Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, October 17, 1993 TAG: 9310170095
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: Newsday
DATELINE: WASHINGTON LENGTH: Long
After spending his first year on the bench in relative obscurity, Thomas in the past six months has made a number of speeches to conservative organizations, some with ambitious legal agendas and at least one that had filed a brief in a case pending before the court.
Meanwhile, Thomas is emerging as perhaps the most conservative justice on the court, in some cases voting to the right of his legal role model, Antonin Scalia. As a result, some of his supporters feel he has violated a pledge of moderation.
One of the 11 Senate Democrats who voted for Thomas' confirmation, David Boren of Oklahoma, sent the justice a letter last year protesting the "divergence" between Thomas' voting record and his descriptions of his views in a private meeting before his confirmation.
In his speeches, Thomas has shown an unusual tendency for a sitting justice: identifying himself with politically ideological organizations. Most justices limit their speaking engagements to legal organizations and universities. But Thomas, at least until an almost unprecedented ruling from the Supreme Court's own lawyers last month, has not.
In April, Thomas made a brief but effusive satellite television appearance to praise Paul Weyrich, founder of the conservative Heritage Foundation, and his current group, the Free Congress Foundation, which brings together conservative religious groups to fight abortion and work for conservative causes.
At the time, Free Congress had filed a brief supporting an evangelical church in Center Moriches, N.Y., in a case raising questions of freedom of speech and religion.
Thomas' later participation in a unanimous court decision in favor of the church was criticized last week by experts in legal ethics, including one who asserted it was a violation of federal law.
According to Monroe H. Freedman, professor of legal ethics at Hofstra University in Long Island, N.Y., Thomas' participation in that case after his public expression of support for Free Congress appears to be a violation not only of the canon of judicial ethics, but of federal law that says any justice or judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
But "reasonable" is a judgment that has been left up to the justices to decide. Another expert on legal ethics, Stephen Gillers of New York University, said that although Thomas was "close to the line" with Free Congress, he may not have crossed it.
"What concerns me is that this public association with an advocacy group might cause him to come to be identified in the public mind with that group," Gillers said. "Would a fair and reasonable observer of his conduct toward the group begin to identify him with the group? If the answer is yes, then it's inappropriate."
Thomas, through Toni House, the court's spokeswoman, declined to comment. But House said that it had not been uncommon for justices to speak to the American Bar Association and subsequently to participate in cases in which the ABA had filed a brief.
Tom Jipping, who works for Weyrich at Free Congress and is a friend of Thomas, said former liberal justices Thurgood Marshall and William Brennan had made appearances before liberal groups and voted in cases in which the groups had participated. But associates of both justices said they had avoided such appearances.
"Justice Thomas' critics will do anything, anything to avoid admitting that Justice Thomas is taking a consistent approach based on sincerely held principle," Jipping said. "They cannot compete by taking issue with the principles themselves; therefore, they would rather kill the messenger than deal with the message."
On May 1, Thomas returned to his native Georgia to speak to the law school at small, conservative Mercer University in Macon. In his speech there, he drew parallels between the physical attacks on black civil rights workers in the South in the 1960s and attacks on him and his fellow black conservatives for violating what he called the "new orthodoxy" established by the "cultural elite."
That appearance was unusual for its strong substance - Supreme Court justices tend to stick mostly to platitudes in public. But a few days later, Thomas attended a dinner in Atlanta sponsored by a local advocacy group, the Georgia Public Policy Foundation, which used his appearance to solicit contributions to support "a more conservative approach to government."
Thomas, through a court spokesman, said that, at the time, he did not regard the event as a fund-raiser. An official of the group said the affair was not a fund-raiser, because it had lost money on such expenses as entertainment and free tickets.
While Thomas does not release his schedule to the news media, he has been reported in religious publications to have met with groups from Christendom College in Virginia and the National Association of Evangelicals.
In September, Thomas decided to cancel an appearance before an arch-conservative group - Concerned Women for America - when the Supreme Court's in-house lawyers advised him, when asked by the justice, that it would violate the judicial ethics code.
by CNB