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In the Matter of Justice Thomas : Silent, Aloof and Frequently Dogmatic, Clarence Thomas' Judicial Persona Emerges

October 09, 1994|David G. Savage | David G. Savage, a Times staff writer, covers the Supreme Court

Exactly at 10 o'clock on a Monday morning, the strike of a gavel echoes through the courtroom, and the nine black-robed justices of the Supreme Court emerge from behind a red velvet curtain. As those assembled in the ornate hall take their seats, the lead lawyer rises, and the arguments begin.

Soon, most of the justices are up on their elbows, hurling questions at the attorneys. Justices Sandra Day O'Connor and Ruth Bader Ginsburg take turns poking holes in the advocate's argument. Justice Antonin Scalia, sympathetic to his case, leaps in to prop up his contention. "Aren't you really arguing that . . . ," Scalia offers helpfully.

Anthony M. Kennedy, looking pensive, asks a philosophical question. Troubled by the answer, Justices David Souter and John Paul Stevens want to know how far the advocate seeks to push his claim. All the while, Chief Justice William H. Rehnquist leafs through the briefs, trying to find a disputed passage of the law in question.

But one justice looks out of place. At the far end of the bench, Justice Clarence Thomas rocks back in his leather chair and gazes at the ceiling. He rubs his eyes and stares off into the distance. Sometimes, Thomas has a brooding look, as if he is pondering deeply. More often, he just looks bored.

For the Record
Los Angeles Times Sunday October 30, 1994 Home Edition Los Angeles Times Magazine Page 6 Times Magazine Desk 2 inches; 43 words Type of Material: Correction
Because of an editing error, Lani Guinier was incorrectly identified in "Lone Justice" (Oct. 9), about Supreme Court Justice Clarence Thomas, as a Clinton nominee for attorney general. She had been nominated for assistant attorney general to head the civil-rights division of the Justice Department.

"I don't understand it. He is engaged," says a former Thomas clerk, who like most of those who have worked for him, expresses great admiration for the justice. "He likes to argue out the issues in chambers" and displays a special interest in bankruptcy law and state tax disputes, he says. But Thomas' interest is not apparent in the courtroom. While Scalia and Ginsburg may ask five or six questions during a one-hour argument, Thomas asked not a single question during the last term of the court.

Lawyers in Washington and visitors to the courtroom never fail to comment on how removed he seems. "What's wrong with Clarence Thomas?" one lawyer new to the high court commented. "He just sits there."

That's a marked contrast from his 18 months on the U.S. Court of Appeals in Washington, says a judge who observed him then. "He's like two different people," says the judge. "He was talkative, gregarious on our court, a real participant. Now he seems to be in a shell."

This eerie courtroom silence has marked Thomas' career for all of the three years since he inadvertently became the best-known member of the Supreme Court. At first it seemed that he was simply trying to retreat, somehow, from the stinging visibility of the "he said, she said" confrontation with Prof. Anita Hill that made him the ostensible villain in a TV drama about sexual harassment. It was, perhaps, the worst imaginable fate for a fiercely proud and intensely dignified man.

For a time he was the most carefully watched, most reviled man in town. On the November day he took the oath of office at the court, his ceremonial walk down the marble steps was cut short when a small group of protesters began to boo and shout, "Down with the Male Supremacist Court." Not surprisingly, rather than beam for assembled photographers, Thomas turned away and walked back into the basement of the court. A few months later, the new justice accepted an invitation to judge a moot court competition at Seton Hall University Law School but canceled when word came that a women's student group was planning a candlelight vigil.

Wounded, Thomas retreated into the silence that protects a judge who is even more rigid and dogmatic than his opponents feared. As the hoopla over the man has died down, his judicial record has become clearer. He has compiled the most conservative voting record on a conservative court and lambasted his colleagues for refusing to go further in changing the law. He has voted to revoke the right to abortion and return some prayer to the public schools. He cast a key vote to cut off further hearings in a death penalty case, even when newly revealed evidence might have proven the defendant's innocence. He cast the deciding votes to make it harder for minorities to prove they were victims of job discrimination, harder for victims of stock fraud to sue lawyers and harder for environmentalists to be heard in court.

"He has shown himself to be exactly what his opponents said he would be: a knee-jerk right-winger," says University of Virginia law professor Pamela Karlan. "He was always going to be tainted somewhat for how he got to the court, but I think he is going to be more tainted by how he is acting now. He's shown no capacity for growth."

Georgetown University Law Center Associate Dean Mark Tushnet concurs. "So far, it's been the least impressive performance of any justice since Whittaker," he says, referring to justly forgotten Charles Whittaker, who resigned from the court in 1962 after having a nervous breakdown in his fifth year.

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