Doubting Thomas

Supreme Court Justice Again Raises Ethical, Legal Concerns In Speech to Right-Wing Group

Brushing aside protests from church-state separationists, Supreme Court Justice Clarence Thomas spoke to a Feb. 9 Washington, D.C., dinner of the arch-conservative think tank Claremont Institute.

The appearance came despite an appeal from Americans United for Separation of Church and State. In a Feb. 1 letter, AU Executive Director Barry W. Lynn urged Thomas to cancel the speech because of the Institute's partisan ties and strong stands on issues that come before the court.

"Americans will construe your appearance and speech at the Claremont Institute's event as a high-level endorsement of the group and its goals," wrote Lynn. "This will almost certainly undermine the public's confidence in the high court's commitment to nonpartisanship and impartiality regarding issues that come before it."

But Thomas ignored the plea. Before an attentive crowd of 200 that included at least 14 Republican members of Congress and several tables of wealthy GOP donors and campaign strategists, he assailed the federal government and indicated continued adherence to the radical notion of "natural law" espoused by Claremont.

Voicing frustration with the scope of the national state, Thomas lashed out at a government "little constrained by the limits of its constitutional charter" and likened anti-government activists to "present-day...abolitionists." He also used his Lincoln Day address to rebuke those who raised conflict-of-interest objections to his appearance at the right-wing group, claiming they "interfered" and "need something to do with their time." Thomas drew protests for speaking on Claremont's stage since the California-based group regularly issues position papers and files legal briefs on conflicts that come before the high tribunal, including many hostile to church-state separation, gay rights and affirmative action.

Thomas himself did nothing to allay concerns about his ability to maintain fair and unbiased relationships with other figures in and outside the court by taking to the group's platform at the Mayflower Hotel. Just moments before Thomas's talk, the organization conferred a $25,000 prize on legal theorist Harry Jaffa, who used his acceptance speech to denounce Thomas's bench-mate Chief Justice William Rehnquist.

Jaffa, known for antagonism and personal invective toward fellow conservatives, including attacks on Robert Bork published in the National Review, lambasted the chief justice for "nihilism and moral relativism undiluted." Thomas, in later commending Jaffa "for his life's work," raised questions about whether he endorsed such critiques.

Meanwhile, charges that Thomas's participation gave the appearance of endorsing a partisan cause were borne out by set-aside seating for the Republican National Committee and GOPAC, the political committee converted into a powerhouse of Republican candidate recruitment and election fundraising by former House speaker Newt Gingrich.

Thomas and event emcee Pat Sajak, a Claremont board member better known as host of the game show "Wheel of Fortune," avoided explicitly partisan rhetoric. Still, Sajak and Claremont President Larry Arnn took pains to recognize the GOP members of Congress seated in the audience. These included Reps. Mary Bono (R-Calif.) and Roscoe Bartlett (R-Md.).

Also acknowledging applause were House impeachment managers Rep. Bob Barr (R-Ga.) and James Rogan (R-Calif.), who the day before had quoted Arnn on the House floor arguing that removal of the president was just as constitutionally valid as the federal elections whose results it would nullify. (On Feb. 12, the Senate fell far short of the two-thirds needed to convict President Clinton on two impeachment counts.)

Another notable attendee was James Hutson, chief of the Library of Congress's manuscript division. Last year, as part of an exhibition of Founders' papers funded in part by wealthy Republican donor Henry "Bud" Smith of Dallas, Hutson released a paper contending that Thomas Jefferson's landmark 1802 letter invoking a wall of separation between church and state was not meant as a statement of policy but merely as a "political manifesto."

Hutson, immediately embraced by Pat Robertson's Christian Coalition for sticking a finger in separationists' eyes, has denied ideological or partisan motives. His attendance at the Claremont dinner, however, has revived speculation about the basis of what Robert Alley, professor emeritus of humanities at the University of Richmond, has called Hutson's "biased analysis."

In editorializing against Hutson's conclusion, the Christian Science Monitor noted that the wall of separation is especially meaningful for small, minority faiths in the United States. Yet much of the money Claremont has secured for its conservative, anti-separationist mission comes from the Christian Science-affiliated Aequus Institute of California, of which Arnn serves as executive director. According to Aequus tax records for 1997, the group contributed $100,000 to Claremont and made a smaller $2,000 grant to the Traditional Values Coalition, headed by anti-separation and anti-gay crusader Lou Sheldon.

Several guests entering the Claremont event encountered right-wing propagandist Bill Kristol. GOP tactician Grover Norquist of Americans for Tax Reform circulated through the crowd, stopping often to chat with members of Congress. Originator of two 1998 ballot measure campaigns in California and Oregon to restrict labor unions' use of member dues in political campaigns, Norquist won back-slaps from party allies and vowed to spread the campaign from coast to coast when early polls showed the initiatives to be shoo-ins. He ate crow, though, after late labor pushes succeeded in sinking both bids. (Claremont's Golden State Center was a leading proponent of California's Prop. 226.)

Many observers believe that a major objective of the anti-union drive was to curtail the power of the teachers' unions, which pose a major obstacle on the road to a school voucher system.

Among the attendees at the Claremont dinner was Michael Joyce, president of the Bradley Foundation, whom Sajak introduced as "a friend of the school choice movement." Joyce, whose Milwaukee-based group has pledged to export the Wisconsin voucher scheme nationwide, presented Claremont's award to Jaffa.

Millionaire insurance mogul J. Patrick Rooney of Indianapolis, another major school choice proponent and financier who poured $49,900 into the failed California anti-union campaign, also attended the Claremont event and read the invocation.

(Claremont board member Howard F. Ahmanson Jr. also donated $49,000 to promoting Prop. 226, according to records available through the California Secretary of State's Office. Ahmanson, a California business executive, is best known to church-state separationists as an advocate of Christian Reconstructionism, a movement on the farthest fringes of the Religious Right.)

Still, the speech by Thomas -- and his praise of Claremont's conservative mission -- remained the evening's main draw. Claremont, the justice said, had played a "significant role in my own education." He acknowledged that "three of their Publius [educational] fellows" had served as his law clerks but quipped that he "didn't realize" it and quickly added, "I'll see that THAT doesn't happen again." He was apparently referring not to the glut of interns funded by the conservative group, but rather to the lack of deliberate coordination on the part of his office to get more of them.

Thomas's comments reflected a growing comfort in expressing conservative beliefs reliant on the notion of "natural law" and hostile to church-state separation. In his 1991 Senate confirmation, in which groups like the Christian Coalition championed his cause, Thomas distanced himself from the concept of "natural law" and called the church-state wall "an appropriate metaphor" for conveying the desirable separation between "our religious lives and the government."

However, while introducing Thomas, Arnn cited his concurring opinion in the Court's 1995 Adarand ruling, which blocked certain government affirmative action programs. In it, Thomas seemed to borrow from Jaffa's discredited thesis. The justice argued that Americans' so-called natural right of "inherent equality," allegedly rooted in the Declaration of Independence, made any attempt by government to counteract actual discrimination unnecessary and a form of "paternalism."

That same year, Thomas angered church-state separationists in another concurring opinion, this one in the court's Rosenberger ruling. There he argued that nothing in the Constitution bars government from offering direct aid to a variety of religious groups and that religious groups can get money for a program if non-religious groups are usually offered some, too. That argument, strenuously rebutted by fellow Bush appointee David Souter, may soon gain further elaboration in court opinions.

If Thomas and Claremont have their way, it might one day have the force of law.