[First Round of Questions by Senator Heflin]
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 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 five 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 seems 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.
On the other hand, either from a political theory 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 fredoms.
As has been pointed out, those that would advocate the 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, safety-type laws on the job are restrictions against the right to contract or the 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 it and you, of course, have very clearly come out that you do not believe that natural law ought to be used towards 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 more 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.
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 part-time 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 portions of our Constitution, for example, the concept of liberty in the Fourteenth 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 an that it is not positive law. They are two separate things.
SENATOR HEFLIN: You have indicated that your writings and speeches were directed towards natural law more as a political theory and have used the illustration dealing with slavery. How is slavery related to a political theory?
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 Thirteenth and Fourteenth 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 HEFLIN: 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--
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 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--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 themes, 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 towards constitutional adjudication.
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 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?
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.
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--
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 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 "run- amuck 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.
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 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 super- legislature over this body or the political branches.
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?
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 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 decision-making 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 decision-making on constitutional adjudication.
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 a commission who was interested in this debate and advancing this idea, but not in adjudicating cases.
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 protection rights or the adjudicatory rights.
Now, in most political theories, you would have something, if it is adopted, that would provide for protection, which is judicial decision-making. Are you separating from the natural law theory adjudicatory processes?
JUDGE THOMAS: What I am saying, Senator, is this: that the individuals who drafted our Constitution, let's say our Fourteenth 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 HEFLIN: Well, if it became the 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?
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 time tables 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 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?
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.
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 BIDEN: 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 of civil rights?
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 BIDEN: I think the State Department is the place for you, Judge.
[Laughter.]
SENATOR BIDEN: We will recess, to give you a little bit of a chance to have a break, for ten minutes.
[Recess.]
SENATOR BIDEN: The hearing will come to order. xxxx
Senator Brown?
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 BIDEN: You just scared the living devil out of him. He is not sure whether you are serious.
[Laughter.]
SENATOR BIDEN: See the look on his face. He is only kidding, Judge.
JUDGE THOMAS: I would be more concerned if he called my brother.
SENATOR BROWN: I think we can make arrangements for that, too.
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 BIDEN: As far as his sister is concerned, she would rather it not be corrected, would rather be a daughter.
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 involved 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.
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 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 BIDEN: If the Senator would yield, did you have more than you read that you want to place in the record?
SENATOR BROWN: I think I would leave it at that, Mr. Chairman.
SENATOR BIDEN: Secondly, 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?
JUDGE THOMAS: I indicated that it would be inappropriate to explain to him or to say whether I did or not.
SENATOR BIDEN: Thank you.
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--
JUDGE THOMAS: That is correct.
SENATOR BROWN: I am assuming that you have not made a final decision in your own mind on the Roe v. Wade case?
JUDGE THOMAS: That is right.
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 Thirteenth 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 Thirteenth 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?
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 super- legislature. And I indicated that that is appropriate, particularly 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 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?
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 re- think 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.
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?
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 BROWN: Thank you.
I want to change subjects on you for a moment and take you back to the EEOC, during that eight-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?
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 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.
JUDGE THOMAS: Again, Senator, we automated in a number of ways. The first area that I was told when I was confirmed that I had to clean up was the financial management area. The then-chairman 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, D.C.
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 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?
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 Appeals 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 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 five 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.
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 BROWN: What about the agency itself?
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 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.
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 workforce, 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, 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 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?
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 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.
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 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, and ask that we make a part of the record an article on this subject from the Daily Journal.
SENATOR BIDEN: Without objection.
SENATOR BIDEN: 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. It is quarter of now. I think what we should do is we will go with one more Senator. We will go with the Senator from Illinois, and then we will take up tomorrow morning at 10:00 o'clock with the Senator from Wisconsin, followed by a second round beginning with me.