- The Washington Times - Monday, October 15, 2001

"I'm only a judge," said the newly installed member of the U.S. Court of Appeals for the D.C. Circuit. Clarence Thomas' short statement to me in 1990 spoke volumes about both his judicial philosophy and personal humility and integrity. These two qualities justified President George Bush's statement that Justice Thomas was "the best person for this position" when nominating him to the Supreme Court on July 1, 1991. His consistency in maintaining these qualities makes today, the 10th anniversary of his confirmation, a great day.

His belief that "I'm only a judge" reflects exactly the American Founders' view that the judiciary would be the "least dangerous" and the "weakest" branch of government. Where a written Constitution (opening with the words "we the people") enumerates, separates, and divides governmental power, the political ends do not justify the means. Judges who know they are only judges are, therefore, one of the fundamentals of freedom.

Professor Gary McDowell wrote in July 1991 that "the true bone of contention" in the Thomas nomination was "an argument over the proper role of the court in American society, and about the nature and extent of judicial power under a written Constitution." Justice Thomas had long been clear about the side he supported in that argument. In a 1988 book chapter, he wrote that Congress has "the principal task of general lawmaking," while judges "should not make policy decisions." If judges ignore this distinction, the Constitution becomes "a blank check," and the people do not govern themselves.

Similarly, in a 1989 law journal article, he observed that "the commitment to limited government" naturally results in "judicial restraint." His opinions on the U.S. Court of Appeals, Gordon Crovitz observed, are "textbook examples of judicial restraint." Writing about his Supreme Court nomination in the Los Angeles Times, journalist Karen Tumulty concluded that "Thomas believes the power of federal judges should be limited." And David Broder reported in The Washington Post that Justice Thomas rejected "any intent to bring an activist mentality to his work on the court or to impose his own philosophy on the law."

Justice Thomas' view was simply that of America's Founders, a view compelled by the system of government they created and, indeed, by freedom itself. Justice Thomas has applied these basic principles throughout his first decade on the Supreme Court. He has not "grown" in office, tempted by the invitation to rewrite the law in his own image. He has not been corrupted by the desire to heal society's wounds or to lead "we the people" to some sort of promised land. No, he is still "only a judge."

Even before joining the appeals court, Justice Thomas had advocated "a judiciary active in defending the Constitution, but judicious in its moderation and restraint." That is, judges have to interpret and apply the law as it is, rather than making up what they want to achieve political results. In case after case, year after year, Justice Thomas has applied this principle across the board. In a 1996 case, Justice Thomas wrote of the "bedrock principle of judicial restraint" requiring that constitutional rights must actually be found in the Constitution. "Strict adherence to this approach is essential," he wrote, "if we are to fulfill our constitutionally assigned role of giving full effect to the mandate of the Framers without infusing the constitutional fabric with our own political views."

More recently, Justice Thomas joined a dissenting opinion by Justice Antonin Scalia that rejected "power-judging." In that case, the majority asserted that the Supreme Court can impose policies and rules on Congress and the states beyond what the Constitution requires. "This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people." Justice Thomas is not only a sane, but a committed and eloquent, supporter of the system established by the Framers, of government by the people. He knows that he occupies but one place in that system, with but one job to do. He knows he is "only a judge."

Justice Thomas has his critics because the view that judges are neither the therapist nor the savior of society has its critics. Others have given in, bought off by the prospect of a glowing editorial in the New York Times. Yet Justice Thomas' personal humility and integrity keep him anchored. In a 1986 article, he recalled that the Catholic nuns who educated him "taught me to be unsubmissive and unyielding in my beliefs." He wrote: "But my training by the nuns and my grandparents paid off. I decided then, at the ripe old age of 16, that it was better to be respected than liked." Little did they know they had planted seeds that, for a decade now, have helped Justice Thomas defend our freedom.

Thomas L. Jipping is director of the Free Congress Foundation's Center for Law & Democracy.

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