By Kashmir Hill and David Lat
Sunday, June 13, 2010; B02
The end of the Supreme Court term later this month marks a milestone: four years in which Justice Clarence Thomas hasn't spoken during oral arguments. That's more than 250 cases heard, and not one word from Thomas, the longest silence of his nearly 19 years on the bench.
Is he unhappy? Bored? Restless?
This is not his normal state. When the justice from Georgia steps out of his black robes, he's a gregarious fellow. When addressing law students, bar associations or Congress, he is charismatic and compelling. At a speech at the University of Florida this year, he cracked self-deprecating jokes and made football references. "Many of you are passionate about your Florida Gators, but how passionate are we about the principles that underlie our country?" he asked. Unfortunately, his people skills are wasted in the stuffy, stilted, stylized interactions between lawyers and Supreme Court justices.
Soon after the election of President George H.W. Bush, when he was approached about serving as a federal judge, Thomas -- then the director of the Equal Employment Opportunity Commission -- said he couldn't imagine spending the rest of his life on the bench. But his friend, federal appeals court Judge Laurence Silberman, responded: "It's not like slavery, Clarence. You can always leave if you don't like it." Twenty years later, Thomas is still honored to be a judge. "But I wouldn't say I like it," he said in a speech at Chapman University in 2007. "There's not much that entices about the job."
So why not step down? Thomas should leave his perch at 1 First Street -- and head for 1600 Pennsylvania Ave.
The Republican Party is in disarray, with no clear message -- as shown in last week's primaries -- and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP's new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography "My Grandfather's Son." And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.
A Thomas candidacy would bring racial diversity and a moving personal story to the Republican ticket. Thomas was born into poverty in Pin Point, Ga. He didn't have indoor plumbing until he moved to Savannah to live with his grandparents at age 7.
"[My grandfather] told us that if we learned how to work, we would be able to live as well as he and Aunt Tina did when we grew up," Thomas wrote in his memoir. ". . . Our first task was to get a good education, so that we could hold down a 'coat-and-tie-job,' and he wouldn't listen to any excuses for failure." Through hard work and a dedication to education, including degrees from Holy Cross College and Yale Law School, Thomas became a distinguished lawyer and public servant.
Thomas is well suited for political office. On the nation's highest court, he has had to reflect and rule on the country's most divisive issues. He also has political experience predating the court. He worked as an assistant attorney general in Missouri and then for the Reagan administration in the Department of Education and as head of the EEOC.
And it's clear that Thomas prefers the open road over cloistered chambers. During the court's summer recesses, he enjoys driving around the country in his motor home, parking at Wal-Marts and seeing "a part of real America," as his wife put it in an interview with WNYC's "The Takeaway." Thomas says he loves it because it "gets you out among your fellow citizens." The justice could spend the next two years in his RV, simply adding a sign to its side: "Vote Clarence Thomas!"
His wife could do more than drive. Virginia "Ginni" Thomas is a longtime political insider who worked on Capitol Hill and for the conservative Heritage Foundation. She's adept at political organizing and fundraising, and she recently launched a nonprofit, Liberty Central, focused on training and supporting citizen activists involved in the "tea party" movement.
She has described the goal of Liberty Central as helping "more citizens become active and engaged in protecting our core founding principles." Perhaps it's time for her husband to become more "active and engaged" by entering the arena of electoral politics.
Thomas's presidential platform would have broad appeal, especially among Republican primary voters. His libertarian leanings are reflected in his judicial opinions, such as his questioning of the federal government's regulatory authority under the commerce clause. And a bonus for Ayn Rand fans: Thomas traditionally makes his law clerks watch "The Fountainhead" after they arrive in chambers.
Would it be insane for Thomas to leave a lifetime appointment to run for president?
Well, he is a judge, so let's talk precedent. If elected, Thomas would not be the first person to serve as both president and justice: William Howard Taft was president from 1909 to 1913, then chief justice from 1921 to 1930. And Thomas wouldn't even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.
Lawyers tend to be risk-averse, so let's consider the downsides for Thomas if he leaves his post. The most obvious is giving Obama a third Supreme Court vacancy. But this problem should not be overestimated. Thus far, Obama has not nominated hard-core liberals to the court; his recent choice of Solicitor General Elena Kagan disappointed many on the left. Furthermore, Republican senators would subject Thomas's successor to a much higher degree of scrutiny than replacements for liberals David Souter and John Paul Stevens, possibly even filibustering a nominee they viewed as too left-wing. And, if he won in 2012, Thomas could appoint conservative justices of his choosing (possibly to fill a liberal's seat, such as Ruth Bader Ginsburg's).
What if Thomas left the high court, ran against Obama and lost? It wouldn't be the end of the world for him. Although Hughes failed in his presidential bid, things turned out well: He served in the executive branch as secretary of state under Warren Harding and eventually returned to the court, succeeding Taft as chief justice.
There's an entire world beyond 1 First Street just waiting to be explored. Thomas belongs out in that world -- not cooped up inside a marble palace, separated from the people by a bench, trapped underneath black robes.
Clarence Thomas in 2012!
David Lat is the founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog.