The Clarence Thomas I Know

Patrick Borchers is a contributing writer on Leavenworth St.

Thomas and BorchersSupreme Court Justice Clarence Thomas might be the most misunderstood public figure in the United States. But he doesn’t care.

All of this should come with a bias warning that he and I are friends. The fact that he and I are friends is due to a series of serendipitous events rather than some grand achievement on my part. But I’ll get to that in a bit.

When President George H.W. Bush nominated Thomas to the U.S. Supreme Court in 1991, I knew little about him. He had been a judge on the influential D.C. Circuit for a bit over a year. Prior to his stint on the D.C. Circuit he had been named by President Reagan to be the head of the Equal Employment Opportunity Commission.

It was obvious to me that he was judicially conservative, as that term is generally defined. Time has shown that he has perhaps the most consistent commitment on the Supreme Court to interpreting the Constitution in accordance with its original intent.

In case you think that this is a cover for a politically conservative agenda, it doesn’t always work this way. For instance, originalists have shunned constitutional limits on punitive damages and often sided with criminal defendants against sentencing enhancements and the like that are not determined by juries.

Of course, most remember Thomas from the explosive confirmation hearings in which Thomas was under fire based on the testimony of Professor Anita Hill. Opinion polls then and now show that people are deeply divided about which one was telling the truth, to the extent that they contradicted each other.

I can’t tell you what went on between them, because I wasn’t the proverbial fly on the wall. It’s easy for an interaction between two people to result in different understandings about what happened. Thomas has told me things that make me think that there are more aspects to the story than generally known. But I’ll leave it at that.

Thomas has always had a special relationship with Creighton Law School. His wife, Virginia (Ginni) Lamp Thomas, is a graduate. He gave the address at the Law School’s centennial anniversary in 2004. He is a huge Husker football fan; he can tell you where the recruiting class ranks and what he thinks of the coaches. He loves Creighton basketball; he and I went to a game and he was booing the refs and still has a t-shirt that the student section gave him. Oh, and he teaches for a week at Creighton Law School in February every other year.

When I was Dean of Creighton Law School he started teaching a seminar on constitutional adjudication in alternate years. A lot of his desire to keep coming back has to do with his friendship with Creighton Professor Michael Fenner (with whom Thomas co-teaches), who stuck by him when other people were abandoning him in droves during the confirmation hearings.

The public perception of him is that he’s dour and grumpy – scarred by the confirmation hearings – and thus doesn’t ask questions during Supreme Court arguments.

This is so silly that it’s hard to know where to begin. I’ve asked him about his lack of desire to ask questions, and he harkens back to – as he calls them – “giants” of the Court like Rehnquist and White and notes that they asked questions much less often than does the current crop of Justices. Besides, he says – gasp – he’s more interested in hearing the lawyers make their arguments than getting a preview of what his colleagues will say in conference.

As to the “dour” impression, I wish everyone in the world could hear his belly laugh. It echoes through the Law School. If anyone wants a cure for the winter blues, just drop by and listen to him.

Thomas one of the most astute lawyers I’ve ever met. His Supreme Court opinions are on average 25% shorter than those of his colleagues. Why? As he says: “I’m not interested in gum flapping.”

Last week, when Thomas was at Creighton, he noticed a young man who appeared to be nervous about to be going into an interview with a law firm. So Thomas sat down in the chair next to him and asked him what was bothering him. The student explained and Thomas went through likely interview questions and offered advice on how to answer them.

This wasn’t an “I’m on camera and I know it” moment. I wouldn’t know about it except that the student told me.

So here’s a Supreme Court Justice helping a young law student he doesn’t know do his best to get a job.

That’s the Clarence Thomas I know.

15 comments

  1. repentinglawyer says:

    Pat, you are right the Justice is charming, intelligent, and likeable. I am not one of his fans when it comes to judging, but you could not pick a better companion for a long breakfast chat.

  2. Martin Swanson says:

    I had the honor to meet Justice Thomas at a Creighton law school dinner. I saw that he was talking to a few folks and approached him just to say that I shook the hand of the a sitting United States Supreme Court Justice. Not only did I get to shake his hand, I got to talk to him for several minutes and heard that belly laugh that Pat talks about. As I introduced myself, he asked what I did and told him that I was an assistant attorney general at the time with the State of Nebraska and that they had me doing everything from workers comp trials to appeals. His eyes lit up and proceeded to tell me with a smile on his face about his days as in a similar position and how he ran around the state much like I was doing at the time arguing motions in a county court room one day and then getting ready to write a brief for a federal court the next. I think he and I could have spent all night swapping stories but felt obligated that people who paid a lot more money than I as a young alumni did had better get their moment in as well.

    I next met him in the context of his day job. I happened to have a fellowship in D.C. where I attended oral arguments at the U.S. Supreme Court on a regular basis. On this particular day, the Lorillard v. Reilly case was being argued. Out of nowhere, a voice hardly (if ever) heard before uttered a question. Heads turned, including the whole of the Court, as Justice Thomas asked a question. When I got back to the office, the discussion wasn’t about the case itself, but that Justice Thomas spoke.

    In any event, it was a pleasure to meet him on a couple different occasions and hopefully I can do so again. Thanks for the story Pat.

  3. Lawyers love to talk says:

    In the 1950s, the average length of a Supreme Court opinion was around 2000 words. Today, thanks to word processing and childish egos on the Court, very few SCOTUS opinions are under 10,000 words and many are around 40,000. That’s a book and unnecessary and governmentally unhealthy.

    An overly lengthy opinion is insufficiently distilled and thus probably too raw for good use. The longer the opinion the more room for collateral thoughts on the periphery of the case being intruded upon the narrow confines of the case as presented by its attorneys. Those intrusions inject personal bias beyond the case, make law, and push executive action. And to a degree that’s a function of being blabby. – You simply cannot listen and talk at the same time. Neither can a Supreme Court Justice. — Even when they aren’t actively trying to legislate or govern from the bench, they cannot help but inject bias and even obfuscate when instead of distilling out a brief opinion, they produce a tome of bloated words. More isn’t more clear. It is just more.

    Justices are supposed to listen to and then judge cases. Thomas seems to know his job. Of course, that’s only my opinion.

  4. Lawyers love to talk says:

    Interested Observer is correct insofar as one’s aim is “effective communication”. If one’s intent is, however, to sway people by words. then the process gets longer.

  5. Brandi Preston says:

    I was meeting with Nick Mirkay while Clarence Thomas was in town.. He was in the room right next to us. He does have the best laugh.

    I was so tempted to go in and take a “selfie” with him. (I was a little starstruck) but the Marshalls were slightly intimidating.

    Love the story about the young law student too. That’s something they will never forget. Too cool.

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