Thomas’ Star Rises as Bush Puts Allies in Key Legal Posts

Supreme Court Justice Clarence Thomas, whose bruising confirmation fight marked a low point of the first Bush administration, is emerging as an honored legal star of the new Bush administration.

President Bush’s three top appointees at the Justice Department--Atty. Gen. John Ashcroft, Deputy Atty. Gen.-designate Larry Thompson and Solicitor General-designate Theodore B. Olson--are close friends of the 52-year-old justice.

After his own difficult confirmation fight, Ashcroft went immediately to Thomas’ chambers at the Supreme Court to be sworn in as the nation’s top law enforcement officer.

A former clerk to Thomas, Helgi Walker, has joined the White House counsel’s office.

And earlier this week, Thomas was honored at the conservative American Enterprise Institute, where he delivered a solemn call to arms.

“The war in which we are engaged is cultural, not civil,” he said, adding that he is “deeply concerned because too many [conservatives] show timidity today precisely when courage is demanded.”

Over the last decade, Thomas has been shunned by much of the nation’s legal establishment. Unlike his Supreme Court colleagues, he avoids the top law schools and speaks mostly to groups of schoolchildren or strictly conservative gatherings.

And at the court he is a figure of silence. Alone among his colleagues, he does not participate in oral arguments.

But he is much revered in conservative legal circles, in part for his strongly written opinions and also because he has been so vilified by liberals and African American leaders. And now many of those who admire him the most hold new positions of prominence.

“In the ranks of the Bush administration’s legal elite, Clarence Thomas is very well represented,” said Clint Bolick, a lawyer and former Thomas aide who heads the conservative Institute for Justice.

Like Ashcroft, Justice Thomas believes in hard-edged attacks against liberals on issues such as abortion rights, school prayer, aid to religious schools and affirmative action. In his speech this week, he decried “an overemphasis on civility.”

His words are likely to resonate in the new administration.

Republicans hold a narrow grip on power in all three branches of government: the presidency, Congress and the Supreme Court. Within conservative circles, however, there has been much debate over whether it is wiser to steer a middle course to win over moderates or to take strong conservative stands. For his part, Thomas called for robust and unyielding conservatism, even in the face of withering criticism from the left.

“The insistence on civility in the form of our debates has the perverse effect of cannibalizing our principles,” Thomas said. “That is why civility cannot be the governing principle of citizenship or leadership.

“By yielding to a false form of civility, we sometimes allow our critics to intimidate us. Active citizens are often subjected to truly vile attacks. They are branded as mean-spirited, racist, Uncle Tom, homophobic, sexist, etc. To this we often respond, if not succumb . . . , trying to be tolerant and nonjudgmental. That is, we censor ourselves. This is not civility. It is cowardice or well-intentioned self-deception at best.”

Ten years ago this summer, President George Bush nominated Thomas, then in his first year as a judge, to succeed the retiring civil rights legend, Thurgood Marshall.

During his confirmation hearings, Thomas disavowed most of his previously expressed conservative views and described himself as a judge with “no ideology.”

He won Senate confirmation on a 52-48 vote and has gone on to be the most consistently conservative member of the high court.

Last year, then-Texas Gov. and Republican presidential candidate George W. Bush singled out Justices Antonin Scalia and Thomas as models for his future appointees.

Thomas is a hero to a young generation of conservatives.

UC Berkeley law professor John Yoo, who served as a clerk to Thomas in 1995, said: “He is an icon to the conservative legal movement, just as much or maybe more so than Scalia. He is the symbol and the spokesman for values-oriented conservatism.”

Though he grew up poor and black in the South, Thomas has insisted that the Constitution is “colorblind” and, therefore, does not permit affirmative preferences for racial minorities.

“He is also known for his commitment to originalism,” Yoo said, referring to the view that the Constitution should be interpreted according to its meaning when it was written and adopted in 1787.

Thomas pushes that view further than anyone. For example, most federal regulation is based on Congress’ power over interstate commerce. But in one opinion, Thomas said that the word “commerce” in 1787 meant only goods crossing state lines.

In the 20th century, the court defined the term more broadly to include business and commercial activity. That’s how federal laws can regulate the manufacture of cars in Detroit or discrimination in the workplace. If Thomas’ narrow view were adopted, those federal laws would be unconstitutional.

At the American Enterprise Institute dinner, Thomas was introduced by another hero of the conservative legal movement, former Judge Robert H. Bork, whose nomination to the Supreme Court was defeated in 1987.

Rather than proclaim an era of triumphant conservatism, Bork said that he sees a time of darkness and dire struggle.

“The mood in Washington these days is ugly, more bitter even than it was during Richard Nixon’s heyday,” said Bork. He praised as “perfectly valid” the high court’s 5-4 ruling that stopped the hand recount of Florida’s presidential votes and assured George W. Bush’s victory.

“Perhaps no court can save us,” Bork said, “but with this new administration and judges like Clarence Thomas, there is a fighting chance that we can preserve the temper and faith that . . . are the last flowers of civilization.”

The Francis Boyer Award, given to Thomas by the institute, recognizes “an eminent thinker who has made notable intellectual contributions or practical contributions to American society.” Past recipients include Presidents Ford and Reagan, former Secretary of State Henry A. Kissinger, former Defense Secretary and now Vice President Dick Cheney and Federal Reserve Board Chairman Alan Greenspan.

Thomas ended his acceptance speech with a repeated exhortation: “Be not afraid. Today, as in the past, we will need a brave civic virtue, not a timid civility, to keep our republic. Be not afraid.”