today we have achieved that balance by having the Supreme Court extend great protection to personal freedom while declining to block laws that reasonably regulate our economy, our society, our property. Now, adopting a natural law philosophy that upsets that balance, either by lessening the protection given those rights falling within the zone of personal and family privacy and speech and religion or adopting a natural philosophy that lessens the power of Government to protect the environment, lessens the power of Government to regulate corporate excesses, or lessens the power of Government to create institutions like Social Security, would, in my view, be a serious mistake and a sharp departure from where we have been for the last 40 years. Judge Thomas, there are signs in your writing and speeches that you accept the present balance, but there are also signs that you would apply natural law to effect changes in the balance I have just referred to; changes to replace our freedom to make personal and family choices without Government imposing their moral code, and to thrust the Court into economic and regulatory disputes that it now stays out of. Judge, if this committee is to endorse your confirmation to the Senate, we must know—in my view, we must know with certainty that neither of these radical constitutional departures is what you have in mind when you talk about natural law. So, Judge, over the course of these hearings, I will be asking you about how your natural law philosophy applies to each of these areas, both to the areas of personal freedom and to the areas of economic issues. We will take some time to cover it, Judge, and some of it, as you know as well or better than I, is somewhat esoteric. But cover it we will, and we will cover it carefully. In closing, Judge Thomas, I want to return to where I started: the importance of your nomination. Some people say that the Supreme Court is already conservative, and they ask what difference it makes to have an additional conservative on the bench. Well, I think that is the wrong question. I reject that argument. First of all, I do not deny the President the right to appoint a conservative. As a matter of fact, I would be dumfounded if he didn't. And so I fully expect the Supreme Court to be a more conservative body after Justice Marshall's successor is confirmed than before Justice Marshall retired. But such an additional move to the right, which I expect, pales in comparison to the radical change in direction some are urging on the Court under the banner of natural law; pales in comparison to some of the changes that some of the people who are your strongest supporters have been urging on the philosophic thought and the notion of constitutional interpretation for the past decade. Thus, we are not seeking here to learn—at least I am not seeking here to learn whether or not you are a conservative. I expect no less, and I believe you when you say you are. Instead, what we must find out is what sort of natural law philosophy you would employ as a Justice of the Supreme Court, for that Court is in transition and if you are confirmed, you will play a large role in determining what direction it will take in the future. Judge, because of your youth and, God bless you for it—I never thought I would be sitting here talking about the youth of a nominee to the Supreme Court, but I am. Heck, you are 6, 7 years younger than 1.1 am 48. How old are you, Judge? Forty-two? Fortythree?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I have aged over the last 10 weeks. [Laughter.] But I am 43.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Forty-three years old. Because of your youth, Judge, you will be the first Supreme Court Justice the Senate will ever have confirmed, if it does, that will most likely write more of his opinions in the 21st century than he will write in the 20th century. To acknowledge that fact alone, Judge, is to recognize the unique significance of your nomination and the care with which this committee must look at it. In closing, Judge Thomas, let me say that this committee's obligation is to be open and to be fair, and I hope you believe we have been that way thus far. We have many serious questions to ask you, Judge, and it will take time to get them all answered. So anytime you need a break, anytime you just get tired sitting there, let us know because we are testing the content of your mind, not your physical constitution to be able to sit there for a long time. In welcoming you to these hearings, Judge, I welcome you also to a dialog, I believe, that will have historic impact on the Supreme Court, the country, and a historic impact for all Americans. We are pleased to have you join us here today, Judge, in what I consider to be a great endeavor and the most serious obligation this committee can undertake. Again, welcome, and I will now yield to my senior colleague from the State of South Carolina and the ranking member, Senator Thurmond. [The prepared statement of Senator Biden follows:]
Senator Joe Biden (DE)
Chairman
(D)
TODAY THIS COMMITTEE BEGINS ITS SIXTH SET OF SUPREME COURT CONFIRMATION HEARINGS HELD IN THE PAST FIVE YEARS, A RATE OF CHANGE AT THE SUPREME COURT UNEQUALLED IN RECENT TIMES. IF YOU ARE CONFIRMED, JUDGE THOMAS YOU WILL COME TO A SUPREME COURT IN THE MIDST OF THIS VAST CHANGE. IN FOUR YEARS, JUSTICES POWELL, BRENNAN AND MARSHALL WILL HAVE BEEN REPLACED BY JUSTICES KENNEDY, SOUTER AND THOMAS. BECAUSE OF THESE CHANGES, MANY OF THE MOST BASIC PRINCIPLES OF CONSTITUTION INTERPRETATIONOF THE MEANING THAT THE SUPREME COURT GIVES TO OUR CONSTITUTION-- Openina Statement: Clarence Thomas Hearing ARE BEING DEBATED IN THIS COUNTRY IN A MANNER UNLIKE ANYTHING WE HAVE SEEN SINCE THE NEW-DEAL ERA. IN THIS TIME OF CHANGE, FUNDAMENTAL CONSTITUTIONAL RIGHTS WHICH HAVE BEEN PROTECTED BY THE SUPREME COURT FOR DECADES ARE BEING CALLED INTO QUESTION. IN THIS TIME OF CHANGE, THE SUPREME COURT'S SELF-RESTRAINT FROM INTERFERENCE IN FUNDAMENTAL SOCIAL DECISIONS ABOUT REGULATION OF OUR HEALTH CARE, ENVIRONMENT AND ECONOMY IS ALSO BEING CALLED INTO QUESTION. JUDGE THOMAS, YOU COME BEFORE THIS COMMITTEE, IN THIS TIME OF CHANGE, WITH A PHILOSOPHY DIFFERENT FROM THAT WHICH WE HAVE SEEN IN ANY SUPREME COURT NOMINEE DURING MY 19 YEARS IN THE SENATE, Opening Statement: Clarence Thomas Hearing FOR, AS HAS BEEN WIDELY DISCUSSED AND DEBATED, YOU ARE AN ADHERENT OF THE VIEW THAT "NATURAL-LAW" PHILOSOPHY SHOULD INFORM THE CONSTITUTION. FINDING OUT WHAT YOU MEAN WHEN YOU SAY YOU WOULD APPLY A "NATURAL-LAW" PHILOSOPHY TO THE CONSTITUTION IS, IN MY VIEW, THE MOST IMPORTANT TASK OF THESE HEARINGS. THIS IS PARTICULARLY TRUE BECAUSE OF THE PERIOD OF VAST CONSTITUTIONAL CHANGE IN WHICH YOUR NOMINATION COMES BEFORE US. TO EXPLAIN WHY THIS IS SUCH AN IMPORTANT QUESTION, WE NEED ONLY LOOK AT THREE TYPES OF NATURAL-LAW THINKING WHICH HAVE IN FACT BEEN ADOPTED BY THE SUPREME COURT IN THE PAST - AND WHICH ARE BEING DISCUSSED BY CONSTITUTIONAL SCHOLARS TODAY. Ooenlna statement: Clarence Thomas Hearing THE FIRST OF THESE VIEWS SEES NATURAL LAW AS A "MORAL CODE" - A SET OF RULES SAYING WHAT IS RIGHT AND WHAT IS WRONG - WHICH THE SUPREME COURT SHOULD IMPOSE UPON THE COUNTRY. IN THIS VIEW, PERSONAL FREEDOM TO MAKE MORAL CHOICES ABOUT HOW WE LIVE OUR OWN LIVES SHOULD BE REPLACED BY A MORALITY IMPOSED ON THE CONDUCT OF OUR PRIVATE AND FAMILY UVES BY THE COURT. THE SUPREME COURT ACTUALLY TOOK THIS APPROACH IN THE PAST, HOLDING IN 1873, FOR EXAMPLE, THAT WOMEN COULD NOT BECOME LAWYERS BECAUSE IT WAS NOT, AS THE COURT PUT IT, "IN THEIR NATURE." NOW, NO ONE WANTS TO GO BACK THAI FAR TODAY, BUT THERE ARE NATURAL-LAW ADVOCATES WHO EXTOL A 20TH-CENTURY VERSION OF THIS PHILOSOPHY, 10 Ooenlna Statement: Clarence Thomas Hearing FOR THEY BELIEVE THAT IT IS THE JOB OF THE COURTS TO JUDGE THE MORALITY OF ALL OF OUR ACTIVITIES, WHEREVER THEY OCCUR - PAYING NO RESPECT TO THE PRIVACY OF OUR HOMES AND BEDROOMS. THEY BEUEVE THAT COURTS SHOULD FORBID ANY ACTIVITIES CONTRARY TO THEIR VIEW OF MORALITY OR NATURAL LAW. THOSE WHO SUBSCRIBE TO THIS "MORAL-CODE" VIEW OF NATURAL LAW CALL INTO QUESTION A WIDE RANGE OF OUR PERSONAL AND FAMILY RIGHTS - FROM REPRODUCTIVE FREEDOM, TO EACH INDIVIDUAL'S CHOICE OVER PROCREATION, TO THE VERY PRIVATE DECISION WE NOW MAKE ABOUT IS OR IS NOT A FAMILY. THEY WANT TO SEE THE GOVERNMENT MAKE THESE CHOICES £QB US, BY APPLYING THEIR "VALUES AND NORMS" - OR BY JUDGES APPLYING NATURAL LAW. 11 Opening Statement: Clarence Thomas Hearing NEEDLESS TO SAY, JUDGE THOMAS, THIS SORT OF NATURAL-LAW PHILOSOPHY IS ONE THE NATION CAN NOT ACCEPT. BUT IT IS NOT THE ONLY RADICAL NATURAL-LAW PHILOSOPHY THAT IS BEING DEBATED BY SCHOLARS, FOR THERE IS ANOTHER GROUP THAT WANTS TO RE-INVIGORATE ANOTHER PERIOD IN THE SUPREME COURTS PAST, WHEN THAT COURT USED NATURAL LAW TO STRIKE DOWN A WHOLE SERIES OF GOVERNMENT ACTIONS AIMED AT MAKING THIS NATION A BETTER PLACE FOR ALL AMERICANS. THOSE NATURAL-LAW RUUNGS STRUCK DOWN CHILD LABOR LAWS, MINIMUM WAGE LAWS, AND LAWS THAT REQUIRED SAFE WORKING CONDITIONS. 12 Opening Statement: Clarence Thomas Hearing THEY HELD THAT THE NATURAL-LAW "FREEDOM OF CONTRACT1 AND "RIGHT TO PROPERTY" CREATED RIGHTS FOR BUSINESSES AND CORPORATIONS THAT ROSE ABOVE OUR EFFORTS TO PREVENT SUCH ILLS. THAT PUT THESE SO-CALLED "ECONOMIC RIGHTS" INTO A ZONE OF PROTECTION SO HIGH THAT EVEN REASONABLE LAWS AIMED A CURBING CORPORATE EXCESSES WERE STRUCK DOWN. NOW, AGAIN, NO ONE IS PROPOSING TO TAKE US ALL THE WAY BACK TO THAT ERA, BUT THERE ARE THOSE WHO WISH TO EMPLOY THE SAME REASONING THAT WAS USED IN THAT ERA. TODAY'S NATURAL-LAW PROPONENTS OF WHAT THEY TERM "NEW ECONOMIC RIGHTS" AND "NEW PROPERTY RIGHTS" HAVE CALLED INTO QUESTION MANY OF THE MOST IMPORTANT LAWS ENACTED IN THIS CENTURY: 13 ODenina Statement: Clarence Thomas Hearing 8 * PROTECTION OF THE ENVIRONMENT, OUR AIR AND WATER; * REGULATION OF CHILD-CARE AND SENIORCITIZEN FACILITIES; * EVEN THE CONSTITUTIONALITY OF SOCIAL SECURITY. NOW, JUDGE THOMAS, YOU HAVE MADE IT CLEAR THAT YOU DO NOT SUBSCRIBE TO THE MOST EXTREME OF THESE VIEWS, BUT YOU HAVE SAID THAT YOU FIND SOME OF THESE VIEWS "ATTRACTIVE11 AND THAT YOU SUPPORT THE IDEA OF AN "ACTIVIST SUPREME COURT THAT WOULD STRIKE DOWN LAWS REGULATING ECONOMIC RIGHTS." AND AGAIN, THIS IS A VISION OF NATURAL LAW THAT WE HAVE MOVED BEYOND AND THAT MOST AMERICANS HAVE NO DESIRE TO RETURN TO. 14 Opening Statement: Clarence Thomas Hearing THERE IS A THIRD TYPE OF NATURAL LAW - IT IS THE ONE THAT MIRRORS HOW THE SUPREME COURT HAS UNDERSTOOD OUR CONSTITUTION FOR THE BULK OF THIS CENTURY, AND IT IS THE ONE THAT I SUBSCRIBE TO. IN THIS VIEW OF NATURAL LAW, THE CONSTITUTION SHOULD PROTECT PERSONAL RIGHTS FALLING WITHIN THE ZONE OF PRIVACY, SPEECH AND REUGION MOST ZEALOUSLY. THESE PERSONAL FREEDOMS SHOULD NOT BE RESTRICTED BY A MORAL CODE IMPOSED ON US BY THE SUPREME COURT, OR BY UNJUST LAWS PASSED BY LEGISLATURES. INDEED, THE SUPREME COURT HAS PROTECTED THESE FREEDOMS BY STRIKING DOWN LAWS THAT WOULD: * PROHIBIT MARRIED COUPLES FROM USING CONTRACEPTION; * DENY THE RIGHT OF PEOPLE TO MARRY WHOMEVER THEY WISH; 15 Openlna Statement: Clarence Thomas Hearing 10 * TELL PARENTS THEY CAN NOT TEACH THEIR CHILDREN A SECOND LANGUAGE OR SEND THEM TO PRIVATE SCHOOLS. BUT WHILE RECOGNIZING THAT NATURAL LAW AND OUR CONSTITUTION PROTECT THESE RIGHTS, THE COURT HAS ALSO RECOGNIZED THAT GOVERNMENT MUST ACT TO PROTECT US FROM MANY DANGERS OF MODERN LIFE - THE GOVERNMENT SHOULD STOP POLLUTERS FROM POLLUTING, STOP BUSINESSES FROM CREATING UNSAFE WORKING CONDITIONS, AND SOON. YES, THESE GOVERNMENT ACTIONS DO UMIT FREEDOMS - THE "FREEDOM TO POLLUTE;" OR AS WE SAW IN NORTH CAROUNA RECENTLY, THE "FREEDOM" OF A FACTORY OWNER TO LOCK HIS EMPLOYEES INTO HIS BUILDING, WHERE 25 OF THEM PERISHED IN A FIRE. BUT THIS IS THE KIND OF BALANCED LIBERTY WE EXPECT OUR GOVERNMENT TO PROVIDE. 16 Opening Statement: Clarence Thomas Hearing 11 THIS IS THE BALANCE THAT THE FRAMERS OF OUR CONSTITUTION ENSHRINED IN THAT GREAT DOCUMENT. THEY WANTED, TO USE THEIR WORDS, AN "ENERGETIC GOVERNMENT1 - BUT THEY ALSO WANTED THAT GOVERNMENT TO PROTECT FUNDAMENTAL PERSONAL FREEDOMS. TODAY, WE HAVE ACHIEVED THAT BALANCE BY HAVING THE SUPREME COURT EXTEND GREAT PROTECTION TO PERSONAL FREEDOMS, WHILE DECLINING TO BLOCK LAWS THAT REASONABLY REGULATE OUR ECONOMY OR SOCIETY. ADOPTING A NATURAL-LAW PHILOSOPHY THAT UPSETS THAT BALANCE - * EITHER BY LESSENING THE PROTECTIONS GIVEN TO RIGHTS FALLING WITHIN THE ZONE OF PERSONAL AND FAMILY PRIVACY, SPEECH AND REUGION - 17 ODenlna Statement: Clarence Thomas Hearing 12 * OR BY LESSENING OUR POWER TO PROTECT THE ENVIRONMENT, TO REGULATE CORPORATE EXCESSES, OR TO CREATE INSTITUTIONS UKE SOCIAL SECURITY - WOULD BE A GRAVE AND SERIOUS MISTAKE. JUDGE THOMAS, THERE ARE SIGNS IN YOUR WRITINGS AND SPEECHES THAT YOU ACCEPT THIS BALANCE. BUT THERE ARE ALSO SIGNS THAT YOU WOULD APPLY NATURAL LAW TO EFFECT CHANGES IN THIS BALANCE - * TO REPLACE OUR FREEDOM TO MAKE PERSONAL AND FAMILY CHOICES WITH A GOVERNMENT-IMPOSED MORAL CODE, * AND TO THRUST THE COURT INTO ECONOMIC AND REGULATORY DISPUTES THAT IT NOW STAYS OUT OF. 18 Opening Statement: Clarence Thomas Hearing 13 IF THIS COMMITTEE IS TO ENDORSE YOUR CONFIRMATION, WE MUST KNOW WITH CERTAINTY THAT NEITHER OF THESE RADICAL CONSTITUTIONAL DEPARTURES IS WHAT YOU HAVE IN MIND WHEN YOU TALK ABOUT NATURAL LAW. SO, JUDGE, OVER THE COURSE OF THESE HEARINGS, I WILL BE ASKING YOU ABOUT HOW YOUR NATURAL-LAW PHILOSOPHY APPLIES IN EACH OF THESE AREAS ~ BOTH TO OUR PERSONAL FREEDOMS AND TO ECONOMIC ISSUES. IT WILL TAKE SOME TIME TO COVER IT ALL, BUT IT IS IMPORTANT AND WE WILL COVER IT CAREFULLY. IN CLOSING, JUDGE THOMAS, I WANT TO RETURN TO WHERE I STARTED - THE IMPORTANCE OF YOUR NOMINATION. 19 ODenlna Statement; Clarence Thomas Hearing 14 SOME PEOPLE SAY THAT THE SUPREME COURT IS ALREADY "CONSERVATIVE," AND THEY ASK WHAT DIFFERENCE THE ADDITION OF ONE MORE CONSERVATIVE CAN MAKE TO THE COURT. I REJECT THIS ARGUMENT. FIRST, I DO NOT DENY THE RIGHT OF THE PRESIDENT TO NOMINATE A CONSERVATIVE - I FULLY EXPECT HIM TO DO SO. AND SO I FULLY EXPECT THE SUPREME COURT TO BE A MORE CONSERVATIVE BODY AFTER JUSTICE MARSHALL'S SUCCESSOR IS CONFIRMED THAN IT WAS BEFORE HE RESIGNED. BUT SUCH AN ADDITIONAL MOVE TO THE RIGHT, WHICH I EXPECT, PALES IN COMPARISON TO THE RADICAL CHANGE IN DIRECTION THAT SOME ARE URGING ON THE COURT UNDER THE BANNER OF NATURAL LAW. 20 Opening Statement: Clarence Thomas Hearing 15 THUS, WE ARE NOT SEEKING HERE TO LEARN IF YOU ARE A CONSERVATIVE -- WE EXPECT NO LESS. INSTEAD, WHAT WE MUST FIND OUT IS WHAT SORT OF NATURAL-LAW PHILOSOPHY YOU WOULD EMPLOY AS A JUSTICE OF THE SUPREME COURT,. FOR THAT COURT IS IN TRANSITION AND IF YOU ARE CONFIRMED, YOU WILL PLAY A LARGE ROLE IN DETERMINING WHAT DIRECTION IT WILL TAKE IN THE FUTURE. BECAUSE OF YOUR YOUTH, JUDGE THOMAS, YOU WOULD BE THE FIRST SUPREME COURT JUSTICE APPROVED BY THIS COMMITTEE WHO WILL PROBABLY DECIDE MORE CASES IN THE 21ST CENTURY THAN YOU WILL IN THE 20TH CENTURY. TO ACKNOWLEDGE THAT FACT ALONE IS TO RECOGNIZE THE UNIQUE SIGNIFICANCE OF YOUR NOMINATION AND THE CARE WITH WHICH THIS COMMITTEE MUST CONSIDER IT. 21 ODenlna Statement: Clarence Thomas Hearing 16 IN CLOSING, JUDGE THOMAS, LET ME SAY THAT THIS COMMITTEE'S OBLIGATION IS TO BE OPEN AND FAIR. WE HAVE MANY SERIOUS QUESTIONS TO ASK YOU, AND IT WILL TAKE TIME TO GET THEM ALL ANSWERED - SO ANY TIME YOU NEED A BREAK FOR ANY REASON, PLEASE LET ME KNOW - OUR GOAL IN THESE HEARINGS IS TO LEARN WHAT YOU THINK, NOT TO TEST YOUR ENDURANCE. IN WELCOMING YOU TO THESE HEARINGS, I WELCOME YOU ALSO TO A DIALOG I BELIEVE WILL HAVE HISTORIC IMPORTANCE TO THE SUPREME COURT, TO THE COUNTRY, AND TO ALL AMERICANS. WE ARE PLEASED TO HAVE YOU JOIN US IN THAT GREAT ENDEAVOR.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Today, the committee begins hearings to consider the nomination of Judge Clarence Thomas to be an Associate Justice of the Supreme Court of the United States. This makes the 7th nominee to the Supreme Court that this committee has considered in the past 10 years and, once confirmed, will be the 106th person to serve as a Justice, as well, I might say, as the 24th Supreme Court nomination that I have had the opportunity to review during almost my 37 years in the Senate. As these hearings begin, we must remain keenly aware that we face a solemn responsibility. This committee undertakes no greater responsibility than the review of nominees to the Federal judiciary. When a nominee is considered for the Supreme Court, our responsibility is an enhanced one. Those chosen for a seat on our Nation's highest court occupy a position of great authority, trust, and power, as this appointment is one of life tenure, without accountability by popular election. Members of the Supreme Court make vitally important decisions and can only be removed in very limited circumstances. A Supreme Court Justice must be an individual who understands the responsibility to the people of this Nation, the concept of justice, and the magnificence of our Constitution. Mr. Chairman, I have always believed that our Constitution is the most enduring document ever penned by the hand of man. It certainly remains the finest, most significant political document ever conceived. It creates the basic institutions of our National Government and spells out the powers of these institutions, the rights of our citizens, and the basic freedoms we all deeply cherish. At an early age, I developed a deep and abiding respect for this document which stands as the centerpiece of mankind's struggle for self-determination. The fact that our Constitution has survived since its adoption in 1787 is a true testament to its remarkability. When a vacancy occurs on the Supreme Court, it is one of the few times that all three branches of Government are so greatly impacted at the same time. The head of the executive branch, the President of the United States, elected by the people, chooses a nominee. This nominee will sit on the highest, most prestigious, and most powerful Court within our judicial branch. The Senate, as part of the legislative branch, is called upon to review the nominee to ensure that he or she is qualified to serve on the most important court in America. I believe this process which embraces all three branches of Government signifies the majesty of our system and underscores the brilliance of our Founding Fathers. Clearly our magnificent Constitution confers tremendous responsibility on the Senate in a vast number of areas. In the confirmation process, the Senate alone holds exclusive authority to advise and consent on all judicial nominations. While the President of the United States has the constitutional authority to appoint judges of the Supreme Court, the advise and consent role of the Senate is one of the most important ones we undertake. 23 The Senate has assigned the task of holding hearings and the detailed review of judicial nominees to the Judiciary Committee. It is a task that this committee has undertaken with a clear awareness of the importance of our role in the confirmation process. The significance of this committee's role cannot be underestimated. In this century, no nominee to the Supreme Court has been confirmed by the full Senate after failing to attain a majority vote of the members of this committee. Mr. Chairman, the role of the Supreme Court in our history has been vital because the Court has been called upon to solve many difficult and controversial problems, using its collective intellectual capacity, precedent, and constitutional interpretation to solve them. Throughout the course of our Nation's history, the Court has been called on to administer justice. As George Washington said, and I quote, "The administration of justice is the firmest pillar of good government." There is every reason to expect that the Court's role in the administration of justice will continue to be a major factor in the future. For this reason, an individual chosen to serve on the Supreme Court must be one who possesses outstanding qualities. The impact of the decisions of the Court requires that a nominee is eminently qualified to serve. During my consideration of the previous 23 nominees to the high Court in my almost 37 years, I have often reflected on the attributes I believe a Supreme Court Justice should possess. As we again consider a nominee to the Supreme Court, I believe these special qualities warrant reiterating: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair. Second, courage. The courage to decide tough cases according to the law and the Constitution. Third, compassion. While the nominee must be firm in his decisions, he should show mercy when appropriate. Fourth, professional competence. The ability to master the complexity of the law. Fifth, proper judicial temperament. The self-discipline to base decision on logic, not emotion, and to have respect for lawyers, litigants, and court personnel. And, sixth, an understanding of the majesty of our system of government. The understanding that only Congress makes the law, that the Constitution is only changed by amendment, and that all powers not delegated to the Federal Government are reserved to the States. I believe an individual who possesses these qualities will not fail the cause of justice. As we begin these hearings, there is every indication that Judge Thomas possesses the necessary attributes to be an outstanding member of the Supreme Court. Mr. Chairman, upon reviewing the decisions Judge Thomas wrote and in which he participated on the Court of Appeals, I have concluded that Judge Thomas has exhibited an adherence to the rule of law and the true principles upon which our Nation was founded. Without question, the decisions he has written are within the mainstream of judicial thinking. He has articulated a clear and 24 concise understanding of the law and conformance to established principles of constitutional interpretation. Some have stated that Judge Thomas has articulated a personal philosophy of law and constitutional interpretation which would curtail individual rights. I strongly disagree with those who have reached that conclusion. In fact, Judge Thomas has stated that he believes, and I quote, "that equality is the basis for aggressive enforcement of civil rights laws and equal opportunity laws designed to protect individual rights." Those are words stated by a person who truly believes in the civil rights of the individual and a commitment to the principles of fairness and equality, not a nominee who is out of the mainstream of judicial interpretation and analysis. An examination of the professional record of Judge Thomas provides no valid reason to believe he would seek to diminish the rights of any American citizen. Judge Thomas acknowledges that he has been a beneficiary of the diligent work of individuals such as Justice Thurgood Marshall and others involved in civil rights efforts. Mr. Chairman, the issue of judicial philosophy or ideology has often been raised in relation to recent nominees to the Supreme Court. Some argue that philosophy should not be considered at all in the nomination process, while others state that philosophy should be the sole criteria. It is not appropriate that philosophy alone—I repeat, alone—should bar a nominee from the Supreme Court, unless that nominee holds a belief that is contrary to the fundamental, long-standing principles of our Nation. Clearly if a philosophical litmus test can be applied to defeat a nominee, then the independence of the Federal judiciary would be undermined. Judges are not politicians put in place to decide cases based on the views of a political constituency, but are sworn to apply constitutional and legal principles to arrive at decisions that do justice to the parties before them. The prerogative to choose a nominee to the Supreme Court belongs to the President, an individual elected by the people of this country. The full Senate has the opportunity to review that nominee who comes to this body with a presumption—and I repeat, with a presumption—in his favor. To reject a nominee based solely on ideology is inappropriate. Requiring a nominee to pass an ideological litmus test would seriously jeopardize the efficacy and independence of the Federal judiciary. In closing, I believe Judge Thomas is well qualified to serve as a Justice of our Nation's highest Court. He possesses the integrity, intellect, professional competence, and judicial temperament to make an outstanding Justice. In addition, his personal struggle to overcome difficult circumstances early in his life is admirable. A review of his background shows he is a man of immense courage who has prevailed over many obstacles to attain remarkable success. Mr. Chairman, the Supreme Court is the final arbiter of our Nation's most important legal disputes. Its authority is immense. This immense authority places a great responsibility on each of us as we begin the thorough review of Judge Thomas to be an Associate Jus- 25 tice of that Court. I look forward to a fair hearing, with swift consideration of this nominee by the committee and the full Senate. Judge Thomas, we welcome you to the committee and look forward to your testimony. Thank you, Mr. Chairman. [The prepared statement of Senator Thurmond follows:] 26 STATEMENT BY SENATOR STROM THURMOND (R-S.C.) BEFORE THE COMMITTEE ON THE JUDICIARY REFERENCE CONFIRMATION HEARINGS ON CLARENCE THOMAS TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, SR-325, SENATE CAUCUS ROOM, 10:00 A.M., SEPTEMBER 10, 1991 MR. CHAIRMAN: Today, the Committee begins hearings to consider the nomination of Judge Clarence Thomas to be an Associate Justice of the Supreme Court of the United States. This makes the seventh nominee to the Supreme Court that this Committee has considered in the past ten years and, once confirmed, will be the 106th person to serve as a justice. As well, I might say, it is the 24th Supreme Court nomination that I have had the opportunity to review during my almost 37 years in the Senate. As these hearings begin, we must remain keenly aware that we face a solemn responsibility. This Committee undertakes no greater responsibility than the review of nominees to the federal judiciary. When a nominee is considered for the Supreme Court, our responsibility is an enhanced one. Those chosen for a seat on our Nation's highest court occupy a position of great authority, trust, and power as this appointment is one of life tenure without accountability by popular election. Members of the Supreme Court make vitally important decisions and can only be removed in very limited circumstances. A Supreme Court justice must be an individual who understands the responsibility to the people of this Nation, the concept of Justice, and the magnificence of our Constitution. Mr. Chairman, I have always believed that our Constitution is the most enduring document ever penned by the hand of man, and -1- 27 certainly remains the finest, most significant political document ever conceived. It creates the basic institutions of our national government and spells out the powers of these institutions, the rights of our citizens, and the basic freedoms we all deeply cherish. At an early age, I developed a deep and abiding respect for this document which stands as the centerpiece of mankind's struggle for self-determination. The fact that our Constitution has survived since its adoption in 1787 is a true testament to its remarkability. When a vacancy occurs on the Supreme Court, it is one of the few times that all three branches of government are so greatly impacted at the same time. The head of the executive branch, the President of the United States, elected by the people, chooses a nominee. This nominee will sit on the highest, most prestigious, and most powerful Court within our judicial branch. The Senate, as part of the legislative branch, is called upon to review the nominee to ensure that he or she is qualified to serve on the most important Court in America. I believe this process which embraces all three branches of government signifies the majesty of our system and underscores the brilliance of our Founding Fathers. Clearly, our magnificent Constitution confers tremendous responsibility on the Senate in a vast number of areas. In the confirmation process, the Senate alone holds exclusive authority to "advice and consent" on all judicial nominations. While the President of the United States has the constitutional authority to "appoint...judges of the Supreme Court," the "advice and - 2- 56-270 O— 9 28 consent role" of the Senate is one of the most important ones we undertake. The Senate has assigned the task of holding hearings and the detai.led review of judicial nominees to the Judiciary Committee. It is a task that this Committee has undertaken with the clear awareness of the importance of our role in the confirmation process. The significance of this Committee's role cannot be understated. In this century, no nominee to the Supreme Court has been confirmed by the full Senate after failing to attain a majority of the votes of members of this Committee. Mr. Chairman, the role of the Supreme Court in our history has been vital because the Court has been called upon to solve many difficult and controversial problems - using its collective intellectual capacity, precedent, and Constitutional interpretation to solve them. Throughout the course of our Nation's history the Court has been called on to administer Justice. As George Washington said, "The administration of justice is the firmest pillar of good government." There is every reason to expect that the Court's role in the administration of justice will continue to be a major factor in the future. For this reason, an individual chosen to serve on the Supreme Court must be one who possesses outstanding qualities. The impact of the decisions of the Court require that a nominee is eminently qualified to serve. During my consideration of the previous 23 nominees to the high Court in my almost 37 years, I have often reflected on the attributes I believe a Supreme Court justice should possess. As we again consider a nominee to the -3- 29 Supreme Court, I believe these special qualities warrant reiterating: First - Unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair. Second - Courage. The courage to decide tough cases according to the law and the Constitution. Third - Compassion. While a nominee must be firm in his decisions, he should show mercy when appropriate. Fourth - Professional Competence. The ability to master the complexity of the law. Fifth - Proper Judicial Temperament. The self-discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants, and court personnel. Sixth - An understanding of the majesty of our system of government. The understanding that only Congress makes the laws, that the Constitution is only changed by amendment, and that all powers not delegated to the federal government are reserved to the States. I believe an individual who possesses these qualities will not fail the cause of Justice. As we begin these hearings, there is every indication that Judge Thomas possesses the necessary attributes to be an -4- 30 outstanding member of the Supreme Court. He was born in Pinpoint, Georgia, on June 23, 1948, and raised in Savannah by his grandparents, Myers and Christine Anderson. In his youth, Judge Thomas overcame difficult economic conditions and excelled in his studies. He later attended the Immaculate Conception Seminary for two years before transferring to Holy Cross College. At Holy Cross, Judge Thomas distinguished himself as a member of the Honors Program, receiving his undergraduate degree in 1971. He then attended Yale Law School, one of our Nation's top law schools, graduating in 1974. In addition to his impressive academic background, Judge Thomas has vast practical experience. Following law school, he worked for Senator Danforth, then the Attorney General for the State of Missouri. As an Assistant Attorney General for three years, Judge Thomas represented the State of Missouri before the trial courts, appellate courts, and the State Supreme Court on matters ranging from taxation to criminal law. From 1977-1979, he worked for the Monsanto Company handling corporate, antitrust, contract, and government regulation law. In 1979, Judge Thomas again went to work for Senator Danforth in Washington, this time as a legislative assistant, responsible for energy, environment, federal lands, and public works issues. President Reagan nominated Judge Thomas to the position of Assistant Secretary for Civil Rights for the Department of Education in 1981. He was confirmed by the Senate for this position. Then, in 1982, President Reagan nominated him to serve as Chairman of the U.S. Equal Employment Opportunity Commission where he ably served almost two terms, being confirmed by the Senate for each term. He was then nominated by President Bush for a position on the U.S. Court of Appeals for the D.C. Circuit, called by many the Nation's second highest court. Since his confirmation, Judge Thomas has participated in over 140 decisions, writing opinions in areas such as criminal law, antitrust law and trade regulation, as well as constitutional and administrative law. Without question, Judge Thomas has distinguished himself on the D.C. Circuit, and has served in an exemplary capacity as a member of this Court. Mr. Chairman, upon reviewing the decisions Judge Thomas wrote and in which he participated on the Court of Appeals, I have concluded that Judge Thomas has exhibited an adherence to the rule of law, and the true principles upon which our Nation was founded. Without question, the decisions he has written are within the mainstream of judicial thinking. He has articulated a clear and concise understanding of the law and conformance to established principles of Constitution interpretations. Some have stated that Judge Thomas has articulated a personal philosophy of law and constitutional interpretation which would curtail individual rights. I strongly disagree with those who have reached that conclusion. In fact, Judge Thomas has stated that he believes, and I quote, that "equality is the basis for aggressive enforcement of civil rights laws and equal opportunity laws designed to protect individual rights." Those are words stated by a person who truly believes in the civil rights of the individual and a commitment to the principles of fairness and -6- 32 equality, not a nominee who is out of the mainstream of judicial interpretation and analysis. An examination of the professional record of Judge Thomas provides no valid reason to believe he would seek to diminish the rights of any American citizen. Judge Thomas acknowledges that he has been a beneficiary of the diligent work of individuals such as Justice Thurgood Marshall and others involved in civil rights efforts. Mr. Chairman, the issue of judicial philosophy, or ideology, has often been raised in relation to recent nominees to the Supreme Court. Some argue that philosophy should not be considered at all in the nomination process, while others state that philosophy should be the sole criteria. It is not appropriate that philosophy alone should bar a nominee from the Supreme Court unless that nominee holds a belief that is contrary to the fundamental, longstanding principles of our Nation. Clearly, if a philosophical "litmus test" can be applied to defeat a nominee, then the independence of the Federal judiciary would be undermined. Judges are not politicians put in place to decide cases based on the views of a political constituency, but are sworn to apply Constitutional and legal principles to arrive at decisions that do justice to the parties before them. The prerogative to choose a nominee to the Supreme Court belongs to the President — an individual elected by the people of this Country. The full Senate has the opportunity to review that nominee who comes to this Body with a presumption in his favor. To reject a nominee based solely on ideology, is inappropriate. Requiring a nominee to pass an ideological "litmus test" would - 7- 33 seriously jeopardize the efficacy and independence of the Federal judiciary. Mr. Chairman, I want to comment briefly on the tenure of Judge Thomas as Chairman of the Equal Employment Opportunity Commission. When he was before the Judiciary Committee for a position on the Court of Appeals, an exhaustive evaluation of his role as Chairman of the EEOC was undertaken. Some of the issues related to the EEOC have again been raised since his nomination to the Supreme Court was announced. These issues were fully reviewed and discussed in detail when Judge Thomas was under consideration for a position on the D.C. Circuit. At that time, this Committee was informed that Judge Thomas was responsible for implementing policies designed to reform the EEOC, invigorating its mission to assure the fair treatment of all persons m the workplace, and injuring the vigorous enforcement of our equal employment laws. I strongly believe that Judge Thomas performed admirably as Chairman of the EEOC. His successor, Mr. Evan Kemp, stated that the EEOC "made a miraculous turnaround... under [Judge] Thomas." while Judge Thomas was Chairman, the Washington Post ran an editorial piece entitled "The EEOC is Thriving" and praised him for his "quiet but persistent leadership." I commend Judge Thomas for his diligent, successful efforts while Chairman of the EEOC. In closing, I believe Judge Thomas is well qualified to serve as a justice on our Nation's highest court. He possesses the integrity, intellect, professional competence, and judicial temperament to make an outstanding justice. In addition, his -8- 34 personal struggle to overcome difficult circumstances early in his life is admirable. A review of his background shows he is a man of immense courage who has prevailed over many obstacles to attain remarkable success. Mr. Chairman, the Supreme Court is the final arbiter of our Nation's most important legal disputes; its authority is immense. This immense authority places a great responsibility on each of us as we begin the thorough review of Judge Thomas to be an Associate Justice of that Court. I look forward to a fair hearing with swift consideration of this nominee by the Committee and the full Senate. Judge Thomas, we welcome you to the Committee and look forward to your testimony. Thank you, Mr. Chairman. -9- END 35
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman. Good morning, Judge. I would just mention at the outset we come to the nomination on the basis that the President makes the nomination but it is a shared responsibility, an important responsibility for us to make a judgment on this. I might have some difference with my good friend and colleague from South Carolina on whether there is the presumption. I think any fair reading of the Constitutional Convention would show that this was to be a shared responsibility. I think at least I and other members of the committee would look so. Two hundred years ago this year, the Bill of Rights became part of the Constitution. The Constitution itself confers upon the Federal Government the powers necessary to govern the country. But the Bill of Rights protects the fundamental rights that enable us to be truly free and to enjoy the full benefits of our democracy. Most important, the Constitution and the Bill of Rights preserve our individual liberty, and they are the Nation's promise to the people that no American will ever be forced to stand before a column of tanks in any battle to keep our democracy. It is our guarantee that majority rule is limited and that each individual has certain basic rights that the government cannot invade. As we celebrate the bicentennial of the Bill of Rights, as we watch brave citizens in the Soviet Union and other lands struggle to attain similar rights and liberties, we feel justifiably proud of our system of government and the enduring achievements of the past two centuries. But we cannot permit our pride to diminish our commitment to preserving and strengthening our own democracy or dealing with the serious challenges that continue to confront us. The nomination which we begin considering today is an essential part of the process by which we safeguard the Constitution, the Bill of Rights, and our democracy itself. If confirmed, Judge Clarence Thomas will become one of nine Supreme Court Justices with the ultimate power to define the Constitution, interpret the Bill of Rights, and ensure that the limited powers of government stay limited. Many of us are concerned about the direction the Supreme Court has taken in recent years. It has increasingly abandoned its role as the guardian of the powerless in our society. It has repeatedly sought to turn back the clock on civil rights. It has relaxed the rules prohibiting the use of coerced confessions obtained by law enforcement officers. It has begun to retreat on the right to privacy. It has ruled that government officials can prohibit doctors in publicly funded clinics from practicing their profession to the best of their ability in giving their patients full medical advice. The Court has not hesitated to overrule earlier decisions with which the new majority disagrees. Justice Thurgood Marshall warned us in Ms final Supreme Court opinion that power, not reason, is the new currency of the Court's decision-making. Justice 36 Marshall has been one of the greatest Justices in the history of the Supreme Court. His courageous career is an inspiration to the Nation, and his vision of the rule of law is an example to the world of the best in American justice. The person who replaces Thurgood Marshall on the Court will be deeply involved in fundamental decisions that will affect the rights of all Americans in the years ahead and may well determine the very nature of our democracy and the future of the Bill of Rights. For this reason, the Senate has a special responsibility: to assess Judge Thomas' view of the Constitution and his dedication to individual rights and the separation of powers. We must decide whether he possesses a clear commitment to the fundamental values at the core of our democracy. In his life and in his career, Judge Thomas has overcome large barriers of poverty and injustice, and he deserves great credit for the eminence he has attained. In many ways, he exemplifies the promise of the Constitution and the American ideal of equal opportunity for all. But much more is at stake than Judge Thomas' background. Statements he has made and actions he has taken raise significant issues that must be addressed if he is to be confirmed by the Senate. For example, on the right to privacy, Judge Thomas has strongly commended an article entitled "The Declaration of Independence and the Right to Life." One leads unmistakably from the other. That article refers to the constitutional right to abortion in Roe v. Wade as a conjured right with not a single trace of lawful authority. According to the article, which Judge Thomas has called splendid, abortion is the constitutional equivalent of murder. If this view is accepted by the Supreme Court, not only Roe v. Wade will be overruled, neither the Congress nor any State legislature will have the power to protect a woman's right to choose an abortion even in cases of rape or incest. And Federal and State governments will have an engraved invitation to invade other basic aspects of individuals' private lives. Judge Thomas' record also raises serious questions about his view of ongoing efforts to end discrimination in our society against women and minorities. The civil rights revolution of the past generation has been called the "Second American Revolution." But it is a revolution that is far from complete. Millions of our fellow citizens are still left out and behind because of unacceptable conditions of discrimination based on race, sex, age, disability, and other forms of bigotry that continue to plague our society. As Congress and the administration struggle to deal with these urgent challenges, we will need a Supreme Court that is sensitive, not hostile, to our efforts. At the same time, Judge Thomas has stated that the Constitution protects economic rights as much as any other rights. Until the 1930's, a similar doctrine was used by the Supreme Court to strike down attempts by Congress and the States to protect the rights and very health and safety of workers against unfair abuses of power by unscrupulous employers and corporations. Few Americans today would want the Supreme Court to revive that discredited doctrine of constitutional protection for the rights of business at the expense of working men and women. 37 Finally, Judge Thomas' role as Chairman of the Equal Opportunity Commission has given him extensive experience in dealing with Congress. As a result of that experience, however, he has made some harsh statements about congressional oversight of executive agencies. Obviously, such oversight is an essential part of the constitutional system of checks and balances. It has served the Nation well, and it must continue to do so. The Senate's constitutional role in confirmation of Justices to the Supreme Court is one of our most important functions. I look forward to these hearings and to working with my colleagues on the committee and in the Senate to address these complex issues as thoroughly and as fairly as possible. The country deserves no less. [The prepared statement of Senator Kennedy follows:] Two hundred years ago this year, the Bill of Rights became part of the United States Constitution. The Constitution itself confers upon the federal government the powers necessary to govern the country. But the Bill of Rights protects the fundamental rights that enable us to be truly free and to enjoy the full benefits of our democracy. Most important, the Constitution and the Bill of Rights preserve our individual liberty. They are the nation's promise to the people that no American will ever be forced to stand before a column of tanks in any battle to keep our democracy. It is our guarantee that majority rule is limited and that each individual has certain basic rights that the government cannot invade. As we celebrate the bicentennial of the Bill of Rights, as we watch brave citizens in the Soviet Union and other lands struggle to attain similar rights, we feel justifiably proud of our own system of government and the enduring achievements of the past two centuries. But we cannot permit our pride to diminish our commitment to preserving and strengthening our own democracy, or dealing with the serious challenges that continue to confront u s. The nomination which we begin considering today is an essential part of the process by which we safeguard the Constitution, the Bill of Rights, and our democracy itself. If confirmed, Judge Clarence Thomas will become one of nine Supreme Court Justices with the ultimate power to define the Constitution, interpret the Bill of Rights, and ensure that the limited powers of government stay limited. Many of us are concerned about the direction the Supreme Court has taken in recent years. It has increasingly abandoned its role as the guardian of the powerless in our society. It has repeatedly sought to turn back the clock on civil rights. It has relaxed the rules prohibiting the use of coerced confessions obtained by law enforcement officers. It has begun to retreat on the right to privacy. It has ruled that government officials can prohibit doctors in publicly-funded clinics from practicing their profession to the best of their ability, and giving their patients full medical advice. The Court has not hesitated to overrule earlier decisions with which the new majority disagrees. Justice Thurgood Marshall warned us in his final Supreme Court opinion that "[p]ower, not reason, is the new currency of th[e] Court's decisionmaking." Justice Marshall has been one of the greatest justices in the history of the Supreme Court. His courageous career is an inspiration to the nation, and his vision of the rule of law is an example to the world of the best in American justice. (OVER) 39 The person who replaces Thurgood Marshall on the Court will be deeply involved in fundamental decisions that will affect the rights of all Americans in the years ahead, and may well determine the very nature of our democracy and the future of the Bill of Rights. For this reason, the Senate has a special responsibility to assess Judge Thomas' views of the Constitution and his dedication to individual rights and separation of powers. We must decide whether he possesses a clear commitment to the fundamental values at the core of our democracy. In hie life and his career, Judge Thomas has overcome barriers of poverty and injustice, and he deserves great credit for the success he has attained. In many ways, he exemplifies the promise of the Constitution and the American ideal of equal opportunity for all. But much more is at stake than Judge Thomas' background. Statements he has made and actions he has taken raise significant issues that must be addressed by the Senate. For example, on the right to privacy, Judge Thomas has strongly commended an article entitled "The Declaration of Independence and the Right to Life: One Leads Unmistakably From the Other." That article refers to the constitutional right to abortion in Roe v. Wade as a "conjured right" — "with not a single trace of lawful authority." According to the article, which Judge Thomas has called "splendid," abortion is the constitutional equivalent of murder. If this view is accepted by the Supreme Court, Roe v. Wade will be overruled; and neither Congress nor any state legislature will have the power to protect a woman's right to choose an abortion, even in cases of rape or incest. And federal and state governments will be free to invade other basic aspects of individuals' private lives. Judge Thomas' record also raises serious questions about his views on the ongoing efforts to end discrimination in our society against women and minorities. The civil rights revolution of the past generation has been called the Second American Revolution. But it is a revolution that is far from complete; millions of our fellow citizens are still left out and left behind because of unacceptable conditions of discrimination based on race, sex, age, disability and other forms of bigotry that continue to plague our society. As Congress and the Administration struggle to deal with these urgent challenges, we need a Supreme Court that is sensitive, not hostile, to our efforts. At the same time, Judge Thomas has stated that the Constitution protects economic rights "as much as any other rights." Until the 1930s a similar doctrine was used by the Supreme Court to strike down attempts by Congress and the states to protect the rights — the very health and safety — of workers against unfair abuses of power by unscrupulous employers and corporations. Few Americans today would want the Supreme Court to revive that discredited doctrine of constitutional protection for the rights of business at the expense of working men and women. Finally, Judge Thomas' role as Chairman of the Equal Employment Opportunity Commission has given him extensive experience in dealing with Congress. As a result of that experience, however, he has made some harsh statements about congressional oversight of executive agencies. Obviously, such oversight is an essential part of the constitutional system of checks and balances. It has served the nation well, and it must continue to do so. The Senate's constitutional role in the confirmation of Justices to the Supreme Court is one of our most important functions. I look forward to these hearings, and to working with my colleagues on the committee and in the Senate to address these complex issues as thoroughly and as fairly as possible. The country deserves no less. 40
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. Before I begin my statement, let me say that I hope that Justice Marshall is well, and I wish him well. His career and service to our country throughout his life marks him, in my view, as the single most influential lawyer in the 20th century, and maybe one of the most influential lawyers of all time. Judge Thomas, welcome to the committee. This is your fifth confirmation before the U.S. Senate. I don't know many people who have had that experience or who have been able to endure that kind of an experience. I just want to say that I have known you for over 10 years, and I don't think President Bush could have made a better decision or better judgment than to nominate you for the Supreme Court of the United States of America. You are eminently qualified to be a Supreme Court Justice. Judge Thomas has an excellent educational and legal background. He has served in all three branches of the Federal Government, and in so serving, as I have mentioned, he has already won Senate confirmation 4 times in less than 9 years, perhaps more than any other person during a similar period of time. Judge Thomas has also served as an assistant attorney general of the State of Missouri under our distinguished colleague, Jack Danforth. He has also worked in the private sector as a lawyer in Monsanto Co.'s legal department. I share President Bush's view that a Justice of the Supreme Court of the United States should interpret the law according to the original meaning and not legislate his or her own policy preferences from the bench. Based on a careful review of Judge Thomas' writings and judicial opinions and my personal knowledge of the man, I am confident that Judge Thomas will interpret the law according to its original meaning, rather than substitute his own policy preferences for the law. I am also confident that Judge Thomas will zealously safeguard the principle of equal justice under law for all Americans; not just white Americans, not just black Americans or Hispanic Americans or Asian Americans, but for all Americans, without unfair preference. Judge Thomas' opinions also indicate that he is a sound law-andorder jurist, tough but fair to criminal defendants. Those who have known Judge Thomas over the years know that he is a man of fierce independence. When he is confirmed, he will be nobody's man but his own, as I know he has been throughout his life. That I know. And the judge's independence in not bounded by ideology. For example, when asked his views about establishing enterprise zones in inner cities, a principal element of conservative urban policy, Judge Thomas politely poured cold water on the idea. In so doing, here is part of what he said in 1985: 41 The first priority is to control crime. The sections where the poorest people live aren't really livable. If people can't go to school or rear their families or go to church without being mugged, how much progress can you expect in a community? Would you do business in a community that looks like an armed camp, where the only people who inhabit the streets after dark are criminals? There were lots of black businesses before enterprise zones, but blacks cannot stay in business if they are mugged or if customers are mugged going in and out of the establishment or if people are hanging out selling drugs in front of it. If you want to encourage business in these areas, then stopping crime has got to be at the top of the list. Judge Thomas' independence, however, does not sit well with some special interest groups and some liberal academics and pundits. These critics would like to impose their liberal policy agenda on the American people through the judiciary. They fear Judge Thomas will be faithful to the Constitution and Federal laws as enacted instead of to their political agenda. We have heard criticism from some groups that Judge Thomas isn't strong on civil rights. Nonsense. Judge Thomas has an excellent record on civil rights and a deep personal commitment to equal opportunity. As he wrote in 1986, I am a black Southerner. I grew up under the heel of segregation, and I have always found it offensive for the Government to treat people differently from others because of the color of their skin. At his confirmation hearing just last year for the judgeship he now holds, Judge Thomas testified, "The reason I became a lawyer was to make sure that minorities, individuals who did not have access to this society, gained access." He took over the chairmanship of an Equal Employment Opportunity Commission in 1982 that was left in a shambles by his Carter administration predecessors. The Washington Post, no shill for the Reagan administration civil rights record, praised "the quiet but persistent leadership of Chairman Clarence Thomas" in an editorial on May 17, 1987, entitled "The EEOC is Thriving." The July 15, 1991, U.S. News and World Report wrote, "Overall, it seems clear that he [Thomas] left the [EEOC] in better condition than he found it." He has favored strong remedies for discrimination, including many affirmative steps, such as increased recruitment and outreach to minorities and women. This is the kind of nondiscriminatory affirmative action which we all favor. No, it isn't his civil rights record that these liberal critics are really concerned about; that is just a smokescreen. These critics really object to Judge Thomas having spoken out against what is popularly called reverse discrimination. He has, on a number of occasions, voiced his objections to preferences, to numerical devices whether labeled quotas, goals, or set-asides. This is the kind of affirmative action which is discriminatory itself. Here is one way he has put his views: I am proud to defend the principle that people should be judged on the basis of what they can do, not on the basis of irrelevant personal characteristics. [Some believe] that the laws should be read to prohibit only some discrimination and to permit, or even require, other discrimination—the prohibited and permitted types of discrimination to be determined, apparently, by the governing elites. Since the memory of when the governing elites favored discrimination against black people is still so clear in my mind, I prefer not to leave to the elites the discretion to categorize race discrimination into permitted and prohibited classes. All discrimination must be prohibited. 42 Now, just as our society had finally enacted long overdue laws to prohibit racial, ethnic, and gender discrimination, new forms of discrimination were invented, ostensibly in the name of civil rights. Innocent persons were made new victims of discrimination as a purported means of remedying discrimination against others and as redress for a history these new victims had not created. Now, we all know that discrimination and bigotry still persist in this country. It is a shame. Indeed, a tiny portion of my mail regarding Judge Thomas is another unfortunate reminder that some people in this country want to keep black people down. One satisfactory result of Judge Thomas' confirmation to the Supreme Court, for this Senator, will be the powerful rebuke it delivers to these un-American bigots. But the answer to discrimination is to end it, make whole its victims, take steps to ensure that it does not recur, and require the guilty party to recruit more minorities and women into its applicant pool and consider them fairly along with the rest of the applicants. The answer is not engage in discrimination against other innocent persons. Two wrongs do not make a civil right. The overwhelming majority of the American people favor equal opportunity—not equal results; not preferences for or against anyone because of their race, ethnicity, or gender; not reverse discrimination. They are well familiar with the variety and scope of the devices, however euphemistically labeled, used to embed preferences and reverse discrimination in employment and elsewhere. The advocates of preference and reverse discrimination know that these policies are extremely unpopular with the American people. Accordingly, supporters of these unfair policies couch their attacks on Judge Thomas in other language. Thus, they criticize him for his "civil rights record" or alleged lack of sensitivity, or for being against all affirmative action rather than only the preferential, unfair aspects of affirmative action, as reflects his true position while in the executive branch. In my view, it is really the judge's expressed belief in the equal rights of all Americans that some of these critics are really upset about. Now, I do not know how Judge Thomas will vote on specific aspects of affirmative action. As a Supreme Court Justice, he will be in a new and a unique role. But because he has spoken out while in policy-making positions against preferences and what has become popularly known as reverse discrimination, the supporters of these unfair policies want to punish him. I trust, however, that the Senate will not sacrifice Judge Thomas on the twin altars of preferences and reverse discrimination. I will not dwell on my frequently expressed concern that the Senate has been infringing on the independence of the judiciary when it seeks direct or indirect commitments on specific legal issues from judicial nominees. Issues in the courts must be resolved in the courts. This judicial resolution should occur after parties have presented the facts of a specific case, deployed their legal arguments for the judges to consider, and the judges have done their own research and internal consultation. Such issues are not to be decided based on what a nominee tells a Senate committee in advance. Confirmation of a nominee should not turn on a commitment to prejudge an issue. 43 I do wish to express two special concerns about this nomination process. Some interest group advocates of particular policies want this committee to insist that Judge Thomas answer questions and meet certain litmus tests, such as on abortion, that Justice Souter did not answer or meet just 1 year ago, 1 year ago this week. Last year, we were told that Justice Souter held the key to Roe v. Wade, yet virtually no one in the Senate made his discussion of that issue a condition of their vote. Now, Judge Thomas is before us, and some would have us believe he now holds the key to Roe v. Wade. I note that Judge Thomas casts only one vote, not five. It is inappropriate enough that he is expected to answer some of the questions Justice Souter did not answer. But if Judge Thomas is held to a higher standard and even more rigorous litmus tests than Justice Souter, I think many Americans will be deeply troubled and will want to know why this particular nominee is being singled out at this time. Moreover, we are here to determine Judge Thomas' fitness to be a Justice of the Supreme Court, not to conduct oversight on the EEOC or the Office for Civil Rights. We are not here to test his memory on events and documents constructed years ago. I would also note that after every matter in which Judge Thomas was involved in the executive branch, this Senate later confirmed him to a very responsible position at least once, and, in some cases, three times. Finally, I just wish to mention my own delight at Judge Thomas' success. That success says a great deal about our country and about Judge Thomas, the man. Having grown up in the era of Jim Crow and gone barefoot in the unpaved streets of his community, he will soon be able to put his feet under the bench in the highest court in this land, as he contemplates the finer points of the law. I understand this. I was born into a family where we didn't have indoor facilities either during the early years of my life. And I understand what it is like in this great country. And I have to tell you, Judge Thomas, I am so doggone proud of you I can hardly stand it. I think it is a terrific thing that you are nominated to this position, and I personally will support you with every fiber of my being. As you yourself said when nominated, only in America could such a thing happen. It is wonderful to be a citizen in this country, and it is wonderful to see you sitting there before us this day. And it just reconfirms what all of us already know. This is the greatest country in the world. Thank you, Mr. Chairman. [The prepared statement of Senator Hatch follows:] 44 "It is a particular pleasure for me to welcome Judge Thomas to this Committee. I have known Judge Thomas for over 10 years. President Bush could not have made a finer nomination to the Supreme Court. This nominee is eminently qualified to be a Supreme Court Justice. Judge Thomas has an excellent educational and legal background. Judge Thomas has served in all three branches of the federal government. In so serving, he has already won Senate confirmation four times in less than nine years, perhaps more than any other person during the same period. Judge Thomas has also served as an Assistant Attorney General of the State of Missouri, under our distinguished colleague, John Danforth. He has also worked in the private sector as a lawyer in Monsanto Company's legal department. I share President Bush's view that a Justice of the Supreme Court should interpret the law according to its original meaning and not legislate his or her own policy preferences from the bench. Based on a careful review of his writings and judicial opinions, and my knowledge of the man, I am confident Judge Thomas will interpret the law according to its meaning, rather than substitute his own policy preferences for the law. I am also confident that Judge Thomas will zealously safeguard the principle of equal justice under law for all Americans — not just white Americans, not just black Americans 45 or Hispanic Americans or Asian Americans, but for all Americans, without unfair preference. Judge Thomas' opinions also indicate that he is a sound lawand-order jurist — tough but fair on criminal defendants. Those who have known Judge Thomas over the years know that Judge Thomas is a man of fierce independence. When he is confirmed, he will be nobody's man but his own, as he has been throughout his life. The Judge's independence is not bounded by ideology. For example, when asked his views about establishing enterprise zones in inner cities, a principal element of conservative urban policy, Judge Thomas politely poured cold water on the idea. In so doing, here is part of what he said in 1985: ""The first priority is to control crime. The sections where the poorest people live aren't really livable. If people can't go to school, or rear their families, or go to church without being mugged, how much progress can you expect in a community? ' Would you do business in a community that looks like an armed camp, where the only people who inhabit the streets after dark are criminals? There were lots of black businesses before enterprise zones...But blacks cannot stay in business if they are mugged, or if customers are mugged going in and out of the establishment, or if people are hanging out selling drugs in front of it. If you want to encourage business in these areas, then stopping crime has got to be at the top of the list."" Judge Thomas' independence, however, does not sit well with 46 some special interest groups and some liberal academics and pundits. These critics would like to impose their liberal policy agenda on the American people through the judiciary. They fear Judge Thomas will be faithful to the Constitution and federal laws as enacted, instead of to their political agenda. We have heard criticism from some groups that Judge Thomas isn't strong on civil rights. Nonsense. Judge Thomas has an excellent record on civil rights and a deep personal commitment to equal opportunity. As he wrote in 1986, ""I am a black Southerner, I grew up under the heel of segregation and I have always found it offensive for the government to treat people differently from others because of the color of our skin."" At his confirmation hearing just last year for the judgeship he now holds, Judge Thomas testified: ""...the reason I became a lawyer was to make sure that minorities, individuals who did not have access to this society, gained access..."" He took over the chairmanship of an Equal Employment Opportunity Commission in 1982 that had been left in a shambles by his Carter Administration predecessors. The Washington Post, no shill for the Reagan Administration's civil rights record, praised ""the quiet but persistent leadership of Chairman Clarence Thomas"" in an editorial on May 17, 1987, entitled, ""The EEOC is Thriving."" The July 15, 1991 U.S. News and World Report wrote: Overall, it seems clear that he left the [EEOC] in better condition than he found it. He has favored strong remedies for 47 discrimination, including many affirmative steps, such as increased recruitment and outreach to minorities and women. This is the kind of nondiscriminatory affirmative action which we all favor. No, it isn't his civil rights record that these liberal critics are really concerned about, that is just a smokescreen. These critics really object to Judge Thomas having spoken out against what is popularly called reverse discrimination. He has, on a number of occasions, voiced his objections to preferences, to numerical devices whether labelled quotas, goals, or setasides. This is the kind of affirmative action which is discriminatory itself. Here is one way he has put his views: I... am proud... to defend the principle that people should be judged on the basis of what they can do, not on the basis of irrelevant personal characteristics. [Some believe] that the laws should be read to prohibit only some discrimination and to permit, or even require, other discrimination — the prohibited and permitted types of discrimination to be determined, apparently, by the governing elites. Since the memory of when the governing elites favored discrimination against black people is still so clear in my mind, I prefer not to leave to the elites the discretion to categorize race discrimination into permitted and prohibited classes — all must be prohibited. Just as our society had finally enacted long overdue laws to prohibit racial, ethnic, and gender discrimination, new forms of discrimination were invented, ostensibly in the name of civil 48 rights. Innocent persons were made new victims of discrimination as a purported means of remedying discrimination against others and as redress for a history these new victims had not created. Now, we all know that discrimination and bigotry still persist. Indeed, a tiny portion of my mail regarding Judge Thomas is another unfortunate reminder that some people in this country want to keep black people down. One satisfactory result of Judge Thomas's confirmation to the Supreme Court, for this Senator, will be the powerful rebuke it delivers to these unAmerican bigots. But the answer to discrimination is to end it, make whole its victims, take steps to ensure that it does not recur, and require the guilty party to recruit more minorities and women into its applicant pool and consider them fairly along with the rest of the applicants. The answer is not to engage in discrimination against other, innocent persons. Two civil wrongs do not make a civil right. The overwhelming majority of the American people favor equal opportunity — not equal results; not preferences for or against anyone because of their race, ethnicity, or gender; not reverse discrimination. They are well familiar with the variety and scope of the devices, however euphemistically labelled, used to embed preferences and reverse discrimination in employment and elsewhere. The advocates of preference and reverse discrimination know that these policies are extremely unpopular with the American people. Accordingly, supporters of these unfair policies couch 49 their attacks on Judge Thomas in other language. Thus, they criticize him for his ""civil rights record"" or alleged lack of sensitivity, or for being against all affirmative action rather than only the preferential, unfair aspects of affirmative action, as reflects his position while in the Executive Branch. In my view, it is really the Judge's expressed belief in the equal rights of all Americans that some of these critics are really upset about. I do not know how Judge Thomas will vote on specific aspects of affirmative action. As a Supreme Court Justice, he will be in a new, and unique role. But because he has spoken out while in policy-making positions against preferences and what has become popularly known as reverse discrimination, the supporters of these unfair policies wish to punish him. I trust, however, the Senate will not sacrifice Judge Thomas on the twin altars of preferences and reverse discrimination. I will not dwell on my frequently expressed concern that the Senate has been infringing on the independence of the judiciary when it seeks direct or indirect commitments on specific legal issues from judicial nominees. Issues in the courts must be resolved in the courts. This judicial resolution should occur after parties have presented the facts of a specific case, deployed their legal arguments for the judges to consider, and the judges have done their own research and internal consultation. Such issues are not to be decided based on what a nominee tells a Senate Committee in advance. Confirmation of a 50 nominee should not turn on a commitment to prejudge an issue. I do wish to express two special concerns about this nomination process. Some interest group advocates of particular policies want this Committee to insist that Judge Thomas answer questions, and meet certain litmus tests, such as on abortion, that Judge Souter did not answer or meet just one year ago this week. Last year, we were told that Judge Souter held the key to Roe v. Wade, yet virtually no one in the Senate made his discussion of that issue a condition of their vote. Now, Judge Thomas is before us and some would have us believe he now holds the key to Roe v. Wade. I note that Judge Thomas casts one vote, not five. It is inappropriate enough that he is expected to answer some of the questions Judge Souter answered. But, if Judge Thomas is held to a higher standard and even more rigorous litmus tests than Judge Souter, I think many Americans will be deeply troubled and will want to know why this particular nominee is being singled out. Moreover, we are here to determine Judge Thomas' fitness to be a Justice of the Supreme Court, not to conduct oversight on the EEOC or the Office for Civil Rights. We are not here to test his memory on events and documents constructed years ago. I would also note that after every matter in which Judge Thomas was involved in the Executive Branch, this Senate later confirmed him to a very responsible position at least once, and in some cases, three times. Finally, I wish to mention my own delight at Judge Thomas' 51 success. That success says a great deal about our country and about Judge Thomas, the man. Having grown up in the era of Jim Crow, and gone barefoot in the unpaved street of his community, he will soon be able to put his feet under the bench in the highest court in the land, as he contemplates the finer points of the law. As Judge Thomas said when nominated, only in America could such a thing happen. The Nominee's Judicial Experience Let me lay to rest, here, any criticism that Judge Thomas' less than two years on the bench somehow renders him less than the best for the job. Of the 105 people who have served on the Supreme Court, 41 had no prior judicial experience whatsoever. Another 10 Justices had less than two years of State or federal judicial experience. Thus, Judge Thomas has as much or more judicial experience as nearly half of those who served on the Supreme Court, including many of the most distinguished and wellregarded Justices ever to serve. The use of double-standards to hold down blacks in well known. I am confident that the Senate will not impose an unconscious double-standard on this nominee with respect to judicial experience. 52"
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Senator Metzenbaum has been kind enough, I am told, to yield to Senator Leahy because he has an appointment with the President to discuss the next five nominees to the Supreme Court. [Laughter.] I will yield to Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. I thank you, but I especially want to thank Senator Metzenbaum. Because of the President's schedule, the time of the meeting is such that I probably would not be able to make an opening statement if he did not yield, and I appreciate the courtesy of both of you. Judge Thomas, I am pleased to welcome you and your family to these hearings, and I was delighted to have a chance to meet, albeit briefly, Mrs. Thomas this morning. The Constitution's advise-and-consent process established a method of assuring the fitness of Supreme Court nominees. That really has to be the most important function this committee can serve. It was at such committee hearings as we are having today that Justice Thurgood Marshall was approved for a seat on the Court some 24 years ago. If you look at the distinguished career of Justice Marshall, you see him serving as the able guardian of rights, rights that affect the welfare of every man, woman, and child in this country, rights like personal privacy, rights like a woman's right to choose, freedom of speech, the separation of church and State, and school desegregation. He fought for those issues during those 24 years and those issues are no less important today. The nominee who replaces Justice Marshall on the Court is going to be with us long after many at this table today have moved on. When children born this year become eligible to vote in the year 2009, Judge Thomas, if you are confirmed, you will still be a relatively youthful 61 years old. So your nomination comes at a pivotal time in Supreme Court history. In little over a year, two of the Court's great defenders of individual liberties—William Brennan and Thurgood Marshall—have both retired. Now, their departure gives cause for public concern about the direction of the Court, and that concern is reflected in the hundreds of letters and phone calls I have received from Vermonters this summer. Many fear that we are witnessing the creation of a monolithic, right-wing Court that is going to favor the State and the power of the State and its bureaucracies over individual and minority rights. Now, you speak passionately about individual freedom, and your concerns are well placed, for it is the courts, and preeminently the Supreme Court, that must defend those freedoms. Judges are often targets of public disdain because they rule according to the law; they don't rule according to popular opinion or public opinion polls. That takes courage, especially when decisions run counter to shifting political winds. Our Founding Fathers anticipated this by insulating judges from the majority will, granting them lifetime tenure. Laws may be made by majorities, but minori- 53 ties are safe only if those laws are tempered by justice and a passion for the liberties of the individual. The next Supreme Court nominee that the Senate confirms must be dedicated to the proposition that personal freedom is the birthright of every single American. In exercising our advise-and-consent responsibility, we have to consider a nominee's threshold qualities of judgment, temperament, experience, intellectual distinction, and moral fiber. But having done that, we look beyond to probe a nominee's judicial philosophy. Does he or she have an expansive or a narrow view of the Constitution? Does the nominee regard the Constitution as a safeguard for civil rights and liberties, as it was for Thurgood Marshall and so many great conservative and liberal Justices of the Court? Or does the nominee espouse a narrow and guarded approach that ultimately limits the freedoms of all Americans? Finally, we have to assess a nominee's willingness to answer questions. No nominee should be asked to discuss cases pending before the Court. I accept that. That is a given. Neither should a nominee feel free to avoid questions about established constitutional doctrine on the ground that a case on that subject may eventually come before the Court. Far too much is at stake. The Senate and the public have a right to know what a nominee thinks about critical issues before that nominee is confirmed to a lifetime seat on the Court. Let me make this very clear, Judge Thomas. In recent years, we have danced around the question of where nominees stand on a woman's fundamental right to choose an abortion. This is one of the burning social issues of our time. It is the single issue about which this committee and the American people most urgently wish to know the nominees' views. And yet the Senate and the Nation have been frustrated by polite—albeit respectful—stonewalling. To the extent that Judge Souter declined to answer pertinent questions last year, I was disturbed, and I told him so. In light of your warm praise for Louis Lehrman's essay arguing that all abortions should be unconstitutional, I believe the burden is on you to explain that view. I will expect forthright answers from you. If not, then I will have no choice but to assume that you agree with what Mr. Lehrman said. Judge Thomas, let me also say that I look forward to getting to know you better in these hearings. I am impressed, and I believe the country is impressed, by the less-traveled road that you have taken from Pin Point, GA, to the threshold of the Supreme Court. Your self-discipline, your diligence, and your hard work are exemplary. At the same time, you must understand that your record and some of your writings trouble me. I have no clear idea of what your approach is to the Constitution. You describe yourself as conservative. Well, most Vermonters are conservative, too. But Vermont conservatives believe first and foremost in limited government, a government that stays out of people's personal affairs, leaves us alone. They understand what Justice Louis Brandeis described as the right to be let alone. But many conservative activists contend that Justices should defer invariably to majority rule, somehow to put blind faith in the 54 infallibility of whatever the legislature does. You were part of a White House working group on the family which went so far as to argue that the jurisdiction of the Federal courts might have to be curtailed. Why? To ensure that the majority automatically rules. I think the model becomes "my government, right or wrong," and I find that a chilling abandonment of individual and minority rights. Let us never forget that history has been written time and again by those who dare to challenge conventional wisdom. You often allude to what the Declaration of Independence calls the laws of nature and of nature's God. Well, natural law, we all know, is an elastic concept. It can be used to defend but also to deny basic rights. In a case alluded to already at this hearing today, the famous case from the 1870's, one Supreme Court Justice would have upheld a law in Illinois that barred a Vermont woman from becoming a lawyer. And why would this Vermont woman be barred from becoming a lawyer? Because under the laws of nature, according to this Justice, women were granted the noble and benign offices of wife and mother, and that was it. He wanted to make certain we knew that natural law would never accept a woman as a lawyer. Now, that might seem like a very quaint and dated reference, but the natural law problem is anything but dated. It can be used to argue for or against rights like abortion and privacy. I want to know what natural law means to you, Judge. How would you use it to interpret the Constitution and the Bill of Rights? And I will ask questions along that line. In the hearing this committee held last year to consider your nomination to the D.C. circuit, you said that you were not "someone who has had the opportunity or the time to formulate an individual, well-thought-out constitutional philosophy." Well, that is fair enough. I don't have any problem with that answer. Every nominee to the Court of Appeals need not come armed with a fully coherent constitutional jurisprudence. They have to follow what is already in the law, what is already decided by the Supreme Court. But nominees to the Supreme Court should be prepared to tell this committee and, through us, the American people how they are going to approach the Constitution and the Bill of Rights. I am troubled by your open admiration for those willing to deceive and defy Congress and by the hostility you have demonstrated toward Congress, both in action and in words in your speeches. You have attacked Chief Justice Rehnquist's opinion that upheld the special prosecutor law for Watergate-style investigations. You have questioned Congress' power to enact civil rights legislation. You have suggested repeatedly that Congress has no business carrying out its oversight function, one of the most important functions of this body. I have always considered the separation of powers to be the surest guarantor of the limited government you claim to prefer. So when you state a clear preference for executive branch power over congressional authority, it gives me some pause. Finally, I am concerned about some of your ideological views. You have wholeheartedly endorsed the statement that America is careening with frightening speed toward a statist dictatorial system. Well, I cannot accept that, and these words seem more than a little strange as we watch the unfolding drama of Eastern Europe and the Soviet Union, where countries that truly suffered under statist dictatorial systems throw off their shackles. And when they throw off their shackles, where do they look? They look toward a free and compassionate America as an example of how a democracy is run. But, more disturbingly, your words strike me as the views of a combative, hard-line ideologue. The last thing I seek in a Supreme Court Justice is ideology. I value intelligence and wisdom, compassion, a willingness to listen to all sides of an argument. I want someone on the bench who is going to give every litigant a fair shake, without bias or predisposition of any kind. Ideological fervor plays no part in a judicial temperament. So I look forward to discussing these and other issues with you. I welcome you to these hearings. I hope that you will be forthcoming in your responses to the committee because ultimately we have to make the fully informed recommendation to the Senate and to the rest of this country. I welcome you here, and, Mr. Chairman, again, I thank both you and Senator Metzenbaum for the courtesy. [The prepared statement of Senator Leahy follows:] 56 U.S. SENATOR PATRICK LEAHY VERMONT Judge Thomas, I am pleased to welcome you and your family to these hearings. The Advice and Consent process established by the framers of the Constitution to assure the fitness of Supreme Court nominees is one of this Committee's most solemn responsibilities. It was at such committee hearings that Justice Thurgood Marshall was approved for a seat on the Court 24 years ago. During his distinguished career. Justice Marshall served as an able guardian of rights that affect the welfare of every man, woman and child in this country — rights like personal privacy; a woman's right to choose; freedom of speech; the separation of church and state; and school desegregation. These issues are no less important today. The nominee who replaces Justice Marshall on the Court will be with us long after many around this table today have moved on. When children born this year become eligible to vote in 2009, Judge Thomas, you will, if confirmed, still be a relatively youthful Justice of 61. Your nomination comes at a pivotal time in Supreme Court history. In little over a year, two of the Court's great defenders of individual liberties — William Brennan and Thurgood Marshall — have retired. Their departure gives cause for public concern about the direction of the court, and that concern, is reflected in the hundreds of letters and phone calls I have received from Vermonters this summer. Many fear that we are witnessing the creation of a monolithic right-wing Court that will favor the power of the state and its bureaucracies over individual and minority rights. You speak passionately about individual freedom, and your concerns are well placed for it is the courts, and preeminently the Supreme Court, which must defend such freedom. Judges are often targets of public disdain because they rule according to law, not popular opinion. That takes courage, especially when decisions run counter to shifting political winds. Our Founding Fathers anticipated this by insulating judges from the majority will and granting them lifetime tenure. Laws may be made by majorities, but minorities are safe only if those laws are tempered by justice and a passion for the liberties of the individual. The next Supreme Court nominee that the Senate confirms must be dedicated to the proposition that personal freedom is the birthright of all Americans. In exercising our advice and consent responsibility, we must first consider a nominee's threshold qualities of judgment, temperament, experience, intellectual distinction and moral fiber. But we must look beyond that, probing a nominee's judicial philosophy. Does he or she have an expansive or narrow view of the Constitution? Does he regard the Constitution as the safeguard for civil rights and liberties, as it was for Thurgood Marshall and so many great conservative and liberal Justices of the Court, or does he espouse a narrow and guarded approach that will limit our freedoms? 57 Finally, we have to assess a nominee's willingness to answer questions. No nominee should be asked to discuss cases pending before the Court. Neither should a nominee feel free to avoid questions about established constitutional doctrine on the ground that a case on that subject eventually will come before the Court. • Too much is at stake. The Senate and the public have a right to know what a nominee thinks about critical issues before that nominee is confirmed to a lifetime seat on the Court. Let me make this clear. Judge Thomas. In recent years, we have danced around the question of where nominees stand on a woman's fundamental right to abortion. This is one of the burning social issues of our time. It is the single issue about which this Committee and the American people most urgently wish to know the nominee's views. And yet the Senate and the nation have been frustrated by polite and respectful stonewalling. To the extent that Judge Souter declined to answer pertinent questions last year, I was disturbed and I told him so. In light of your warm praise for Lewis Lehrman's essay arguing that all abortion should be unconstitutional, the burden is on you to explain your views. I will expect forthright answers from you. Otherwise, I will have no choice but to assume that you agree with Mr. Lehrman. Judge Thomas, let me say that I look forward to getting to know you better in these hearings. I am impressed — and the country is — by the less-travelled road you have taken from Pin Point, Georgia to the threshold of the Supreme Court. Your self-discipline, diligence and hard work are exemplary. At the same time, your record and your writings trouble me. First, I have no clear idea of your approach to the Constitution. You describe yourself as conservative. Most Vermonters are conservative, too. Vermont conservatives believe first and foremost in limited government — a government that stays out of people's personal affairs and understands what Justice Louis Brandeis described as the "right to be let alone." But many "conservative" activists contend that judges should invariably defer to majority rule, putting blind faith in the infallibility of the legislature. You were part of a White House Working Group on the Family which went so far as to argue that the jurisdiction of the federal courts might have to be curtailed to ensure that the majority rules. The motto becomes "my government, right or wrong," a chilling abandonment of individual and minority rights. Let us never forget that history has been written time and again by those who dare to challenge conventional wisdom. You often allude to what the Declaration of Independence calls the "Laws of Nature and of Nature's God." Natural law is an elastic concept which can be used to defend or to deny basic rights. In a famous case in the 1870s, one Supreme Court Justice would have upheld a law in Illinois that barred a Vermont woman from becoming a lawyer because, under the laws of nature, women were granted "the noble and benign offices of wife and mother." He wanted to make certain we knew that natural law would never accept a woman as a lawyer. Thai might seem like a quaint and dated reference, but the natural law problem is anything but dated. It can be used to argue for or against fights like abortion and privacy. I want to know what 58 natural law means to you. Judge Thomas, and how you would use it to interpret the Constitution and the Bill of Rights. In the hearing this Committee held last year to consider your nomination to the D.C. Circuit, you said that you were "not...someone who has had the opportunity or the time to formulate an individual, well thought-out constitutional philosophy." Fair enough. Every nominee to the Court of Appeals need not come armed with a fully coherent constitutional jurisprudence. But nominees to the Supreme Court should be prepared to tell this Committee and the American people how they would approach the Constitution and the Bill of Rights. I am also troubled by your open admiration for those willing to deceive and defy Congress and by the hostility you have demonstrated toward Congress both in action and in word. You have attacked Chief Justice Rehnquist's opinion that upheld the special prosecutor law for Watergate-style investigations. You have questioned Congress's power to enact civil rights legislation. You have repeatedly suggested that Congress has no business carrying on its oversight function. I have always considered the separation of powers to be the surest guarantor of the limited government you claim to prefer. Thus, your clear preference for executive branch power over the congressional authority gives me pause. Finally, I am concerned about some of your ideological views. You have wholeheartedly endorsed the statement that "[America is] careening with frightening speed towards...a statist-dictatorial system...." These words seem more than a little strange as we watch the unfolding drama of Eastern Europe and the Soviet Union, where countries that truly suffered under statist-dictatorial systems throw off their shackles and turn a hopeful eye toward a free and compassionate America. More disturbing, your words strike me as the views of a combative, hard-line ideologue. The last thing I seek in a Supreme Court Justice is ideology. I value intelligence, wisdom, compassion, and a willingness to listen to all sides of an argument. I want someone on the bench who is going to give every litigant a fair shake, without bias or predisposition of any kind. Ideological fervor plays no part in a judicial temperament. Judge Thomas, I look forward to discussing these and other issues with you. I welcome you to these hearings and hope that you will be forthcoming in your responses to this Committee so we can make a fully informed recommendation to the Senate and to the American people. 59
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. I see you were trying to throw me off of my usual pattern there. The tenor of my remarks were somewhat dependent upon the commentaries that might emanate from my friend and senior colleague from Ohio.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It will make it harder for you to attack, before attacked, but give it a shot anyway, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you. I was citing there a natural law of the Judiciary Committee. [Laughter.] Judge Thomas, we welcome you to this important step in this process. Some of my colleagues have already spoken very clearly of your impressive and truly inspiring life story. I will not reiterate those remarkable accomplishments, and yet they certainly do stir one. I would only point out a clear irony, congratulations, and because of your tremendously successful career to date, you now have the opportunity to be subjected to a very rigorous process that can be unpleasant and sometimes rancorous, but, hopefully, never unfair. I do not believe our Chairman would ever allow that. Let me emphasize that these hearings can also be, quite clearly, courteous and thoughtful, and I believe that was indeed the case when we heard testimony and comments from Judge Souter and Judge Kennedy, before this committee voted to elevate them to the Supreme Court. On the other hand, I think Judge Bork might choose to undergo a medieval torture chamber, rather than to be presented again before this committee, and that was a very unfortunate situation in my mind, whether you liked him or whether you didn't. So, Judge Thomas, unlike some nominees we have faced, and I think, again, in particular, of Justices Kennedy and Souter, you are really not a great mystery to any of us. You have been here before the U.S. Senate four times. No one I can ever imagine would have that type of exposure before this committee. So, no mystery to us. You have twice been confirmed by the U.S. Senate here on the EEOC, by this very committee, after extensive hearings before the Senate, we confirmed your nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Four times, members of the Senate have voted for or against you, very few in the negative. What is different now, I suppose will be told to us is being a higher standard. I think it will be really a higher degree of plain old politics. There is nothing wrong with that, but I think we ought to stay with reality as to what it will be. There will be some witnesses who will appear after you who will be very critical of you, extremely critical. They certainly have that right to express any type of opinion they may wish. However, for those Americans who are not as familiar with your record as we are in the Senate after four separate hearings, let me emphasize 56-270 O—93 3 60 that some criticisms of you have already been well considered and rejected by the Senate, and I think that is important to keep in mind. Some groups will be here to criticize your tenure, as Chairman of the EEOC or as Director of the Education Department's Office of Civil Rights. This committee and the full Senate has had all of those criticisms squarely before us on more than several occasions, including one which was not of great record, before the Senate Select Committee on Aging, which was a real rake-around job in ancient days, and not much came of that, either. So, we rejected all of those previous when we confirmed your nomination to the D.C. Circuit Court by a voice vote. I think there was a quite audible "nay," perhaps from one on the panel who is not a faint-hearted man and who speaks very clearly on the issues. So, I would hope that this hearing does not simply dwell on all these previously thoroughly debated and already decided issues. That laundry has been well-washed. Some critics will be here to say and will say here that the ABA found you to be only qualified for the Supreme Court, and that is the American Bar Association. I assume some on that committee apparently would have preferred that you had more experience on the appeals court. But let us clearly remember that most of those in the ABA are of the same critics who opposed the nomination of Robert Bork, even though a majority of the ABA committee had found Judge Bork to be "well-qualified." So much for that. Let us also recognize the ABA rating for exactly what it is, helpful at times, irrelevant at others, and always subject to political manipulation and pressure of special interest groups within the bar—yes, that does occur. Some special interest groups will be here to say some pretty harsh and even some very arrogant and patronizing and even nasty things about you, from the testimony I can envision coming from them in some of the material I have seen. You might not even be able to recognize yourself when they are finished portraying you. I know that was the case with Robert Bork. I do not come back on that to express any unfairness by the Chairman. There are many who feel the other way. That is not even the issue. But what I saw happen, this Senator from Wyoming, was we watched a man who had been on the Federal bench for 5x /2 years, who had done and written 104 decisions, none of them ever overturned on appeal, and 6 of his dissents became majority opinions of the U.S. Supreme Court, and whether one liked him or not, he was portrayed to this committee and to the U.S. people as a gargoyle, a sexist, a racist, an invader of the bedroom, a sterilizer of women. I sat right here and watched it all happen—a very, very troubling procedure. So, from what I have come to discern, you will also be portrayed by some as being hostile to privacy rights, as being an apologist for segregated schools, and a promoter of wild, dramatic, and unchecked theories of natural law that will cause the U.S. Constitution to come undone, it seems. One writer, I think who aspires to this Court under some other administration, has said that the Senate cannot avoid sharing the responsibility for the fate of selfgovernment in the United States—pretty dramatic. 61 I thought, as I heard the discussion, I think you might come to see that natural law will become but a pseudonym for natural opposition or natural partisanship or natural frustration, at having to place an independent, thoughtful, bright conservative on the U.S. Supreme Court. That will become quite evident to the American public. Now, there is a natural solution for that, elect a natural Democrat as President of the United States. The American public has not chosen recently to do that, but, naturally, they could. [Laughter.] So, some groups have actually portrayed you as being hostile to civil rights issues, and that is patently absurd and demeaning and arrogant. It is clearly known that you are a powerful supporter of antidiscrimination laws. We also well know that other groups are most afraid of other groups who do not like the fact that you oppose remedies which themselves cause reverse discrimination, when actually most types of reverse discrimination do indeed violate the Constitution and most Americans really do strongly oppose reverse discrimination. So, I believe these criticisms of you to be inaccurate and off-base, and some writers I think have been in some cases somewhat hysterical. And one can be a fine and strong supporter of civil rights, while being very strongly opposed to unfair preferences, and many here feel that way. I know I fit that category, too. So, Judge Thomas, there will be a number of us here who listen to seek the truth. If we are here just to hear some of the special interest groups parrot some of the old sale lines of criticism I have just recited, well, we have our opportunity to rebut that. But for now, I earnestly recommend that you sit back and relax as much as is possible. The Chairman will handle it with equanimity and care and fairness, and allow the American public to come to know you in the same way that many of us on this committee know you. And through tough, hard, serious and, yes, even partisan questions by this committee, I believe all Americans will come to know you for what you are, an uncommonly bright, articulate, and qualified judge, with significant and impressive legal and life experiences, who is ready, fully ready, willing, and able to serve our country on the Nation's highest court. Let me conclude by saying that not only do I believe you will be good for the Supreme Court, but, Judge Thomas, I think you will also be very good for America on the broader level. You yourself have noted that is some risk, obviously, that there are too many people today giving groups excuses for various things that happened in their lives. I am not even going to comment on that. You can. You have. But I think the last thing anyone needs right now in this country, white, brown, yellow, or black, is more excuses for everything. Excuse time is over. It is important to run out of scape goats. It is time for all Americans—and that is what we are in this pluralistic society—to focus again on what has made this country great, and we must all reacquaint ourselves, all of us, every race, color and creed, with those distinctly American and, yes, even corny notions of hard work and decency and kindness and fairness to our fellow 62 humans, and we must strive to provide every single individual with an equal opportunity to realize his or her full potential. You exemplify what all of us might be able to accomplish, good things if we were to stop making excuses, and I was awfully good at that. I was known as "Alibi Al" in high school, and it worked. I could fake anybody out except myself. Finally, creeping maturity overcame me, and there was some progress. So, you are an inspiration to us all. Mr. Chairman, I thank you and I sincerely welcome Judge Thomas to our committee, and I thank you for your past and present courtesies.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator, for once again not disappointing. I think you will soon find out that Judge Thomas' views are so different from Judge Bork's that you will be surprised to find that this is not about conservatives; rather, this is about how people think.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I have an opportunity for rebuttal, thank you. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Judge Thomas, this is the fifth Supreme Court vacancy in the Reagan-Bush era. Once Justice Marshall's seat is filled, Presidents Reagan and Bush will have filled a majority of seats on the Supreme Court. A judicial nominee cannot become a member of the High Court, simply because the President and his advisers are comfortable with that nominee's views and judicial philosophy. The Supreme Court is not an extension of the Presidency. The Constitution makes it clear that the Supreme Court is a separate and independent branch of government. That same Constitution assigned the Senate a role in the confirmation process, to help preserve the independence of the judiciary. The importance of the Senate's role has grown in recent years, because, quite frankly, Presidents Reagan and Bush have made no bones about using the Court to advance their political and social agenda. A core element of the Reagan-Bush political program has been reversal of Supreme Court decisions in the areas of abortion, civil rights, individual liberties, and the first amendment. The Reagan and Bush administrations have used the courts to achieve policy outcomes on social issues which they could not obtain through the legislative process. Make no mistake about it, the Reagan and Bush administrations have succeeded. You only have to look at the Court's astonishing decision last term in the abortion gag rule case, to realize that the Rehnquist court is intent on implementing the Reagan-Bush social agenda. An omen of things to come from the Rehnquist court was contained in a paragraph in Payne v. Tennessee, a 1991 case in which the Court reversed itself on a question of constitutional liberties. The majority in that case stated that adherence to precedent is 63 most important in cases involving property and contract rights. But with respect to constitutional rights and liberties, a majority of the Rehnquist court stated that adherence to precedents "is not an inexorable command, particularly in constitutional cases." In other words, the Reagan-Bush Supreme Court thinks that Justices should be more respectful of precedent, when a business person's contractual rights are at stake than when a woman's constiytutional right to choose or an African-American's right to equal treatment is at stake. As Justice Marshall wrote in his dissent in Payne, this statement by the Reagan-Bush court sends "a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting open defiance of our precedents," said Justice Thurgood Marshall. It is in that context that the current nominee comes before the Judiciary Committee. The nomination of Judge Clarence Thomas has provoked debate and differences of opinion throughout the country. But there is one thing upon which everyone, including this Senator, agrees: Judge Thomas' life story is an uplifting tale of a youth determined to surmount the barriers of poverty, segregation, and discrimination. It was an extraordinary journey from hardscrabble Pin Point, GA, to the promise and privileges of Yale Law School. It would be easy, and probably smart politically, for Senators to vote in favor of this nomination, because of Judge Thomas' personal triumph over adversity. Frankly, I suspect the President and his advisers believe that some Senators will do just that. But the Senate must evaluate the nomination based upon the career and record of the nominee, Judge Thomas. The question for this committee is not where does Judge Thomas come from, rather, the question for the committee is this: Where would a Justice Thomas take the Supreme Court? I am deeply concerned about the answer to that question. The record suggests that Judge Thomas may be an eager and active participant in the Rehnquist court's assault on established judicial precedents which protect civil rights and individual liberties. Judge Thomas has harshly criticized important court decisions which have protected voting rights for blacks and promoted equal treatment for minorities and women. Indeed, he has suggested that many of these decisions be overturned. Virtually every public statement which Judge Thomas has made regarding the issue of abortion indicates that he does not believe the Constitution protects a woman's right to choose. Judge Thomas even signed onto a White House report which urged the appointment of new Supreme Court Justices who would overturn decisions such as Roe v. Wade. There are those who suggest that because of his extraordinary background, Judge Thomas will bring a different perspective to the Court. That may be true. It also may not be true. I am concerned that the nominee's statements and record indicate that, rather than bring a different perspective to the Court, he will fit in all too well with the Court that has spurned its special duty to protect the rights of women and minorities, the elderly, and the poor. 64 During his tenure as Chairman of EEOC, Judge Thomas failed to fulfill his duty to protect the legal rights of older workers. Now, some argue that this failure as EEOC Chairman is irrelevant in determining his qualifications for the Court. I believe that his disregard for the rights of older workers is very relevant. It directly relates to his sensitivity and to his duty to provide judicial and constitutional protection for the aged. Unfortunately, while Judge Thomas was head of the EEOC, thousands of older workers who believed that they were victims of age discrimination lost their right to bring age bias suits in Federal court, because his agency failed to process their claims in a timely manner. Despite assurances from Clarence Thomas that he would correct the problem, Congress found it necessary, in 1988 and again in 1990, to pass legislation to restore the rights of these older workers. In his career with the Federal Government, Clarence Thomas was appointed to jobs designed to protect and enforce the rights of the disadvantage^. Yet, in speech after speech, Clarence Thomas rails against governmental efforts to aid minorities and the disadvantaged. In one article, Judge Thomas even asserted that it was insane for African-Americans to expect the Federal Government to help relieve the harmful effects of decades of discrimination. Judge Thomas benefited both from affirmative action and from the work of civil rights leaders and government officials who have tried to break down the barriers of poverty and discrimination. Yet, Judge Thomas condemns government efforts to give other people the same chance he had to climb over those barriers to success. One other area of concern is Judge Thomas' constitutional philosophy. Judge Thomas' speeches and writings suggest that he might read the Constitution as forbidding the minimum wage law, banning affirmative action, and severely restricting constitutional power. In addition, Judge Thomas has asserted that the Constitution must be interpreted in light of natural law. As has already been pointed out, natural law is a broad, vague concept which means different things to different people. Over 50 years ago, conservative judges used natural law arguments to uphold antiunion practices by employers and strike down health and safety legislation. Similarly, a 19th century Supreme Court decision relied upon natural law arguments about "the paramount destiny and mission of women" to justify an Illinois law which banned women from practicing law. Today, antiabortion advocates have cited natural law as the basis for their argument that a fetus has a constitutionally protected right to life which overrides a woman's right to choose. In 1987, Judge Thomas called one article which made that argument "a splendid example of applying natural law." So, Judge Thomas, I begin this hearing with a great deal of respect for your accomplishments, but also with a great deal of concern about your record and about the direction in which the Court has been moving. You have been nominated for a seat on the Supreme Court which can no longer be counted on as a force to promote racial harmony, equal treatment, and social justice. A majority of the Supreme Court has taken a sharp right turn and declared open 65 season on a number of constitutional liberties and civil rights which Americans hold dear. While the President may celebrate the Court's movement in this direction, I lament it. Ultimately, Judge Thomas, I must examine your record and determine whether you will be a Justice who will accelerate this movement, or a Justice who will help to restore balance to the Court, and once again make it a force for equal justice, fair treatment, and individual liberty. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I want to thank you for scheduling this hearing so soon after the recess is over so that we have an opportunity to get through this and to get Judge Thomas sworn in and serving on the Court when it opens its fall term. So, thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Congratulations, Judge Thomas, and I welcome you, and, primarily, I want to also welcome your family. This is for you and for us on this committee a really historic moment, because there has been only 105 Supreme Court Justices since the Supreme Court was set up in accordance with the Constitution. So that will put you, Judge Thomas, in a very small prestigious group. But somehow I feel it is a group you have prepared yourself for diligently. I hope that my fellow Americans know that Judge Thomas has served with distinction in both Federal and State governments. At the Federal level he has substantial experience in all three branches of government, and I would venture to guess that few nominees have ever had such a breadth of experience before being nominated to the highest court in the land. I would hope that this background has given Judge Thomas an appreciation for the appropriate role of courts that they have within our democratic government. Our American governmental system is, of course, a delicate one, with a structure of checks and balances and defined roles for each branch of our government. Sometimes Justices haven't always understood that they are not policymakers. For example, some have criticized Judge Thurgood Marshall for continuing to be an advocate even after he donned the robes of an umpire. One of the architects of article 3, Alexander Hamilton, wrote that the courts must declare only the sense of the law, and if they should be disposed to exercise will rather than that judgment the consequence would be the substitution of their pleasure to that of a legislative body. To be faithful to our Constitution's framers, Judge Thomas will actually be required to step away, step back from his past involvement in the shaping of public policy. Being a judge, as he has said since assuming his position on the Court of Appeals, requires discipline. Rather than making policy, he will be called upon to inter- 66 pret the policies of the elected branches of government, of course all the while guided by the Constitution. This confirmation hearing will give the Senate, and at the same time the American people, the chance to become acquainted with Judge Thomas and to assess whether he possesses the qualities that a Justice should have—fairness, open-mindedness, and objectivity. I suspect that we will all see an individual unlike any other who has come before us as a nominee for the High Court. Judge Thomas spent the first 17 years of his life in strict segregation of the South, directed as to what water fountain he could drink from and what public restroom he could use. Judge Thomas has described this "as close to totalitarianism as he would ever hope to get." He grew up without material comforts and even conveniences. We have heard from him and people who have known him well that it wasn't until he was 7 years old that he lived in a home with indoor plumbing. His home was run quite strictly by his grandparents who, in his words, had "Ph.D.'s in life earned at the university of experience with hard times as their advisor." They instilled in him discipline and respect. It seems to me that discipline is a shortcoming in too much of American society today. So, having that in Judge Thomas puts him a cut above average American society. He was inspired by his grandfather and his teachers. They were Catholic nuns. They gave him his personal foundation—"God, values, morality, and education"—and these are the words that he told the nuns when he paid tribute to them in 1986. In the Senate we have some who have started from humble beginnings and many who were born in great wealth and privilege. None of us, however, has had to surmount the obstacles Judge Thomas confronted. Racism and prejudice from his cruel teenage classmates in the seminary to supposedly enlightened employers he encountered as a young law school graduate. As he has noted, he has been "deterred and preferred" by racially conscious policies. Many others with his experiences would become cynical and selfish, I am sure. But rather we have before us in Judge Thomas a man who has devoted his professional life to work on behalf of equal rights and opportunities for all individuals. He sees the respect for individual rights as a great and overriding tradition of our Nation. What is most important, and he knows while saying that that there is still a lot of work that needs to be done in this great country of ours. Now some find Judge Thomas to be threatening because he challenges the liberal orthodoxy of special preferences and group entitlements. That has become, as columnist William Raspberry has said, "black political orthodoxy." But Judge Thomas' message of self-reliance is a reminder to all Americans that while government's responsibility is to ensure equal opportunity, reliance, let me say too much reliance upon government-mandated preferences won't solve each and every problem. Now we will have the opportunity in the next few days to explore many topics with Judge Thomas. However, he is no stranger to the Senate, and I think I am the fourth person this morning who 67 has said that he has been before this confirmation process of the Senate on four separate occasions, and I guess this is the fifth one. Moreover, I think that Judge Thomas in many different ways, both in public and before this body, has already been very forthcoming. In response to the Committee's request for certain documents, Judge Thomas has provided, I have been told, some 36,000 pages of documents, and I understand that it has been cataloged in some 10 boxes of documents. I don't know, I suppose there could be others because we confirm a lot of people. But I really don't know of any other nominee who has been so scrutinized and so analyzed as you have been Judge Thomas in preparation for this hearing. This document request is just an example of how far the Senate has strayed in the nomination process. I suppose I say that in a historical context. Some have stated that the Senate s "advise and consent" role in the elevation of Supreme Court Justices, of any Supreme Court Justice, for that matter, is the most important power that we in the Senate here exercise. Now, I don't happen to share that view, as important as I take my responsibilities today and through this process, because I happen to feel that confronting the issue of war—as we did only last January, and attempting to bring government spending under control are among the more significant responsibilities that we have. And, of course, I think the Constitution doesn't elevate the confirmation process quite this high. The Constitution shows this because the "advise and consent" role is spelled out in chapter 2 with executive powers, and not with the legislative powers in Article 1. So I think the Constitution itself indicates it is not a preeminent legislative power. It is really only in recent years that the Senate has redefined its role. When Justice White was nominated, just 29 years ago, he came to this Judiciary Committee and was asked only eight questions. What has changed to require all these long hearings over the last quarter century? Well, something has lengthened the process, and to some extent I feel it has been lengthened needlessly. I don't know exactly why, but this is how the process works today, and I am a Member of the Senate and I am going to make sure the process works. But I think once in a while maybe we ought to take some—reanalyze how we do things. And, of course, saying this doesn't mean that the Senate should be a rubber stamp. I don't believe that. Judge Thomas, I look forward to talking with you over the next few days about the role of the courts in our democracy, how you approach cases, and the differences that you see between judicial restraint on the one hand and judicial activism on the other hand. And I will have some questions for you like my colleagues are going to have questions about how you see this whole issue of natural law. We should also have an understanding as to whether you bring a very personal philosophy to the job and the responsibilities of judging. Finally, Judge Thomas, I wish you well in the process which lies ahead, and I caution very much against a quest for commitments on very specific issues, particularly issues that will come before the Court. For if you were to lay out any particular positions on the legal issues of the day, the independence and the integrity of the 68 judiciary would be compromised. We expect you to be a policeman for that integrity and independence, and I believe that you have been already. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Thank you, Mr. Chairman. I would like to welcome you, Judge Thomas, to this historic confirmation hearing. Your nomination by the President is a continuation of a constitutional process begun over 200 years ago, and there are few duties that I take more seriously than the "advise and consent" function entrusted to the Members of the U.S. Senate. As I have with every nomination hearing, I will use this occasion to listen and learn. Through the media, we have all seen and heard and read a great deal about your nomination and its uniqueness. But it is during these hearings where spontaneity and unpredictability are common so that those of us charged with the duty of advice and consent are able to make an informed decision. I have often stated that the Supreme Court is really a people's court. But, while the Court deals with such abstract legal principles as justiciability, collateral estoppel, comity, due process, and so forth, the Court must ultimately deal with real people, their rights, duties, property, and most importantly, their liberty. The Justices of the Supreme Court are the final guarantors of the sacred text of the Constitution and its Bill of Rights and the liberties and freedoms which are enshrined therein and developed therefrom. If confirmed, you will have vast power over the lives of Americans as to their rights of speech, religion, press, association, as well as their property rights. You will participate in decisions which will affect the rights of those accused of a crime, as well as the rights of a lawful society to be protected from the criminal element, and you will have an important say as to what degree of privacy the American people are entitled. The list could go on, of course, but my point is that before we are called on to exercise our confirmation function, we in the Senate must explore what is in your heart and what is your basic judicial philosophy, because if you are confirmed you will serve a lifetime— for perhaps the next 30 years, thus well into the 21st century. We, on behalf of the American people, must investigate if you will zealously guard the freedoms and the liberties that provide a legacy and framework for generations to come. In reviewing the qualifications of a nominee, I am of the opinion that an individual should possess at least the following three criteria: First, an understanding on the proper role of the judiciary under our Constitution; second, an abiding belief in an independent judiciary; and third, a deep commitment to equal justice under the law. To some, you are the very embodiment of the American Dream— you have overcome the bonds of poverty and racial segregation and 69 deprivation and have risen to the top. To others, you have succeeded, but forgotten your past and turned your back on others now less fortunate than you. I and my colleagues will attempt to look into your heart and mind. I will be looking to see if you intend to bring a rigidly ideological agenda to the Court. I will want to know if you respect the principles of stare decisis and judicial restraint, and, most importantly, if you intend to turn the clock back on almost 30 years of racial progress and harmony which have occurred, albeit imperfectly, in the diverse society known as America. Under the "advise and consent" function it is our solemn duty to explore any doubts about you and your thinking. The theme of this hearing could be entitled "Doubting Thomas." The term "Doubting Thomas" has been applied to individuals from biblical times, but it is applied today in a different context. You are not the doubter. It is we in the Senate who are the doubters. This hearing can remove, clarify, increase, or decrease the doubts and the doubters. There are many who have expressed doubts that you are sensitive to equal rights and equal justice under the law for all Americans; doubts about your commitment to achieving the legitimate aspirations of all Americans from whatever walk of life and regardless of their political persuasions; doubts about your concept of natural law, its standards, restrictions, breadth and application; doubts as to whether your judicial thinking is within the mainstream of judicial thought; and many other doubts as well. Judge Thomas, if the Senate is persuaded that you will pursue an ideological agenda, have a closed mind, and will be a judicial activist ignoring the will of elected bodies, then the doubts will become impediments to your confirmation. On the other hand, if your testimony persuades us that you will dispense justice fairly and impartially and that you will listen and be open-minded, then, in my judgment, doubts will be alleviated. President George Washington told his first Attorney General, Edmund Randolph, "The administration of justice is the firmest pillar of government and if justice is the ultimate goal and indispensable for the survival of a free republic, we best ensure it by the people we select as its custodians." We will now have the opportunity to learn if you are worthy of that admonition, and I look forward to hearing from you. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much. Judge Thomas, I join my colleagues in welcoming you here this morning. I have read extensively on your opinions and your speeches and your background, and I congratulate you on a very remarkable career. As I have read about your roots and about the instructions and guidance which you got from your grandfather, I could not help 70 but think that your grandfather and my father would have been good friends. You have really pulled yourself up, perhaps without bootstraps, perhaps by your kneecaps. You come to the Senate, for what we have an obligation to do, is to make a very careful analysis of your background and record, as we will attempt to make an evaluation as to what kind of a Supreme Court Justice you would be, if confirmed. The importance of your nomination is overwhelming. At the age of 43, if you serve as long as Justice Thurgood Marshall did, that would be until 83 or 40 years, which is the equivalent of 10 Presidential terms. And when you consider that in the last Supreme Court session, out of 121 decisions, that 19 were decided by a 5-to-4 vote, where the Court is on the cutting edge of the most important issues which confront our country, a Justice who can provide that fifth vote for 40 years, 10 presidential terms, may really be more important than a President. The opening statements, Judge Thomas, I think are useful, to give some idea as to what the individual Senators think are important, as we proceed with the questioning. A major concern that I have involves the functioning of the Court as a super legislature. You have already heard many say that we want the laws interpreted and not made, and I am concerned by a major case on federalism handed down by the Supreme Court in 1984, where two Justices in the minority, on a 5-to-4 decision, said they only awaited a fifth Justice to change the complexion of the Court. That case could be reversed, placing ideology at the forefront. And I could cite many cases, but only one more within the confines of limited time here, the interpretation of the 1964 Civil Rights Act. In 1971, a unanimous Supreme Court, with an opinion written by Chief Justice Burger, a noted conservative Justice, interpreted the Civil Rights Act in a very meaningful way. In 1989, that decision was changed, as a matter of judicial interpretation, even though the Congress of the United States had allowed that decision to stand for some 18 years. Four of the Justices who voted to change the law, not to interpret the law, but to change the law, have appeared before this committee during the past decade and have placed their hands on the Bible and have said that they would not make new law, but only interpret the law, but they changed a view of congressional intent in the context that Congress allowed that law to stand for some 18 years. I think it is fair to take a look at your writings and your decisions as a basis for questioning. I do not believe that you ought to be called upon—I say this, speaking for myself, because there are no conclusive parameters to what a Senator may ask, but I do not believe you ought to be asked for the ultimate decision as to how you will decide any case, because in our judicial process, that really calls upon a specific statement of facts, briefs, arguments, deliberations among the Justices, and then a decision. But as I read through your readings, Judge Thomas, and take a look at what deference you will give to constitutional process and the congressional will, as I evaluate your judicial temperament in carrying out congressional will, I have noted a number of your writings—and this is not an isolation, but illustrative of one of 71 your speeches, that you say Congress is no longer primarily a deliberative or even a law-making body, that there is little deliberation, and even less wisdom in the manner in which the legislative branch conducts its business. Now, I have noted your critical view of the Congress that would pass an ethnic set-aside law, I have noticed your critical view of a major case interpreting affirmative action in a context where the Congress could have changed those decisions, but did not, and I have noted your recognition of the Congress leaving those cases in place. I think it is appropriate to analyze your approach to our constitutional continuum in that context. At one point in your writings, although you don't endorse it as a conclusion, you refer to a quick-fix of additional Supreme Court nominees. In another place, you talk about the preference of haying additional nominees change the minority opinion into a majority opinion, and I believe that these are important issues, as we see the role of a nominee, a prospective Supreme Court Justice in a critical role, as to whether we may expect you to interpret the law, which I believe is the role of the Court, as opposed to making new law. In terms of the questions which are appropriate to ask you, that has been an evolving matter. There is a fascinating article written by Chief Justice Rehnquist, when he was a lawyer in 1958, which admonished the Senate in the confirmation proceedings for Justice Whittaker for asking mundane questions about his experience as a skunk trapper and the fact that he brought honor to two States, being born in Kansas and I think appointed from Missouri, and Chief Justice Rehnquist admonished the Senate for not really going into the very substantive questions on equal protection of the law and due process of law. When we come to the question of separation of powers, that is rockbed in our society, and the Senate has a duty to make an independent evaluation. I for one continue to believe that deference is due to the President's nomination, but even that could be subject to question, Judge Thomas, if the trend of the Court continues as a super legislature establishing policy. There has already been some discussion here today, and I think it is worth nothing that an early draft of the Constitution gave the Senate the authority to appoint Supreme Court Justices. And going back to Chief Justice Rehnquist's observations in 1958, he is very pointed in approving an editorial which said that the Senate would have the authority, if it chose to exercise it, to insist on balance on the Court. As I say, I for one believe that, at this point in our constitutional evolution, we have not come to a point of equal partnership between the President and the Senate, so deference is still owed to the President, but this could be a more complex question, if the Court continues to function as a super legislature. The issue of affirmative action, I think, will be very important in these hearings, for two reasons. One is to test your own development as a lawyer and your own philosophy of life, your philosophy of law, your philosophy of justice, because at one point you had sanctioned affirmative action in terms of standards and goals, and there has been a change in your thinking, and you are certainly 72 entitled to that, but I think that is an issue which will bear some scrutiny. I have noted in your writings, Judge Thomas, your conclusion that the Dred Scott decision, which upheld slavery, and the opinion of Chief Justice Taney put a backdrop of racism and discrimination, which are deeply rooted in the history of the United States and remain even to the present time, which is a very strong statement. Unfortunately, I agree with you. I think it is an accurate statement about racism and discrimination. I noted your comment in a fairly recent writing about you in the Atlantic Monthly, by Mr. Juan Williams, "There is nothing you can do to get past black skin. I don't care how educated you are, how good you are at what you do, you'll never have the same contacts and opportunities, you will never be seen as being equal to whites." That again is a very strong statement and raises the question in my mind as to whether we should be promoting affirmative action, and I think our discussion here will move far beyond the surface labels of what are quotas, which we hear to much about today, and what affirmative action really means. I know that there are some who are critical of any person who takes the benefit of affirmative action and then rejects it for others. I have read the newspaper accounts, and I don't know firsthand whether you were the beneficiary of affirmative action. But even if you were, you may be the best witness on the subject to really delve into this issue which is on the cutting edge of one of the most important issues facing our society today, and that is equality of employment opportunity. Beyond these issues, Judge Thomas, there are many, many other questions which we are going to have to go into. As Senator Grassley commented, the war powers issue is a big one. We just went through a heated debate just a few months ago which involves the question of Congress' authority to declare war versus the Commander-in-Chiefs authority, the President's authority, as Commander-in-Chief, very big issues on freedom of speech, freedom of religion, the exercise clause, the establishment clause, so I think we will have subjects of real great importance, and I approach this hearing totally with an open mind. Speaking for myself and others who disagree and have already announced positions, I believe that separation of powers calls for independence of the Senate, repeating what I have already said, with deference to the President's views. But I think we ought to listen to you carefully, in a very friendly way, in a very constructive way, and clear out the other witnesses before coming to a judgment of the case. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. Judge Thomas, I join in welcoming you and your family here. 73 No responsibility this committee faces is heavier than the decision on a nominee for the Supreme Court. That is always true, but its truth is underscored when the retiring Justice is 83 and the nominee is 43. There are nominees for high positions, such as a Cabinet member, to which all of us in the Senate resolve limited doubts in favor of the President. Doubts in the case of a Supreme Court nominee must be resolved in favor of protecting the public. While there are some who are looking for an outstanding legal scholar for the nomination, such nominations have been rare in the history of the Court, though when that has happened the Nation benefited. The American Bar Association rating of the nominee is not high, but among those who have developed into superior Justices are people whose legal background cannot be characterized as stellar. My conclusion is that the nominee has the basic ability to make a good Justice. And the fact that he is an African-American brings diversity to the Court. That is a plus. But I have unanswered questions that these hearings should clarify. What is Judge Thomas' understanding of the role of the Court? In criticizing a 6-to-3 Supreme Court decision, Johnson v. Transportation Agency, on the employment rights of women, the nominee applauded Justice Scalia's dissent, which he has every right to do, but then said he hoped the dissent—I am quoting—"would provide guidance for lower courts." What did he mean by that? Does he believe the lower courts need not follow the lead of a majority on the Supreme Court? A fundamental question the committee must weigh is: Are we destabilizing the law by creating a Supreme Court that swings back and forth, depending on the whims of an administration? While the history of the Supreme Court appointments often reflects the political philosophy of the President making the nomination, Presidents have also considered the stability of the law in making appointments. And so Herbert Hoover named Justice Benjamin Cardozo, Dwight Eisenhower selected Justices Earl Warren and William Brennan, Richard Nixon nominated Justice Harry Blackmun, and Gerald Ford nominated Justice John Paul Stevens. And Democratic Presidents appointed conservative Court members. John F. Kennedy named Justice Byron White, and Harry Truman named a Republican Senator, Justice Harold Burton. In each case, the President, at least once, nominated people who were of a differing political philosophy. At least eight times in this century, Presidents have nominated Justices who were of a different political party than the President. The law has been wellserved through this balance, but in recent years, this sense of balance has diminished. Will the current nominee add to a balance or an imbalance? The law should not be a pendulum, swinging back and forth, depending on the philosophy of a President. I am concerned that the Court is shifting from its role of being the champion of the less fortunate. It is easy for any government to become too cozy with the wealthy and powerful. Once on the Court, Justices do not rub shoulders with society's unsuccessful at Washington cocktail parties and dinners. But the test of whether we are a civilized society is not whether we treat the elite well, but how 74 responsive we are to those who do not have the political or financial reins of power, the least fortunate among us. The nominee has, to his great credit, overcome major obstacles to be where he is today. But what about those who have been less fortunate or less able in overcoming obstacles? What does he mean, when he writes—and I quote—"I do not see how the government can be compassionate; only people can be compassionate and then only with their own money, their own property or their own effort, not that of others." I join Judge Thomas in lauding self-help, but not to the exclusion of Government's proper role. Does Judge Thomas mean that we should not have student aid programs, a Head Start Program? Does that suggest there is something unconstitutional or morally wrong with Government seeing to it that no one falls through the cracks in our health care delivery system? Was Government not compassionate when we passed Federal legislation outlawing segregation? Yes, it affected the property rights of hotel and restaurant owners and many others, but does anyone really believe that this Government action was morally wrong? Was this comment of the nominee a throw-away line, or does it suggest a philosophical mindset? Aside from the natural laws that have been referred to here, do the nominee's views differ in any marked respect from those of Judge Robert Bork, whom this committee rejected by a 9-to-5 vote? I am also concerned with the erosion of basic liberties that is taking place on the present Court. The Rust v. Sullivan decision is potentially the most significant assault on our basic liberties since the Supreme Court, during World War II, approved the Federal Government taking from their homes Japanese-Americans who had committed no crime. If the logic of the Rust decision is upheld, that the Federal Government can restrict speech if it provides financial support, then libraries that receive Federal support can be told what books they may have, and universities can be told what they may teach. This decision will be revisited both by the Congress and the Court. I do not expect the nominee to tell me how he would rule on Rust v. Sullivan, but I want to sense the philosophical moorings that will shape how he votes. A Thomas address that comments on the ninth amendment, was it a casual speech, like Senators too often make, or does it accurately reflect his thinking? The Court will soon make decisions on sensitive church-State issues. Where does the nominee stand on these traditions? Freedom is much easier to give away than to preserve. I want a nominee who understands not only the letter of our Constitution, but also the spirit of it. What does Judge Thomas sense is his mission on the Court? That is the fundamental question we need answered to make our decision. Judge Thomas, in my opening statement for the Souter nomination, I used these words to that nominee that are just as appropriate today: I want someone to whom every American can look and say, "There is a champion of my liberty." That should be true of men and women, the old and the young, the able and the disabled, 75 for people of every religion and color and national background and station in life. This is an extremely high standard, but it is an extremely high court to which you aspire. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Brown.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. Judge Thomas, it is a pleasure for me to join with others on this committee to welcome you here, along with your beautiful family. I don't know how this committee will resolve the question before it as to your judicial competence, but in terms of your ability to be an excellent listener, I think you have already passed the test. I suspect a further trial is ahead of you, though, in that regard. You have perhaps enjoyed so much your other four Senate confirmation process that you have been anxious to go ahead with a fifth. You have come here before us a husband, as a father, as a son, and a brother. I only hope at the end of this deliberation that your family feels that you have had a full and a fair opportunity to present your viewpoint. I think that is important for us to make the right kind of decision. Mr. Chairman, as we consider Judge Thomas for the position of the 106th Justice of our Supreme Court, we fulfill an important constitutional duty. Over the course of the next several weeks, the American people will have an opportunity to witness the three branches of our Government coming together to fulfill those duties and to chart the course for our judicial history in the future of this Nation. I think it is important that we gather and do this job in a thorough manner that has been laid out. We judge not only the nominee, but I think in some measure we judge ourselves as well. The American people are unique in the history of mankind. We are unique in our commitment to individual and personal rights. It is perhaps a phenomenon that the Constitution and its amendments deal as much with preserving individual freedom from the powers of Government as they deal with establishing the very framework of that Government itself. That approach, that uniqueness, says a great deal about us as Americans, and I think says a great deal about what has made us so extraordinarily successful. I am one of those that believes it is appropriate for this committee to inquire into the judicial philosophy of the nominee. Mr. Chairman, your own op-ed piece that appeared in the Washington Post I thought was not only a very thoughtful work but one that set forth many of the important questions that we ought to be dealing with. But I also believe for us to request specific answers to potential cases before the Court would be a great disservice to the American people. It would be a disservice because I think all of us would feel how wrong it would be to have a judge sit in judgment of us when he has already made up his mind or pronounced a decision. A willingness to have an objective review of the facts in any 76 case is at the very foundation of the American commitment to justice. I believe we ought to seek a Court committed to constitutional principle. Our judges must be guardians of individual rights whether they agree with the cause or the issue or not. Their job is to stand up and protect our rights, sometimes even for us to make mistakes. I hope also, Judge Thomas, that you and the other judges who sit on the Supreme Court will understand clearly and firmly that amending the Constitution and legislating are not the province of the Court, are not now and never should be the province of the Court, but that these are reserved under our Constitution to others and ultimately to the people that they serve. This committee has approved a number of judicial nominees who I think could fairly be called judicial conservatives. Those approvals have come in recent years as a variety of nominees have come before this committee. I am very concerned that, unlike Justice Souter and some other nominations, special interest groups in our country have announced their decision on your nomination, have come out in opposition to your nomination, even before this committee has had a chance to delve into the facts and the issues before it. This process of sentencing someone before they have a trial I think is a bad practice. It is a bad practice for members of this committee. It is a bad practice for interest groups in our society. Frankly, it is a practice that I hope you, Judge Thomas, will never engage in. We must ask ourselves, I think, if Judge Thomas is to be held to a different standard than that of Justice Souter or Justice Kennedy or Justice Scalia or Justice O'Connor. I hope he will not be held to a different standard. I hope the standards that ruled the deliberations with regard to those Justices will be the same ones that we use with regard to your nomination. In short, this committee should not prejudge Judge Thomas, as unfortunately some have done already. Some discussion has already been laid before the committee with regard to the qualifications and the judgment of the American Bar Association. I believe it's important to have their determination of the qualified status of Judge Thomas in the record because I think the standard they use in determining if a judge is qualified I think is so important. Here is that standard as presented by the American Bar Association: To merit the committee's evaluation of qualified or well qualified for the Supreme Court, the nominee must be in the top of the legal profession, have outstanding legal ability and wide experience, and meet the highest standards of integrity, professional competence, and judicial temperament. The question has already been raised in the opening statements about your commitment to equal justice. In that regard, the American Bar Association has considered that. To quote from the Bar Association themselves, in investigating temperament the committee considers, among other factors, the prospective nominee's compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias, and commitment to equal justice. I don't know if anyone has ever accused the American Bar Association of being the spokesman for President Bush. Far from it. But I believe the 77 question of commitment to equal justice has been considered by the American Bar Association and Judge Thomas found qualified. Mr. Chairman, it was 28 years ago that Martin Luther King stood on the steps of the Lincoln Memorial and gave a speech that I believe helped shape the conscience of this Nation. He said, "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." We are here to learn more about the judicial philosophy of Judge Thomas. But I must say I am flatly and frankly impressed with the personal background and the character of Judge Thomas. He knows what it is like to work for a living. He understands what it is like to truly help others. Throughout his life, he has rolled up his own sleeves to help those in need. Whether serving breakfast to disadvantaged children or tutoring school children, Clarence Thomas has been there. He understands our legal system from a wide variety of experiences, and I think that variety of experiences is important in making a Justice of the Court. He has worked in a legal aid clinic and practiced corporate law, from drafting legislation for the U.S. Senate to hearing cases on the District of Columbia Circuit Court of Appeals. Clarence Thomas brings to the Court an understanding of segregation as one who has felt its oppression. He brings to the Court an understanding of poverty as one who has experienced it firsthand. And I believe he brings to the Court an understanding of the American dream as one who has lived it. Thank you, Mr. Chairman. [The prepared statement of Senator Brown follows:] 78 "OPENING STATEMENT OF SENATOR BROWN Thank you, Mr.-Chairman. Judge Thomas, I am pleased to join with my colleagues in welcoming you and your family here today. Four times before you have successfully appeared before the Senate for confirmation for increasingly important positions of trust within our government. I hope this week will end with you feeling that you have had a full and fair opportunity to address the questions asked of you. Mr. Chairman, today we consider Judge Thomas' qualifications to become the 106th Justice of the United States Supreme Court. In so doing, we fulfill our constitutional duties. Over the course of the next several weeks, the American people will witness the three branches of government meeting within the corners of the constitution to chart the future of our country. We gather here not only in judgment of the nominee, but in judgment of ourselves as guardians of the constitutional process. As a people we are unique in history in protecting the rights of the individual. The very foundation of our social compact - the Constitution and its Amendments - focus as much on preserving individual freedom from government as it does in establishing the framework for that government. It is appropriate for us to inquire into the judicial philosophy of a nominee, but to demand rulings on cases yet to be heard would be a disservice to the American people. How would any of us feel about going before a judge who had prejudged the issues in their case? We should seek a court committed to constitutional principle. Our Justices must be guardians of the rights of individuals whether they agree with their cause or not. Finally, Supreme Court Judges must understand that amending the Constitution and legislating are not the province of the Court. Over the course of this hearing I hope to learn more about Judge Thomas' judicial philosophy and his approach toward interpreting the Constitution. 1 This commjittee has approved several other judicial conservatives ;in the past decade who have advocated judicial restraint. In' those cases, the nominees were given a fair and just opportunity to express their opinions and ideals. I am concerned that, unlike Justice David Souter's nomination, several special interest groups announced their opposition to Judge Thomas before the Senate and the country could assemble a record upon which to fairly assess his qualifications. This despite pledges from these groups to conduct their reviews in the same manner as others had been evaluated. 79 Is Judge Thomas being held to a different standard than that of Justice Souter, Justice Kennedy, Justice Scalia and Justice O'Connor? I hope not! This Committee should not prejudge Clarence Thomas, as some have done. Dr. Martin Luther King stated on the steps of the Lincoln Memorial, on a hot summer Washington day in August 1963, I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character. Mr. Chairman, I am impressed with the background and character of Judge Thomas. He knows what it's like to work for a living. He understands what it's like to truly help others. Throughout his life he has rolled up his own sleeves to help those in need. Whether serving breakfast to disadvantaged children youth or tutoring school children, Clarence Thomas has been there. He understands our legal system from a wide variety of experiences: from working in a legal aid clinic to practicing corporate law — from drafting legislation for the U.S. Senate to hearing cases on the District of Columbia Circuit Court of Appeals. Clarence Thomas brings to the court an understanding of segregation as one who has experienced its oppression. He brings to the Court an understanding of poverty as one who has experienced it first hand. And he brings to the Court an understanding of the American dream as one who has lived it. Thank you, Mr. Chairman. 80"
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Kohl.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Thank you very much, Mr. Chairman. Judge Thomas, the next few days are going to be important for you, but they will be even more important for the American people. On their behalf, we will be talking with you about basic constitutional principles, which means we will be talking about the values at the core of our country. If you are confirmed, this will be the only such conversation the American people will ever have with you. So we must make an extra effort, Judge Thomas, to get to know you, and you must make an extra effort to help us do that. By design, we give the Supreme Court great independence. Its members are unaccountable to the people and, absent severe dereliction of duty, unrecallable by the Congress. Members of the Court sit for life, and they shape the life of this country. We give them this freedom and independence because we expect them to remain above the puil of politics and the flow of fashion. Justice Black put that point clearly when he observed, and I quote, "Under our constitutional system, courts stand against any ill winds that blow as havens of refuge for those who might otherwise suffer because they are weak or helpless or outnumbered, or because they are nonconforming victims of prejudice and public excitement." Judge Thomas, you are 43 years old. If confirmed, you may serve for 30 or 40 years, decades in which you will shape the nature of our country. Before we decide whether to entrust you with this power, we ask you to stand before the public and explain your views, express our hopes, and expound on your approach to the bedrock principles that guide us as a Nation. We have an obligation to find out where you will take us before we decide whether we want you to lead us there. So as we begin this process, let me identify three of the qualifications which I believe we should look for in a Justice. First, we should seek a nominee with exceptional character, and that you clearly have. You grew up in poverty and experienced segregation. Despite that, or perhaps because of it, you went on to Yale Law School. You worked for and earned the support of one of the most distinguished and demanding Members of the Senate, John Danforth. You served as head of the Equal Employment Opportunity Commission, and you now sit on a Federal court of appeals. So yours, indeed, is a story we want to tell about America in the 20th century. It testifies to our achievements in creating opportunity for all from a social contract written for just a few. More than that, it is evidence of your own intelligence, dedication, and commitment. No one can read the story of your life and your success and not be impressed. Nevertheless, as I am sure you would agree, that alone does not justify your confirmation. Second, we should look for someone who can read the law and relate it to the competing interests of American culture. We want a nominee whose values reflect the diversity of American life, where 81 the Constitution protects all of us, those who live in high-rise condos and those who live in the depths of the tenements, those who work for wages and those who retire on investment, those who call for orthodoxy and those who champion revolution. All of these strains of American life must be protected if we are to keep spinning the fabric of renewal and regeneration which has clothed American history for more than 200 years. Third, we want a nominee with an open mind but a firm sense of direction. When you came before this committee last year, in response to a question I asked you said, and I quote, that you did not have "a fully developed constitutional philosophy." That did not disqualify you for a seat on the court of appeals where you are required to follow precedent. But the Supreme Court sets precedent. It interprets the Constitution in which we as a people place our faith and on which our freedoms as a Nation rest. In my judgment, if you cannot articulate a constitutional philosophy, one that includes full safeguards for individuals and minorities and that also squares with your past statements, then in my judgment you are not qualified to sic on the Supreme Court. I realize that is a strong requirement, Judge Thomas, but it is, I believe, a fair one. So during these hearings, we will want to determine what your philosophy is. We will want to learn what you really believe, and we will want to know how and when and why you came to believe it. Let me give just a few examples of the themes running through your speeches and writings which trouble me. You have openly criticized decisions like Griswold and Roe which go to the heart of a woman's right of choice. You have been an outspoken admirer of natural law, a doctrine largely dismissed for the past half-century. In fact, you have suggested that, and I quote, "it provides the only firm basis for a just, wise, and constitutional decision." You have opposed nearly all forms of affirmative action, and yet when we met in my office, you told me that you supported affirmative action. And you have frequently expressed disdain for Congress, its Members, and the legislative process, yet your oath as a Federal judge requires that you faithfully execute our laws. Your own record raises serious questions. Since you have such low esteem for Congress, how can you expect us to believe that you will defer to congressional intent? And since you have criticized past Court decisions about the right to privacy, what credence should we give to your pledge to follow precedent in this area of the law? And since you said that natural law is the only basis for constitutional decisions, why wouldn't you overturn rulings which you believe conflict with natural law principles? I am hopeful that you can resolve these and other questions to our satisfaction, and, Judge Thomas, in order for you to do that, you will need to be perfectly candid before this committee. When you came to my office in July, you told me not to believe what I had read about you; that we would see "the real Judge Thomas" at the confirmation hearings. This statement suggests that you recognize, as many of us do, that these proceedings are the only way the country and the Congress will be able to assess your qualifications and to determine your fitness to sit on our Nation's highest Court. 82 You can only help your cause by being forthcoming, so please don't hedge, please don't give us answers prepared for you by others, and don't hide behind the argument that you cannot prejudge issues. Judge Thomas, we do not have to agree with you on everything, but we do have to be sure that you have firm beliefs and reasoned conclusions about the role of the courts, the Congress, and the Constitution. And we do have to be sure that what you say to this committee today comports with what you have said to others in the past. And we do have to be sure, Judge Thomas, that we know what is in your heart and what is in your mind before we decide upon your nomination. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Kohl. Judge, that concludes the opening statements of the Senators. It is now 12:30. As you and I discussed and as I have informed my colleagues on the committee, let me briefly explain what will be the way in which we will proceed after we break. We will shortly break for lVfe hours. We will reconvene at 2 o'clock, at which time the Senators who have requested the honor of introducing you to the committee will come to the table at your side, one at a time, and make their statements of introduction to the committee. When those six Senators conclude their remarks, I will then ask you to stand and be sworn. After that time, I will then ask you if you would be kind enough to introduce your patient family who is sitting behind you for the committee to be formally introduced to your family. Then we will ask for an opening statement from you. At the conclusion of your opening statement, I will begin questioning. Each Senator will have a 30-minute dialog with you. There is a very important meeting in the Senate today that will take place, as we have discussed with you and your staff. We will break every day around 5 o'clock but there is a very important meeting today in the Senate. One of our Members, a very beloved member, Senator Pryor, who was almost fatally stricken with a heart attack, has returned and is in good health. There is a reception for him, which you are welcome to attend if you would like. You know so many of us so well. The Senator asked the time and place. The time is 5 or 5:30.1 am not certain. It will depend on how far along we are whether or not one of the members begins his questioning. If it takes us much beyond 5 o'clock, we will not begin, and we will conclude before 5:00. So, again, the committee will recess until 2 p.m. [Whereupon, at 12:30 p.m., the committee recessed, to reconvene at 2 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will please come to order. Welcome back, Judge, and I say welcome to all our colleagues who are here to introduce you. Judge, it has been a very difficult task for the Chair to decide which of the 74 Senators you have introducing you should go first, 83 so we decided we would start based on the State you were born in, and we would work our way from there. And so we will begin by welcoming the Senators from Georgia: our senior Senator, Senator Nunn, and Senator Fowler. We will yield the floor now to the distinguished Senator from Georgia, Senator Nunn.
Senator Sam Nunn (GA)
Senator
(D)
Senator NUNN. Thank you very much, Mr. Chairman. Mr. Chairman, I am pleased to appear before your committee today to introduce to you my fellow Georgian, Judge Clarence Thomas. If confirmed, Judge Thomas will become the fifth native Georgian to serve on the Supreme Court and, according to my reading of history, the first Georgian in over 75 years. As most Americans now know from hearing the inspiring story of his life, Clarence Thomas was born in the small community of Pin Point, GA, and was raised by his mother and his grandparents. He attended school in the nearby city of Savannah, where he experienced both the exhilaration of academic accomplishment and the pain of racial discrimination and economic hardship. While he pursued higher education outside the South at Holy Cross and Yale and pursued his profession of law in Missouri and here in Washington, Judge Thomas' roots remain in Georgia. Mr. Chairman, I know this committee will be placed under great pressure from those opposing and those supporting this nomination. Many advocacy groups tend to focus narrowly on the nominee's likely vote on upcoming cases affecting their primary cause or causes. Some organizations complain that Judge Thomas has not generated a sufficient "paper trail" of judicial decisions and law review articles to enable them to determine with certainty how he will vote on a particular issue that captures their full attention. Others piece together details of his education and his personal life and speculate as to his likely vote on complex and complicated constitutional issues. Mr. Chairman, I confess, in introducing Judge Thomas, that I do not know how he will vote on a reconsideration of Roe v. Wade or on other constitutional decisions that may soon come before the Court, nor do his opponents or supporters. I expect that Judge Thomas will not himself make such decisions until the case or cases are before the Court, the arguments have been heard, and he has had an opportunity to study the issues in considerable detail. A narrow perspective is understandable for those who focus on only one or two issues, but I believe that those of us who have the constitutional responsibility of advice and consent must take a much broader view. Our duty is not to create or deny another vote on abortion or sex discrimination or affirmative action, or any other particular issue. Our duty, as I see it, is to confirm a Supreme Court Justice who, subject to good behavior, under the Constitution may serve for many years on the Court—indeed, may serve for life. I doubt seriously, Mr. Chairman, that many of today's, maybe most of today's burning issues will still be raising the blood pressure of our Nation 7 years from now when Judge Thomas is 50, 84 much less when he reaches the still relatively young judicial age of 60. While our Constitution is a source of great stability for our Nation, our constitutional law is not immune from the incredible pace of change that is affecting so many aspects of our public as well as our private lives. With the literal explosion of computers and information technology, biotechnology and genetic engineering, medical science and medical technology, the cases Judge Thomas will face in applying such constitutional concepts as privacy, human rights, equal protection, and due process may not be those envisioned today, or even those that we can imagine today. On these and many other issues which we can barely glimpse on the horizon, even full-time professors of constitutional law do not have a completely settled view. When all is said and done, Mr. Chairman and members of the committee, I believe that the Senate should vote on Clarence Thomas' nomination not based on his position on any one or two or three issues, but first on his ability to reason clearly, to reason fairly, and to reason wisely, as reflected in his answers to your questions which will be propounded before this committee; and second on his character, as indicated by his background, his values, his life experience, and the judgment of those who know him best. Mr. Chairman, I hope that this committee and the Senate will take the long view of this nomination and the long view of the role that this 43-year-old nominee will play on the Supreme Court for years to come if he is confirmed. Those who know Clarence Thomas best—and I have talked to many of them—make a powerful case as to his values, his legal and judicial abilities, his integrity, and his determination. I am certain that some will judge Clarence Thomas by trying to pin him down on some fixed point of the ideological spectrum. I hope, however, that the majority of this committee and the majority of the U.S. Senate will vote on our perception of his character, his judicial abilities, his independence, and, most importantly, his willingness to learn and develop from experience and from reflection. Mr. Chairman, I introduce Clarence Thomas with pride, in part because he was born in Georgia, spent his childhood in Georgia, graduated from high school in Georgia, practiced law in Georgia, and has family and many friends in Georgia. Mr. Chairman and members of the committee, Clarence Thomas has climbed many jagged mountains on the road from Pin Point, GA, to this Senate Judiciary Committee. I believe that if he is confirmed, Judge Thomas will remember his own climb and will always insist on fairness and equal justice under law for those who are still climbing. Mr. Chairman, I am proud to introduce to this committee Judge Clarence Thomas, a native of the State of Georgia.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Nunn. Senator Fowler. 85
Senator Wyche Fowler (GA)
Senator
(D)
Senator FOWLER. Mr. Chairman, I certainly join in the pride of my senior colleague that a Georgian has been nominated for the highest judicial office in the land. In fact, I cannot think of a time of similar pride both for myself and for Georgians, except for the nomination of Georgian Martin Luther King, Jr., for the Nobel Peace Prize. As Senator Nunn has said, we have had visits and trips, and there is remarkable enthusiasm, not the least because Judge Thomas has already succeeded not only in putting Pin Point, GA, on the map, but so swelled their breasts with pride that they are seeking to annex Savannah and Hinesville and half of the Georgia coast. The second reason, though, and far more important in joining in this introduction is that it means that political speculation about this nominee should be over. It is now through your offices, the members of the Senate Judiciary Committee, that we can begin the thorough examination of the nominee and his beliefs that the Constitution requires of us. Judge Thomas has already shown himself to be a man who has broken many molds and defied many labels. It seems to me that we have no less an obligation, a constitutional obligation, to not submit ourselves to easy categorization as we fulfill our constitutional obligations which I believe Judge Thomas would agree with were he in your position. I know that you and members of the committee all join me in putting some of the unsavory political campaigning that has gone on behind us. That has been at the least a rude distraction both to the constitutional process and to Judge Thomas' nomination. Now we can get on to the real responsibilities of the Senate confirmation process. Judge Thomas is perfectly able to express himself, present his case. I know he will do it, and the American people deserve the thorough examination of those views before a decision is made.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Gentlemen, I know you have other obligations. We appreciate your taking the time to come and introduce Georgia's native son. Now we will hear from the Senators who are going to introduce Virginia's adopted son. We will begin, as we have a wont to do here in the Senate, in order of seniority and begin with the distinguished senior Senator from the Commonwealth of Virginia, Senator Warner.
Senator John Warner (VA)
Senator
(R)
Senator WARNER. Thank you, Mr. Chairman and members of the committee. Like our Georgia colleagues, Senator Robb and I likewise consider it a privilege to appear here today on behalf of Judge Thomas and, in a way, on behalf of the constituents we represent in the Commonwealth of Virginia. Mr. Chairman, I would like to have my statement inserted in the record in full. I want to be brief. 86
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, your entire statement will be placed in the record as if read.
Senator John Warner (VA)
Senator
(R)
Senator WARNER. I will be brief such that we can move along with these proceedings. I wish to acknowledge that my personal preparation for this hearing has been a very valuable learning experience for me. I have traveled
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I know what you mean, Senator.
Senator John Warner (VA)
Senator
(R)
Senator WARNER. It is not over for you yet, Mr. Chairman. I have traveled throughout my State, finishing yesterday the last of some 14 meetings, most of these meetings dominated by minority individuals, minority background. And I listened and learned very carefully, I say to my colleagues. It was a profitable experience. This procedure we are undertaking now, mandated by the Constitution under the advise-and-consent clause, will, I hope, end up in two ways: First, I say to you, my friend, Judge Thomas, most respectfully, I hope that it is a learning experience for you and that you emerge from this a stronger, a wiser, and a more compassionate person; and, secondly, that these hearings and the floor debate and the final vote will be perceived by citizens across our land as being fair and objective, and that that will constitute a record and indicate support for this fine American to go forward and take on his responsibilities with great unity across our country. The hearing has the opportunity to dispel a number of concerns that were voiced to me by conscientious individuals, but we have that opportunity as Senators in this free and deliberative process to dispel those concerns. This is a very interesting nomination in the sense that the U.S. Senate has already acted in confirming Judge Thomas as a Federal Circuit Court judge. We rendered our judgment. Therefore, we are being examined. And to the extent that some of us may wish to reexamine that, I say to you most respectfully, you have a very heavy, if not the highest, of burdens of proof. The burden of proof has shifted to the Senate since we have already spoken on behalf of the credentials of this man. It is for those reasons that, again, I conclude by saying that I hope these Senate proceedings will be perceived and accepted as fair and objective, and that the final conclusion, which I hope will be confirmation, will be in the best interest of our United States. I thank you. [The prepared statement of Senator Warner follows:] 87 JOHN WARNER ""JXSSKT'WUX SM^W!" " ww""" Ooni2«-lo« CONSTtTUCNT fCRVKf OFFICES ARMEO SERVICES SELECT COMMITTEE ON INTELLIGENCE ENVIRONMENT AND PUBLIC WORKS RULES AND ADMINISTRATION United States Senate STATEMENT BT SENATOR JOHN WARNER BEFORE THE SENATE JUDICIARY COMMITTEE ON THE NOMINATION OF CLARENCE THOMAS AS ASSOCIATE JUSTICE TO THE UNITED STATES SUPREME COURT 33491 Mr. Chairman and members of the Committee, I am pleased to join my colleagues from Georgia, Missouri and Senator Robb in introducing Judge Clarence Thomas, who has been nominated to be an Associate Justice of the U.S. Supreme Court. Judge Thomas and his family now reside in Northern Virginia. Judge Thomas serves on the United States Circuit Court of Appeals for the District of Columbia. Clarence Thomas' career, now known to Americans, has been varied and extensive. He has held jobs ranging from legislative assistant for Senator Danforth to Chairman of the Equal Employment Opportunity Commission (EEOC). At this time I will not dwell on the details of his impressive professional background, which have been fully covered by members of this committee in their opening statements today. I do, however, wish to make a few comments regarding Judge Thomas' early life, as the values I hope he will bring to the Supreme Court, if confirmed, are a direct reflection of his background — a background of which he speaks to me with pride. 88 -2- Clarence Thomas was raised in a poor, segregated environment in a small town in Georgia. His grandfather, a strong, self educated man who was determined that his grandson would have more opportunities than he himself had experienced, firmly instilled in Clarence the virtues of hard work, diligence, tenacity, and religious values. Most importantly, he impressed upon him that he should not use the circumstances of his upbringing as an excuse for not striving to achieve excellence in his own goals. Judge Thomas further expresses with humility and gratitude the support given by religious teachers throughout his lifetime. Judge Thomas has truly experienced poverty, prejudice and racism in his lifetime, but, true to those who have inspired him, he has set his own goals. Mr. Chairman, I believe Clarence Thomas has the education, character, experience and temperament to serve as a member of the Supreme Court, and I am pleased to have had the opportunity to present him to the Committee. Mr. Chairman, my preparation for this hearing has been a rewarding experience. I have travelled throughout my state listening to a diverse cross section of Virginians. They have freely, forcefully expressed their views for and against this nomination. It has been a learning experience for me. It is my hope that this "advise and consent" procedure, mandated by the Constitution will conclude in such a manner that, first, Judge Thomas will become a stronger and wiser person; and second, that many of the concerns that exist today about him will, by the time the floor debate is concluded and the final vote taken, be resolved. Despite the conscientious efforts over the years of the Executive and Legislative branches of our government, the judicial branch is viewed by minority groups as the strongest bastion against racism and discrimination. It is for that reason that I hope these Senate proceedings will be perceived as fair, objective, and having reached a conclusion in the best interest of our Nation. We, the Senate, are also being judged in this confirmation process. For we, as a body, have already exercised our Constitutional responsibility by confirming Judge Thomas as qualified to become a member of the federal judiciary. To now reverse that finding would impose on this body a burden of proof of the highest magnitude. 90
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Robb, welcome.
Senator Chuck Robb (VA)
Senator
(D)
Senator ROBB. Thank you, Mr. Chairman, Senator Thurmond, other members of the Judiciary Committee. As a Virginian, Senator Warner and I are frequently extended the courtesy of introducing for Senate confirmation residents of our State that the President has nominated to high level positions in the Federal Government, notwithstanding the fact that in most cases they have burnished their credentials while bearing true faith and allegiance to a political party other than the one that at least I happen to represent. In that capacity, I was pleased to introduce Judge Thomas when he was nominated to his current judgeship with the U.S. Court of Appeals for the District of Columbia Circuit. Recognizing the importance of a lifetime appointment to the highest Court in our land, however, and the prospect that, if confirmed Associate Justice of the Supreme Court at his age, he could well serve for 30 years or more, I don't suggest that any prior examination of his credentials ought to substitute for the thorough examination you are about to begin or that our prior vote to confirm Judge Thomas ought to obligate us necessarily to confirm Justice Thomas. Therefore, like most of our Senate colleagues, I am going to withhold final judgment until these confirmation hearings have been completed and your committee has acted. I would be less than candid, though, if I didn't observe at the outset that I have had two very good meetings in my office with Judge Thomas, one for each of his nominations, and I am very much impressed with the way he has dealt with the challenges that he has faced. I am impressed with his life story and the way he has persevered against the odds. I am impressed by the way he has thought about the way society works—and doesn't work—and I am impressed by his sense of conviction about the ideas and principles in which he believes. I care deeply about the issues most often cited by those individuals and organizations that have announced their opposition to
Clarence Thomas
Nominee
(R)
Judge Thomas. And because I am more often aligned with them than against them, I simply ask that they join me in withholding final judgment until they have actually heard Judge Thomas respond to direct questions about those issues which concern all of us. I believe based on my own conversations with him that he will respond to many of those questions and concerns in ways that will be far more reassuring than inferences that have been drawn solely from fragmented comments and speeches where the questions have not been squarely joined. In short, I find Judge Thomas more difficult to stereotype than his public image might suggest, and I believe almost everyone will discover a few surprises during the confirmation process. Mr. Chairman, you have an important responsibility to fulfill, and I wish you well. 91
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, gentlemen. Now, we will move west of the Mississippi, to a State in which our distinguished nominee has worked and has friends, and one of his friends is the junior Senator from the State of Missouri, Senator Bond. Senator Bond, welcome. We are very anxious to hear what you have to say.
Senator Kit Bond (MO)
Senator
(R)
Senator BOND. Thank you very much, Mr. Chairman and members of the committee. It is a great honor and a pleasure for me to come before this committee today to join in the multifaceted presentation of Judge Clarence Thomas, the President's nominee for Associate Justice to the United States Supreme Court. Coming from Missouri, I have to make a major effort to claim him for the State of Missouri, but we do so with a great deal of pride. I had the real pleasure first of meeting Judge Thomas when we both worked in Jefferson City, MO, in the early 1970's. Both of us began our career in State government as assistants attorney general under Jack Danforth. It was an exciting and intellectually challenging place for a young lawyer to work. The outstanding caliber of the other people that Jack Danforth brought to that office is best illustrated by the jobs that some of them now hold—Federal judges, Chairman of the FCC, and we hope soon a Supreme Court Justice. Even among a cast of stars like that, Clarence Thomas shone as a lawyer. He was not content simply to move cases through the office, but, instead, worked to use his position to accomplish change and to improve the lives of people in our State. His legal work and his intellect were noticed, not just by Jack Danforth, but by many others, as well. When Jack was elected to the Senate, Clarence Thomas came to Washington and applied his skills to a series of jobs, ranging from corporate lawyer to the Chairman of the Equal Employment Opportunity Commission, giving him the opportunity to learn firsthand about a wider range of legal areas than most recent nominees to the Court. I say, Mr. Chairman, that if you look at the group of people who know Clarence Thomas best, you will find his most ardent supporters. I only hope that those who do not know him as well as we do may have the opportunity during the course of these hearings to gain the knowledge and the respect that we have. Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas' nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans. We are all familiar with Judge Thomas' background as outlined by our distinguished colleague from Georgia. It is an inspiring story. There is no doubt that he can be proud of his achievements. But it is also important to focus on his continuing efforts throughout his life to live up to the values and principles that his 56-270 0—93- 92 grandfather instilled in him, which I know were strengthened by the many years he spent living in Missouri. The strength of character is every bit as important as his professional qualifications, and I urge you to consider it as you proceed with these hearings. Mr. Chairman, there have been many accusations and straw men raised over the course of the past few months. Unfortunately, that has become a part of the nomination process. Though we cannot stop people from voicing their opinion or attacking a nominee or even members of the committee, unfair or groundless as the attacks may be, we can disregard those charges and focus on the important details, the nominee's fitness for the job. I urge the members of the committee to do just that. I know that when they do, they will find Judge Thomas to be well qualified to serve as the newest member of the United States Supreme Court. Thank you, Mr. Chairman. [The prepared statement of Senator Bond follows:] 93 SENATOR BOND INTRODUCTION OF JUDGE CLARENCE THOMSAS 33491 Mr. Chairman, members of the committee, it is a great pleasure to come before you today to join in the presentation of Judge Clarence Thomas, the President's nominee for Associate Justice of the United States Supreme Court. I first met Judge Thomas when we both worked in Jefferson City in the early 70s. Both of us began our careers in state government as assistant attorneys general under Jack Danforth. It was an exciting and intellectually challenging place for a young lawyer to work; and the outstanding caliber of peoDle that Jack Danfcrth brought to that office is best illustrated by the jobs that some of them now hold — federal judge, chairman of the FCC, and soon, Supreme Court justice. Even amonq such a cast nf stars, Clarcr.ca Thomas shone as a lawyer. He was not content to simply move cases through the office, but instead worked to use his position to accomplish change and to improve the lives of people in our state. His legal skills and his intellect were noticed not just by Jack Danforth, but by many others as well. When Jack was elected to the Senate in 1976, Judge Thomas applied his skills to a series of jobs ranging from corporate lawyer to chairman of the Equal Employment Opportunity Commission — giving him the opportunity to learn firsthand about a wider range of legal areas than most recent nominees to the court. 94 Though his skills as a lawyer and a judge are obvious, they are not the only reason that this committee should vote to approve Judge Thomas' nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans. We are all familiar with Judge Thomas' background — it is an inspiring story, and there is no doubt that he can be proud of his achievements• But it is also important to focus on his continuing efforts throughout his life to live up to the values and principles that his grandfather instilled in him — and which I know were strengthened by the many years he spent living in Missouri. This strength of character is every bit as important as his professional qualifications, and I urge you to '"!" consider it as you proceed with these hearings. Mr. Chairman, there have been many accusations and straw men raised over the course of the past few months. Unfortunately, that has become part of the nomination process. Though we cannot stop people from voicing their opinion or attacking a nominee — unfair or groundless as those attacks may be — we can disregard such charges and focus on the important details — the nominee's fitness for the job. I urge the members of the committee to do that and I know that when they do, they will find Judge Thomas to be well-qualified to serve as the newest member of the United States Supreme Court. 95
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. I might add, Judge Thomas, I had the occasion to spend about 7 or 8 days with the junior Senator from Missouri in the month of August, and when he was not lobbying me on matters relating to the North Slope and others, he was lobbying me with regard to you. You are probably the only Supreme Court Justice nominee who has ever been discussed on the North Slope of Alaska in the middle of nowhere. [Laughter.] Everyone was talking about the precedents being set, Judge Thomas. I do not know whether or not we should call this the Rudman precedent or not, but you have one of the strongest and most ardent supporters, I suspect you have anywhere, including your mother and your wife and your son and your sister, in the person of the senior Senator from Missouri. We are all supposed to be limited to 10 minutes. I want you to know at the outset that I have no illusion that this is going to be a 10-minute introduction. [Laughter.] For my respect for our colleague from the State of Missouri, I will do what the former chairman of this committee, Senator Eastland used to do. He would say we have to end this meeting at 2:00 o'clock or we are not able to meet beyond that time. Some would say, "I notice it is 2:00 o'clock, Mr. Chairman," and he would turn around and open up the face of the clock and turn the clock back and say, "It doesn't look like 2:00 to me." [Laughter.] So, we will invoke the rule of the former chairman of this committee. Jack, try to keep it under an hour, if you can. [Laughter.]
Senator John Danforth (MO)
Senator
(R)
Senator DANFORTH. Mr. Chairman, thank you very much. I am sorry that the North Slope gambit did not occur to me during the hearing.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I assume you put your junior colleague up to it.
Senator John Danforth (MO)
Senator
(R)
Senator DANFORTH. Mr. Chairman and members of the committee, other than the nominee himself, I know Clarence Thomas better than anyone who will appear before this committee. I hired him 17 years ago, when he was a law student. He worked for me twice, as an assistant State attorney general and as a legislative assistant, and we have kept in touch since he left my office. His life story is public knowledge, and I will not review it for you. Instead, this will be a personal testimony about the Clarence Thomas I know, and a reflection on the case that is being made by various groups that oppose his confirmation. Let me begin with the most fundamental points. Clarence Thomas is intelligent, hard-working, honest, and fair. Because these are the minimum qualifications we expect of a nominee for any position, I will not dwell on them. It is enough to assure the committee on the basis of personal knowledge that Clarence Thomas possesses each of these requisites to serve on the Supreme Court. As the ABA will testify, he is certainly qualified for the job. But he has more than these fundamentals. The Clarence Thomas I 96 know has special qualities which convince me that he is more than the average nominee. He would be an extraordinary Justice on the Supreme Court. What are these special qualities? First, Clarence Thomas is his own person. President Bush had it absolutely right when he called him "fiercely independent." This quality struck me when I first interviewed him in the faculty lounge at Yale Law School. Clarence made it clear that he was his own person, to be judged on his own merits. He was not to be the special case, given special treatment, and he was not to be given special work within my office. He was uniquely Clarence Thomas, and his goal was to be the best Clarence Thomas he could possibly be. He has reached that goal, and that to me is his most striking attribute. Repeatedly, he has said that, as a judge, he has no personal agenda and that he will call them as he sees them. That pledge is a function of his independence and it is completely consistent with the Clarence Thomas I know. It is consistent with the young assistant attorney general who, to my political dismay, insisted that my constituents had no legal right to keep their low-numbered license plates. It is consistent with the Chairman of the EEOC, who excoriated his own administration for favoring tax-exempt status for a racially exclusive college, and for opposing extension of the Voting Rights Act. I have no doubt whatever in giving the committee this assurance: Just as Clarence will resist any effort to impinge on his independence by seeking commitments on how he will decide cases before the Court, so he will never become a sure vote for any group of Justices on the Court. For 2 months, I have noted with wonder the certainty of various interest groups, as they have predicted how the nominee would vote on an array of issues. They do not know Clarence Thomas. I do. I cannot predict how he would vote on any issue. He is his own person. That is my first point. Second, he laughs. To some, this may seem a trivial matter. To me, it is important, because laughter is the antidote to that dread disease "federalitis." The obvious strategy of interest groups trying to defeat a Supreme Court nominee is to suggest that there is something weird about the individual. I concede that there is something weird about Clarence Thomas, it is his laugh. It is the loudest laugh I have ever heard. It comes from deep inside and it shakes his body, and here is something at least as weird in this most uptight of cities, the object of his laughter is most often himself. Third, he is serious, deeply serious in his commitment to make a contribution with his life. I will never forget visiting with Clarence after he had been nominated for a second term at the EEOC. I pressed him on why he would accept a second term. It is a thankless job, one that, when done well, makes everyone mad. It is a career blind alley. He answered simply, "I haven't yet finished the job." I pondered that statement many times over the past 5 years. Undoubtedly, he meant that he had not yet finished the job of transforming the EEOC from the administration basket case he inherited to the first-rate agency it is today. But I think he meant more than that. I think he meant the discrimination he has known in 97 his own life is still too much with us. There is so much more to do, if we are to end it. This is the seriousness of Clarence Thomas. It is not anger, as some have suggested. It is not a bitterness that eats away at him, but it is profound and it forms the person that he is and the Justice he will become. I hope that sometime in the days Judge Thomas will be before this committee, someone will ask him not about unenumerated rights or the establishment clause, but about himself, what was it like to grow up under segregation, what was it like to be there when your grandfather was humiliated before your eyes, what was it like to be laughed at by seminarians because you are black. Everyone in the Senate knows something about the legal issues before the Supreme Court. Not a single member of the Senate knows what Clarence Thomas knows about being poor and black in America. For more than 2 months, interest groups have been poring over the volume of speeches made by the nominee, looking for the word here or phrase there that could be used against him. I hope all of us will read some of his speeches in their entirety. They are eloquent statements of his deep commitment to justice in America. It is better to read the whole speech, but if we are piercing together sayings, here is my compendium of the words of Clarence Thomas. He said—and these are his words—"What is more amoral than the enslavement of an entire race? What is more amoral than the vicious cancer of racial discrimination? What is more amoral than the fabrication of a legal and political system which excludes, demeans and degrades an entire race?" He said, "Discrimination holds out a different life for those who do not happen to be the right race or the right sex. It is a world in which the have's continue to reap more dividends than the havenot's, and the powerful wield more influence than the powerless." He said, "It exists in the factories and the plants and the corporate board rooms, it makes a lie of our pledge of freedom. It is the great fault that sends tremors through the bedrock of our nationhood." He said, "I never understood the logic behind the division of labor that decreed that women be restricted to certain jobs, such waste of talent, such infringement of individual rights." He said, "Today, the civil rights law often appear to be without teeth to insure nondiscrimination." He said, "There is something less than equitable about a system that subjects an individual to stronger sanctions for breaking into a mailbox than for violating the basic civil rights of another human being." Those are the words of Clarence Thomas. Name one other member of the Supreme Court that talks like that. Name one other person who could conceivably be nominated by President Bush who talks like that. The obvious question is: Why do some civil rights leaders, good people, oppose the nominee with such a strong commitment to equality? The answer lies in a major debate now taking place in America which divides good people, who share a common commitment to equal justice. 98 With respect to the black community, William Raspberry has described the debate as follows: "At issue is whether it is wiser to pursue government policies that target blacks generally—contract set-asides, affirmative action, hiring and promotion, race-based special admissions, and so on—or to fashion approaches based on specific social, educational and economic conditions." Over-simplified, Raspberry continues, "the two opposing propositions can be stated this way: One, race-specific approaches; two, approaches that target the conditions, joblessness, drug abuse, family dissolution, and under-education." Before becoming a judge, while he was in the executive branch, Clarence Thomas was a leading advocate for one side of this debate. At that time, he argued that race-based preferences are not helpful to the most disadvantaged citizens, that they stigmatize and sometimes even victimize the beneficiary, and that they create destructive animosity among unfavorite citizens. In their place, he advocated affirmative action based on disadvantage, rather than race, with special emphasis on education and job training, coupled with strict enforcement and tough penalties in cases of specific discrimination. I do not understand why the nomination of a Supreme Court Justice should be the occasion for arguing the best political strategy for advancing the cause of civil rights. Whether one strongly supports or strongly opposes race-based preferences should not trigger an attack on the person's motives or fitness to serve on the Court. Nearly a third of black families are now living in poverty. Nearly a third of young black men do not have jobs. The average income of blacks is not much more than half that of whites. Against this background, we should welcome, not penalize a diversity of opinion on solving the problem of inequality. We should welcome a diversity of opinion among blacks as well as whites. If support for race-based preferences becomes a litmus test for the Supreme Court, that test would rule out a majority of the American people and a majority of the Members of the Senate, as well. Mr. Chairman, throughout this process, you and all members of this committee have been characteristically considerate and fair to the nominee. I join him in thanking you for your kindness. I am convinced that, like the President, you will not judge Clarence Thomas on the basis of litmus tests, you will judge him on the basis of his ability and character and the special qualities he would bring to the Court. It is a proud day in my life to present for the Supreme Court a person I know so well and believe in so strongly. [The prepared statement of Senator Danforth follows:] 99 "STATEMENT OF SENATOR JOHN C. DANFORTH BEFORE THE SENATE JUDICIARY COMMITTEE IN SUPPORT OF THE NOMINATION OF JUDGE CLARENCE THOMAS 33491 Other than the nominee, himself, I know Clarence Thomas better than anyone who will appear before the committee. I hired him 17 years ago when he was a law student. He worked for me twice, as an assistant state Attorney General and as a legislative assistant, and we have kept in touch since he left my office. His life history is public knowledge, and I will not review it for you. Instead, this will be a personal testimony about the Clarence Thomas I know, and a reflection on the case that is being made by various groups that oppose his confirmation. Let me begin with the most fundamental points. Clarence Thomas is intelligent, hard-working, honest and fair. Because these are the minimum qualifications we expect of a nominee for any position, I will not dwell on them. It is enough to assure the committee, on the basis of personal knowledge, that Clarence Thomas possesses each of these requisites to serve on the 100 Supreme Court. As the ABA will testify, he is certainly qualified for the job. But he has more than these fundamentals. The Clarence Thomas I know has special qualities which convince me that he is more than the average nominee. He would be an extraordinary justice on the Supreme Court. What are these special qualities? First, Clarence Thomas is his own person. President Bush had it absolutely right when he called him, ""fiercely independent."" This quality struck me when I first interviewed him in the faculty lounge at Yale Law School. Clarence made it clear that he was his own person to be judged on his own merits. He was not to be the special case, given special treatment, and he was not to be given special work within my office. He was uniquely Clarence Thomas, and his goal was to be the best Clarence Thomas he could possibly be. He has reached that goal, and that, to me, is his most striking attribute. Repeatedly, he has said that as a judge, he has no personal agenda, that he will call them as he sees them. That pledge is a function of his independence, and it is completely consistent with the Clarence Thomas I know. It is consistent with the young assistant Attorney General who, to my political dismay, insisted that my constituents had no legal right to keep their low numbered license plates. It is consistent with the Chairman of the EEOC who excoriated his own administration for favoring tax exempt status for a racially exciusive college and for opposing extension of the Voting Rights Act. 101 I have no doubt whatever in giving the committee this assurance: Just as Clarence Thomas will resist any effort to impinge on his independence by seeking commitments on how he will decide cases before the Court, so he will never become & sure vote for any group of justices on the Court. For two months, I have noted with wonder the certainty of various interest groups as they have predicted how the nominee would vote on an array of issues. They don't know Clarence Thomas. I do. I cannot predict how he would vote on any issue. He is his own person. That is my first point. Second, he laughs. To some, this may seem a trivial matter. To me, it is important, because laughter is the antidote to that dread disease, federalitis. The obvious strategy of interest groups trying to defeat a Supreme Court nominee is to suggest that there is something weird about the individual. I concede that there is something weird about Clarence Thomas. It is his laugh. It is the loudest laugh I have ever heard. It comes from deep inside, and it shakes his body. And here is something at least as weird in this most uptight of cities. The object of his laughter is most often himself. Third, he is serious--deeply serious in his commitment to make a contribution with his life. I will never forget visiting with Clarence after he had been nominated for a second term at the EEOC. I pressed him on why he would accept a second term. It is a thankless job, one 102 that, when done well, makes everyone mad. It is a career-blind alley. He answered simply, ""I haven't yet finished the job."" I have pondered that statement many times over the past five years. Undoubtedly, he meant that he had not yet finished the job of transforming the EEOC from the administrative basket case he inherited to the first-rate agency it is today. But, I think he meant more than that. I think he meant that the discrimination he has known in his own life is still too much with us. There is so much more to do if we are to end it. This is the seriousness of Clarence Thomas. It is not anger as some have suggested. It is not a bitterness that eats away at him. But it is profound, and it forms the person he is and the justice he will become. I hope that sometime in the days Judge Thomas will be before this committee, someone will ask him not about unenumerated rights or the establishment clause, but about himself. What was it like to grow up under segregation? What was it like to be there when your grandfather was humiliated before your eyes? What was it like to be laughed at by seminarians because you are black? Everyone in the Senate knows something about the legal issues before the Supreme Court. Not a single member of the Senate knows what Clarence Thomas knows about being poor and black in America. For more than two months, interest groups have been poring over the volume of speeches made by the nominee, looking for the word here or phrase there that could be used against him. I hope all of us will read some of his speeches in their entirety. They are eloquent statements of his deep 103 commitment to justice in America. It is better to read the whole speech, but if we are piecing together sayings, here is my compendium of the words of Clarence Thomas. He said, and these are his words, ""What is more immoral than the enslavement of an entire race--what is more immoral than the vicious cancer of racial discrimination--what is more immoral than the fabrication of a legal and political system which excludes, demeans and degrades an entire race?"" He said, ""Discrimination. . .holds out a different life for those who do not happen to be the right race or the right sex. It is a world in which the 'haves' continue to reap more dividends than the 'have nots,' and the powerful wield more influence than the powerless."" He said, ""It exists in the factories, in the plants, in the corporate board rooms."" [It] makes a lie of our pledge of freedom. . .[It] is the great fault that sends tremors through the bedrock of our nationhood. He said, ""I never understood the logic behind the division of labor that decreed that women be restricted to certain jobs. . . .Such waste of talent, such infringement of individual rights."" He said, ""Today, the civil rights laws often appear to be without the teeth to insure nondiscrimination."" He said, ""There is something less than equitable about a system that subjects an individual to stronger sanctions for breaking into a mailbox than for violating the basic civil rights of another human being."" 104 Those are the words of Clarence Thomas. Name one other member of the Supreme Court who talks like that. Name one other person who could conceivably be nominated by President Bush who talks like that. The obvious question is why do some civil rights leaders, good people, oppose a nominee with such a strong commitment to equality. The answer lies in a major debate now taking place in America which divides good people who share a common commitment to equal justice. With respect to the black community, William Raspberry has described the debate as follows: At issue is whether it is wiser to pursue government policies that target blacks generally—contract set-asides, affirmative-action hiring and promotion, race-based special admissions, and so on--or to fashion approaches based on specific social, educational and economic conditions. Oversimplified,"" Raspberry continues, ""the two opposing propositions can be stated this way: (1) Race-specific approaches. (2) Approaches that target the conditions--joblessness, drug abuse, family dissolution and under-education."" Before becoming a judge, Clarence Thomas was a leading advocate for one side of this debate. At that time, he argued that race-based preferences are not helpful to the most disadvantaged citizens, that they stigmatize and sometimes even victimize the beneficiary and that they create destructive animosity among unfavored citizens. In their place, he advocated 105 affirmative action based on disadvantage rather than race, with special emphasis on education and job training, coupled with strict enforcement and tough penalties in cases of specific discrimination. I do not understand why the nomination of a Supreme Court justice should be the occasion for arguing the best political strategy for advancing the cause of civil rights. Whether one strongly supports or strongly opposes race-based preferences should not trigger an attack on a person's motives or fitness to serve on the Court. Nearly a third of black families are now living in poverty. Nearly a third of young black men do not have jobs. The average income of blacks is not much more than half that of whites. Against this background, we should welcome, not penalize, a diversity of opinion on solving the problem of inequality. We should welcome a diversity of opinion among blacks as well as whites. If support for race-based preferences becomes a litmus test for the Supreme Court, that test would rule out a majority of the American people and a majority of the members of the Senate as well. Mr. Chairman, throughout this process, you and all members of this Committee have been characteristically considerate and fair to the nominee. I join him in thanking you for your kindness. I am convinced that, like the President, you will not judge Clarence Thomas on the basis of litmus tests. You will judge him on the basis of his ability and character and the special qualities he would bring to the Court. 106 8 It is a proud day in my life to present for the Supreme Court a person I know so well and believe in so strongly. 107"
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Danforth. I know the nominee knows how fortunate he is to have a friend like you. While you are on your feet, Judge, we will swear you.
Senator John Danforth (MO)
Senator
(R)
Senator DANFORTH. Can you still see the nominee, Mr. Chairman? [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, while we are just passing some time here, I just want you to know up until a few nominees ago this is what you would have faced the entire time of your questioning. They are all gentle souls, but they are anxious to see you, and we agreed that we would do this so they could have you sworn in. Judge Thomas, do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Please be seated. [Pause.] The CHAIRMAN. Well, Judge, Jack Danforth said—talked about what is at issue. I want to make it clear at the outset of my questioning that there is a great deal more at issue than whether or not your view on how to deal with the civil rights of Americans deviates from the view of any single group of people. I beg your pardon? So I would now like to invite you to—having been sworn, to, if you would, please introduce your family to us, who have been waiting patiently all morning and the committee is anxious to meet them, as I am sure everyone else is. So, would you please introduce your family to us, Judge?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you, Mr. Chairman. I would like first to introduce my wife Virginia.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome, Mrs. Thomas. It is a pleasure to have you here.
Clarence Thomas
Nominee
(R)
Judge THOMAS. My mother, Leola Williams; my sister, Emma May Martin; and my son Jamal.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Jamal, welcome. You look so much like your father that probably at a break you would be able to come back in and sit in there and answer questions. So, if he is not doing it the way you want it done, you just slide in that chair.
Clarence Thomas
Nominee
(R)
Judge THOMAS. He may not take it as a compliment if you say he looks like me.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He is young. He has a chance to grow out of it, as my father says about my sons.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would like to also introduce my mother-in-law and father-in-law, Donald and Marjorie Lamp, who are in the audience here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Would you please stand, Mr. and Mrs. Lamp. Welcome to the hearing. Thank you very much for coming. Do you have an opening statement, Judge?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Please.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Mr. Chairman, Senator Thurman, members of the committee, I am humbled and honored to have been nominated 108 by President Bush to be an Associate Justice of the Supreme Court of the United States. I would like to thank the committee, especially you, Chairman Biden, for your extraordinary fairness throughout this process, and I would like to thank each of you and so many of your colleagues here in the Senate for taking the time to visit with me. There are not enough words to express my deep gratitude and appreciation to Senator Danforth, who gave me my first job out of Yale Law School. I have never forgotten the terms of his offer to me: more work for less pay than anyone in the country could offer. Believe me, he delivered on his promise, especially the less pay. I appreciate his wise counsel and his example over the years, and his tireless efforts on my behalf during the confirmation process. And I would like to thank Senators Bond, Nunn, Fowler, Warner, and Robb, for taking the time to introduce me today. Much has been written about my family and me over the past 10 weeks. Through all that has happened throughout our lives and through all adversity, we have grown closer and our love for each other has grown stronger and deeper. I hope these hearings will help to show more clearly who this person Clarence Thomas is and what really makes me tick. My earliest memories, as alluded to earlier, are those of Pin Point, GA, a life far removed in space and time from this room, this day and this moment. As kids, we caught minnows in the creeks, fiddler crabs in the marshes, we played with pluffers, and skipped shells across the water. It was a world so vastly different from all this. In 1955, my brother and I went to live with my mother in Savannah. We lived in one room in a tenement. We shared a kitchen with other tenants and we had a common bathroom in the backyard which was unworkable and unusable. It was hard, but it was all we had and all there was. Our mother only earned $20 every 2 weeks as a maid, not enough to take care of us. So she arranged for us to live with our grandparents later, in 1955. Imagine, if you will, two little boys with all their belongings in two grocery bags. Our grandparents were two great and wonderful people who loved us dearly. I wish they were sitting here today. Sitting here so they could see that all their efforts, their hard work were not in vain, and so that they could see that hard work and strong values can make for a better life. I am grateful that my mother and my sister could be here. Unfortunately, my brother could not be. I attended segregated parochial schools and later attended a seminary near Savannah. The nuns gave us hope and belief in ourselves when society didn't. They reinforced the importance of religious beliefs in our personal lives. Sister Mary Virgilius, my eighth grade teacher, and the other nuns were unyielding in their expectations that we use all of our talents no matter what the rest of the world said or did. After high school, I left Savannah and attended Immaculate Conception Seminary, then Holy Cross College. I attended Yale Law School. Yale had opened its doors, its heart, its conscience to recruit and admit minority students. I benefited from this effort. 109 My career has been delineated today. I was an assistant attorney general in the State of Missouri. I was an attorney in the corporate law department of Monsanto Co. I joined Senator Danforth's staff here in the Senate, was an Assistant Secretary in the Department of Education, Chairman of EEOC, and since 1990 a judge on the U.S. Court of Appeals for the District of Columbia Circuit. But for the efforts of so many others who have gone before me, I would not be here today. It would be unimaginable. Only by standing on their shoulders could I be here. At each turn in my life, each obstacle confronted, each fork in the road someone came along to help. I remember, for example, in 1974 after I completed law school I had no money, no place to live. Mrs. Margaret Bush Wilson, who would later become chairperson of the NAACP, allowed me to live at her house. She provided me not only with room and board, but advice, counsel and guidance. As I left her house that summer, I asked her, "How much do I owe you?" Her response was, "Just along the way help someone who is in your position." I have tried to live by my promise to her to do just that, to help others. So many others gave their lives, their blood, their talents. But for them I would not be here. Justice Marshall, whose seat I have been nominated to fill, is one of those who had the courage and the intellect. He is one of the great architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in the Pin Point, GA's of the world. The civil rights movement, Rev. Martin Luther King and the SCLC, Roy Wilkins and the NAACP, Whitney Young and the Urban League, Fannie Lou Haemer, Rosa Parks and Dorothy Hite, they changed society and made it reach out and affirmatively help. I have benefited greatly from their efforts. But for them there would have been no road to travel. My grandparents always said there would be more opportunities for us. I can still hear my grandfather, "Y'all goin' have mo' of a chance then me," and he was right. He felt that if others sacrificed and created opportunities for us we had an obligation to work hard, to be decent citizens, to be fair and good people, and he was right. You see, Mr. Chairman, my grandparents grew up and lived their lives in an era of blatant segregation and overt discrimination. Their sense of fairness was molded in a crucible of unfairness. I watched as my grandfather was called "boy." I watched as my grandmother suffered the indignity of being denied the use of a bathroom. But through it all they remained fair, decent, good people. Fair in spite of the terrible contradictions in our country. They were hardworking, productive people who always gave back to others. They gave produce from the farm, fuel oil from the fuel oil truck. They bought groceries for those who were without, and they never lost sight of the promise of a better tomorrow. I follow in their footsteps and I have always tried to give back. Over the years I have grown and matured. I have learned to listen carefully, carefully to other points of views and to others, to think through problems recognizing that there are no easy answers 110 to difficult problems, to think deeply about those who will be affected by the decisions that I make and the decisions made by others. But I have always carried in my heart the world, the life, the people, the values of my youth, the values of my grandparents and my neighbors, the values of people who believed so very deeply in this country in spite of all the contradictions. It is my hope that when these hearings are completed that this committee will conclude that I am an honest, decent, fair person. I believe that the obligations and responsibilities of a judge, in essence, involve just such basic values. A judge must be fair and impartial. A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda, and the judge must get the decision right. Because when all is said and done, the little guy, the average person, the people of Pin Pqjnt, the real people of America will be affected not only by what we as judges do, but by the way we do our jobs. If confirmed by the Senate, I pledge that I will preserve and protect our Constitution and carry with me the values of my heritage: fairness, integrity, openmindedness, honesty, and hard work. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very, very much for a moving statement, Judge. Let me begin at the very outset by pointing out to you I, for one, do not in any way doubt your honesty, your decency, or your fairness. But, if I could make an analogy, I am interested in what you think, how you think. I don't doubt for a moment the honesty, decency, or fairness of Senator Hatch. I don't doubt for a moment the honesty, decency, or fairness of Senator Metzenbaum. But I sure have a choice of which one I would put on the bench. Because they are both honest—I mean this sincerely now. It is an important point. At least you understand what I have in mind. The fact you are honest and the fact you are decent and the fact you are fair, the fact you have honed sensibilities mean a lot to me. But what I want to do the next half hour and the next several days is to go beyond that. I will concede easily those points because it is true. No question. As we lawyers say, let's stipulate to the fact you are honest, decent, and fair, and let's get about the business of finding out why anyone who ever had the nuns can remember their eighth grade nun. Mine was Mother Agnes Constance. I don't know why I remember it so vividly. I suspect we both know why we remember so vividly.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Dare not forget.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And we both know they never forget. I made a speech not too many years ago, a commencement speech, at St. Joseph's University. After the speech was over I felt that finger that I am sure you felt in the middle of your back, and I heard, "Joey Biden, why did you say T instead of 'me' " in such and such a sentence. It is a true story. I turned around and it was my seventh grade nun. So we both have at least that in common, and let's see what we can find out about whether or not we have in common, if anything, about the broader philosophic constructs upon which the Constitution can and must be informed. Judge, as Senator Danforth said, he hopes we have read your speeches. I assure you I have read all of your speeches, and I have I ll read them in their entirety. And, as I indicated in my opening statement, what I want to talk about a little bit is one of the things you mention repeatedly in your speeches so that I can be better informed by what you mean by it. Whether you are speaking in the speech you delivered on the occasion of Martin Luther King's birthday, a national holiday and whether it should be one, to a conservative audience, making the point that he should be looked to with more reverence or whether or not it was your speech to the Pacific Institute or whether or not it is the Harvard Journal, whatever it is you repeatedly invoke the phrase "natural rights" or "natural law." And, as I said at the outset, here is good natural law, if you will, and bad natural law in terms of informing the Constitution, and there is a whole new school of thought in America that would like very much to use natural law to lower the protections for individuals in the zone of personal privacy, and I will speak to those later, and who want to heighten the protection for businesses and corporations. Now, one of those people is a Professor Macedo, a fine first-class scholar at Harvard University. Another is Mr. Epstein, a professor at the University of Chicago. And, in the speech you gave in 1987 to the Pacific Research Institute you said, and I quote: "I find attractive the arguments of scholars such as Stephen Macedo who defend an activist Supreme Court that would"—not could, would— strike down laws restricting property rights. My question is a very simple one, Judge. What exactly do you find attractive about the arguments of Professor Macedo and other scholars like him?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, it has been quite some time since I have read Professor Macedo and others. That was, I believe, 1987 or 1988. My interest in the whole area was as a political philosophy. My interest was in reassessing and demonstrating a sense that we understood what our Founding Fathers were thinking when they used phrases such as "All men are created equal," and what that meant for our form of government. I found Macedo interesting and his arguments interesting, as I remembered. Again, it has been quite some time. But I don't believe that in my writings I have indicated that we should have an activist Supreme Court or that we should have any form of activism on the Supreme Court. Again, I found his arguments interesting, and I was not talking particularly of natural law, Mr. Chairman, in the context of adjudication.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am not quite sure I understand your answer, Judge. You indicated that you find the arguments—not interesting—attractive, and you explicitly say one of the things you find attractive—I am quoting from you: "I find attractive the arguments of scholars such as Steven Macedo who defend an activist Supreme Court that would strike down laws resisting property rights." Now, it would seem to me what you were talking about is you find attractive the fact that they are activists and they would like to strike down existing laws that impact on restricting the use of property rights because, you know, that is what they write about. 112
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me clarify something. I think it is important, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Please.
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a parttime basis. I was an agency chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, judge, in preparing for these hearings, some suggested that might be your answer. So I went back through some of your writings and speeches to see if I misread them. And, quite frankly, I find it hard to square your speeches, which I will discuss with you in a minute, with what you are telling me today. Just let me read some of your quotes. In a speech before the Federalist Society at the University of Virginia, in a variation of that speech that you published in the Harvard Journal of Law and Policy, you praised the first Justice Harlan's opinion in Plessy y. Ferguson, and you said, "Implicit reliance on political first principles was implicit rather than explicit, as is generally appropriate for the Court's opinions. He gives us a foundation for interpreting not only cases involving race, but the entire Constitution in the scheme of protecting rights." You went on to say, "Harlan's opinion provides one of our best examples of natural law and higher law jurisprudence." Then you say, "The higher law background of the American Government, whether explicitly appealed to or not, provides the only firm basis for a just and wise constitutional decision." * Judge, what I would like to know is, I find it hard to understand how you can say what you are now saying, that natural law was only a—you were only talking about the philosophy in a general philosophic sense, and not how it informed or impacted upon constitutional interpretation.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me attempt to clarify. That, in fact, though, was my approach. I was interested in the political theory standpoint. I was not interested in constitutional adjudication. I was not at the time adjudicating cases. But with respect to the background, I think that we can both agree that the founders of our country, or at least some of the drafters of our Constitution and our Declaration, believed in natural rights. And my point was simply that in understanding overall our constitutional government, that it was important that we understood how they believed—or what they believed in natural law or natural rights.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. For what purpose, Judge?
Clarence Thomas
Nominee
(R)
Judge THOMAS. My purpose was this, in looking at this entire area: The question for me was from a political theory standpoint. You and I are sitting here in Washington, DC, with Abraham Lincoln or with Frederick Douglass, and from a theory, how do we get out of slavery? There is no constitutional amendment. There is no provision in the Constitution. But by what theory? Repeatedly Lincoln referred to the notion that all men are created equal. And that was my attraction to, or beginning of my attraction to this approach. But I did not—I would maintain that I did not feel that natural rights or natural law has a basis or has a use in constitutional adjudication.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, let's go back to Macedo, then. What was the political theory you found so attractive that Mr. Macedo is espousing?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The only thing that I could think of with respect to—and I will tell you how I got to the issue of property rights and the issue of the approach or what I was concerned about. What I was concerned about was this: If you ended slavery—and it is something that I don't know whether I alluded to it in that speech, but it is something that troubled me even in my youth. If you ended slavery and you had black codes, for example, or you had laws that did not allow my grandfather to enjoy the fruits of his labor, prevented him from working—and you did have that. You had people who had to work for $3 a day. I told you what my mother's income was. By what theory do you protect that? I don't think that I have explicitly endorsed Macedo. I found his arguments interesting, and, again, that is the
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But he doesn't argue about any of those things, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I understand that. I read more explicit areas. I read about natural law even though my grandfather didn't talk about natural
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But, I mean, isn't it kind of—I guess I will come back to Macedo. You also said in that speech out at the Pacific Research Institute, you said, "I am far from being a scholar on Thomas Jefferson, but two of his statements suffice as a basis for restoring our original founding belief and reliance on natural law, and natural law, when applied to America, means not medieval stultification but the liberation of commerce." You speak many times—I won't bore you with them, but I have pages and pages of quotes where you talk about natural law not in the context of your grandfather, not in the context of race, not in the context of equality, but you talk about it in the context of commerce, just like it is talked in the context, that context, by Macedo and by Epstein and others in their various books, a new fervent area of scholarship that basically says, "Hey, look, we, the modern-day court, has not taken enough time to protect people's property, the property rights of corporations, the property rights of individuals, the property rights of businesses." And so what we have to do is we have to elevate the way we have treated protecting property. We have to elevate that to make it harder for governments to interfere with the ability of—in the case of Epstein the ability to have zoning laws, the ability to have pollution laws, the ability to have laws that protect the public welfare. Then you say in another place in one of your speeches, you say, Well, look, I think that property rights should be given—let me find the exact quote—"should be given the exact same protection as"—you say, "Economic rights are as protected as much as any other rights," in a speech to the American Bar Association. Now, Judge, understand my confusion. Economic rights now are not protected as much as any other rights. They are not protected that way now. They are given—if they pass a rational basis test, in effect, it is all right to restrict property. When you start to restrict 114 things that have to do with privacy and thought process, then you have to have a much stricter test. And so you quote Macedo. You talk about the liberation of commerce and natural law, whatever you want to call it, natural law or not. And then you say economic rights—and, by the way, you made that speech to the ABA the day after you made the speech where you praised Macedo. Can you tell me, can you enlighten me on how this was just some sort of philosophic musing?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, that is exactly what it was. I was interested in exactly what I have said I was interested in. And I think I have indicated in my confirmation to the court of appeals that I did not see a role for the application of natural rights to constitutional adjudication, and I stand by that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, you argue Harlan did just that and that it was a good thing for him to have done. He applied this theory of natural rights, as you say, in his dissent in Plessy v. Ferguson.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I thought that
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He should have, you say.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, the argument was I felt that slavery was wrong, that segregation was wrong.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. And, again, I argue—and I have stood by that— that these positions that I have taken, I have taken from the standpoint of philosophical or from the standpoint of political theory.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, let me find
Clarence Thomas
Nominee
(R)
Judge THOMAS. Let me, if I could have an opportunity.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Sure, oh, please.
Clarence Thomas
Nominee
(R)
Judge THOMAS. My interest in this area started with the notion, with a simple question: How do you end slavery? By what theory do you end slavery? After you end slavery, by what theory do you protect the right of someone who was a former slave or someone like my grandfather, for example, to enjoy the fruits of his or her labor? At no point did I or do I believe that the approach of natural law or that natural rights has a role in constitutional adjudication. I attempted to make that plain or to allude to that in my confirmation to the court of appeals. And I think that that is the position that I take here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK, Judge. Well, look, let's not call it natural law, natural rights, whatever. What do you mean when you say economic rights are protected as much as any other rights in the Constitution? What do you mean by that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, the simple point was that notions like—for me, at this point—and, again, I have not gone back and I don't know the text of all those speeches. But there are takings clauses— there is a taking clause in the Constitution, and there is also a reference to property in our Constitution. That does not necessarily mean that in constitutional adjudication that the protection would be at the same level that we protect other rights. Nor did I suggest that in constitutional adjudication that that would happen. But it certainly does deserve some protection. Certainly the right of my grandfather to work deserves protection.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The right of my Grandfather Finnegan, too, deserved protection and your grandfather to work. But the issue here 115 is whether or—look, let me explain to you why I am concerned about this. You know why. Let's make sure other people know why. There is a whole new school of thought made up of individuals that up until about 5 years ago only spoke to one another. That school of thought is now receiving wider credence and credibility, to the point that former Solicitor General Charles Fried, in his book "Order and Law,"—not a liberal Democrat, Reagan's Solicitor General—said in his book about this group of scholars to whom Macedo and others like you refer—maybe you didn't mean the same thing, but this group of scholars, meaning Macedo and Epstein and others who I will mention in a moment. He says, "Fledgling federalist societies and often devotees of the extreme libertarian views of Chicago law professor Richard Epstein had a specific, aggressive and, it seemed to me, quite radical project in mind,"— meaning for the administration—"to use the takings clause"—I don't have much time so I won't go into it, but you and I both know the takings clause is that portion of the fifth amendment that has nothing to do with self-incrimination. It says if the government is going to take your property, they have to pay for it, except historically we have said if it is regulating your property, it is not taking it. If it is regulating under the police power to prevent pollution or whatever else, then it is not taking it and doesn't have to pay for it. And what these guys want to do is they want to use that takings clause like the 14th amendment was used during the Lockner era. This is Fried speaking. It says "had a specific, aggressive, and, it seemed to me, quite radical project in mind to use the takings clause of the fifth amendment to serve as a brake upon Federal and State regulation of business and property. The grand plan was to make government pay compensation for taking property every time its regulation impinged." Now, that is what this is all about, Judge. And, again, I am not saying that that is your view, but it seems to me when you say, which nobody else who writes in this area—I don't know anybody—and I have read a lot about this area. I don't know anybody else who uses the phrases "natural law," "property," "the takings clause," who doesn't stand for the proposition that Macedo and Epstein for, which is that we got this a little out of whack. We have got to elevate the standard of review we use when we look at property, just to the same standard, to use your phrase, the same rights as personal rights, that most Americans think to be personal, whether they can assemble, whether or not they can go out and speak, whether or not they can worship, whether or not they can have privacy in their own bedroom. And so these guys want to change that balance, but that is why I am asking you this. I will come back to it in a minute in my second round. But let me shift, if I may
Clarence Thomas
Nominee
(R)
Judge THOMAS. May I just respond?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes, please.
Clarence Thomas
Nominee
(R)
Judge THOMAS. First of all, I would like to just simply say, and I think it is appropriate, that I did not consider myself a member of that school of thought. And, secondly, I think that the postLockner era cases were correctly decided. 116 My interest in natural rights were purely from a political theory standpoint and as a part-time political theorist. I was not a law professor, nor was I adjudicating cases. And as I indicated and have indicated, I do not think that the natural rights or natural law has an appropriate use in constitutional adjudication.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, I would ask for the record, and I will make these available to you, that all the references you make that I have found—and there are pages of them—where you explicitly connect natural law with either specific cases or talk about informing specific aspects of constitutional interpretation be entered in the record. In my second round, I will be able to talk with you about them. You will have had a chance to read them. [The documents follow:] The CHAIRMAN. But let me move, if I may, for a second. As I said earlier, I mentioned that concomitant with those who want to sort of raise up the economic protections and business incorporation to make it harder for government to regulate them without paying them, which is a multibillion-dollar change in the law—not your view—where Mr. Epstein's views take place, the multibillion-dollar expense for the taxpayers if they wanted to continue to regulate the way we now regulate and consider reasonable. As I mentioned earlier, there is a second zone of individual rights, a zone which includes such rights as free speech, religion, and privacy in the family. These rights are also protected as informed by natural law principles. Now, you say that is not what you mean, informed by natural law principles. But some of the specific protections are very specific. For example, the fourth amendment guarantees personal privacy in a particular context, illegal search and seizures, and other protections are more general, like the 14th amendment that says nor shall any State deprive any person of life, liberty, or property without due process of law. Now, Judge, in your view, does the liberty clause of the 14th amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, first of all, let me look at that in the context other than with natural law principles.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let's forget about natural law for a minute.
Clarence Thomas
Nominee
(R)
Judge THOMAS. My view is that there is a right to privacy in the 14th amendment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, does that right to privacy in the liberty clause of the 14th amendment protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the State cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman's right to—as a fundamental interest a woman's right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, let's try it another way, Judge. I don't want to ask you to comment specifically on Roe there. What I am trying to get at, there are two schools of thought out there. There is a gentleman like Professor Michael Moore of the University of Pennsylvania and Mr. Lewis Lehrman of the Heritage Foundation who both think natural law philosophy informs their view, and they conclude one who strongly supports a woman's right and the other one who strongly opposes a woman's right to terminate a pregnancy. Then there are those who say that, no, this should be left strictly to the legislative bodies, not for the courts to interpret, and they fall into the school of thought represented by John Hart Healy and former Judge Robert Bork, for example, who say the Court has nothing to do with that. 128 Now, let me ask you this: Where does the decision lie? Does it lie with the Court? For example, you quote, with admiration, Mr. Lehrman's article. Mr. Lehrman's article was on natural law and— I forget the exact title here. Let me find it. "Natural Law and the Right to Life." And you say when you are speaking at a gathering that you think that that is a superb application of natural law. You say, "It is a splendid example of applying natural law." Now, what did you mean by that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me go back to, I guess, my first comment to you when we were discussing natural law—I think that is important—and then come back to the question of the due process analysis. The speech that I was giving there was before the Heritage Foundation. Again, as I indicated earlier, my interest was civil rights and slavery. What I was attempting to do in the beginning of that speech was to make clear to a conservative audience that blacks who were Republicans and the issues that affected blacks were being addressed and being dealt with by conservatives in what I considered a less-than-acceptable manner. The second point that
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In what sense? In that they were not
Clarence Thomas
Nominee
(R)
Judge THOMAS. That they were not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. Invoking natural law.
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, that—no. The second point that I wanted to make to them was that they had, based on what I thought was an appropriate approach, they had an obligation just as conservatives to be more open and more aggressive on civil rights enforcement. What I thought would be the best way to approach that would be using the underlying concept of our Constitution that we were all created equal. I felt that conservatives would be skeptical about the notion of natural law. I was using that as the underlying approach. I felt that they would be conservative and that they would not—or be skeptical about that concept. I was speaking in the Lew Lehrman Auditorium of the Heritage Foundation. I thought that if I demonstrated that one of their own accepted at least the concept of natural rights, that they would be more apt to accept that concept as an underlying principle for being more aggressive on civil rights. My whole interest was civil rights enforcement.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, you said in that speech, "The need to reexamine natural law is as current as last month's issue of Time on ethics, yet it is more venerable than St. Thomas Aquinas. It both transcends and underlies time and place, race and custom, and until recently it has been an integral part of the American political tradition. Dr. King was the last prominent American political figure to appeal to it. But Heritage trustee Lewis Lehrman's recent essay in the American Sector on the Declaration of Independence and the meaning of the right to life is a splendid example of applying it. Briefly put, this thesis of natural law is that human nature provides the key to how men ought to live their lives." And then Mr. Lehrman's article goes on, not you, Mr. Lehrman's article goes on and says, "Because it is a natural right of a fetus, there is no ability of the legislative body to impact in any way on whether or not there can or cannot be an abortion at any time for 129 any reason. And the Court must uphold applying natural law, the principle that abortion is wrong under all circumstances, whether it is the life of the mother, no matter what, all circumstances."
Clarence Thomas
Nominee
(R)
Judge THOMAS. It was not my intention, Mr. Chairman, as I have tried to indicate to you, to adopt—I think I have been explicit when I wanted to adopt someone or say something, adopt a position or say something. I think I have done that. My interest in the speech I think is fairly clear, or is very clear. My interest was in the aggressive enforcement of civil rights. Remember the context. I am in the Reagan administration. I have been engaged in significant battles throughout my tenure. It is toward the end of the Reagan administration. And I feel that conservatives have taken an approach on civil rights where they have become comfortable with notions that it is okay to simply be against quotas or to be against busing or to be against voting rights and consider that a civil rights agenda. What I was looking for were unifying themes in a political standpoint, not a constitutional adjudication standpoint, and I used themes that I thought that one of their champions had in a way adopted, not adopting his analysis or adopting his approach, but adopting a theme that he used to serve the purposes that I thought were very important.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, let me conclude this round by saying that—picking up that context, that you were a part of the Reagan administration. In 1986, as a member of the administration, you were part of what has been referred to here, the administration's Working Group on the Family. This group put out what I think can only be characterized as a controversial report. And you sign that report which recommends more State regulation of the family than is now allowed under the law. That report concludes that the Supreme Court's privacy decisions for the last 20 years are fatally flawed and should be corrected. Judge, did you read this report before it was released?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me explain to you how working groups work in the domestic policy context or the way that they worked in the administration. Normally what would happen is that there would be a number of informal meetings. At those meetings, you would express your—there would be some discussion around the table. My interest was in low-income families. I transmitted, after several meetings transmitted to the head of that working group, my views on the low-income family and the need to address the problems of low-income families in the report. The report, as it normally works in these working groups in domestic policy, the report is not finalized, nor is it a team effort in drafting. You are submitted your document. That document is then, as far as I know, it may be sent around or may not be sent around. But there is no signature required on those.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Did you ever read the report, Judge?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The section that I read was on the family. I was only interested in whether they included my comments on the lowincome family.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But at any time, even after it was published?
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, I did not.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU haven't to this moment read that report? 130
Clarence Thomas
Nominee
(R)
Judge THOMAS. TO this day, I have not read that report. I read the sections on low-income families.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. There was an awful lot of discussion in the press and controversy about it.
Clarence Thomas
Nominee
(R)
Judge THOMAS. There was controversy about it. I was interested in low-income families. If you work with the domestic policy group or the working groups at the White House, what one quickly learns is that you send your input, that that input is reduced to what they want it reduced to, and then the report is circulated in final.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, let me conclude. This is the last thing I will ask you. This report, which is only 67 pages long, of which your report is part of—and I acknowledge your suggesting, telling us that you did not read the report before or after, and your part was only a small part of this. But in this report, take my word for it, it says that one of these fatally flawed decisions—and they explicitly pick out one—is Moore v. City of East Cleveland, where the city of East Cleveland said a grandmother raising two grandchildren who are cousins and not brothers is violating the zoning law and therefore has to do one of two things: move out of the neighborhood or tell one of her grandchildren to leave. As you know, that case, I believe, was appealed to the Supreme Court, that grandmother, and the Court said, "Hey, no, she has an absolute right of privacy to be able to have two of those grandchildren, even though they are cousins, to live with her and no zoning law can tell her otherwise." Now, this report says, explicitly it says, that the city of East Cleveland and other cities should be able to pass such laws if they want and they should be upheld. And if we can't get them upheld, then we should change the Court. That is what this report says. And they say that the cities and States should be able to establish norms of a traditional family. If you will give me the benefit of the doubt that I am telling you the truth and accurately characterizing the report on that point, do you agree with what I suggested to you is the conclusion of that report in the section you have not read?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have heard recently that that was the conclusion, but I would like to make a point there. I think—and I think the Supreme Court's rulings in the privacy area support—that the notion of family is one of the most personal and most private relationships that we have in our country. If I had, of course, known that that section was in the report before it became final, of course I would have expressed my concerns.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is kind of outrageous, isn't it? Isn't it an outrageous suggestion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That would have had direct implications on my own family, that I could easily have been zoned out of my neighborhood should approaches like that take place. But my point to you—and I think it is very, very important, Senator—is this: That when you are involved or were involved in a working group in the White House, we were more in the nature of resource people. This was not a committee report. This was not a conference report which was circulated normally for comment. It was something generally that you provided your input, and I provided a significant memo, I believe, on low-income families and families that I felt 131 were at risk in the society and how we should approach resolving those families. I do not remember there being any discussion of the final draft.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I have much more to ask you, Judge. We are going to go back, when I get a chance again, to the Macedo quote, the ABA speech, and the Lehrman speech, and this report. But, quite frankly, at this point you leave me with more questions than answers, but let me yield to my distinguished colleague, Senator Thurmond.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, before proceeding forward—and I don't wish to interrupt my colleague, Senator Thurmond—would you be good enough to ask the Judge to read that report in order that we might inquire further of him tomorrow in our questioning period?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, if you plan on inquiring of him, I will make sure he has a copy available, and he can decide whether he wishes to read it or not.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I do intend to inquire of him.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I will see to it that he has a copy, and he can make the judgment whether he wishes to read it.
Senator Strom Thurmond (SC)
Senator
(R)
Senator Thurmond. Senator THURMOND. Thank you, Mr. Chairman. Now, Judge, I think we can move right along. I have about 30 minutes here, and I have approximately 14 questions. I think we can finish them if you will just make your answers fairly brief. Judge Thomas, the Constitution of the United States is now over 200 years old. Many Americans have expressed their views about the endurance of this great document. With the events in the Soviet Union, this document takes on an even greater significance as the foundation of our domestic form of government. Would you please share with the committee your opinion as to the success of our Constitution and its distinction as the oldest existing Constitution in the world today?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it should be clear to all
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Speak in the microphone. Speak out so we can all hear you.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it should be clear to all of us that our Constitution, as it has endured, is one of the greatest documents, not only in our lifetimes, but certainly in the history of the world. It protects our freedoms as well as provides us with a structure of government that is certainly the freest government in the world, and it has certainly been a model for other countries.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Second question: Judge Thomas, Marbury y. Madison is a famous Supreme Court decision. It provides the basis of the Supreme Court's authority to interpret the Constitution and issue decisions which are binding on both the executive and legislative branches. Would you briefly discuss your views on this authority?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important to recognize—and we all do recognize—that Marbury v. Madison is the underpinning of our current judicial system, that the courts do decide and do the cases in the constitutional area, and it is certainly an approach that we have grown accustomed to and around which our institutions, our legal institutions have grown up. 132
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the 10th amendment to the Constitution provides that all powers are reserved to the States or the people if not specifically delegated to the Federal Government. What is your general view about the proper relationship between the Federal and State governments, and do you believe that there has been an substantial increase in Federal authority over the last few decades?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that it is clear that our country has grown and expanded in very important ways. Through the commerce clause, for example, there has been growth in the national scope of our Government. Through the 14th amendment, there has been application of our Bill of Rights, or portions, to the State governments. Through the growth in communications and travel, of course, we are more nationalized than we were in the past. I think what the Court has attempted to do is to preserve in a way as best it possibly could the autonomy of the State governments, but at the same time recognize the growth and expansion and the natural growth and expansion of our National Government.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, some have discussed your tenure as Chairman of the Equal Employment Opportunity Commission since your nomination to the Supreme Court. Although this committee thoroughly reviewed the issues raised about the EEOC when you were nominated for the D.C. Circuit Court, would you tell the committee what are the problems you encountered at the EEOC and the steps you took to resolve them? And if you care to discuss any major accomplishments now, I would be glad to have you do so.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, EEOC, of course, was a significant portion of my career in government. It was a most important part. When I arrived at EEOC in 1982, of course, we had some very, very difficult problems. We had problems with respect to the infrastructure of the agency. I felt that we should investigate more cases and that we should litigate more cases. We were immediately faced with problems of just managing our own money in the agency. Over time, we were able to solve those problems. Over time, we were able to correct the infrastructure and to develop it and ultimately to improve our enforcement. We litigated more cases than ever in the history of the agency. We have been able to investigate cases, and we were able to do more with less in the agency with fewer resources. So I am very proud of my tenure at EEOC. I think we made great accomplishments. I think we made great strides. I think there was a lot to do after I left, and I felt that the agency was headed in a very positive direction.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the Supreme Court has ruled that the death penalty is constitutional. There are hundreds of inmates under death sentences across the country. Many have been on death row for several years as a result of the endless appeals process. Recently the Senate passed legislation which would reduce the number of unnecessary appeals by giving greater deference to State decisions. Additionally, the Supreme Court has ruled in certain cases that there should be limits to the endless filing of habeas petitions, especially in death penalty cases. 133 Would you give the committee your views on the validity of placing some reasonable limitations on the number of post-trial appeals in death penalty cases?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, generally I think that there would be a concern among all of us. The death penalty is the harshest penalty that can be imposed, and it is certainly one that is unchangeable. And we should be most concerned about providing all the rights and all the due process that can be provided and should be provided to individuals who may face that kind of a consequence. I would be concerned, of course, that we would move too fast, that if we eliminate some of the protections that perhaps we may deprive that individual of his life without due process. So I would be in favor of reasonable restrictions on procedures, but not to the point that individuals—or I believe that there should be reasonable restrictions at some point, but not to the point that an individual is deprived of his constitutional protections.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, I believe that tough sentences should be imposed in criminal cases, especially when the crime committed is one of violence. Over the years, I have favored tough criminal sanctions. Too often, unfortunately, victims of crime have not played a prominent enough role in the criminal justice system. However, recently the number of victims who participate in the prosecution of criminal cases has increased. In fact, the Court recently rules in the case of Payne v. Tennessee that the use of victim-impact statements in death penalty cases does not violate the Constitution. In your opinion, should victims play a greater role in the criminal justice system? And if so, to what extent should a victim be allowed to participate, especially after a finding of guilt against an accused?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Of course, Senator, that is a matter that the Court has, as you have noted, recently considered. My concern would be in a case like that that we don't in a way jeopardize the rights of the victim. Of course, we would like to make sure that the victims are involved in the process, but we should be very careful, in my view, that we don't somehow undermine the validity of the process; that an individual who is a criminal defendant is in some way harmed by that other than just simply getting it right and making sure that the total impact of the conduct is known. I think that there are concerns on both sides. From the standpoint of the victims, that is important. But there are also the constitutional rights of the criminal defendant.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, if I propound any question you consider inappropriate, just speak out and tell me. Judge, Congress established the U.S. Sentencing Commission in 1984. Its function is to promulgate sentencing guidelines for Federal judges to ensure uniform and predictable prison sentences. The Supreme Court ruled in the case of United States v. Mistretta that the sentencing guidelines are constitutional. Judge Thomas, from your experience, do you believe that uniform sentencing is more fair to those individuals who commit similar crimes and in the long run that sentencing guidelines will create better competence in the criminal justice system? 134
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that the problem, the concern that many individuals had in the sentencing of criminal defendants was the apparent unfairness and the disparity of sentences. The approach and the effort, the purpose of the uniform guidelines, one of the purposes was to simply provide some sense or to eliminate that disparity and that sense of unfairness. To the extent that it has done that in eliminating that disparity, I think it has brought a sense of fairness to the process. The concern, of course, of anyone who is involved in the criminal justice system is that we do not sacrifice justice or fairness for uniformity or for rigidity. But I think that most judges would agree that the guidelines have eliminated the disparity in sentencing.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, you are currently serving as a member of the U.S. Court of Appeals for the District of Columbia Circuit. You have participated in some 140 decisions. How beneficial, in your opinion, will your prior judicial experience be to you if confirmed to serve on the Supreme Court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that in my own career I have had the opportunity to work in a variety of positions. I have had an opportunity to work in the Federal Government, to be engaged in appellate work there, to represent agencies, as well as in the legislative and executive branches of the National Government. What has been important to me in those processes is that I have had the opportunity to grow, to learn, to expand, to mature, to make hard decisions, and to, I think, become a better person and to become certainly advanced as someone who is capable of deciding tough cases or making tough decisions. When one moves to the—when I moved to the judiciary, I felt that I had matured rapidly. But when one goes to the judiciary, one puts on those robes and realizes the immense responsibility of being a judge; that at the end of a decision, something is going to happen. Perhaps a person may stay in prison longer or a person may leave prison. There may be some economic effects. There may be a change in a company. Somebody wins or someone loses. So one becomes more serious and one again matures greatly. I think it is also important because one has to—a judge has to become accustomed to not having views, formed views on issues that may come before him or her. You become impartial or neutral. You begin to look at problems in a different way, and you recognize your fallibility. I think that my tenure on the court of appeals has been of tremendous benefit to me, and it certainly provided me with an occasion to mature more rapidly and to a larger extent than even my process of maturation in my previous jobs.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the doctrine of stare decisis is a concept well recognized in our legal system and the concept that virtually all judges have in mind when making decisions, especially in difficult cases. I am sure that the issue of prior authority has been a factor which you have considered while on the bench. Would you please briefly state your general view of stare decisis and under what circumstances you would consider it appropriate to overrule a prior procedure?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think overruling a case or reconsidering a case, Senator, is a very serious matter. Certainly, the case would have to 135 be—you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decisionmaking, I think it is a very important and critical concept, and I think that a judge has the burden. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case indirect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, under our Constitution, we have three very distinct branches of government. The role of the judiciary is to interpret the law. However, there have been times when judges have gone beyond their responsibility of interpreting the law and, instead, have exercised their individual will as judicial activists. Would you please briefly describe your views on the topic of judicial activism?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, that the role of a judge is a limited one. It is to interpret the intent of Congress, the legislation of Congress, to apply that in specific cases, and to interpret the Constitution, where called upon, but at no point to impose his or her will or his or her opinion in that process, but, rather, to go to the traditional tools of constitutional interpretation or adjudication, as well as to statutory construction, but not, again, to impose his or her own point of view or his or her predilections or preconceptions.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the exclusionary rule is well known in criminal law. At times, it is applied when there was no misconduct on the part of law enforcement. For this reason, the Supreme Court recognized a good-faith exception to the exclusionary rule in the case of United States, v. Leon, applying it to only searches made pursuant to a warrant. Judge Thomas, would you discuss the effect of the exclusionary rule in preventing police misconduct, and whether or not there is a varied basis for good-faith exception, especially when there is a search warrant.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think in the case of United States v. Leon, of course, the Court did find the good-faith exception, but the approach that the Court took and the concern was this, that the warrant and the requirement is to make sure that the law enforcement officials are deterred from pursuing in an unlawful way or obtaining evidence in an unlawful way, it will not be used in the process. In United States v. Leon, as I remember it, the magistrate had issued a warrant and the police officers or the law enforcement officials had relied on that warrant in good faith. The Court is simply saying that it would serve no purpose of deterrence, by precluding the use of a warrant that was issued by a magistrate, perhaps by mistake, but relied on, then, in good faith by the law enforcement officials. Of course, there are exceptions to that, but I think that the Court and the law enforcement community have come to accept the use of the exclusionary rule up to a point, and the Court is looking for ways to make sure that the purposes of the exclusion- 136 ary rule are advanced, as opposed to simply being used in a way that is rote.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, concerns have been raised about the high costs and sometimes lengthy delays to resolve cases in the Federal courts. Last year, Congress passed legislation that I introduced, along with Senator Biden, that requires each Federal district to prepare a proposal to reduce delay and costs in the Federal civil litigation process. In your view, is there a need to expedite civil cases and reduce costs, to insure that individuals have confidence in the courts to resolve disputes? And what would you recommend to improve handling of civil cases in the Federal courts?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that the concern that any of us would have when the court has a crowded docket is that there would be individuals who most need the access to our judicial system who would be squeezed out of that system, and we would also be concerned that if the costs of civil litigation were to increase, once again, the individuals who most need access to our judicial system would be eliminated from that system. I think that there have been some proposals by the Vice President, there have been approaches that involve dispute resolution in order to speed up the process. There have even been private individuals who have established ways to adjudicate cases. My concern with the later approach, of course, would be that we would have separate judicial systems for those who can afford it, the private system, and for those who cannot, they would have to wait in line for a crowded governmental system. But I think that there are some proposals. Of course, there is some discussion and I think that all times the judicial system should be open to all of our citizens. It is one common aspect that we all have the same judiciary.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, in an opinion written last year by Justice Scalia concerning the first amendment's freedom of religion, the Supreme Court ruled in Employment Division v. Smith that a law which is otherwise valid does not violate the first amendment if it incidentally affects religious practices. Would you please briefly discuss the impact this decision has on the compelling State interest test established in Sherbert v. Verner in 1963?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Of course, Justice Scalia's decision was, in essence, that since the general criminal statutes outlaw the use of peyote, I think, in that case, that one could not claim that it was a violation of their first amendment right to exercise their religious beliefs, that this preclusion by statute had occurred or that you could not use it in a religious exercise of any sort or religious celebration. What Justice Scalia did was actually use a different test than had been used in the past. He avoided using the Sherbert test. Justice O'Connor used the compelling interest test. She used the Sherbert test and reached the same result, if I remember the case right. I think it is an important departure from prior approaches and it is one that anyone who approaches these cases should be concerned about or at least be watchful for.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the issue of capital punishment is a controversial topic, with strongly held views on both sides. Now that the Supreme Court has ruled that the death penal- 137 ty is a constitutional form of punishment and provided steps to insure that it is not imposed as unfettered discretion, certainly there are judges who are personally opposed to the death penalty. Since the Supreme Court has ruled that the death penalty is constitutional, what role, if any, should the personal opinion of a judge play in decisions he or she may render in case such as the death penalty?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think as I have indicated, I do not think that a judge's personal opinions should play a role in deciding cases, and certainly if a judge has strongly held views to a point that he or she cannot be impartial or objective, then I think that judge should consider recusal. I think, of course, that some judges believe that the death penalty per se may be violative of constitutional rights, and that is one form of analysis or approach. But I think that if your personal views are so strong in any area, you should consider recusal.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, there have been complaints by Federal and State judges regarding the inferior quality of advocacy before the courts. During your service on the bench, have you found that legal representation in the courts was adequate? And what in your opinion should be done to insure that individuals get quality representation in the courts?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, during my own law school years, I thought it was important that I be involved, as a law student, in providing some representation for individuals who could not afford lawyers. I think we would all agree, in our judicial process and in this complex world, that it is difficult to represent one's self. While I was in the Attorney General's office, as well as at the Monsanto Co., I attempted to provide services to individuals who needed assistance. I think that the level of representation or the level of advocacy by the lawyers who have appeared before the court on which I currently sit has been very, very high. The lawyers' involvement in the process help us to sharpen the arguments, to understand the arguments, and certainly to sharpen our inquiry and our analysis of very, very difficult legal issues. I think it is important not only from the standpoint, and I think it is critical that individuals be represented, but I think it is not only important from that standpoint, but also from the standpoint of judges being able to get the cases right.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, prison overcrowding is a major problem facing Federal and State institutions today. Several State systems are currently under Federal prisoner cap orders which limits committing additional inmates to certain prisons. At a time when violent crime and drug offenses are such a problem, what other alternatives are available to insure that prison space is available for those sentenced to serve time?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is a difficult question, Senator. I do not think that those of us in the judiciary have the ability to know exactly how to solve all of the prison overcrowding issues. That, of course, is a problem that is facing virtually all areas. There have been efforts to move individuals to areas other than where they are convicted, to areas where they have additional space, and there 138 have been efforts to use other facilities, perhaps military bases, et cetera. But I think it is a problem that is worthy of reconsideration and it is one that, with the current prison population, has to currently be reexamined, not only by this body or similar bodies, but also law enforcement officials, as well as members of the judiciary.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, as you are aware, public liability cases often involve very complex issues, with large sums of money at stake. Many argue that Congress should pass reform legislation to modify the burden of proof in certain types of cases and to limit the amount of damages that jurists would be allowed to award. Based on your experience as a judge, what is your opinion of the ability of a judge in such complicated trials to comprehend these intricate issues and award damages reasonably related to the injuries suffered by the plaintiff? And if juries grant unwarranted awards, can appellate courts correct them?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, those cases are very difficult cases. I think that when juries and when judges attempt to adjudicate those cases, they have to sort out a complex set of issues, as well as determine in difficult circumstances what the appropriate relief would be. At the appellate level, our job is not simply to go back and impose our views on the trier of fact in those cases, but, rather, to assure that the appropriate standards of law were employed.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, many people have supported the enactment of alternative dispute resolution measures such as arbitration in products liability lawsuits. Do you believe that these alternative dispute resolution measures will work in a fair manner and be helpful in resolving complicated issues that are usually considered by a jury, as well as helping to expedite the handling of such cases?
Clarence Thomas
Nominee
(R)
Judge THOMAS. We used, Senator, the alternative dispute resolution process. We began during my tenure at EEOC to begin to take a look at those sorts of approaches to resolving very difficult problems, and I believe that they should be explored. In our own court, we have explored the use of that process in resolving some of the appellate cases. Again, I think is necessary to make sure that the cases that are allowed to go through that process are those that are susceptible to resolution in that manner. I would be concerned that any individual is deprived of his or her day in court, by using mechanisms that are not directly in the judicial process.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the Sentencing Commission is considering whether current Federal criminal sentences are adequate. In fact, the Commission has promulgated new guidelines for white collar and corporate offenses. Congress has also seen fit to increase the term of imprisonment for various white collar crimes, including those involves financial institutions. From your experience, have penalties for white collar crime and corporate defendants been sufficient, and do you anticipate tougher penalties for white collar criminals in the future, as a result of the recent savings and loan offenses and securities related crimes? 139
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, certainly I have not sat as a trial judge imposing those sentences. I think that the sentences under our guidelines in the areas in which I have been involved certainly seem to be adequate. I would be concerned that there would be significant differences between serious crimes in one area and serious crimes in another area, and I think that this body, as well as individuals who have studied this area, have attempted to reduce the disparity in those sentences and I think that is an important project and endeavor.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the caseload of the Supreme Court has grown rapidly over the past several decades. Part of this increase is a result of more cases being filed in the lower courts. Cases today are more complex, as our laws have become far more numerous and intricately fashioned. Would you please give the committee your thoughts on the current caseload of the Supreme Court and comment briefly on any innovative methods which could be utilized at the Federal level for handling this increased caseload?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I certainly could not, Senator, as much as I probably would like to advise the Supreme Court on its workload. I think that the judges on my court, and I would assume that Justices on the Supreme Court, are working at a level that is very, very significant. I know that our own investment of time on our court usually involves 6 or 7 days a week. Of course, we do not have the option of screening the cases, as the Supreme Court does. I think the Supreme Court has the awesome task of making some of the most difficult decisions in our Nation, and certainly the most difficult decisions in our judicial system, and it is important that they control their workload, I think, in a way that they can make these decisions in an appropriate manner.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, the light is red and my time is up. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, you have been sitting there a long time. I am going to try to get finished by 5:30, so why don't we come back at 20 after. We will recess until 20 after. [Recess.] The CHAIRMAN. The hearing will come to order. The Chair recognizes Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. First of all, Judge Thomas, I want to commend you for an extremely moving description about your early years, your relationship with your family, your grandfather, and really describing a situation which has existed for far too many people in our society. And I found it extremely moving and a very fair characterization in terms of your own integrity and fairness. And I commend my colleague and friend, John Danforth. I had the good opportunity to serve in the Senate for many years and I have heard many of the Senate introduce nominees for various positions and I have never heard one that has been more eloquent or heartfelt than Senator Danforth's statement. For those of us who have respect for him and for his values, I want to say how much I certainly appreciate it. As you understand, we have questions of you or about your views of the Constitution and the role of Government, and I would like 140 to, if I could, start out with the issue of the role of government in our society. In several of your speeches and articles you have taken a broad view of business rights, of an employer's interest in being free
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Would the Senator hold for a second? Would you close that door, please? Tell people in the hall to come in or stay out for a while. OK? The Senator cannot be heard. Thank you very much. Excuse me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I thank the Chair. Right. Well, in a number of speeches and articles you have taken a broad view of business rights, of an employer's interest in being free of government regulation. If confirmed, you will be called upon to interpret the Federal, State and local laws protecting employees and regulating workplaces. And, if you were hostile to these efforts and construed them narrowly as a result, you could seriously undermine our efforts to correct unsafe and unhealthy conditions that endanger millions of working men and women across the country, and I would like to ask you about some of your statements on this important issue. In a 1987 interview with a publication called Reason you question the need for many important Federal agencies. You said, and I quote: "Why do you need a Department of Labor? Why do you need a Department of Agriculture? Why do you need a Department of Commerce? You can go down the whole list, you don't need any of them really." You were quoted correctly, were you not?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I again don't know the context of that quote. I don't know what I said before or after. Of course, I think all of us would certainly be in favor of, and I certainly count myself among those Americans who are for safe working environments and who are strongly for protections from abuses and exploitation from individuals who have more clout and more power. I am for a safe working environment and I am for the standards that protect workers. And I am certainly, as I have made clear during my tenure at EEOC, strongly in favor of laws hat prevent employers from discriminating against individuals.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I will put the full interview in the record. You were asked about various departments and agencies and the necessity for your own agency, I believe, as a matter of fact, and the response to the—do you remember at all the interview? I have it and I will put it in the record. The inquiry is "Should I suspect that we might think that the EEOC ought not to exist. Why do you think that this agency should exist in a free society?" While in a free —this is your answer—free society I don't think there would be a need for it to exist. Had we lived up to our Constitution, had we lived up to the principles that we espouse there would certainly be no need. There would have been no need. Unfortunately, the reality was that for politics reasons or whatever there was a need to enforce antidiscrimination laws, or at least there was a perceived need to do that. Why do you need a Department of Labor? Why do you need a Department of Agriculture? Why do you need a Department of Commerce? You can go down the whole list, you don't need any of them." 141
Clarence Thomas
Nominee
(R)
Judge THOMAS. From that quote, Senator, I think the point that I was trying to make, there are certain individuals who think you don't need any government involvement, who felt that EEOC should not exist, for example. Well, in a perfect world you don't need EEOC. But this is not a perfect world. In a perfect world you probably wouldn't need a Department of Labor or Department of Agriculture. This is not a perfect world.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, why—if you take Department of Labor with enforcement of, say, OSHA regulations, or Department of Agriculture trying to deal with food inspection, Department of Commerce trying to ensure that American workers are going to be competing or the fair playing field, I just wondered even why you might suggest that those agencies as well as others.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me explain I think the point that I was trying to make. I believe, and I would have to go back and look at the entire question, but the point is this. There are some individuals who say: "Well, we don t need any government." "You don't need EEOC/' "Why should there be an EEOC?" Well, if there were no discrimination in the world, I don't think you and I would think that there was a need for EEOC. The reality is, though, that there is discrimination in the world. You could ask rhetorically what is the need for other departments if this were a perfect world. The answer is this is not a perfect world. If this were a perfect world, you wouldn't have to enforce health and safety laws. But the answer is that there are some people who violate health and safety laws, and you and I, and I think many others, think that people should be protected from those sorts of individuals.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, don't statements like these suggest hostility on your part to attempts by Government to help people that can't help themselves?
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, Senator. I think I was actually defending the effort in instances where there is a need for the Government to participate and for the Government to have a role. There were many individuals—I remember sitting down with an individual early in my tenure at EEOC, and his first words were to me, in a very pleasant way but firm, "You know, I don't think this agency should exist." But I spend a considerable amount of time defending the need for this agency and defending the need a specific role of the Government in certain areas. And I think that was the point I was trying to make there.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Just to read these final words of yours, after you said you don't need any of them, "I think though if I had to look at the role of Government and what it does in people's lives I see the EEOC as having much more legitimacy than the others if properly run. Now you run the risk that the authority can be abused when EEOC or any organization start dictating to people. I think they go far beyond anything that should be tolerated in this society." Well, now in a speech at the Pacific Research Institute, in 1987, you criticized entitlement programs. This is what you said: "The attack on freedom and rights had to be accompanied by their redefinition. In the socialist view the new freedom was thus only another name for the old demand for an equal distribution of wealth. 142 The new freedom meant freedom from necessity and it was a short road to what we call today entitlements. Before a right meant the freedom to do something. Now a right has come to mean, at least in some unfortunately growing circles, the legal claim to receive and demand something. Which entitlements were you referring to as socialism—Social Security or Medicare or unemployment insurance?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't think I referred to any of them specifically, Senator. I think I was trying to make the distinction between what we traditionally consider rights and freedoms versus programs that are specifically implemented or initiated by the government. I don't think that my comment there was one where I was looking at a specific governmental program and saying that this is an entitlement program that I think is bad or good. I think there is a comparison, there is a debate, and I thought it was a vibrant debate, about what our rights and what our freedoms were.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what is your view about entitlements?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that I have said in speeches and I think that it is appropriate that many of us
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Excuse me. I didn't understand.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that I have said in speeches and I think that programs, there are certain programs in our society that have helped. I remember visiting my mother in Fellwood Homes, which is a Federal housing project in Savannah, GA. Fellwood Homes was seen as what? It was seen—we lived in a tenement. She moved to a lane, a dirt street and a move up in the world. A steppingstone was Fellwood Homes before she could then move to something better. I thought that those programs were good. I think we all though in a pluralistic society are concerned that sometimes when we do something that we hope is good that it may on some occasions have a negative impact, and I think that it is not illegitimate to say that some of these programs, or at least some of the ramifications, may not be what we expected and some of the consequences may be unintended consequences. But I certainly believe that the efforts on behalf of providing public housing to my mother or the efforts of providing relief to individuals who could not receive jobs, et cetera, in my neighborhood were very, very good efforts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, of course, as you know, there are certain programs which are entitlements and other programs which are not, and I think all of us understand some, various programs work well, others do not. And I am sure we as an institution don't do as well as we should in sorting out the ones that do not. But entitlements have a special position. They certainly do from a budgetary position, and they have been selected by the Congress basically in a bipartisan way because they have a certain relevancy, because they have had an evaluation, and when you mention something like Social Security, student loan programs, various— crop insurance programs, some of the other half a dozen or so, because there is only that many, some of the particular programs for children, those are considered entitlements. And I didn't know— your bunching those together within the same paragraph that is talking about the socialist view, the need freedom, was that thus 143 only another name for the old demand for equal distribution, effectively entitlements?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, certainly I again don't remember the full context of that, but let me just say this, Senator. I was not speaking in a budgetary sense or a more technical sense. I think I was comparing two views of what rights are today and I thought it was, as I said, an important discussion and an important debate.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In a 1988 article you stated that, and I quote, Our current explosion of rights, welfare rights, animal rights, children's rights, and so on, goes on to the point of trivializing them. You know, which children's rights do you object to?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I guess I don't object to rights. I was just—the only point I was making, Senator, and it wasn't in any way undermining the need to be concerned about these problems in our society. I certainly have been involved with organizations to make sure that kids are not abused, and I certainly spend my time trying to make sure that kids are given guidance and help. I think that is very, very important in our society. But my point was that when we talk about rights, rights that we consider basic or fundamental or freedoms, that when you begin to attach the word "right" to a particular effort or cause or a program that you believe in that then the notion of rights becomes one that is commonly used, as opposed to reserve for these very, very important rights that we believe in. Again, that is not putting, not in any way saying that there is no problem, but simply saying that it becomes a common experience to simply, say, declare a particular right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the reason I am pursuing this line of questioning is to get some kind of sense about your view about various statutes that will be approved by the Congress to address what the Congress believes are areas of need, and whether from these statements that it is fair to draw any implications of some hostility to statutes which would be drafted by the Congress to try and focus in the areas of particular needs or protections, for example, the OSHA for protecting the workplace, or whether it is the food inspections, or whether it is in terms of trade, or whether it is in terms of even parental leave, which you have expressed some degree of hostility to in your statements. The real question is whether we can—we draw any conclusion as to the degree of hostility that you might have by yourself in interpreting statutes given these kinds of statements when perhaps there is an approach to trying to deal with these kinds of conditions that you may or may not agree with.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, Senator, I think that when one is in a policymaking function, just as if I were in this body, I could debate with you on, and I think quite legitimately, about my concerns in particular areas. I think you have a sort of role, or at least a part of your function would be an advocate for a particular point of view. But when you make a decision, when you write a statute, when this body deliberates and concludes, whether I agreed or not in the policymaking function, when I operate as a judge or when I decide a case and look at it as a judge, I am no longer an advocate for 144 that policy point of view. My job is to interpret your intent, not to second-guess your intent. It is not to second-guess what you think is the appropriate policy. It is not to second-guess whether or not you are right, not to second-guess whether I think it would be better to have 10 more rules as opposed to the 5 that you have, but simply to determine what you felt was right, what you felt was correct, and what your intent was and to apply that. And that is the way I see my role now as a judge.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it is helpful because many of the decisions that are going to be made by the Court over the period of these next years are going to reflect the basic tension that exists between an executive and the Congress in the development of legislation and what the Court is going to say on many of these matters that are increasingly de facto at the present time. So your view about how you approach this is I think very important, and particularly in light of these earlier comments. Let me move to another subject area, and this is referring to an article about you in the Atlantic Monthly in 1987. You said that hiring disparities could be due to cultural differences between men and women. This is the article "A Question of Fairness," by Juan Williams. That article states that you said that it could be that women are generally unprepared to do certain kinds of work by their own choice, it could be that women choose to have babies instead of going to medical school. Do you still think that that explains the underrepresentation of women in so many jobs in our economy today?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, and I think it is important to state this unequivocally, and I have said this unequivocally in speech after speech. There is discrimination. There is sex discrimination in our society. My only point in discussing statistics is that I don't think any of us can say that we have all the answers as to why there are statistical disparities. For example, if I sit here and I were to look at the statistics in this city, say with the example of number of blacks, I couldn't— and compare the number of blacks that are on that side of the table, for example. I cannot automatically conclude that that is a result of discrimination. There could be other reasons that should be explored that aren't necessarily discriminatory reasons. I am not justifying discrimination, nor would I shy away from it. But when we use statistics I think that we need to be careful with those disparities.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Very little I could differ with you on the comment. But I was really driving at a different point, and that is whether you consider women are generally unprepared to do certain kinds of work by their own choice; it could be that women choose babies instead of going to medical school. Let me just move on to your comments about Thomas Sowell, an author whose work you respect and many—whose ideas you have stated that you agree with. Mr. Sowell wrote a book called the Civil Rights Rhetoric: A Reality. You reviewed that book for the Lincoln Review in 1988 as part of a review of the works of Thomas Sowell, and in particular you praised Mr. Sowell's discussion, chapter 5 of his book entitled A Special Case of Women," and you called it a 145 much needed anecdote to cliches about women's earnings and professional status. Mr. Sowell explains that women are paid 59 percent of what men receive for the same work by saying that women are typically not educated as often in such highly paid fields as mathematics, science, and engineering, nor attracted to physically taxing and wellpaid fields, such as construction work, lumberjacking, and coal mining, and the like. As a matter of fact, there were no women employed in the coal mine industry in 1973. In 1980, after the Federal Government had begun an effort to enforce antidiscrimination laws, that 3,300 women are working in coal mines. Does that surprise you at all?
Clarence Thomas
Nominee
(R)
Judge THOMAS. If there is discrimination, it doesn't surprise me. There were lots of places I think in our society. You know, I used to when I—I can remember in my own classrooms looking around and realizing that 7 or 8 of the top 10 students in my classroom in grammar school were the smartest students and wondering at that age, If 8 of the 10 of them are the brightest, then why aren't there women doctors and why aren't there women lawyers. But the point that I was making with respect to Professor Sowell again is a statistical one. There is a difference between the problem that, say, a 16-year-old or 18-year-old minority kid, female, in this city or in Savannah or across the country, who is about to—who has dropped out of high school, there is a difference between the problems of that child or that student than there is for someone who has a Ph.D. or someone who has a college degree. And I thought that it would be more appropriate, again referring back to the programs that you talked about, that we talked about earlier, in looking at how to solve these problems that you disaggregate the problems and you be more specific instead of lumping it all into one set of statistics.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Sowell goes on to suggest that employers are justified in believing that married women are less valuable as employees than married men. He says that if a woman is not willing to work overtime as often as some other workers or needs more time off for personal emergencies, then they may make her less valuable as an employee or less promotable to jobs with heavier responsibilities. He says the physical consequences of pregnancy, childbirth alone are enough to limit a woman's economic option, and then he reaches some troubling conclusions about women in the workplace based on stereotyped gender roles. Yet you call those descriptions of women workers a much needed antidote to cliches. Aren't those views the very cliches that women have been trying to escape for so long?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that someone like a Tom Sowell is certainly one who is good at engaging a debate, and I think it is important that there be individuals who look at statistics in his way. I did not indicate that, first of all, that I agreed with his conclusions. But I think this is an important point. I had during my tenure, I think, the majority of the members of my own personal staff and the—were women, and the conclusion, for example, about 146 married women I found certainly not supported by my experience with married women on my staff. That was not the point. The point is that I think sometimes that we can be involved in debate and make generalizations, and it is always good to have someone who has a different point of view and have some facts to debate that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the reason I raise this is because with regards to this particular description of women you described that chapter as a much needed antidote to cliches, and I think many women would read his description, particularly in that chapter, as being really a description of the stereotype which—attitude which has really kept them back in too many instances. I am sure you are commendable for what you have done and that is a powerful factor in relationship, obviously, with other statements or speeches. But nonetheless, that chapter really stands out and that is why I wanted to bring this up.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I think that—again, Senator, I think it is important that in our society and as a policymaker that you have debate. I don't think that Professor Sowell or others are in any way sexist or in any way people who would discriminate. I made it a point, it was very important to me during my tenure at EEOC and it has been very important to me during my life, to make sure that these arbitrary stereotypes or these arbitrary discriminatory barriers were knocked down, and I think you can simply look at my record in promoting women to the Senior Executive Service. I think it is second to none in the Federal Government. Similarly, with respect to my personal staff. I think it is important. I do think that discrimination exists and I think it needs to be eradicated. But at the same time, when we do have approaches in our society, I think that reasonable people can disagree, and reasonable people of good will can disagree, without being characterized in a negative way.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In my final area of questioning, I would like to come back to just an area that was raised by Chairman Biden in the concluding part of his questions, and that was with regard to the Lehrman essay. In the speech in 1987, called Why Black Americans Should Look to Conservative Policies, you spoke about natural law, you said, Heritage Foundation Trust, Lew Lehrman's recent essay, "An American Spectator," on the Declaration of Independence and the meaning of the right to life, is a splendid example of applying natural law. The title of the Lehrman article you endorsed is "The Declaration of Independence and the Right to Life: One Leads Unmistakably From the Other." The article makes only one argument and it is about only one subject, that natural law protects the right to life and that, as a result, the Constitution must be interpreted to protect the right to life. So, Lehrman's basic position is that abortion violates the constitutional right to life, and he argues that when the Supreme Court decided Roe v. Wade, it simply conjured up a right of abortion, and he calls it a spurious right borne exclusively of judicial supremacy, with not a single trace of lawful authority. He also draws a parallel between those who support abortion and those who supported slav- 147 ery. He says the decision to protect a woman's right to abortion has resulted in a holocaust. These extreme statements about a woman's right to choose were all expressed in that article, and you called that article splendid, is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, I did not endorse the article, but I would like to make this point, and it is very important and perhaps it is one that was missed earlier. My interest toward the end of the Reagan administration was an important interest to me, and that was that I had spent almost a decade of my life battling with individuals who were conservative, and I felt that they should not be antagonistic to civil rights, and I felt that, in fact, they should be very aggressive on civil rights. In exploring, on a part-time basis during my busy work day, a unifying theme on civil rights and on the issue of race, I was looking for a way to unify and find a way to talk about slavery and civil rights, the way that the abolitionists used, the very same approach that was used and offered in the Brown v. Board of Education brief, authored, among others, by my predecessor, by Justice Marshall, whose seat I am nominated to fill. My point was that I figured or I concluded that conservatives would be skeptical about the notion of natural law, but one of their own had endorsed it, and I simply wanted to give some authenticity to my approach, so that I could then move on and get them to consider being more aggressive on the issue of civil rights. That was very, very important to me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, have you ever publicly stated that you disagree with the article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have never been called on, it has never been raised as an issue. It was considered, I think by many, as a throwaway line. I saw it as that, as something to convince my audience and it has never really come up. As I indicated, I don't think that you can use natural law as a basis for constitutional adjudication, except to the extent that it is the background in our Declaration, it is a part of the history and tradition of our country, and it is certainly something that informed some of the early litigation, I guess, with respect to the 14th amendment, but it is certainly something that has formed our Constitution, but I don't think that it has an appropriate role directly in constitutional adjudication.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do you disagree with the article now?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do disagree with the article and I did not endorse it before. My point was simply—and I think it was an important point—that I endorse natural law, but I use natural law to make the point that conservatives should aggressively enforce civil rights.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do I understand now that you do disagree with the article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I disagree in the manner that he used it, yes. I disagree with the article, yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Can you elaborate on what
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, to the extent that he uses natural law to make a constitutional adjudication, in that sense, or to provide a moral code of some sort, I disagree with it. 148
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But with regards to the other features of the article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't know all the other features of the article. My interest was a very single-minded interest, Senator, and that was in trying to convince a conservative audience in the Lew Lehrman Auditorium of the Heritage Foundation, with a concept that Lew Lehrman adopted, to make my point, and it was an important point to me. I did not endorse, nor do I now endorse other portions of his article.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you mention in that speech, did you say anything else about Lew Lehrman, I mean he is a trustee of the Heritage Foundation, or the work that he has done? Did you say anything else, other than endorsing this—like most of us in these kinds of circumstances, you know, perhaps looking about gilding the lily or so, but there are different ways of doing it, and I am just asking whether you talked about his work as a trustee of the Heritage Foundation or other work that he has done, or was the only reference to Mr. Lehrman about this article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. His use of natural law was the only reference. Again, Senator, this has not been something that has come up in a way that required explication. The important point for me was a very simple point, and that was that I was attempting to convince conservatives, individuals whom I thought would be skeptical about the notion of natural law and skeptical about aggressive enforcement of civil rights the way that I believe that civil rights should be endorsed, that here was a basis on which they could be aggressive, and I think it was an important speech, and I saw it, the manner in which it was quoted prior to my nomination to this Court was one in which I was criticizing the administration and criticizing conservatives.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I did not find any reference to civil rights in the Lehrman article.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But throughout my speech there is reference.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have read that. Finally, did you agree with any parts of the article, the Lehrman article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. My only interest, again, was in the notion that he used natural law. I do not think that natural law can be used to adjudicate the issue that he adjudicated.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My time is up, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Hatch, and then we will end today's hearing.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. In all due respect, let me just start with the Chairman's excerpt that he cited to you earlier. That excerpt from the Pacific Research Institute speech is, in my view, completely out of context, and let me just read it to you, starting on page 16 of the speech: I find attractive the arguments of scholars such as Stephen Macedo, who defend an activist Supreme Court which would strike down laws restricting property rights. You immediately take on that statement. "But the libertarian argument overlooks the place of the Supreme Court in the scheme of separation of powers. One does not strengthen self-government and the rule of law by having the nondemocratic branch of the government make policy.' 149 Now, in all honesty, I would ask that the entire speech be placed in the record, and I would
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be placed in the record. [The article referred to follows:]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would also suggest that we not pluck a sentence out of context, none of us should do that, from 138 speeches that you gave. Gee, I would hate to remember all the speeches I gave in any given period of time, and I think we ought to have it all in context and you ought to be given a copy of it, so that you can refer to the actual language. I think that is the only fair way to do it. The committee has
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If the Senator would yield for a moment. Before the hearing even began, on Friday I told the witness that the first thing I would ask him about was Macedo. I specifically told him, so he understood that, even back then.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am not suggesting the Chairman is unfair. I am saying that the process is unfair, if we do not do at least this. When we want to quote a line out of context, I am suggesting from here on in, let us give the Judge a copy of the speech and refer to the line that you are quoting on, because this one was clearly out of context, and clearly he was not endorsing the Macedo definition of an activist Supreme Court. I mean it is very clear to anybody who reads it. This committee has obtained over 30,000 pages of documents or material from this nominee, and I think if he is asked about one of his writings, he at least ought to be able to see it in front of him, and I would suggest we follow that procedure. Judge let me ask you this: Will any of the writings or speeches cited today affect you in your role as a judge or as a Justice in this particular case, or will you rely on the actual text of the law, the legislative history, prior case law, et cetera?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I noted, my interest particularly in the area of natural rights was as a part-time political theorist at EEOC who was looking for a way to unify and to strengthen the whole effort to enforce our civil rights laws, as well as questions, to answer questions about slavery and to answer questions about people like my grandfather being denied opportunities. Those were important questions for me. When one becomes a judge—and I think I alluded to this in my confirmation hearing for the court of appeals—there are approaches to adjudicating cases and to understanding statutes, to analyzing statutes and determining meanings in statutes or your intent in statutes, as well as constitutional adjudication. I do not see how my writings in a policy context, I do not see that they will affect anything that I do on the Supreme Court. As I noted that the whole notion of natural law, as our Founders believed it, is a background of our regime, and to the extent that it is used at all, it is an understanding of the way that they looked at our regime and at the way that they, in the Declaration of Independence, felt that our country should operate, and, of course, that then is translated into provisions that they drafted for the Constitution itself. It informs us as to the value that they put on individual freedom, for example. I think that is important, but that does not play a direct role in adjudicating cases on a constitutional basis.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree with that. In the November 1987 Reason article cited by Senator Kennedy, it was an interview, an off-thecuff interview, I take it. Reason says, "I suspect that he might 169 think that the EEOC ought not to exist," talking about Thomas. The question put to you was this: "Why do you think that this agency should exist in a free society?" Your answer was, "Well, in a free society"—later today, you said, "Well, in a perfect society," I think that is what you meant by that—"Well, in a free or perfect society, I don't think there would be a need for it to exist. Had we lived up to our Constitution, had we lived up to the principles that we espoused, there would certainly be no need." There would have been no need for manumission either. Unfortunately, the reality was that, for political reasons or whatever, there was a need to enforce antidiscrimination laws, or at least there was as perceived need to do that. Why do you need a Department of Labor? Why do you need a Department of Agriculture? Why do you need a Department of Commerce? Those appear to me to be rhetorical questions, in light of the point you are making, in a perfect world you do not need them, but here was discrimination and we needed to enforce antidiscrimination laws. You can go down the whole list of Federal agencies, you say, and you do not need any of them, really. But what you meant was, and it is apparent, as you read this carefully, in a perfect world. You go on to say, "I think, though, if I had to look at the role of Government and what it does in people's lives, I see the EEOC as having much more legitimacy than the others, if properly run." That's a hands-on person-to-person agency that is dealing with the most common problems in employment law and in discrimination and in opportunity. Is that not correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, here is what you say: "Now, if you run the risk that the authority can be abused, when EEOC or any organization starts dictating to people, I think they go far beyond anything that should be tolerated in this society. That is a far cry from what was implied in the questions to you. You go on to say other things that I think you make pretty clear. Still, it was an off-the-cuff interview with a publishing group. Frankly, I think it was pretty clear that you were not arguing we should do away with all of these agencies, unless we had a perfect world. Is that a fair summary of that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is the point in that interview that I was trying to make. The question—and that is Reason magazine, if I remember correctly, is a libertarian magazine, and some libertarians believe that there should be no organizations and no governmental agencies such as the EEOC, so the question then becomes how do you justify, if you are for the individual, how do you justify a governmental agency that, in affairs and relationships, the employment relationship between individuals, and the response is, well, if this were a perfect world, you might be right, but this is not a perfect world, and if there is a justification for any kind of an agency in our Government, and there are many, then EEOC is at the top of that list.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I suspect that you are going to be criticized for your tenure at the EEOC. I cited the Washington Post praise of you. I cited U.S. News & World Report's praise of you. As former 170 Chairman of the Labor Committee and currently ranking member, we had a lot to do with the EEOC, and I have to tell you, you did a good job running that agency. Was it perfect? No, but you did a good job. Frankly, you took it seriously and you brought more cases than any other EEOC Chairman in history, and you recovered over a billion dollars in those cases, and we could go on and on. Tell me, generally, your reaction to these comments, Judge: Natural law is not a theory of legal interpretation, according to Professor Robert George, of Princeton University, who is a lawyer and holds a doctorate in philosophy from Oxford University. Rather, he goes on to say, "it is a theory of law that holds that there are true standards or principles of morality, that human beings are bound in reason to respect, and that among these are norms of justice and human rights that may not be sacrificed for the sake of social utility. Both liberals and conservatives share a belief in fundamental principles of justice and right, however much they disagree about the exact content and implications of some of these principles. The relevance of natural law to judging, it is that out of respect for the rule of law, judges are obliged to recognize the limits of their own authority. The scope of a judge's authority is settled not by natural law, but the constitutional allocation of political authority among the judicial and other branches of government." Now, as Professor George has written, belief in natural law is perfectly consistent with fidelity to the Constitution, as the supreme law of the land and the commitment to judicial restraint. Now, whatever may be your views of the rights and wrongs of various social issues as a matter of natural law, it seems to me your commitment to natural law and natural rights neither permits you nor requires you to treat the Constitution as a vehicle for imposing those ideas on the rest of the country. Do you agree basically with that statement?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that is, in part, the point that I was attempting to make. My interest, for example, was in the fact that, in our country, you had a stated ideal in the declaration, all men are created equal.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Natural law means there should not be slaves, right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is the next step, that if that is true, then how can one person own another person, and yet you had slavery existing at the same time the declaration existed. In order to change that constitutionally, not as a matter of principle in our regime, but constitutionally you needed an amendment to the Constitution, and I indicated that. There is a difference between the ideal and the Constitution itself. With respect to constitutional adjudication, I do not think that there is a direct role for natural law in constitutional adjudication. It is a part of our history and tradition. It is a part of our background and our country. It is a belief that a number of our drafters held. It is in our Declaration, and as I mentioned before, it is prominent in the brief filed by the NAACP in Brown v. Board of Education, to show the ideals of this country, but even there as an appendix, I think it is listed as a political philosophy section. 171 I do not know, I cannot remember whether it was advocated as a way to adjudicate, but my point is that it does not, it is not a method of constitutional adjudication. When I was speaking as Chairman of EEOC, again, I was a policymaker. I was not a litigator and I was not a constitutional law professor.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is a good distinction, by the way.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, it was an important one for me and it is an important one for me now. When one is a judge, from my standpoint, one does not go into one's own personal philosophies and apply those personal philosophies in one's effort to adjudicate cases. I think that there are principles, there are traditional approaches that have been used, and I have confined myself and would confine myself to that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. When you are talking about natural law, you are talking about equality?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That all men are created equal, that is basic law.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right, and you are taking that from the Declaration of Independence.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And you are saying that is why we needed the 13th, 14th and 15th amendments.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That was the most apparent and grossest contradiction in our society, that you had declaration declaring all of us to be equal, and yet the coexistence with that of slavery.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I find it to be interesting, because Judge Bork was criticized because he did not particularly endorse the principle of natural law in constitutional adjudication, and now you are being criticized because you purportedly do. Frankly, it is a double standard, and, I might add, by the same committee. What I interpret you to be saying—and maybe I am wrong, and you correct me if I am wrong—is that when it comes to natural law and the Constitution, the Constitution takes preeminence.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The Constitution is our law, it is the law of our land. The natural law philosophy is a political theory, my interest was political theory, it was not constitutional law.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO, when you become a Justice on the U.S. Supreme Court, and I believe you will, you intend to uphold the Constitution of the United States, is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. With every fiber in my body.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Above anything else?
Clarence Thomas
Nominee
(R)
Judge THOMAS. My job is to uphold the Constitution of the United States, not personal philosophy or political theories.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that is a pretty good way of putting it. Some have criticized natural law as being outside the mainstream. I have seen articles by some of our eminent law professors in this country, at least one in particular that I can see. If natural law is outside the mainstream, then so is the Declaration of Independence, and that is the point you are making, it seems to me. As Professor Robert George, of Princeton University, observed, if you believe that slavery was inherently unjust and should have been abolished, you believe in natural law of some sort. Throughout our American history, many of our greatest leaders, Thomas Jefferson, Abraham Lincoln, Martin Luther King, Jr., they have all invoked natural law in their struggles against injustices of their times. 172 Now, I think you are being accused, if you believe in natural law, then that means that would make you a conservative judicial activist. Now, I have to tell you, as much as I care for you and as much as I know you and believe in you, if you are going to go on the bench to be a conservative judicial activist, I am going to be against you as much as if you were a liberal judicial activist, because I do not think that is the purpose of that role on the court.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that was the point, and I have to go back and read the speech involved, but that was the point of the criticism of Macedo, that he indeed was an activist and I think there was some debate about that, and I do not think the role of the Court is to have an agenda to say, for example, that you believe the Court should change the face of the earth. That is not the Court's role. There are some individuals who think, for example, as the Chairman mentioned earlier, that the whole landscape with respect to economic rights should be changed, and I criticize that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I understand both of our personal discussions and also from reading some of the things you have written, you recognize the natural law principles of the Declaration of Independence as reflected in the written Constitution, that they constrain both legislative majorities and the courts. Am I correct on that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Moreover, many who criticize you today for acknowledging the existence of natural law were the most vociferous critics of Judge Bork 4 years ago for not acknowledging the existence of natural law. I just want to make that point. By endorsing Lewis Lehrman's article in the American Spectator, some say that you have signaled that you would vote to overturn Roe v. Wade. Well, I think you have made it pretty clear. You were complimenting Lehrman as trustee of the Heritage Foundation in the Lehrman Hall when you made that particular remark in a nine, single-spaced-page talk that you gave. As Senator Danforth has said, to say that Judge Thomas thereby adopted or endorsed Lewis Lehrman's entire article is like suggesting that any of our references to a "distinguished colleague" in the Senate is a full-fledged endorsement of everything that "distinguished colleague" has ever said. Now, that is ridiculous, and I personally think the implication is ridiculous as well. But let me just ask you the question. Have you made up your mind, Judge Thomas, on how you will vote when abortion issues are before the Court as a Justice on the Court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, there is a lesson that I think we all learn when we become judges, and I think it happens to you after you have had your first case; that you walk in sometimes, even after you have read the briefs and you think you might have an answer. And you go to oral argument, and after oral arguments you think you might have an answer.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. And after you sit down and you attempt to write the opinion, you thought you had an answer, and you change your mind. 173 I think it is inappropriate for any judge who is worth his or her salt to prejudge any issue or to sit on a case in which he or she has such strong views that he or she cannot be impartial. And to think that as a judge that you are infallible I think totally undermines the process. You have to sit. You have to listen. You have to hear the arguments. You have to allow the adversarial process to think. You have to be open. And you have to be willing to work through the problem. I don't sit on any issues, on any cases that I have prejudged. I think that it would totally undermine and compromise my capacity as a judge.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that says it all. But let me just say this: I have been interested in some of these questions about substantive due process issues. As you know, the first substantive due process case was the Dred Scott case in 1857. That is where the Supreme Court held that the "Liberty prong" of the due process clause prevented Congress from forbidding slavery in the territories. Now, later in the 19th century and the early 20th century, the Supreme Court employed substantive due process in Lochner v. New York—that is the case that came up earlier—to strike down astute law that limited the numbers of hours that bakery workers could work in a week. The New York legislature passed the law, and Lochner struck it down. There were other substantive due process cases up until the 1930's, and all of those struck down efforts by the States to regulate the workplace and the economy. And substantive due process was basically dormant from that time until the early 1960's when the Court, of course, began to use substantive due process to achieve liberal results, or should I say liberal social policy results. Now, according to some of my liberal colleagues that was all right, but the earlier use of substantive due process was wrong. I am telling you both of them are wrong. The fact of the matter is that nobody in his right mind believes that you are going to go strike down all of the social policy results that the Congress has passed, including OSHA, food safety laws, child care legislation, welfare laws, fair housing laws, low-income housing, and so forth. Is there even any shred of evidence or any shred of thought that you would be the type of judge that would be a substantive due process judicial activist that would take us back to the Lochner days?
Clarence Thomas
Nominee
(R)
Judge THOMAS. TO my way of thinking, Senator, there isn't. I think that the post-Lochner era cases were correct. I think that the Court determined correctly that it was the role of Congress, it was the role of the legislature to make those very, very difficult decisions and complex decisions about health and safety and work standards, work hours, wage and hour decisions, and that the Court did not serve the role as the superlegislature to second-guess the legislature. I think that those post-Lochner era cases were correctly decided, and I see no reason why those cases and that line of cases should have been or should be revisited.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I agree with you. I have to note that it is somewhat ironic for my liberal colleagues to express concern that judges might start striking down economic regulations the way the 174 liberal judges in some ways have invented criminal rights, struck down pornography restrictions, have run local high schools, and imposed taxes on cities and local governments. And you could go on and on with some of these things that activist courts have been doing up to today. And I too think that it would be wrong for judges to strike down economic regulation, just like you do. But what the liberals really ought to understand is that no one is safe when judges depart from the text of the written Constitution, and that is what has been happening from time to time. What we need are judges that won't make up the law in order to institutionalize their own social policy ideas or to impose their own values, liberal or conservative, on the American people. I think the people can choose between liberal and conservative policies, but they should choose between them where they ought to choose between them, and that is in the elective process. That is what we are here for. They can choose by voting for whoever they want to in the elective process to make these laws, not judges on the bench. And that is what really is at stake in this. I could go on and on. I notice that everybody is probably pretty tired by now, but let me just say this: In fulfillment of your duties as a Justice on the Supreme Court, are you going to be guided by Stephen Macedo and his ideas?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Absolutely not.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I didn't think so. And I don't think anybody else thought so. Do you intend to elevate property rights over individual rights and liberties, as was done in the early part of this century under the Lochner case its whole progeny of cases?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I certainly have no intention of doing that, Senator. The Court has attempted to approach rights such as on the economic decisions of the legislature, the classifications according to race, et cetera, in a way that I think is appropriate. It attempts to accord a value to these. The point that I was making is that the notion of property is in the Constitution. That in no way says how those cases should be adjudicated.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, you know, in those days they elevated the so-called right of contract above the individual rights of individual human beings. And the right of contract took precedence over individual rights and freedoms where the right of government to ease the burdens and the pains and the difficulties of the working-class and the poor through health and welfare programs, wage and hour legislation, and other matters that they chose to do. The Court at that time said that that was all outweighed by the right of contract. Well, I don't know of anybody that wants to go back to those days. Now, some can misconstrue Professor Epstein to believe that that is what he wants to do. I don't believe he wants to do that. But to make a long story short, Judge Thomas, I personally am very proud of your nomination, and I believe that you will bring a dimension to this Court that really hasn't been there before, because I don't think you are going to be characterized in any particular pocket of anybody. And I know you well enough to know that you are fiercely independent and that you will do what you 175 believe is right within the Constitution. And I believe we have covered this principle of natural law, at least as much as we could here today. I want to commend you for this opportunity. A lot of us intend to see that you have this opportunity, and I sure wish you the best in being able to serve on that Court and to do it in the best interest of all Americans and in the right way, and within the confines of the Constitution, and in the way that I think you have been chatting with us today. So I commend you for what you have said, and I hope we can enjoy the rest of your testimony tomorrow. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Let me conclude today by pointing out one thing. No one, notwithstanding my distinguished friend, thus far has criticized your view on natural law or whether or not natural law is beneficial. We are just trying to find out if you have a view on natural law and what it is. For the record, no one is criticizing your view. Professor Bork criticizes natural law. I do not. No one has criticized your view. We are just going to try to find out what it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am sure glad to have that on the record, I will tell you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. With that, the hearing is adjourned until tomorrow at 10 o'clock. [Whereupon, at 5:30 p.m., the committee recessed, to reconvene at 10 a.m., Wednesday, September 11, 1991.] The CHAIRMAN. The hearing will come to order. Welcome back, Judge. It is a pleasure to have you back. Let me very, very briefly explain to you, your family, and everyone else the process this morning. I expect that we will have four Senators question before we break for lunch. If I were you, I would probably want to break after 2, but it is up to you. I will go through four Senators until lunchtime unless there is some indication from you or anyone else that you would like to stop and take a break. I will be glad to give you a break to get a cup of coffee or anything else you want. Now, we need to get started. Do you have a preference, Judge, as to how you would like to proceed? Really, I am not kidding. Any way you want to do it.
Clarence Thomas
Nominee
(R)
Judge THOMAS. We will play it by ear.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Play it by ear. I agree with you. All right. Now, we will start this morning's questioning in the same format as before; each Senator will have Vz hour for his questions and your response. We will start this morning with Senator Metzenbaum. I might add that we do not plan on going beyond 5 o'clock today unless we are very close to finshing. We are going to try to end the hearing today at 5 and we will pick up tomorrow at 10 o'clock no matter what. I expect we will still have questions for the judge if people haven't had their second round. With that, let me yield the floor to Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Good morning, Judge Thomas. Nice to see you again. You have an extensive record of speeches and published articles. Judge, I have made no secret of the fact that I have serious concerns with many of the things in your record. -177 178 Yesterday I thought we would finally get some answers about your views. Instead of explaining your views, though, you actually ran from them and disavowed them. Now, in a 1989 article in the Harvard Journal of Law and Public Policy, you wrote, "The higher law background of the American Constitution, whether explicitly appealed to or not, provides the only firm basis for just, wise, and constitutional decisions." Judge you emphasized the word "constitutional" by placing it in italics. By that emphasis, you made it very clear you were talking about the use of higher law in constitutional decisions. But yesterday you said, "I don't see a role for the use of natural law in constitutional adjudication. My interest was purely in the context of political theory." Then in 1987, in a speech to the ABA, you said, "Economic rights are as protected as any other rights in the Constitution." But yesterday you said, "The Supreme Court cases that decided that economic rights have lesser protection were correctly decided." In 1987, in a speech at the Heritage Foundation, you said, "Lewis Lehrman's diatribe against the right to choose was a splendid example of applying natural law." But yesterday you said, "I disagree with the article, and I did not endorse it before." In 1987, you signed on to a White House working group report that criticized as "fatally flawed," a whole line of cases concerned with the right to privacy. But yesterday you said you never read the controversial and highly publicized report, and that you believe the Constitution protects the very right the report criticizes. In all of your 150-plus speeches and dozens of articles, your only reference to a right to privacy was to criticize a constitutional argument in support of that right. Yesterday you said there is a right to privacy. Now, Judge Thomas, I am frank to say to you, I want to be fair in arriving at a conclusion, and I feel that I speak for every member of this committee who wants to be fair. Our only way to judge you is by looking at your past statements and your record. And I will be frank; your complete repudiation of your past record makes our job very difficult. We don't know if the Judge Thomas who has been speaking and writing throughout his adult life is the same man up for confirmation before us today. And I must tell you it gives me a great deal of concern. For example, yesterday, in response to a question from Senator Biden, you said that you support a right to privacy. Frankly, I was surprised to hear you say that. I have not been able to find anything in your many speeches or articles to suggest that you support a right to privacy. Unfortunately, the committee has learned the hard way that a Supreme Court nominee's support for the right to privacy doesn't automatically mean that he or she supports that fundamental right when it involves a woman's right to abortion. At his confirmation hearing, Judge Kennedy told us he supported the right to privacy. Since he joined the Court, Justice Kennedy has twice voted with Chief Justice Rehnquist in cases that have restricted the right to abortion. 179 Likewise, Justice Souter told us that he supported the right to privacy, and then when he joined the Court, Justice Souter voted with the majority in Rust v. Sullivan. My concern is this—and I know I have been rather lengthy in this first question. Your statement yesterday in support of the right to privacy does not tell us anything about whether you believe that the Constitution protects a woman's right to choose to terminate her pregnancy. I fear that you, like other nominees before the committee, could assure us that you support a fundamental right to privacy, but could also decline to find that a woman's right to choose is protected by the Constitution. If that happens soon, there could be nowhere for many women to go for a safe and legal abortion. I must ask you to tell us here and now whether you believe that the Constitution protects a woman's right to choose to terminate her pregnancy, and I am not asking you as to how you would vote in connection with any case before the Court.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I would like to respond to your opening question first and, if you think it appropriate, to consider each of your questions seriatim. Yesterday as I spoke about the Framers and our Constitution and the higher law background—and it is background—is that our Framers had a view of the world. They subscribed to the notion of natural law, certainly the Framers of the 13th and 14th amendments. My point has been that the Framers then reduced to positive law in the Constitution aspects of life principles that they believed in; for example, liberty. But when it is in the Constitution, it is not a natural right; it is a constitutional right. And that is the important point. But to understand what the Framers meant and what they were trying to do, it is important to go back and attempt to understand what they believed, just as we do when we attempt to interpret a statute that is drafted by this body, to get your understanding. But in constitutional analysis and methodology, as I indicated in my confirmation to the court of appeals, there isn't any direct reference to natural law. The reference is to the Constitution and to using the methods of constitutional adjudication that have been traditionally used. You don't refer to natural law or any other law beyond that document. What I have attempted to do with respect to my answers yesterday is to be as fair and as open and as candid as I possibly can. I have not spoken on issues such as natural law since my tenure as Chairman of EEOC. At that time it was important to me—it was very important—to find some way to have a common ground underlying our regime and our country on the issue of civil rights. I thought it was a legitimate ground. I wondered. I looked back at Lincoln, saw him here in Washington, DC, surrounded by a proslave State yet pro-Union, and a Confederate State. And I asked myself what was it that sustained him in his view that slavery was wrong. And it was through that progress that I came upon the central notion of our regime, All men are created equal, as a basis or as one aspect of trying to fight a battle to bring something positive 180 and aggressive to civil rights enforcement. And I thought it was a legitimate endeavor. At no time did I feel nor do I feel now that natural law is anything more than the background to our Constitution. It is not a method of interpreting or a method of adjudicating in the constitutional law area. With respect to your last question—and I assume for the moment that perhaps you don't want me to address each of the underlying questions or specific questions seriatim. I would say this about them, though: I have written and I have been interviewed quite a bit. I have been candid over my career. My wife said to me that to the extent that Justice Souter was a "stealth nominee," I am "Bigfoot." And I have tried to think through difficult issues without dodging them. As a judge, though, on the issue of natural law, I have not spoken nor applied that. What I have tried to do is to look at cases, to understand the argument, and to apply the traditional methods of constitutional adjudication as well as statutory construction. I am afraid, though, on your final question, Senator, that it is important for any of us who are judges, in areas that are very deeply contested, in areas where I think we all understand and are sensitive to both sides of a very difficult debate, that for a judge—and as I said yesterday, for us who are judges, we have to look ourselves in the mirror and say: Are we impartial or will we be perceived to be impartial? I think that to take a position would undermine my ability to be impartial, and I have attempted to avoid that in all areas of my life after I became a judge. And I think it is important. I can assure you—and I know, I understand your concern that people come here and they might tell you A and then do B. But I have no agenda. I have tried to wrestle with every difficult case that has come before me. I don't have an ideology to take to the Court to do all sorts of things. I am there to take the cases that come before me and to do the fairest, most openminded, decent job that I can as a judge. And I am afraid that to begin to answer questions about what my specific position is in these contested areas would greatly—or leave the impression that I prejudged this issue.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Having said that, Judge, I will just repeat the question. Do you believe—I am not asking you to prejudge the case. I am just asking you whether you believe that the Constitution protects a woman's right to choose to terminate her pregnancy.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I noted yesterday, and I think we all feel strongly in this country about our privacy—I do—I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not asking you to prejudge it. Just as you can respond—and I will get into some of the questions to which you responded yesterday, both from Senators Thurmond, Hatch, and Biden about matters that might come before the Court. You certainly can express an opinion as to whether or not you believe that a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case. And I am asking you to do that. 181
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let us proceed. Judge Thomas, in 1990, I chaired a committee hearing on the Freedom of Choice Act, where we heard from women who were maimed by back-alley abortionists. Prior to the Roe decision, only wealthy women could be sure of having access to safe abortions. Poor, middle-class women were forced to unsafe back alleys, if they needed an abortion. It was a very heart-rending hearing. Frankly, I am terrified that if we turn the clock back on legal abortion services, women will once again be forced to resort to brutal and illegal abortions, the kinds of abortions where coathangers are substitutes for surgical instruments. The consequence of Roe's demise are so horrifying to me and to millions of American women and men, that I want to ask you once again, of appealing to your sense of compassion, whether or not you believe the Constitution protects a woman's right to an abortion.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the prospect—and I guess as a kid we heard the hushed whispers about illegal abortions and individuals performing them in less than safe environments, but they were whispers. It would, of course, if a woman is subjected to the agony of an environment like that, on a personal level, certainly, I am very, very pained by that. I think any of us would be. I would not want to see people subjected to torture of that nature. I think it is important to me, though, on the issue, the question that you asked me, as difficult as it is for me to anticipate or to want to see that kind of illegal activity, I think it would undermine my ability to sit in an impartial way on an important case like that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have some difficulty with that, Judge Thomas, and I am frank to tell you, because yesterday you responded, when Senator Biden asked you if you supported the right to privacy, validated in Moore v. City of East Cleveland, by agreeing that the Court's rulings supported the notion of family as one of the most private relationships we have in our country. That was one matter that might come before the Court. You also responded, when Senator Thurmond asked you whether, following the Court's ruling in Payne v. Tennessee, families victimized by violence should be allowed to participate in criminal cases. You went on to respond by indicating that the Court had recently considered that matter, and you expressed concern that such participation could undermine the validity of the process. You also responded to Senator Thurmond's questions about the validity of placing limits on appeals in death penalty cases, the fairness of the sentencing guidelines, which was another one of his questions, and the good-faith exception to the exclusionary rule, which was another one of his questions. Finally, you responded, when Senator Hatch asked you whether you might rely on substantive due process arguments to strike down social programs such as OSHA, food safety laws, child care legislation, and the like, by telling him that "the Court determined 182 correctly that it was the role of the Congress to make complex decisions about health and safety and work standards." Now, all of those issues could come before the Court again, just as the Roe v. Wade matter might come before the Court again. So, my question about whether the Constitution protects the woman's right to choose is, frankly, not one bit different from the types of questions that you willingly answered yesterday from other members of this committee. So, I have to ask you, how do you distinguish your refusal to answer about a woman's right to choose to terminate her pregnancy with the various other matters that may come before the Supreme Court, to which you have already responded to this committee?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, since my distinguished colleague has mentioned my name several times, I would like to make a brief comment here and take it out of my time when I am called on again. I think it is pertinent to just take a little time, if you have no objection.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I did not see fit to interrupt my colleague during his line of questioning. After the Judge
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. It is right on this point, you have just mentioned my name
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But after the Judge responds, then I would
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND [continuing]. And if I can take it out of my time, I would like to do that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I would be delighted to let the Chair do that, but the witness is about to answer the question. Immediately after Judge Thomas has answered the question, then I will yield to the Senator from South Carolina to make his point, whatever the point is.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I responded to and discussed, I believe, with Senator Thurmond, questions and concerns that he raised about these particular cases that you mentioned. I do not believe— and I have not had an opportunity to review the transcript—I do not believe that I either indicated that I agreed with the outcome in those cases that I raised with him or not. I simply raised the concerns, the discussions, and the Court holdings, and I believe some of the problems that might occur in some considerations in the future. I tried to discuss it openly with him, without reaching a judgment with respect to the outcome. With respect to the Lochner era cases, I thought that my view was that these are cases that were decided in the 1930's or the post-Lochner era cases, and that I do not think the Court is going to revisit that area in the very near future. It is certainly not one that, to my knowledge, is
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am sure you are not suggesting that all of those matters about which Senator Thurmond inquired of you were all decided in the 1930's. Many of them are very pertinent and very much within the last few years.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I may not have made myself very clear, Senator. The questions that Senator Thurmond and concerns that he raised about cases, those were recent cases. I do not believe—again, I have not had an opportunity to review the transcript—that I commented 183 on or that I agreed with or supported or sustained the judgment or the outcome in those cases.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That is all I am asking you on this, to do the same kind of response that you gave Senator Thurmond. I am not asking you to speak about how you would vote on the Court. And just as you commented on those cases, what you thought about presentencing guidelines, habeas corpus matters, and various other questions that the Senator asked you, all I am asking you to do is give me the same kind of response with respect to the woman's constitutional right to choose in the same area.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator Thurmond, I do not believe asked me whether I agreed or disagreed with the particular outcome. Again, I have not reviewed the transcript. The point that I am making with respect to the Lochner cases, the post-Lochner era cases, is that they were decided in the 1930's and that I do not think that they will be revisited. I am not, nor would I have it suggested—and I think this is an important point, Senator—I think that if there were, if I could retain my impartiality and study those cases and think about them, I think that there would be room for comment. I do not believe that a sitting judge, on very difficult and very important issues that could be coming before the Court, can comment on the outcomes, whether he or she agrees with those outcomes as a sitting judge. I think those of us who have become judges understand that we have to begin to shed the personal opinions that we have. We tend not to express strong opinions, so that we are able to, without the burden or without being burdened by those opinions, rule impartially on cases.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I understand that, Judge, but I want to point out the similarity of this matter as compared to the question I am asking you about a woman's right to choose. Senator Thurmond said to you, "In fact, the Court recently used in the case of Payne v. Tennessee that the use of victim impact statements in death penalty cases does not violate the Constitution." He goes on to say, "In your opinion, should victims play a greater role in the criminal justice system, and, if so, to what extent should a victim be allowed to participate, especially after a finding of guilt against the accused?" You responded, "Of course, Senator, that is a matter the Court, as you have noted, recently considered." You go on to say, "My concern would be, in a case like that, we don't in a way jeopardize the rights of the victim. Of course, we would like to make sure that the victim is involved in the process, but we should be very careful, in my view, that we don't somehow undermine the validity of the process." Now, I am not questioning your position. Whatever your position is, that is perfectly fine. What I am saying is that if you were able to respond as you did yesterday to questions from Senators Thurmond, Hatch, and Biden with reference to matters in the Supreme Court or may return to the Supreme Court, and why, Judge Thomas, can't you tell us about a woman's right to choose, which is understandably one of the most controversial issues in the country? 184 I am not asking you as to how you will vote in connection with that issue.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, it is on that very point that I would like to make a statement.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Senator is recognized, and the time will not come out of the Senator from Ohio's half hour.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I want to say that no question I asked Judge Thomas to answer in any way required him to comment about how he would rule on a case that could come before the Supreme Court. My distinguished colleague, Senator Metzenbaum, as a lawyer, must know that the questions I asked the nominee were areas where the law is well settled. I strongly believe it is inappropriate to ask the nominee how he would rule in a particular case. Judges must be impartial. For a judge to have preconceived notions about how he would rule in a case would clearly undermine the independence of the judiciary. Additionally, I specifically told Judge Thomas, and these are words that you can quote, "If I propound any question you consider inappropriate, just speak out, because I strongly believe a nominee should not be compelled to answer how he would rule on any specific case that may come before the Court."
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. I point out that the ruling on victim impact statements was, I think, a 6-to-3 decision, and it is far from well-settled. It is still in controversy, both here and in the Court. Now, I will yield back to the Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And it overruled previous Court decisions, so it still is in controversy. Let me go on. Yesterday, you were asked about a 1986 report produced by the White House Working Group on the Family. You testified you had not read a section of the report which criticized as fatally flawed a lien of cases upholding the right to privacy in a woman's right to abortion. Two of the cases criticized by the report were Roe v. Wade and Planned Parenthood v. Danforth, both of which protect a woman's right to an abortion. The report also declared that State-imposed restrictions on a woman's right to an abortion should not be challenged by the Supreme Court. Judge Thomas, it appears to me that you were the highest ranking administration official on the White House Task Force, and this report was recommending policy changes that would have a profound and sweeping impact on the lives of millions of American women. In the months leading up to your confirmation, this report has been the subject of considerable discussion. As a matter of fact, the Chairman of the Commission is also, as I understand it, chairman of the committee to help promote your candidacy. How is it possible that; until yesterday, you had never read this section of the report and—well, not guess that I would ask that question.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important to understand how the domestic policy shop in the White House worked. What it would do is that it would assemble a group of people who had expressed an interest in an area across the administration, and it would, in essence, use that group as a resource. 185 My interest during the meetings—and I believe there were three, perhaps four meetings, I cannot remember—was in low-income families, families that I believed were at risk in our society. I submitted to that working group, I believe to the head of the working group, who was not myself, a document, a memorandum on lowincome families. The group itself did not meet, nor were we called upon to draft the document. The document itself was, I believe, circulated and final, although I cannot remember exactly the procedure, but it is not uncharacteristic that, after you have participated in a working group or after one participated in a working group with the White House or with the domestic policy branch, that the report itself would not be made available for comment, and that others would simply finalize the report. Again, I cannot remember how that precisely worked. My interest was limited to low-income families and I was thankful that certain portions of that was included. I did not have an interest in, nor expressed comment on the other portions of the report.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yesterday, the chairman stated that one of the privacy decisions criticized as fatally flawed in the report was Moore v. City of Blast Cleveland. The chairman also noted that the report calls for the appointment of new Justices on the Court, to change the result in the Moore case in another decision. In response to the chairman, you stated that, "If I had known that section was in the report before it became final, of course, I would have expressed my concerns." Judge Thomas, if you had known that the report characterizes two abortion cases as fatally flawed and suggests that these decisions can be corrected, directly or indirectly, through the appointment of new judges, would you have objected to that, as well?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, let me respond to that in this way: I thought that the report—and, based on the submissions, I think this underlines that—that the report should have been focused on how do we help existing families, not debating some of the more controversial and difficult issues in our society. I thought that it would be an opportunity and would be an occasion to find ways to take families that are at risk and families that are having difficulties and to help those families in whatever form we find them.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I guess my question is—I will repeat the question: Would you have objected, if you had known that language was within the report, as you indicated you would have objected with respect to the langauge in connection with the East Cleveland case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think I would have, Senator, raised concerns of the nature and with the underpinning that I just gave you, and that is that I thought it would have been appropriate for the report to have focused expressly on families that were at risk and how we could help families in their current conditions nor out of their current conditions.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, you told Senator Biden you would have objected to the language with reference to the East Cleveland case, and so I am only asking you whether you would have objected to the langauge with respect to the abortion cases. 186
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I believe—again, I have not reviewed the transcript—I believe I indicated that I would have raised concerns, and I believe that those concerns would have been of the same character and the same nature as the concerns that I would raise in this case. I thought that we had a grand opportunity there to focus governmental policy on existing low-income and at-risk families. I felt that was very important, and it was very important in this context, it was important to me: It was important, because you had I think about one-third or more of the minority kids in our society being under the poverty limit, and I felt that the administration could have addressed that in a policy that was important to the entire administration.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. My time is up, but, Judge Thomas, I am really asking you specifically yes or no. You indicated you would have objected to the East Cleveland decision, had you known that language with reference to the East Cleveland decision, had you known it was in there. So, I am asking you if you had known about the abortion case references, would you have objected, and the answer is just yes or no.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I would have raised concerns for the reasons I have expressed to you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Metzenbaum. Dr. Hatch
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Dr. Hatch?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me. I am so accustomed to attempting to avoid the Simpson-Metzenbaum skirmish that I guess it was a reflex action. I do apologize. I was so impressed with Senator Hatch's rehabilitation yesterday that I just wanted to hear more. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. With Senator Simpson's permission, I would be really happy to pick up with this.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I apologize, Senator Simpson. I am sorry. Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, you have often left the Senator from Ohio and I to our own skirmishes, which we certainly enjoy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU will understand if both Senator Thurmond and I just reflexively push our chairs back. If you will notice Senator Thurmond has already started back. I am heading back, too, so you can see one another. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I want to get a little eye contact with Howard. Get out of the way, Ted. Well, let me say that you see one of the great pleasures of being on this committee. It is a splendid committee, and we have a splendid chairman. And the members I think have a comity and a nature of dealing with each other which is something I think that no nonlawyer could understand. It is a little tough for my friend from Iowa; sometimes he will say, "What are you guys up to?" But it is part of the practice of law. You whack around on somebody all day long, and then you go off and have dinner together or visit with each other, and that is the best way to legislate. I have the highest regard for every single member of this committee, and my spirited friend from Ohio and I had one one time where we were both just standing going toe to toe. I think it was 187 during the Rehnquist hearings. And let me tell you, our neck muscles were bulging in the hall. And Howard said, "Well, smart alec, here they come, here come the media. They have seen what we are up to." And we both said, "Yes, but by the time they get here, we will be smiling and clapping each other on the back." And by the time they made it there, we were chuckling and doing our chicken dance, whatever it is we do. Anyway, it is interesting work. I want to welcome the family here: The son and the mother and the daughter, Jamal and Ginnie, who I think I knew before she knew you, with the Department of Labor when I was working on immigration issues. Very splendid lady. I go back to the words of probably our most respected colleague, Jack Danforth. He mentioned that you had a great propensity for laughter and good humor. You display that. I have a propensity to sometimes cross the line between good humor and smart alec. And when I do, I certainly pay for it dearly, and should. My dear mother taught me that humor was the irreplaceable solvent against the abrasive elements of life, and that remarkable lady, in her ninth decade, will be critiquing whatever I say. And I must be very diligent and clear in saying it. I think you can already see the hazards of speaking out. Your collected speeches—I heard Dr. Hatch yesterday. The reason the chairman refers to him as "Dr. Hatch," he is the great rehabilitator. He can take broken bodies and stretch them back into proper shape after Kennedy or Howard or whoever have raveled them unyielding. And so that was just a slip there. But what has happened is you took the collected ramblings of all of us, and we were sitting there, and they said Senator Biden or Senator Metzenbaum or Senator Kennedy or Senator Simpson, do you remember a speech you gave to some institute in Detroit on the night of October 1, 1981? You probably scribbled it on the back of a matchbook. Then you did it, and you either got carried away with the crowd or you didn't, or you took them or you didn't. And to think that you can go back in life and try to put those things together as something that has to do with now is a very difficult thing for me to believe in life. But I am one who believes that if they were putting together the life of Al Simpson at the age of 60, at which I arrived September 2, and the Al Simpson of 17 or 35 or 40 or 45, no one can pass that test. There may be a lot of people here that say they can pass that test, but nobody—nobody—can pass that test. So you see the hazards of this, and I think it is very important that we heed the warning—I read it as a warning—of Jack Danforth not to pay one bit of attention to snippets and pieces and bits and shards and jagged edges, or whatever you have said in the past, unless you have a little stack of it right there. And every time somebody pulls one out, you just say, "I ask that the entirety of that speech go into the record." We will make that an automatic. I think that is a very important thing because there isn't anything that I have read—and I have read a great deal—and knowing others on this panel, Senator Leahy or Senator Specter, and I know how they burrow in stuff and read extensively everything you probably have done. I think it is critically important that it all be presented. Because, indeed, in looking at the questions that have been 56-270 O—93 7 188 presented and then looking at the speeches, it just doesn't fit, unless, of course, you are just taking the one phrase. Well, I must comment on the so-called confirmation conversion. That seems to be a bit of a topic of the day. I mentioned in my opening statement that certain special interest groups would go after you in a rich and vigorous way. That is not exactly what I said, but it could be rancorous and it could be contentious. And I said that, and that now is, you know, coming to pass. And after you explained to us yesterday, I thought rather clearly, on this issue of natural law that you had used it as a basis for political theory but not as a basis for constitutional adjudication. That was your statement. And this issue of natural law, it would be really interesting to know what that is. But since you don't know what it is, it is kind of tough to talk about it I would think. These are the reasons why I struggled in law school. Little sessions like that used to just leave me huddled in the corner as to what it was that was trying to be developed, losing track of how do you assist a person in extremity, what is a lawyer supposed to do, what is your duty to society, and real life things that have to do with a lawyer-client relationship. But, anyway, one of the leading spokesmen, or at least one of the continually most vocal spokesmen for some civil rights groups have accused you of a confirmation conversion. Let me read the quotation in one of today's journals. It says, "The Executive Director of the Leadership Conference on Civil Rights said that Judge Thomas was running from his record"—"He seemed to be sprinting from his record," not running from his record. "He seemed to be sprinting from his record." That was the earlier confirmation conversion we have witnessed. I think that is a bit of an overreaction, but I think that is but a portrayal of a sound bite syndrome that suddenly overcomes some people in that line of work. And I think it is an inaccurate accusation, and I think it is untrue. And I use that word without being light about it. Untrue. An act of desperation, if you will, and that is used often by that group. Here is their publication of July 17, 1991, of this Leadership Conference on Civil Rights. By the way, the record should disclose that more than several of their membership organizations dropped out of the fight here with you and decided not to join them in denouncing you. That is clearly of record. Then in July, they didn't know what to do with you. You got them. They are very frustrated about you. And they said that if they decided to oppose you—and, believe me, from my experience with them, I know that they were ready to oppose you on July 17, 1991—but if they decide to oppose you, it will come only after the most serious consideration. In that same document, they go on to say about what is at stake for them. So far they say, "The right wing of the Court, led by Chief Justice William Rehnquist and Justice Antonin Scalia, have had to compromise on many occasions in order to get their 5-4 and 6-3 majorities. If Justices Rehnquist"—and I emphasize this—"and Scalia get one more like-minded Justice, they will have without question the votes to overturn directly Supreme Court decisions. 189 Overnight, constitutional and statutory rights Americans have had for decades could vanish." Now, that is half hysterical stuff there. You only get one vote, as far as I am aware. But here is the part that deserves, I think, the attention of fair-thinking people. Here is what you said to this chairman on February 6, 1990. Everybody had a good look at this. They scoured your record with a brush, a wire brush. So you said to this chairman and this committee on February 6, when you were nominated to the circuit court, with regard to the issue of natural law—and everybody knows this. Let us try to stay at least basic, in fairness. You said: But recognizing that natural rights is a philosophical, historical context of the Constitution is not to say that I have abandoned the methodology of constitutional interpretation used by the Supreme Court. In applying the Constitution, I think I would have to resort to the approaches that the Supreme Court has used. I would have to look at the texture of the Constitution, the structure. I would have to look at the prior Supreme Court precedents. Now, that is what you said. You made that quite plain 17 months ago, the exact distinction that you were making yesterday. I might ask you, then, to set the record straight: Is it accurate to say that on the day of September 10, 1991, was that the day on which Clarence Thomas changed his views or had a conversion or sprinted from his previous record on natural law? Or were those the views you explained so well and ones that you have held for some period of time?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have been consistent on this issue of natural law. As I indicated, my interest in the area resulted from an interest in finding a common theme and finding a theme that could rekindle and strengthen enforcement of civil rights, and ask the basic or answer a basic question of how do you get rid of slavery, how do you end it. Our Founders, the drafters of the 13th, 14th amendments, abolitionists, believed in natural law, but they reduced it to positive law. The positive law is our Constitution. And when we look at constitutional adjudication, we look to that document. We may want to know, and I think it is important at times to understand what the drafters believed they were doing as a part of our history and tradition in some of the provisions such as the liberty component of the due process clause of the 14th amendment. But we don't make an independent search or an independent reference to some notion or a notion of natural law. That is the point that I tried to make, and there was no followup question, as I remember it, at my confirmation to the court of appeals. But that has been a consistent point. We look at natural law beliefs of the Founders as a background to our Constitution.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Have you seen anything come up at this hearing thus far that is really anything different, much different than what happened when we confirmed you for the circuit court, other than the fact that you have remained absolutely silent as those out there decided to distort these issues?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I think the one difference, Senator, of course is that I am a sitting Federal judge now. When I came before this committee the last time, I was a policymaker. I was 190 someone who had taken policy positions, and those questions and concerns were raised of me as Chairman of EEOC. Today I am a sitting Federal judge, and I find myself in a much different posture. It is a different role. Ihave no occasion to make policy speeches, have no occasion to speculate about policy in our Government, or to be a part of that policy debate. And I believe at my last confirmation, much of that debate or those debates were explored in the hearings. Today I have refrained from it, from those debates, primarily because, as I have said before, engaging in such policy debate, particularly in public, I think undermines the impartiality of a Federal judge. Taking strong positions on issues that are of some controversy in our society when there are viewpoints on both sides undermines your ability. My Dallas Cowboys, for example, played the Redskins on Monday night, and I am totally convinced that every referee in those games is a Redskins fan. But none would admit to it. I think that in something as simple as that, even though we have strong views about who should win, something as simple as that, we would want to feel that the referees—and judges are, to a large extent, referees—are fair and impartial, even when we don't agree with the calls.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, are you for the Dallas Cowboys or the Redskins?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am a lifetime—I have been a Dallas Cowboys fan for 25 years.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. [Laughter.]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. That didn't come off of my time, did it?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO. It doesn't come off your time. I am just curious.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am certain that that will probably have someone else express his concern about me.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think that will create more concern than anything thus far. To have you in this nest of Redskin fans, to be a Dallas Cowboy fan certainly discloses a degree of independence which will serve you very well on the Court. [Laughter.] Let me ask a couple more. My time is running down. Some have raised a litany of questions about this issue of natural law. I think some of your critics—and I do not say this about the chairman because I know the way he does his research, in a powerful, skilled way, using resources that are available to him. But it seems to me that as I read stuff about, it has been selected as an issue to try to confound people because natural law is an inherently vague concept. And then your detractors can conjecture all kinds of things about you and your philosophies without being taken to task for the obvious inaccuracies and vagueness. Now, for example—and I love this definition—the commentator in the Legal Times—I didn't get the name, but I love the quote. He recently wrote, he or she— Of all the perplexing questions surrounding the Supreme Court nominee, few are more nettlesome than natural law. It is sure to come up at confirmation hearings, but don't expect any clear answers, and don't blame Thomas for being unclear. Natural law philosophy and its adherents live in a world apart, a world that is dense 191 and combative and, above all, unclear. A journey to the world of natural law is not for the faint of heart. That is a quote from the Legal Times. In the article, it says: Tap into the natural law crowd, and you quickly learn that there are factions of adherents who hate each other. There are the East Coast Straussians and the West Coast Straussians, both followers of philosopher Leo Strauss but sharply in disagreement with each other. You are instructed if you talk to Walter Byrnes, a leader of the East Coast faction, you don't mention the name of Harry Jaffa, the West Coast leader, until your conversation is nearly over. And it is true. When asked about Jaffa, Byrnes said, "At one time we were close friends, but ten years ago we parted company." Yesterday I saw a report in a national publication that had four paragraphs of Jaffa. I don't even know what he has to do with this. As far as I know, he is not going to testify. But if he does, I certainly want to be here. He has got some unique ideas and concepts I would like to ask about. So it goes on to say, "It goes on like that"—I am quoting from the article—"propelling one on a fairly fruitless search through writings by the likes of St. Thomas Aquinas and Abraham Lincoln in hopes of discovering how Clarence Thomas would carry out natural law precepts. The simple answer, the one that frightens liberals, is that nobody knows." And then, of course, it was interesting to me—and it was mentioned yesterday—that Laurence Tribe, who I greatly respect and who I know and feel quite certain that when the Democrats wrench the Presidency back to their bosom, he will be exhibit A right here. And I want to talk with him and visit with him and hear his views, but we won't have to look far because he has a ton of opinions that he has written. And I admire his guts. Because there aren't going to be people who are bright and energetic who are ever going to write much more again as long as this committee continues to do what we do. And there is a purpose for what we do, and I am not challenging that. And it is done with fairness. But, in any event, you were asking about natural law solely on the basis of something that was deep in your craw, and that was slavery. Isn't that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, that is correct. The issue of civil rights has been something that, of course, has affected my entire life, and which I indicated in my opening statement, but for those changes I would not be here. My concern was how do you, from a standpoint of our political philosophy, how do you end slavery and how do you reinvigorate civil rights enforcement. How do you convince people who may be skeptical of aggressive enforcement that it is actually central to our country? I think that those who heard me during that time understood how deeply I felt about that and continue to feel about that. And I think that anyone who grew up where I grew up, in the world that I grew up in, would be deeply impassioned about civil rights enforcement. But I was trying to engage not only the passion but the intellect, and it was an effort to help and to add to and to support and sustain that I was looking at the whole area of natural law; not as an effort to undermine or destroy individual freedoms in our society, but to actually support it and to defend it and enhance it. 192
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I think that that is a very good answer. Obviously I concur with it. But it seems to me that this natural law business, if I can understand it, does have a very clear foundation. And it has been used by anyone of both parties, and I have quotes of members of this committee who have used it to talk about racism in South Africa or what we have done with the disadvantaged in society. Professor Tribe has used it, the other side of it with Judge Bork. Good heavens. But I think if you asked us what is a natural law, it has to do with things like the right of privacy—and that is a critical right, in my mind, in life, a principle shared by all of us about inalienable rights, the Declaration of Independence itself. That, I gather, is what you were referring to, that we hold these truths to be selfevident, or, rather, natural—if I may interpret it—that all men are created equal, which must have puzzled you greatly from your resume of life that you have presented to us; that all men are endowed by the Creator with certain inalienable rights, which must have stunned you, too. So I can hear it from that standpoint, and although I hesitate to use today's trendy jargon, I believe one would have to be terribly insensitive not to hear what you are saying and the way you are saying it and understand your explanation of your exploration of this thing called natural law in an effort to find meaning in a Constitution that apparently permitted slavery in the United States. That must have been a most torturous path to travel, one that I nor any one of us could even conjecture. So I fear that we lawyers have become fascinated with this new vague theory of law which most of us never heard one whit about in law school. This is like the doctrine of Renvoi. I never tried a case with the doctrine of Renvoi, but it sounded good, and one guy talked about it all day. And he got an A, and I got a D. So I knew he was on the right track. So I believe this fascination has caused us to elevate this rather peripheral matter to a central issue in the confirmation, kind of a penumbra of stuff floating around, to quote another Justice. You have told us so clearly that you feel that natural law is not applicable to constitutional adjudication, is the word you used, or interpretation. You testified that you had not considered it in your adjudications on the circuit court and that you hadn't spoken publicly or written on it since you left the EEOC. Now, that seems to me pretty well to cover it, but I don't think it will. So my final question for you, do you believe that that passage that I just moments ago quoted from the Declaration of Independence has meaning, perhaps the meaning I attached to it? Is the belief that all men are endowed with certain inalienable rights one that you would consider well accepted within the judicial mainstream and consistent with most Americans' values and principles?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that most Americans, when they refer to the Declaration of Independence and its restatement of our inherent equality, believe that. And I believe that our revulsion when we think of policies such as apartheid flow from the acceptance of our inherent equality. Now, we haven't always lived up to that. And, indeed, principles or concepts such as liberty were added by individuals who believed 193 that we were all created equal, abolitionists some of them, to the Constitution itself. But once it is in the Constitution, then our rights are set out. It is no longer an ideal. It is a constitutional right—liberty. And once it is in the Constitution, we adjudicate it, we interpret it, understanding what our Founders believed. But adjudicate it, looking at our history and our tradition, not just what their beliefs were when they drafted the document.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, I am going to conclude. I know I have a couple of minutes left, but I would be starting on another approach on issues that I think I would not be able to properly address. I thank you for your courtesy.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. I am going to suggest that we take a 5-minute break, to accommodate the Judge. If I may, Judge, I want to put one notion to rest here. Number 1, do not count me as one of your detractors, because I ask you tough questions. No. 2, the issue of natural law may confound the people, to use Senator Simpson's phrase, but not a single legal scholar in America. I hope you meet that criteria, or you should not be on the Supreme Court. You must have a knowledge and insight to the Constitution that is better than the average lawyer, and I am sure you do. That is why I am sure you understand what I am about to say. Not a single legal scholar in America fails to understand the significance of whether or how one applies natural law. Judge Bork devoted a chapter in his book about how those people who want to apply natural law are bad, not bad in a moral sense, but wrong. There is an entire school of thought with which you are fully familiar. I did not fail to accept your answers yesterday. I just want to make sure we all know what we are talking about here. You and I know, at least, what we are talking about. There is not a single legal scholar who does not understand that there is a fervent, bright, and aggressive school of thought that wishes to see natural law further inform the Constitution than it does now. The positivists, led by Judge Bork, argue against this school. Again, that may be lost on all the people, but you know and I know what we are talking about. Now, all I am out to do in my second round is to find out whether you, in fact, do apply natural law, and, if you do, how. You answered that partially yesterday, and yet I am still somewhat confused, so I plan to come back to it. But for the record and for all the press to know, whether someone applies natural law is of phenomenal significance, and there is not a single legal scholar in America who will disagree with this statement. Now, someone may apply it in a way, like Moore, who leads him in a direction that is liberal. You may apply it in a way that leads you in a direction that is conservative, or you may, like many argue, not apply it at all. Nevertheless, it is a fundamental question that is going to be almost impossible for nonlawyers to grasp and exchange, but you know and I know that it is a big, big deal. In conclusion, the only reason most of us asked you about natural law, is that is how you gained your reputation. Rightly or wrongly, when you are spoken about by other lawyers or when you 194 were spoken about in the press, you are spoken about in terms of your speeches on natural law. Now, I accept for the moment that everybody misunderstood you; let me be precise, that your speeches were just philosophic musings. I accept that for the moment. But, I do not want any Senator to think that your detractors are out there searching for a theory that doesn't have significance. I, like Senator Simpson, did not do well in law school, probably worse than Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I did pretty well. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I did very poorly in law school, but I have spent an awful lot of time since law school dealing with this subject. I know and you know that what a judge's view on this issue is of phenomenal consequence to the future of this country. Again, I need to explore your view further, but if it is, as you have stated, "Senator, whenever I speak of natural law, they are philosophic musings, they in no way impact upon my view on the Court," fine, that answers the question. But please, let no one misunderstand, this question informs every other application of the law and the Constitution. It is that basic, it is that simple. I accept your assertion that it doesn't for you, I accept that. I want to go back and discuss it more. This discussion is less for you than it is for Senator Simpson and others. Lastly, let me point out that you say a right must be in the Constitution, for example, liberty. Well, you know, liberty means different things to different people. It is in the 14th amendment. Now, as you well know, some people interpret liberty in terms of natural law. Some people interpret it only in terms of tradition and history, and some people, when they look at history and tradition, interpret it a different way. Scalia says when you look at tradition, you've got to look at it very narrowly. Others say you look at it broadly. So, it makes a big difference. It is going to be impossible to communicate these ideas to the people, however, at this point, my job is not to communicate to the people. My job is to make sure that we know what your basic philosophic point of view is relative to the Constitution. I am not a detractor asking you these questions. It is not meant in any way, I hope you understand, to be a detraction or distraction. It is tantamount to understanding how you approach constitutional interpretation. We will recess for 10 minutes.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, may I
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me, the Senator wants to make a comment.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I have 30 seconds at least left.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU can have any time you want.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. NO, I don't. I would just say I think it is very important to make a distinction here between natural law as an academic exercise or discussion or a flight for law review editors and a political confirmation process. Those are two entirely different matters, and I was referring to the latter, and I would just say that to me, in my studies, your life in public is not based on a reputation bogged down in the definition of natural law. I don't know where that came from. 195 Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I will point out later where it came from. I thank you very much. We are going to recess for 10 minutes. [Recess.] The CHAIRMAN. The committee will resume now. Judge, I did not give you a chance to say anything. Did you want to say anything after my little discussion with the Senator? I am not asking you to, but did you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the one point, and perhaps it is one that you probably already knew, I did not consider you a detractor of me. I think that the dialog on natural law is an important one and it is one that, of course, you indicated we would have, and I welcome the opportunity to explain to you
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I want to make clear, also, I did not think that you thought I was a detractor, and I am sure that Senator Simpson is not. But all kidding aside, that was really a discussion between Senator Simpson and me on whether or not this issue is of consequence. Thank you, and let me now yield to the Senator from Arizona,
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, thank you very much. Members of the committee and Judge Thomas, I regret that I was unable to be here yesterday for the opening testimony. I did read your statement and have heard a lot about it. Indeed, it was a moving statement and I compliment you for your candidness and openness. As Cochairman of the Helsinki Commission, I had to attend or felt I had to attend the opening of the International Human Rights Conference in Moscow prior to being here today. Our delegation, traveled to the Baltic states and several other republics and had an interesting opening session in Moscow. As I was traveling through these republics and listening to Gorbachev and others make speeches about human rights in Moscow, I couldn't help but think about the process that we are going through here today. The fundamental rights, the freedoms which Americans have enjoyed for 200 years are just now coming to pass, perhaps, in the Soviet Union. My thoughts kept returning to these hearings and the Founding Fathers, of how they struggled with this and did not do a perfect job. It took a long time before we finally did some of the things we should have done earlier on. It is our Constitution which these small democrats were looking to for the equality of human beings, and we see how they struggled with it, and your opening statement certainly expresses how you have struggled with that, like no one on this committee could really appreciate. It is particularly fitting that my first duty upon returning to the country is to consider the confirmation of the successor to a man who has been the champion and in the forefront of the rights of the individuals during his long and distinguished service on the Supreme Court, of course, that is Thurgood Marshall. His legacy will 196 surely serve as a model for the jurists in these emerging democracies and the justice system, as they seek to protect their hardfought struggle for individual rights and their freedoms. It is against this backdrop that I will listen to the responses to some of the questions that I will submit to you and those that have already been asked to you. I hope that I will be able to conclude, Judge Thomas, that your judicial philosophy will first and foremost be dedicated to the protection of the rights of individuals. Mr. Chairman, I request that the full statement that I would have given yesterday be inserted in the record in the proper place, if I may.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It will be placed in the record in its entirety.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. [The statement of Senator DeConcini follows:] 197 I AM PLEASED TO JOIN MY COLLEAGUES ON THE COMMITTEE IN WELCOMING JUDGE THOMAS TO HIS CONFIRMATION HEARINGS. AT A TIME WHEN OUR CONSTITUTION IS SERVING AS THE BLUEPRINT FOR DEMOCRATIC REFORM THROUGHOUT THE WORLD, WE BEGIN, TODAY, THE PROCESS OF ONE OF THE MORE INTEGRAL COMPONENTS OF THAT GREAT CHARTER — THE SENATE'S DUTY OF "ADVICE AND CONSENT" TO THE PRESIDENT ON JUDICIAL NOMINEES. THE ADVICE AND CONSENT DUTY OF THE SENATE IS ONE OF THIS BODY'S MOST IMPORTANT CONSTITUTIONAL POWERS. BUT THIS PROVISION PROVIDES NO IMMUTABLE STANDARD FOR SENATORS TO LOOK TO WHEN FACED WITH THE RESPONSIBILITY OF VOTING ON A SUPREME COURT JUSTICE. I HAVE OFTEN STATED AND BELIEVE THAT THE SENATE SHOULD GIVE THE PRESIDENT'S NOMINEE THE BENEFIT OF THE DOUBT. BUT THIS IN NO WAY MEANS THAT WE SHOULD CONFIRM A NOMINEE WITHOUT THOROUGHLY EXAMINING HIS OR HER QUALIFICATIONS. AS THE SENATE DOES NOT EXPECT THE PRESIDENT TO RUBBER STAMP ITS LEGISLATION, THE PRESIDENT SHOULD NOT EXPECT CONGRESS TO RUBBER STAMP HIS NOMINEES. A SUPREME COURT JUSTICE IS NOT A CABINET MEMBER WHOSE JOB IS TO SERVE THE PRESIDENT. IT IS NOT SUFFICIENT THAT THE PRESIDENT AGREES WITH THE VIEWS OF THE NOMINEE. THE SENATE HAS A RIGHT, INDEED A CONSTITUTIONAL OBLIGATION, TO EXAMINE A NOMINEE'S 198 COMPETENCE, INTEGRITY, EXPERIENCE, AND YES — HIS OR HER JUDICIAL PHILOSOPHY. FOR THE SUPREME COURT IS UNDENIABLY A POLICYMAKER. OUR FRAMERS DRAFTED THE CONSTITUTION IN BROADLY-WORDED PRINCIPLES THAT WERE INTENDED TO PROTECT AN EVOLVING SOCIETY. CONSTITUTIONAL INTERPRETATION REQUIRES AN EXERCISE OF DISCRETIONARY JUDGMENT. THUS, WE MUST CAREFULLY CHOOSE THE CONSTITUTION'S MOST IMPORTANT INTERPRETERS. WE HAVE HEARD FROM VARIOUS GROUPS WHO EITHER OPPOSE THE NOMINATION OF JUDGE THOMAS OR HAVE GRAVE CONCERNS IN PLACING HIM ON THE COUNTRY'S HIGHEST COURT, INCLUDING NATIONAL GROUPS REPRESENTING THE INTERESTS OF WOMEN, HISPANICS, AFRICANAMERICANS, AND THE ELDERLY. NO ONE DOUBTS THAT JUDGE THOMAS HAS THROUGHOUT HIS CAREER TAKEN ACTIONS OR ANNOUNCED POSITIONS THAT HAVE INVOKED CRITICISM. BUT I BELIEVE THAT JUDGE THOMAS' OPPONENTS HAVE THE BURDEN IN PERSUADING THIS SENATOR THAT JUDGE THOMAS SHOULD NOT BE CONFIRMED. GROUP POSITIONS MUST BE SUPPORTED BY MORE THAN A BOARD VOTE. THE OPPOSITION TO THIS OR ANY NOMINEE MUST SUBSTANTIATE THEIR CASE THAT THE NOMINEE IS COMMITTED TO IMPOSING HIS OR HER OWN EXTREMIST AGENDA UPON THE COURT. THE COURT IS GOING THROUGH A TRANSITION PERIOD. IN MANY AREAS OF THE LAW I AGREE WITH THE DIRECTION THAT THE CURRENT COURT HAS MOVED. HOWEVER, THERE ARE CERTAIN AREAS IN WHICH I BELIEVE THE COURT HAS BEEN DEAD WRONG. THAT IS WHY I VOTED IN FAVOR OF THE CIVIL RIGHTS BILL LAST CONGRESS. THE EXCESSES OF THE WARREN COURT IN ONE DIRECTION SHOULD NOT BE REPLACED BY EXCESSES IN ANOTHER DIRECTION. THE COURT LOSES ITS LEGITIMACY AS 199 AN INSTITUTION IF ITS EDICTS ARE SOLELY DEPENDENT UPON ITS PERSONNEL. IN JUDGE THOMAS, I HOPE TO FIND A CANDIDATE WHO RESPECTS THE COURT AS AN INSTITUTION. AS AN INDIVIDUAL, HE DESERVES PRAISE FOR HIS NUMEROUS ACCOMPLISHMENTS IN A SHORT PROFESSIONAL CAREER. I AM VERY IMPRESSED BY HIS INTELLECT AND LEGAL ACUMEN. HIS PERSONAL STORY IS ONE THAT SHOULD BE TOLD OVER AND OVER AGAIN. HE LEFT ME WITH A POSITIVE IMPRESSION AFTER HIS OFFICE VISIT EARLIER THIS SUMMER. I FOUND HIM TO BE VERY ENGAGING AND PERSONABLE. AND IMPORTANT IN THIS SENATOR'S MIND IS THE STRONG SUPPORT HE HAS FROM MY DISTINGUISHED COLLEAGUE SENATOR DANFORTH, WHO HAS ATTESTED TO JUDGE THOMAS' SKILL AND INTEGRITY. OVER THE YEARS JUDGE THOMAS HAS WRITTEN ARTICLES, DELIVERED NUMEROUS SPEECHES, DIRECTED A FEDERAL AGENCY, TESTIFIED BEFORE CONGRESS, AND AUTHORED FEDERAL JUDICIAL OPINIONS. HE HAS A RECORD THAT WE CAN ALL EXAMINE. WE HAVE AN AMPLE BODY OF EVIDENCE ON JUDGE THOMAS'S VIEWS ON VARIOUS IMPORTANT AREAS OF THE LAWS AND HIS CRITIQUE ON SOME MOMENTOUS CONSTITUTIONAL CASES. BUT AS HE STATED AT HIS COURT OF APPEALS NOMINATION HEARING, HE HAS YET TO FORMULATE HIS OWN CONSTITUTIONAL PHILOSOPHY. AFTER THESE HEARINGS CONCLUDE, THE SENATE AND THE AMERICAN PUBLIC SHOULD HAVE A VISION OF CLARENCE THOMAS' CONSTITUTIONAL PHILOSOPHY. I HOPE TO FIND A JURIST WHO IS RESPECTFUL OF PRECEDENT RATHER THAN A JURIST WHO IS ON A MISSION TO IMPOSE HIS PERSONAL BELIEFS OR HIDDEN AGENDA ON THE COUNTRY THROUGH BROAD SWEEPING OPINIONS. IN RESPONSE TO THE JUDICIARY COMMITTEE'S QUESTIONNAIRE, A RECENT SUPREME COURT NOMINEE CHARACTERIZED 200 JUDICIAL RESTRAINT AS A JUDGE HONORING "THE DISTINCTION BETWEEN PERSONAL AND JUDICIALLY COGNIZABLE VALUES." I NEED TO BE CONFIDENT THAT JUDGE THOMAS CAN FULFILL THIS DEFINITION OF JUDICIAL RESTRAINT. NO ONE IN THIS BODY WILL EVER BE SATISFIED WITH EVERY RESPONSE OF A NOMINEE; THAT IS IMPOSSIBLE. I KNOW AND EXPECT THAT JUDGE THOMAS AND I WILL DISAGREE ON PARTICULAR ISSUES. WHAT IS IMPORTANT IS THAT AT THE END OF THE DAY, WHEN ALL IS SAID AND DONE, EACH SENATOR MUST ANSWER ONE QUESTION BEFORE VOTING — DO YOU FEEL SECURE ENTRUSTING THIS NOMINEE WITH THE TREMENDOUS RESPONSIBILITY OF PROTECTING THE RIGHTS — WHETHER ENUMERATED OR UNENUMERATED — IN OUR CONSTITUTION? ONE FINAL NOTE — AS OCCURRED WITH KIS NOMINATION TO BE A JUDGE ON THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, QUESTIONS HAVE ARISEN, ONCE AGAIN, CONCERNING JUDGE THOMAS' COMMITMENT TO THE LAW. THE CONCERN STEMS FROM JUDGE THOMAS' CONTROVERSIAL TENURE AS CHAIRMAN OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS WELL AS RECENT REVELATIONS REGARDING HIS ACTIONS AT THE OFFICE OF CIVIL RIGHTS IN THE DEPARTMENT OF EDUCATION. I HOPE TO EXPLORE THROUGH THESE HEARINGS WHETHER JUDGE THOMAS WAS ACTING WITHIN HIS ADMINISTRATIVE CAPACITY IN CARRYING OUT THE POLICY OF THE ADMINISTRATION OR WHETHER HE WAS UNWILLING TO ENFORCE LAWS THAT CONFLICTED WITH HIS PERSONAL VIEWS. IN CLOSING, I JOIN MY COLLEAGUES IN EXTENDING A WARM WELCOME TO YOU, JUDGE THOMAS. I LOOK FORWARD TO THE QUESTIONING AND WITNESSES. AND I LOOK FORWARD TO LEARNING MORE ABOUT YOUR 201 JUDICIAL PHILOSOPHY AND YOUR THOUGHTS ON THE GREAT CONSTITUTIONAL ISSUES OF OUR DAY. 202 Senator DECONCINI. Judge Thomas, I would like to pursue the equal protection clause, the 14th amendment and how it relates to discrimination. As you so well know, but for purposes of clarity, the 14h amendment prohibits a State from depriving a person of life, liberty, or property, without due process of law or equal protection of those laws. The equal protection clause provides the primary constitutional protection against laws that discriminate on the basis of gender. And as we also know from previous hearings, there are three tests. There is the rational relationship test, which is the most lenient of those tests, there is the intermediate scrutiny test or a heightened test, which has been used in gender cases, and then there is the scrutiny test, which has been used in race and national origin. Judge Thomas, there has been much discussion already regarding reliance on natural law. Unfortunately, or maybe fortunately, depending on how you define it, natural law has been invoked historically, and goes back a long time. For example, in 1873, in the Bradwell v. Illinois case, the Supreme Court denied a woman a license to practice law, arguing the following: Civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. The natural and proper delicacy which belong to the female sex evidently unfits it for many of the occupations of civil life. The paramount destiny and mission of women is to fulfill the noble and benign office of wife and mother. This is the law of the Creator. Now, I know you went on with Senator Kennedy at some length about your position on natural law, which I did review this morning, and I welcome some clarification that you can give. But with the Bradwell case, we see that those Justices applied natural law. I know that you stated that your duty would be to uphold the Constitution and not a natural law philosophy, but I would like to just clarify for the record, do you disagree with the Justices' decisions that were held back in 1873 in the Bradwell case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I do.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. That is really all I want to know. I want to be very clear, based on your statements to Senator Kennedy, that you do not have any lingering thoughts that stare decisis, when dating back to a clear case where natural law was used, poses any problems to you.
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. Judge Thomas, when you were nominated to the court of appeals, because of time constraints and other things that prohibited me from coming to those hearings at any length and waiting my turn to ask you questions, I submitted written questions requesting your comments on the court's approach to the equal protection clause. We also discussed this before these hearings when you were in to see me, where I told you I would address some questions to you and offer some thoughts on it. In response to my written questions, your partial response was, Though I do not have a fully developed constitutional philosophy, I have no personal reservations about applying the three standards as an appellate court judge in cases which might come before me. 203 Now that you have been on the court for 18 months and may soon be making decisions on important equal protection cases on the highest court of the land, let me ask you if you have developed a constitutional philosophy regarding the Court's three-tier approach to the equal protection cases.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have no reason and had no reason to question or to disagree with the three-tier approach. Of course, the rational basis test being the least structured or least strict of the tests, the heightened scrutiny test, which has been used in the area of gender and alienage and legitimacy, and the strict scrutiny test, which has been used in the area of fundamental rights and race, Senator, I think that those tests attempt in our society to demonstrate the concern that we have for classifications that could infringe on fundamental rights, and I believe that underlying, when we move away just from the legalese—and I do accept this structure of the three-tier test—when we move away from it, at bottom what we are talking about is are we going to allow people to be treated in arbitrary ways, either because of their gender or because of their race, are we going to defer to classifications based on gender or race, and what the Court is attempting to do in an important way is to say no, we are going to look at those classifications.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas. That is helpful, and I guess it goes without saying, but I am going to say it anyway, you have no agenda or hidden belief or anything else regarding the present position that the Supreme Court has taken with these three tiers on equal protection as they relate to gender or any other minority or class that it may be applied to.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important for judges not to have agendas or to have strong ideology or ideological views. That is baggage, I think, that you take to the Court or you take as a judge. It is important for us, and I believe one of the Justices, whose name I cannot recall right now, spoke about having to strip down, like a runner, to eliminate agendas, to eliminate ideologies, and when one becomes a judge, it is an amazing process, because that is precisely what you start doing. You start putting the speeches away, you start putting the policy statements away. You begin to decline forming opinions in important areas that could come before your court, because you want to be stripped down like a runner. So, I have no agenda, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas. Is it fair to say that your philosophical approach, not going to any specific case, is that you would agree with this statement: If the Court were to abandon the heightened scrutiny test as it is applied to sex discrimination, gender cases, et cetera, that it would be turning the clock back on equal protection rights of women?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that would be an appropriate statement, if you said either abandon or ratchet down.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you very much. Because it concerns me a great deal, if the Court moves in that direction, without touching the issue of abortion or what have you. Having studied it and having posed these questions to a number of nominees here, I really feel the Court has, to the best it can, with the variance of 204 people that are on there, come to some relatively good conclusions. And though the intermediate scrutiny or heightened scrutiny may not be enough to satisfy the inequities in women's position in jobs and pay and what have you today, at least I am satisfied that it gives a court an opportunity, as the cases come before it, to continue to improve the inequities that I believe women still suffer in our society, and I am pleased with your responses. They are similar to those responses that Judge Souter gave, and maybe you listened to his testimony, but I am very thankful for your candid approach, and also your comments about an agenda, because I agree with you, Judge Thomas, there is no place on the Court for someone who has an agenda. We all have ideas and we have to express them. We are all raised in a certain way and we all have certain convictions that we have to express and follow through, once we are in a position of making a decision. But indeed, I take that as a very serious statement on your part. Justice Marshall had his own distinct approach to equal protection claims, as you may recall. Marshall believed that the Court does not apply a three-tier approach to equal protection claims, but, rather, a "spectrum of standing" review. Thus, the more important the constitutional and societal right given to an interest, the greater the scrutiny should be applied. Do you have any feelings about this distinction that Justice Marshall makes regarding the three-tier system that you clearly said that you support and the spectrum of standing in total society?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have not examined Justice Marshall's approach in any detail and not had occasion to employ it in any of my analysis. But I think that what he is attempting to do is precisely what you are attempting to do with the three-tier analysis, and that is to adjust the scrutiny and to make it more exacting, the more significant and more important the right we are protecting. Maybe it would accomplish the same ends or be pretty close to the three-tier analysis, but it seems as though the objective is the same. But I have not had occasion to use
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS it fair to say from your comments, then, that if you came across a case regarding sex discrimination—it could fall into the strict scrutiny, if it was such a blatant case that was not unisex toilets or something that is always used in the area of the intermediate scrutiny to show the difference in applying a strict scrutiny, in an effort to all sex cases? Is that a fair statement or can you comment on it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that discrimination is, as I have said, a cancer on our society. There could be instances where one would want to apply a more exacting standard even than the current heightened scrutiny test. I would be concerned if we were to see a movement down toward the rational basis test. But I think that discrimination and classifications based on race or sex are so damaging to our society, and to individuals in particular, that one could consider and be open to ratcheting up or applying a more exacting standard.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas. I know yesterday with Senator Kennedy you discussed the 1987 Atlantic Monthly article by Juan Williams—"A Question of Fairness" I believe it is called—which was based on the extensive inter- 205 view with you. In that article, Williams writes that you stated, among other things, "Blacks and women are generally unprepared to do certain kinds of work by their own choice. It could be that blacks chose not to study chemical engineering and that women chose to have babies instead of going to medical school." You also discussed with Senator Kennedy your support of the writings of Thomas Sowell. In an article you wrote for the Lincoln Review in 1988 titled "Thomas Soweil and the Heritage of Lincoln," you praised Sowell's analysis of working women. And Sowell contended in a 1984 book that inequities in pay and career advancement stem from women's own behavior and preferences, claiming that women choose jobs and careers with lower pay and greater flexibility to accommodate their roles as wives and mothers. And I agree with you that Mr. Sowell certainly has a right to express his views. But my question to you is: Do you agree with his conclusions on this particular statement and issues?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think as I alluded to yesterday, to say that women brought discrimination on themselves or lower pay on themselves is going too far. The point that I attempted to make yesterday with Senator Kennedy was that you have to begin to disaggregate the numbers. You have to look more at the particular categories. You can't just have the average and say this is the problem. If you are going to address the problems, you have to engage in a process of disaggregation. There were questions on—I think the comment yesterday by Senator Kennedy, I believe, was something to the effect that women who were married weren't as good employees. And as an employer and someone who employed a significant number of women, I did not find that to be true and made that very clear.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Sowell also explained pay inequities between the genders by claiming that "Women are typically not educated as often in such highly paid fields of mathematics, science, and engineering, nor attracted to physically taxing and well-paid fields such as construction work, lumberjacking, coal mining and the like." What are your thoughts about that conclusion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I can't say whether or not women are attracted or not attracted to those areas. I think that is a normative comment there. But I do think his point that there are not women in some of the higher paying professions begs the question.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I do, too.
Clarence Thomas
Nominee
(R)
Judge THOMAS. There are reasons why, and some of those reasons could involve discrimination. Again, my point in saying that his arguments could be an anecdote to the debate is because he attempts to disaggregate and to not simply say all of the reasons are simply discrimination. There could be other reasons. It is not to say that I adopted, as I said yesterday, I believe, to Senator Kennedy, all of his conclusions and his assertions. I simply don't and did not at that time.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas. Judge Thomas, I want to go into some areas that deal with Hispanic concerns. As a former Chairman of the Equal Employment Opportunity Commission, you weren't responsible for, but I am sure or I hope you are familiar with the 1983 charge study—enti- 206 tied "Analysis of the EEOC Service by Hispanics in the United States," which was conducted by the EEOC-appointed task force. That task force concluded that the needs of Hispanics were not being adequately addressed by the EEOC. At the time, the task force indicated a need to improve EEOC's record of investigations of Hispanic charges and to increase outreach and education efforts within the Hispanic community. Now, as the Commissioner, what programs did you initiate to improve the accessibility of the EEOC within the Hispanic community?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, when I arrived at EEOC, one of the first concerns among many—believe me, there were many—with which I was met was that EEOC was underserving the Hispanic community; for example, in Los Angeles and certainly in your home State. There were a number of hearings, some of which I participated in, across the country in various major cities discussing the problem and what the probable or possible responses could be. A number of the, I think, concerns were that the national origin charges were low. The problem there, of course, is that not all of the charges which we received from Hispanic employees or Hispanic-Americans are national origin charges. They go across the line. They can involve age; they can involve gender discrimination also. A number of the things that we did included opening offices in predominantly Hispanic communities, satellite offices. That was a part of our expanded presence program. I made sure that we developed public service announcements that were bilingual. I installed a 1-800 number at EEOC so that the agency could be accessible. We developed posters that were bilingual. We took all of our documents, our brochures, and translated them into Spanish. The effort was to make sure that we reached out, that we included, and also in areas where we had—there was a significant Hispanic population, we made every effort to see to it that the top managers and the investigators spoke Spanish. Again, the effort, the overall effort was to reach out, and that was consistent with the recommendations. I might also add that during the major part of my tenure, two of our five commissioners were also Hispanic. So there was considerable interest on my part, on their part, and, indeed, the Commission's part, in being of greater service to Hispanic-Americans.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. HOW many offices did you open in the Hispanic community.
Clarence Thomas
Nominee
(R)
Judge THOMAS. We opened—that is a good point. I can't remember the satellite offices, the exact number. I know we opened one in east L.A., and we upgraded the office in San Antonio, TX, from a smaller area office to a full-scale district office to better serve that area.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Did any of these programs include plans to recruit more Hispanics for the agency itself?
Clarence Thomas
Nominee
(R)
Judge THOMAS. We attempted to do that in coordination with various individuals, but that is a more difficult proposition, and also to promote internally and to make sure that we had Hispanics promoted to jobs. But that can be frustrating. My efforts sometimes were met with individuals after you position them for the senior position, they 207 find other alternatives and leave the agency, or other difficult personnel actions.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, an interim result of a study conducted by the National Council of La Raza indicates that since the 1983 task force study, the situation at EEOC with regard to Hispanics has not improved. While the Hispanic population in the United States has grown in the last decade from 6 percent of the total U.S. population in 1980 to over 9 percent of the total population today, the percentage of the EEOC total charge caseloads filed by Hispanics was only 4.15 percent. Given your efforts to improve the EEOC record with regard to Hispanics since 1983, how do you account for the disproportionate small number of charges filed by Hispanics?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, I have and had the very same concern that we were underserving—or that EEOC during my tenure and when I arrived there was underserving the Hispanic community. I don't know how the numbers were arrived at. To my knowledge, the agency does not keep data in areas that do not involve national origin charges by national origin. So I don't know, for example, whether we are looking at numbers reflecting only the national origin charges as opposed to other areas. I can say this: That we made every effort during my tenure to change the Commission's accessibility to Hispanic-Americans, to individuals across this country. That was the purpose for our expanded presence program, for our satellite offices, for our educational programs, all of which were started during my tenure. Our outreach efforts were all designed so that we are not sitting in our offices waiting for people to come in, but we actually go to them. Sometimes it is frustrating because they don't all work, but it certainly was not because of a lack of trying.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, I'm certain it must be frustrating. Judge, another area of concern is the disposition of charges filed by Hispanics. According to the National Council of La Raza report, the percentage of cases which were administratively closed without remedy to the charging party has increased from 45 percent in 1985 to 72 percent in 1990. I realize a little bit of that time you weren't there. But does this figure reflect a weakness in the EEOC effort to pursue complaints filed by Hispanics, or does it suggest that the incidence of discrimination against Hispanics is lower than other protected groups?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, I don't have that data, and this is the first I have heard of those numbers. I would not think, particularly with the office heads and the employees who would certainly be interested in the communities in which they investigate those charges, that it is a weakening in EEOC's efforts. Again, I don't have the data. It certainly does not reflect—not to my way of thinking—a reduction or decline in discrimination.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS it your position that you were taking and following the recommendations of the 1983 task force?
Clarence Thomas
Nominee
(R)
Judge THOMAS. We did everything in our power during my tenure to reach out.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, did you, really, Judge? Did you go and meet with the Council of La Raza, the GI Forum, or any of the other national or local Hispanic groups, to see what they would 208 suggest you do, or to ask for their counsel and suggestions and advice?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I can't name, again, sitting here, all of the groups that I have met with, but one of our Commissioners in particular was very, very active, and he and I spent a great deal of time together, because he would go, and he would report back on what the perceptions of the problems were and approaches that we could take. Again, he and I were there the entirety of my tenure, with the exception of a few months. And a second Commissioner who was also Hispanic, he and I worked very closely together to begin to address some of these problems. And I am sure both of them were very active and very involved, and I think they would both tell you that I always
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, I appreciate that, but it doesn't answer my question. What did you do? Did you go out and seek to sit down with some of these national Hispanic groups regarding the problem, or was it kind of your attitude that, look, I've got two Hispanics here; I'll let them take care of that; I am going to take care of other areas that I think are of primary concern to me? I get a feeling that you did not pay attention yourself to Hispanics—and that doesn't mean I am going to vote against you or for you because of that single issue, because I don't make any decisions that way, but I get a feeling that while you were there that that was not high on your priority list, that you left it to the two Hispanic Commissioners, and you did something else, but yet you were
Senator Joe Biden (DE)
Chairman
(D)
the Chairman.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I can assure you that I traveled over this country to meet with various groups. I can't tell you precisely right now which groups I met with. I know I met with any number of Hispanic groups in my efforts to change the way that the agency was responding. I believe that discrimination in this country—whether it is race, gender, national origin, religion, age—that all of it is wrong, and
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I don't question that, Judge, I don't question that.
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. And what I attempted to do was to equalize treatment at the agency of all the areas. I was outside of the agency to visit with these organizations. I can't tell you which ones. I certainly tried to work with a number of the organizations. Some, I had better relationships with during my tenure than others.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, maybe you could help us—and I don't know if you have time, or somebody could help you to go back over your calendar. I'd like to know whom you did meet with in the Hispanic area. The feeling I have is that you really were not paying attention to Hispanics—maybe not because you didn't like them— I'm sure that isn't the case—maybe it is because you were so busy dealing with women's issues and black discrimination, I don't know. But I get that feeling, and from the opposition that has come forward from the Hispanic community, you certainly didn't leave them with any great impression that you were interested in their problems, Judge. 209
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, Senator, I was, and I tried to resolve the problems. As all of us know, when you run an agency as spread out as EEOC, and with the difficult mission that we had, you have your frustrations, and I certainly had my share, but I can assure you that I tried to reach out to all the groups.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. My time is up, Judge. I will come back to this and a couple of other areas later. Thank you, Judge Thomas.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator GRASSLEY. Mr. Chairman, I would like to make sure that a letter sent to you and Senator Thurmond from former Attorney General Benjamin Civiletti is introduced in the record, and I would like to note as a statement in that record besides the fact that Mr. Civiletti served the Carter administration, he has testified in support or has asked to testify in support of Judge Thomas, and these are some words he used, "finding his tenacity and strength of character to be positive attributes for the work of the Court." So, I would like to submit that for the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, and I can assure the Senator that Greneral Civiletti has been invited to testify and we look forward to hearing his testimony. [The letter referred to follows:]
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Thomas, again I want to welcome you, and particularly welcome you and your family, and I admired how patient they have been sitting through all of this. They are to be complimented, and particularly complimented for their support of you during this time of trial, although you tend to be handling the trial very well. I do not know what your son's career is going to be, but I am sure it is not going to be in law, after he observes what you go through. [Laughter.] Much of the discussion has focused on natural law, and while I have listened intently to this and have some questions in that area, I would like to pursue what I believe is a related subject, judicial restraint. An understanding of your view on the role of the courts in our democracy will, I really think, give us a better understanding of where natural law fits into your judicial philosophy. The Founding Fathers, as Alexander Hamilton wrote in the Federalist Paper 78, intended the judiciary to be, in their words, the least dangerous branch of government. Now, in your writings and speeches, you have cited Hamilton's framework for Federal power, power based on the sword, the purse, and the power of reason. Hamilton said the President would hold the power of the sword, the Congress the power of the purse. The judiciary, having neither power of the purse nor sword, would derive its power and influence from its ability to provide reasoned and persuasive decisions, establishing sound legitimate reasons for every dispute that it decided. I understand this to mean that judges would have to be fair, unbiased, openminded, devoted to addressing the facts and the law before them, without freedom to apply their own values in reaching a decision. I would like to refer to what Judge Harlan Fiske Stone expressed well, when he wrote—and then this will bring me to a question for you—and this is Justice Stone, "While the unconstitutional exercise of power by the Executive and Legislative Branches of government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self-restraint." Yesterday, you told Senator Hatch that there was no room to apply personal philosophies in one's effort to adjudicate cases. In my first question, I hope that you will reaffirm what you said along this line in your confirmation hearings for the Court of Appeals of the D.C. Circuit. You said, "The ultimate goal should always be to apply the will of Congress, the will of the legislature, I don't think it is ever appropriate for a judge to replace the intent of the legislature with his or her own intent." Is that something you can reaffirm today, after being on the circuit court of appeals?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, when I spoke those words in my confirmation hearing for the court of appeals, of course, I had not been a judge. But now I can reaffirm those words with the experience of having had to be a judge and having had to judge in some difficult cases. I do not believe that there is room in opinions in our work of judging for the personal predilections, the personal opinions and views of judges. I think in statutory construction, the ultimate goal for us is to determine the will of the legislature, the intent of the 212 legislature, not what we would have replaced the legislative enactment with, if we were in the legislature, and we have no role in legislating.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. TO continue along the same line, it seems to me your notion of the role of courts is very similar to that of Justice Anthony Kennedy. He cautioned that judges are not to make laws, they are to enforce the laws. He said the courts could not be the aristocracy of the robe, that is to say black robes of a judge give the individual no special mandate to declare the law. How close would you be to the statement made by Judge Kennedy?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, that we all who have been judges are pretty close to the same statement. We recognize that when we sit to judge cases, one, that we have to be open and we have to think and we recognize our fallibility, as I said yesterday, but we also have to recognize—and this is something that I do before I sit down in each case, and in each of the cases that I sat on on the court of appeals, I ask myself a very simple question, what is the role of a judge in this case. I think that is an important question. It is not so much to determine that we are going to in any way constrain the development of individual rights. Indeed, I am for the robust development of those rights. But, rather, it is a question to restrain judges and to restrain me, so that I have a confined and defined role.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I like those responses, but let me now refer to a speech you gave that maybe on my reading of it bothers me, and maybe on your explanation of it, you can clear it up. But I would like to contrast what you said and also what you said in the earlier confirmation hearing for the D.C. Circuit Court of Appeals with a speech at Wake Forest University in 1988, and I do have a copy of the speech, if you want me to give it to you. There you said, "Once a law passes, the action shifts to the problem of administration, it is up to the courts and the bureaucracy to fill in generalities and sometimes resolve the contradictions of the law." Now, the reason this concerns me is because it is vaguely like something Justice Souter said in response to some of my questions last year, that the courts—and these are his words—"fill vacuums left by Congress." That statement, of course, troubled me a year ago. He later somewhat qualified it in responses to additional questions the following day. I guess my question is very basic. How much filling in are you going to do, as a Supreme Court Justice? I hope you can clarify something here. Do you think there is a role for the courts to be activist this way in the terms of filling vacuums or, as you said, filling in the generalities and resolving contradictions of the law? Maybe, you know, in a wider area, I would want you to explain when is judicial activism legitimate.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not think that it is legitimate, Senator, and perhaps let me respond to your specific question.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Surely.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The point that I was making there, and it is one that was an important point, is that when an agency, an administrative agency receives a statute, it is called upon to implement that statute, to develop regulations, perhaps internal rulings or 213 procedures, but it is always called upon to do that consistent with the intent of this body. The statute on its face may be general, it may be ambiguous. The agency has to go through a process, however, of determining in a reasonable way what your intent was. I think a court does the same thing, that when there is ambiguity in the statute, the court simply goes back to your legislative history and attempts to discern what was Congress' intent. To the extent that we are talking about filling in in that instance, I think it is simply a process of statutory interpretation and development of rulemaking within the agency or the administrative bodies in the executive branch.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Scalia testified here, and has practiced it as a Justice, that in looking at history, he is not going to look to the committee reports, he is not going to look to congressional debate, he is going to look at the statute and just determine congressional intent from the language of the statute. Is that where you are going to get congressional intent?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I don't know how you can resolve ambiguities in statutes, and when we do have ambiguities in statutes, then we look to legislative history, we look to the debates on the floor, of course, we look to committee reports, conference reports, we look to indications, the best indications of what your intent was. Of course, some legislative history is perhaps more accurate or better than others, but the point is our effort is always to look for your intent, to discern your intent. I don't know how one can go about that process, the process of interpreting ambiguous statutes, without looking to legislative history.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me go to maybe, along the same line, but to some specific cases you have been involved in, because the docket of the court you now sit on is filled with regulatory cases, and in this position I think a judge could be tempted, with such a big caseload, to direct and manage bureaucracy and, of course, thereby substituting his or her own judgment for that of a more politically accountable administrative agency. In fact, one of your colleague, Judge Mikva, has written that the court should be on the lookout for—and this is as he termed it—a sudden and profound change in agency policies, as such changes constitute, in his words, danger signals and give license for court intervention in agency action, in his view. Considering this, I was struck by your opinion in Citizens v. Busey, and that is the Toledo Airport expansion case. Your opinion expresses some important elements of judicial restraint. You found that the FAA, in reviewing the expansion plans, carried out its lawful authority. The plaintiffs wanted more review of the environmental issues. What did you base your decision on—your opinion, I should say?
Clarence Thomas
Nominee
(R)
Judge THOMAS. First of all, let me say, Senator, that Chief Judge Mikva and I and our other colleagues worked together very well and have very vigorous debate internally on these important issues, and I enjoy sitting with him as a colleague. In this case, the initial question was this: In determining whether or not or where Burlington-Northern was to place its hub, who makes that initial decision or who determines the objective or the goal of the project. And if the objective or the goal of the project is 214 determined in a broad way, that is, Burlington-Northern is entitled, the goal is a hub, then the alternative to be explored can be very significant, they can be countless, a hub where in the United States, or is a determination of the goal or objective to be made by the city of Toledo and Burlington, that is, Burlington wants a hub in Toledo, then the question becomes that the alternative is between that specific hub and no project at all. What we, in essence, found was that the decision should have rested, the goal, the objective of the project rested with the individuals who were applying for the FAA permission to build the hub, rather than this broad expanse of possibilities.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let me quote briefly from that opinion of yours, and I guess not that you need to react, but I want to know if this is good basis for me to judge your opinion of judicial restraint: Federal judges enforce the statute— In this case, it was the National Environmental Policy Act— by insuring that agencies comply with NEPA's procedures, and not by trying to coax agency decision-makers to reach certain results. We are forbidden from taking sides in the debate over the merits of developing the Toledo Express Airport. We are required, instead, only to confirm that the FAA has fulfilled its statutory obligation. Congress wanted the agencies, not the courts, to evaluate plans to reduce environmental damage, but the Federal courts are neither empowered nor competent to micro-manage strategies for saving the Nation's parklands. That is you.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that, Senator, was my view, my opinion as to what the intent of this body was, and my effort was to faithfully apply that in adjudicating in that particular case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. There are a lot of other cases like that I would like to go over, but let me just do one more. It is your concurrence in the Cross Sound Ferry v. Interstate Commerce Commission. The case involved the issue of standing. You agreed with Judge Mikva's result, but just not the reasoning; is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right. I concurred in the result in that case, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like to have you elaborate on those differences of views between Judge Mikva on the one hand and your reasoning on the other.
Clarence Thomas
Nominee
(R)
Judge THOMAS. My concurrence, the purpose was really a simple question, one of the challenger. The case involved two ferry companies. One was an established ferry company, and there was a newcomer who wanted to travel back and forth across Long Island Sound. ICC determined that the newcomer was exempted from regulation. As we received the cases, one of the challenges was by the existing ferry company that the ICC should have required of the newcomer a filing or compliance with two environmental regulations, NEPA and the Coastal Zone Management Act. The question was for me initially the question that I ask in all cases and in all areas: Do we have jurisdiction to consider this? And there is an argument sometimes that when the merits of the case are easy and the jurisdictional component of the case is hard, that it is easy enough to skip over determining jurisdiction and determine the easy-merits portion of the case. My point in the concurrence was that it was inappropriate to skip over the jurisdiction determination to get to the merits, that 215 Federal judges had an obligation to determine at each turn whether or not we as judges had any role in that particular case. And my view was that there was no standing to raise the issue on the part of the existing ferry company.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. One sentence that you said in that decision, Federal courts are courts of limited jurisdiction. 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. It seemed to me like you set a very narrow role for the courts. And my question then in regard to going to the Supreme Court, you assume that is going to be the same philosophy you start with, on standing and other things?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I don't think that we as judges should be stingy or crabbed in our review of individuals' access to our judicial system. I think it is important, as I said yesterday, that the courts and our judicial system be available to all, that they have a place where their case can be adjudicated in a fair way. My concern, however, is that we are judges who are required to determine what our jurisdiction is before we can decide a case, and I see that more as a restraint on us than it is on the individual having access to the court system, although the two, of course, could ultimately be the same thing in some cases. But the jurisdictional determination to me is an important determination.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The doctrine of standing is a limitation on the exercise of judicial power. Your opinions to me are good examples of how a judge must restrain himself or herself in exercising power he or she possesses. Has that general approach—maybe you have had it throughout your lifetime as a lawyer, but has this been strengthened in the year or 2 years you have been on the circuit court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, a couple of points. I think when one becomes a judge, as I have noted earlier, one begins to realize the difficulty of the cases that come before us. You don't have the comfort of your position as an advocate. You don't reinforce your own arguments. You have got to listen to all the arguments. And the arguments can be equally forceful on either side. So I think that when we recognize our own fallibility and our own humility, we become concerned about what our role is in each of these cases, which is the second point. And we ask ourselves, Do we belong in this case? What is our role? Do we have the authority? And one learns a sense of humility. So I would say that my view—and one also recognizes, Senator, I might add, that we are the least democratic branch of the Government, and we have to restrain ourselves as judges. And I think that is important. Indeed, I think it is critical so that we do not begin to see ourselves as superlegislators.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Right there let me say that what you have just said it seemed to me like is what Judge Scalia described himself and his colleagues on the High Court as: The unelected and life-tenured judges who have been awarded extraordinary undemocratic characteristics. And that was from a concurrence that Scalia wrote in the Webster case. And that is your approach. Your approach would be similar to Scalia's, then? I mean, I think you have said the same thing. 216
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think if his point is, Senator, that we are not elected to make policy, we are not in the position to make the kinds of difficult decisions that the elected, the political branches make, then I think he is right. We are judges, and I don't think that we should stray beyond our role in the undemocratic, the most undemocratic branch of the Government into the political, the authority and the role of the political branches.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, the political branches, too, have great responsibility to protect our liberties, and since judges are not accountable to the body politic and should not have the responsibility of deciding sensitive and controversial issues of the day, and that is judicial activism, that is legislating, judges trying to do our job from the bench. I guess I need to have you tell Americans what you see as the dangers of judges substituting their ideas for those of the political branches of government.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that, briefly, the danger is inherent in the fact that there are no checks and balances as you have in the political branches for judges. We don't stand for elections. If we do the wrong things, we are not challenged by an opponent, and we don't lose our incumbencies as an elected official. We don't have to go back to our districts and be told that we have done the wrong thing. We are lifetime appointments. And I think that there is a danger with the lack of that check, the lack of that exposure to elections, and the lack of the tensions between the political branches that we could do things as judges that we think are nothing more than a matter of our personal opinions. And I think it would be inappropriate. I think it is a very significant danger.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would ask if you, in just what you have said, if you would be standing behind a 1987 speech that you gave before the Cato Institute. The quote: "When political decisions have been made by judges, they have lacked the moral authority of the majority. When courts have made important political and social decisions in the absence of majority support, they have only exacerbated the controversies." My question, in a sense, is then you are saying leaving the difficult, sometimes contentious decisions to the elected representatives, then there should be no concern or fear among the American people.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that, of course, Senator, we always have concerns and fears and different points of views, and there is always debate and give and take. But I think that those political decisions, those policies should be developed and debated and established in and by the legislature; that the judge's role is not to legislate and it is not to set policy, and it is certainly not to engage in political decisionmaking.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. There may be a trend away from judicial activism, but I don't think we have seen the last of it. I would like to draw your attention to some recent cases in which district judges engaged in judicial activism. The first is a case that arose in a New Jersey Federal court. It was in Morristown. The public library board of trustees issued regulations designed to ensure that the library did not become home to vagrants. The regulations required that patrons use the library as it was intended to be used; that is, for reading, studying, or using library material. So the court 217 struck down the library's regulation saying that everyone has a right to receive ideas, and the library cannot restrict access. There was a New York Federal judge who just this past June found that panhandling might be protected speech under the first amendment, and this was despite the fact of a second circuit ruling to the contrary from last year. Now, I realize that you are going to be reluctant to comment on the merits of these cases since such issues could come before the Supreme Court. But I hope—and I suppose this is more of a statement than a question—no, I guess I would really want it to be a question. Can you see these as examples of a court's usurping the function of legislative bodies and making rather than applying or interpreting the law?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, unfortunately, I don't know the full facts in those cases, and I think it would be inappropriate for me to try to comment on those particular cases. But let me just simply say this: That I think that we all as judges should be concerned and should be aware, or at least be cautious not to move into areas that are best left to, as I said, the political branches and to the legislature. But those specific cases, I simply don't know the details of them, and I think even if I did, it would be inappropriate to comment on them.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Maybe it is, but let me make this point to you to think about, and whether or not those cases might not be inconsistent with the point you made in that 1987 Cato Institute talk, where you stated, "Maximization of rights is perfectly compatible with total government regulation. Unbound by notions of obligation and justice, the desire to protect rights simply plays into the hands of those who advocate a total state. The rhetoric of freedom [license, really] encourages the expansion of bureaucratic government." My time is up. I just want to leave the subject with a quote from Felix Frankfurter on the role of judges. He found the duty not to enlarge his authority to be one of the greatest challenges of being a judge. He continued, and let me quote probably about 40 words— That the court is not the maker of policy but is concerned solely with the question of ultimate power, is a tenet by which all justices have subscribed. But the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Court. The conception of significant achievement on the Supreme Court has been too much identified with largeness of utterness and too little governed by inquiry into the extent to which the judges have fulfilled their professed role in the American constitutional system. I hope I see your confirmation bringing to the Supreme Court one more person like Felix Frankfurter, who is going to be looking at and inquiring into the extent to which judges have fulfilled their role in the American constitutional system. Thank you, Mr. Chairman.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator, and thank you, Judge. We will recess until 2 p.m. [Whereupon, at 12:40 p.m., the committee recessed, to reconvene at 2 p.m., the same day.] The CHAIRMAN. The hearing will come to order. The Chair recognizes Senator Leahy. 218
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you very much, Mr. Chairman. Judge Thomas, welcome back this afternoon. Judge, I would like to just go over a couple of points prompted by some of your earlier testimony. A couple of thoughts occur to me. I was looking over the notes of your responses to Senator Kennedy's questions yesterday. You recall that when he talked about the Lewis Lehrman article, "the Declaration of Independence and the Right to Life," he referred to your statement, in which you called the Lehrman article a "splendid example of applying natural law." I understand your answer was that you were speaking in the Lewis Lehrman Auditorium, with Lewis Lehrman sitting there, referring to Lewis Lehrman's article, and that you intended to make your conservative audience more receptive to natural law principles as it applied to civil rights. Is that a fair restatement of your answer?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think with the possible exception of "Lew Lehrman sitting there."
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Oh, that is my misconception. He was not there, then?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Not to my knowledge.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. OK. Was the rest a fair restatement?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. So, granting that it was a strategic remark for the reasons that you stated, did you believe the article was "a splendid example of applying natural law"?
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS I indicated yesterday, Senator, that I did not and do not think that natural law can be applied to resolve this particular issue, I think it is a constitutional matter and it has to be resolved under constitutional law, as a matter of constitutional law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But that is not precisely my question. My question was, did you believe the article was a splendid example of applying natural law? Just on that narrow line: Do you believe the article itself was "a splendid example of applying natural law"?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Let me explain what I was trying to say. What I was trying to say
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU cannot answer that specific question?
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I am trying to say, so I am not misunderstood, Senator
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, he has a right to explain his position.
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I was trying to say is here is a good example
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If Senator Thurmond wishes to join him at the witness stand—but go ahead, Judge.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I would be glad to do it, but he has a right to explain his answers.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. GO ahead, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you, Senator. My point was that here is an example of one of yours using natural law. I was not commenting on the substance of its use, so it^was an example, it was a splendid example in the sense that it was a compliment to him and it is a compliment to someone they be- 219 lieved in, and I would reaffirm what I said yesterday and I have said consistently, and that is that at no time did I adopt or endorse the substance of the article itself. My interest in that one sentence, I believe, was to get a conservative audience that was skeptical of a concept to be more receptive to that concept in the area that I wanted to use, in the area of civil rights. That speech is on the treatment of blacks by conservatives, treatment of minority issues in the Reagan administration, and a sort of request and a push or a tug to them to be more receptive in this area and to be aggressive in this area. It was not an endorsement of that article.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you feel that your answer today is in any way inconsistent with what you said then?
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I said?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. At that time?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. And you understand my confusion in the two answers, but you explain that confusion in that the statement then and your answer today are consistent?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I said that they were consistent.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. OK. Then you feel your answer today is consistent with what you said back at the time you spoke in the Lewis Lehrman Auditorium?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, my statement today is consistent with what I intended to do and what I did in the Lew Lehrman Auditorium. My interest, as I indicated to you, and I think I repeated a number of times here, it was in civil rights and finding unifying principles in the area of civil rights.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me make sure that I understand. Is it your testimony here today and yesterday that you do not endorse the Lewis Lehrman article to the extent that it argues under the natural law principles of the Declaration of Independence that a fetus has an inalienable right to life at the moment of conception? Is that your testimony?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not—my testimony is that, with respect to those issues, the issues involved or implicated in the issue of abortion, I do not believe that Mr. Lehrman's application of natural law is appropriate.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Had you read that article before you praised it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think I skimmed it, Senator. My interest, again, was in the fact that he used the notion or the concept of natural law, and my idea was to import that notion to something that I was very interested in.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, you certainly
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Excuse me, would the Senator yield? I did not understand one answer. Did you say that you do not believe that Mr. Lehrman's application of natural law in that article was appropriate?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That's right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU do not believe it is appropriate?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That's right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I said that my testimony has been that that difficult issue is to be resolved as a matter of constitutional law. 56-270 O—93 8 220
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, the chairman has anticipated my next question. When you gave the speech, which was in 1987, as I recall the testimony, did you understand that the consequences of Mr. Lehrman's position were not just that Roe v. Wade should be overturned, but that abortion, even in cases of rape and incest, should be banned in every State of the Union? Did you understand that to be the position that he was taking in that article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, until recently, in reflecting on it, I did not know, I could not recall the entire content of that article until I read recent articles about it. Again, my interest was very, very limited
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. And the——•
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU have read the article now, though, now that it has been brought up
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have not re-read it. I have not re-read it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU have it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have not re-read the article.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you have the article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not have it with me.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Does somebody want to just—I want to make sure somebody gives it to you, Judge. Let me say that the article, as written, takes a position not just that Roe v. Wade should be overturned, but that abortion, even in cases of rape and incest, should be banned in every State of the Union. Assuming that is the thrust or one of the main points of the article, do you agree with that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, it would be, I think, for me to respond to what my views are on those particular issues would really undermine my ability to be impartial in those cases. I have attempted to respond as candidly and openly as I possibly can, without in any way undermining or compromising my ability to rule on these cases.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let's just go, then, to Mr. Lehrman's positions. Under his theory of natural law, every abortion in this country would be criminalized. Do you understand that to be his position? I am not asking whether it is yours, but do you understand that to be his position in that article?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, I would have to re-read the article, Senator. I understand the criticisms that you have of the article, but my point to you here today, as well as in other questioning concerning this article, is that I did not adopt or import anything more from this article than the use of this one notion of natural law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Might I ask you to do this, then, Judge, because we will have another go-round on this. It would only take about 4 or 5 minutes to read that article sometime between now and the next go-round. Could you please find the time to read it? And if you get crammed with too many things between now and then when I get my next turn around, I will just stop and give you time to read it right then.
Clarence Thomas
Nominee
(R)
Judge THOMAS. OK. Thank you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NOW, Mr. Lehrman drew a parallel between the struggle for liberty by slaves with a struggle "for the inalienable 221 right to life of the child-in-the-womb—and thus, the right to life of all future generations." Do you understand the parallel of the struggle for liberty by slaves with the struggle for the inalienable right to life of the child in the womb, and thus, the right to life of all future generations? Do you agree with that comparison?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, I have not re-read this article. I would take you up on your offer to go back and re-read it. My interest was on the issue of slavery, Senator, it was an important issue to me. The concept of liberty and life, et cetera, are very general concepts. I would like to just take the time to go back and reread it
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Fair enough.
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. And be fair in my response to you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I absolutely agree.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But let me, if I could say this—my interest in this article was as I have testified before this committee, and I think indicated in some of our prior meetings, it was very important to me to convince conservatives that they should openly support and be aggressive in their support of civil rights.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, does a fetus have the constitutional status of a person?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I cannot think of any cases that have held that. I would have to go back and rethink that. I cannot think of any cases that have held that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If somebody were to raise that issue in a court, how would a judge go about making a determination of that? I am not asking you to make a determination, but how would a judge do that? Does he or she go to a medical text, a philosophical text, theological treatises? How does one make such a determination?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I could only offer this, and I have not made that determination and I have not gone through that kind of analysis, but, of course, one would rely in any case in which one is making a difficult determination, one would rely on the adversarial process to sharpen the issues. One would rely on precedent. One would certainly rely on related areas, such as the area of medicine. In the area of Roe v. Wade, I think there was considerable reliance on medical evidence. Again, I am doing that in a vacuum, and I was—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand that. Of course, even in the adversarial process, a judge can oftentimes shape and direct in a most appropriate way. Any judge I have ever appeared before—if he or she felt that the adversaries did not present enough evidence to help the judge decide—would certainly have the right to ask the adversaries for more information. In an area like this, do you rely on theology? Do you rely on jurisprudence? Do you rely on medical information? Or do you rely on experience?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, I would like to just simply say that, of course, one could see where medical, certainly experience and one could see where precedent would be relevant. I do not see at this point where theology would be relevant. Again, I would like to refrain from further speculation in this very difficult area. The point that I am making to you, and I think it is an important point, is that when a judge is engaged in any 222 kind of an effort to make difficult decisions-in any area, a judge tries to examine the relevant evidence and tries to reach a reasoned conclusion and tries to reach a conclusion, without implicating or without involving his or her personal opinions.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, you were in law school at the time Roe v. Wade was decided. That was 17 or 18 years ago. You would accept, would you not, that in the last generation, Roe v. Wade is certainly one of the more important cases to be decided by the U.S. Supreme Court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would accept that it has certainly been one of the more important, as well as one that has been one of the more highly publicized and debated cases.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO, it would be safe to assume that when that decision came down—you were in law school, where recent case law is oft discussed—that Roe v. Wade would have been discussed in the law school while you were there?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The case that I remember being discussed most during my early part of law school was I believe in my small group with Thomas Emerson may have been Griswold, since he argued that, and we may have touched on Roe v. Wade at some point and debated that, but let me add one point to that. Because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that is debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge Thomas, I was a married law student who also worked, but I also found, at least between classes, that we did discuss some of the law, and I am sure you are not suggesting that there wasn't any discussion at any time of Roe v. Wade?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I cannot remember personally engaging in those discussions.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. OK.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The groups that I met with at that time during my years in law school were small study groups.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Have you ever had discussion of Roe v. Wade, other than in this room, in the 17 or 18 years it has been there?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Only, I guess, Senator, in the fact in the most general sense that other individuals express concerns one way or the other, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Have you ever, in private gatherings or otherwise, stated whether you felt that it was properly decided or not?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, in trying to recall and reflect on that, I don't recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate. I don't remember or recall participating, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO you don't ever recall stating whether you thought it was properly decided or not?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I can't recall saying one way or the other, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, was it properly decided or not? 223
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that that is where I just have to say what I have said before; that to comment on the holding in that case would compromise my ability to
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me ask you this: Have you made any decision in your own mind whether you feel Roe y. Wade was properly decided or not, without stating what that decision is?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have not made, Senator, a decision one way or the other with respect to that important decision.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. When you came up for confirmation last time for the circuit court of appeals, did you consider your feelings on Roe v. Wade, in case you would be asked?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I had not—would I have considered, Senator, or did I consider?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Did you consider.
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO you cannot recollect ever taking a position on whether it was properly decided or not properly decided, and you do not have one here that you would share with us today?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not have a position to share with you here today on whether or not that case was properly decided. And, Senator, I think that it is appropriate to just simply state that it is—for a judge, that it is late in the day as a judge to begin to decide whether cases are rightly or wrongly decided when one is on the bench. I truly believe that doing that undermines your ability to rule on those cases.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, with all due respect, Judge, I have some difficulty with your answer that somehow this case has been so far removed from your discussions or feelings during the years since it was decided while you were in law school. You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges or immunity clause. You have referred to Lewis Lehrman's article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum absent some very clear considerations of Roe v. Wade, and, in fact, twice specifically citing Roe v. Wade.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Notwithstanding the citing of it in the article on privileges or immunities, notwithstanding the working group that criticized Roe?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would like to have the cite to it. Again, notwithstanding the citation, if there is one, I did not and do not have a position on the outcome. With respect to the working group, Senator, as I have indicated, the working group did not include the drafting by that working group of the final report. My involvement in that working group was to submit a memorandum, a memorandum that I felt was an important one, on the issue of low-income families. And I thought that that was an important contribution and one that should have been a central part in the report. But with respect to the other comments, I did not participate in those comments. 224
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I will make sure that you have an opportunity to read both the footnote citation and the Lewis Lehrman article before we get another go-round. But am I also correct in characterizing your testimony here today as feeling that as a sitting judge it would be improper even to express an opinion on Roe v. Wade, if you do have one?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right, Senator. I think the important thing for me as a judge, Senator, has been to maintain my impartiality. When one is in the executive branch—and I have been in the executive branch, and I have tried to engage in debate and tried to advance the ball in discussions, tried to be a good advocate for my points of views and listening to other points of views. But when you move to the judiciary, I don't think that you can afford to continue to accumulate opinions in areas that are strongly controverted because those issues will eventually be before the Court in some form or another.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Of course, as Senator Metzenbaum pointed out earlier today, you have spoken about a number of cases, and I understand your differentiation in your answers to his question on that. But I wonder if those cases somehow fit a different category. The expression once was that the Supreme Court reads the newspapers, and I suppose we can update that today to say that Supreme Court nominees read the newspapers and know that this issue is going to be brought up. But, Judge, other sitting Justices have expressed views on key issues such as—well, take Roe v. Wade. You know, Justice Scalia has expressed opposition to Roe. Does that disqualify him if it comes up? Justice Blackmun not only wrote the decision but has spoken in various forums about why it was a good decision. Is either one of them disqualified from hearing abortion cases as a result?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that each one of them has to determine in his mind at what point do they compromise their impartiality or it is perceived that they have compromised their objectivity or their ability to sit fairly on those cases. And I think for me, shortly after I went on the court of appeals, I remember chatting with a friend just about current events and issues. And I can remember her saying to me, asking me three or four times what my opinion was on a number of issues, and my declining to answer questions that when I was in the executive branch I would have freely answered. And her point was that I was worthless as a conversationalist now because I had no views on these issues. And I told her that I had changed roles and the role that I had was one that did not permit me or did not comport with accumulating points of views.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, I might just state parenthetically, I have been both a prosecutor and a defense attorney, and I have been before judges who have expressed very strong views on the idea that when they go on the bench, they do not go into a monastery— they still are part of the populace, able to express views. And I have been there when they have expressed views both for and against a position of a client I might be representing, whether it is the State on the one hand or the defendant on another. But I have also felt secure in knowing that they were fairminded people and 225 would set their own personal opinions aside, as judges are supposed to and as you have testified one should do in such a case. Let me ask you this: Would you keep an open mind on cases which concern the question of whether the ninth amendment protected a given right? I would assume you would answer yes.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The ninth amendment, I think the only concern I have expressed with respect to the ninth amendment, Senator, has been a generic one and one that I think that we all would have with the more openended provisions in the Constitution, and that is that a judge who is adjudicating under those openended provisions tether his or her ruling to something other than his or her personal point of view. Now, the ninth amendment has, to my knowledge, not been used to decide a particular case by a majority of the Supreme Court, and there hasn't been as much written on that as some of the other amendments. That does not mean, however, that there
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is not what I am
Clarence Thomas
Nominee
(R)
Judge THOMAS. That does not mean, however, that there couldn't be a case that argues or uses the ninth amendment as a basis for an asserted right that could come before the Court that does not— that the Court or myself, if I am fortunate enough to be confirmed, would not be open to hearing and open to deciding.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU are saying that you would have an open mind on ninth amendment cases?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I ask that because you have expressed some very strong views, as you know better than all of us, on the ninth amendment. You had an article that was reprinted in a Cato Institute book on the Reagan years. You refer to Justice Goldberg's "invention," of the ninth amendment in his concurring opinion in Griswold. And you said—and let me quote from you. You said, Far from being a protection, the ninth amendment will likely become an additional weapon for the enemies of freedom. A pretty strong statement. But you would say, would you not, Judge, notwithstanding that strong statement, that if a ninth amendment case came before you, you would have an open mind?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, as I noted, my concern was that I didn't believe that—in such an openended provision as the ninth amendment, it was my view that a judge would have to tether his or her view or his or her interpretation to something other than just their feeling that this right is OK or that right is OK. I believe the approach that Justice Harlan took in Poe v. Ullman and again reaffirmed in Griswold in determining the—or assessing the right of privacy was an appropriate way to go.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is not really my point. The point I am making is that you expressed very strong views—and you have here, too—about the ninth amendment. My question is: Notwithstanding those very strong views you have expressed about the ninth amendment—pretty adverse views about it—would you have an open mind in a case before you where somebody is relying on the ninth amendment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The answer to that is, Senator, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But if you were to express similar views regarding the principles and reasoning of Roe v. Wade, you feel that 226 somehow it would preclude you from having that same kind of objectivity as the views you have expressed about the ninth amendment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't believe, Senator, that I have expressed any view on the ninth amendment, beyond what I have said in this hearing, after becoming a member of the judiciary. As I pointed out, I think it is important that when one becomes a member of the judiciary that one ceases to accumulate strong viewpoints, and rather begin to, as I noted earlier, to strip down as a runner and to maintain and secure that level of impartiality and objectivity necessary for judging cases.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Does that mean if you were just a nominee, a private citizen as a nominee to the Supreme Court, you could answer the question, but as a judge you cannot?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think a judge is even more constrained than a nominee, but I also believe that in this process, that if one does not have a formulated view, I don't see that it improves or enhances impartiality to formulate a view, particularly in some of these difficult areas.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. My time is up, but I am sure the judge realizes that we will probably havj to revisit this subject a tad more. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. The Chair recognizes Senator Kennedy for a moment regarding a clarification of a quote that was used this morning.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman. I think there was just one area of clarification. Yesterday I questioned Judge Thomas, and I used these words: Mr. Sowell goes on to suggest that employers are justified in believing that married women are less valuable as employees than married men. He says that if a woman is not willing to work overtime as often as some other workers, needs more time off for personal emergencies, that may make her less valuable as an employee or less promotable to jobs with heavier responsibilities. And then the judge went on and gave his response to that question. In a response to a question earlier this morning from Senator DeConcini, Judge Thomas said, "There were questions on—I think the comment yesterday by Senator Kennedy, I believe, was something to the effect that women who were married weren't as good employees. And as an employer and someone who has employed a significant number of women, I did not find that to be true and made that very clear." I would just like to ask consent that the record—I understood what Judge Thomas was trying to say this morning, and
Clarence Thomas
Nominee
(R)
Judge THOMAS. I did not intend to attribute Professor Sowell's quotes to you. [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. SO I would just ask consent that the record reflect that modification at the appropriate point.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I thought that was a little out of character there, Ted.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, the record will be corrected.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The Senator from Pennsylvania, Senator Specter. 227
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Judge Thomas, incidentally, last July on a monthly call-in show, there was a lot of interest by people in my State, and some people didn't really understand the process as to what we were doing. And it might be well just to say that when questions are asked, that does not suggest in any way a disagreement with your position, but an effort to draw out how you would function if confirmed as a Supreme Court Justice. In moving beyond your legal qualifications, we are following a practice of going into constitutional law very much as I had said in my opening when Chief Justice Rehnquist, as a lawyer back in 1958, stated the importance of having the Judiciary Committee get into questions of equal protection of the law and due process of law; and that in the thoroughness of our efforts to find out how you would function as a Supreme Court Justice, we do so because of the tremendous importance of the role of a Justice, illustrated by 18 decisions last year by a 5-4 vote. And if you serve as long or to an age of Justice Thurgood Marshall, who is 83, it would put you on the Court for 40 years, or until the year 2031. So I make those introductory comments, repetitious to some extent of what I said in my opening, to give some parameter as to how I see the confirmation hearings, and the importance of the separation of powers, and the Senate's role in advice and consent. Because under our system of government, the President nominates, the Senate consents or not, and then the Justices on the Supreme Court have the final word in so many issues of such tremendous importance. Judge Thomas, in my opening yesterday, I outlined the key focus on my concern, and that is on the very fundamental issue as to the Supreme Court's interpreting law and not making law. And there has already been considerable discussion about that subject, and you have articulated your view that the Court should defer to constitutional intent and should interpret law and not make law. You have dealt, as Chairman of EEOC, with many very important Supreme Court decisions, and there are quite a number that I would like to discuss with you. But I want to start with one for illustrative purposes—and I could pick many—and that involves the case decided by the Supreme Court back in 1987 where a woman had applied for a job as a road dispatcher. There were 238 positions, all held by men. She was competing with a man named Paul Johnson in the transportation system of Santa Clara County, which is the name of the case. Mr. Johnson had a better test score, but as part of an affirmative action program, no quotas but affirmative action, the employer gave the job to the woman. You had commented about this case in a speech which you made in 1987, and I would like to make available to you two speeches and one article so that you can have them available during the course of my questioning. I agree with Senator Simpson; they all ought to be a part of the record, and I would ask unanimous consent, Mr. Chairman, that they be placed in the record so that the totality of what Judge Thomas had to say in those speeches is apparent. In the course of the speech in 1987, you said this: "Let me commend to you Justice Scalia's dissent, which I hope will provide guidance for lower courts and a possible majority in future deci- 228 sions." The comment about guidance for lower courts we will come back to. Perhaps it will be for Senator Simon. He raised that preliminarily yesterday. But the point that I will focus on at the moment is Justice Scalia's dissent as possible guidance for future decisions. You then said—in the article on "Assessing the Reagan Years" in the compilation by Mr. Boaz, while you did not say that they were enough, you refer to "quick-fix solutions such as the appointment of another Justice with the right views." You further note in the Boaz article that, "In each case"—and now you refer to a series of them, including the Johnson decision— In each case, Congress could have reinterpreted its legislative intent to rebut the interpretation of Justice Brennan in Weber, but, of course, it—referring to Congress—"demurred." You have commented very extensively about your view of the Congress. I don't quarrel with your view of the Congress except as it relates—and I don't even quarrel with it then. I just want to find out your views concerning the Supreme Court as to carrying out constitutional intent. And in a speech on April 8, 1988, a copy provided to you, you said, "Congress is no longer primarily a deliberative or even a lawmaking body. There is little deliberation and even less wisdom in the manner in which the legislative branch conducts business." Members act for "their own interests." "Interests of few take precedence over interests of the many." Now, my question to you is: In a context where you think the Johnson case should be overruled, and in the context where you have articulated your regard, such as it is, for Congress, and you have—I really don't quarrel with your view of the Congress. A lot of people have that view of the Congress. I really don't. And I think it is important to back up for just a minute on some fundamentals for a lot of people who were listening, and that is that Congress makes the law, we make public policy, and the Court is supposed to interpret the law. And we all agree on those rules. And there are a lot of illustrations where Congress has overruled what the Supreme Court has done on legislative intent where Congress doesn't like what the Court has done. And I would ask unanimous consent at this point, Mr. Chairman, that a list of some 23 decisions which Congress overruled between 1982 and 1986 be inserted in the record. And we could talk about those at great length, but the point is that Congress does know how to overrule the Court on matters of constitutional intent.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. They will be included in the record. [The information follows:]
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But here you have been explicit in the quick fix of judges who have the right view. You have identified the Johnson case as one where you hope that the dissent will provide the basis for a majority when judges are added. You have stated what you think of the Congress. And the question is: What assurances can you give to the Senate that you will follow constitutional intent as opposed to your own public policy views on those cases?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, when one is involved in the midst of a debate in the executive branch and advocating a point of view, as I alluded to earlier, one continues to advocate that point of view as an executive. When I moved to the judiciary, as I noted earlier, I ceased advocating those points of views. I think that you can have the comfort of your position, and I felt that in those cases that the constitutional intent was one of nondiscrimination that was explicit in the language of the statute and clear in the language of the legislative history. That was my reading of constitutional intent. Of course, the Court took a different point of view, and those of us who may not have agreed with that point of view simply had to swallow hard and go along. I might add here that I think—and I feel very strongly—that this matter of disagreeing over what the appropriate remedies are—and this, just parenthetically, does not in any way indicate the depth of my commitment to fighting discrimination. I think it was an important disagreement as to how far you can go with your efforts to move people into the work force that you believe should be in the work force who had been left out, and the effort of trying to also preserve that notion of fairness and nondiscrimination that I thought was central in the statute. With respect to my disagreements with Congress, I think that those of us who were in the executive branch—and I am certain that those who are in Congress have their disagreements with the members of the executive branch, that there is tension between the two political branches. And certainly I have had a sufficient number of oversight hearings and a sufficient number of battles to know that that tension was alive and well. But when one goes to the judiciary, I think it is important to remain neutral in those policy battles, and that is something that I have certainly attempted to do. With respect to whether or not a policy point of view or a view that I advocated as a member of the executive branch will undermine my ability to rule on cases as a judge, my answer to you, Senator, is that it will not. I advocated as an advocate, and now I rule as a judge. And I think that that is important. I think it is an important distinction. I think it is a requirement that I be impartial, and I have attempted to do that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Thomas, I am going to come to the issue of remedies, and I can understand your disagreement on oversight. Both of those are different issues. And I understand your assertion of impartiality, and I do not question it. But where you have repeatedly over such a long period of time expressed a very strong view as to congressional ineptitude—and you did that in the Fullilove case: "What can one expect of a Congress that would pass the ethnic set-aside law?" And you have, again in the speech on 232 April 8, 1988, referred to the extensive policymaking role of the Court: "When they have made important —referring to the courts—"made important political and social decisions in the absence of majority support, they have only exacerbated the controversies they have pronounced. If the Court rules in the presence of majority support, does that give the Court any license to act? It suggests that it does. The problem I have, Judge Thomas, is that if you take a large body of your writings, where you disagree with these cases and you disagree to the core with the congressional function, what assurances will we have that you will respect congressional intent?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I throughout my writings—and I can't find all the quotes now—made it clear that those difficult policy decisions debating the large issues are precisely the role of Congress. There may be disagreements when one is in the executive branch, but those disagreements cease and policymaking debates cease when one goes to the judiciary. The difficulties that I have expressed differences, particularly as one who has been involved in the oversight process, but I think I have made it clear that the legislative function of Congress, that the oversight function of Congress are very appropriate. And, again, I can't go back through all the speeches, but my view would be that the Court—it is the Court that cannot legislate, not Congress, and that the Court would be misplaced in attempting to establish policy, not Congress.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Thomas, I am not talking to you about oversight now. That is the second time in response to a question about carrying out congressional intent you have referred to the congressional oversight function. I know you had very severe disagreements, and I hope to have a chance to ask you about that later. But congressional oversight is very different from a clear-cut expression of congressional intent. We had Justice Scalia before us, and it has already been referred to, the difference and what happens on the bench as opposed to in the nomination process, and that is understandable. Justice Scalia doubts that there is any such thing as congressional intent. And when he writes about the absence of congressional response—and this is enormously important because we have the 1964 Civil Rights Act. And it was interpreted in 1971 by a unanimous Supreme Court in an opinion written by Chief Justice Burger. And Congress was satisfied with that interpretation, left it alone. Then 18 years later, the Supreme Court comes up 5-4 and changes that law and does so with four Supreme Court Justices who put their hands on the Bible in this room, or similar rooms, swore to interpret the law and not to make new law. Justice Scalia writes in his dissent in the Johnson case that when Congress doesn't act, it could be a result of many things, including political cowardice. I think Justice Scalia might have a point, but the major area of congressional or Senate political cowardice perhaps came when we didn't ask him very many questions in his confirmation hearing. I would be interested in your observation. I won't ask you what you think of Justice Scalia's comment, but I will re-ask the question that Senator Grassley put to you. When Congress doesn't act, 233 would you agree that that is a sign that Congress doesn't think anything should be done?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that if there is a long-standing interpretation of a congressional legislation
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Is 18 years long enough, like in Ward's Cove and Griggs?
Clarence Thomas
Nominee
(R)
Judge THOMAS. If there is a longstanding interpretation and Congress does not act, that certainly would seem to be considerable evidence of Congress' intent. And it certainly would be, at least from my way of looking at a statute, evidence that cannot be ignored in revisiting that particular statute.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. TWO subquestions. No. 1, is 18 years long enough?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Eighteen years is quite a long time. I don't know whether we could put a mathematical or a numerical standard on that, to have that kind of quantification as to whether or not that would be enough not to revisit a statute. But I think that when you have a statute that has been interpreted for that long a period, that is so well known, that Congress is very aware of, that it would be an important consideration in finding that to be the appropriate interpretation, the fact that Congress didn't act for such a long time.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Thomas, I have a problem, and I am not saying any of this is determinative. We are just talking about your approach as a prospective Justice if confirmed. But I have a problem with long enough not being enough in the context of Griggs and Ward's Cove, and I have a problem with "cannot be ignored," which are your words, as opposed to being determinative. It seems to me, that when a unanimous Supreme Court decision stands for 18 years, that is long enough. Or if it is not, I would like to know what is long enough. And when you talk about "cannot be ignored," I would look for something more there as to a sign of what does establish what the Congress expects the Court to do.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The point I was attempting to make, Senator, was this: That when Congress doesn't act, I think it is more difficult to determine precisely why Congress doesn't act. For example, if Congress takes an explicit action and fails to change a particular statute, then that might be more evidence than simply not doing anything. But the additional point that I was attempting to make was this, that the fact that Congress did not act for 18 years is an important consideration in determining whether or not the prior ruling or the prior interpretation was the correct interpretation. It would be a part of the calculus of legislative history. I think it would be going too far to say definitively that definitely 18 years or 15 years or 10 years is the cutoff period, but I understand the point that you are making and I do not think that a judge or a court can simply ignore the fact that Congress has not acted in an important area.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Thomas, in my questioning you on how you handle the cases of Johnson and also the predecessors of Weber and Fullilove, we do not have time to go into all the facts now, I do so for a number of reasons. One is the one we have already examined, and the other is that you had shifted a position on it, that in 234 1983 you appeared to be in agreement with Fullilove and with Weber, and then your reconfirmation hearings came and you agreed to abide by them, and they relate to your approach to affirmative action and to your development of your legal thinking as you have taken the problem of discrimination and racism and how you have analyzed affirmative action, and in your career in the early 1980's stated that you favored it, and then appeared to accept the Supreme Court decisions, and then later disagreed with those decisions, although you agreed to abide by them, and still later just absolutely plundered those decisions with the very strong hostile comments about Congress. In your writing, Judge Thomas, you have made a very strong comment that I agree with. You said that the Dred Scott decision upholding slavery and Chief Justice Taney's opinion in that decision provide a basis for the way we think today. You wrote that in 1987, "Racism and discrimination are deeply rooted in the history of the United States." I agree with you about 1987 and 1991. And then there was the article by Mr. Juan Williams in Atlantic Monthly, which sought to provide an understanding of your philosophy and your approach to programs against discrimination, and quoted you as saying this, and these are the words which he says are yours, "There is nothing you can do to get past black skin. I don't care how educated you are, how good you are at what you do, you'll never know the same contacts or opportunities, you will never be seen as being equal to the whites." Now, given that very strong statement, black skin, given your very strong statement about things being in 1987 like they were in the 1950's in Dred Scott, and given the fact that it is just not possible for the Equal Employment Opportunities Commission to take care of all the cases, one by one, why is it that you come down so strongly against any group action to try to put minorities or African-Americans in the position that they would have been as a group, but for the discrimination? This is a broad subject, but let's get it started with just a few minutes to go of my time.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that over my years in public life, as well as my adult life, I have made it clear what I think of racism and discrimination. I made it clear during my tenure as the Chairman of EEOC that it had to be eliminated, and I did everything within my power. I have also, even in the heat of debate, attempted to talk reason, even though I, like perhaps everyone else, was susceptible to the rhetoric in that debate. I think that we all have to do as much as possible to include members of my race, minorities, women, anyone who is excluded into our society. I believe that. I have always believed that, and I have worked to achieve that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. What is the best way to do it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. And that is the question, how best to do it. I think that you have a tension, you want to do that and, at the same time, you don't want to discriminate against others. You want to be fair, at the same time you want to affirmatively include, and there is a real tension there. I wrestled with that tension and I think others wrestled with that tension. The line that I drew was a line that said that we 235 shouldn't have preferences or goals or timetables or quotas. I drew that line personally, as a policy matter, argued that, advocated that for reasons that I thought were important. One, I thought it was true to the underlying value in the statute that would be fair to everyone, and I also drew it because I felt and I have argued over the past 20 years and I felt it important that, whatever we do, we do not undermine the dignity, self-esteem, and self-respect of anybody or any group that we are helping. That has been important to me and it has been central to me. I think that all of us who are well-intentioned, on either side of the debate, at any given time, wanted to achieve the exact same goal. I would have hoped, if I could revisit the 1980's, that we could have sat down and constructively tried to hammer out a consensus way to solve what I consider a horrible problem.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But the problem I have with that response, if you take a case like Local 28 of the Sheetmetal Workers, where the New York City Human Relations Commission cited them for discriminatory practices in 1964, and EEOC finally brought a lawsuit in 1971, and there was a finding of discrimination in 1975, and there was a court order to correct that discrimination, which there was contempt in 1977 and again in 1982 and contempt again in 1983, and you have written that you are astounded that there is more of a penalty for breaking into a mailbox than for discriminating against a minority or African-Americans, and you have advocated jail sentences and heavy fines for those who are in contempt of court, and you have this kind of outrageous conduct that spans a 20-year period, and then EEOC comes in at the latter stages of this litigation in the 1980's and takes a different position and argues against the court orders to stop the flagrant discriminatory practices and the practices which have been labeled by the courts repeatedly in violation, contempt of court, and you criticize the Supreme Court's decision in trying to do something to deal with proved discrimination, not taking a class which wasn't discriminated against and giving them a boost forward, but in dealing with laborers who were discriminated against, judicial determinations, contempt citations, ignoring by the people who were the discriminators, and you, as Chairman of EEOC come in and oppose it, and then you sharply criticize the decision of the Supreme Court of the United States in upholding that kind of a remedy. That seems to me to come right within the purview of what you say ought to be done to remedy active discrimination, and yet you take the other side.
Clarence Thomas
Nominee
(R)
Judge THOMAS. With respect to the weight of that case proceeded through the court, Senator, the Commission itself, to my knowledge, did not approve and it was not required to approve that litigation, because the general counsel had already been authorized at the lower courts to pursue that, but the point is well taken. My view with respect to cases like that has been that, as a policy matter and one that I have stated clearly on the record, is this: I think that, rather than a court attempting to punish these individuals with a quota or preferential treatment, I thought that in this case and in the egregious cases there could be criminal contempt citations, I felt that there should be appropriate roles for heavy fines, I think or I felt that individuals who discriminated against 236 other individuals should be subject to the same kinds of fines and penalties that are available in some of the antitrust litigation. I felt that there was an undervaluation of the effects and the damage done by discrimination, and I felt that this kind of a case was very susceptible and appropriately susceptible to criminal contempt citations.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I have been handed a note that my time is up, and we will return to it with my first question being why did EEOC, in your tenure, join with petitioners in trying to upset the contempt citation and taking the position that the discriminators ought not to be held for contempt and ought not to be punished. Thank you, Judge Thomas. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Judge Heflin. Senator Heflin. Just so everybody does not think it was a slip, you were a judge. Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge Thomas, I try to approach these hearings on the basis of fairness, fairness to you, fairness to the President, fairness to your opponents, and try to consider all of the evidence before I make up my mind. I tried to follow that procedure in the other confirmation processes, not only of the Supreme Court Justices, but of all appointments to the judiciary. So, I do not at this time have any firm opinion one way or the other. I have done a good deal of reading and tried to listen to testimony. Of course, it has entered into my mind from your testimony, as opposed to some of the spoken and written words that you have given in the past, an appearance of confirmation conversion. Now, this term is a term that came from the mouth of my colleague Senator Leahy here in the Bork hearings, which would indicate that the confirmation processes cause one to change his mind or to give answers that will hurt him in regards to seeking the confirmation. But it also can raise issues that can affect the evaluation that members of the committee may give as to integrity and temperament. Now, in reading some of the articles and reading speeches that you had given beforehand, most of them in about the last 5 years, or at least since you have been on the EEOC, not back when you were 20 years of age or 25 or 30, but fairly recently, there appears to be a conflict on natural law between what you have stated in the past and what you state here at these hearings. You are stating in these hearings basically that you do not think that natural law ought to be used in constitutional adjudication. Some interpretation—and it depends on how you interpret your written and spoken words beforehand—would lead one to believe that you had previously advocated the use of natural law in constitutional adjudication. Now, natural law, of course, is a term that is broad and there seem to be at least two schools of thought, and there may be many others, one a liberal school of thought, another a conservative school of thought on the use of natural law. Those who are of the conservative viewpoint indicate that it would be using the ninth amendment, where there is no deprivation of unenumerated rights that a judge could pick an unenumerated right, something that he said was and then defend it under the concept of natural law. 237 On the other hand, from a political theory viewpoint on possible constitutional adjudication, there are those that advocate that natural law be used as a defense for judicial restraint, as being a defense for limited government and being a defense for economic freedom and certain other freedoms. As has been pointed out, those that would advocate the use of natural law, and there have been those in the past in the Supreme Court decisions, particularly in the Lochner era, who say that the economic right of the freedom to contract should be allowed, without any government restrictions, and, therefore, that minimum wage laws, health laws, job safety-type laws are restrictions against the right to contract and economic freedom, and, therefore, they follow the concept of judicial restraint or follow the concept of limited government. Now, you have been asked some questions about this issue and you, of course, have very clearly stated that you do not believe that natural law ought to be used toward constitutional adjudication, and you have mentioned that you so testified in your court of appeals hearing, and that was quoted to you from the court of appeals hearing, statements that you made, and this appears—and I want you to have an opportunity later to read it, and you can give a fuller answer after you are thoroughly advised, because it is not my purpose to ambush you or to make any statement, without you having a thorough right to review what you said before. But here you say: But recognizing the natural rights is a philosophical, historical context of the Constitution, is not to say that I have abandoned the methodology of constitutional interpretation as used by the Supreme Court. In applying the Constitution, I think I would have to resort to the approaches that the Supreme Court has used. I would have to look at the texture of the Constitution, the structure, I would have to look at the prior Supreme Court precedents on these matters. That is what was quoted to you. The next sentence says—and this was your answer then—"and as a lower court judge, I would be bound by the Supreme Court decisions." Now, reading that answer, it is subject to two or more interpretations. One is that you were speaking of natural law as it would apply to your functions as a court of appeals judge, and the other would be whether you would apply it as to the broad general theory of constitutional adjudication. Now, if you want to read this and read the whole thing, I will do it, or if you want to answer as to where it may have an appearance of either an ambiguity or of being contradictory. Whatever you want to do, if you want to study it and read it and give me an answer later, or if you want to give me an answer now.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Let me comment on what you have said, Senator. My view is that I have been consistent. On natural law, my interest, as Chairman of EEOC, was as I have stated. It was as a parttime political theorist, someone who was looking for a positive way to advance the ball with respect to individual rights in our political debates, as well as on the issue of civil rights. I have not advocated or suggested that it should be used in consitutional adjudication. Our Founders and our drafters did believe in natural law, in addition to whatever else, philosophies they had, and I think they acted to some extent on those beliefs in drafting 238 portions of our Constitution, for example, the concept of liberty in the 14th amendment. I think that knowing what their views are is a context for understanding our Constitution, knowing what they believed in is a context for understanding the separation of powers or perhaps even understanding the notion of limited government and the rights of individuals. But when the rights are in the Constitution, then one resorts to constitutional adjudication. Now, the beliefs of the Founders could be a part of the history or tradition to which we look, but you do not make an independent search of natural law, and I have not suggested that. I think my writings have made clear that natural law is the background of our Constitution, that it does not move to the front and that it is not positive law. They are two separate things.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEPLIN. YOU have indicated that your writings and speeches were directed toward natural law more as a political theory and you have used the illustration dealing with slavery. How is slavery related to a political theory?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, the issue there was for Abraham Lincoln, how do you, when the stated ideals of our country are that all men are created equal, how do you end slavery, and what is the underpinning, what does that promote in our country, the notion that all men are created equal. Once you have the adoption of the 13th and 14th amendments, you have a positive law, but I think it was important to understand what that meant. It is just a notion, for example, of why do we feel strongly that apartheid is wrong, why do we feel strongly that discrimination is wrong, outside of the law. But my point is very simply that Abraham Lincoln was sitting here, I think at the time I had read "The Battle Cry of Freedom," I wondered how or what gave him the strength to survive the onslaught that he was faced with, and it was then that I began to refer back to his beliefs and the beliefs of the abolitionists as a backdrop to the Constitution, as a background to the Constitution.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEPLIN. I am going to ask that someone on the staff here hand you two documents. One is a speech to the Federalist Society, an address, University of Virginia, March 5, 1988, and the other being an article that appears in the 1988 Harvard Journal of Law and Public Policy, entitled "Higher Law Background of the Immunity Clause of the Fourth Amendment," if they will hand you that. Again, if any question that I ask, if you want to have time to read or review those, I would certainly want to do it, because I will have another opportunity to ask you questions, where you can fully understand it. These two appear to have much relationship. This speech appears to be a speech, and then it appears that it was put in more of a law review form and was published. Is that a correct
Clarence Thomas
Nominee
(R)
Judge THOMAS. What you do normally with these is that you give a speech and the review edits it and converts it to a law review piece. That is essentially what happens.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I see. Now, on the speech, on the first page, if you will look, tell us, bearing in mind as to whether or not you at that time were expressing a view that higher law or natural law— 239 as I understand it, they are used interchangeably—could be used as a part of constitutional adjudication. Now, on the speech, starting it, you say: I appreciate this opportunity for a practitioner, the head of a law enforcement agency, to give his opinion on our subject. I do not pretend to be a legal scholar, but I have a strong practical interest in the crucial part of our conference topic, namely, the grounding of our Constitution in higher or natural law. The expression "unenumerated rights" makes conservatives nervous, as it gladdens liberals, for the reasons our previous discussions here have indicated. I want to take a different approach to this theme, which provides necessary background for the very abstract issue of the privileges or immunity clause today. Briefly put, I argue that the best defense of limited government and the separation of powers and judicial restraints that flow from that commitment to limited government is the higher law political philosophy of the Founding Fathers. Far from being a license for unlimited government and a roving judiciary, natural rights and higher law arguments are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of a court that is active in defending the Constitution, but judicious in its restraint and moderation. Higher law is the only alternative to the willfulness of both run-amuck majorities and run-amuck judges. Now, in regards to the question of higher law, how do you interpret that? It seems to me that you are advocating or at least it has the appearance—maybe I withdraw saying it appears to me, because I have not made up my mind, but it at least appears that that is an advocation of the use of natural law toward constitutional adjudication.
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is not, Senator. The point there is that, in our regime, if you notice, I speak to the higher law political philosophy of the Founders. Their philosophy was that we were all created equal and that we could be governed only by our consent, and that we ceded to the Government only certain rights, and that, to that extent, the Government had to be and was a limited government. But beyond that—and the judiciary, of course, was a part of that limited government—but in no sense, and I do not mention here or say higher law should be pointed to in adjudicating cases. It is nothing more than the background, the—I think I say here provides the necessary background, it provides us an understanding of our form and our structure in our Government. It is not a methodology in constitutional analysis. I think it would have been easy enough to have said that directly.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, you use the words "higher law is the only alternative to the willfulness of both run-amuck majorities and run-amuck judges." Now, how can higher law through a political theory serve as a protection against willfulness of run-amuck majorities or run-amuck judges?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The theory would be, Senator, essentially this: That the individual is to be protected, that the individual can only be governed by consent, so that the majority cannot take rights away from the individual that have not been conceded or that have not been consented to be given to the Government by that individual. It is not a notion that in your adjudication you look to this higher law. It is simply an explication or an indication that this is the theme of our underlying background political philosophy and that the Constitution protects these rights. 240
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right. If you turn to page 7 and 8 of that speech, you make this statement starting at the beginning of the last sentence on page 7: Similarly, an administration inspired by higher law thinking would not have argued on behalf of Bob Jones University. The higher law background of the American Constitution, whether explicitly appealed to or not, provides the only firm basis for a just, wise, and constitutional decision. I am taking that out of context. If you want to read
Clarence Thomas
Nominee
(R)
Judge THOMAS. The point there was that I felt that as a policy matter, as a political branch of our Government, that the administration of which I was a part made an inappropriate decision about being involved in the Bob Jones University case; a decision that had it been informed with the notion that we were all created equal or the notion of how important it was not to have discrimination in our society, that it—not the courts but our administration— would not have made as a policy matter. I thought it was a wrong decision.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right, sir. Now turn to your law review article. Again, you—by the way, that thing that Senator Leahy was talking about, that footnote, I believe, appears here if you wanted to later, when Senator Leahy returns—it is footnote 2 on the first page. I think basically the first part of that you use the term "runamuck majorities" and "run-amuck judges" in that regard. But in the context of economic freedom or the freedom to contract on the concept of higher law, if you were to read it in that context, "Moreover, without recourse to higher law, we abandon our best defense of judicial review, a judiciary active in defending the Constitution but judicious in its restraint and moderation. Rather than being a justification for the worst type of judicial activism, higher law is the only alternative to the willfulness of both run-amuck majorities and run-amuck judges." Now, in the context of economic freedom, right to contract, and the fact that any governmental restrictions placed upon those freedoms would be, in effect, restrictions and could be looked upon as being run-amuck majorities, do you still maintain that that does not—well, I am just saying it is subject to an interpretation that you are referring to constitutional adjudication there.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am not in this sentence. Let me make a point about my interest in the economic aspect of this. I was asked on—I did not just simply sit around and spend time just trying to spin theories. I had certain experiences that prompted me to think about some of these issues. And with respect to the issue of having a right to run my grandfather's business, for example, I simply looked at what in theory was his right. After slavery, what was his right or the rights of people who were near me, who lived around me, to just simply use their land and grow their food and be able to eat it or to sell it? Those were the kinds of examples that I would use. I, for example, remember vividly my grandfather, whom I thought was a strong man—and when you are small, it is a giant of a man, and certainly a man with great pride. He would literally have to get a drink before he went to the licensing bureau in Savannah to get 241 the license that he needed to drive his oil truck. Those were the kinds of questions I was looking at. Now, I did not intend, first, to say that this was a basis for constitutional adjudication. I think I could have said that if I had intended that. The second point is that I have said and I believe that the Lochner era cases were properly overruled and that the health and safety—the Court does not serve as a superlegislature over this body or the political branches.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, you said you could have stated that. On the other hand, in all of these writings on natural law, you could have made the distinction, could you not, that you were speaking of a theory and not a constitutional adjudicatory process?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, if I were a judge, if I gave some of these speeches after I went to the bench, I would have made that distinction. But at the time, I was not a judge and certainly did not think at that time that it was necessary to draw that distinction when it really at that point wasn't relevant. I felt, as I stated in my hearings for the court of appeals, that this is political theory. This is not constitutional adjudication or methodology. And I stand by that. I think the distinction is an important one, and it is one that certainly I didn't draw a clear and exacting line sometimes, simply because I wasn't in the judiciary. I didn't say I am not saying this or I am not saying that, but it was not my intent at any point to provide a basis for adjudicating constitutional law cases.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In this article in the Harvard Journal of Law and Public Policy on page 66, this statement appears: To believe that natural rights thinking allows for arbitrary decisionmaking would be to misunderstand constitutional jurisprudence based on higher law. That appears—it has the appearance of advocating natural law in the field of jurisprudence and decisionmaking on constitutional adjudication.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, no, I still—my point is that—and jurisprudence that I would use there would be in the broadest sense. I still take the position and took the position then that this would serve as a background to understanding what our Constitution was for. I was not speaking as a judge. I was not setting out rules of analysis or adjudication. I was trying to establish a sense among conservatives or among the audience that here is the background to our Constitution. Now, our Founding Fathers took bits and pieces of what they believed may have been natural law, and they placed that in the Constitution. But once it is in the Constitution, it is no longer required that anyone refer to natural law. It is a part of our positive law. And I think that that is the appropriate distinction. It is the one that I certainly attempted to make there. At no point did I intend to say, look, this is an approach or methodology for constitutional adjudication. And that was the point I attempted to make again in my court of appeals confirmation. It has no role. I think that if as a judge I had stated here is a new approach for constitutional adjudication, then I think you would be right, that there would be concern. But I was speaking solely as a chairman of 242 a commission who was interested in this debate and advancing this idea, but not in adjudicating cases.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. The concept that natural law is a political theory, most political theories that are developed involve protections, adjudicatory concepts, or processes. You eliminate as a part of the comprehensiveness of the natural law theory or natural law philosophy the protection of rights or adjudicatory rights. Now, in most political theories, you would have something, if it is adopted, that would provide for protection, which is judicial decisionmaking. Are you separating from the natural law theory adjudicatory processes?
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I am saying, Senator, is this: That the individuals who drafted our Constitution, let's say our 14th amendment, the abolitionists, for example, believed in natural law. And to the extent that they reduced it to a positive document, it appears in the Constitution. But one need not appeal to whatever they believed beyond the understanding of what they intended to do, that the law—that our rights don't flow from what their beliefs were, but rather from the appearance of those rights in the Constitution.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, if it became positivism or the positive law of the Constitution, then why is natural law being advocated? The concept that if it is constitutional law, if natural law has progressed to the extent that it is positivism, it is a part of the Constitution, then why all the great discussion today on natural law?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, for me it was just a matter of discussing and understanding the issue of slavery and the issue of the underlying values and the underlying ideals of our country. I thought it was important. I thought it was a way of discussing an issue that was important to me, rather than simply constantly arguing about goals and timetables and quotas. It was a way of attempting to find a way to—a theme to unify us on this debate and a way to convince individuals whom I felt should be supportive of civil rights. And I am not saying that it worked. I certainly never thought that I would be having this discussion about it. And I did not intend it certainly as a method of adjudication.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, let me ask you this last question. I understand my time is about up. How does natural law as a political theory provide protection for limited government or for judicial restraint if that political theory excludes constitutional adjudication?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, it offers an understanding of why it was necessary or why our Founding Fathers felt that we should have a government that did not infringe on the rights of individuals or a government by consent rather than our rights emanating from that government. It gives us an understanding of why government ought to be limited, why it ought not to intrude on the individual, why there is a line between the individual and the government. It gives us a sense of why the government shouldn't require that black people live over here or white people live over there. But it doesn't adjudicate it. It gives us an understanding of why slavery was wrong, but it doesn't provide for the manumission of slaves. That had to be done by the Constitution. 243 Again, it is theory. It was an endeavor that I thought was an appropriate endeavor at that point in my career. I did not intend for it to involve constitutional adjudication.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Before we take a break, just out of curiosity, you keep talking about the need to get conservatives to be more supportive of civil rights. Does that mean they are not supportive of civil rights? I am not being facetious, because it goes to the question of your intentions here. Are conservatives supportive of civil rights?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I was giving them reason to be strongly supportive and more aggressively supportive of civil rights. I don't think they were necessarily against civil rights, but I thought that there was a comfort level in being opposed to quotas and affirmative action. And I thought that we should advance the ball, that the issue of race has to be solved in this country and that we have to stop yelling at each other and we have to stop criticizing each other and calling each other names. And I was involved in that debate, and I was a pretty tough debater, too. But at some point we have got to solve these problems out here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think the State Department is the place for you, Judge. [Laughter.] We will recess, to give you a chance to have a break, for 10 minutes. [Recess.] The CHAIRMAN. The hearing will come to order. Senator Brown?
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. Judge Thomas, I have heard a number of criticisms of the chairman's style of conducting this hearing. The substance of those criticisms have revolved around the fact that he clearly is too soft on you, has not brought the tough questions out. And I just wanted to serve notice on the chairman that this love-in that he seems to be presiding over will come to an end. Reflecting on my own children—I have two daughters and a son—it is clear to me that if I want to get the inside information on my son, I ask one of his sisters, and we intend to call your sister as a witness later on, whenever the chairman will allow that measure. I don't know if that is
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU just scared the living devil out of him. He is not sure whether you are serious. [Laughter.] See the look on his face. He is only kidding, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would be more concerned if he called my brother.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I think we can make arrangements for that, too.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, let me correct the record. That is Clarence's sister there and not his daughter. We want to get all this sibling stuff straightened out.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS far as his sister is concerned, she would rather it not be corrected, she would rather be a daughter.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Judge, earlier in this hearing you were asked about the right to privacy, and as I recall your answer, you indicated that you recognized a right of privacy within the Constitution. Since that is one of the cornerstones that leads to decisions in- 244 volved in Roe v. Wade, I think that was of some real significance and interest to this committee. You have been asked specifically about Roe v. Wade, and you have declined to answer on the grounds that you may well be called upon to rule on those specific issues as a judge of the Court. I would like to ask a related question that is slightly different. I can understand the reluctance to indicate how you would rule, but I would be interested to know if in your own mind you have come to a decision on the right to terminate a pregnancy. I am not asking what that decision is, but I would like to know within your own mind if you are at a point where you have decided that.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think, as I have noted earlier, that for me to begin to state positions, either personal or otherwise, on such an important and controversial area, where there are very, very strong views on both sides, would undermine my impartiality and really compromise my objectivity. I think that it is most important for me to remain open. I have no agenda. I am open about that important case. I work to be open and impartial on all the cases on which I sit. I can say on that issue and on those cases I have no agenda. I have an open mind, and I can function strongly as a judge.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Well, I thank you. I think that willingness to look at the facts and review them objectively is an important factor for us to look at. Mr. Chairman, I think it is appropriate here to at least put into the record something that was said by Justice Marshall upon his confirmation. He was asked by a variety of Senators to indicate how he would have ruled on a number of cases. The Miranda case was brought up as well as several others. In the Miranda case, or at least in response to the Miranda case, Justice Marshall said this, and I quote: "I am not saying whether I disagree with Miranda or not because I am going to be called to pass upon it. There is no question about it, Senator. These cases are coming to the Supreme Court." Justice Marshall remarked at a different stage of the hearings, My position is—which in every hearing I have gone over is the same—that a person who is up for confirmation for Justice of the Supreme Court deems it inappropriate to comment on matters which will come before him as a Justice. I thought it appropriate to have that in the record. The position you have taken with regard to announcing an opinion in advance of hearing the case is certainly in line with other people who have been advanced to the Supreme Court, and in this case specifically Justice Marshall. But I must say I do appreciate your answer to my question. I think a critical issue for us here is to know that you are willing to listen to the facts in those cases.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If the Senator would yield, did you have more than you read that you want to place in the record?
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I think I would leave it at that, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Second, did the witness answer your question? I didn't think he answered your question. That is, did he make up his mind? Not what is it, but just has he made up his mind?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I indicated that it would be inappropriate to explain to him or to say whether I did or not. 245
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. At least my interpretation—and I appreciate the chairman mentioning this. At least my understanding was that the judge indicated that his mind was—he was willing to listen to the facts on this, and his mind was open in terms of this particular case. Have I
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is correct.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I am assuming that you have not made a final decision in your own mind on the Roe v. Wade case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Earlier the chairman had brought up I thought some very important questions involving economic rights in the Constitution. I know you commented further on that and answered Senator Hatch's question specifically with regard to several lines of cases that I know our chairman was concerned about. In addition, you had commented with regard to whether or not you would be a disciple of several philosophers that were mentioned, indicating that you would not. I would like your views, though, on a different aspect of this economic question. As I just glance through the Constitution, we have a variety of provisions in the Constitution that deal specifically with property rights: Articles I, IV, VI; amendments II, III, IV, V, VII, XIII, I suspect many others. These are property rights, economic rights if you will, that are specifically addressed in the Constitution and protection provided. It has been suggested, I think by the chairman, or at least an observation, perhaps I should say, by the chairman, that in the past some Supreme Court cases have accorded property rights or economic rights a lesser degree of protection than other rights in the Constitution. My own view of it is that it is very difficult to separate rights. It strikes me that if someone cuts off your salary because you have said something, you may have denied freedom of speech but you have done it through a deprival of economic rights, property rights. At least it occurs to me that if the 13th amendment means anything, it means that you have justifiable property rights in the fruits of your labor. And if you are not going to protect the property rights of your labor, then the 13th amendment doesn't mean much. Now, I broach this subject because I think it is important. In my mind it is difficult to separate property rights and personal rights. It does appear to me that both are protected in the Constitution, and I guess I would like an indication from you as to whether or not you think property rights deserve a lesser protection in the Constitution, greater protection under the Constitution than other rights, or whether it is a balancing between rights when these questions arise. Would you share with us your view on that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, my point has been that property rights, of course, deserve some protection, and I think they are, as are our other rights, important rights. The Court in looking at the economic regulations of our economy and our society has attempted to move away from certainly the Lochner era cases and not as a superlegislature. And I indicated that that is appropriate, particular- 246 ly in the area as I have noted—the health and welfare, wage and hour cases. I think that some of those cases, the area, I think there is some developing in the taking area, and perhaps if I am fortunate enough to be confirmed to the Court, perhaps I would be called upon to rule on those issues. But I would be concerned about the diminishment or the diminishing, diminution of any rights in our society. But that is not to say in any way that I disagree with the standards that the Court applies to protecting those rights today.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you. I wanted to address the subject of stare decisis. It has been raised by other members of this committee. I think the distinguished Senator from Ohio has discussed the concern about the overturning of previous decisions and precedents. As I see the figures, from 1810 through 1953 we had a total of 88 cases that were overruled, where a previous decision of the Court was simply and flatly overruled by the Court. That is 88 cases in 143 years. Interestingly, I think, in the next 36 years, 37 years, we had 112 cases overruled. Really starting with the Warren Court on, you had a much greater movement on the part of the Court to overrule previous decisions. I mention that because apparently the modern courts, at least since the Warren Court, have been much more inclined to move in that direction, not less so, in terms of observing stare decisis. But at least I observe those cases as ones that were important landmarks: Brown v. the Board of Education addressing segregation; Mapp v. Ohio, an illegal search; the Gideon case, involving the right to counsel. These are areas where we have overturned precedent, but I think with a very significant and real reason behind those changes. I mention all of this because I wish you would share your view with us as to the kind of standards you are going to use in sitting on the Court as to whether or not you will choose to overrule a previous decision of the Court. What kind of standards are you going to be looking to apply?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that the principle of stare decisis, the concept of stare decisis is an important link in our system of deciding cases in our system of judicial jurisprudence. The reason I think it is important is this: We have got to have continuity if there is going to be any reliance, if there is going to be any chain in our case law. I think that the first point in any revisiting of the case is that the case be wrongly decided, that one thing it is incorrect. But more than that is necessary before one can rethink it or attempt to reconsider it. And I think that the burden is on the individual or on the judge or the Justice who thinks that a precedent should be overruled to demonstrate more than its mere incorrectness. And at least one factor that would weigh against overruling a precedent would be the development of institutions as a result of a prior precedent having been in place. But, again, I think the first step is that the precedent be incorrect, and the second step in the analysis has to be more than the mere incorrectness of that precedent. 247
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I am wondering if the standards that you will be applying will vary depending on the constitutional issues involved. Is this the standard you would apply in every area?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, that the standards that I gave you should be as uniform as possible. I don't think, for example, as I have read someplace, that the standard should be less for individual rights than for commercial cases. I did not understand that comment, but it would seem to me that individual rights deserve— or the cases in the individual rights area deserve the greatest protection and should be considered with the application of the highest standards of stare decisis.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you. I want to change subjects on you for a moment and take you back to the EEOC, during that 8-year period that you directed that agency, Commission. My recollection is that in 1983 you changed policy for the Commission, that the Commission adopted a resolution to shift its presumption in favor of rapid charge processing to one of case-by-case investigation. I wonder if you would be willing to outline for us this policy initiative, and if you would relate what kind of results it achieved or didn't achieve. What kind of changes occurred?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, when I arrived at EEOC in 1982, among the many problems that I incurred—and, indeed, there were many—was that the existence of a rapid charge system, that system was designed to reduce the backlog that had plagued EEOC for so many difficult years. I felt that the system, which in essence brought the charging party who filed the claim of discrimination and the employer together and required them to reach a settlement, without investigating and determining whether or not there was actual discrimination, I felt that that system shortchanged both parties. The Commission voted in the policy that as an ideal, felt that— or indicated that cases should be investigated as fully as possible before there is any determination. That took quite some time to implement. But the sense of it was this: That if someone—and there were approximately 60,000 charges filed a year. If someone filed a charge, that that person had the right to have it investigated and to have a determination made as to whether or not there was discrimination. One of the results of this approach is the increased number of cases that were litigated. I think also an important result was that we were more consistent, and I think more faithful to the statute that required us to investigate these charges. Again, this effort was not without its glitches, but I think it was a very important move in the right direction and brought about the appropriate results for an agency that enforces nondiscrimination laws.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. One of the changes that at least I have understood that you focused on during that period was an effort to automate the office, adopt computers and computer systems. I wonder if you could summarize what you did and whether or not you thought it was a wise investment.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, we automated in a number of ways. The first area that I was told when I was confirmed that I 248 had to clean up was the financial management area. The thenchairman of the Labor and Human Resources Committee told me that he would call me on the carpet if that was not done. We were able to automate that area and as a result achieved savings that we could then use to automate other areas. And then that necessity for automating is quite simply that when you receive 60,000 charges a year in 50 offices across the country, in order to manage and in order to understand your agency and in order to be able to understand the type of discrimination that is taking place in this society, you have to have a database. You have to have a database in each of the offices, and you have to have a national database to manage that national workload from the central office here in Washington, DC. One of the problems that you have when you don't have that database is simply you don't know what is going on in the agency. You don't know what changes there are, and quite frankly you have no idea what is in your workload except the most general of ideas. Without additional resources and over a period of time, we were able to build a database, to put the automated management systems in the offices across the country, and as well as develop a national database that is so important in managing our workload and actually enforcing the equal employment opportunity laws.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you. Judge, I must say I was shocked at hearing comments that you had made about Congress. Those harsh views are ones, of course, we have never heard before. As one who came to Congress some 11 years ago with the thought that we would balance the budget within a couple of years, the concept that perhaps a $250 billion to $300 billion deficit a year leaves something to be desired I suspect is not new to the American people. But sometimes saying the emperor has no clothes is not always the greatest help for you in the confirmation process. Be that as it may, I think the underlying question is an appropriate one, and that is: What will your attitude be as a Justice of the Supreme Court in reviewing the constitutionality of legislation in which you find yourself in disagreement with the policy judgments of Congress? Are you going to be able to separate out your objections to congressional policy in making the determination of whether or not that law is judged constitutional?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is one thing to be in the executive branch and to come back and forth to oversight hearings and budget hearings and to disagree on policy decisions and to argue and debate and advocate for a particular point of view. There is a tension there, and sometimes those of us who have been nominated and needed to be confirmed have deep regret about negative comments about this body or any body, but the appropriate role for a judge totally precludes being a part of that tension and that debate and that advocacy. A judge must determine what the will of this body is. A judge does not have to agree, a judge does not have to think it is the most wonderful legislation in the world. Indeed, that is irrelevant. The judge's role is, as impartially as possible, to determine what the will of this body is, and that is precisely what I have attempted to do in my current position as a judge on the U.S. Court of Ap- 249 peals for the D.C. Circuit, and never to supplant my personal views. As I indicated earlier, when I pick up a case for consideration, the first question I ask myself is what is my role as a judge in this case, and that role never includes bringing personal views or predilections to that case.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I appreciate that. I expect that is not the easiest portion of your duties or task. It would not be for me. You have mentioned several times in the course of these hearings your experiences in dealing with congressional inquiries involved in the various agencies you have either directed or been involved in. It is my understanding that you have appeared and responded some 57 times, in addition to the I guess 5 times you have been up for confirmation. I wonder if you would give us an idea, in those 57 inquiries, how much time was involved, what it involved on your part, your agency's part in terms of staff time, commitment of resources.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, Senator, I would have to put that inquiry into two separate categories. The least amount of involvement are the instances in which there is significant cooperation between the staff of a particular committee and the agency. The difficulty arises when there is, in the second category, significant disagreements or where there is significant information or document requests involved. But as a rule of thumb, when I prepared for a hearing, any of the hearings other than my own confirmation hearings, I would allow, at a minimum, 4 to 8 hours of personal preparation, in addition to whatever staff time it took to gather documents and to address the issues that concern the committee involved.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. What about the agency itself?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The involvement of the agency, again, depends on the range of the inquiry. There have been instances when the involvement has been quite overwhelming, as a result of the amount of data involved. Generally, however, the agency's involvement has been sometimes exacting, it has been within manageable ranges.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Judge, in the past you have expressed some concerns about racial quotas. If I understand your position as it has been articulated at this hearing, it has been an interest or an advocacy of affirmative action, but an opposition to racial quotas as a method of achieving those advances. I wonder if you could articulate the differences you see and the reasons for them.
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS I indicated earlier, Senator, throughout my adult life, I have advocated the inclusion of those who have been excluded. I have been a strong advocate of that. I advocated that in college and I advocated that in my adult life, and I certainly practiced that during my tenure at EEOC. I felt, for example, that there were many opportunities to include minorities and women and individuals with disabilities in our work force, and I took every occasion to do that in the Senior Executive Service Program, the top level of Government managers, our record is superb on the efforts that I was able to achieve in agreements, scholarships for minorities and women across the country, 250 colleges and universities programs, internship programs, mentor programs, stay-in-school programs, et cetera. I think that many of us of good will and many of us who, though we do not necessarily share the same approach, agree with that goal that we have to include individuals who have been left out for so long. The difficulty comes with how far do you go without being unfair to others who have not discriminated or unfair to the person who is excluded, and at that range I thought—and, again, this was the policy position that I advocated—that it was appropriate to draw the line at preferences and goals and timetables and quotas. I also felt that those approaches, the objectionable approaches had their own consequences, and that is I felt that they had the tendency of undermining the self-esteem and dignity of the recipients. That is again something that others can debate, but I thought it was a valid point of view, and that those approaches, if we went too far, actually could be harmful to the very individuals whom we all care so much about. But I am very firmly for programs to include those who have been excluded. That has been a passion of mine throughout my adult life.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. In describing your views on racial quotas, unless I have missed it, you have not anchored them based on constitutional arguments, but anchored them in your own feelings about what makes sense, what makes the reason. Yet, I notice the Plessy v. Ferguson dissent that you have referred to, or at least it has been attributed to you, that you found some interest in Justice Harlan's dissent there in that case includes this quote: But in view of the Constitution, in the eye of the law there is in this country no superior dominant ruling class of citizens, there is no cast here, our Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. Now, my recollection is I did finish saying I understand your reluctance to rule on cases in advance, but do you attribute your concern over racial quotas to reading the Constitution, as well?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, in the appropriate circumstances, we all are concerned with the underlying value of fairness that is expressed in our Constitution, as well as in our statutes. But I would like to make one comment with respect to that quote, and I think it is an important comment, that we have to remember that, even though the Constitution is color blind, our society is not, and that we will continue to have that tension.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Judge Thomas, I bring this subject up not to cause you personal concern, but because it has become part of the debate over your nomination. I preface it that way, because it is not normally the type of thing that I guess I would bring up at a hearing of this kind. But one of the charges that has been brought against you in this nominating process is that you benefited by quotas or affirmative action, but do not support them. I guess the question is directly in entry to Yale, were you part of an affirmative action quota, were you part of a racial quota in terms of entering that law school? 251
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have not during my adult life or during my academic career been a part of any quota. The effort on the part of Yale during my years there was to reach out and open its doors to minorities whom it felt were qualified, and I took them at their word on that, and I have advocated that very kind of affirmative action and I have done the exact same thing during my tenure at EEOC, and I would continue to advocate that throughout my life.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Mr. Chairman, my time is up. I would merely note for the record that the judge was an honors graduate of Holy Cross undergraduate school.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will suspend just for a moment. [Pause.] I was just conferring with staff about the timing. Just so you have a sense of how much longer you are going to sit there, I think we should go with one more Senator. Today we will hear from the Senator from Illinois, and then we will take up tomorrow morning at 10 o'clock with the Senator from Wisconsin, followed by a second round beginning with me. The Senator from Illinois, Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. Judge Thomas, I will try to avoid doing what Senator Danforth said we should not do and just read little snippets from what you have written and said. I have read now over 800 pages of Clarence Thomas' speeches and opinions. I have read more of Clarence Thomas than any author I have read this year. I regret to say I do not think you have a best seller in the works. [Laughter.] But it is important, because when you say you have no agenda or when you say you are not a policymaker, the reality is you become a policymaker on the U.S. Supreme Court. If I may quote from Justice Frankfurter, "It is the Justices who make the meaning," talking about the law and the Constitution. "They read into the neutral language of the Constitution their own economic and social views. Let us face the fact that five Justices of the Supreme Court are molders of policy, rather than the impersonal vehicles of revealed truth." If, for example, in this committee, my colleagues, Senator Heflin and Senator Hatch, have a disagreement and work out a compromise and the law is not completely clear, then ultimately you may have to decide and make policy. That may be a 5-to-4 decision of the Court. I mention this, because, generally, while it is not always true, you can usually tell where a Justice of the Court is going to go by looking at his record. For example, Justice Marshall has been talked about here. Generally, we can say there were no great surprises in Thurgood Marshall's record on the Court, because we knew where he had been. When I look at your writings, I find a somewhat different tone, frankly, than the response to questions here, or a somewhat different tone in the quotes Senator Danforth read—with great respect to my colleagues, Senator Danforth, who gave as strong and eloquent an endorsement as I have ever heard of any candidate. But what I read is somewhat different from the tone of the remarks, the quotes that he made there. And when I read attacks on mini56-270 O—93 9 252 mum wage, for example, I would defer to your sister and mother on whether or not we ought to have a minimum wage law rather than to Judge Thomas. Or when I read and when I hear you mention public housing that your mother was able to move to, and then I read your statement—and I have almost—well, I have 16 similar in tone here, but let me read the one that I read in the opening statement: I for one don't see how the government can be compassionate. Only people can be compassionate, and then only with their own property, and their own effort, not that of others. Now, in the case of public housing, my feeling is we are talking about government being compassionate, taking a little of your money, taking a little of Jack Danforth's money, taking a little of my money, but doing something that is very constructive and very needed. I find an inconsistency there, and I—well, let me just ask you to comment on what I see as inconsistency and maybe you do not see as an inconsistency.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, with respect to—let me just address the minimum wage. The concerns that I raised in a policy debate were something that I felt should have been taken into account. I think we are all for a decent wage. The one factor that I thought should be taken into account is the impact it would have particularly on minority teenage employment, and if that was considered in the calculus, then that was fine. But that was an important consideration. That is a policy decision. It is not one that judges make. With respect to public housing or comments about compassion, I don't think in all of those that you found one word saying that we shouldn't spend money to help people who are poor or downtrodden.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But isn't that what you are——
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that we have an obligation, an obligation to help those who are down and out. That is what I tried to point to in my opening statement; that as a part of our community, I think it is important for us to be willing to pay taxes so that people have a place to live.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And so when you attack, for example, redistribution of wealth—and one statement I read could have been made by an early king of France, very negative on the redistribution of wealth. But, in fact, when we have public housing
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that is very important.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And that does not offend you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. All right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, let me make one point. I think that it is important that we recognize, whether we have public housing or any other policies, that we make sure that we are doing good for the people who are the beneficiaries or recipients of this. Years ago I think we remember that there were public housing in certain cities that ultimately had to be torn down because they turned out to be more harmful to the inhabitants than they were helpful.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One of them in St. Louis that all three of us know about here. 253
Clarence Thomas
Nominee
(R)
Judge THOMAS. The debates that I requested and would have hoped to have been a part of is, Look, let's reexamine the pros and cons. Let's have a constructive debate about it. The problem is still going to be there. I called a debate over affirmative action a pointless debate because at the end of the day there are people who are still not a part of our economy. We can agree or disagree all day. It is as though we are fiddling while their chances burn. So I do think that those efforts are important, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. In that connection, affirmation action, Senator Brown just asked you about college programs. One of your successors in the Office of Civil Rights in the Department of Education has criticized setting aside scholarships for minorities. Washington University, headed by a distinguished chancellor, William Danforth, has graduate fellowships for minorities in the field of science and math. Does that offend you in any way?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is my understanding, Senator, that there may be litigation about that particular policy, but let me answer that in this way: When I had the opportunity to establish a program at EEOC that provided scholarships for minorities and women, I did. And it is a program that I think now has about $10 million in endowments. When I had an opportunity to establish a program or to participate in the establishment of a program here in Washington for minority interns, I did. I think that it is important for them to be here, to participate in this process, to learn from this process, to grow. I wish that when I was a kid I had had this opportunity also. So I think that there are steps that need to be taken, but I can't—on that specific policy, I think it would be best that I not comment explicitly on that.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. That is a perfectly legitimate response. Again, so that I can get a feel of where you are coming from to judge where you are going to be going, Newsday magazine describes James J. Parker as a mentor and the person who introduced you to the Reagan White House. Is that an accurate description?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Jay Parker has been a friend since I worked here on Capitol Hill. He was not the person who introduced me to the White House.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. He has been, for many years, a lobbyist for the Government of South Africa. Were you aware of that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I became aware of that, interestingly, even though he is a friend, I can tell 'ou that I do not question—he is an honest individual, and I didn'v question him about his personal activities and his businesses. I bee ame aware that he—through the news media, as you did, about this particular activity.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. NOW, he is quoted at one point as saying he informed you in 1981 about that. You don't recall that.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't recall it. I knew he represented some of the homelands in South Africa at some point. I think the Mandela family or some individuals in South Africa. I was not aware, again, of the representation of South Africa itself.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. He and a fellow named William Keyes, who are both editors of Lincoln Review, which is frequently given a far- 254 right label—whether it is justified or not, it is frequently given that label. But the two of them over the course of the years received well over $1 million from the Government of South Africa. They also, in editing this publication, have had a number of articles critical of sanctions, antichoice articles, other things. For 10 years you were an editorial adviser to that publication. Did you at any point question whether these articles that, while critical of apartheid, were in agreement with the policies of the Government of South Africa or also the antichoice articles? Did you at any point suggest that those were not proper?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the role of a member of the advisory board was purely honorary. There were no meetings. There was no review of literature. There were no communications. There was no selection of the material that was included in the journal. Indeed, I don't think that I have read a copy of the Lincoln Review in 2 or 3 years. I haven't received one in the mail in the last 2 or 3 years. On the issue of South Africa, however, let me make this point: That even as I was aware of Mr. Keyes' involvement with South Africa, I was not aware of Mr. Parker's. But even as they took that position, I took a strong position on the board of trustees of Holy Cross that we divest of stocks in South Africa. That was important to me then, and, of course, that is contrary to a position that they might take. But it is one that I felt strongly about.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I was not aware of that, and I think that is significant. You joined Clarence Pendleton and Steven Rhodes in criticizing those who were protesting at the South Africa Embassy on South African policy. At least the Washington Post reports this. Did you do this on your own? Were you requested by someone to do this? Do you recall this?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have no recollection of that at all, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Somebody give that to Judge Thomas. If you can just look at the article and see if you do recall this. [Pause.]
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think the quote that if these were protests about the quality of education black kids in the United States receive, about the high crime rate in black neighborhoods, I would be right out front in that kind of a march. It is probably the kind of statement I would have made.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But the three of you did this in a coordinated way. Obviously, you know, it didn't just happen that all three of you said that the same day.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, the only way that I think that something like that could happen would be that we were called the same day by the reporter. I had no involvement on that issue within the administration. I would assume that the reporter simply picked up the phone and looked for individuals to get a comment.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. If on further reflection you or anyone else has any further background on that, when we get around to the second round
Clarence Thomas
Nominee
(R)
Judge THOMAS. I simply don't remember a coordination. If anything comes to mind or if I can reflect on that, I will certainly apprise you of it. 255
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. On the question of privacy, you have been critical of the use of the ninth amendment. And when you were asked by Senator Metzenbaum, I believe, about the question of privacy, you referred to the 14th amendment. There are at least three members of the Supreme Court who have referred to the right of privacy as a fundamental right. The ninth amendment, as I am sure you are aware, grew out of correspondence between Madison and Hamilton, where Hamilton said, If you have a Bill of Rights, some people will say these are the only rights people have. And so the ninth amendment was added which says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." That amendment is not just in isolation. In the Constitution you also have a provision which states that the Government can't search your home without a search warrant. That is in a sense a right of privacy. The Constitution says you can't have militia quartered in your home. That is in a sense a right of privacy. When you put that all together, together with the ninth amendment, it seems to me that there is fairly clearly a right of privacy implied. Now, that becomes significant because if you use the 14th amendment as a basis for the right of privacy, that comes later in our history. It has not been a part of our whole tradition of our country to have a right of privacy. Do you have any reactions to that, and do you consider the right of privacy a fundamental right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, to my knowledge, the Supreme Court, no majority has used the ninth amendment to establish as the basis for a right. Of course, it was used by Justice Goldberg and by Justice Douglas in Griswold. With respect to the approach that I indicated that I thought was the better approach, it was Justice Harlan's approach. But with that said, my bottom line was that I felt that there was a right to privacy in the Constitution, and that the marital right to privacy, of course, is at the core of that, and that the marital right to privacy in my view and certainly the view of the Court is that it is a fundamental right.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Let me shift to another area, and that is the church-state area where you have not written very much. In fact, the only thing I have is in response to a question about religion in the schools in Policy Review magazine. You say: My mother says that when they took God out of the schools, the schools went to hell. She may be right. Religion is certainly a source of positive values, and we need all the positive values in the schools that we can get. It is the only thing I have found in this whole church-state area. This is an area where, again and again, during your years on the Court you will be asked to make decisions. Since 1971, the Court has followed a three-part Lemon criteria that you may be familiar with. It is Jefferson's wall of separation. It is not quite that clear. When the Methodist church is on fire, you call the fire department. You don't say separation of church and state. We can't put out the fire because of a number of factors. 256 But the Lemon criteria are: No. 1, does it have a secular purpose? No. 2, is its effect to advance or inhibit religion? And, No. 3, does it excessively entangle government and religion? That is what the Supreme Court has been using since 1971. I guess I have a twofold question: No. 1, are you familiar with the Lemon criteria? And, No. 2, if you are, do you think they are reasonable criteria that should be used in the future?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes, Senator, I am aware of the tests enunciated in Lemon v. Kurtzman. The Court has applied the tests with some degree, I think, of difficulty over the years. I have no personal disagreement with the tests, but I say that recognizing how difficult it has been for the Court to address just the kind of problem that you have pointed out when the church is on fire or when there is this closeness between the activity of the Government and the activity of the church. I think the wall of separation is an appropriate metaphor. I think we all believe that we would like to keep the Government out of our beliefs, and we would want to keep a separation between our religious lives and the Government. But the Court has had a great deal of difficulty, and there is some debate on the Court as to how far you should go; whether or not there should be this complete separation; whether or not there should be some accommodation and certain circumstances; or whether or not even there should be a movement as far as just simply to the position where the Government isn't establishing a religion or coercing individuals to be involved in a certain kind of activity. But I think it is a vibrant debate. I have an open mind with respect to the debate over the application of the Lemon v. Kurtzman test, and I recognize that the Court has applied it with some degree of difficulty. But at the same time, I am sensitive to our desire in this country to keep government and religion separated, flawed as it may be by that Jeffersonian wall of separation.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Let me give you a very specific instance that you are not going to be confronted with, though the issue may be one that you will be confronted with. We have a House colleague by the name of Dan Glickman, a Congressman from Kansas. He told me the story, and I repeat it with his permission. When he was in—I think it was the fourth grade, they had prayer in the schools in Wichita. He happens to be Jewish. A large majority of this population in Wichita is not. Every morning when he was in the fourth grade, he was excused while they had school prayer, and then he was brought back in. Every morning little Danny Glickman was being told, you are different, and all the other fourth graders were being told he was different. Does this strike you as something that is offensive in terms of where we have been, and where we ought to go?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that when we engage in conduct such as that, when someone feels that he or she is excluded because of certain practices, such as those religious practices, I think we need to question whether or not government is involved. I think it is wrong. You know, as you were talking, something came to mind. I remember being excluded from conversations about the war of North- 257 ern aggression, which for those who don't know about the war of Northern aggression, it is the Civil War. And it is refought, for those who think it ended at some point. But it is a sense of exclusion. And for those of us who have felt that sense of exclusion, I think that we have a strong sense that any policy that endorses that exclusion—and I think Justice O'Connor points that out— should be considered inappropriate. My concern would be with someone like Danny Glickman that when we consider cases in a constitutional context that we understand the effects of government's perceived endorsement of one religion over another, and that we take that into consideration when we analyze those cases.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I don't think since you have been on the appellate court you have had any chance to rule on any of these churchstate issues. Have you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. In my way of recollection or in my knowledge, I have not, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. If you or anyone—Ken or Fred or anyone, if you have written anything in this field, I would be interested in seeing it.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think my writings in this area are mercifully minor, if any.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. My time is just about up, and rather than start the next subject—when you are the last in line, you have to skip from subject to subject, whatever hasn't been covered. I will hold off until the second round. Thank you very much, Judge. Thank you, Mr. Chairman.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you so much. Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, all the writings are in the area of natural law. There aren't any on religion. Senator I understand that you don't mind if we start tomorrow, do you?
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. NO.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Tomorrow we will start at 10 o'clock, Judge. I am going to give you a copy, which you already have, of some of your speeches that occurred post-1984. I believe, almost all of these speeches have been discussed, but I want to make sure you have copies of them, because tomorrow I am going to ask you to help me understand some of them. If there is no further business, I have been asked to accommodate the President's request to continue to allow district court and circuit court judges to be reported out during this process. In order to honor that request we will have a very brief—which will make no sense to anyone except White House staff that is here and the committee—exec tomorrow to vote on reporting out 13 Federal judges and 4 U.S. attorneys. So as a practical matter, I say to the press that we will begin questioning closer to 10:30 than 10. But the purpose of that is to report out these Federal judges. We might as well just do it right here so we don't have to move around. But we are going to try to start as close to 10 as we can with you, judge. This exec won't take very long. With that, if there is no further business coming before the committee this evening, we will adjourn until 10 tomorrow. 258 [Whereupon, at 5:15 p.m., the committee recessed, to reconvene at 10 a.m., Thursday, September 12,1991.] The CHAIRMAN. Let's officially begin the hearing with Judge Thomas. Judge, welcome. We are delighted to have you and Mrs. Thomas back. We will follow, business as usual, and begin with the Senator from Wisconsin, Senator Kohl who will have one-half hour of dialogue with the witness.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Senator KOHL. Thank you very much, Mr. Chairman. Good morning, Judge Thomas.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Good morning, Senator.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Glad to see you this morning. Judge Thomas, Monday's New York Times said that you were involved in mock committee sessions in which your answers were tried out in front of lawyers pretending to be committee members. My question is three-fold: First, who played me? [Laughter.] Was it Kevin Costner or Mel Gibson? Second, I would like to know who played Senator Metzenbaum? [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Nobody would have that
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Third, Judge Thomas, I would like to know who could possibly have played Senator Simpson?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is a good question, Senator. I don't remember precisely, but I think that it may have been Senator Danforth who played all three. But I can't remember precisely.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Thomas, I would like to ask you why you want this job.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, being nominated to the Supreme Court of the United States is one of the highest callings in our country. It is an opportunity. It is an entrustment, an entrusting of responsibility by the people of this country, by this body, to make some of the most difficult and important decisions in our country. -259 260 It is an opportunity to serve, to give back. That has been something that has been important to me. And I believe Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, busload after busload. And you look out, and you say to yourself, and I say to myself almost every day, But for the grace of God there go I. So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes, and I can bring something different to the Court. And I think it is a tremendous responsibility, and it is a humbling responsibility; and it is one that, if confirmed, I will carry out to the best of my ability.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. That is good. Judge Thomas, if I understand you correctly, you are going to leave behind almost all of your views about what type of society we ought to be and what type of policies we ought to apply. Two questions. First, why after 20 years in the forefront of these battles do you want to leave all of this behind? And the second question is: If you do leave so much of this behind, what is left?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Though it may sound rather strange to some individuals, the kind of fighting and the in-fighting and certainly the difficulties of battles, those kinds of battles in the political process I think are wearing. So it is not the confrontation that I ever relished or enjoyed. In fact, that is the opposite of my personality. I like to try to find consensus. So I don't miss and have not missed on this court having those kinds of battles. We have reasoned, constructive debate on the court. But with respect to the underlying concerns and feelings about people being left out, about our society not addressing all the problems of people, I have those concerns. I will take those to the grave with me. I am concerned about the kids on those buses I told you. I am concerned about the kids who didn't have the strong grandfather and strong grandparents to help them out of what I would consider a terrible, terrible fate. But you carry that feeling with you. You carry that strength with you. You carry those experiences with you. I don't think you have to carry the battles with you. It is a difficult weight.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Judge, I would like to come back to a question about preparation. When I was running for the Senate, I worked with people who helped prepare me for debates, so in my mind there is nothing wrong with getting some advice and help in preparing for this hearing. But I would like to ask you some questions about the process. When you were holding practice sessions, did your advisers ever critique you about responses to questions in a substantive way? Did they say, for example, "You should soften that answer," or 'Don't answer that question, just say that you can't prejudge an issue that may come before the Court"?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the answer to that is unequivocally no. I set down ground rules at the very beginning that they were 261 there simply to ask me and to hear me respond to questions that have been traditionally asked before this committee in other hearings and to determine whether or not my response was clear, just to critique me as to how it sounded to them, not to myself, but not to tell me whether it was right or wrong or too little or too much.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Good. Judge Thomas, most Americans believe that the Supreme Court should have a fierce independence. Do you see any problem in terms of the system of checks and balances, and separation of powers in having members of the executive branch detailed to assist in the confirmation of a member to the Supreme Court? Do you think that such assistance creates an appearance of impropriety, because it blurs the lines between the branches of Government?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the process of confirmation, as you can imagine, is a difficult one. The last 10 weeks have involved my answering countless questions, responding to significant document requests that I personally could not respond to, and information that was contained in the executive branch. Traditionally, individuals in the executive branch have assisted, but, again, there I made it clear what my rules were. They were to do nothing more than provide me with information such as case law, documents that I needed to prepare myself at my request. They in no way did anything more than provide that information. For example, they would be more in the order of what I would have my law clerk do, provide me with the material that I need.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. But it is said in the New York Times—perhaps they were misquoting—that there were mock sessions between you and people from that branch during which questions were asked and answers were given. That is entirely different from what you just said.
Clarence Thomas
Nominee
(R)
Judge THOMAS. TO my knowledge, there was one individual from the—there were a number of individuals from the executive branch, that is right. I thought you were talking about the individuals who assisted me with the documents, not the individuals in mock sessions.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. NO, no. We are talking about the whole process, the preparation, the involvement, the fact that the executive branch and you have been working together on this nomination in all the various ways, including preparation for this hearing. And I am asking you not whether or not you have the right to do it. You do. I am asking whether or not that blurs the separations that are supposed to exist as between the branches of Government.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am sorry I was not responsive. I think that there would be certainly be no more conflict than one would have when a clerk from your staff argues before you in the subsequent years. I do not think there would be, Senator. I can see the concern, but I do not think that there would be at all.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. And the preparation is dearly needed, the help, the assistance is dearly needed.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Good. Judge Thomas, I would like to talk to you about the right to privacy for just a minute. Yesterday, you told Senators Leahy and Metzenbaum that you had no opinion, either personally or professionally, about the legal issues raised in Roe, 262 and that you have never had an opinion and never discussed it. That is a very strong statement to make to this committee and to the American people. I would like to ask you a related, but nonlegal question. As Clarence Thomas the man, a human being, do you have a personal view on whether society ought to provide women with the option of having an abortion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I would essentially reply as I have yesterday, and that is this or in this way: I think that in this area that the need for a judge such as myself to maintain impartiality is critical. I think that whether or not I have a view on this important issue is irrelevant to being an impartial judge and having one could undermine or create a perception that could undermine my impartiality. That is very important to me, and I think it is critical, if not important to any other judge.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. That is fine, but the question I asked is whether you have, as a human being, a personal view on this subject.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I understand the concerns on both sides of the issues. I am certainly a citizen who attempts to keep abreast of the news and to be aware of the issues in this country. But as I indicated before, whether or not I have one I think is irrelevant to my being impartial or considering this issue as a judge.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Judge Thomas, yesterday you reminded us that the panel that is judging you is all white and all male. Do you think that your responses on this question would have satisfied a panel composed of 14 women, instead of 14 men?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't know, Senator. I would hope that the manner in which I am judged, in a fair and impartial manner, does not depend on the gender or the race of those judging me.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. In 1987, Judge Thomas, you said that you believed, and I quote, "Our civil rights policy should be based on fundamental principles and the assumption that Americans are basically decent, and that they prize fairness." Yet you told Juan Williams, for an article in the Atlantic Monthly, that you believe that the white world is wrought with racism. "There is nothing you can do to get past black skin. I don't care how educated you are, how good you are at what you do, you will never be seen as equal to whites." Judge Thomas, those are contradictory statements and I would like to ask you: First, how you can oppose most forms of affirmative action, if America is basically racist; and second, how can you support any type of affirmative action, if Americans are as basically decent and fair as you have suggested?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, it is clear from the testimony that I have given you here about where I grew up, that I understand the realities of our country. It should be clear from my biography that I understand that racism exists. Throughout my speeches, I have made it clear that there is unfairness, in speeches at commencements of Savannah State College, Compton, wherever, places that I have had occasion to speak to minority students and to others, I have pointed out this unfairness, but I appealed. There is an individual I heard recently who said that we can seek revenge or prosperity. I have tried to appeal to that which is good. I have been there where I have been angry and upset, and I 263 understand what it means to be angry and upset. But what I have tried to do during my tenure at EEOC, during my public life, recognizing that there are these contradictions in our society, I have tried to appeal to what is good, what can move us forward, not backwards. With respect to affirmative action programs, I tried to explain yesterday the tensions between the notion of fairness to everyone and this desire to help people who are left out. There is a tension, and how far do you go in trying to include people who are left out, and not be unfair to other individuals, and it is one that I had hoped that we could wrestle with in a constructive way. But as the debate went on, unfortunately, we were not able to, and the rhetoric was heated. But I have initiated affirmative programs, I have supported affirmative action programs. Whether or not I agree with all of them I think is a matter of record. But the fact that I don't agree with all of them does not mean that I am not a supporter of the underlying effort. I am and have been my entire adult life.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Thomas, I would like to talk about a subject which is somewhat sensitive, but it seems to me we ought to address it openly. In the article by Juan Williams, you said you were troubled with the possibility of being selected for a position because of your race. In that instance, you were speaking about your appointments to the head of the Office of Civil Rights at Education, and also to head the EEOC. Did you have similar thoughts when you were nominated for the Supreme Court, Judge Thomas?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, my concerns were in being selected for the two positions that you stated, was that I sensed that it was automatically assumed that, since I was black, these are the positions for me, it is expected that I would go to that sort of a position, as opposed to the Energy Department, for example. The President indicated that he nominated me as a result of his search, as limited or as broad as it may have been among those individuals, he felt that I was the best qualified. I take him at his word, but I also believe that there is a need in all of our institutions, on the Supreme Court and elsewhere, in diversity. I think it is important to our society.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, are you troubled by what mainstream periodicals have been saying now for several weeks. I quote just one, U.S. News & World Report. They said you were "picked from a pool of one to fill a quota of one." That has been said in some way by half a dozen or a dozen mainstream periodicals around the country. Does that bother you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, there is much that has been said over the past 10 weeks that has troubled me. To say that is the most troubling thing that has been said, I think would not be accurate, but that would trouble anyone, and also I think it is inaccurate.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Judge Thomas, you have had some harsh things to say about Congress—so have I and so have most of the American people. But unlike most of the American people, you have worked in the Congress. In fact, you have worked in the executive, legislative and the judicial branches. I would like to ask you a few questions about your experience in these areas. 264 In a 1988 speech at Wake Forest, you said that legislators "browbeat, threaten and harass agency heads." In the Wake Forest speech and in another 1988 speech, you said that Congress was, and I quote, "a coalition of elites which failed to be a deliberative body, which legislates for the common or the public interest," and that Congress was "no longer primarily a deliberative or even a law-making body." So, Judge Thomas, why would a man like you, with strongly held ideas about public policy, ever want to work in this branch of government, the courts, where you have an obligation to uphold the bad laws that you say Congress makes?
Clarence Thomas
Nominee
(R)
Judge THOMAS. First, let me go back to the position that I was in as a member of the executive branch. As I indicated yesterday, there is tension between the two branches, and particularly in the oversight process. I felt, as the head of an agency who had been called to the Hill on a number of occasions in some very difficult circumstances, that particularly some of the staffers went too far in micromanaging the agency and made it very, very difficult. I think that the legislative role of Congress, as well as the oversight roles of Congress, are very, very important. It is a little easier to see, when you are not the object of an oversight hearing. In my current job, our role is to determine the intent of Congress. I believe that I have done that fairly and impartially. I have stated very clearly that my job is not to engage in a policy debate with Congress. I am out of that role. I am not in the political branch. I am in the neutral branch, and my job is to remain neutral. When I was in the political branch, I think I fought the policymaking battles, and I am sure that individuals on this side has some
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. That is all right. I just want to go back and quote to you what you said, and ask you, do you remember saying it? Is it true? And do you believe it? You said that "Congress was a coalition of elites which failed to be a deliberative body that legislates for the common good or the public interest," and you said that Congress was no longer primarily a deliberative or even a lawmaking body. Is that how you feel?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Today?
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Today. [Laughter.] Here, sitting before 14 of us who are going to vote.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I can't, Senator, remember the total context of that, but I think I said that and I think I said it in the context of saying that Congress was at its best when it was legislating on great moral issues. Now, I could be wrong. I think I have turned over 138 speeches, and I can't remember the details of all of them, but I did say and I do remember saying that Congress was at its best when it was deliberating the great moral issues of our time, such as, for example, our involvement in the Persian Gulf conflict.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge, I would like to briefly follow up on Senator Simon's church-state questions. During your appellate court confirmation hearing, we discussed your views on school prayer and I asked you about your 1985 statement where you said, As for prayer, my mother says when they took God out of the schools, the schools went to hell. She may be right. Religion cer- 265 tainly is a source of positive values, and we need to get as many positive values in schools as possible. You said that was your personal view, but of no consequence; that as an appellate judge, you would be bound to follow Supreme Court precedent. Now, however, you are being considered for the Supreme Court and you will be in a position to set precedent. Your personal views are of great consequence, so I would like to ask you this: The Supreme Court has repeatedly ruled that prayer in the schools violates the first amendment. Given your statement in 1985, could you explain your views on prayer in school today?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I indicated yesterday, my comments there were not taken to in any way reflect on the legal rulings on the establishment clause or the free exercise clause. As I indicated yesterday, that from my standpoint, as a citizen of this country and as a judge, that the metaphor of the Jeffersonian wall of separation is an important metaphor. The Court has established the Lemon test to analyze the establishment clause cases, and I have no quarrel with that test. The Court, of course, has had difficulty in applying the Lemon test and is grappling with that as we sit here, I would assume, and over the past few years, but the concept itself, the Jeffersonian wall of separation, the Lemon test, neither of those do I quarrel with.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. In your view, Judge, what is the current state of the law with regards to the establishment clause of the first amendment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The Court now, in the application of the Lemon test, that is that there be a secular purpose to the legislation or the action, that there be no primary sectarian effect and there be no unnecessary entanglement of government in the affairs of religion. It has been difficult for the Court, as I noted, to apply. The Court has been split between I think those who feel that there should be some accommodation and those who think there should be an absolute separation. Justice O'Connor, of course, has offered some movement in the area, as well as Justice Kennedy I think has applied a coercion test. I think the judges are grappling at, when church and the government are inexorably in contact with each other, how much separation can there be and how do you draw the line. I think it is difficult. It has been difficult for the Court. We see it in the cases with the Christmas displays and the Court has not resolved it, but I think the analysis, the Lemon test, as well as the understanding that the separation must be there is important, but, in practice, it is difficult.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. HOW do you reconcile your willingness to discuss this area of the Constitution, which is still unsettled law, with your unwillingness to discuss another area of the Constitution, which is the woman's right to choice?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think what I have attempted to do is, to the best of my ability, without judging or prejudging the case, to simply set out in an area that you have requested the analysis of what the Court has done and where it has gone. I have indicated and I think it is important to indicate that the area of Roe v. Wade is a difficult, it is a controversial area. Cases 266 are coming before the Court in many different postures. And I think it would—and I think it is a judgment that each member of the judiciary has to make. I think it would undermine my ability to impartially address that very difficult issue, if I am confirmed, to go further than I have gone.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Finally, Judge, with respect to all the things that you have said and written in the past and the things that you have asked us to discount today—I am thinking also about the meeting we had in my office when you said that we should for the most part forget about what we have read and written about you—you said that the real Judge Thomas would come out at the hearings. My question is, Why is it inappropriate for us to make an evaluation of your candidacy based upon all the things that you have written and said—particularly in view of the fact that you have been on the court for only 16 months? If we are going to make an informed judgment on behalf of the American people, why are your policy positions not important? How are we supposed to make a judgment on you? Is it fair for you to say to us, for the most part: members of the panel, just view me on what I am saying here this week; don't view me on what has been written about me—about my speeches, the things that I have said? Does that give us the most complete opportunity to make the evaluation that we need to make on behalf of the American people?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that I have turned over in responding to requests, as a result, I think 32,000 pages of documents. I have spent the last decade in the Government. I think that the material is there. I think that a fair reading of my record is a reading which indicates that I am one person who has attempted to be involved and attempted to do some good, who did not hide, who did not sneak away from the problems, who tried to grapple with them, who tried to take them head on, and who tried to make a difference. I think the record is relevant, but I think it has to be understood that when I was in the executive branch, I was in the executive branch. I am a member of the judiciary, and I think it is a fair question from me to you is to see whether or not my policy positions have tainted my role as a judge.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, you have only been on the court for 16 months, and so we are not in a position to see how your policy positions are, either consistent or not consistent with the things that you have done on the court. But in many areas, you are asking us to recognize that, some of the policy positions that you have taken in the past, were just that—policy positions—and they don't have any relevance to your court experience or the kind of experience or expertise that you will bring to the Supreme Court. For example, you say you turned over 32,000 pages to us, and yet when we come back to you and say, well, what about this or what about that, you are saying that doesn't count or that doesn't count. In your opening statement, for example, for the most part you said that you are an example of a person who has pulled himself up by the bootstraps, who is a good, honest, decent, hard-working, effective, intelligent man—which you are. And I think to an extent this approach troubles me. Your hearing has been a continuation of that kind of experience and you have encouraged us to judge you on that. But I think that we and the American people, Judge 267 Thomas, should be given the full opportunity to judge you on the whole range of your life experiences, which does include the things that you have said and written and done, just like it does for the rest of us. When I ran for office, I wasn't able to say don't consider this or don't consider that. The voters wouldn't allow that. And they consider everything I have done, everything I have said. And I think that that is the way the process should work in a democracy. And to the extent that you think I am exaggerating, I would be interested in your response, and then I am finished.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that if this were an oversight hearing and I could go back and discuss all the policies and tell you that, yes, it is relevant to me going back and running my agency, running the agency that I have been asked to run or permitted to run. When one becomes a judge, the role changes, the roles change. That is why it is different. You are no longer involved in those battles. You are no longer running an agency. You are no longer making policy. You are a judge. It is hard to explain, perhaps, but you strive—rather than looking for policy positions, you strive for impartiality. You begin to strip down from those policy positions. You begin to walk away from that constant development of new policies. You have to rule on cases as an impartial judge. And I think that is the important message that I am trying to send to you; that, yes, my whole record is relevant, but remember that that was as a policy maker not as a judge.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Judge, before I begin my questioning, I would like to point out for the record there are 32,000 pages of documents, but I would guess 31,000 pages of those have nothing to do with what you have written, nothing to do with what you said. They are agency documents. So the implication should not be left here that anybody has questioned you on even a remotely large part of those 32,000 pages. All you have been questioned on so far and all I think the Senator was making the point about is that we are trying to figure out, as you said, how you would rule—we don't want to know how you would rule on cases. We want to know how you think about ruling on it. And all the questions asked of you, none of them thus far have had anything to do with 32,000 pages of documents. They have to do with probably—if you added up all the speeches you gave that would give us insight into how you think, maybe there is 1,000. Maybe there is 500; maybe there is 1,200 pages. But that is what we are talking about. I know you know that. I just want to make sure that the public doesn't think you have to go back and look over 32,000 pages of documents and analyze it. That is sort of the Wall Street Journal argument. You know, this has nothing to do with 32,000 pages of documents. Now, Judge, I want to see if I can come away from this round of questions with a better understanding of the method—not the result, the method—that you would apply to interpreting the very difficult phrases in the Constitution, which have been phrases that have been matters of contention for 200 years or more and, when interpreted, have sent the country off in one direction or another. 268 Now, you will be pleased to know I don't want to know anything about abortion. I don't want to know how you think about abortion. I don't want to know whether you have ever thought about abortion. I don't want to know whether you ever even discussed it. I don't want to know whether you have talked about it in your sleep. I don't want to know anything about abortion. I mean that sincerely, because I don't want that red herring, in my case at least, to detract from what I am just trying to find out here, which is how do you think about these things. When you and I talked on Tuesday in this hearing, you said, and I quote, "I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory." Now, that struck me as something different than you said in many speeches, and I gave you some of those speeches yesterday so that you would know what I wanted to talk about today. And you know I want to talk about this subject with you so I can understand it better. So let's start with not what you said in the speeches but what you told the committee so far about whether natural law does or does not impact on the Constitution. Yesterday you told us that the Framers of the Constitution "subscribed to the notion of natural law." But you emphasized that any such belief, any belief held by the Framers based on natural law had to be reduced to positive law; that is, put in the Constitution for it to have any effect or impact on adjudication. The Framers, you said, sometimes "reduced to positive law in the Constitution aspects of life principles they believed in; for example, liberty. But when it is in the Constitution, it is no longer natural rights. It is a constitutional right, and that is an important point." So as I heard that statement, I began to think I am beginning to understand your thinking on this, but I want to be sure. Do you recall saying that yesterday?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I generally recollect.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And is that a fair rendition?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think it is.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Then you went on to say, and I quote, "Positive law is our Constitution, and when we look at constitutional adjudication, we look at that document." So it is purely positive law. It is purely that Constitution, this document. When you as a judge are interpreting it, the fact that the Framers may or may not have based the Constitution on natural law—and you and I think they did—that does not impact on adjudication unless it was reduced to writing in the Constitution. Then it is positive law. That is what you mean by positive law, right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, SO it is purely positive law that you as a judge look to in order to decide a case; is that right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think I indicated in later testimony—and this is an important point, and it is one—as I read your op-ed piece, it is one that I think you ask in a different way. You say, Is it rigid or is this concept of natural law rigid? For me, that question would be, Is the concept of liberty rigid?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I see. 269
Clarence Thomas
Nominee
(R)
Judge THOMAS. And in our constitutional tradition, the concept of liberty, liberty is a concept that has been flexible. It is one that has been adjudicated over time, looking at history, tradition, of course starting with what the Founding Fathers thought of the concept of liberty, but not ending there.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. I am beginning to understand. So natural law informed the notion of liberty. You and I have both read—because of our backgrounds, I suspect we have both read—I won't get into Aquinas and Augustine and all of that, but Locke looked back to the concept of natural law as an evolving notion. Montesquieu talked about it. Jefferson understood it. He was in Paris. He was probably the only one that fully understood it. But others who were there writing the Constitution, they talked about it. They had what they wrote about the Declaration, as you say in other places, and in the Constitution they reduced these broad notions of natural law, the natural rights of man, to this document. Now, you say that they put some of these natural law principles in the document in words like liberty, you just mentioned. You indicate that once liberty was in the Constitution, it becomes positive law. But now comes the hard question, as you and I both know. A judge has to define what liberty means. Now, how does a judge know what the ambiguous term liberty means in the Constitution? And I want to start with a key term in the Constitution, one that protects the right of privacy and many other rights. And that is the word you mentioned yesterday and you mention again here today—liberty. Yesterday you told the committee our founders and our drafters did believe in natural law, in addition to whatever else philosophers they had, and I think they acted to some extent on those beliefs in drafting portions of the Constitution; for example, the concept of liberty in the 14th amendment. So the concept of natural law, liberty, is embodied—you say, and I agree with you—in the 14th amendment. You also then said, "To understand what the Framers meant and what they were trying to do, it is important to go back and attempt to understand what they believed, just as we do when we attempt to interpret a statute that is drafted by this body to get your understanding." Now, as I understand this, Judge, while you reject any direct application of natural law—that is, you sitting there and saying "I think natural law means * * * therefore, I rule." Even though you reject the direct application of natural in constitutional adjudication, you would use natural law to understand what the Framers had in mind when they interpreted these broad notions. Isn't that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Not quite, Senator. Let me make two points there. The Framers' view of the principle of liberty is the important point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Whatever natural law is, is separate and apart. The important point is what did the Framers think they were doing. What were their views.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Got you. 270
Clarence Thomas
Nominee
(R)
Judge THOMAS. The second point is this: That is only a part of what we conceive of this notion in our society. The world didn't stop with the Framers. The concept of liberty wasn't self-defining at that point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. And that is why I think it is important, as I have indicated, that you then look at the rest of the history and tradition of our country.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I agree with you completely—which may worry you, but I agree with you completely. Now, as a matter of fact, you used that argument to take on the original intent people in some of your speeches. You basically say, hey> you folks who just go original intent and are pure positivists, you have got to look at intent, real intent. And the real intent of these guys is not just static. It goes on. It is informed by changes in time, and also you have got to understand, as I understand you, that they used the word liberty because they believed it to be a natural right of man. I mean, to be specific, you say—and this is what you said here: "Our founders believed in natural law, but they reduced the natural law to positive law." And one of those concepts in natural law they reduced was liberty to positive law because the word liberty appears in the Constitution, in the 14th amendment in particular. Now, in a speech before the Pacific Research Institute, which I gave you yesterday, you praised the opinion of Justice Scalia in Morrison v. Olson. That is the case where the Supreme Court upheld, as you know, 7-1, the right of the Congress to say there can be a special prosecutor, like Walsh, like the Iran-Contra. It wasn't about Iran-Contra but the special prosecutor. But Scalia filed a lone dissent, and you praised his dissent, and you said the following: "Justice Scalia's remarkable dissent in Morrison points the way toward the correct principles and ideas. He indicates how again we might relate natural rights to democratic self-government and thus protect the regime of individual rights." You go on to say that, "The principles and ideas indicated by the opinion and the Massachusetts Bill of Rights"—which you quote— refers to—and you are referring now, you say "summarizes well the tie between natural rights and limited government. Beyond historical circumstances, sociological conditions and class bias, natural rights constitutes an objective basis for good government. So the American founders saw it and so should we. But we don't. Try talking to a Justice Department attorney about natural rights, and when you mention the venerable term, they assume that you want an activist Court along the lines of Mr. Justice Brennan. That such an assumption must be fought reveals the extent to which the term natural rights has been corrupted and misunderstood, and not only among the class of conservative sophisticates in Washington." Now, I don't know any other way to read this passage than to conclude that you believe that natural law and natural rights should help judges decide constitutional decisions.
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, Senator. I have said that over—I have repeated that continually here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I know, but that does not jibe. 271
Clarence Thomas
Nominee
(R)
Judge THOMAS. But, Senator, I was speaking as the Chairman of EEOC, and let me explain to you what my interests were. I have under oath, in my confirmation for the court of appeals and for this Court, tried to explain as clearly as I possibly could what I was attempting to do. In speech after speech, I talked about the ideals and the first principles of this country, the notion that we have three branches, so that they can be intentioned and not impede on the individual. That is what this case is about. At bottom, the case is about an individual who could be in some way, whose rights could be impeded by an individual who is not accountable to one of the political branches. That was the sole point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I understand the point.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have not in any speech said that we should adjudicate cases by directly appealing to natural law.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What was Scalia doing?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, he was
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He was adjudicating a case, wasn't he?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, he was pointing out the relationship, the purpose of the relationship among the branches.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right, but, Judge, wasn't the reason he was pointing it out—if need be, we will spend all day Friday on this— wasn't the reason he was pointing this out because he wanted the case adjudicated, decided in a way differently than the seven Justices who decided in favor of the existence of, the constitutionality of? He was adjudicating. Now, what is this, it seems like we are engaged in a little bit of sophistry here. Wasn't he adjudicating a case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. He was adjudicating a case. I am only pointing to, as I say here, the concern that I had between the relationships in the branches. If, Senator, I as a sitting Federal judge had written this speech, considering the fact that I adjudicate cases as a sitting Federal judge, and did not draw a clean distinction between a speech that is talking generally about the protection of individuals, then I think you have a very valid point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What did Scalia do, Judge? Didn't Scalia do just what you said? Scalia applied natural rights in making a decision, a decision before the Supreme Court of the United States of America. You say that is what he did and you recommend to everyone else, look at what he did, it is a good thing.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I beg to differ.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have attempted, in good faith and under oath twice, to make clear that I don't think that an appeal, a direct appeal to natural law is a part of adjudicating cases. Now, the point that I was attempting to make here, as I indicated to you, is simply he indicates how, again, we might relate natural rights to democratic self-government.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right, that is what he was doing.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Relate. I didn't say adjudicate cases.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I am interested, I was interested in the notion that you have the three branches of Government and
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right. 272
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. And you have an individual. Now, let me give you an example of my point, talking about the ideal. I think that we agree that the ideal that all men are created equal is an ideal.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is certainly one that was in our Declaration
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS it based on natural rights?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It was based on our Founders' belief in natural right.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But slavery existed, even as that ideal existed.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That did not mean that slavery was right or comported with that idea. It did not mean that you could end slavery, without a constitutional amendment.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Agreed. That is the point, Judge. The point is you say our Founders looked to natural law to inform what they put in the Constitution, but it doesn't matter. The fact they said all men are created equal didn't mean anything until the 13th and 14th amendments to stop slavery. But once they put it in, this natural law principle in 1866, it became part of the law and now we have to treat it as law. But because it is uncertain what that means—for example, does "all men" mean all women? That is what the 14th amendment was about and we have concluded it does. Because we don't know what it means, because it is broad and ennobling, we have to go back, you said, and look at the Framers and what they meant.
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS a starting point.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS a starting point. So, at least, Judge, will you not acknowledge you conclude that natural law indirectly impacts upon what you think a phrase in the Constitution means?
Clarence Thomas
Nominee
(R)
Judge THOMAS. TO the extent that it impacts, to the extent that the Framers' beliefs comport with that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right, what the Framers thought natural law meant.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But the important point is what the Framers believe. I, for example, I think I said in—I am trying to find the precise statement here
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Take your time. We have a lot of time. Take your time.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think in referring in the speech to what a plain reading of the Constitution
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I read it.
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. It is to indicate that Harlan's dissent relies on his understanding of the Founders' arguments
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. Not some direct appeal to any broad law out there that we don't know.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But how did he figure out what the Founders meant by natural law?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, I think, Senator, you look at the debates, you look at whatever it was that Harlan had available to him. 273 There is not an explicit direct reliance on anything other than what he could find the Founders meant.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right.
Clarence Thomas
Nominee
(R)
Judge THOMAS. HOW do we look at history and tradition, how do we determine how our country has advanced and grown, it is a very difficult enterprise. It is an amorphous process at times, but it is an important process.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, that is the one we are trying to find out you used, Judge. For example, before I leave the Pacific Research speech, let me digress for just a moment. In that speech you said, and I quote, "Conservative heroes such as the Chief Justice failed not only conservatives, but all Americans in the most important case"—that is Morrison—"the most important case since Brown v. Board of Education. I refer, of course, to the independent counsel case of Morrison." And you said the Morrison case upheld the constitutionality of independent counsel, which did uphold it, and you thought Scalia was right that it shouldn't have upheld it. Now, Judge, why is a case upholding the legality of an independent counsel the most important case since Brown v. Board of Education?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Why do important cases, Baker, New York Times, and the Pentagon Papers, why does that one, just out of curiosity?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, the reason that I use that approach was for most people it had to do with an obscure point, the separation of powers, so that doesn't exactly excite people in an audience. The point, though, that was I was trying to indicate to them is that when we address cases involving the structure of our Government, there is a subsequent impact or could have a direct impact on individuals, and I think that is the point that I made in the speech, and that was the central part of the speech. It was not an exegesis of the Supreme Court opinion itself, but how it affected the relationship of the Government to individuals. Again, it is a point that I would have to make again, Senator, that underscores much of the discussion of natural law. It has to be understood that I took on this endeavor, as the Chairman of EEOC, because of my general view that the last great person who was able to inspire our country toward an ideal was Martin Luther King and the notions of the poor treatment of people in our society.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I agree with you, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. It was not an effort, as I indicated in my confirmation hearings for the Court of Appeals, to establish a constitutional philosophy to adjudicate cases.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, I don't know how you can possibly say that, since you say the Framers—let's just stick to liberty—the Framers put liberty in the Constitution, because they thought it was a natural law principle, they put it in the Constitution, it became positive law, nobody knows what liberty means, for certain, so judges today have to go back and look at what the Framers meant by it. How you cannot examine what their view of natural law was, in order to know what they meant is beyond me, but
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, that's the point, we agree there.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. OK. We agree, all right. Now 274
Clarence Thomas
Nominee
(R)
Judge THOMAS. That's for starters, though.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO, you are going to apply, at least in part, the Framers' notion of original intent of natural law, right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS a part of the inquiry.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS a part. OK. So, how do we know what the Framers of the 14th amendment had in mind, when they said "liberty"? How do we know they had the same version of natural law in mind, say, the Framers in 1789, when they talked about "all men are created equal" in the Declaration, and then enshrine that principle in the Constitution later? How do we know?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, I have not used or interpreted that provision in the context of adjudication, but the important starting point has to be with the debates that they were involved in and their statements surrounding that debate.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In the debates, don't they use phrases like "Godgiven rights" and "they came from God."
Clarence Thomas
Nominee
(R)
Judge THOMAS. Let me move forward.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Don't they use those phrases? I read them.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But let me move forward. I also indicated that the concept doesn't stop there, it is not frozen in time. Our notions of what liberty means evolves with the country, it moves with our history and our tradition.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Well, Judge, what happens if the tradition and history conflict with what you and I would believe to be the natural law meaning that the Founders had at the time, even though it has been reduced to positive law? The word "liberty" was reduced to positive law in 1866. Tradition and history demonstrated when that happened; for example, women didn't have the right to vote, women were not allowed to be everything from lawyers to whatever. So, you look at tradition in history and you conclude, obviously, they didn't have women in mind. Yet, when you look at the natural law principle they had in mind, they must have had women in mind when they talk about all men and the rights of individuals. Now, when they conflict, natural law, underpinning of the Founders or the Framers of that amendment's notion and history, which do you choose?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, let me make that point or let me address that by saying this: The concept is a broad concept.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right, and that's the problem.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That's it, but maybe that is one of the reasons the Founders used that concept. It is one that evolves over time. I don't think that they could have determined in 1866 what the term in its totality would mean for the future.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I see.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But in constitutional adjudication, what the courts have attempted to do is to look at the ideals, to look at the values that we share as a culture, and those values and ideals
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Change.
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. Have evolved, in that specific provision have evolved over time.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. There are a lot of other provisions that have evolved, too, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But in that provision 275
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Sure, in liberty. Let's just stick to the liberty clause, they have evolved. Now, some argue, a number of very distinguished jurists before us argued that that evolution of those views should be bound by the history and their tradition, and Justice Scalia, whom you quote often, fundamentally disagrees with your view about going back and looking at the natural law tradition. You said yesterday, for example, that there is a right to privacy in the 14th amendment, and it was made clear that this was a marital right to privacy. Now, Judge, I assume you find that right in the liberty clause, this right to privacy.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The liberty component of the due process clause.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Right. Now, let me ask you this, if I can move along, in light of my time here: The discussion of this question yesterday about the right to privacy, yesterday it was Senator Leahy. You told the committee, "I believe the approach that Justice Harlan took in Poe v. Ullman and reaffirmed again in Griswold in determining the right to privacy was the appropriate way to go." Is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is what I said, I believe, yesterday.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, I find this still hard to understand, in light of the fact that Justice Harlan in Poe relied specifically on natural law. Let me read the quote to you. He says, "It is not the particular enumeration of rights in the first eight amendments that spells out the reach of the 14th amendment due process, but, rather, it was suggested in another context long before the adoption of that amendment"—meaning the 14th amendment—"it is those concepts which are considered to embrace rights 'which are fundamental' and which belong to all citizens of a free government." And he is quoting the Corfield case there. Now, Justice Harlan reaches his judgment based on natural law, and he quotes the Corfield case, which I might add, Judge, this is not something new. As late as 1985, in the Rehnquist court, they quote the Corfield case, as well. This is what confuses me. You say natural law is no part of adjudication of a case, that you rely on
Clarence Thomas
Nominee
(R)
Judge THOMAS. That it has to be
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me just finish, and you can tell me I am wrong. You rely on Justice Harlan in Poe as the rationale as to how you find a right to privacy in the 14th amendment, Justice Harlan adjudicates that there is a right, because it is a natural right, and you say natural rights have no part of the adjudicating process of whether or not the word "liberty" means A, B, or C, or any other provision of the Constitution that we have difficulty understanding means anything. Explain that to me.
Clarence Thomas
Nominee
(R)
Judge THOMAS. YOU missed an important point, and maybe I am not making myself as clear as I could be. What I said was this, that there is no independent appeal to natural law.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What do you call Poe?
Clarence Thomas
Nominee
(R)
Judge THOMAS. What one does is one appeals to the drafters' view of what they were doing and they believe in natural law, what were their beliefs, and one moves forward in time.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me stop you there for a second, so I understand now. I am not trying to confuse you. I am trying to under- 276 stand. The drafters had different views of natural law. You and I both know that. Some agreed with the Thomistic view—not you, Thomas Aquinas—some agree with the Thomistic view that the natural law is not revealed all at once, but natural law is a process that reasonable men, reasoning together over time, will determine what it is. Others believed, more in the Augustine tradition, he didn't call it natural law, that it is revealed, God just sent these down on high, and some people believe that it is even defete doctrine, you know, boom, this is the law. They had different views. Now, you're saying you have got to go back and look at what their view of natural law is. How do you determine which view it was?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I think it is difficult in any enterprise, when you attempt to determine what other people were trying to do. But I think the important point that has to be made
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is subjective, isn't it, ultimately?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is an important point and it is a difficult point and it is a difficult determination, just as it is difficult to determine after that how our tradition and our history and our culture evolves, and what are the underlying values. I think that is the point that Justice Harlan and others have attempted to make, that it is not to constrain the development or rights, that you would want this adjudication being tethered to our history and tradition, but, rather, to restrain judges.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, Justice Harlan had no problem. He didn't have your problem, this tortuous logic which I think borders on— anyway, this tortuous logic. He had no problem. He went straight to the heart of it in his dissent. He said you don't look to any one of the amendments to inform or all of the amendments to inform the 14th. I, Harlan, I don't have that problem, he said to the world, I go straight to natural law, and, by the way, I'm not the first one to do that, in Corfield they did that. And you say you base your conception of privacy in the liberty clause based on Harlan in Poe.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Exactly.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And now you're telling me that you don't think natural law plays—he didn't fool around, he went right to the heart of the matter.
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I said was, again, Senator, is that one goes to what the Founders and the drafters believe
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And he believed
Clarence Thomas
Nominee
(R)
Judge THOMAS [continuing]. As you indicated, that there were competing notions of natural law. I think it is an important, though difficult inquiry and that it is one that the Court undertakes, as well as the subsequent development and expansion and growth of the liberty component of the due process clause through referring to history and tradition.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, I don't know why you are so afraid to deal with this natural law thing. I don't see how any reasonable person can conclude that natural law does not impact upon adjudication of a case, if you are a judge, if you acknowledge that you have to go back and look at what the Founders meant by natural 277 law, and then at least in part have that play a part in the adjudication of
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am admitting that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Pardon me?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I am admitting that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Oh, you are admitting that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have. I said that to the extent that the Framers—
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Good. So, natural law does impact on the adjudication of cases.
Clarence Thomas
Nominee
(R)
Judge THOMAS. TO the extent that the Framers believed.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Good. We both admit, you looking at the Framers and me looking at the Framers, we may come to two different conclusions of what they meant by natural law.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But we also agree that the provisions that they chose were broad provisions, that adjudicating through our history and tradition, using our history and tradition evolve.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Let me move on. I am trying to get through this as quickly as I can here. Judge, if you are confirmed, you would go about interpreting the Constitution, prior to Tuesday I thought and now I understand, with natural law at least playing some part, as you described it. Now, that still leaves me in the dark about how you would interpret the broad principles of the Constitution in terms of what kind of natural law informed our founders, and as to whether the right of privacy protects certain family and personal decision or it doesn't. As you point out, after all, the 14th amendment is broadly phrased. It speaks of liberty and of due process. Now, the Court has used this broad language in the past, the courts—the Supreme Court not the founders—to recognize that certain types of personal decisions about marriage, child rearing and family are "fundamental to liberty." That is the phrase they use. That means that government must have an extraordinary, as you know, or compelling reason for interfering with the decisions. I am not talking about abortion. I don't want to talk about abortion. I will answer no questions on abortion. All right? [Laughter.] Now, do you agree that the right to marital and family privacy is a fundamental liberty?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me ask you a second question. You have written a great deal about the rights of individuals as opposed to groups, that human rights, natural rights, positive law rights apply to individuals not to groups. And in fairness to you, you have done it almost always in the context of talking about civil rights as opposed to civil liberties. That doesn't mean exclusive of civil liberties, but you have made your point about affirmative action, I mean quotas and other things, through that mechanism. Now, am I correct in presuming that you believe that the right of privacy and the right to make decisions about procreation extend to single individuals as well as married couples, the right of privacy?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The privacy, the kind of intimate privacy that we are talking about, I think
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The right about specifically procreation. 278
Clarence Thomas
Nominee
(R)
Judge THOMAS. Yes, procreation that we are talking about, I think the Court extended in Eisenstadt v. Baird to nonmarried individuals.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, that is a very skillful answer, Judge. Judge Souter—and I was not fully prepared when he gave me the answer. I am now. Judge Souter waltzed away from that by pointing out it was an equal protection case. So that I want to know from you, do single individuals, not married couples alone, have a right of privacy residing in the 14th amendment liberty clause?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the courts have never decided that, and I don't know of a case that has decided that explicit point. Eisenstadt was, of course, decided as an equal protection case and
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Not alone, but go on.
Clarence Thomas
Nominee
(R)
Judge THOMAS. My answer to you is I cannot sit here and decide that. I don't know
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, why can't you? That case is an old case. I know of no challenge before the Court on the use of contraceptives by an individual. I can see no reasonable prospect there is going to be any challenge. And, Judge, are you telling me that may come before you? Is that the argument you are going to give me?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I am saying that I think that for a judge to sit here without the benefit of arguments and briefs, et cetera, and without the benefit of precedent, I don't think anyone could decide that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Judge, I think that is the most unartful dodge that I have heard, but let me go on. Judge, I think the decision in Eisenstadt and so do, I think, most scholars think it stands for a much broader principle beyond equal protection. Let me read to you from Eisenstadt the majority opinion. The marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single—I will stop here. The same point you make about civil rights, individuals. Back to the quote. "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget child.' Many Supreme Court cases since then have been decided using the ruling in 1972 that I have referred to, using this basic principle. So for the time being, let's put aside equal protection again, Judge, and focus on the more sweeping question of the right of privacy. And I ask you again: Do you think that single people have a right to privacy anchored in the liberty clause of the 14th amendment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think my answer to that, Senator, is similar to my previous answer, and it is this: that the Court has found such a right of privacy to exist in Eisenstadt v. Baird, and I do not have a quarrel with that decision.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO you don't quarrel with the quote I just read to you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't quarrel with the decision in Eisenstadt v. Baird. 279
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is not the question I am asking you, Judge. Do you quarrel with the quote that I read you from the majority opinion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't quarrel with the quote, but
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. DO you agree with the quote? Let me ask you that way.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. This is getting more like a debate than it is getting information.
Clarence Thomas
Nominee
(R)
Judge THOMAS. The important point that I am trying to make, Senator, is that the case was decided on an equal protection basis.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I understand that.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not quarrel with the value that you are discussing. I do not quarrel with the result in the case.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I am not looking for your values because I know you are not going to impose them on us. I am not looking for your judgment on the case as to whether it was equal protection. I am asking you whether the principle that I read to you, which had, in fact, been pointed to and relied upon in other cases, is a constitutional principle with which you agree; which is that single people have the same right of privacy—not equal protection, privacy—as married people on the issue of procreation.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. The gentleman can finish his answer.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that the Court has so found, and I agree with that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Now, let me ask you this: Are there
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. HOW is the time, Senator?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. My time is going real well, Senator. Thank you.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. HOW much time have you got?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I don't have any idea. Just like you, I am looking at that little clock.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Who sets this clock? Who keeps this clock?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Some impartial person that works for me, Senator. [Laughter.]
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I was afraid of that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is what I thought. Now, you said that the privacy of right of married couples is fundamental, and as I understand it now, you told me, correct me if I am wrong, that the privacy right of an individual on procreation is fundamental. Is that right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that is consistent with what I said and I think consistent with what the Court held in Eisenstadt v. Baird.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Just so we don't have any problem here, I think your friends think you are getting in trouble and they would like for me to stop. So what I will do is I will stop now.
Senator John Danforth (MO)
Senator
(R)
Senator DANFORTH. NO. GO ahead. That is not fair.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Chairman Danforth suggests we can go forward. [Laughter.] But if we have gone over the time of a half an hour, we should stop. If not, I would be delighted to keep going because I would like to now talk about another phrase in the 280
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, I wouldn't like to do it like that, because when I started this hearing, I emphasized the issue of fairness. And that is what this is. Every one of
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If I have gone over a half an hour, I will stop.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I can assure you you have. You have gone about 35 or 40 minutes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. If I have gone 5 minutes over, then I stop. Thank you very, very much, and I want to assure you there is no plot back there, Judge, notwithstanding what my friends may think. But thank you very much. I think I have learned a lot more about what you think, and I want to come back—just so you know, so there is no surprise, I am going to come back and talk about other provisions of the Constitution which we don't understand the exact meaning—I don't mean just "we." We, the universe of lawyers. Thank you very much. I yield now to the distinguished Senator from South Carolina. And if I have gone over any time at all, add that time to the Senator from South Carolina's time. Oh, I am sorry. It has been suggested that it would be an appropriate time for there to be a 10-minute break. We will recess for 10 minutes. [Recess.] The CHAIRMAN. Judge, welcome back. I want to make clear for the record I was not referring to—when I said your supporters, I was not referring to the distinguished Senator from Missouri or anyone from the White House or your family or you or your friends. I was referring to the intramural scuffle that occasionally we get into here. And I want to make it further clear there was no need for—we had agreed before we began that we would break after two people. I wasn't suggesting, quote, you needed a break because of the relentless questioning. That was no part of it. It was the intramural scuffle that was going on here, which is all intramural scuffles are ended here because there is no problem. And as is always the case, if I went over—and apparently I did go over—the Senator from South Carolina and/or anyone of my colleagues on either side—I don't ever recall cutting anyone off when they have gone 35 minutes if they were in a line of questioning, and I won't do it now. They can have as much time as they want. We will break after two more for lunch, and we will move on from there. I now yield to my
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, I think, too, I want to clarify that I understand that the time and the lapse or the failure to terminate was totally inadvertent, and I want to state that. I understand that was an error. It did occur, but it certainly wasn't anything
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think what happened was, remember when you were going through your book? I turned and said, "Hold the clock." And what happened was, this clock is not what you would call—the Navy Department would not use it for its instrumentation purposes. That is what happened. We did go over 5 minutes. We are all squared away. 281
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. 18 minutes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. 18 minutes?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. That is what I understood; 48 minutes is what I heard; 48 minutes, that is what they said.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, Senator, you can have 53 minutes if you would like.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I don't care for any more. We will just cut yours the next time. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. Here we go. The Senator from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. Judge Thomas, in a 1988 article in the Harvard Journal of Law and Public Policy, you stated, and I quote, "To believe that natural rights thinking allows for arbitrary decisionmaking would be to misunderstand constitutional jurisprudence based on higher law." Now, the question is: Is it your belief that cases that come before the Court must be interpreted according to precedent, the law, and the Constitution?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is the case, Senator. I think it is important for any judge to recognize that when he or she is engaged in adjudication that you must start with the text and structure of the document. And, of course, it is important in some of the open-ended provisions and constitutional adjudication to look to our history and our tradition. I think that the importance of doing that is not so much to restrain or constrain, as I said before, the development of important rights and freedoms in our society, but rather to restrain judges so that they do not impose their own will or their own views or their own predispositions in the adjudication process.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, you said in your opening statement that you benefited greatly from the efforts of certain civil rights leaders. You further said that but for them, there would be no road to travel. Could you generally describe how you benefited by the efforts of certain civil rights leaders?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I speak with caution. I guess I have spent so much time on my own biography that it may be a matter of concern. But let me just make this point. There were any number of friends of mine whom I considered when I grew up to be much, much more talented. There were individuals who had enormous ability to remember, individuals who had tremendous capacity with numbers, and you wonder whether or not they would have gone on and become physicists or writers or business persons, what have you. But somehow, with the impediments—impediments that said you couldn't go to a library, that you could not go to certain schools, that you could not walk across certain parks, go into certain neighborhoods, impediments that said that you could be picked up and put on the chain gang for just standing on the corner—somehow with all those impediments, any number of them were prevented from moving on. Relatives, friends—my grandfather is a perfect example. Enormously talented man. Unless someone removed those impediments, unless there was a civil rights movement, not all the talent in the world would get me here or get me actually even out of my neighborhood in Savannah. 282 That is the point; that the civil rights leaders opened the doors, that the civil rights movement opened the doors that permitted individuals like myself to then move on. My further point was this, and that is that when others, either directly or indirectly, in a broad or a specific way, make the effort to create these opportunities, then I believe that I have an obligation and I believe that others have an obligation to repay them by taking full and complete advantage of those opportunities. As Martin Luther King said, we have to burn the midnight oil. And I think it is important to repay individuals, individuals with those kinds of efforts. And I have tried to do that, and I would encourage others to try to do that and remember those leaders and remember what they gave for us to have these opportunities.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, I often ask potential judges for their comments on the topic of judicial temperament. How important do you believe this quality is in a judge? And what are your views on this topic?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important, actually critical for a judge to be able to listen, to be open to the arguments, to be open to the different points of views, to look for all arguments on all sides, to explore them in depth, not to reject any. I think the essence of temperament is that receptivity and that openness, because, as I said, before the process is over, a judge has to feel that he or she got the decision right, and there is no better way to get it right than to allow the adversarial process to work to its fullest, and you can do that by having the temperament and the receptivity and the openness throughout the process, so I would say it is critical.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, I noticed in your background that you worked with poor and indigent clients as a student attorney in the New Haven Legal Assistance Bureau, covering a broad range of legal issues. Some bar associations have debated the question of making pro bono representation mandatory. Aside from this issue, what are your views as to the importance of pro bono work?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I would look at pro bono work on two levels, first the need of the individuals. I think there are individuals in our society who, for whatever reasons and a variety of reasons, primarily socioeconomic reasons, cannot afford the kind of representation that they deserve or that they need. I think it is important for all of us in the society to feel and to know that our judicial system is open to everyone, and the representation of poor or indigent individuals, I think, is critical to that, and it says a lot about our system. The second point is this: I think it is important, as I indicated earlier, for those of us who have gained so much from this society to give back. What I was attempting to do while I was in law school, as well as any number of friends of mine, is to take the opportunities, the abilities, the analytical skills, the energy that we had as law students and to translate that into concrete help for people who needed things, such as how to get their welfare check, how to get a pair of shoes, how to keep from being evicted, how to get their driver's license. Those are very basic things, and they may not be the sorts of things that will change the judicial landscape, but for those indi- 283 viduals it was critical and I felt a sense of satisfaction, a sense that I was giving back when I was able to work at New Haven Legal Assistance.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, early in your life, you personally struggled to overcome difficult circumstances. You have prevailed over many obstacles to attain great success. As a result of this, are there any special qualities that you believe you would bring to the Supreme Court, if you are confirmed?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, first, with respect to the opportunities that I have had and the help that I have gotten from other people, and as I noted in my opening statement, there have been just countless numbers of individuals who have helped me when I needed help. I can remember, for example, wanting to take a reading course and not having the money, and I remember someone, still to this day, someone I don't know left $300 for me to take that reading course in 1970 or 1971. So, the people who have helped me have been countless. But if there is one thing that I have learned, it is that you have to commit yourself to working hard, and you have to understand that that alone will not do it. But going to the Court, the experience that I would bring is something that I said earlier today, and that is that I feel that, since coming from Savannah, from Pin Point, and being in various places in the country, that my journey has not only been a journey geographically, it has also been one demographically. It has been one that required me to at some point touch on virtually every aspect, every level of our country, from people who couldn't read and write to people who were extremely literate, from people who had no money to people who were very wealthy. So, what I bring to this Court, I believe, is an understanding and the ability to stand in the shoes of other people across a broad spectrum of this country.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the power of the judiciary is limited by article III of the Constitution to cases and controversies. Its jurisdiction is not unlimited, as the Court must decide disputes between parties. Could you please describe the limitations on Federal jurisdiction and what role that would play in hearing cases before the Court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important for any judge to ask that critical question, what authority do I have or what jurisdiction do I have to review this case or to adjudicate this case. I think that is important, and that is critical in the judge being able to restrain himself and rightfully restrain himself. I do that myself, and in my own cases, either explicitly or implicitly, go through that sort of analysis and self-questioning.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, how would you resolve a conflict between your own conscience or your own sense of justice and the clear meaning of a statutory or constitutional provision?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, if I was unable to adjudicate a case impartially, I don't think that—in fact, I would consider recusing myself from that case, and probably would or more likely would. I think it is essential that a judge be impartial. With respect to my own personal views, my views have no place, my personal views have no place in adjudication. The object of ad56-270 O—93 10 284 judicating a statute, or interpreting a statute, or applying a statute is to determine the intent of this body, the intent of the legislature, whether or not one would agree, if one were in a policy position, with that intent or with that policy. It is the will of the legislature.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, in an effort to provide the public with a more accurate and fair understanding of what actually occurs in the court room, the Judicial Conference has recently authorized a 3-year program to allow photographing, recording, and broadcasting of civil proceedings in certain Federal courts. As you are aware, many State courts have also permitted the use of cameras in the court room. Of course, this situation must be carefully balanced, to insure that the integrity of the court room is not compromised, in an effort to provide the public with better information. Judge Thomas, could you provide us with any comments you may have on the use of cameras in the court room?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Of course, Senator, at our court, we are an appellate court, and there isn't much activity, other than fairly intricate and detailed oral arguments. But I would have no personal objection—of course, I can't speak for the other judges or for the courts—to cameras being in courts, as long as they were unobtrusive and did not disrupt the proceedings. For the life of me, though, I can't imagine how someone would spend any significant amount of time watching a program that involves oral arguments in appellate cases. After they have had their fill of three or four FERC cases, I think that they would probably tune out.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, the concept of judicial immunity is deeply imbedded in our common law heritage. Judicial immunity insures that judicial officers will be free to make appropriate decisions, without the fear of reprisal from the parties involved in the lawsuits. If judges are subjected to legal actions based on their decisions, what impact would this have on the independence of the judiciary?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that when judges engage in conduct that is inappropriate, the grievance process seems to work well. Of course, we have our own Code of Judicial Conduct. I would be concerned, if a judge is put in the position where he or she feels that the judge could not make a decision, without fear of a lawsuit. It is important that a judge be able to impartially and objectively rule on cases, without the external pressures that are not relevant to that particular case.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, some have recommended imposing a requirement that the losing parties in a lawsuit be responsible for the legal fees of the opposing party, in an effort to reduce frivolous lawsuits. Do you think that such a proposal would chill the filing of meritorious lawsuits, because of the fear of such financial sanctions if a party should lose?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that one should be concerned that if a change in the manner in which legal fees are paid would chill the filing or the litigation in appropriate cases. I have not studied that particular issue, but my concern would be that our system has seemed to work well, and there may be instances in which individuals may think that there have been abuses. But I would be careful in changing the system wholesale, without understanding what the 285 unintended consequences could be, and indeed having a chilling effect on litigation in appropriate cases might well be such one unintended consequence.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, if you are confirmed, what do you believe will be the most rewarding aspect of serving on our Nation's highest court?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think the reward, Senator, for being entrusted with that great a responsibility is actually discharging that responsibility in a dignified, professional and judicial or judicious way, and to realize that you are doing all you can to preserve and protect the Constitution and the freedoms of the people in our country. I think the reward itself is in the doing of the job and doing it right.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, international drug cartel members have sometimes avoided prosecution as a result of the difficulty of finding the appropriate forum of prosecution. International drug courts have been discussed as an option. Would you discuss whether you believe our Nation's concept of due process can be reconciled with other countries' principles of what constitutes due process, if such a court was implemented?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that our notions of due process in criminal cases is so imbedded and so important in our way of life and important to our way of life and to us, that I would be concerned if there was any diminution of our respect for those rights and our regard for those rights in the creation of other tribunals.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, you mentioned yesterday in your opening statement that you wished your grandparents, who were a major influence in your life, could be here today. What do you think your grandfather would say, and what advice would he give you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I used to go back home and visit him after I was a member of the Reagan administration, and the one thing he would always say is, "Tell that Mr. Reagan don't cut off my social security." [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What did you say? [Laughter.]
Clarence Thomas
Nominee
(R)
Judge THOMAS. I told him I would look out for him and make sure that didn't happen. He was a wonderful man. I can only repeat, the last time I saw my grandfather was in the hospital, we were visiting my grandmother, who was ill, and they both died. They died about a month apart. I can remember having had a long conversation with him in the lobby of the hospital, St. Joseph's Hospital in Savannah, and the elevator door, he marched me to the elevator and I was waiting on the elevator and we were talking away, and his final words to me, because I was complaining about the difficulty of doing my job and the criticisms and thinking about giving up, and his last words to me, as I can remember, in 1983, February of 1983, was "Stand up for what you believe in," and I think he would give me the same advice.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, in a speech before the Palm Beach Chamber of Commerce in 1988, you spoke about the implementation of civil rights legislation and its complex relationship between Congress and the executive branch. Would you care to 286 expand on this for us and include the courts in describing the roles of the three branches of Government in the area of civil rights?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that we have an obligation in this country, and I have tried to do that in writings and speeches and efforts to open this country up to everyone, and we have an obligation to aggressively enforce laws that require people to not discriminate, to enforce laws that say you can't treat a person arbitrarily, to push for programs that say let's open up our society. Now, there is disagreement on how far you should go and what is the precise approach, but there is no disagreement that we have got to eradicate discrimination, and I think all three branches have a role in that. I also believe that we have got to open up doors, and there may be disagreements over that, but it has just got to happen. I don't think that we can be content in this society, when the gap between have's and have not's continues to expand, and I don't propose to have all the answers and I am sure that there will be debates about how best to do that and whether or not there would be drawbacks to a certain approach, but at bottom I do know it has got to be done.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Thomas, would you please give us your view of the role of antitrust today, including those antitrust issues which you believe more seriously affect competition and the consumer.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think it is important that we recognize that, in a country such as ours, where we have an economy and a free enterprise system that has the capacity to absorb a variety of individuals and to allow people to participate, a small business person like my grandfather, that it is important to keep that economy open to access and open to competition, and I think that the antitrust laws are important. I think they are important for those individuals who do want access, and I think that they are important for individuals who use the products of that process, from a price standpoint, quality standpoint, and efficiency standpoint.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I don't have any more questions at this time. I would like to take this opportunity to commend you for your calmness, steadfastness, and courtesy in answering questions of the members of this committee.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Judge Thomas, one of the Supreme Court's most important roles under the Constitution is to resolve the disputes between the President and the Congress about the limits of executive power. The role of the Court has grown more independent, important in the past quarter century because we have had a divided government for most of the last 25 years. The Framers of the Constitution believed that unchecked executive power is one of the greatest threats to freedom and individual liberty. You yourself have made many strong statements in your speeches about the need for limited government. Yet you harshly criticized a Supreme Court in 1988, Morrison y. Olson, which upheld the constitutionality of a statute authorizing the appointment of independent special prosecutors to investigate criminal conduct by high officials in the executive branch. The Supreme Court upheld that law by 7-1, the opinion written by Chief Justice Rehnquist. Justice Scalia was the only dissenter, and in a speech that same year, you condemned Chief Justice Rehnquist's decision. You praised Justice Scalia's dissent. You said, and I quote, "Unfortunately conservative heroes such as the Chief Justice failed not only conservatives but all Americans in the most important case since Brown v. Board of Education. I refer, of course"—and this is your quote. "I refer, of course, to the independent counsel case, Morrison v. Olson. As we have seen in recent months, we can no longer rely on conservative figures to advance our cause. Our hearts and minds must support conservative principles and ideas. Justice Scalia's remarkable dissent in the Supreme Court points the way toward those principles and ideas." Now, that is a very strong statement opposing the validity of independent special prosecutors. But no branch of the Government should be trusted to investigate itself. Independent prosecutors are sometimes needed to ensure that high executive branch officials do not violate the law. We all remember Watergate. The Justice Department voluntarily appointed Archibald Cox as a special prosecutor. Mr. Cox began to do his job too well, fired by President Nixon in the Saturday Night Massacre. So Congress enacted legislation authorizing the courts to appoint independent special prosecutors to prevent that from ever happening again. Now, the Iran-Contra scandal could never have been fully investigated and the wrongdoers brought to justice without the appointment of the special prosecutor. And if the circumstances warrant it, a special prosecutor should be available to investigate the savings and loan scandal. Yet you say that special prosecutors are unconstitutional. Why?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't think that my point of departure was that it was unconstitutional, although I disagreed and argued that the Scalia opinion was the better approach. Let me make a couple of points. I discussed that with Senator Biden earlier. My concern was this: I
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am not interested in so much Scalia's rationale in terms of the natural law. I was here during your response. I am taking a different approach, and that is with regards to the decision, only one dissent on the issue of the constitutionality of the special prosecutor. And in that one dissent, in which Justice Scalia developed his opposition to the strong majority opinion, he expressed his view that it was not constitutional. Now, why shouldn't we have the capability when there is the wrongdoing in the executive branch? Why isn't it important that we maintain the majority's opinion in that special prosecutor case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that is a fair question. The point that I was trying to make there was not that there shouldn't be a way to aggressively investigate and determine wrongdoing. I agree with that. I think that is very important. That is the way you keep government honest. And I think you find ways to sustain people's belief in Government by making sure that it is honest. The point that I was trying to make there was that when you have an individual that—the way that our Government has protected the individual is the tension between the branches, that you 288 have three branches, none really dominating the other; and that when you have one member or one individual that is not directly accountable to either, then the consequence could be—and I thought in this case, again speaking broadly—the consequence was that individual rights were at stake, the individual rights of an individual who is investigated, not responding to Congress or responding to the Executive, but to a person who was not responding to either.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, all of the rights and protections of the Constitution are still there even under the special prosecutor. All of the other kinds of protections of the Constitution are there. This is basically a question about whether, as the Founding Fathers pointed out, spelled out very clearly, article II, section 2, permits Congress to vest appointments of such inferior officers, as they think proper, in the courts of law. We have seen both in Watergate, potentially in the whole savings and loan scandal—no one is prejudging that at this time, but there may very well be those within the executive department that ought to be subject to that particular kind of process and procedure. And all of the constitutional rights and liberties are still retained by those that are going to be found by the special prosecutor to be subject to prosecution. So why aren't those rights and protections sufficient?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I agree with you that where there is wrongdoing, it should be ferreted out aggressively.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, how are you going to do that in the executive branch if they have the responsibility of investigations?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The point that I was making was very simply this: that it wasn't that it should not be determined or that wrongdoing should not be ferreted out, nor did I indicate that perhaps there could not be—that the executive could necessarily totally oversee itself. I don't think that was my point. My point was that the individual, when an independent body was involved in the investigation and conducted the investigation, that there wasn't that responsiveness directly to either one of the three branches, and that that concern led to a view that an individual— that that lack of accountability could actually undermine the individual freedom of the person who is being investigated. That was the totality of that point. And that is, I think, an important point, and it was one that I made in the context of a speech about individual freedoms.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the Attorney General can remove a court-appointed special prosecutor for cause. Isn't that enough protection?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, again, that may be—the Court found it to be enough, and I would assume that case stands decided, that that is enough in order to—from a standpoint of constitutional law that is enough protection in a legal sense. But my point was just simply—and I think the Court also found that none had been removed or that that had not been used. But my point was not so much the legal analysis per se, but rather what the effect of a ruling that allowed a person to investigate someone who is not responsive to either of the branches of the Government. 289
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do you feel now that as a matter of law that there is the special prosecutor process and procedure decided by the Supreme Court overwhelmingly is the law of the land?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right. I agree with that, Senator. I think it is. It is a decided case. I was simply expressing, from a point of view as a member of the executive, my disagreements with it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me, if I could, go back to a case that was discussed earlier, the Johnson v. Santa Clara Transportation. Just quickly to go over the facts, this is a leading case in the rights of women to be free from job discrimination in the 1986 the Supreme Court decision in Johnson v. Santa Clara agency. In that case, a male worker challenged the promotion of a woman to the job of road dispatcher. She was the first woman ever to hold that kind of job in the county. In fact, she was the only woman to hold any of the 238 skilled positions in the agency. The county was making a voluntary effort to bring qualified women into these positions, and the woman had experience comparable to the men who had applied for the job, and she had been rated qualified by the county. She had scored 73 out of 100 in her subjective oral interview. The man had scored 75 on the oral interview. But the employer said that the different scores were not significant. There were actually seven, as I understand it, employees that met the qualification standard which had been established. The man took the agency to court saying he had been the victim of sex discrimination. The woman had had more than ample experience on the job. She was found qualified for the job. She ranked only two points below the man on a subjective interview, according to the agency. She had demonstrated that she was qualified. In fact, she was a pioneer, willing to be the first and only woman on road maintenance crews in the county. How could you conclude that she was not qualified to receive the job?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the point that I was trying to make was this—and I think I alluded to it earlier—that when you have a statute that seems to be clear that there should be no discrimination and it doesn't prefer or it doesn't deter any particular group or individual, and you do something that seems not to comport with that language, there is a problem. I for one agree that, and I certainly did it in my job at EEOC, that there are ways and it is important to include minorities, women, and individuals with disabilities in the work force and to aggressively do so. And I am proud of that record. But there is this value in the statute that does not—that makes discrimination wrong on any basis, whether you want to do good or you want to do bad. And I think it is important to recognize that. Now, that can be changed; that can be altered; that can be adjusted perhaps. But that value is in the statute, and it was that movement away from that that I was criticizing.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. The movement away is effectively two points, and this was on the basis of a subjective interview. That was only part of what the agency looked at. The record shows that one of the officials who interviewed her had previously refused to issue coveralls when she worked on the road crew until she had ruined her clothes and filed a grievance, although he did issue coveralls to 290 male workers. The second member of the three-person interview panel had described her as a rabble-rousing, skirt-wearing person. So two of the three officials who participated in the interview had clearly displayed a bias against her. She endured that discrimination as a road maintenance worker, and her employer found that she was among the best qualified to be the road dispatcher. And yet you would hold that the law bars that employer's decision.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, it is clear that if the hiring process is discriminatory that she has a direct claim; that is, she can argue that the individuals who interviewed her engaged in discriminatory conduct. And I would clearly be in favor of actions such as that. That is my point. The question in this case wasn't that there was discrimination in the application process or in the employment process with respect to the woman in the case. The question was whether or not the man who was rated higher in that process, again without challenge to the selection process, the question was whether or not he was discriminated against because of his gender, because at the end of the process he was rated most qualified. Now, let's turn it around. If at the end of the process the woman had been rated most qualified and the man was not re; A as qualified, and the man was hired and the woman brought a sex discrimination charge, what the agency would have to do is process a charge indicating that there was gender discrimination against the woman.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the fact remains that seven individuals were qualified, according to the scores. So the employer made the selection that they had 238 individuals that are serving in these positions and not a single woman. There are seven in the pool that the employer says are qualified, voluntarily selects this individual who only scored two points lower than the one who brought the case on a subjective test where two of the individuals clearly expressed some bias against that individual. And you are suggesting, well, they are going to have to—the employer is going to have to state that they have some kind of a plan of discrimination in the past. If any employer were to make that kind of finding or judgment based upon the past, they would be subject to a good deal of liability, wouldn't they?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, they should be if they were discriminating.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. All right. Well, how are you going to encourage people, how are you going to encourage any of those employers? How are you going to encourage employers such as the Santa Clara County who said that we have got 238 executive positions, all men. We have this one woman who has been a real pioneer in terms of striking down the stereotyped jobs and is able to perform that. The employer says qualified to perform it. And a clear kind of bias in terms of the subjective test, expressions, refusing to provide the coveralls and the other statements about it. And you are prepared to say to us now that you would continue to deny that woman who has been found qualified by the employer of that particular job.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me answer it this way, Senator. The problem that has to be confronted is that the statute does not make that distinction. 291 Now, with respect to the underlying concern that you have in the treatment of individuals in our society based on gender or race, I think that many of these exclusions, many of the problems that we have are abhorrent. And I have said so on the record, and I have conducted myself consistent with that. I believe that one way to address some of these concerns where there does not seem to be an effort to include minorities and women is something that you and I have discussed in the past, and I still think—I thought as Chairman of EEOC—I won't comment on legislation as a judge. But one of the major weaknesses in that statute is that there are no real deterrents. There is no real damage. All you have to do if you discriminate against someone is to give that person the job he or she would have had or the back pay involved. I was convinced as Chairman of EEOC that if there was real teeth in that statute, that would more than encourage employers to do the right thing.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, of course, the Court decided 6-3 that it was consistent with the statute. Now, you have expressed your opinion about the hiring of a woman. Wasn't the county just opening its doors to a woman whom it felt to be qualified in attempting to provide some degree of diversity in its institution, like Yale was in its institution? Why isn't it the same?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have looked at that hiring process in this case. There is an explicit statute on its face that says here is how it is supposed to occur. I agree with the notion of diversity. I am a strong supporter of including people who have been excluded. Yale went about it in a way where it looked all over the country. It looked for people to include in its class, individuals it felt were qualified from among a number of qualified individuals. It made the decision that certain minorities were qualified, as it did with respect to certain whites. And it found that individuals, including myself, were qualified. We were not talking about two people competing for one job. We were talking about an educational institution that was very subjective in its selection process.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, of course, educational institutions have to conform as well under title VI.
Clarence Thomas
Nominee
(R)
Judge THOMAS. They have to conform, Senator, but we are not, again, talking—there is nondiscrimination. It gives you what the selection process is.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU don't see any similarity with what Santa Clara is trying to do in terms of providing some degree of diversity and what Yale was attempting to do
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do, Senator. That is the point I am trying to make; that the problem that I have wasn't in what Santa Clara was trying to do. The problem is that you have got a statute that provides for a fairly neutral principle, and that is that you cannot discriminate based on race or sex or national origin.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Before winding up on that, that decision was 6 to 3; was it not?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I believe it was, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU were an official of EEOC at that time, you were part of the administration, and yet you recommended to courts, though your speeches recommended that lower courts 292 follow the Scalia decision, did you not? You said, "Let me commend to you Justice Scalia's dissent, which I hope will provide guidance to lower courts." Weren't you inviting lower courts to find ways to disregard the majority ruling in that case in a way that would make it even harder than it already is for women to prevail against sex discrimination on the job and achieve equal opportunity?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that, in using the word "guidance," I suggested what we do in our job now, and I think most any judges do, is we look at the opposite side of the argument. But let me make a point with respect
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the majority is 6 to 3, that is the law of the land, and if the Cato Institute—you used those words, "Let me commend to you Justice Scalia's dissent, which I hope will provide guidance for lower courts." Now, you are an executive official. Why are you recommending that they follow the dissent in that case, when the 6-to-3 majority says that is the law of the land?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that if I wanted to say follow that, I would have said it, and I don't think that any of us is sufficiently off our rockers to say that dissenting opinions are controlling. In fact, in my confirmation before my second term at EEOC, I indicated just that point to you. But the point that I am making is that, even as I had my own concerns, we used that precise case, Johnson v. Santa Clara, in our development of rules for affirmative action in the Federal Government and we refer to Johnson explicitly for affirmative action in the Federal Government.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, hopefully, since it is the law of the land
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is the law of the land and that is the point I am making.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But your language will, I believe, state, at least, your position to the Cato Institute. Let me go into a different area. I noted with interest that you were asked by Senator Simon yesterday about the constitutional issues involved in a case on freedom of religion and the so-called Lemon test used by the Supreme Court to decide cases involving the separation of church and state, and you answered, "I have no personal disagreement with the test," and you repeated that view this morning in response to a question from Senator Kohl. You said, as I recall, that you have no quarrel with the Lemon test. Now, as a matter of fact, the Supreme Court is scheduled to hear a particular case this fall on that issue, the Lee v. Weisman case. The Supreme Court has been called upon to consider its earlier decisions, and the Justice Department has already filed a brief in that case calling for the Supreme Court to abandon the constitutional test it has been using, the Lemon test. I have the brief here: The case offers the Court the opportunity to replace the Lemon test with the more general principle implicit in the traditions relied upon in Marsh and explicit in the history of the establishment clause. So, if you are confirmed as Justice, you will be sitting on that case this fall as a member of the Court. Yet, you did not hesitate yesterday and today to tell us that you have no personal disagree- 293 ment with the Lemon test now being used by the Supreme Court. My question is, do you have any personal disagreement with the test used by the Supreme Court in Roe v. Wade to decide the cases on abortion? That test requires the State to have a compelling State interest, if it is to justify an infringement on a woman's right to choose an abortion.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, without commenting on Roe v. Wade, I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, in the liberty component of the due process clause, and that marital privacy is a fundamental right, and marital privacy then can only be impinged on or only be regulated if there is a compelling State interest. That is the analysis that was used in Roe v. Wade, you are correct. I would not apply the analysis to that case or can't do it in this setting, and I have declined from doing that in this setting, the analysis separate from that case, if that is the test, the compelling interest test. I don't have a problem with that particular separate analysis separate and apart from that case, but I think it is inappropriate for me to sit here as a judge and to say that I think that should be used in a case that could come before the Court, for the reasons that I have stated previously.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Judge, you have indicated a willingness to comment on the constitutional cases affecting the establishment clause, the test which you would be willing and do support under the Lemon case. I am not asking you how you would rule in Roe v. Wade. All I am asking you is, since you have been willing to state your agreement with the current test in the Lemon case and you will be sitting on the Court in October on that case, if confirmed, and you have been willing to express your opinion here on the test that is used in terms of the establishment clause. My question is, without getting into the outcome of Roe, whether you have any problem in the test, the compelling State interest test.
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I have said, Senator, is that the Lemon test I had no quarrel with, but the Court has had difficulty in its application. I think that was my complete statement. With respect to the compelling interest test in the application of that to fundamental rights, fundamental privacy rights, I have said that I have no problem with that, so I have said that the compelling interest test I have no problems with. I said that yesterday, I believe, with Senator DeConcini, when we were talking about the equal protection analysis. What I have said that I cannot do is now import that and superimpose it and apply it to a specific case.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am not asking you to do that. As I understand, you do not have a disagreement with the compelling interest test, when it was applicable in the abortion standard.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Could you repeat the question, Senator?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU don't have, as I understand you, you don't have a quarrel with the compelling interest test used in Roe.
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS I have indicated, Senator, with respect to the application of the compelling interest test to that
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am just talking about the test. That is all I am talking about, is the test. 294
Clarence Thomas
Nominee
(R)
Judge THOMAS. YOU are doing two things, and I am trying to separate them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I think I understand what you are trying to do. [Laughter.]
Clarence Thomas
Nominee
(R)
Judge THOMAS. What I am saying is that the compelling interest test I do not quarrel with, and I do not quarrel with the application of the compelling interest test where the right of privacy is found to be fundamental. My point is that I cannot apply that test in the specific instance involving the issue of abortion involved in Roe v. Wade. That is what I am declining to do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What test are you going to apply?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, that is what I am trying to remain impartial to
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. We are just talking about the test, not what the outcome is going to be, what the standard is that you are going to use. We found out that the Supreme Court has applied this test. I am not trying to make the judgment of what the outcome would be. You have been willing to express your view about tests with regard to another extremely important provision of the Constitution. My question again is whether you are prepared to make that same kind of comment with regards to the application of that test in abortion cases.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, what I think I have done is I have said that the Lemon test, I had no quarrel with the application of the Lemon test generally to establishment clause cases. I have said that I had no quarrel with the application of the compelling interest test to the area of privacy cases, when privacy is a fundamental right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Including abortion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. And what I have done is left open, and I think appropriately so, for the reasons that I expressed yesterday and again this morning, is not apply that to the difficult issue of abortion and the case of Roe v. Wade. I think that is important for me to do, in order to not compromise my impartiality.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do I understand that you may overrule it or you may sustain it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have no agenda, Senator. I have tried to here, as well as in my other endeavors as a judge, remain impartial, to remain open-minded, and I am open-minded on this particular important issue.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My time is up, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. We have been breaking for an hour and a half, giving us time to go back and return calls and the rest. We have been running a little late this morning, so we will break until 2:15. [Whereupon, at 12:53 p.m., the committee recessed, to reconvene at 2:15 p.m., the same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. The Chair recognizes Senator Hatch for as much time beyond 30 minutes as he thinks he needs. [Laughter.] 295
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I certainly appreciate that special deference and I will probably take it. Judge Thomas, I think it is appropriate at this point for us on the committee to remember a very important point, and that is that you are a sitting Circuit Court of Appeals judge in what many feel is the most important Circuit Court of Appeals in this country, the Court of Appeals for the District of Columbia Circuit. It is considered to be so important because of the wide ranging matters it handles. So, you are a sitting judge on one of the Nation's highest courts, and whatever the outcome of these hearings may be, you are still going to be a judge for the rest of your life, for the rest of your professional life, if you so choose to be. You simply do not have the freedom to answer every question as a sitting judge, every question that every Senator might have on this panel or might wish to be answered, and that goes for questions from both sides of the aisle, not just the other side of the aisle. Now, I kind of resent the implication made several times that you are selectively answering only those questions that suit your political agenda. Believe me, I have many questions I would like to ask you about your own political beliefs and your particular political philosophy, and I would enjoy having answers to them. But I respect your duties as a sitting judge and your responsibilities as a nominee to our Nation's highest Court, when you say that you don't want to impinge upon your right to sit on some of these very important issues as they come up in the future, nor do you want your right to sit on those issues and to hear those issues questioned. And they could be questioned, if you got into your particular points of view at this time, assuming you have them. So, I suggest to you, just keep answering the questions in the very responsible manner that you have been answering them. That is the way any good judge would answer these questions, in my opinion. Now, Judge, the court on which you sit, the Court of Appeals for the District of Columbia Circuit, handles quite a few cases of statutory construction; is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, you have sat on approximately, as I understand it, 170 judging panels; am I right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think 150 or so cases I have sat on.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. More than 150 cases, and let me just ask you this question. In your decisions, have you resorted to legislative history in construing these statutes?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I have indicated, when the statute is ambiguous, and in an effort to discern the intent of Congress, there have been instances in any number of cases when either myself or another judge with whom I sat, an opinion which I signed onto referred to and included legislative history. Where relevant, it is an important part of our interpretation of statutes from this body and in other areas.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, in your decisions, have you relied upon natural law? 296
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, Senator. As I indicated earlier in my prior discussions with the Chairman, I indicated that, in adjudicating cases, the limited role of natural law with respect to our Framers, but beyond that the reference is to the history and tradition of our country.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I think that is an important distinction. Now, when a Senator asks you, as the nominee, do you believe the Constitution protects the woman's right to choose to terminate her pregnancy, I believe the nominee is being asked to decide the principal underlying issue in abortion cases, and certainly in a number of cases that are expected to come before the Court in the immediate future. Now, it is irrelevant, in my opinion, if the Senator adds, "Oh, but don't tell me how you're going to decide a particular case." Once you give the answer to the first question, does the Constitution protect a woman's right to choose to terminate her pregnancy, if you give the answer to that question, you are well on your way to deciding particular cases involving abortion which are certain to come before the Supreme Court. Now, let's not kid ourselves, we all know that. It is, in my view, inappropriate to keep this up. Thus far, you have been asked about 70 questions on abortion. Now, I don't know why you are being singled out, because Justice Souter was only asked 36 questions on abortion, and that was way too many, since he hadn't decided how he was going to vote, either. Now, as I heard your testimony the day before, you said that you are basically undecided on that issue, and that you are reserving your judgment until the time when you can listen to all the facts and all of the issues and all of the case law and all of the other materials pertaining to that particular issue. Am I wrong in stating it that way?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I indicated that I think it is important that I retain an open mind and that I don't have an opinion on that important case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, if you answered that question that I cited at the beginning, which is probably the pivotal question, I think questions would be raised as to whether or not you would be impartial in cases that may be in front of you in the next year or so. I would just add that I do not recall you replying to questions Tuesday or yesterday with the specificity that you have been pressed with these abortion cases. One year ago this week, Justice Souter declined to say anything about abortion. He was approved 13 to 1 in this committee, 13 to 1, and he refused to say anything about it. I think the burden is on those who would condition your confirmation on answering questions about abortion to tell the American people why you are being treated any differently from Justice Souter—70-plus questions thus far, versus 36. I think when you say you are going to keep an open mind, you are undecided, you are going to look at everything and you are going to do it in the best way you can and make a decision in the best way you can, I think we ought to take your word for that, especially since you have a reputation for integrity and honesty. I don't think anybody questions that. 297 So, I ask the question, why are you being treated differently from all of these confirmable people in the past? Now, I know it cannot be that throwaway line in a 9-page single-space speech to the Heritage Foundation. I don't think you should be judged by that. I think you should be judged by your testimony here. I think that reed is so thin, that it is invisible. But so much for that. I just have to say that you have been asked double the questions of Justice Souter. What are we going to have, 64,000 questions on abortion before we are done with this approach? You would think, from listening what is going on here, that it was the only issue the Supreme Court has to decide. I have to say I think it is a tremendous mistake to condition the confirmation of a Supreme Court nominee on any single issue. I have to admit, I feel very deeply about abortion, too, and I wouldn't mind knowing, if you knew, how you would rule in advance myself. But, I am not going to ask you, because it is a controversial issue, it is a difficult issue. It is one you are going to have to hear, it is one where, if you gave your opinions now, I think you would seriously erode any confidence anyone would have when you are on the bench trying to make the final decision on any number of cases that might come before you that you will fairly weigh the arguments in that case. So, I think there is a time when enough is enough. Frankly, I think you have more than adequately said you will do the very best you can honestly to decide those issues, based upon the materials that are brought before you when you are sitting on that Court, and that as of the present moment you haven't an agenda and you have not made up your mind how you will vote on those issues. Indeed, how could you, because nobody knows what those facts are going to be, nobody knows what the particular case is going to be, except some of those that may be pending at the present time. Well, enough on that. The subject of affirmative action came up on yesterday and today, I have to say, and I have some questions on that, but let me just make a few comments first. Affirmative action can mean different things. It can mean reviewing one's employment practices to eliminate discriminatory practices. It can mean increasing an employer's outreach and recruitment activities aimed at increasing the numbers of minorities and women in the applicant pool from which all applicants will then be considered fairly, without regard to race or gender. There are similar activities aimed at widening the pool of applicants, and I am going to ask about those. This form of affirmative action has widespread support in this country for it. You have spoken and you have written about it and you have written for it, and I am not aware of any single Member of the U.S. Senate who opposes that position. Now, I believe that discrimination against anyone should be ended and it should be remedied, and there is still much discrimination against minorities and women, and I think we should do everything we can to root that out in this society, and I favor the kind of affirmative action that I have just described, which you have supported in the past. 298 But there is another form of affirmative action which is highly controversial, deeply divisive, and I have to say, wrong. By whatever euphemism or label used to describe or mask it, this form of affirmative action calls for preferences on the basis of race, ethnicity, and gender. Lesser qualified persons are preferred over better qualified persons in jobs, educational admissions, and contract awards, on the basis of race, ethnicity, and gender. Some argue that there is a distinction between a quota and socalled goal and timetable, but that, in my view, is misleading and it is of no practical meaning. It isn't the label that is objectionable, but the practice, and the practice is unfair preference given to one American citizen over another. It doesn't matter what one labels a numerical requirement that causes or induces preferences. If you are discriminated against because of it, the harm is all the same, regardless of the "feel good" label someone else might happen to put upon it, and the harm to the victim is the same, if the employer is private or public. Yesterday and today, reference was made to the Johnson case. This is a 1987 Supreme Court decision. All 238 positions in 1 job category were held by males at this particular employer's business—and this is an important point, this next point: There was no finding in this case of discrimination against women by the employer. Notwithstanding the out-of-context quotes from the lower court record that we heard today, there was no finding of discrimination. Under a nondiscrimination standard, Mr. Johnson would have been selected. Among the seven qualified persons, he was recommended for the job and did have a slightly higher rating than the woman who was ultimately selected. What happened next is that the county affirmative action office got involved and the county affirmative action coordinator recommended to the hiring official that the woman be hired. Now, he did hire her, taking into account qualifications and affirmative action matters. Now, promoters of preferences, they like to say, well, the person preferred was qualified. But, if a better qualified person, even if ever so slightly, loses a job to someone less qualified because race or gender counts against him or her, that is unlawful discrimination. Now, I have to say it is unfair, and I think that is what basically you have said. This preference was taken under a plan that I believe one of my colleagues yesterday described as not a "quota," but just an "affirmative action plan." But I stress the label, whether it is called a quota or affirmative action plan or anything, is not the key. It is the practice of preference based on race, gender, and other irrelevant characteristics that is the key here. The reason to oppose a quota is because it causes preferences, not because the word "quota" sounds bad. So, it is not enough to say we oppose quotas. We must oppose preferences and we have to oppose the various means by which preferences are required, caused, or induced. Now, title VII as enacted bans preference. Title VII is not a heavy-handed interference with the private sector, as its opponents claimed back in 1964. It is the embodiment of the principle of equal opportunity and nondiscrimination. 299 In a 1979 decision that George Orwell could appreciate, the Weber case, the Court construed title VII to permit preferences in training. Now, there a white male was discriminated against. In the Johnson case, the Court extended its creative interpretation of title VII to hiring. Five members of the Johnson court said Weber was wrongly decided, that it turned title VII on its head, but two of those five adhered to stare decisis and not only let Weber stand, they extended it. It is desirable to increase minorities and women in various jobs, and that is a desirable thing and I am for that and you are for that, but not at the price of discriminating against other hardworking innocent persons who are not privileged people in this country. I have to add that there have been many instances where preferences for members of one minority group have disadvantaged members of other minority groups and women. Preferences for women have disadvantaged minority males as well as white males. In an increasingly multicultural society, the preference problem is less a black-white issue. The victims of preference do not have 150 groups out there lobbying for them, but they do have a moral right to be free of discrimination. That moral right was codified in the statute, at long last, in 1964 for all Americans. I think it is that statute to which all judges ought to be faithful. The victims of preference know that, however labeled or candy-coated, preferences are unfair, they are immoral, and they don't even have to be lawyers to understand it turns the statute on its head. I don't think it is divisive to defend the principle of equal opportunity for every individual. I think it is divisive to compromise that principle. If one wishes to require equal opportunity for all individuals, regardless of race, ethnicity, and gender, our laws and Constitution as written already require that. There is no need to establish a numbers requirement. A racial, ethnic, or gender numerical requirement, however labeled, is intended to be met. It is not intended merely to increase recruitment of minorities and women into the applicant pool, which can be required in its own right. It is intended to induce preferences of lesser qualified over better qualified persons, in order to reach the so-called "right numbers" in hiring and promotion, educational admissions, and contract awards, and that is as true in the private sector as in the public sector. Now, Judge Thomas, you criticized this kind of preferential affirmative action while in policy positions, so I want to explore just for a minute forms of affirmative action and ask your position on them while at the EEOC. These are things I agree with and I would like your opinion, to see just where you come down. Judge, let me ask you this: While you were at the EEOC, how did you feel about companies seeking referrals of applicants from organizations such as the Urban League, LULAC, the GI Forum, colleges and high schools with high minority enrollments, national organizations for women, black fraternities and sororities, and similar groups? How did you feel about that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that particularly in those instances in which the question is how does a company reach minority applicants, I have felt that those avenues, among others, were 300 very, very helpful. You can use similar approaches in education in which you have contact with organizations that are supportive of minority students and who can provide access with that student to the institution. I think that all of those accesses are important. Again, those are efforts to get minorities at the door of employment and to make that opportunity available to them.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Good. How did you feel about employers providing briefings to the groups I mentioned on the employers' premises, as well as plant tours, explanation of job openings and so on? Do you have any problem with that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think those are important. Again, the idea is to get information, and I think some employers go so far as to actually have programs in high school in which they mentor the students or programs in which they actually provide summer training. We had one at EEOC in which we had interns who were hired into the agency, as well as stay-in-school programs and co-op programs where we had an opportunity to take a look at the students and to really provide them with opportunities down the road.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree with that. What was your view about employers asking their minority and female employees to refer job applicants to the employer?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, it is a way to provide access to individuals. It works both ways. It is a two-way street. Individuals who might not have come to that employer or, on the other hand, the employer may not have known of are provided access, and I think that is, again, as important as the other avenues that we have mentioned.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree with that, too. What was your view about employers actively recruiting at predominantly minority and female schools, colleges, and universities?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Similarly, Senator, it is an opportunity for an employer to find individuals at institutions that have trained them and prepared them for the workforce. As you know, I have been very supportive of efforts of that nature. There are programs that we had—again, the co-op programs that I mentioned—at predominantly minority institutions, and the idea was to actually not only help in preparing a student to become a part of the work force, but also for us to conduct an interview over time. And we have been able to get, or were able to get some very, very good employees out of that program.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That was one of the methods that helped you, wasn't it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It was.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I certainly agree with it. What was your view about an employer recruiting in schools where there were fewer minorities or women, seeking out those fewer minorities or women to encourage them to apply?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, I think that that is an important effort. Again, Senator, it provides access and it provides contact.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What was your view about employers advertising for applicants in media with a predominantly minority or female audience? 301
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, Senator, when you are attempting to recruit and you are looking for employees, individuals who are minorities, you have to, again, look at the readership or the distribution of the media that you choose. And I think it is important. It may not be as aggressive sometimes as I think it should be, but I think it is very, very important.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What is your view about employers establishing motivation, training, and employment programs for hard-core unemployed of all races and both genders?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think it is consistent with what I have said earlier, Senator. I think we have an obligation to include those individuals who have been left out of our society in our society, in the economy, in our schools, our educational programs, et cetera. I think that that is an important obligation and one that is certainly discharged in part in that way.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Did you object to employers establishing equal opportunity offices?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I support that, in fact encourage it. I had felt that those offices should actually be enhanced. They shouldn't be afterthoughts in organizations, that they would have to be a part of the employment decision or the promotion decisions. They would have to be in the chain of command as opposed to a satellite office.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO these and other affirmative action steps can be taken to enhance the opportunity to compete for jobs. But when the time comes for hiring and promotion, has it been your view that these decisions should be made without regard to race or gender?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, that has been my view, and at EEOC we were able to accomplish both ends. We were able to improve the number of minorities and women in the upper ranks of the agency, and at the same time make the decision based on the best qualified. It is a record that I was particularly proud of and one that I think exemplifies the approaches that you are talking about.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Judge, could you explain your views about the adequacy of the current title VII penalties for intentional discrimination?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, let me just simply restate what I have said in the past. I think that title VII—for the kind of injury that we are talking that title VII needs to be stronger. I have said that in the past, and that is an important point. A lot is being demanded or was demanded of title VII, and as Chairman of EEOC I felt that it was undervalued, that the damage to individuals was being undervalued, that there should be more damages and that there perhaps should be stronger penalties.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I agree with your comments, and I agree with your statement. And there are many ways that we can accomplish the integration of minorities, women, and others into the work force without using preferences. And your effort have been a prime example of how to get that done, and your tenure at the EEOC shows that. And I want to compliment you for it. Now, some have charged you and your statements in these hearings that natural law is not an independent rule of decision in adjudication, that your testimony on that is inconsistent with your 302 earlier writings and speeches, and that this represents a confirmation conversion. Now, that is pure nonsense as I view it. First, if you did think that independent recurrence to natural law in adjudication was proper, one would expect to see some evidence of that in your decisions on the court upon which you now sit, the Court of Appeals. But what your opinions show is a careful consideration of the written law, and that is why I started off with questions about construing statutory law. Moreover, a careful review of your writings and your speeches reveals a recurring theme that natural law demands limited government and limited government demands that judges not overstep their constitutional authority. Is that a fair comment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is a fair comment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In the September 9, 1991, New Republic magazine, no shill for the Bush administration, reporter Jeff Rosen reviewed the judge's writings, and he concluded that they "show that his views have been not only caricatured but turned on their head. Far from being a judicial activist, Thomas has repeatedly criticized the idea that judges should strike down laws based on their personal understanding of natural rights. Far from being bizarre or unpredictable, Thomas' view of natural rights is deeply rooted in constitutional history. Like many liberals, Thomas believes in natural rights as a philosophical matter, but unlike many liberals, he does not see natural law as an independent source of rights for judges to discover and enforce." Now, I am personally delighted that this particular reporter understood your use of natural law before these hearings began. And I think he pretty well summed it up. Now, you have indicated to us that natural law is enforceable as a matter of adjudication only to the extent that natural law has been incorporated into the constitutional or statutory provision before you. Is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is accurate, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. OK. Now, many constitutional and statutory provisions do reflect or incorporate natural law and appropriately restrict private moral choices. For example, the 13th amendment forbids anyone from choosing to enslave another human being. There is nothing novel about this. Similarly, the Civil Rights Act of 1964 forbids hotels and restaurants from making the private moral choice to exclude black people from being their patrons and employers from making the private moral choice to exclude black people from jobs. Likewise, the Fair Housing Act restricts the rights of landlords and realtors to make private moral choices to discriminate on the basis of race. Now, Judge Thomas, I understand that it is your position that your personal views of natural law are not independently enforceable under the liberty component of the due process clause. Is that correct?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What you are telling us, as I understand it, is that your approach to the due process clause would be similar to that taken by Justice Harlan; namely, that history and tradition provide the substantive context to that clause. 303
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, isn't this approach to interpretation of the due process clause that you and Senator Biden agreed upon a traditional approach to the interpretation of the amendment? Isn't it a traditional approach?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I believe that the approach that I have suggested is, indeed, a traditional approach.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I need approximately a minute, Senator Biden, if I may.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Sure. Go ahead.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Indeed, isn't it a basic principle of constitutional interpretation that we look to the natural law or other consideration when, but only when, it aids us in understanding the written law of the basic document?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think we look to the Framers' intent. We look to what they were attempting to do in an aid to interpret those provisions. I think that is correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO as I understand it—and I think as anybody who has been watching these proceedings who has listened carefully would understand it—is it your position that natural law is not an independent basis for decision, but rather it can inform our understanding of the substantive context of the document, including history and tradition?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right, Senator. To the extent that the Framers reduced their beliefs or their principles to the document, it could aid in determining what the Framers thought.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, so in this regard, it seems to me it is apparent that you follow in the footsteps of Abraham Lincoln and Martin Luther King, Jr., who argued that natural law informs the Constitution. Do you agree with that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think it informs and inspires it the way that we conduct ourselves in this country, Senator, in our political processes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I agree with that, too. Let me just say in closing of my questioning that I don't think that we should have a single litmus test to exclude somebody from serving on the Court. And I frankly don't think that it is fair to keep bombarding you with questions about abortion when you have said you are undecided on that issue. Now, any Senator can ask any question he or she desires to ask. But I think there is a point where it is overdone, and in your particular case, I think you have been singled out. And I have even heard some Senators say that unless you answer the question the way they want you to answer it, that they may not vote for you. Well, that is a decision that an individual Senator has to make, but I think it is an abominable approach. Because I don't think anybody should be rejected or should be voted against for the Supreme Court of the United States on a single issue or a single litmus test. I just don't. And if we get to that point where this becomes a politicization of the courts, we are all going to lose. I have been very proud sitting here and listening to you, and I just personally want to congratulate you on the good way that you have answered everybody's questions and your demeanor and the 304 approach that you have taken. I think you are doing a great job. Just keep it up.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Hatch.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator Metzenbaum. Senator METZENBAUM. Thank you, Mr. Chairman. I would just like to make a comment before getting into another line of inquiry. My colleague from Utah wants to know why you are being treated differently than Judge Souter with respect to the question of a woman's right to choose. I think it is pretty obvious that
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Not just Justice Souter; all of the prior justices.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, all of them. You have written very extensively and have spoken out quite extensively in this area, and I think it warrants that inquiry. Beyond that, I think there is a greater sense of alarm as to the direction in which the Court seems to be moving, and I think to fail to inquire of you in that area would be irresponsible on our part. But, Judge Thomas, to another area. In the past, you and I have had disagreements over policies which you pursued at the EEOC. But there is one area of your record at the Commission which is particularly troubling to me, and that is your record with respect to age discrimination, discrimination against senior citizens. Discrimination against the elderly does not always receive the same amount of attention or provoke the same degree of outrage as racial discrimination or sexual discrimination. But employers who dismiss or refuse to hire individuals because of age, as you know, violate the law every bit as much as employers who discriminate on account of race or sex. That is why, Judge Thomas, in reviewing your record, I was shocked to come across a 1985 statement you made in an interview with the ABA Banking Journal, a banking industry trade publication. In that article, you suggested that discrimination against the elderly could be justifiable. You are quoted as saying that, "The age discrimination issue is as complicated an economic issue as any we confront in the equal opportunity area." You continued on, ' I am of the opinion that there are many technical violations of the Age Discrimination in Employment Act that, for practical or economic reasons, make sense. Older workers cost employers more than younger workers. Employee benefits are linked to longevity and salary. In an economic downturn or when technology calls for staffing changes, employers tend to eliminate the most experienced and costly part of their work force." Judge Thomas, at that time, you were the chief Federal official in charge of enforcing the law against age discrimination. Yet here you were characterizing age discrimination as an economic issue, and then stating that many violations of the age discrimination law make sense. My question to you is: How could you, as a law enforcement official, make a public statement which could easily be interpreted by employers as condoning violations of that law?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, if I could have the whole quote, it would be helpful to me so I could look at the context. But let me say this: I have never condoned violations of the Age Discrimination in Em- 305 ployment Act. In fact, just the opposite. The act itself has made some very difficult decisions. For example, in the mid-1980's, the act itself covered the ages from 40 to 65 and then from 40 to 70—actually earlier than that. From 40 to 70, then uncapped during the 1980's. The age act also makes clear that there can be factors other than age that could result in those sorts of distinctions. That is in the statute. Those aren't my decisions. I have not, do not, and never did condone discrimination, unlawful discrimination under the Age Discrimination in Employment Act.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, Judge Thomas, what concerns me is that when the chief Federal official in charge of enforcing the age discrimination law says that many technical violations of that law make sense, it sends a signal. It suggests both to employers and even to EEOC personnel that age discrimination issues are not a high priority within the Commission. Weren't you concerned about sending that kind of signal? Now, it is my understanding that you do now have a copy of the article.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I have a copy of the article. The point that I am making is this: To individuals—and I don't think that I suggested that it made sense to or condoned the violation of the act. But it would make sense to an employer to think that, well, this approach is OK. That is a violation of the Age Act to say that we are going to pinpoint or focus on older workers. The important issue is not so much for me whether or not to the individual the employer says— the employer says we want to make the decision of downsizing our work force. The employer says, well, that makes sense. Perhaps what we could do is look for the highest paying jobs. Well, that might make sense to the employer. The problem for us when an employer makes a decision of that nature is: Does that violate the Age Discrimination in Employment Act? And as you remember, during the 1980's, during those significant downturns, during those mergers and acquisitions, employers were making those decisions and we were bringing a significant number, a larger number of lawsuits to counter that. So it might have made sense to them. The problem is that it violates the Age Act.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. My point is, Judge, that you sort of indicate you weren't sending a signal, but you made that statement to the ABA Banking Journal, which, as you know, is a trade journal for the banking industry. Now, would you have made that same statement if you had an interview with the AARP's publication? Do you think you would have said that many technical violations of the Age Discrimination in Employment Act make sense?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, Senator, if you would look at the whole article, the point that I was trying to make in the article—and I haven't had a chance to review the entire article—is that we were actually upgrading enforcement; that, indeed, this is one area that was technically very complex; that, indeed, employers were at a greater risk. Later in the article, for example—and I just had a chance to skim it here—I say, "Under Thomas, the EEOC has changed to a system that investigates all cases that fail conciliation." Well, that 306 is actually a misstatement, but it says, " 'About 85 to 90 percent of cases probably will go on to court,' Thomas said." That is an increase in enforcement, and that is something that we did over time. The article also refers to, I believe here, the automation programs that I was beginning at that time so that we could better enforce the law. I have not in any place condoned a violation of the Age Discrimination in Employment Act. These efforts on the part of employers may make sense to them. But if they are wrong, they are wrong. If they violate the act, they violate the act.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I guess words speak for themselves when you say that technical violations make sense. I think that it certainly sends a signal. In that same interview, after you assert that there are many technical violations of the Federal age discrimination law which make sense, you go on to say: Older workers cost employers more than younger workers. Employee benefits are linked to longevity and salary. In an economic downturn or when technology causes staffing changes, employers tend to eliminate the most experienced and costly part of their workforce. Now, Judge, many older workers, as you well know, are really the people who built the company. They were there for 20, 30, 40 years. They are loyal, long-term employees. Courts have consistently held that employers may not target older workers for layoffs. In a 1988 opinion of the Second Circuit Court of Appeals, after examining cases that were decided well before you made your statement, that case summarized the law in this area by stating: Courts have emphatically rejected business practices in which the plain intent and effect was to eliminate older workers who had built up, through years of satisfactory service, higher salaries than their younger counterparts. In view of that court decision and the law, the specifics of the law, why would you publicly suggest that it was sensible for employers to lay off older workers because of higher salaries when the courts had made it clear that the age discrimination law forbids such a practice?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, let me repeat what I have said. It may make sense to the employer, but if it is a violation of the Age Discrimination in Employment Act, it is a violation. We at EEOC I think pursued those cases aggressively. Just because it is logical to them that this is an area that perhaps they could make changes, if it is a violation of the Age Discrimination in Employment Act, then it should be addressed. Those cases were investigated to the best of our ability. They were litigated, and they were pursued. As you remember, during that time those were difficult issues in the downturn in the economy. And I think that we wrestled with them in a professional and an appropriate manner. There were differences of opinion as to how that should be best done. I don't think that I am saying here that it is OK, that it is acceptable, that it is fine to violate the law. The line that I am trying to, I think, and I haven't had a chance to read the entire article, to point out here is this: That it does perhaps make sense to the employer. But that is a violation of the Age Act. 307
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you say that at the time?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I did not—again, I didn't write the article, Senator. If I had the whole interview
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I understand that, but the point is the article is quoting you, and there you are saying to the banking industry that many technical violations of the Age Discrimination in Employment Act make sense for practical or economic reasons. You don't put any qualifier on it. You don't put any condition on it. You don't say it is still a—that you are going to prosecute those cases. You are sending a message that you understand that there are some violations of the age discrimination law that make sense. And that is of concern to senior citizens. It is a concern to many people in this country.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, Senator, you state that I put no qualifiers on it. The point that I am making is that, one, I did not write the article. Perhaps I gave an interview. But at no time did I endorse or permit or allow violations of the Age Discrimination in Employment Act. If someone were to ask me the questions, do you find that there are violations out there? Why is it that employers are running into violations in the new era of mergers and acquisitions? Why are they having more violations of the Age Discrimination in Employment Act?, then I would say, well perhaps they think it makes sense or it makes sense to do this. But that is not an endorsement of a violation of the Age Discrimination in Employment Act.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But, Judge, I find again you want to n^ve away from your own statement. You didn't say what some others might think. You are saying, "I am of the opinion." That is a quote. "I am of the opinion that there are many technical violations of the Age Discrimination in Employment Act that, for practical or economic reasons, make sense." It is you who is speaking, not somebody who is interpreting your words. The Age Discrimination in Employment Act requires older workers to file their age bias claims with the EEOC. The Commission is authorized to investigate the claim and, if it has merit, attempt to work out a settlement or file a lawsuit on behalf of the older worker. The Age Discrimination in Employment Act has a 2-year statute of limitations, meaning that either the EEOC or the older worker who brings the age discrimination charge to the EEOC's attention must file a lawsuit within 2 years of the alleged act of discrmination. If not, the older worker loses his or her right to seek redress under the law. As you well know, unfortunately during your tenure as head of EEOC, thousands of age bias claims sat languishing in the EEOC for over 2 years. As a result, thousands of older workers lost their right to bring lawsuits under the ADEA. Congress did not become aware that there was a systemwide problem within the Commission until late January 1988. Then, as you know, Congress moved quickly to pass special legislation in April 1988 which restored the rights of those older workers who believed they had been discriminated against. As I mentioned in my opening statement, the problem of lapsed age cases happened not once, but twice, Judge Thomas. For now, let's focus on the first batch of lapsed cases. 308 Your agency's own internal documents show that as far back as January 1986, Commission members, including yourself, were aware that EEOC field offices were having trouble meeting the statute of limitations on age discrimination cases. A January 1986 litigation memo presented to all five commissioners, including you, stated that even though there was substantial merit to one age case, the general counsel's office had to recommend against litigation primarily due to statute of limitation problems. An April 1986 litigation memo presented to all five commissioners, including you, in another meritorious age case stated that, The statute of limitations is already operating to bar individual claims on almost a daily basis. I have two questions for you, Judge Thomas. First, how could these lapses have happened? Second, given that there were early warning signs going back to January 1986, why did it take almost 2 years before the Commission discovered that it had a system-wide problem which was causing thousands of older workers to lose the chance to vindicate their rights?
Clarence Thomas
Nominee
(R)
Judge THOMAS. First, Senator, with your permission, I would like to just simply comment on to the extent that there is any question about my view of enforcing ADEA claims from the last quote, my point is and remains firmly that I would not tolerate nor permit any violations of the Age Act. With respect to this particular problem, as you know, this was a very difficult problem and a very difficult period for me during my tenure. I am a lawyer, or I was a lawyer before I went on the bench. And one of the things that I can remember early in my own tenure as a lawyer is making that panicked midnight run to the law office or to the attorney general's office because I thought there was a deadline approaching. I thought that when others heard the word statute of limitation, their reaction or that panic set in in the exact same way. If I could have investigated every single one of those age charges, I would have. That was the low point of my tenure. I said it then, and I say it now. I don't have the presentation memos that you are talking about, but let's put that in context a second. If you want to get to them in detail, I will just do that. But let me talk generically about the problem that we were facing in the mid-1980's. First of all, the initial inkling of a problem that we saw was that when cases were presented after they had been investigated in the field, and those cases were then sent to our headquarters, they were sent to our general counsel's office. When those cases came in, in any number of areas we found that there was this problem. The problem was whether it was title VII or the Age Discrimination in Employment Act. The cases would sit in that office for months and sometimes years. We immediately changed that policy. I think I changed it sometime in the early 1980's, perhaps 1984 or 1985, so that when these investigated cases recommending litigation came from the field offices, they immediately came to the full Commission. As a part of that, what we noticed was that cases could, while sitting in the general counsel's office or in the regional attorney's office in the district offices, they could miss the statute of limita- 309 tion. That was a separate problem from the one that you and I have talked about. One of the things that we did was this, with respect to those cases: The problem with respect to the lapse is separate from that. That is an administrative problem in the field offices. It is not a problem that comes from the period that the cases are sent to the headquarters office, and then those cases sitting there waiting to be attended to by an attorney. The administrative problem results from this, or resulted from this: When I went to EEOC
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Could you wind up shortly, please?
Clarence Thomas
Nominee
(R)
Judge THOMAS. When I went to EEOC, there was a process— EEOC did not investigate routinely age discrimination charges. Myself and the other commissioners felt that they should be investigated, and we introduced a policy to do that. That took more time. The second component of that is this: that the Age Act has a 2- year statute of limitations, unlike title VII. Our first initiative when we changed the policy, recognizing that it would take longer to investigate the cases, was to require the district directors to monitor their workload more closely. Some district directors, unfortunately, did not do this, and unfortunately some cases missed the statute of limitations. I found out about this in December 1987. I notified Congress as soon as it returned from the Christmas break, and my staff or EEOC's staff worked closely with your staff to develop legislation, which was introduced and passed and enacted I believe in April.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Thomas, I just have to take issue with you that Congress acted at your behest.
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO. We cooperated with you.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, you didn't oppose it. A 1988 report by the staff of the Senate Aging Committee concluded that, "The EEOC misled the Congress and the public on the extent to which age discrimination charges had been permitted to exceed the statute of limitations." That is a quote. The report states that when it initially requested data on this issue in September 1987, the EEOC responded that only 70 cases had lapsed. But at that time, an internal EEOC survey revealed that over 900 Federal age discrimination charges had lapsed the statute of limitations. In December 1987, EEOC told the Aging Committee that only 78 cases had lapsed, but a trade publication reported that nearly 988 charges had exceeded the statute of limitations. One month later, in January 1988, you formally advised the Aging Committee that 900 cases had lapsed. Senator David Pryor, the current chairman of the Aging Committee, has stated that, "After months of fruitless attempts to obtain additional and accurate information on this matter, the Aging Committee issued a February 1988 subpoena to Chairman Thomas to provide data on the lapsed charges." The EEOC now acknowledges that the age bias claims of over 4,000 workers lapsed due to your agency's failure to process those claims in a timely manner. Both the Senate and the House Aging Committees have estimated that as many as 13,000 older workers may have lost their rights due to your agency's inaction. Congress 310 was trying to find out the extent of the lapsed cases problem at your agency. The Senate committee which deals with senior citizen issues was attempting to determine whether older workers were losing their rights. The current chairman of the committee has stated that the committee's efforts to inform itself on this issue were being frustrated, and so a subpoena was issued. Ten Democrats and three Republicans on the committee supported the issuance of the subpoena. No member of the Aging Committee objected, and yet here is how you characterized that subpoena in a speech prepared for delivery on April 7, 1988, the exact same day that the President signed the law passed by Congress restoring the rights of older workers. You said, "My agency will be virtually shut down by a willful committee staffer who has succeeded in getting a Senate committee to subpoena volumes of EEOC records. It will take weeks of time and cost hundreds of thousands of dollars, if not millions. Under the guise of exercising oversight functions, the staffer seeks to implement the program of the American Association of Retired Persons. Thus, a single unelected individual," said you, can disrupt civil rights enforcement all in the name of protecting rights. Now, Judge Thomas, those comments were absolutely astounding. Congress was trying to find out the scope of a problem that affected thousands of senior citizens. Congress had to enact two pieces of legislation restoring the rights of lapsed cases because the statute of limitation that applied. We were trying to find out how to keep it from happening again. You declare that the Aging Committee acted improperly in issuing a subpoena to determine whether or not your agency had neglected the legal rights of thousands of older workers. You also maligned the integrity of the committee which issued the subpoena. It was not my committee. It was Senator Pryor's committee. You suggested the committee was doing the bidding of the American Association of Retired Persons. My question, Judge Thomas, is: How could you, on the very day on which the law bailing out your agency went into effect, condemn so vehemently Congress' efforts to find out whether older workers were still losing their rights as a result of your agency's inaction?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, there is quite a bit there. We received, on a Thursday afternoon, a very detailed request from the Senate Select Committee on Aging, then under Senator Melcher, concerning very detailed information over Labor Day weekend at EEOC. The request, which was not handled directly by myself, but by our legislative office and our administrative people and our general counsel, the request was for a variety of data, including charges, those are the administrative charges that come in to EEOC, and cases that had passed the statute of limitations. Our personnel separated those tasks, the requests for charges and the requests for cases, and took those requests, assigned those to the relevant offices. The requests for cases were assigned to the general counsel's office. The requests for charges were assigned to the administrative people. The document request that we responded to about the numbers that had lapsed, that had missed the stat- 311 ute of limitations, was the request response from the general counsel's office concerning cases, not charges. There was no effort ever to mislead the committee. In fact, we attempted to have the committee clarify for us precisely what it wanted us to respond to in such a short period, so that we could do that quickly. Normally, when a request comes to EEOC, the request or the requesting body sits down with our staff people and we go through the documents, we go through the requests and we determine how to respond. In this instance, that did not occur. Now, with respect to learning about the mischarges, as opposed to the cases, what we attempted to do was, as soon as I found out, was to not only inform Congress, but to make it public. I found out in December 1987 and reported to Congress the day Congress returned for the next term in January.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. My time is about to expire, but I want to make it clear before it does, that when the lapsed age case issue came to light, you stated that it wouldn't happen again. But as we all know now, after Congress' corrective legislation in 1988, the problem didn't go away, you didn't take care of it. Thousands of age cases continued to lapse, due to your agency's failure to insure that the claims were processed in a timely manner. We had to pass a separate bill in October of 1990, due to the inaction of your commission and, as a consequence, costing thousands of aged workers the loss of their rights.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, we did everything, and I certainly did my tenure, with the resources that I had, we have a very spreadout agency, to respond to that problem. As you remember, it was a difficult problem. If I could have investigated every one of those cases, I would have. There were approximately 2,000 cases within EEOC or charges within EEOC which had missed the statute during over a 4-year period out of the approximately 50,000 or 60,000 that we receive a year, and I believe approximately 100 cases did involve actual—there was as finding of discrimination. But even one, as I have indicated, is too many. We took steps to solve the problem. We automated or completed automating the automation of the agency, so that the cases could be more accurately tracked, that is both at headquarters and in the field offices. We sent notices to the individuals, so that they would know when the statute was approaching. We held managers more accountable. We had done that before, but we redoubled our efforts. The point was that we are trying to make an entire agency respond to something that I felt strongly about and I know that you felt strongly about. It was enormously frustrating. I did as much as I could possibly do. I did not want a repeat of that. In fact, I never wanted it to happen. But getting an agency to respond, a bureaucracy to respond is sometimes far more difficult than wanting it done.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, sir. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman Well, there are lots of things to talk about. I do agree and I want to say that I agree with Senator Hatch about the issue of abortion. I don't know how many times you can ask that question and however many times it will be asked, it will be answered in the same manner. But it is interesting to me to hear the continual response and the continual asking of it, because I couldn't help but think, after being on this committee for 13 years, back in 1980, Senator Metzenbaum, who was in the majority and chairing hearings with Judge Ruth Ginsburg, was very clear on this issue that seems to have taken over a good deal of discussion, and that is what questions we should ask you. Senator Metzenbaum was saying, in connection with the Ruth Ginsburg nomination, and he chaired that as ably as he does his work, and talked about her statement and said: You don't mean that every nominee up for confirmation ought to have his or her views explored as to what his or her positions are on all of the controversial issues that may come before those jurisdictions, you don't actually mean that, do you? That was a quote of Senator Metzenbaum. Then he went on to say: Do you think the Judiciary Committee members in days of yore should have refused to confirm Justice Black, who had been a member of the Ku Klux Klan and went on to become one of the more liberal members of the bench, do you think that they would have been doing their job right, or would the Nation have suffered or gained, if he had not been confirmed? And then it was said: Should we then vote against her, or should we look at her and say is this a person who has the kind of integrity, temperament, and ability that can make a good or a great jurist? And if he or she has, then regardless of our agreement or disagreement with his or her particular views, shouldn't we then under those circumstances send that nomination to the floor with our recommendation? And I concur totally with those views of my senior colleague from Ohio, and that is the way it works in this place. Senator Kennedy, I served with him and enjoy the service with him on this committee. He said, in a hearing with regard to Justice Sandra Day O'Connor, he said: It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass the litmus test of any single issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the new right have no place in these hearings and no place in the Nation's democracy. Now, I just happened to think, as I looked at that, that what is true for the new right is also true for the old left. So, that is an interesting thing, but what it shows is that there isn't a thing we couldn't find here in what we do of those of us on this committee, where we haven't said one thing one time 4 years ago or 5 or 10, and another thing last month. I have done it, and I can tell you, if you have been in politics long enough, the wheel will come around and kick you right in the rear-end, and that is the way it works. So, to put this test on you—and I think you have explained it pretty well, but I think you maybe ought to just say, you know, I've done some things when I was a politician that I sure wouldn't do as a judge, and then we would understand it better. It would fit, it would be something we could grasp, and then you wouldn't have to 313 say that you were a quasi-public person or that you were in the executive branch. Just say you were a pretty hard-hitting politician at one time. You worked for a President, helped get him elected. I didn't know, did you ever do any precinct work or pack around in that stuff?
Clarence Thomas
Nominee
(R)
Judge THOMAS. NO, Senator.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Oh, you missed something, I will tell you. [Laughter.] We have all done a little of that, I think. But if you were just to reflect, you know, that, obviously, the things you said as you dealt with emerging thoughts and as a political person serving a President of your party and then part of the executive branch, I think those things need to be very carefully segregated as to the importance. Unfortunately, I think it is kind of sad to see it turned into something as if it were a confirmation conversion, when there isn't one of us here that could pass that test. You won't pass it, either, but it doesn't have a thing to do with our integrity or with our honesty, and you made certain promises to this panel when you started as to what you would do. You said you would serve with honesty and integrity. It was a very beautiful statement and it is already in the record. But we as politicians, we have learned that, when those things happen to us, we call it a maturity in thinking that has overcome us or evolution of mental weighing of the issues. We don't lay bad things on it, because this is the ways it is. Facts change, things change, people change. So, I think that it is very important. I would be quite hurt, if I heard people impugning your integrity or your honesty or your character. You handle that one a hell of a lot better than I would. Now, if I might get to the Select Committee on Aging. I must be one of the last of the line. I serve on that, and let me tell you what happened when I got on there, because I wanted to get on to see what was going on on the Select Committee on Aging, and what was going on with you was a vendetta by a Senator who is no longer in the U.S. Senate and a staff that had just gone on an absolute hunt. I know, because I used to show up occasionally and pop my head in and I would say what's going on, and the staff members just kind of stood around and kind of salivated. They said, well, what's going on, boy, we're going to get into the EEOC. It was very curious to me that everything that has been presented here by the senior Senator from Ohio has all been presented before. There is not one thing here that hasn't come up before, and that was before you went on the bench before, because this was the only stuff to use on you, and I won't want anybody to believe that this is new stuff or that somehow this terrible thing that has happened is all brand new. You could go back and look at the record, go back and look at the Select Committee on Aging record, and it was not at the direction of Senator Pryor that this occurred, it was at the direction of his predecessor, and it got so bad that the members didn't even show up any more. Now, let the record show that. Let the record also show that, after all those months of wasting your time and ours, nothing came of it, because you had a committee staff that 314 never even understood the difference between a charge and a case and couldn't even compute it correctly, and it was appalling to watch. Along came Senator Pryor, our wonderful colleague who is back with us now, and, I can tell you, he made some sweeping changes in the staff of the Select Committee on Aging. There ain't anybody left that was involved in that kind of absolute extreme activity. So, the exaggerations as to the charges and criticisms of your handling of age discrimination cases before the EEOC is really, really old laundry, and some of those exaggerations came from the very tenacious group in the community known as the AARP. I have dealt with them before. I had a full head of hair before I got into it with them. [Laughter.] But I can tell you, they are tough. You know, whenever we do something that affects them, they say, "Huh, don't forget, there are 32 million of us out here." Of course, that includes the magazines on dentists' stands anywhere in the country, too, of Modern Maturity, which is a better magazine than the Smithsonian. That is what they said. Actually, I think the distinction is that it is of the same paper quality and print quality, but the interesting thing is that in it the advertising is some of the sleekest gray-haired catch you ever saw, but all the editorial comment is about how everybody over 65 is somehow underprivileged, and they lose some credibility in that, and that is how I lost all this hair. So, the AARP led that charge with a Senator who was willing to lead it, a Senator who is no longer in the Senate, and it was a bust. It didn't go anywhere. It was an embarrassment to some. And another of our colleagues who is no longer with us was the ranking member on that committee, and if he were here, he would put all of this stuff to bed, and that was our friend, John Heinz. So, I hope we won't spend too much time on that. It was brought squarely before the Senate, and who brought it to the Senate was you, because your predecessor surely didn't. So, every single bit of this was presented to the U.S. Senate by you, and the Senate considered every one of these criticisms in total and rejected every single one of them when we confirmed you previously, so I hope we can keep that old tired issue in its proper perspective. I think that Senator Metzenbaum quoted a news article, if I heard correctly, to the effect that you said that some violation of age discrimination laws made economic sense to some employers.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. It was the ABA banking magazine.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you. I guess the implication was that not only you understood that, but that you also approved of that. Did that get clarified?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think my final comment on that was that I in no way endorsed any violation of the Age Discrimination in Employment Act, so I think I did say what my view of it was, and I certainly would not have intended to do that.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I don't think you ever misled this Senate Special Committee on Aging, not from the times that I knew or my staff was there. I was not there throughout, because I finally just got tired of it, it was too much to—it was so feckless, so silly. But I don't believe that, in any sense, ever have you misled, and I often thought that you were being blamed for the inability of the 315 Aging Committee staff at that time, their failure to understand what it was that you did or what the agency did, especially with regard to the interchangeable use of case and charge. I think that 13,000 figure has been terribly overblown and that, of course, has been covered rather thoroughly. So, I just want to make those comments with regard to the Select Committee on Aging and its hearings on you. Do you have anything to add to how you felt that came about and what the results were as you perceived it, after you sat there patiently for many hours, with your staff? What is your assessment of that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I noted to Senator Metzenbaum, that was an enormously difficult period. There were misunderstandings about information early on. It required a redirection of an enormous amount of resources in the agency, and it was a problem that was difficult to solve and we recognized that. It was a problem that we had to solve with limited resources, and we recognized that. But the point is that we took every step possible and ultimately, with a refocusing or redoubling of our efforts in paying attention or having the agency staff pay more attention to the statutes of limitations, as well as finalizing a computer data base, not a perfect data base, but a working computer data base. We were able not only to track the time-sensitive age discrimination charges, but we were also able to monitor and to send out notices to the charging parties involved. Prior to that, and I will end on this note, we were unable to even discern what we had in the agency. We could in no way tell you what kind of problem we had or what was even there. We did not have the data base capability. I think the recognition for us was, and it is an important recognition, is that those time-sensitive charges, perhaps we should have thought about tolling the statute in some way legislatively or perhaps some other action. But when you attempt to fully investigate time-sensitive charges, it requires that you do more and do it more quickly. Remember that EEOC receives about 60,000 charges a year, and that is something that requires us to manage our work more closely, and we attempted to do that.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I have noted in recent weeks that your predecessor has been very critical of you, and she speaks critically of you in various forums, which puzzles me because, you know, all of this happened before you got there. And I would like to enter into the record the digest of the General Accounting Office report of April 1981 saying that the rapid charge process has overemphasized obtaining settlement agreements with the result that EEOC has obtained negotiated settlements for some charges on which GAO believes there was no reasonable cause to believe that the charges were true. Settlement agreements for these charges have little substance, and they distort the results of the rapid charge process by inflating the number of settlements. I think the entire digest ought to go in the record.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, the entire document will be placed in the record. [The GAO report follows:]
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Then if I might return to this issue, because you get into—and I talked about abortion, but let's get to privacy. That keeps coming up because it is an attempt—and you handle it very deftly—to simply lead you from the issues of privacy to abortion. And that hasn't worked so far. It didn't work with anybody that I have had the opportunity and the pleasure to serve on this committee while they were presenting themselves to the Senate. Sandra Day O'Connor, Justice Kennedy, Justice Scalia, Justice Souter—none of them answered these questions. But just a quick word on privacy. You told me in a private meeting earlier this year that you honestly had not made up your mind on the terribly searing issue of abortion. I accept that statement. And it is tough for me because I am pro-choice. I have always believed that a woman should have this choice. And it didn't come from confirmation hearings. It came from practicing law with real live human beings. So I have not come to that position through a rigorous analysis of the U.S. Constitution, but through life as a lawyer, dealing with the real live problems of real live people in extremity, who came to me for, I hope, honest and real assistance and that is what I tried to give; like, you know, I am going to commit suicide if I have to carry this child to term. That is when as a lawyer, a male lawyer, you really don't want to go much further. At least I didn't. So at least here is what I hope is my common sense, real life interpretation of privacy and how that might extend to a right to abortion. Privacy in the west is a very extraordinary thing, perhaps not more than any other State in the Union or place in the Union, but in Wyoming, by God, it is the right to be left alone. And it means a lot to people. This often-mentioned doctrine of family privacy protects against legislation that interferes with certain universally respected rights. But family privacy is not an absolute. It does have some limits. Few things are absolute. It seems its most appropriate power is when it protects the right of one individual without imposing in any way on the rights of another individual. The Supreme Court has clearly established that a family has the right to send their children to a private school—that is the Pierce case; that a family may decide which family members may live in their home—we have talked about that one, East Cleveland; that the family has the right to decide whether or not to practice contraception, Griswold. All in which I concur. However, that family privacy doctrine is not absolute. A husband or wife does not have a family privacy right or a constitutional right to batter and maul the other one. And according to Roe v. Wade, a woman does not have an unfettered right to abort her unborn child once the fetus has become viable. Family privacy then does stop at certain barriers and boundaries when the right of one person impinges on the right of another. My question to you is this: Is not the family privacy doctrine a question of degree and not an absolute, clearly defined thing in stone?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, the courts have wrestled with defining the contours of the right of—that important right of privacy. I think I come from a part of the country where privacy is treated 324 pretty much as the way it is treated out west; that you really value your privacy, you learn to respect your neighbor's privacy. You don't just ride onto someone's land without being invited, and you certainly don't walk into someone's house, and definitely not their bedroom, without being invited. So it is important. The Court, though, has wrestled with how far does this right extend. What portions of this right are to be considered fundamental? And those contours I think over time will be defined in Supreme Court cases.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. IS it not inevitable that reasonable people would disagree about whether a woman has a constitutional right to abort a nonviable unborn child?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It is certainly an issue in the general public that people have very strong opinions about, and as I have indicated earlier, I can understand the depth of feelings and passions on both sides of the argument.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, many special interest groups and many politicians paint abortion as some black-and-white issue. And my personal experience is that abortion is a numbingly difficult and anguishing and ghastly issue just because it is not a black-andwhite issue. The toughest one perhaps that could ever be made by a woman. But in my mind that is the only person that can make that decision. I feel it very strongly, so I ought to be really zeroing in on you more. But I am not because these other things that we are going to see and we do see about you—integrity, honesty, character, judicial temperament—and you have got that, my friend. I don't know who is keeping the score book, but judicial temperament, you have won the Oscar because I can see you on a bench, in the midst of clamoring counsel—you won't get as many in the U.S. Supreme Court, but they are there. So in my mind there is that decision to be made by the woman, and I have trouble with it myself. It should not be made by legislators or judges, especially male legislators and male judges. I am going to ask you only one more question on that topic, and it won't be the last one you will hear. I can assure you that. Do you promise—you used the word "promise' when you sat before us first, that first day. Do you promise this committee to consider the abortion issue as you face it on the Court with an open and equitable and fair mind and with sympathy and compassion for all who are involved in that terrible decision?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I would not only make that promise on this important issue, not only to this committee but, if confirmed, to the American people, and to myself. It is my solemn oath. I cannot sit as a judge if that is not the way that I proceed on those cases. And that is a promise that I take very deeply and understand and appreciate and feel strongly about, on all cases, that I approach them with an open mind and for the individuals involved with an open heart.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. One final point. Earlier this morning Chairman Biden asked you about the—I think it was the 1972 Eisenstadt case which held that a State could not prohibit a single person from purchasing contraceptives. That holding was extended in a 1977 case of Carey v. Population Services, which struck down a New York statute which allowed only licensed pharmacists to distribute 325 contraceptives to persons over 16 and prohibited the sale of contraceptives to persons under 16 except by prescription. However, I ask you, these use-of-contraceptives cases do not imply that there is a fundamental right somewhere of privacy for every single aspect of sexual relations, do they? In other words, for example, the Court ruled in 1986 that there was no fundamental privacy right to engage in homosexual sodomy. I believe that was the decision. And I ask this question because I think you were hindered by a lack of time in your response, partly because of my urging to conclude. And so I would ask you to conclude that. I don't know that you did. I am not here to rehabilitate you. I didn't hear what came out. Did you have anything further to add on that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Nothing more than this, Senator: The Supreme Court, as I noted earlier, has wrestled in cases such as the one you just mentioned, Bowers v. Hardwick, with the contours of the right of privacy. And it is a difficult area, and it is one that I am sure that the Court will be revisiting. But beyond that, I think that my comments on the whole issue in the area of privacy have been pretty full.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, Mr. Chairman, I will go on to a different subject, and there is no time for that. But I did want to
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Take some more time, seriously.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. NO, no, Joe. That is fine. I will come back. I am going on to the issue of affirmative action. I wouldn't have time. But I did want to share with you what I found on the outside of the Justice Department building—would you like to hear that?—up on the wall there.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Why don't you continue on?
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. What is that?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I like a sedative in the afternoon.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU would like me to go on?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. A sedative.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Are you trapping me? You would like me to— no, I shan't.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Continue on.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I would love to hear what is on the wall.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Please, don't stop.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. This is over the main entrance. This is in my 35 seconds left.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I don't want any graffiti.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. NO; it is no graffiti. I didn't put it on there, nor did any of the committee. It says over the main entrance to the Justice Department at 9th and Pennsylvania Ave. in Washington, DC, it says, "Justice is founded in the rights bestowed by nature upon man. Liberty is maintained in security of justice." Isn't that fascinating? [Laughter.] I just thought I would throw it in there.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is not only fascinating, but I wish more judges believed it. We will recess for 10 minutes. [Recess.] The CHAIRMAN. The hearing will come to order. 326 We are going to try our best, Judge, to see if we can hear from two more Senators, and hopefully three before we finish. Again, Judge Thomas, it is a long time for you to sit there, from 10 in the morning, even with a break at lunch. Everyone should understand that it is one thing to sit at a hearing on this side, where we only have to be at the top of our form for one-half hour, and then we get to rest. You have got to be at the top of your form the entire time, so it is a tough job. Let me now yield to our colleague from Arizona, Senator DeConcini, and then we will go to Senator Grassley.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Good afternoon, Judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Good afternoon, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I want to just finish up on yesterday's discussion of issues and complaints that have been brought to this Senator's attention from different Hispanic groups. Let me first say that I have received a number of Hispanic complaints about your handling of EEOC. However, I would like the record to show and to reflect that my office was also contacted by Fred Alvarez, who was a Hispanic Commissioner at the EEOC during your tenure, Judge, and Mr. Alvarez indicated to us that the EEOC, under Clarence Thomas, and these were his words— under Clarence Thomas' direction, we attempted to reach out and assist Hispanics more than any other time in the EEOC's history. I don't want the record to be left that no one person or any group in the Hispanic community thinks you did not do a fine job, and perhaps you did. My concern is that these problems have been raised to me. Yesterday, we touched upon them and your record as the Chairman of the Equal Employment Opportunity Commission. My understanding is that the EEOC is charged with the protection of the employment rights of many unrepresented groups, including blacks and women, the elderly and the handicapped. You and I have had some differences during your last confirmation hearing about what I perceived was some callous approach or, let us say, difference of opinion on how it should be approached as it was to the elderly. But you did answer my questions that I submitted to you and you did so in comprehensive responses that, though I did not agree, I must say that you laid your case out, and that is all I can ask of a nominee, not that they have to agree with me, but that they are prepared to give me their reasons for their decisions and then I can ask nothing more of them. So, I want to make that perfectly clear, because I don't want anyone to think that I am only concerned here with the Hispanic issues, because Senator Metzenbaum has dealt with the elderly issues, and I dealt with the elderly issues that I felt were necessary during your last hearing. But I do have a couple of questions. Yesterday, you listed a number of examples to illustrate your attempts to make the agency more accessible, including the initiation of the 1-800 number, translating materials into Spanish, and public service announcements. But let me get back to the National Council of La Raza recent report on the EEOC, which I understand has been made available to the White House prior to these hearings. 327 If NLRS' figures are correct, the fact remains that, over the past 10 years, the rate of charges filed by Hispanics lag significantly behind that of any other protected group. Now, as Chairman, do you feel, quite frankly, if you conclude, as I do, that La Raza has done I think an impartial job here, and maybe you disagree with that statement, but do you feel you did everything you could to see that Hispanic charges and claims were filed and Hispanics were educated on the system, or do you think you could have done more?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, first of all, let me just say that I am not going to quibble with the numbers, because I haven t had a chance to go back and look, but let's assume that they are accurate, and I think that is the point you are making. With that assumption, I think that, on revisiting my tenure of EEOC over the years, in the area that Senator Metzenbaum has touched on a number of times and what you are talking about, in retrospect and with the benefit of hindsight, the wisdom of hindsight, perhaps there would have been some approaches I felt that would have worked better than others. I thought at the time, as Chairman of the EEOC, that I was doing all I could. I tried to meet with organizations. I met with MALDEF. In fact, one of the early concerns raised about the litigation and litigation not being available to individuals who didn't have large cases, that is, EEOC was not litigating the individual cases, if my recollection serves me right, it was an early meeting with MALDEF. But I feel, in retrospect, that there could have been some things that perhaps, with the benefit of hindsight, that I would have done differently, but at that time I think I did all I could.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, based on that, Judge—and I appreciate that observation, because I think that is a very honest approach. I think we all feel in hindsight sometimes in our life we could have done better on something that we thought we were doing pretty well at the time, and I take that as a strength of yours. The information that was given to us after my questioning last night from the White House indicates that, within the first year, you as Chairman conducted one-on-one personal meetings with MALDEF and with LULAC and with the National Hispanic Bar and the Cuban-American Men & Women and the Personnel Management Association of ESLON and Los Angeles County Affirmative Action. First I'd like to compliment you, I am glad to have that for the record, I think it is important. My question is did you have continuous meetings with these people? Did you meet any other times with them and can you give us any background?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The group that I know I have attended functions, I believe, and—again, I would have to go back and do a more thorough search of my calendar, but my recollection, if it serves me correctly, I did continue, but not in retrospect perhaps at a level that would have been more appropriate. I had meetings from time to time with organizations such as MALDEF. As I indicated, I gave speeches at some of the organizations and I would go to some of their functions. I cannot sit down and tell you explicitly all of the meetings that I had or the routine 328 meetings that I had. I worked with individuals, some of whom are listed here, over the years in an informal basis, but not the routine sit-down month-to-month sort of meetings.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, the reason I raise this is that if you are confirmed and you become what is the 106th Supreme Court Justice, you would have, in my judgment, based on your background, your educational background, your family background and who you are, every reason to have a greater sensitivity than anybody here. I really believe that. I would hate to see that sensitivity not directed toward Hispanic and other minority groups. That is why I raised this, in hopes that it might make a small impression that some minority groups are fearful that, yes, you may stand up for minorities that are black, and you have a record of doing that, in my judgment, but what about us. I can't make you do that and I can't tell you to do that, but I can express a deep feeling of at least Hispanics in my State and outside of my State. I am surprised that they would not be coming forward in support of your nomination, quite frankly, because I would think that they would feel comfortable, and yet they don't, at least as they have expressed to me. In a speech to the League of United Latin-American Citizens, LULAC, in July 1983, you expressed concern that speaking Spanish in the workplace appears to be a source of increasing tension in the area of discrimination based on national origin, and you mentioned that EEOC had received a favorable decision in a case involving a group of women who had been fired for speaking Spanish in the workplace. Can you elaborate at all, Judge, on the EEOC's position under your tenure with regard to English-only policies? Did you have any policy in the EEOC that you remember, or do you personally have any?
Clarence Thomas
Nominee
(R)
Judge THOMAS. We did have a policy that certainly made sure that—yes, you can sort of flatly that the English-only policy was inappropriate and could violate title VII. I have not had an opportunity to review that policy in preparation for these hearings. I would certainly do that. But we did challenge employers who maintained English-only policies in the workplace.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU did do that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. We did do that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Was that your policy that you established or the Commission policy while you were there?
Clarence Thomas
Nominee
(R)
Judge THOMAS. It was the Commission policy while I was there. I can't tell you—Senator, during my tenure, we continued to redraft and upgrade our compliance manual sections, as well as our procedures. The English-only, the national origin area was one of those areas, so I could provide you with or have it provided to you.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Would you mind doing that?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would be more than happy to do that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Without too much burden, or maybe somebody could help put it together. I realize that you have got a lot
Clarence Thomas
Nominee
(R)
Judge THOMAS. I would like to go back to one point, because something came to mind when you mentioned sensitivity, if you don't mind.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes, sir. 329
Clarence Thomas
Nominee
(R)
Judge THOMAS. When you mentioned that, it brought to mind my trip to Pan American University in Texas, in order to deliver and to participate in events to provide a quarter of a million dollar endowment for student scholarships at Pan American University. What was so interesting and so warm about that and so good about it is'that I remember the tuition per student was less than $1,000 a year, and that a very large number of students, for the first time who were attending college, Hispanic students, were going to have the tuition made available to them as a result of that. I thought that was important, and it is not listed here. I might add also that I was not in the habit of keeping a running list of the sorts or things that I did. I think that one should do them automatically, rather than as a plan. The other university that I thought was making an important contribution in a similar way was Native American University, DQ University in California, where we made a similar grant. It was an effort, as I remember it, to reestablish some of the native American traditions that were being lost, and they were starting a university in an old military facility, and I remember spending a day with them and just how warm they were and how receptive they were to the interest that we were showing in their efforts to develop and restore and renew significant parts and important parts of the native American culture. Those are just two that happened to come to mind while you and I were talking. But it is important to me, even in my current job, we as judges have a tendency to be isolated—and I was in the seminary, so I know how isolation feels—but it is important to me to always keep contact with the rest of the world, to talk with the real people who are out here every day. One of the good things that I have seen from some of the articles—I have stopped reading the news accounts recently, and that is not a reflection on my feelings about the first amendment, it is just simply that when one is the object, one has to stay away from
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU don't have to read the papers.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But one of the things that really made me feel good was that the people in the building where I have spent the last year and a half, the sorts of wonderful things that they have said that suggest that there was some human contact between us, but those two items that I mentioned, of course, were just items that came to mind while you were speaking.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas, for that clarification and expansion. One last question in this area. Would you extend the prohibition of English-only policies in other areas, such as education, and voting, to public service and that sort of thing?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, again, I don't know the answer to that. I would be concerned that there is discrimination, and I think to the extent that it does amount to discrimination, I think as a matter of policy, that we should eliminate it. Again, I cannot predict how the court cases
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I am not asking for a court case. I just wonder how your feelings are about prohibiting English-only in the area of education. Do you think there is a benefit of bilingual edu- 330 cation programs? I am not talking about a substitute one, I am talking about a bilingual one, for citizens who can't understand always the English language and may feel that reading a long referendum doesn't give them the same access to information. What are your feelings on that, or do you have any?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, we were sensitive to that at EEOC. I think we went so far as to even include our brochures in Chinese, because of the significant population in San Francisco, I believe. I think it is important that this country, as I have said before, be accessible to everyone. I don't think that the language barrier should prevent people or the erection of a language barrier should prevent individuals from enjoying all the benefits of this country. That is my sensitivity to the issue. Of course, I feel that way in other areas. I have said that with respect to disabilities. You know, as I said, I had a friend in a wheelchair, a quadriplegic, 6 inches, it may as well have been the Berlin Wall to him. There was just no way he could get across that curb. We have tried to make our agency accessible at EEOC, so I think that those barriers, those unnecessary barriers could be discriminatory.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU would equate English-only as simply one of those barriers
Clarence Thomas
Nominee
(R)
Judge THOMAS. One of those unnecessary barriers.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. That would prevent a citizen to have full enjoyment?
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. Judge, let me turn to a question that there has been a lot of writing on. I do this partly because I think it is fair for you to get an opportunity to explain it. I was not here for everybody's questioning, and if someone went into this I apologize, although I am told that nobody has. I want to talk about when you were head of the Office of Civil Rights at the Department of Education in 1981 and 1982. As I remember, the issue was not addressed during the hearings of your nomination to the circuit court, and so I hope I am not beating anything that has already been discussed. But while you were at OCR, the agency was under a court order, as you well remember, based on the articles that have been written in the 1970's, the so-called Adams v. Bell litigation that specified time limits in processing complaints and taking other enforcement actions with respect to discrimination in education. The order was imposed, because of previous delays in a "general and calculated default" in civil rights enforcement in education, so the court said. Now, while you were head of the OCR in 1982, a court hearing was held concerning charges that the OCR was violating the court order, and under oath you admitted to violating the court order's requirements. Now, I understand that some of the problem in complying with the time delays predates even your tenure there and that you were not the one that entered into that agreement or consent, if that is what it was called. However, you admitted in court that you were violating the court order rather egregiously, and the court found that the order was being violated in many important aspects. I think you can imagine what the questions are, Judge Thomas. Were you defying the court 331 order, because you personally disagreed with the Adams decision, or were you trying to substitute your own judgment on the policy of the Adams timetable? Can you give us an explanation?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, let me say that I was absolutely not defying the court order.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Explain that, would you, please?
Clarence Thomas
Nominee
(R)
Judge THOMAS. And then I will explain. The court order in the Adams case involved a consent decree in which there were fairly rigid timeframes in which to investigate the cases that came to OCR. The action I believe that you are mentioning started before I became Assistant Secretary, and even the proceedings that I became involved in and the reopening of that started before I became an Assistant Secretary, I believe early in 1981. OCR had never been able to meet those timeframes, and indeed we devoted, as I remember in reviewing some of the documents, we devoted about 95 percent of our staff at that time to attempting to comply with the court order and were still—to the timeframes, not the court order, the timeframes, and were unable to do that. When I was asked in court, are you complying with the timeframe, I think there was a series of questions, my response was no, no, no, and I think ultimately the question was are you in violation of the court order, obviously, as a result of missing the timeframes, and my response was an honest yes, and I believe there was as follow-up question—and I don't have the record in front of me—can you violate the court order, with impunity, and my response was no. The problem was that we were attempting, as I remember, and that is now about 10 years ago, we were attempting to develop a study so that we could propose new timeframes that were more consistent with the way that we operate. Subsequent, of course, to all of this, the order itself, the case itself was dismissed by the court. But I can say uncategorically there that I was responding truthfully to the question asked and was not defying the court order, and I did everything within my power and the agency expended 95 percent of its resources to attempt to comply with that order.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me make it very clear, Judge, I don't question or challenge your administrative skills, and I understand that the case was reversed, so you turned out to be right, in the sense that it was an unreasonable order or an impractical order. What troubles me about it is, when I practiced law and even though I don't practice law now, an injunction or a court order is pretty powerful stuff, and if you violate it, you can go to jail, if the court so decides that they want to impose that. Also, if I disagreed with it, as I did, particularly when I was a prosecuting attorney, I would immediately file some sort of action to try to get relief in another court, if I had to, whether it was a Federal court or another superior court, instead of violating the court order, like it appears you said I am violating it and that is it, I can't say anything, judge, but I am violating it.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, that certainly wasn't my attitude, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NO, I understand, you have explained that, but I believe that is how it is perceived. You have explained that was not your attitude, and I accept that that was not your attitude. 332 Why didn't you first go to the court and request that the order either be changed or suspended, while you had a chance to come forward with all the reasons and justifications that you now have pointed out, which are: that you had exhausted all the capabilities of your staff, you couldn't comply, and that your predecessor had the same problems? Maybe you did that, but that is not in the history that I know about.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I have not gone back and looked at all the documents during my OCR days. I was represented, as the agency was, by attorneys from the Civil Division of the Justice Department, as I remember it. And the communications with the courts were handled through those attorneys. I can't remember prior to this particular hearing that you were talking about to what extent we had communications with the Court and with the other parties. We were attempting, as I indicated to you—and perhaps we were too slow, and I had expedited a study that was taking place prior to my going to the agency to determine what the timeframe should be. I do not remember, however, to what extent we communicated our efforts to the Court. Again, that has been some 10 years ago.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes, I realize that, Judge Thomas. But don't you agree that if you had anything filed or pending before the Court, or even if you were prepared to file something you probably should have raised it when the judge said you are violating the court order. Rather you should have said, Yes, I am, but, your Honor, I would like to tell you that we are preparing a suit right now? You don't recall that there was any such action on your part, is what you are saying? There might have been, but you don't know.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I just don't know. That has been so long ago. I did go on—I think there is further discussion in that case about our efforts in trying to provide or to expedite the study that was in place prior to my going to OCR.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What would you do as a judge today if a person appeared before you and you had written an order to do something going to And they come up with any plausible other litigation or other solution? How would you treat that as a judge? How would you think about that defendant or that person before you?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, first of all, Senator, I would hope that is not the perception of what I did because we did everything we could to comply with that court order. And I think ultimately what the judge realized is that we were doing all that we could, that it was impossible for us to comply with it. But if someone did come before a judge and refused to comply with the court order, I think the judge would, of course, have to take whatever steps he or she could with respect to
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. TO get them to comply.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That is right.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And there were no steps taken, is that right?
Clarence Thomas
Nominee
(R)
Judge THOMAS. From the court?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes. 333
Clarence Thomas
Nominee
(R)
Judge THOMAS. I don't remember the outcome, but there were no steps taken, and I think the judge understood that we were doing all we could. That is my estimation. Again, I have not gone back and reviewed the order.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I raise it because I think it is important for two reasons: One is I think it is important that you get to explain your views and your actions. I really do. Secondly, Judge Thomas, it really surprises me, but, you know, I was a young lawyer once, and certainly I made some decisions before a court that perhaps I wouldn't want to have to explain right now if somebody asked me. But it is of concern to me when someone is going to be in the position that you very likely will be in as a Supreme Court Justice, having had a period of time even as a young green lawyer where you did not, at least on the record there, explain the problems as you have today and just admitted that you were violating the court. I was fearful of saying that to a judge.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I was, too.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I would have all kinds of reasons that I would propound why I had to violate it. As a county attorney, I remember having to argue that I couldn't comply with a judge's order, but I hopefully always did make enough of a plea to him that he wouldn't hold me in contempt.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, I can assure you, I was at that time, I think, 33 years old, and I was scared to death. I had only been at OCR for a very brief time, and there were a lot of decisions, very difficult decisions to make during that period, and this was one of the difficult, difficult problems that I inherited.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What would you say, Judge Thomas, you learned from that experience?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Again, with the benefit of hindsight and the benefit of more years under my belt—and it is a much bigger belt now
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That is true of a lot of us on this committee, the chairman being the exception, of course.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that I would have perhaps made more efforts along the lines of what you indicated and certainly made sure it was in the record and to give fuller explanations.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge Thomas. Let me turn to a subject that has been touched on here, and that is judicial activism. Over 20 years ago, the Miranda v. Arizona decision defined the parameters of police conduct for interrogating suspects in custody. I am sure you are more aware of it than I am today, having served on the bench. As you know, over the years the Court has redefined various elements of the Miranda test, a redefining that many describe as chipping away of the Miranda rule. Miranda is a preventive rule imposed by the Court in order to enforce constitutional guarantees. My initial question to you on these types of issues is not your opinion of those two rulings such as that, but rather do you believe that it is within the Court's role to be imposing rules such as Miranda or, say, the exclusionary rule? Is that, as you have quoted before, considered judges running amuck? Have they gone too far, in your opinion? 334
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, I think that what the Court was attempting to do is to set out some guidelines to prevent, as you have noted, constitutional violations and certainly to deter law enforcement officials in the case of the exclusionary rule from benefiting from improperly or unconstitutionally seized evidence.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you consider that judicial activism?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I do not consider it judicial activism. I see it as the Court trying to take some very pragmatic steps to prevent constitutional violations.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What do you think judicial activism is? Well, before you answer that, what about the famous tax case where a court, not the Supreme Court, imposed on a local school district to raise the taxes? You were an assistant attorney general in Missouri handling tax issues at one time. Would you consider that case judicial activism?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think there are some who certainly would. I don't know
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Your good friend and mine sitting behind you does, and I happen to agree with him.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think there are some who would because of the extent of the remedy. But I couldn't say because I have not reviewed that case and I haven't studied the record in that case. I think any of us would be concerned in the area of judicial activism when we conclude that a judge is imposing his policy decisions or her policy decisions instead of the law.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS that your interpretation or definition of judicial activism?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that is one such definition.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Can you give me any other one? Then I will wind up here.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I wish I had some off the top of my head. I just think that when judges move away from interpreting the law and applying the law as written or interpreting the Constitution in an appropriate way and begins to read his or her views into those documents, I think we are venturing into an area of judicial activism.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU think, Judge, that you can refrain from that as a Supreme Court Justice?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Oh, I certainly can, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Now we will go to Senator Grassley of Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Judge Thomas, I think maybe just for the record I will go through some of the issues with Adams v. Bell. I don't know whether there is a necessity for you to answer any questions or not, but just to make the record clear. I think that first of all we need to make clear that not only has this issue been brought up at this hearing, but it was also a basis for some special interest to find fault and try to prevent your appointment and confirmation to the Supreme Court. You took over as head of the Department of Education on July 3, 1981. You were appointed in May of 1981. The contempt motion that is part of the discussion here was actually filed on April 21, 335 1981, and, of course, that was before you were appointed and 3 months before you were sworn in. So the contempt motion was based on somebody else's conduct since it was filed before you arrived at the Education Department. That is your understanding of that.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I believe that is accurate, Senator. Certainly something that was in existence before I arrived.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Your predecessors at the Education Department were Carter administration officials. They also had difficulties meeting these timeframes. The timeframes were very unreasonable. The Office of Civil Rights had 15 days to acknowledge the complaint, 90 days to investigate it, 90 days to negotiate a settlement, and 30 days to go into an enforcement, which was administrative litigation. If I could quote from the contempt motion which was based upon actions or inactions of Carter administration officials, the plaintiffs complained that enforcement under Carter appointees "demonstrates wholesale violation by the Office of Civil Rights of the timeframes for compliance review." The plaintiffs also cited OCR's large number of very old unresolved complaints pending at the end of 1980. That last sentence was also part of a quote. So I think it is fair to say, Judge Thomas, that you inherited in that position a very unworkable situation, that you showed no disregard or contempt for the law, that you simply admitted the truth to the judge, the impossibility of meeting those timeframes that I mentioned. And I guess it is a way of saying that you were being very accurate with the judge. You were not held in contempt by the judge, and, of course, what the judge directed was to go back and ask for more realistic timeframes. And the judge let the parties come up with the timeframes. I don't think that there is much more to this that we need to go into, but, Mr. Chairman, if there is a lot of concern about this, I would very much ask—and I will leave this up to the judgment of you as chairman, because there is no sense of printing a lot of costly material if not. But if this is going to be in dispute, I hope that we could put as part of the hearing record the transcript of the hearing that has been referred to here, Judge Thomas' appearance before the judge, so that the full explanation and discussion with the judge can be reflected.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Let me suggest, unless anyone would like me to do otherwise, that I will make copies of that hearing record available as part of the record, rather than have it reprinted in the record now, unless that is the request of the witness or of you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. That is OK with me. Judge Thomas, moving on to another matter, I would like to follow up on the matter of individual privacy. And as Senator Simpson said, the right of family privacy is not absolute. There are limits. The Supreme Court stated it best in the Bowers case: The dimension of protected privacy will include fundamental liberties that are either "implicit in the concept of ordered liberty, such as neither liberty nor justice would exist if they were sacrificed," and are "deeply rooted in this Nation's history and tradition." 336 Let me simply ask you this, whether you have any objections to this test as a method of determining the extent of protectable private interests.
Clarence Thomas
Nominee
(R)
Judge THOMAS. AS I indicated earlier in my testimony, Senator, I think that that is an appropriate manner in adjudicating cases on the liberty component of the due process clause of the 14th amendment. Justice Harlan I think appropriately sets out a methodology that I certainly find agreeable.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And you don't have any problems with the Bowers decision?
Clarence Thomas
Nominee
(R)
Judge THOMAS. Well, Senator, I think I have not commented on the outcome in these important cases, and that particular case is a recent case. It is an important case. The Court is continuing to attempt to define the contours of the privacy interests, privacy protections. It is simply at this moment drawing the line with respect to certain types of intimate relationships.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, Judge, this morning you said that you didn't have any quarrel with the Eisenstadt case, and I don't have any problems with that statement. And I can appreciate the fact that the Bowers case is a very recent case. But I would like to point out that the Bowers test was derived from Justice Cardozo's opinion in the Palko case, and that dates from 1937, and from Justice Powell's decision in the Moore case, 1977, which has been discussed. And so I guess the Bowers decision, even though being a recent decision of the Court, is based upon a lot of established precedent. So what objections do you have with the Bowers decision based upon my statement to you that it is not really just newly created law, but based upon 14 years back and 50-some years back?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I did not certainly quarrel with the precedents cited in that case, Senator. My point is simply that I am not expressing agreement or disagreement. My point is that I think it is inappropriate for me to—would be inappropriate for me to comment on the outcome in that case. There are important precedents in that case, and I would not question those underlying precedents, the older precedents that you are discussing, Palco and some of the others. My point is that I think it is inappropriate for me to comment on a case, a recent case in this very troublesome and very difficult area.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, let me think about what you said before. I am not sure I am very happy with that. But we will have another opportunity maybe to go into that. Let me continue with the subject of privacy. Like several of my colleagues, I want to approach it a little bit differently. I would like to talk to you about an appeals court case. You sat on an en-banc panel on New York Times v. NASA. Although you did not write the opinion, I think the case illustrates how the Government can recognize and protect the right of privacy. Let me relate facts briefly. The New York Times filed a Freedom of Information to get a copy of the black box tape from the Challenger tragedy, and you know that was the shuttle blow-up. A transcript of the tape had been released, but the tape itself, because of the anguish some of the astronauts expressed, had been withheld. NASA asserted that the tape fell within exemption 6 of FOIA, and that is personnel and medical files and similar files, the disclosure 337 of which would constitute clearly unwarranted invasion of personal privacy. The majority opinion found the tape came within exemption 6 but remanded the case to the lower courts so that it could balance the privacy interest with the right of the public to be informed. There was a clear split in the appeals court, and it was 6-5, and the minority would have found the tape to be exempt and would have allowed immediate disclosure. It seems to me that the majority in this case, some would say the conservative on the court, actually had more sensitivity to the privacy issue. So I would like to have you offer us your perspective on these competing issues, the right of privacy and the right of the public to know.
Clarence Thomas
Nominee
(R)
Judge THOMAS. That was, as you noted, Senator, an en bane case, a very close one and a very important one, and the issue for us was whether or not there was an exemption provided by statute for information about a person. The Supreme Court has held that personal information of that nature is not disclosable, if it would violate the privacy of that individual. The question was whether or not this was personal information. The transcript of the voices of the astronauts involved in the disaster was made available under the Freedom of Information Act. What had not been disclosed to the public was the voice recordation of the astronauts. The question became whether or not the information that was disclosable in the record, the recordation of those voices was more personal or different from the information, the actual transcript that had been disclosed, and what the court essentially found is that there was more information in the voice record of the astronauts than there was in the transcripts, and that that information was personal information and could only be disclosed after it was balanced against the interests of the family and the interests of the individuals involved.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Your answer is very correct, as far as that specific case is concerned, but from your vote and your reasoning, how do you in your own mind see the right of privacy versus the right of the public to know, in other words, philosophically, as you might approach some cases in the future where this is an overriding issue in the case?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think, very generally, Senator, we are all concerned, certainly those who are in the public arena and making available to the public information about the operations of those public agencies and about the officials in those agencies in their official capacities. The concern in these cases, the Freedom of Information Act cases, as I have seen them, and I think it is a general concern, is whether or not one should disclose information that is personal to the individuals, even if they are government officials. For example, should you disclose a person's personnel record or should you disclose information that is similar to the personnel or medical record. And if that information is a personnel or similar record, then the question becomes what are the interests in disclosing that, are there competing interests that outweigh the public's interest in knowing what is in those records. And what the courts 338 have attempted to do, and they certainly do at the trial level, is to balance those competing interests, and certainly under the Freedom of Information Act, Congress has made a judgment as to what that standard of review should be.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. NOW, the reason that this case struck me is because of my concern about the individual right to privacy and something you wouldn't know about, but some of my involvement is expressed in Senator Biden's Violence Against Women Act and contains an amendment of mine expressing the sense of the Congress that the name of the rape victim should be kept confidential by the news media. There are parallels between I think this NASA case and the situation of rape victims. In the Challenger case, the transcript of the tape had already been released, and the public could know and read the last utterances of the tragic victims. There was a lot to be learned without the release of the tape itself. There was a lot made public, without the release of the tape itself. Likewise, of course, the public can learn a great deal about the victim of a rape, without having her name disclosed by the news media, and it seems irresponsible to me that the media would make the victim a victim the second time by dragging her name through the press. I realize that you cannot comment on protecting rape victims' names, since there are first amendment implications and so-called rape shield laws may come before the Supreme Court, so I think I will leave you with my views on the subject and not ask for a response from you. I would like to go on to a point dealing with the overall subject of precedent. You have discussed this to a considerable extent even with me. When you came to the Senate Judiciary Committee as a nominee for the court you now sit on, you explained your obligation to follow Supreme Court precedent as an appeals court judge, and I think sitting on that court, I believe that you have carried out that obligation. In addition, you have shown appropriate deference to the findings of lower courts and administrative agencies. We discussed that some yesterday. Your opinion in the antitrust case of U.S. v. Baker's Shoes is a good example of that deference. But on the Supreme Court, there are different considerations with respect to precedent. For example, Justice Frankfurter wrote that precedent "is a principle of policy, and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such an adherence involves collision with prior doctrine more embracing in its scope, intrinsically sounder and verified by experience." That is from way back in 1940, the Helvering case. In your discussion with Senator Specter, you referred to the length of time as being part of the evaluation of precedent, and in your discussion with Senator Brown you referred to the development of institutions as a result of prior precedent, and those are your words. Are there any other factors which the high court should consider, in deciding to overrule a prior case? And how would you weigh or prioritize those factors that you might give me now? 339
Clarence Thomas
Nominee
(R)
Judge THOMAS. I certainly, Senator, could not give you a precise calculus as to how that would be done.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. NO, but just a general approach.
Clarence Thomas
Nominee
(R)
Judge THOMAS. But I think, as I indicated yesterday, that whenever one begins to reconsider, as a judge, a prior precedent, that one must understand that is a very serious undertaking, that it is a matter, at least from my point of view, the burden is on that judge to demonstrate why that precedent should be reconsidered. In the statutory area of law, in the case law involving statutes, there seems to be less of an inclination on the part of judges to reconsider or overrule cases, primarily because of the view or the feeling that if it were wrong to begin with, then the legislature would have corrected it, and I think that sort of underscores the point that Senator Specter was making yesterday about revisiting statutory interpretation cases or precedent. In the area of constitutional cases or constitutional law cases, at least those cases are very, very important, but the feeling is or the sentiment is on the part of the Court that those cases can only be revisited in a realistic way by the judiciary, since the amendment process is one that is very remote, as far as the possibility of occurring, and that those cases are more likely to be revisited or reconsidered. Again, I don't think there is a precise calculus in approaching those two areas. I do think that you start with the case being wrong, one has to view that case as wrong, and I think one has to understand and take into account the continuity in our legal system and has to understand or I think demonstrate why this continuity should in some way be broken. I don't think that is necessarily an easy task, and it is certainly one that should be considered with a high level of seriousness and high level of concern about what the judge is doing, even if the case is found to be wrong.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I appreciate what you said. I would say that your approach is slightly different from that of Justice Rehnquist in the recent Payne case, where he said that the most compelling precedents are those which deal with property and contract rights, and that decisions dealing with procedural or evidentiary rules would be given less weight. On the other hand, some others have suggested other lines be drawn. Justice Powell and Justice Brandeis have made a distinction between constitutional cases and cases involving interpretation of law, and I guess I would ask you to give attention to a Brandeis quote: In cases involving the Federal Constitution, where correction through legislative action is practically impossible, the Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. So, let me as you if you share views of Brandeis that the approach to precedent is different when the cases involve constitutional interpretation.
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think that the underlying considerations, again, without in any way suggesting that the cases aren't of equal, if not in some instances greater importance, that the underlying concern that dictates whether or not the court would revisit these more 340 readily, those prior precedents more readily, the fact that changes can't be made by the legislative body, that only the Court, if it finds itself wrong, can make that change. I think that is an important consideration and it is not one certainly that I have a quarrel with, although I might add that I don't precisely know how a judge can quantify the differences between considering reconsideration of statutes, as opposed to constitutional cases.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. President Lincoln warned, in the context of the Dred Scott decision, against Government policy irrevocably fixed by the Supreme Court. He said the risk would be that the people would cease to be their own rulers in those circumstances. The reality is that the Supreme Court has overturned more than 260 of its decisions, and that figure is from the Congressional Research Service. Of course, we never would have had the historic Brown case, if the Court had declined to overrule the wrongly decided Plessey case, and we wouldn't, of course, be carrying paper money today, if the Court was strictly bound by precedent. This term, the Court has overruled five prior decisions, and one of them sparked some discussion during these hearings, Payne v. Tennessee. I am particularly interested in that case, because of my work in the area of victims rights. Contrary to how some have characterized your testimony, I reviewed what you said, and I don't believe that you in any way endorsed that decision, much as I would like you to state your approval of that case. But my point is that 5 decisions overturned this term is a very modest number of decisions, when you consider the activism of the Warren and Burger courts, 9 decisions overturned in 1963, 10 in 1964, 9 in 1976, and 11 in 1978. In the closing days of last year's term, the remaining liberal judges overturned a 1-day precedent which involved the constitutionality of the Arizona death penalty. On one day, the full Court upheld the death penalty, and the next day, in a similar case, but one in which Justices O Connor and Kennedy had to recuse themselves, the Justices used their numerical advantage to strike down the same death penalty provision. You know, this ought to bring to quick attention those of us or anybody who speaks so highly of the sanctity of precedent, because it can be a fleeting sort of thing on occasion, as well. The American people do not want a Justice who willy-nilly overrules prior cases. Stability and predictability have merit, but at the same time I don't think that we can suffer, and I don't believe you would allow us to suffer decisions wrongly decided. Let me ask you if you would agree with a Frankfurter statement on this point that the test is what the Constitution says, and not what nine people wearing black robes have said about it?
Clarence Thomas
Nominee
(R)
Judge THOMAS. The Constitution is certainly, Senator, the law of the land, and judges are called on to do the very difficult task and engage in the very difficult endeavor of determining precisely in specific cases before the court what that all means.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like one more comment, before I leave this subject area, and I thank you for your responses. It is interesting to observe that some now want to hold onto the past, whether it is protecting criminals at the expense of victims or sanctioning 341 special preferences or group entitlements. Some Supreme Court cases have become enshrined. Justice William Douglas, one of the more liberal activist judges that we have seen, and not someone with whom I agreed very often, was actually quite prophetic when he wrote in 1949, and I quote: Today's new and startling decisions quickly become a coveted anchorage for newly vested interests. The former proponents of change acquire an acute conservatism in their new status quo. It will then take an oncoming group from a new generation to catch the broader vision, which may require an undoing of the work of our present and their past. You may be part of that new generation. On the subject of natural law—and you are probably tired of talking about this—I had some concerns about your view of natural law when we started these hearings, but I think as I have sat and listened to you respond—and I think I mentioned this with you in the privacy of my office just for you to be thinking about it—but I think I feel comfortable with your approach. The American people have probably been confused about natural law, but I think you helped clarify things, when you explain it as a basis on which our Government was constructed, the Founders were inspired by higher law to erect a Government of limited powers, one filled with checks and balances and ultimately accountable to the people. You have indicated that the concept of natural law doesn't play a role in the deciding of cases, and, of course, I am glad to hear that you take that position. After all, Justice Brennan was motivated by natural law and it was license for judicial activism and legislating from the bench. He saw his role as a great effort in achieving what he called the constitutional ideal of human dignity, the meaning of the constitutional text that was constantly, in his words, evolving. I sense that you see the Constitution more appropriately as an anchor for judicial decisionmaking, and that you will leave morality to us in the legislative branch. Is that a fair conclusion?
Clarence Thomas
Nominee
(R)
Judge THOMAS. I think it is important certainly that judges not confuse their role as judges in interpreting the Constitution with your role in this body, the important role of making policies and determining the statutory or legislative policies that we should have in this country in a variety of areas. I think it is very important that judges realize that their role is a limited one.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Can I close with a passage from Robert Bolt's, A Man for All Seasons. I think it is a passage that you will recognize and I hope that will capture for us a proper place for natural law. Toward the end of the first act, Sir Thomas More is with his wife Alice, his daughter Margaret and his son-in-law Roper. They are clamoring for the arrest of an individual. Margaret tells her father that the man is bad. More replies, There's no law against that. Roper tells him, "There's God's law." More answers, "Then let God arrest him." More continues with a lesson to his son-in-law: "The law, Roper, the law, I know what's legal, not what's right and I will stick to what's legal." Roper accused him of setting man's law above God's. More answered, No, far below, but let me draw your attention to a fact: I 342 am not God. The currents and eddies of right and wrong I can't navigate, but in the thickets of the law, oh, there I am a forester. Well, Judge Thomas, we expect you to also see your way clearly through the thickets of the law. We will count on you to understand and apply the law, but natural law can be abstract, elusive and uncertain. I hope we in the legislative branch, like the Founders did, derive some of our inspiration for our work from natural law, but I would equally hope that any individual judge's natural law doesn't come into play as he or she decides a case, and I guess, let me say, I think you would agree with that.
Clarence Thomas
Nominee
(R)
Judge THOMAS. Senator, as I have indicated in my conversations with Senator Biden, with the chairman, and with other Senators, there is a limited role only to the extent that we are looking to what our Founders believe, and that is a part of our tradition and our history in analyzing and in attempting to adjudicate under some of the more open-ended provisions in our Constitution.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. I think the best line in that is the one you didn't read, where he says, "And when the devil turns around on you, Roper, what would you do then, all the laws being flat?" I hope we all keep that kind in mind, because he says Roper wants to cut them all down. At any rate, I don't want to cut any laws down or I don't want to cut anybody off, but it is 5:20 and there is no possibility of us finishing this round today. So we will adjourn until 10 o'clock tomorrow, and then we will begin with Senator Leahy and then Senator Specter. We are adjourned.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I beg your pardon. The Senator from South Carolina.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. When we finish two rounds of each Senat*QT*
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If we could have quiet for just a minute. The Senator had something to say.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. When we finish two rounds by each Senator, which we will do sometime tomorrow, I was just thinking, on this side of the aisle I think that we will feel that is adequate, except one on this side will probably want to take 30 minutes more. Is there any way we could come in earlier and get through all this testimony with him tomorrow, so we can get through with him?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We will try very hard to get through all the testimony, but we will not come before 10 o'clock tomorrow. It is not possible to do that before 10 tomorrow. It will depend on whether or not Senators have questions beyond the second round. We unfortunately go through this with every nominee in terms of this discussion. If there are no questions on the Republican side, I am sure that will allow us to move much, much more rapidly. I don't know how many people will have a third round over here, but we will continue
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I don't think that there will be but one on this side that will want to question.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Could I correct that? I might want 10 more minutes. 343
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Ten more minutes?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Ten more minutes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I expect there may be additional corrections as we go, but the point is we will try to finish tomorrow, that is if it is possible to do so within the framework that I set up when we started these hearings on Tuesday.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I think that will be fine. We appreciate it and we will start with the other witnesses next Monday.
Senator Joe Biden (DE)
Chai