Not every justice on the Supreme Court connects the “magical words” of the Declaration of Independence with the government structure set up in the Constitution to protect natural rights as expressed by Thomas Jefferson.
In fact, the only one to do so with any consistency in recent years is Justice Clarence Thomas, a friend and former White House lawyer said in an interview with The Daily Signal on the occasion of the 25th anniversary of Thomas’ swearing-in.
“What we now have after Thomas has served for 25 years on the court is not just an amazing and inspiring life story, but a remarkable record of jurisprudence,” recalled Mark Paoletta, who was on the White House legal team when President George H.W. Bush nominated Thomas to the high court.
Other judges have produced “originalist” decisions, Paoletta said, but Thomas stands out as the one most willing to challenge prior court decisions that in his view conflict with constitutional rights, some of them lost to history and calling out for restoration:
Thomas is the one justice who is most willing to look back to the Declaration of Independence as the lodestar of our constitutional structure and how this leads into the concept of federalism, the separation of powers, the suspicion of centralized power and how dangerous it can be to liberty, which is why only certain powers are given to the federal government.
Thomas will deliver The Heritage Foundation’s Joseph Story Distinguished Lecture on Wednesday evening.
Thomas was sworn in as the 106th justice of the Supreme Court—and only the second black to serve—in a private ceremony there on Oct. 23, 1991. The quiet dignity of the event belied the firestorm of controversy that surrounded his confirmation hearings before the Senate Judiciary Committee.
The Senate voted 52-48 to confirm Thomas after he endured an onslaught of attacks that included unsubstantiated allegations of sexual harassment. Thomas described the turn taken by his confirmation hearings as a “high-tech lynching for uppity blacks who in any way deign to think for themselves.”
‘Challenging Civil Rights Leadership’
Thomas’ jaundiced view of liberals’ concept of a “living Constitution” that could be molded and reshaped to fit contemporary political agendas antagonized liberal pressure groups that favored abortion rights and racial preferences.
Many of these same groups had worked successfully to convince Democrats to reject President Ronald Reagan’s nomination of Robert Bork to the Supreme Court in 1987. Bork, a former U.S. solicitor general who served on the U.S. Court of Appeals for the District of Columbia, shared many of Thomas’ convictions on the role of the judiciary.
With an eye toward the failed effort to confirm Bork, the political and legal team inside the White House of George H.W. Bush were prepared to mount a vigorous defense of Thomas, Paoletta recalled.
Thomas’ confirmation to the Supreme Court was one of Bush’s “greatest achievements,” Paoletta told The Daily Signal.
“We had a lot of people involved with Bork who recognized what a titanic effort this would be, and they were ready to go on the offensive for Thomas and to provide a rapid-fire response against his critics and to make the case for him.”
While the Bork hearings were “game changing” in terms of how they affected subsequent confirmation processes, Paoletta said, he is convinced that in many respects the left’s attacks on Thomas were more severe and personal:
The Bork hearings showed us all how nasty the left is, and what’s shocking is that as bad as the Bork hearings were, the Thomas hearings were actually worse in terms of now nasty and vicious the left was toward Thomas. I think this had a lot to do with the fact that he was a black conservative who was challenging the civil rights leadership.
While civil rights leaders of the day put their emphasis on group rights that rely upon government solutions such as affirmative action, Thomas emphasized individual rights consistent with natural law as expressed in the Declaration of Independence, Paoletta said.
“I think the black leadership always viewed him as a threat to their business, so they sent out this signal that it was OK to go after him,” Paoletta said. “So you had this toxic combination of the civil rights leadership with all of the other groups that opposed Bork coming together to oppose Thomas.”
Thomas as Natural Law Judge
Since joining the Supreme Court, Thomas has emerged as a staunch proponent of originalist jurisprudence and as someone who takes a dim view of long-standing precedents that intrude upon the natural rights of all Americans.
While in some ways the drama of the Thomas confirmation battle never quite subsided, the justice’s contributions to the cause of originalism most intrigue Paoletta.
Thomas’ willingness to uproot “stare decisis”—the doctrine of upholding legal precedents—when it conflicts with the Constitution’s original meaning has placed the justice at odds with jurists and academics from across the political spectrum.
Paoletta points to the 2010 case of McDonald v. City of Chicago, where Thomas separated himself not just from his liberal colleagues but from other justices who might be considered originalists.
Five of the nine justices ruled that the 14th Amendment protects Americans’ individual right to keep and bear arms, and that the states cannot infringe on this right. Four of them based their decision on the doctrine of substantive due process, but not Thomas. Instead, he wrote a concurring opinion seizing upon the 14th Amendment’s “privileges or immunities” clause, which essentially had been discarded by the high court in the 1873 Slaughter-House cases.
Paoletta acknowledges that this commitment to the fixed meaning of the Constitution and the ideals of the American founding period sometimes puts Thomas in conflict with elite opinion, but as far he is concerned it also puts Thomas squarely on the side of “We the People.”
Paoletta, now a partner in the Washington law firm of DLA Piper, played an instrumental role both in the nomination and confirmation of Thomas to the Supreme Court.
Paoletta, an assistant counsel to the president, first reached out on behalf of the White House when Thomas was chairman of the U.S. Equal Employment Opportunity Commission. He asked Thomas to send speeches, articles, and other material in anticipation of his appointment by Bush to the U.S. Court of Appeals for the District of Columbia in 1990.
The following year, Paoletta had a front row seat during the most contentious moments of Thomas’ Supreme Court confirmation hearings. The two men have remained close friends.
‘A Horrible Experience’
Now that Thomas, 68, has served on the court for a quarter of a century, Paoletta, 54, continues to work to correct the record where he sees revisionist history and biased reporting in play.
He set up a website, ConfirmationBiased.com, as a rejoinder to the HBO docudrama “Confirmation,” which aired in April. Paoletta describes the film as a “classic Hollywood hit job” and an “all-out assault on Thomas” that distorts the truth of what transpired during the hearings.
The docudrama is riddled with “glaring omissions and distortions” that can’t be reconciled with key facts, according to ConfirmationBiased.com. That’s in large part because the story Anita Hill presented to the Senate Judiciary Committee in October 1991 was neither believable nor credible, Paoletta argues.
Hill, a law professor who had worked for Thomas at both the Department of Education and Equal Employment Opportunity Commission, testified that he sexually harassed her. But when members of the Judiciary Committee questioned key details of her televised testimony, Paoletta points out, Hill revised and retracted some of her statements.
Paoletta said the docudrama also failed to focus attention on 12 female witnesses who testified on behalf of Thomas. The women had worked with both Thomas and Hill, and said they did not believe Hill’s allegations.
“Even though this was a horrible experience for Thomas, the American people were able to watch those hearings uninterrupted and unfiltered and make their own assessment,” Paoletta told The Daily Signal, adding:
They saw 12 incredibly impressive, strong women who came forward in support of Thomas. But not a single co-worker of Hill’s came forward to support her allegations. Usually when you have a case like this, you have many witnesses, not just one. With the case involving Bill Cosby, for example, you have scores of women coming forward. But no one else made the allegations Anita Hill did. Her story was just not plausible.
“Once Thomas was nominated, I spoke with him on a daily basis and the day the Anita Hill allegations broke I stayed close to him,” Paoletta said. “When you go through something like that together, it creates a bond.”
‘Refreshing and Exciting’
By a margin of more than 2 to 1, the American public believed Thomas, and about 26 percent of women believed Hill, according to a New York Times/CBS News poll taken after the hearings in 1991.
“There’s no gender gap there in that poll,” Paoletta said. “Her story just did not add up. The American people took Hill’s full measure and found her wanting.”
Yet organizers of the Smithsonian’s new National Museum of African American History and Culture virtually lionize Hill in one exhibit while relegating Thomas to a relative footnote, as both the justice’s admirers and fair-minded historians note.
Five days before the private swearing-in at the Supreme Court 25 years ago Sunday, Thomas was sworn in at the White House with more than 300 family and friends in attendance. (That event can be viewed here.)
Despite ongoing efforts on the left aimed at tarnishing his reputation, some continuing to invoke Hill’s claims, Thomas has made lasting and enduring contributions to the cause of originalism, Paoletta said.
While Thomas is widely viewed as someone who was closely aligned with Justice Antonin Scalia until his death in February, Paoletta says he saw important differences between the two.
“Where Scalia once described himself as a ‘faint-hearted originalist’ who would look to precedent,” Paoletta said, “Thomas is undeterred by precedent when it conflicts with the original meaning of the Constitution.”
(Nearly 25 years later, Scalia, a Reagan appointee, said he “repudiated” those words and instead would call himself an “honest” originalist.)
Paoletta set up a second website, JusticeThomas.com, to detail some of the consequential cases that flesh out the justice’s originalist philosophy.
“What Thomas has done is to go back and dig down deep into every constitutional provision that comes before the court, and to apply the original meaning and to invite litigants to revisit these issues when an earlier decision may have gotten it wrong. That’s refreshing and that’s exciting,” Paoletta said, adding:
When Scalia came along, no one else was really looking at the text or the original meaning, and we are all indebted to Scalia for his remarkable jurisprudence. But it was Thomas who came along and said he would not be cabined in by a judicial process that did not go back and determine what the constitutional text was actually saying. Thomas has taken originalist jurisprudence and made it even stronger because he is unencumbered by precedent.
Paoletta first met Thomas in 1983, when he was an intern for the Republican National Committee and was fortunate enough to hop a ride with Bush, then vice president, on Air Force Two.
It was October, and Bush was flying to Bridgeport, Connecticut, to campaign for Paoletta’s uncle, Leonard S. Paoletta, then the city’s Republican mayor. It turned out Thomas was speaking that same day at Sacred Heart University in Fairfield, Connecticut, and met up with the White House team.
“He made a very big impression on me that day,” Paoletta recalled. “Even back then, I could see how electrifying he was.”
Fast forward to 1989, when Paoletta was working in the White House Office of Personnel. He was assigned the task of reaching out to Thomas about a potential appointment, though it wasn’t clear what exactly it would be. As requested, Thomas sent the White House copies of his writings, speeches, and other materials.
“I could see from all the material from the 1980s that Thomas was thinking about the Declaration of Independence and the natural law,” Paoletta told The Daily Signal. “I could see from his articles and speeches that he was taking on certain institutions and taking on Congress, for example, for passing things on administratively that it should not.”
After the elder Bush appointed Thomas to the D.C. Court of Appeals, the judge offered Paoletta a clerkship with a warning that, unlike the White House, working in that environment would be similar to working in a “monastery.”
When Paoletta informed his White House colleagues of the opportunity, they asked him to serve instead in the Office of White House Counsel. Thomas gave his blessing to the move.
Thurgood Marshall, the Supreme Court’s first black justice, announced in June 1991 that he was stepping down. Bush put out feelers to Thomas about taking the seat and the White House later sent Paoletta to pick him up at a prearranged location near the D.C. Court of Appeals.
From there, Paoletta recalled, he took Thomas to meet with the Bush legal team at the Justice Department.
“One of the great achievements of George Bush as president was the confirmation of Clarence Thomas to the Supreme Court,” he said.
Justice Clarence Thomas will deliver The Heritage Foundation’s ninth Joseph Story Distinguished Lecture before an invited audience Wednesday at 6:30 p.m. The “Preserve the Constitution” event, to be hosted by former Attorney General Edwin Meese III, will be live-streamed here.