OPPONENTS of Clarence Thomas' nomination to the Supreme Court warn that he is a judicial activist -- a judge who values his own concepts of justice and natural rights over Congress' laws, established precedents and the Constitution.
But to label him a judicial activist or a natural law judge is unfair. A look at the 17 opinions that Judge Thomas has written during his tenure on the U.S. Court of Appeals shows that he firmly believes in judicial restraint, and suggests how he'll vote on important issues including police conduct and the rights of the accused.
In August 1990, Thomas deferred to Congress as the proper lawmaker in a case (Buongiorno vs. Sullivan) involving the National Health Service Corps, a federal program that pays medical school tuition in return for postgraduate service. Congressional legislation said that doctors who refused to serve would be fined three times the amount of money they received and empowered the secretary of health and human services to enforce this penalty.
A doctor refused to serve or pay, arguing the penalty was too onerous. A lower court agreed with him, but on appeal, Thomas refused to strike down the penalty.
This June, in Citizens vs. Busey, Thomas again demonstrated his commitment to judicial restraint. Congress requires federal agencies to consider the environmental consequences of their decisions. When the Federal Aviation Administration approved plans to expand the airport in Toledo, Ohio, a group of citizens sued. Thomas refused to take sides in the debate by ruling on the project's environmental impact. He insisted that the court's only duty was to insure that the FAA had obeyed Congress by considering environmental consequences. He declared that courts have no authority to make the law, and he added that "judges are not barons at Runnymede."
Thomas' record on the appeals court shows that he is not a judicial activist. It also shows that on the critical issue of balancing the rights of the accused with the need to protect the public against crime, he will avoid tying the hands of the police and prosecutors with restrictions that are not clearly required by Congress or the Constitution.
In United States vs. Halliman, for example, Thomas ruled that officers who had search warrants for three hotel rooms where cocaine was thought to be sold were justified in entering a fourth room without a warrant and seizing a bag of cocaine, because a toilet flushing in that room suggested that evidence was being destroyed.
In United States vs. Rogers, Thomas took a tougher stand on drug dealing than federal judges in New York. Federal law doubles the penalties for those who sell narcotics or possess them with intent to sell if they are within a thousand feet of a school. In New York, judges have held that the double penalty does not apply for merely possessing drugs in a school zone, that intent to distribute must be proved.
But Thomas ruled that because the defendant had a prior record of distributing crack near a school, his presence within a thousand feet of the school with a bag of crack was sufficient to convict him.
There has been much dispute about Thomas' record on protecting minorities from job discrimination. Off the bench he has advocated harsh penalties for racist employers and called for restoring jobs and back pay to victims on a case-by-case basis.
What Thomas' record makes clear is that whatever Congress decides, consistent with the Constitution, he will enforce. That, he believes, is his duty as a judge.
Elizabeth McCaughey is a constitutional scholar at the Center for the Study of the Presidency.