By John Yoo
Rumors are flying in Washington about who will replace William H. Rehnquist as chief justice. On the campaign trail, President Bush mentioned Justices Antonin Scalia and Clarence Thomas as his ideal judges. Apparently some politicians have leaked the idea that it is Thomas who will ultimately be selected, a move that would receive widespread approval among conservative Republicans.
But the idea that Bush might appoint Thomas clearly worries Democrats. Last month, Senate Minority Leader Harry Reid (D-Nev.) declared support for Scalia, whom he called "one smart guy." Reid then announced his opposition to Thomas with a personal attack: The justice, he said, was "an embarrassment" whose "opinions are poorly written." Reid did not offer a single example of this. For all we know, Reid may never have read a Thomas opinion.
As a former Thomas clerk, I can personally attest that his opinions are the product of a thorough drafting, rewriting and editing process that makes them the equal of any. Read a Thomas opinion on a subject like affirmative action, religion, crime or free speech they have an authentic voice unmistakable in its clarity, logic and moving language.
What really bothers Democrats like Reid is that Bush might nominate the nation's first African American chief justice. A Thomas nomination would force them to publicly oppose a smart, tough, deeply religious minority conservative whose views are not so out of the mainstream as they would like you to believe. That's not something they're eager to do.
In the end, however, the Democrats who oppose him if they're successful may turn out to be doing Thomas (and the country) an unintentional favor. I believe he can do more good for the country as an outspoken associate justice than he could as chief justice.
Being chief justice is not necessarily the most powerful position at the court. Aside from the boring details of running the federal courts (lobbying for more funding, building more courthouses), the chief justice's only real power comes during the Supreme Court's conferences, where cases are decided.
In these meetings, the chief justice speaks first, followed by each justice in order of seniority, and he assigns opinion-writing responsibilities when he is in the majority. That is it. The rest of the chief justice's duties are ceremonial, such as presiding over the court's oral arguments, administering the oath at presidential inaugurations and presiding over impeachment trials. His vote counts for no more or no less than the vote of any other justice.
Because he is not the chief justice, Thomas has more freedom to speak his mind and he does so on a regular basis.
Take, for example, his dissent opposing the use of race in law school admissions. Thomas quoted Frederick Douglass: "If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!" Thomas observed: "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators."
In 1995, Thomas declared affirmative action "racial paternalism" whose "unintended consequences can be as poisonous and pernicious as any other form of discrimination." An alleged beneficiary of affirmative action, Thomas spoke from the heart: "So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence." He argued that "these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences."
Thomas has always displayed suspicion of misguided efforts to cure society's ills with the latest academic theories.
In one 1999 case, the court invalidated a Chicago anti-gang ordinance that prohibited loitering. Thomas dissented, criticizing the court's highhanded approach: "Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes."
Before it was fashionable, Thomas supported government programs that included religious groups. In a 2002 concurrence supporting the use of school vouchers at religious schools, Thomas again quoted Douglass: Education "means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." To which Thomas attached an obvious truth: "Today many of our inner-city public schools deny emancipation to urban minority students."
In the voucher case, Thomas saw that progress for poor minority families was being blocked by intellectual elites making unreasonable assumptions.
"While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers," he wrote, "poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society."
These are not the words that emerge from the pen of a chief justice, who must worry about supporting the court as an institution first and speaking his mind second.
Rehnquist himself is a good example of how it can be inhibiting to be chief. As a younger associate justice, he advanced revolutionary theories calling for a reversal of the court's approach to race, states' rights, abortion, religion and free speech. After becoming chief justice, however, he left behind his lone-dissenter role.
Clarence Thomas, growing up in the segregated South, beating poverty and hardship to succeed in his education and surviving in the political shark pool of Washington, brings a unique outsider's perspective to the court and the Constitution. Without the burden of the chief justiceship, Thomas can pull aside the curtain of clever legal and intellectual argumentation to reveal the stark and real policy choices being imposed by the court on the nation.
John Yoo is a law professor at the University of California-Berkeley and a visiting scholar at the American Enterprise Institute. He is a former law clerk to Justice Clarence Thomas. This commentary originally appeared in the Los Angeles Times.January 13, 2005
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