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In Sharp Divide on Judicial Partisanship, Thomas Is Exhibit A

By Michael A. Fletcher and Kevin Merida
Washington Post Staff Writers
Monday, October 11, 2004; Page A11

From the hearing rooms of Congress to the offices of academic law journals, Clarence Thomas has become an emblem for what is right and wrong with the federal judiciary. He is perhaps the most visible reminder of the sharp divisions between conservatives and liberals and over who deserves a shot at one of the coveted seats on the Supreme Court.

Thomas's legal stands on such fractious issues as prisoners' rights, abortion, affirmative action, gay rights and the death penalty have inspired conservatives to push for more judges like him and have made liberals determined to thwart such efforts.

Clarence Thomas with evangelist Pat Robertson, whose school devoted a law review issue to articles on Thomas. (Bill Tiernan -- AP)

_____Style of a Justice_____
Photo Gallery: Supreme Court Justice Clarence Thomas has a low profile by Washington standards, but is far more engaged than he lets on.
_____Record of a Justice_____
Interactive Chart: An analysis of Thomas's record compared to other Supreme Court justices.
A Justice's Private File
Excerpts: Thomas's Legal Writings
_____More From The Post_____
Jurist Embraces Image As a Hard-Line Holdout (The Washington Post, Oct 11, 2004)
Jurist Mum Come Oral Arguments (The Washington Post, Oct 11, 2004)
Culling the Reputable, Reliable, Right-Leaning (The Washington Post, Oct 11, 2004)
Narrowly Defined Image Belies Jurist's Quiet Clout (The Washington Post, Oct 10, 2004)
Thomas's Across-the-Aisle Aid Puzzles Even the Beneficiaries (The Washington Post, Oct 10, 2004)
Yale Law Lacks Portrait -- And Thomas's Goodwill (The Washington Post, Oct 10, 2004)
Thomas v. Blackmun (The Washington Post, Oct 10, 2004)
About This Series

This series of articles about Justice Clarence Thomas is the result of more than two years of reporting by Washington Post staff writers Kevin Merida and Michael A. Fletcher. The two reporters published a Post magazine article about Thomas in August 2002. Their book on Thomas is scheduled to be published next year by Doubleday.

Thomas has written that inmates who are beaten or raped in prison should have no recourse under the Constitution's prohibition against "cruel and unusual punishment." He argues that the prohibition applies only to cases involving prison sentences, not prison incidents -- a standard long abandoned by the high court.

This year, Thomas dissented from a decision overturning a Texas inmate's death sentence after prosecutors deliberately withheld evidence that might have made a jury less likely to impose the death penalty. In his dissent, Thomas said the withheld evidence would not have swayed the jury.

In a 2000 dissent in an abortion case, Thomas wrote that the court's landmark decision in Roe v. Wade guaranteeing abortion rights was "grievously wrong." Nothing in the Constitution dictates that states must permit abortion, he argued.

Thomas also has criticized the rationale for the 1954 Brown v. Board of Education decision, though not its result. In a 1995 case, he disagreed with Brown's citation of social science research that said black students who attended segregated schools felt inferior -- a finding he personally rejects. Instead, he said, the court should have grounded the Brown decision on the bedrock of the Constitution: Segregating people into racial groups is a clear violation of the Constitution's equal protection guarantees.

Thomas has cited the Constitution when opposing affirmative action and other programs that consider race as a way to ameliorate discrimination. He believes such programs harm minorities by stigmatizing them as unqualified. That view infuriates many civil rights advocates, who have called him a hypocrite for opposing policies they said he benefited from.

"He is a victimizing victim. Black people understand that about him," said Michael D. Newsom, a Howard University law professor who recently published a law review article explaining what he sees as Thomas's alienation from black America. "Why would we want to celebrate one who we believe, rightly or wrongly, is hurting us? That would require us to be masochists."

If Thomas is a villain to some, he's an icon to others.

President Bush, while campaigning for office in 2000, cited Thomas and his conservative colleague Antonin Scalia as his models for a Supreme Court justice. That year, Virginia Beach's Regent University School of Law, founded by Christian evangelist Pat Robertson, devoted an issue of its law review to Thomas.

"He faithfully carries out the responsibility of every judge to say what the law is, leaving questions of what the law should be to the elected legislative branch of government," former attorney general Edwin A. Meese III wrote in the Regent law review.

Conservatives love Thomas's brand of "originalism" -- the doctrine that justices should closely parse the broad and sometimes ambiguous language of the Constitution to discern its framers' intent. Justices, Thomas has argued, should refrain from an approach that embraces new interpretations amid the shifting context of contemporary times.

Thomas's friends have said that legal approach does not preclude concern for other people. In his 1999 dissent in Chicago v. Morales, Thomas disagreed with a court majority that struck down a Chicago ordinance giving police wide latitude to arrest loitering gang members, pointing out that the law was intended to protect "our poorest and most vulnerable citizens" against the terror of gang violence.

Thomas's friends also like to call attention to the language he used in a dissent from the court's decision last year to strike down a Texas law banning gay sex. Even though Thomas said legal grounds compelled him to uphold the Texas ban, he called it "uncommonly silly." He concluded: "If I were a member of the Texas Legislature, I would vote to repeal it."

But gay rights advocates said Thomas wanted to have it both ways, noting that he also joined a dissent by Scalia, who chastised the court for signing on to "the so-called homosexual agenda."

For his part, Thomas has said his own policy preferences -- whether viewed as harsh or compassionate -- have nothing to do with his role as a justice. "Just because you reach a conclusion doesn't mean you agree with it," he said in a 1996 speech. "It just means that you've applied the law to this particular case. I always apply the text of the law, because what else would you apply?"

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