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These records pertain to Supreme Court Justice Clarence Thomas's nomination.
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These records pertain to Supreme Court Justice Clarence Thomas's nomination.
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Records of the White House Office of Cabinet Affairs (George H. W. Bush Administration)
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1998-0207-F
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Judge Clarence Thomas [1]
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6
1
1
THE WHITE HOUSE
WASHINGTON
August 20, 1991
MEMORANDUM FOR CABINET AND AGENCY CONTACTS
FROM:
GARY BLUMENTHAL Mary
SUBJECT:
Additional Materials on Clarence Thomas
Attached are additional materials on Supreme Court nominee
Clarence Thomas. These materials were assembled to help
summarize Judge Thomas' legal perspective. Therefore, you may
wish to share this specific packet with your general counsel.
Attachment
MATERIALS ON NOMINATION OF JUDGE CLARENCE THOMAS
TO THE UNITED STATES SUPREME COURT
PERSONAL
WEDNESDAY, JULY 17, 1991
Climb the Jagged Mountain
The truth of the matter IS we nave
excuses. The women who worked in
By Clarence Thomas
become more interested in designer
those kitchens and waited on the bus
jeans and break dancing than we are
knew It was prejudice which caused
in obligations and responsibilities.
their plight, but that didn't stop them
grew up here in Savannah. I
Over the past 15 years. I have
from working.
I
was born not far from nere (in
watched as others have jumped
My grandfather knew why his busi-
Pinpoint). I am a child of
quickly at the opportunity to make
ness wasn't more successful. but that
those marshes. a son of this
excuses for black Americans. It IS
didn't stop him from getting up at 2 in
soil. I am a descendant of the
said that blacks cannot start busi-
the morning 10 carry ice. wood and
slaves whose labors made the
nesses because of discrimination. But
fuel oil. Sure. they knew it was bad.
dark soil of the South productive. I
I remember businesses on East
They knew all too well that they were
am the great-great-grandson of a
Broad and West Broad that were run
held back by prejudice. But they
freed slave. whose enslavement con-
in spite of bigotry. It IS said that we
weren't pinned down by it. They
tinued after my birth. I am the prod-
can't learn because of bigotry. But I
fought discrimination under W.W.
uct of hatred and love the hatred of
know for a fact that tens of thousands
Law (a Georgia civil rights leader|
the social and political structure
of blacks were educated at historical-
and the N.A.A.C.P. Equally impor-
which dominated the segregated.
hate-filled city of my youth. and the
ly black colleges. in spite of discrimi-
tant, they fought against the awful
nation. We learned to read in spite of
effects of prejudice by doing all they
love of some people - my mother.
segregated libraries. We built homes
could do in spite of this obstacle.
my grandparents. my neighbors and
in spite of segregated neighborhoods.
relatives - wno said by their actions.
We learned how to play basketball
hey could still send
"You can make it. but first you must
(and did we ever learn!). even though
their children to
endure."
we couldn't go to the N.B.A.
T
school. They could still
You can survive. but first you must
respect and help each
endure. You can live, but first you
We have lost something. We look
other. They could still
must endure. You must endure the
moderate their use of
for role models in all the wrong
unfairness. You must endure the ha-
places. We refuse to reach back in our
alcohol. They could still be decent,
tred. You must endure the bigotry.
not too distant past for the lessons
law-abiding citizens.
You must endure the segregation.
and values we need to carry us into
I had the benefit of people who
You must endure the indignities.
the uncertain future. We ignore what
knew they had to walk a straighter
I stand before you as one who had
has permitted blacks in this country
line, climb a taller mountain and car-
the same beginning as yourselves
10 survive the brutality of slavery and
ry a heavier load. They took all that
as one who has walked a little farther
the bitter rejection of segregation. We
segregation and prejudice would al-
down the road. climbed a little higher
overlook the reality of positive values
low them and at the same time fought
up the mountain. I come back to you,
and run to the mirage of promises.
to remove these awful barriers.
who must now travel this road and
You all have a much tougher road
visions and dreams.
climb this jagged, steep mountain
I dare not come to this city, which
to travel. Not only do you have to
that hes ahead. I return as a messen-
contend with the ever-present big-
ger - a front-runner, a scout. What
only two decades ago clung so tena-
clously to segregation. bigotry and
otry, you must do so with a recent
lies ahead of you IS even tougher than
Jim Crowism. to convince you of the
tradition that almost requires you to
what IS now behind you.
fairness of this society. My memory
wallow in excuses. You now have a
That mean. callous world out there
IS 100 precise. my recollection too
popular national rhetoric which says
IS still very much filled with discrimi-
keen. to venture down that path of
that you can't learn because of rac-
nation. it still holds out a different life
self-delusion. I am not blind to our
ism. you can't raise the babies you
for those who do not happen to be the
history - nor do I turn a deaf ear to
make because of racism. you can't
right race or the right sex. It is a
the pleas and cries of black Ameri-
get up in the mornings because of
world in which the "haves" continue
cans. Often I must struggle to contain
racism. You commit crimes because
10 reap more dividends than the
my outrage at what has happened to
of racism. Unlike me. you must not
"have-nots."
black Americans - what continues to
only overcome the repressiveness of
You will enter a world in which
more than one-half of all black chil-
happen - what we let happen and
racism, you must also overcome the
lure of excuses. You have twice the
what we do to ourselves.
dren are born primarily to youthful
If 1 let myself go. I would rage in
job I had.
mothers and out of wedlock. You will
the words of Frederick Douglass:
Do not be lured by sirens and pur-
enter a world in which the black teen-
"At a time like this. scorching irony.
veyors of misery who profit from
age unemployment rate as always IS
not convincing argument. IS needed.
constantly regurgitating all that IS
more than double that of white teen-
Oh! Had I the ability, and could reach
wrong with black Americans and
agers. Any discrimination, like sharp
the nation's ear. 1 would today pour
blaming these problems on others. Do
turns in a road. becomes critical be-
out a fiery stream of biting ridicule
not succumb to this temptation of
cause of the tremendous speed at
blasting reproach. withering sarcasm
always blaming others.
which we are traveling into the high-
and stern rebuke. For it IS not light
Do not become obsessed with all
tech world of a service economy.
that IS needed. but fire: It IS not the
that IS wrong with our race. Rather,
There IS a tendency among young,
become obsessed with looking for so-
upwardly mobile. intelligent minor-
gentle shower. but thunder. We neec
the storm. the wnirlwind and the
lutions to our problems. Be tolerant of
alies to lorget. we forget the sweat of
all positive ideas: their number IS
our forefathers. We forget the blood
earthquake."
much smaller than the countless
of the marchers. the prayers and
I often hear rosy platitudes about
number of problems to be solved. We
hope of our race. We forget who
this country - much of which IS true.
But how are we black Americans to
need all the hope we can get
orought us into this world. We over-
feel when we have so little in a land
Most importantly, draw on that
100K wno put 1000 in our mouths and
clothes on our backs. We forget com-
with so much? How IS black America
great lesson and those positive role
mitment to excellence. we procreate
to respond to the celebration of the
models who have gone down this road
before us. He are Daogered and
with pleasure and retreat from the
wonders of this great nation?
In 1964. when 1 entered the semi-
pushed by our imenus and peers to do
responsibilities of the babies we
nary. I was the only black in my class
unlike our parents and grandparents
produce.
- we are told not to be old-fashioned.
We subdue. we seduce. but we don't
and one of two in the school. A year
later, I was the only one in the school.
But they have weathered the storm.
respect ourselves. our women. our
babies. How do we expect a race that
Not a day passed that I was not
It is up to us now to learn how.
Countless nours 01 research are spent
has been thrown into the gutter of
pricked by prejudice.
But I had an advantage over black
to determine why blacks fail or why
socio-economic indicators to rise
students and kids today. I had never
we commit crimes. Why can't we
above these humiliating circum-
stances if we hide from responsibility
heard any excuses made. Nor had I
spend a few hours learning now those
seen my role models take comfort in
closest to us have survived and
for our own destiny?
helped us get this far?
ahead and taken a long. hard look. I
have seen two roads from my perch a
few humble feet above the madding
crowd. On the first, a race of people is
rushing mindlessly down a highway
of sweet, intoxicating destruction,
with all its bright lights and grand
promises constructed by social scien-
tists and politicians. To the side, there
is a seldom used, overgrown road
leading through the valley of life with
all its pitfalls and obstacles. It is the
road - the old-fashioned road -
traveled by those who endured slav-
ery, who endured Jim Crowism, who
endured hatred. It is the road that
might reward hard work and disci-
pline, that might reward intelligence,
that might be fair and provide equal
opportunity. But there are no guaran-
tees.
You must choose. The lure of the
highway is seductive and enticing.
But the destruction is certain. To
travel the road of hope and opportuni-
ty is hard and difficult, but there is a
chance that you might somehow,
some way, with the help of God, make
it.
1.)
150rt
AUGUST 6, 1991
Margaret Bush Wilson
The NAACP Is Wrong on Thomas
The young man standing at my door that
Some have said that despite his chairmanship
He promised he would, and Judge Thomas has
summer day in 1974 looked like an African
of the Equal Employment Opportunity Commis-
been keeping his word ever since, looking out for
prince. "Hello, I'm Clarence Thomas," be said. T
sion for eight years, he has not been a champion
the vulnerable and victimized on the job, in the
ow," I replied. I've been expecting you." And
of civil rights. Those people obviously don't know
community and at the court. I know that as a
began a friendship with someone I think of
Judge Thomas or the real facts about his tenure
Supreme Court justice Clarence Thomas will
ndly as a second son.
with the EEOC. His record will speak for itself
continue to defend and protect the rights of the
I first heard of young Thomas (then almost 26)
and will impress those willing to listen and look
needy. He does not permit anyone to think for
from his employer-to-be, Sen. John Danforth
beyond misinformed rhetoric. On a personal
him, and be is intellectually honest.
(R-Mo.), who was attorney general of Missouri at
the time. Mr. Danforth told me he had just hired
level, be knows the struggle and hardship blacks
When the history of these times is written, it
a bright young law graduate from Yale and asked
and the impoverished of every race grapple with
will be interesting to see how historians view the
daily-not to mention the plight of most families,
position of the National Board of the NAACP-
if I knew of a place the young man could live for
the summer while studying for the Missouri bar.
since in my judgment the central issue of our
an organization committed to advancing colored
time is that some 82 percent of the families in
people, which is opposed, on ideological grounds,
My own son, Robert, was then a law student with
plans to work that summer in Washington. I
these United States have no discretionary income
to this nomination of a black man to the U.S.
after bills and taxes are paid.
Supreme Court.
invited young Clarence to stay in my son's empty
room.
We didn't talk much about Judge Thomas's
Let the record show that the NAACP's former
I don't recall seeing another young person as
background that summer 17 years ago, so it is
national board chair respectfully disagrees with
disciplined as Clarence Thomas. First thing,
only recently that I have learned about his
its position.
every day, be would exercise with my son's
humble beginnings. The cramped house with no
The writer, an attorney in St. Louis, chaired
weights and then be off to his studies. I asked of
plumbing in rural Georgia, his wise but not
learned grandparents, the Catholic nuns and the
the National Board of Directors of the
him only one thing: I would prepare dinner, and
be would show up on time. We would eat
rest have only recently come into full view for
National Association for the Advancement
together every night, often with one or two
me. To rise above the dual curses of poverty and
of Colored People from 1975 to 1984.
friends or relatives and talk about any and all of
discrimination requires tremendous individual ef-
the problems of the world.
fort from a special kind of person, help from
We didn't always agree (Clarence was "con-
others and luck. All these have been present in
servative" even then), but I was impressed con-
Judge Thomas's career.
tinually with one so young whose reasoning was
Throughout the history of the U.S. Supreme
so sound. I must also admit that his arguments,
Court, I don't believe any other nominee can
both legal and logical, forced me to rethink some
claim to have come so far. In point of fact, Judge
of my own views. I know I sometimes made him
Thomas's unique perspective belongs not only on
see things differently, too, because Clarence
the Supreme Court but in the legislature, in the
Thomas knew how to listen as well as talk.
work place, at city hall and on our campuses.
TOSS the years, I have kept in touch with
No one can deny that Judge Thomas would
Thomas, and to this day I respect his
differ with Justice Thurgood Marshall on some
grity, his legal mind and his determination.
issues. I don't always agree with the justice
Even when we disagree, I have found him to be a
myself. I do believe that both men show a
sensitive and compassionate person trying to do
common, fundamental belief in the inherent
what is right, working to make the world a better
worth and rights of the individual. At one of his
place.
four previous Senate confirmation hearings.
Back then I sensed that he would one day be in
Judge Thomas said. "The reason I became a
a position to have a larger impact, but I had no
lawyer was to make sure that minorities, individ-
way of knowing that this determined young man
unis who did not have access to this society,
might one day have the chance to tackle some of
our country's problems on this nation's highest
gained
access.
I may differ with others on
how best to do that, but the objective has always
court.
been to include those who have been excluded."
Recently, the NAACP National Board took
action opposing Judge Thomas's nomination. I
As young Clarence Thomas left my home at
wish it had withheld judgment until after the
the end of the summer, be asked how much he
hearings, because the Clarence Thomas I have
owed for his stay. I told him that he owed me
been reading about often bears little resemblance
nothing, but I did want a promise from him. I
to the thoughtful and caring man I have know
asked him to promise that if be were ever in a
over these years.
position to reach out and help others that he
Judge Thomas reflects the diversity and com-
would do it, just as some had done for me and as I
plexity of African-American thinking, but his
had done for him.
views are not nearly as radical as his critics
suggest. He has pushed for a new frontier in civil
rights, and heaven knows we need one when
one-third of African Americans are still in poverty
as we approach the 21st century. He seeks a
climate where African Americans and other mi-
norities feel empowered to compete equally with
their counterparts of other races, with rational
support from government programs.
THE WALL STREET JOURNAL.
TUESDAY. JULY 2. 1991
Liberal Praise
The Marshall Seat
The choice aiso will put Democrats on
the defensive: Judge Thomas draws praise
even from some liberals. "He has been a
Bush's Court Nominee,
very good colleague." says Chief Judge
Abner Mikva of the appeais court here. a
former Democratic congressman. Moreo-
A Black Republican,
ver. Democrats specifically urged the
president to consider appointing a minor-
Is Deft Political Choice
ity-group member to fill the vacancy that
was created when Thurgood Marshall an-
nounced his retirement last Thursday.
Judge Thomas's association with mod-
Conservatives Laud Thomas:
erate Republican Sen. John Danforth of
Missouri. for whom he worked after his
Liberals May Be Hard Put
graduation from Yale Law School in 1974.
will also weigh in his favor. Mr. Danforth's
To Mount a Strong Attack
support will help reassure many moderate
Senate Democrats and Republicans. much
as New Hampshire GOP Sen. Warren Rud-
Grandson of a Sharecropper
man's sponsorship of David Souter did af-
ter President Bush nominated him last
July.
By STEPHEN WERMIEL
While liberals will focus on Judge
And PALL M. BARRETT
Thomas's legal inexperience. his record on
Staff Reporters of THE WALL STREET RNAL
WASHINGTON-By choosing Clarence
the bench doesn't present them with the
Thomas. a conservative black federal
sort of target they had with the articu-
judge. for the Supreme Court. President
lated. sharply conservative legal views of
Bush may have defused a fierce political
Robert Bork. whose Supreme Court nomi-
nation was defeated in 1987.
battle over the high court's shift to the
A number of Senate Democrats. includ-
right.
Judge Thomas. who has been sitting on
ing Judiciary Chairman Joseph Biden of
the federal appeals court in Washington for
Delaware. stressed when Judge Thomas
just 14 months. won't be confirmed without
was confirmed for the appeals court that
a fight in the Senate focusing on his inex-
he would face tougher scrutiny if he were
perience on the bench and his strong oppo-
nominated for the Supreme Court. But that
sition to affirmative action.
will be a difficult position to defend in light
of Mr. Thomas's success last year in de-
But barring damaging unforeseen reve-
lations about Judge Thomas. Democrats
flecting liberal criticism.
will have a hard
Judge Thomas's strong opposition to af-
time mounting a
firmative action and the abortion debate
broad-based cam-
will be grist for his confirmation hearings.
paign against the af-
"I don't know where Judge Thomas stands
fable 43-year-old.
on a woman's right to choose. but I intend
who is smart. tough
to find out." said Democratic Sen. Howard
and speaks power-
Metzenbaum of Ohio. who was the lone op-
fully about overcom-
ponent last year in the Senate Judiciary
ing racism and pov-
Committee's 12-to-1 approval of his appeals
erty in the deep
court nomination. "Women have a right to
South.
know whether Judge Thomas is committed
"Anybody who
to protecting their fundamental rights."
takes him on in the
Abortion and Catholicism
area of civil rights is
Abortion-rights groups are also likely to
taking on the grand-
Clarence Thomas
be concerned about the fact that Judge
son of a sharecrop-
Thomas is a Catholic who spent a year in a
per." observes conservative Republican
Missouri seminary in the 1960s pondering
Sen. Orrin Hatch of Utah.
the priesthood. AS other Supreme Court
Judge Thomas's nomination yesterday
nominees have done. however. Judge
got a restrained reaction from many Sen-
Thomas is likely to go to great lengths to
ate Democrats. Civil rights groups. too.
avoid committing himself on abortion. an
said they will have to study his record.
issue that is expected to come before the
both in his brief tenure on the appeals
court again and again.
court and as chairman of the Equal Em-
The reaction from civil rights groups
ployment Opportunity Commission during
was muted. Raiph Neas. executive director
the Reagan administration.
of the Leadership Conference on Civil
Mr. Bush's choice IS a bold political
Rights. said. With so many constitutiona!
move. coming in the midst of the current
nehts and personal liberties a: stake. the
debate over civil rights legislation and
Senate must make sure Clarence Thomas
quotas. The president has nominated a
cas demonstrated a commitment to equal
man wno would be not merely the second
opportunity and equal justice under the
black to serve on the Supreme Court. but a
We urge the Senate no: to rush to
man who embodies the ideal of personal
sucgment.
achievement rather than reiiance on gov-
To friends and colleagues of Judge
-rnment programs for a 1-0 up.
Thomas. nis own life story :S the mos:
compelling thing about him. With Justice
Marshall retirement. CIVI! rights advo-
cates worried that there would no longer
said, "I firmly insist that the Constitution
be anyone on the court who had exper-
be interpreted in a colorblind fashion
enced racial segregation. Though Judge
emphasize black self-help, as opposed to
Thomas may not find favor with those
racial quotas and other race-conscious le
groups. the fact is that he knew nothing
gal devices that only further and deepen
but segregation as he grew up outside Sa-
the original problem."
vannah. Ga., in the 1950s.
Since he has been on the federal benca
Born into rural poverty. he lived in a
liberal and conservative legal analysts
house with no bathroom until he was seven
agree. the relatively few opinions he has
years old. His father left when he was
written don't suggest a strong ideological
young. and his mother sent him to live
slant. although he has tended to rule for
with his grandparents.
the government in criminal cases and in
The grandparents raised him with strict
business regulatory matters.
discipline. instilling in him a strong work
One highly controversial case on which
ethic. and sent him to an all-black Catholic
Judge Thomas sat earlier this year has ye:
school run by white nuns. Yesterday.
to be decided. A three-judge panel of the
speaking at a news conference at Presi-
appeals court is considering the constitr-
dent Bush's home in Kennebunkport.
tionality of a Federal Communications
Maine. Mr. Thomas choked up when he
Commission policy giving preference to
talked about his grandparents' influence.
women for broadcast licenses. The others
For a moment. it appeared that he might
not be able to finish his statement. He
on the panel were Judges Mikva and
praised them as well as "my mother and
James Buckley. a conservative. The ques-
the nuns. all of whom were adamant that I
tions are: Will Judge Thomas use the case
to once again attack affirmative action
grow up to make something of myself."
and will that pour fuel on his confirmation
As a child. Judge Thomas said, "I could
fight?
not dare dream that I would ever see the
Judge Thomas is well-liked by col-
Supreme Court, not to mention be nomi-
leagues. both at the EEOC. where the new
nated to it. Indeed. my most vivid child-
headquarters building is named for hirr.
hood memory of the Supreme Court was
and at the appeals court.
the 'Impeach Earl Warren' signs which
Ricky Silberman. a close friend who IS
lined Highway 17 near Savannah. I didn't
vice chairman of the EEOC and whose
quite understand who this Earl Warren fel-
husband. Laurence. sits on the appeais
low was, but I knew he was in some kind of
court. says: "He is a very simple persoz
trouble."
who loves to say he was a farm boy and
The first person in his family to attend
remains a farm boy." A sometime jogger
college. Judge Thomas spent a year at Lm-
and weightlifter. he enjoys reading and lis-
maculate Conception Seminary in Concep-
tening to music ranging from classical tc
tion Junction. Mo., before transferring to
his favorite. country singer George
Holy Cross College in Worcester, Mass. Af-
Jones.
ter law school. he went to work for Mr.
For much of his tenure at the EEOC.
Danforth. who was then Missouri's attor-
Mr. Thomas was a single parent. raising a
ney general.
son. Jamal. Some friends have expressed
concern that the bitterness of the divorce
After two years in the Monsanto Co. le-
from his first wife could spill over into his
gal department. Judge Thomas rejoined
confirmation hearings. His second wife
Mr. Danforth. by then a U.S. senator. He
Virginia. a deputy assistant secretary a:
then served for a year as chief of the U.S.
the Labor Department. is white.
Education Department's civil rights office
before President Reagan appointed him
In light of the administration's strong
attack on racial quotas in hiring. Presiden:
chairman of the EEOC in 1982.
Bush's selection of a black man to fill Jus-
His eight-year tenure at the EEOC was
marked by controversy. He changed the
tice Marshall's seat brought questions
about whether he was in fact observing a
agency's approach to de-emphasize set-
quota on the court. In his press conference.
tling large numbers of cases quickly. con-
Mr. Bush strongly denied the very though:
centrating instead on instances in which
of that. insisting that race wasn't a factor
specific victims of discrimination could be
in the selection of Judge Thomas.
identified. In age discrimination. particu-
"The fact that he is black-a minor-
larly. that created case backlogs that dis-
ity-has nothing to do with this." the prest-
tressed advocates for senior citizens.
dent said. "He is the best qualified."
Liberals charged that. across-the-board.
Judge Thomas. who just turned 43 last
the EEOC under Mr. Thomas's leadership
week. would be the youngest Supreme
didn't aggressively attack civil rights vio-
Court justice of the past 100 years with
lations. "As chairman of the EEOC. Clar-
the exception of William O. Douglas, who
ence Thomas failed to demonstrate a com-
joined the court when he was 40. Senate
mitment to civil rights and liberties." says
Judiciary Committee hearings on the
Nan Aron of the liberal Alliance for Jus-
Thomas nomination are expected to be
tice.
held in September. If they go smoothly.
But Mr. Thomas had strong views and
Justice Thomas could be sworn in before
didn't shrink from expressing them.
the new Supreme Court term begins or.
Rather. he seized every opportunity-in
Oct. 7.
cluding writing letters to editors. op-ed
page articles and book reviews-to attack
affirmative action as patronizing and as an
ineffective remedy for discrimination. In a
1987 letter to The Wall Street Journal. he
The New Hork Times
VEDNESDAY. IULY 3. !991
Influence of Nuns Lives
On With Court Nominee
years said today that the Clarence
friend and their conviction that his
SAVANNAH. Ga.. July 2 - The old
St. Benedict the Moor School on East
Thomas they knew is not the one-di-
views on racial matters, though un-
mensional conservative caricature
conventional. may just be right.
Gordon Street here. which Clarence
that some news accounts have por-
"He's a controversial figure and I
Thomas attended for eight years in
trayed.
don't agree with all his positions, but I
the 1950's and 60's. has long been
think he will make a superb judge,"
closed. a footnote to the history of seg.
'No Knee-Jerk Conservative'
Mr. Guest said. "I just pray he will be
regated Savannan. Its windows are
They recall a young man involved
confirmed."
boarded up. its swings broken. its plv-
with black student protests at Holy
A Conservative View
wood doors padlocked: the Irish nuns
Cross College, a receptive student of
Mr. Douglass, a criminal defense
who taught there. whom some white
the writings of Malcolm X, a fledgling
lawyer, predicted that Judge Thomas
seminarian who gave up the possibil-
townspeopie called the "nigger SIS-
would rule conservatively in criminal
ity of a religious vocation after a
ters." have ali retired to convents
law and privacy cases. "Miranda IS
brush with ugly racism.
not going to find much comfort in
elsewhere.
"It had to be hard coming up as a
Clarence Thomas." he said. But he
But their influence. and St. Bene-
black from the South into a northeast-
added: "He's going to hold himself
dict's. lives on in Judge Thomas. as
ern white community with a heavy
spiritually accountable for his deci-
he quickly and regularly acknowl-
population from Boston, but he didn't
sions. He's not going to rule one way
edges. Fourteen months ago. three of
let it throw him at all." said Father
or the other because of pressure. He
the nuns were present when he took
John E. Brooks, President of Holy
came up the rough side of the moun-
his seat on the United States Court of
Cross in Worcester, where Judge
tain. and I know he's not going to be
Thomas spent his undergraduate
insensitive."
Appeais for the District of Columbia
years as an English major. "He's not
Some who have long known Judge
Circuit. He mentioned the nuns again
a complainer."
Thomas depict a man who has lost
on Monday. as ne stood beside Presi-
"He's obviously not a flaming lib-
touch with his roots and grown am-
dent Bush in Kennebunkport. Me.
eral, but he's no knee-jerk conserva-
bivalent about his racial identity, a
Alo
with his grandparents and
tive either." Father Brooks contin-
one-time black nationalist keeping
m
he said. the nuns had been
ued. "He wants to do his own think-
company with conservative Republi-
at that I grow up to make
ing. He's not following a crowd."
cans. It is an evolution that both
something of myself."
Judge Thomas does represent an
grieves and puzzles these people.
Old and fragile though they have
odd, seemingly contradictory amal-
"I'd like to see if the person I knew
gam of influences. He bears the mark
20 years ago IS still there lodged
become. Sisters Mary Carmine and
of Booker T Washington whose nh.
somewhere deep inside of him. and if
Virgilius and Mary Daniel and Aquin
the public person he's become over
will undoubtedlv be invited to Wash-
losophy of self-reliance was transmit-
the past 15 years IS more than a ve-
ington if their former student takes
ted principally through Judge
neer." said Lanı Guinier. who now
his place on the United States Su-
Thomas's grandfather. Myers Ander-
teaches at the University of Pennsyl-
preme Court.
son, the Savannah fuel and ice dealer
vania Law School. She expressed
with whom he went to live at the age
Whether or not the Franciscan
hope that the magnitude of the Su-
of 7. The better he prepared himself,
nuns attended the ceremony. their
preme Court would prompt Judge
Mr. Anderson told his grandson, the
Thomas to reflect upon and reconnect
presence would certainly be felt.
less dependent he would be on the
himself to his roots.
Their teachings are present in the
white man.
In the tall of 1967. Clarence Thomas
defiant. almost-Darwinian conviction
"Clarence always seemed like a go-
and 64 other young Catholic men en-
they instilled in Clarence Thomas
getter, but you didn't pay too much
tered Immaculate Conception Semi-
that with enough hard work and
attention because his grandfather
nary in the nortwestern Missouri
determination he could overcome
was like that." said Geraldine Wil-
town of Conception with the goal of
quadruple handicaps: being black. fa-
liams of Savannah, a long-time
becoming priests. Half the students.
therless. poor and Catholic in the
family friend.
including Mr. Thomas, left the semi-
Eisenhower-era South.
Then there are his current political
nary after the first year.
mentors, - men like Ronald Reagan,
"He and I were not close friends."
But the nuns' lofty ideals about
George Bush, John Sununu and the
said Father Benedict Neenan, a class-
race. justice and tolerance inevitably
Missouri Republican Senator, John C.
mate who is now a Benedictine monk
collided with the harsh realities of life
Danforth, - who have helped make
and the prior of Conception Abbey.
in Savannah. Conception. Mo.,
him anathema to leaders of tradi-
"But in a small class you observe one
Worcester. Mass.. and New Haven.
tional civil rights organizations.
another quite a bit and I remember
To black schoolmates and friends,
Conn.. and the resulting disapoint-
him as a very intense person. I re-
ment helped make him the complex
like J. Hanson Guest. a lawyer in
member him as an excellent student.
Hartford. and Orian Douglass. a law-
man he has become: fiercely inde-
When he would speak in class he
yer in Brunswick. Judge Thomas's
pendent. sometimes bitter. stoic, pro-
knew what he was talking about and
appointment is a cause for joy. What-
foundly skeptical of dogmas, conven-
people respected him.
ever personal differences might have
tions. and panaceas.
"He didn't speak out a lot in class
with him are overridden by two op-
In
ens of interviews. Judge
posing forces: their loyalty to an old
but when he did he spoke with ma-
The
friends. teachers. class-
tunty and understanding and vou
ma
.d colleagues from his early
would say. Wow. he's been thinking
about this."
JEGAL LOBBYING IN THE NATION'S CAPITAL
week OF JULY 8, 1991
VOL. XIV, NO. 7
$8.00
Clarence Thomas:
Mind and Matter
How the Supreme Court Nominee
Brings His Hard Life Into the Law
BY TERENCE MORAN
as his lawyers argued, he was young and
had endured a violent, traumatic upbring-
It was just another drug appeal, just
ing, even watching as his mother was
another lousy, losing case brought to the
thrown off a roof.
U.S. Court of Appeals by a kid caught
No trial-court judge, Meade noted,
with cocaine.
would find such a tragic history unusual.
The facts before the D.C. Circuit panel
"Wait a minute, interjected one of the
last October were
judges on the panel, bearing down on the
How the choice is
sadly familiar.
government lawyer. "Doesn't that depend
playing at the
José Lopez, the
on where the judge is-whether he's in
U.S. Courthouse.
18-year-old de-
suburban Fairfax County or Washington,
Page 7
fendant, had
D.C.?"
pleaded guilty to
For a moment, the air in the courtroom
Clarence Thomas carries vivid
conspiracy to
was charged with tension. Judge Clarence
memories of American apartheid.
Thomas' 'plain
distribute cocaine
Thomas terse, steely demand had lifted
how he brings the hard life he has led to
reading' of the
base, and now
Lopez's case out of the realm of abstrac-
the law he makes, is the focus of a bur-
Constitution.
sought reduction
tion and into the real world.
geoning battle over his nomination by
Verbatim, Page 8
of the stiff, 51-
**It was the only question that Thomas
President George Bush to the Supreme
month sentence
asked during the arguments, but when he
Court.
meted out to him
Excerpts from
asked it, he cut straight to the heart of the
As interest groups choose sides and
under federal sen-
1984 Interview.
issue,' recalls Stephen Leckar, Lopez's
Senate staffers pore over the nominee's
tencing guide-
court-appointed lawyer, who is of counsel
public and private record, the search to
Page 11
lines.
at D.C.'s Cohen & White. "After it hap-
capture the essential character of the man,
Assistant U.S.
pened, I kind of smiled inwardly and
to limn the mind of Clarence Thomas, has
Attorney James Meade made the gov-
thought, 'There's one vote for reality.
begun in earnest. It won't be easy.
emment's routine response that morning,
Leckar was right-the panel unexpect-
Willfully iconoclastic, gleefully ec-
urging the judges to give great deference
edly found for his client-but his com-
lectic, Thomas defies categorization. He is
to the guidelines. There was no need to
ment resonates beyond his case. For the
lessen Lopez's sentence simply because,
question of Clarence Thomas' reality, of
SEE THOMAS, PAGE 10
THOMAS FROM PAGE
that conflict. The harsh questions that
an advocate of limited government who
have always been flung at Thomas-how
has recommended sweeping federal power
a black man could strictly construe a
to punish discriminators. He is a devotee
Constitution that enshrined slavery, or go
of original intent in reading the Constitu-
to work for Ronald Reagan, a president
tion who also asserts that the open-ended
whose blithe ignorance of the black
concept of natural law is the basis of that
American experience is legendary-are
bound to come to a head when the Senate
intent. He's a teetotaling Republican who
drives a black Corvette.
Judiciary Committee holds hearings on his
Among his favorite recordings are the
nomination after Labor Day.
vintage sides of country music legend
"These confirmation hearings are more
Hank Williams and the collected speeches
important than any I can remember,' says
of Malcolm X. He loves the cowboy ro-
Andrew Popper, a professor at American
mances of Louis L'Amour and quotes
University's Washington College of Law.
Thomas Aquinas' Summa Theologica. He
"Are we going to see the Clarence
Thomas who believes the Constitution is
is a private man who has lived a very pub-
lic life.
racially blind and who has indicated dis-
"I don't fit in with whites, and I don't
favor with any type of aggressive af-
fit in with blacks," Thomas once told Le.
firmative action, or are we going to see the
Clarence Thomas who is sensitive to con-
gai Times. "We're a mixed-up genera-
tion, those of us who were sent out to in-
cerns of race and poverty?"
tegrate society." (For excerpts from the
Thomas does not necessarily recognize
1984 interview, see Page 11.)
a conflict in those stands, a view that
Wrestling with that confusion has been
puzzles and angers many civil-rights
activists.
the central drama of Thomas' public life.
At the heart of all of his work in politics
But the 43-year-old former Roman
Catholic seminarian is more than a civil-
and in the law is an evolving intellectual
struggle to reconcile his deeply held con-
rights curiosity. His views on a host of is-
ve values with his firsthand experi-
sues, ranging from unenumerated rights to
antitrust law. reveal a social critic who
poverty and injustice.
ever this philosophical journey
looks constantly to the verities and values
Thomas, people who know him say
of the past to address the pressing ques-
that he will carry with him those vivid
tions of the present.
childhood memories of American apart-
Take Thomas' approach to the problems
beid.
of the poor. Time and again over the
Judge Clarence Thomas joins President George Bush in Maine July 1.
"I grew up under state-enforced segre-
years, Thomas has scathingly criticized
gation, which is as close to totalitarianism
government welfare programs as a kind of
and 'right from wrong' were of the highest
ued. "They were a way of life; they
as I would like to get," Thomas said in a
slow poison at work in the black commu-
priority. Crime, welfare, slothfulness, and
marked the path of survival: and the es-
1987 speech to the Heritage Foundation.
nity, generating a culture of dependency
alcohol were enemies.
cape route from squalor.
My household, notwithstanding the
that has touched his own family.
"But these were not issues to be de-
For more than a decade, Thomas has
myth fabricated by experts, was strong,
Thomas' response to this trend has been
bated by keen intellects. bellowed about
been in the vanguard of a counter-
stable, and conservative.
God was
by rousing orators, or dissected by poll-
revolution in civil-rights law. and his
central. School, discipline, hard work,
sters and researchers,' Thomas contin-
nomination has sparked a decisive bartle in
SEE THOMAS, PAGE 11
THOMAS FROM PAGE 10
to advocate a return to such old-fashioned
Clarence Thomas Sounds Off
virtues as self-reliance and neighborliness.
Many of his friends and colleagues insist
that this constantly reiterated plea for
Supreme Court nominee Clarence Thomas is anything but reticent. In 1984, 19 months
community is not mere rhetoric; Thomas
after President Ronald Reagan appointed Thomas chairman of the Equal Employment
walks the walk.
Opportunity Commission, Legal Times interviewed him. He sounded off-sometimes
"Once or twice a week, he would come
into my office and tell me about somebody
quite bluntly-on a variety of topics. The following are excerpts from that interview:
he had met in the elevator or out on the
street, somebody he wanted us to help,'
On whether he was tailoring his views on civil rights to
On refusing to toe the line:
recalls Pamela Talkin, a member of the
win a second term at the EEOC:
"I'm a Dallas Cowboys fan. I love unpopular causes."
Federal Labor Relations Authority who
"I'm not going to lobby for this job. This job has kicked
*ked as Thomas' chief of staff during
my ass, and you can quote me on that
You don't just
On how the media react to him:
nure as chair at the Equal Employee
ask for more pain."
"Here's a strange black. Let's go see if he has two heads
tunity Commission. "He was al-
and tail."
looking for the person he could pull
On his political allies in Washington:
up.
"I don't fit in with whites, and I don't fit in with blacks.
On why the government should not be the guarantor of
Jill Mack knows. A 58-year-old collec-
We're in a mixed-up generation-those of us who were sent
civil rights:
tion agent with the EEOC, Mack remem-
out to integrate society.
If it were not for [the] few
"In order to be free, you have to be independent.
bers the day Thomas struck up a conver-
friends I have who do not give a damn about this stuff, this
People keep trying to sell me sugar-coated dependency, and
sation with her in the file room shortly af-
place could drive me insane."
I'm not going to buy it. The [Reagan] administration is bon-
ter she arrived at the agency. Before com-
est. It's about time we got some honesty [instead of] people
ing to the EEOC, she had spent many
On racial polarity in Washington:
smiling in your face. We're playing games with our-
years working on her feet in restaurants.
"T've showed up in some of the nicest places in this city.
selves if we think suddenly, overnight, this national gov-
developing phlebitis in her legs. She was
You walk in one of the top-of-the-line restaurants, people
emment is going to care for us."
also having some difficulty meeting other
look at you like you're out of your mind.
In my own
demands of her new job.
neighborhood, I used to get
"He told me he was from Georgia,"
On being true to his own beliefs:
stopped by the cops."
"I will be me.
recalls Mack. "I'm from Georgia, 100,
If [William Bradford Reynolds] gets
and I used to sharecrop down there. We
on my nerves, I will argue with Brad. If the Civil Rights
On promoting greater racial
talked about working on the farm, picking
Commission gets on my nerves, I will argue with them. And
harmony:
cotton, pulling corn, you know. He really
if can't stand the heat, I'll get out of the kitchen.'
"You don't see anyone trying
encouraged me-he put in a good word
to integrate marriages, do you?
with my supervisor, stopped by my desk
That would solve everything.
On being black in the North vs. the South:
all the time, helped me get a little training.
"h was more difficult for me to live in Massachusetts than
"He was always real nice," adds
On civil-rights activists:
it was for me to live in Savannah. In Savannah, the rules
Mack, who has since been promoted. "I
"They don't know what the
were indeed clear.
think he likes to see his people trying to
bell I am. They have their ac-
help themselves."
cepted version of what the world
On being interviewed by private law firms upon gradue-
Discrimination's Impact
should be like.'
tion from Tale Law School in 1974:
Thomas' fundamental conservatism
"They would always want to talk to me about doing pro
"What offends me is the civil-rights community saying
bono work.
stems from his well-documented upbring-
Here I was, really labored over tax
and
I'm not black. I may disagree with [then Assistant Attorney
ing in Pin Point, Georgia. The traditions
they always wanted me to throw in pro bono. They've got to
General William Bradford Reynolds] and the Justice De-
of the rural South-which as recently as
say something black to me."
partment, but they don't offend me.
1910 was home to more than 90 percent of
all American blacks-lend Thomas' views
why he goes to church any day but Sunday:
On being rick:
the patina of 19th-century optimism that
"I don't like people that much. God is all right. It's the
"I have no doubt I'm going to be wealthy, so I don't worry
endears him to conservatives and alienates
people I don't like.
about
it.
I'll write a book that will sell for $19.95."
him from liberals.
But it is the more immediate experience
cial discrimination in his own life that
fused many of Thomas' positions
deep-seated bitterness. The prej-
his most adventurous excursion in the law,
nature that precede any social compact-is
machinery. The Justice Department fought
he has encountered and the respon-
into the murky. metaphysical territory of
deeply rooted in Roman Catholic teach-
the merger, asserting that it would leave
sibilities he held at the EEOC have led
natural law and its relationship to the
ing. Thomas found the tradition alive and
the U.S. market with too few suppliers
Thomas to develop an extremely tough
Constitution.
well in the lives and writings of such
and that new competitors would find it too
law-enforcement approach to anti-
In the mid-1980s, as Thomas began to
Americans as Abraham Lincoln and
difficult to enter the market.
discrimination laws, an approach that
formulate more ambitious expressions of
Frederick Douglass. (See "Verbatim,"
Thomas, in the July 1990 opinion,
would probably shock many conservatives
his philosophy, he turned toward the tra-
Page
shredded the government's case so thor-
and libertarians.
dition of natural law to inform his reading
"For a long period of time, he read
oughly that Solicitor General Kenneth
During his tenure at the helm of the
of American history. The ancient con-
everything by or about Abe Lincoln,'
Starr has decided not to file an appeal.
EEOC, Thomas was fiercely criticized for
cept-which holds that there are inherent,
recalls Talkin, Thomas' EEOC chief of
The enthusiastic manner with which
de-emphasizing systemic attacks on em-
immutable principles of right and wrong in
staff from 1986 to 1989. "He would really
Thomas has embraced his work on the
ployers whose work forces were under-
ponder these things-he's the kind of
circuit reflects his basic enjoyment of the
representative of minorities and women.
person who literally loses sleep over dif-
intellectual challenges of the bench. He
This policy battle dominated the media
ficult philosophical issues."
goes out of his way to hire clerks who
coverage of the EEOC, obscuring the tack
Thomas' foray into natural rights en-
disagree with him, and he assigns all of his
Thomas tried to take.
abled him to find a way of reading the
cases to all of his clerks, just to watch the
In rejecting most broad-based group
Constitution in the light of an expanded
sparks fly.
remedies to discrimination, Thomas pur-
version of "original intent." It also led
"He likes his clerks to fight it out."
sued policies that sought to investigate
him, Talkin says, to wrestle with the
says Clint Bolick of the Landmark Legal
thoroughly and vindicate fully every gen-
thomy issue of unenumerated rights in the
Foundation, a friend and ideological
uine, individual discrimination complaint.
Constitution.
soulmate of Thomas'. "He really enjoys
His success on that score has been
"He would try to figure out whether
working with some of the best young
contested.
privacy is encompassed by the Constitu-
minds around."
Some of his proposals to carry out his
tion, what uncnumerated rights are, where
The intellectual combat Thomas thrives
policy-such as appointing special mas-
abortion fits in." says Talkin, who de-
on should stand him in good stead when be
ters to take over a company's personnel
scribes herself as a liberal Democrat. "I
faces the Senate, in what promises to be a
department-are far from the laissez faire
honestly believe he's still thinking about
grueling confirmation. That struggle will
policies that other conservatives prefer.
all this, and that he recognizes his personal
in part be an effort to gel Clarence Thomas
"There are tougher means of deter-
views and subjugates those to what the law
to define himself and his beliefs to the
rence. Thomas wrote in a 1987 article
requires.'
country. He has passionately resisted such
for the Yale Law and Policy Review. "One
Thomas is clearly still thinking about a
efforts to pigeonhole him in the past and
such approach would be for courts to im-
lot of things. His tenure on the D.C. Cir-
will probably put up a fight in September.
pose heavy fines and even jail sentences
cuit has allowed him to return to the world
But Thomas' compelling personal his-
on discriminators who defy court in-
of business law that he left years ago to
tory, which informs so much of his in-
junctions against further discrimination.
fight the Reagan administration's civil-
tellectual questing, is certain to leave a
"I am not aware of any case where a
rights battles, and friends say he relishes
lasting impression, no matter what hap-
court has resorted to such measures, and I
the change.
pens to his nomination.
must wonder why they are so reluctant,'
Perhaps the most important decision
He never forgot where he came
Thomas continued. "To those of us who
that Thomas, if confirmed, will leave with
from," says Jill Mack, the EEOC collec-
der employment discrimination not
the D.C. Circuit is his careful, com-
tion agent whom Thomas encouraged.
nlawful but also a moral abomi-
prehensive analysis of horizontal mergers
"I'm not talking about Republican, and
such measures are altogether
in United States V. Baker Hughes.
I'm not talking Democrat. He's Georgia.
The case, brought by the Bush admin-
just like me.
That righteous note, echoed in many of
Clint Bolick says Thomas enjoys
istration's Justice Department, challenged
-Reporters Daniel Klaidman and Anne
Thomas' writings on race, is the source for
having his clerks debate cases.
a merger of two manufacturers of drilling
Kornhauser contributed to this story.
colleagues like Poldine L. Otto and
Wounded by Discrimination
and the college IS now coeducational.
Richard Wieler have of Mr. Thomas.
Some classmates were baffled by
During Mr. Thomas S senior year.
the only black then serving in the of.
Mr. Thomas's decision to leave Con-
several students protested the cam-
fice of the Missouri Altorney General.
ception. But Tom O'Brien. a close
pus recruitment of students by Gen-
It was there ne went after Yale
friend whose nome in Kansas City
eral Electric because of its military
Law School. Between 1974 and 1977.
Mr. Thomas oiten visited on week-
work. When the administration ex-
Mr. Thomas handled felony appeais
ends. said. "I think Clarence exper-
pelled some protesters. about half
and represented the Revenue Depart-
enced some real discrimination
were black: the majority of protest-
ment in tax cases. He also was the
there." Mr. O'Brien. now a high
ers had been white.
lawyer for the Human Rights Com-
school teacher of American history.
Almost every black student. includ-
mission. handling JOD discrimination
added: "He didn't go into names or
matters.
ing Mr. Thomas. walked off campus
specifics. but It was real and he was
until the administration reinstated
His most celebrated case in the
torn up a little talking about it. I know
those expelled. Father LaBran said.
memory of the then-Attorney Gen-
he was torn up about It and I was
cral and now United States Senator.
Stanley E. Grayson, a former
shocked. I just couldn't see It. I felt
Mr. Danforth, involved a dispute over
like such a fool being so close and
deputy mavor of New York City, was
low-number license plates. distrib-
a friend of Mr. Thomas at Holy Cross,
being oblivious to It."
uted by past Democratic Governors
where they were both active in- the
Mr. Thomas later told several
black student union.
as political favors.
black friends about the incident that
Mr. Danforth. a Republican. recalls
"Clarence was always an independ-
some believe pushed him into leaving.
suggesting that Mr. Thomas acknowi-
cnt thinker." Mr. Grayson said. "He
On April 4. 1968, the day Rev. Dr.
edge the political reality that a lot of
was the type who was going to look at
Martin Luther King Jr. was assassi-
a set of circumstances and reach his
important people. like judges. had the
nated in Memphis, a group of stu-
vanity plates and wanted to keep
own conclusions. And I think that
dents were watching television cover-
them. He suggested his aide let the
probably exists today."
age of the event. MMr. Thomas heard
case die.
Mr. Grayson said that when he
one white student remark. "That's
Mr. Thomas refused. another Dan-
started at Holy Cross there were
what they should do to all the nig-
forth aide recalled. saving he would
about 32 black students at the college,
gers."
drop the case only if ordered to do so.
which was going through a "time of
Jerry M. Hunter. general counsel
because "this IS the law." The courts
heightened sensitivitv.'
for the National Labor Relations
agreed. finding there was no author-
"II was a time of adjustment for
Board. said of Mr. Thomas: "He re-
ity in Missouri law for the special
the school and, candidly, for many of
members thinking, 'We're supposed
plates. and he won. The Legislature
, be people of God. If people have
us." he said. "It was a predominantly
has since restored vanity plates for
Irish Catholic college that was in the
at view here. then this is not a place
drivers willing to pay a special fee.
or me to be.' Mr. Hunter and Mr.
midst of change. And the black stu-
Alex Netchvolodoff. a long-time
Thomas met as fellow lawyers in St.
dent union became a useful sounding
Danforth assistant who IS now vice
Louis in the late 1970's.
board for initiatives. The student
president for government affairs of
Mr. O'Brien said he was surprised
union united us."
Cox Enterprises in Washington. re-
to hear Judge Thomas labeled as a
Mr. Thomas was as involved in the
called Mr. Thomas telling him of hid-
protests as anyone. Mr. Grayson said.
ing in the back of his classes at Holy
conservative. After all. he said. this
'Clarence was always a leader. not a
Cross and Yale. explaining "I didn't
was the same fellow who. as a college
follower."
want anyone to see my blackness. I
student. used to end his letters with
the slogan Power to the people."
Father LaBran said he was elated
wanted them to judge my work."
"Conservatives and liberals may
at Judge Thomas appointment to
Mr. Netchvolodoff tells of Mr. Dan-
both be surprised if he makes It onto
the High Court. "I hoped it would be
forth's recruiting Mr. Thomas at
the court." Mr. O'Brien said. "Clar-
Clarence." he said. "This country
Yale Law School. where "he was a
ence Thomas IS absolute integrity.
needs a man like him who, I hope. will
star." Mr. Netchvolodoff said the law
He's honest. he's courageous. I can't
be a symbol of all people."
student actually "interviewed us."
In Missouri in the mid-70's a Con-
asking If he would get good cases and
imagine him belying his own system
of beliefs for anything."
federate flag was usually a redneck
enough work.
political statement. But on the wall
Chris Brewster. another colleague
Mr. Thomas transferred to Holy
behind the desk of a new Assistant At-
then and now a Washington attorney,
Cross in Worcester, Mass. He and
torney General in Jefferson City, it
recalled Mr. Thomas describing the
most of the handful of other black stu-
was a wry declaration of individual-
pay as "$11,000 a year and all the
dents were housed together in Healey
ity. In effect, It meant: "Don't pigeon-
gruel he could eat."
Dormitory, named for the a black
hole me."
And Mr. Brewster said his friend
Roman Catholic bishop. said the Rev.
That's the most vivid memory old
never shared his interest in movies.
Joseph J. LaBran. who IS still a resi-
because "he grew UD not going to
dence counselor at the college. The
movies much. All the first-run movies
administration thought that placing
were in the white-run movie houses
the students together would help
and you had to sit in the balcony" if
them find support in the overwhelm-
you were plack in Georgia. He said
ingly white school. he said. But the
Mr. Thomas lust would not 20.
dormitory has since been integrated
Gov. John Ashcroit. who snared an
office with Mr. Thomas for 16
months. called him a candid. frank
individual wno was a very hard work-
er."
JUDICIAL
THE WALL STREET JOURNAL.
JULY 3, 1991
The Views of Justice Thomas, According to Judge Thoma
court by giving special-interest groups-
one more chance to explain its deci-
The opinions on public policy he held
before he joined the bench are getting a lot
and occasionally even dolphins and trees-
sion. (Tennessee Gas Pipeline v. FERC)
standing to sue. Judge Thomas took the
One case at first glance seems to raise
of attention. but the best way to predict
more traditional approach in a partial dis-
constitutional questions, but turns out to be
how Justice Clarence Thomas would rule is
to review how Judge Clarence Thomas has
sent when a ferry company challenged an
more limited. Federal workers asked for a
ruled. In his year on the federal appeals
exemption from a regulation that the Inter-
preliminary injunction against a recent
state Commerce Commission granted to
law that bars them from accepting pay-
court in Washington, Judge Thomas wrote
one of its competitors.
ment for articles or speeches. This raises
19 opinions. His political enemies won't
Judge Thomas wrote in a partial dissent
free speech and property rights questions,
find much grist in these rulings, which are
textbook examples of judicial restraint.
that the ferry company had no business in
but Judge Thomas's opinion was limited to
The cases deal with issues as diverse as
court because it wasn't the "aggrieved"
whether the trial court was right to deny a
party, as required by the statute regulat-
preliminary injunction. He agreed that the
Rule of Law
ing litigation involving the ICC. The com-
plaintiffs did not risk irreparable harm by
pany wanted the judges to force the ICC to
waiting for the trial court to rule on the
prepare an environmental impact state-
case's merits. (NTEU v. U.S.)
By L. Gordon Crovitz
ment before granting new routes to its
A pair of business cases discloses a so-
competitor. "I agree that as a matter of
phisticated
ap-
policy, it probably should," Judge Thomas
proach. He ruled
an airport for Toledo, searches of crack
wrote. "As a matter of law, however, the
against a Justice
dealers and a spat over dog-food claims.
Commission has no power to regulate fer-
Department claim
ries for environmental reasons."
that a merger in the
What is most important is the approach
This meant the ferry company had no
market for under-
Judge Thomas took. In interpreting stat-
utes and precedents, he used close reason-
standing to sue, so judges had no right to
ground drilling rigs
ing and shunned any search for shadows,
hear the case. "When federal jurisdiction
would violate the an-
titrust laws. The
penumbra or emanations.
does not exist, federal judges have no au-
The case challenging the expansion of
thority to exercise it, even if everyone-
merger between a
the Toledo airport asked whether the Fed-
judges, parties, members of the public-
Finnish company
eral Aviation Authority complied with all
wants the dispute resolved," he wrote. "A
and a French sub-
federal court may not decide cases when it
sidiary of a Texas
the environmental regulations before ap-
proving the new plans. The plaintiffs in-
cannot decide cases, and must determine
firm would give the
voked the broadly worded National Envi-
whether it can before it may." This is an
company a large
ronmental Policy Act. In upholding most of
important statement of separation of
U.S. market share,
Clarence Thomas
powers-not the view of a justice who
but Judge Thomas applied the Chicago
the FAA's action. Judge Thomas showed a
would take social questions away from the
School jurisprudence that now guides the
keen wit. He wrote. "Just as NEPA is not
a green Magna Carta, federal judges are
political branches of government. (Cross-
Supreme Court. Contrary to the Justice
not the barons at Runnymede." He said
Sound Ferry Services v. ICC)
Department's big-is-bad approach, he
that judges enforce the law "by ensuring
Judge Thomas also showed his judicial
ruled that a large market share does not
restraint in a case of ineptitude by the
by itself signal barriers to entry for new
that agencies comply with NEPA's proce-
dures. and not by trying to coax agency
Federal Energy Regulatory Commission.
competitors. (U.S. v. Baker Hughes)
Judges have repeatedly ruled that regula-
Another case arose when two pet-food
decision makers to reach certain results."
tors used arbitrary calculations to deter-
companies exchanged nasty accusations of
(Citizens Against Burlington v. Busey)
His most important constitutional ruling
mine the proper rate of return for a Ten-
misleading advertising-one dog food
was on the doctrine of standing. which is
nessee gas pipeline. Judge Thomas warned
claimed it prevented hip disease, the other
FERC that he was tempted to grant the
claimed it was preferred by more veteri-
a key limit to judicial activism. The Con-
pipeline company's request for a certain
narians. Judge Thomas reversed part of a
stitution requires a case or controversy be-
rate. But, he wrote, "legitimate concerns
damage award because there was no
fore judges can issue an opinion: there
must be real parties with real legal issues.
about judicial overreaching always mili-
"finding of willfullness or bad faith." as
Judicial activists often wave non-cases into
tate in favor of affording the agency just
required by the false-advertising statute.
This emphasis on bad intent, often over-
looked in securities and environmental
cases, is an important limit on liability.
(ALPO v. Ralston Purina)
Seven of Judge Thomas's opinions were
appeals from drug cases; as a justice, he
will have some notion of what it is the po-
lice are up against. Most of these cases
were requests by defense lawyers for a
judge to find some technical problem with
a search, seizure or confession, which
Judge Thomas refused. In one case, the de-
fendants tried to throw a gym bag contain-
ing crack into a sewer when the police ap-
proached. Other seizures included beepers,
a favorite tool of the drug trade. Judge
Thomas referred to one neighborhood as
"an open-air drug bazaar."
His close reading of a statute led him to
reverse part of a criminal conviction of a
dealer named Keith Long. The police used
a search warrant to find cocaine, butane
torches for processing the drug and large
amounts of cash. They also discovered a
revolver between the cushions of a sofa. A
jury convicted the defendant on the drug
charges, but also under a law against
using or carrying a weapon in drug traf-
ficking.
Judge Thomas reversed the firearm -
conviction. He said the prosecution reason-
ing went too far: "Long was connected to
the drugs; the distribution of the drugs
was facilitated by the gun; since Long thus
derived benefit from the gun, he 'used' it.
He rejected this view, saying it would
mean "that the word 'use' has no discerni-
ble boundaries."
Judge Thomas is a conservative judge,
if this means that he views his job as inter-
preting the law and not making it up or
ruling for or against parties based on who
they are. A 30-year period of judicial activ-
ism from the Supreme Court is now des-
tined to end. Even liberals should be able.
to resolve themselves to a Justice Thomas,
who would know his job is the law and not
politics.
PAGE 101
14TH CASE of Level 1 printed in FULL format.
Cross-Sound Ferry Services, Inc., petitioner V. Interstate
Commerce Commission and United States of America,
respondents and Viking Starship, Inc., intervenor
No. 90-1053
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
1991 U.S. App. LEXIS 8977
November 28, 1990, Argued
May 10, 1991, Decided
RIOR HISTORY: [*1]
etition for Review of an Order of the Interstate Commerce Commission.
DUNSEL: Eugene D. Gulland for petitioner.
Craig M. Keats, Attorney, Interstate Commerce Commission, with whom Robert S.
ırk, General Counsel, Henri F. Rush, Deputy General Counsel and Evelyn G.
itay, Attorney, Interstate Commerce Commission, and James F. Rill, Assistant
:torney General, Catherine G. O'Sullivan and David Seidman, Attorneys,
epartment of Justice, were on the brief, for respondents.
ward D. Greenberg and Mark T. Priesing were on the brief for intervenor.
IDSES: Mikva, Chief Judge, Williams and Thomas, Circuit Judges. Opinion for
e Court filed by Chief Judge Mikva. Opinion concurring in part and concurring
1 the denial of the petition for review filed by Circuit Judge Clarence Thomas.
'INIONBY: MIKVA
INION: In this case, we revisit the propriety of the Interstate Commerce
mmission's ("ICC" or the "Commission") finding that certain water carrier
rvices provided by intervenor Viking Starship, Inc. ("Viking") are ferry
rvices exempt from ICC regulation. In Cross-Sound Ferry Servs., Inc. V. ICC,
3 F.2d 395 (D.C. Cir. 1989) [hereinafter Cross-Sound I], [*2] we remanded
r further clarification of the Commission's views as to the scope of the ferry
emption. After reviewing the Commission's decision on remand, Viking Starship,
c., Common Carrier Application, 6 I.C.C.2d 228 (1989) [hereinafter Viking II],
d the contentions of petitioner Cross-Sound Ferry Services, Inc.
Cross-Sound"), we conclude that the Commission has not changed its policy with
spect to the ferry exemption. Accordingly, we uphold the Commission's finding
at Viking is an exempt ferry service, and reject Cross-Sound's procedural
allenges to the Commission's decisionmaking process. In addition, we find that
e Commission's decision did not trigger environmental review responsibilities
der the National Environmental Policy Act or the Coastal Zone Management Act.
I.
Tn 1988, the Commission granted Viking temporary authority to transport
gers over two routes in Long Island Sound: (1) Montauk, New York to
PAGE 102
1991 U.S. App. LEXIS 8977, *2
oton/New London, Connecticut, and 2) Montauk to Block Island, Rhode Island.
e Cross-Sound I, 873 F.2d at 396 (describing statutory basis for temporary
tr izations). Relying on a provision of the Interstate [*3] Commerce Act
a clares transportation provided "by a ferry" to be exempt from the
nm.sion's jurisdiction, see 49 U.S.C. @ 10544 (a) (4) (1988), Viking
osequently asked the Commission to dismiss its application for a permanent
cense on the ground that its operations are exempt ferry services.
>ss-Sound, which transports passengers, automobiles, and freight between
ient Point, New York and New London, challenged Viking's claim, but, as
:ailed in Cross-Sound I, 873 F.2d at 396-400, the Commission agreed with
ting that its operations are exempt. See Viking Starship, Inc. - Common
rier Application, 4 I.C.C.2d 634 (1988) [hereinafter Viking I].
Reviewing Viking I, we acknowledged the Commission's "great latitude in
termining the scope of the ferry exemption,' Cross-Sound I, 873 F.2d at 398,
: found ourselves unable to discern the Commission's interpretation. Id. at
1. We noted several ICC decisions asserting jurisdiction over apparently
ilar Long Island Sound routes, and suggested that the discrepancy between
se cases and the Viking decision were "prima facie evidence [*4] of a
nge in ICC policy." Id. at 399. In addition, we expressed uncertainty about
significance of various factors the Commission uses to determine whether the
ry exemption applies, such as the length and directness of a carrier's route
the frequency of service. Id. at 399-400. Given these perceived ambiguities,
remanded "for a fuller exegesis of the Commission's views. Id. at 396.
Although it acknowledged on remand that prior decisions may have misconstrued
significance of certain factors flagged by the court in Cross-Sound I, see
:
II, 6 I.C.C.2d at 237 (referring to role of absolute distance), the
ion denied changing its view of the ferry exemption, id. @t 233 n.8. It
tinguished the Long Island Sound cases we cited in our panel opinion, id.,
explained in greater detail the factors it uses to determine what
stitutes a ferry, id. at 235-40. After discussing the general contours of the
ry exemption, the Commission specifically reaffirmed its earlier finding that
ing's services qualify as exempt ferriage under section 10544 (a) (4). [*5]
at 241-46. In addition, the Commission rejected Cross-Sound's claim that a
ision exempting Viking from the Commission's jurisdiction nonetheless
igated the ICC to comply with environmental review procedures under the
ional Environmental Policy Act and the Coastal Zone Management Act. Id. at
-49.
II.
In order to determine whether the Commission has complied with our mandate in
ss-Sound I, we must evaluate the sufficiency of the Commission's explanations
Viking II as to the scope of the ferry exemption. If we find that the ICC's
:ent view of the ferry exemption "diverges from agency precedent," then, in
er to uphold the new interpretation, we must also find that the Commission
oplied a reasoned analysis indicating that prior policies and standards are
g deliberately changed, not casually ignored.' See Hall V. McLaughlin, 864
I 868, 872 (D.C. Cir. 1989) (quoting Greater Boston Television Corp. V. FCC,
F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) ) see also
r Vehicle Mfrs. Ass'n V. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 57
3). [*6] If, on the other hand, we determine that the Commission "has
in fact diverged from past decisions, [then] the need for a comprehensive
licit statement of its current rationale is less pressing." Hall, 864
PAGE 103
1991 U.S. App. LEXIS 8977, *6
2d at 872. The agency's explanation in such a case "need not be elaborate"; we
ill uphold its findings, "though of less than ideal clarity, if the agency's
at ay reasonably be discerned." Id. at 872-73 (quoting Greater Boston
e. sion, 444 F.2d at 851).
etitioner contends that our opinion in Cross-Sound I conclusively determined
at the agency had changed its policy with respect to the ferry exemption. We
ecline, however, to adopt so narrow a view of our earlier holding. We remanded
ne Commission's decision in Viking I precisely because we were unsure what its
terpretation of the ferry exemption was, see Cross-Sound I, 873 F.2d at 400;
E would be inappropriate to let our earlier expressions of puzzlement prevent a
ubsequent panel from evaluating the Commission's newly tendered explanations de
ovo. Reviewing the Viking II decision, we conclude that the Commission [*7]
as not diverged from prior precedent.
First, we believe that the Commission persuasively distinguished those cases
ere it has exercised jurisdiction over water carriers operating in Long Island
ound. As the Commission explained in Viking II, 6 I.C.C.2d at 233 n.8, three of
he examples that we cited in Cross-Sound I as "prima facie evidence of a change
a ICC policy," 873 F.2d at 398-99, involved the transportation not only of
assengers but also of freight, a subject area over which the Commission has
ong exercised jurisdiction. See Mascony Transport and Ferry Servs., Inc., 353
.C.C. 60, 61 (1976), petition for review denied sub nom Cross-Sound Ferry
ervs., Inc. V. U.S., 573 F.2d 725 (2d Cir. 1978) (applicant sought to transport
general commodities and passengers" between New London and Greenport, New
ork) i Cross-Sound Ferry Servs., Inc. - Extension, ICC Docket No. W-1290 (Sept.
3, 1983) (applicant sought to transport "passengers, general commodities,
obiles with passengers, and tractors, trailers, and trucks" between New
=
h and Montauk) and B.I. Marine Express, Inc., [*8] ICC Docket No.
-1450 (Oct. 14, 1986) (applicant proposed to transport "both passengers and
eneral freight" between Westerly, Rhode Island and Block Island).
Indeed, the Commission has repeatedly held that "the word ferry does not
enerally include the transportation of goods and merchandise," McAllister
COS., Inc. - Investigation of Control, 336 I.C.C. 590, 592-93 (1970), and has
efused to exempt freight carriers from regulation simply because the passenger
spect of their operation, viewed in isolation, might qualify as a "ferry." Id.
= 593-94 (finding that carrier authorized to transport passengers and general
ommodities between Bridgeport, Connecticut and Port Jefferson, New York was not
2 exempt ferry, even though carrier had apparently never exercised its freight
thority). See also B.I. Marine Express, ICC Docket No. W-1450 ("ferry service
entails the transportation of passengers, their automobiles, and
ccompanying baggage, but does not involve the transportation of general
reight") Ann Arbor R.R. Co. Common Carrier Application, 250 I.C.C. 490, 491
L942). The Supreme Court has interpreted the [*9] term "ferry" as excluding
reight services, see St. Clair County V. Interstate Sand and Car Transfer Co.,
92 U.S. 454, 467 (1904) (noting that "the ferry business is confined to the
:ansportation of persons with or without their property"), as have various
ederal regulations. See, e.g., 46 CFR @ 171.010( (d) (2) (1990) (Coast Guard
fety regulations) ; 49 CFR @ 171.8 (1989) (hazardous materials transportation).
Although its efforts to distinguish the fourth example of Long Island Sound
ter carrier regulation that we cited in Cross-Sound I are less persuasive, the
)mmission's view that Shoreline Boating Serv., Inc., ICC Docket No. W-1294
'ed May 29, 1984), involved excursion operations (i.e., round-trip service
PAGE 104
1991 U.S. App. LEXIS 8977, *9
only) instead of point-to-point passenger service can be supported. See Viking
I, 6 I.C.C.2d at 233 n.8 (noting that excursion operations, like freight
;e ces, have "historically been regulated"). The administrative law judge
it wing Shoreline's original request for operating authority discussed the
excursion character of the proposed services in some detail. See Shoreline
Boating Serv., Inc., Common Carrier Application, [*10] ICC Docket No. W-1294
(August 19, 1976) (noting that carrier sold "round-trip transportation tickets
lone"; describing public support for the excursion operations; and discussing
excursion services offered by carriers contesting Shoreline's request for
operating authority).
We also note that the Commission's decision in Viking II is consistent with
it least one other decision finding water carrier services on Long Island Sound
to be exempt ferriage. In North Rip Fish Harvest, Ltd., ICC Docket No. W-1325
(May 13, 1980), the Commission held that passenger service between Montauk and
Block Island - one of Viking's proposed routes - was exempt from regulation
under section 10544 (a) (4). See also Michigan-Wisconsin Transp. Co., ICC Docket
No. W-1377 (May 15, 1984) (carrier operating across Lake Michigan is exempt
under section 10544 (a) (4)).
Finally, we reject Cross-Sound's suggestion that the Commission's treatment
of distance in Viking II rises to the level of a change in agency policy. See 6
[.C.C.2d at 237-40 (noting that earlier cases may have "overstated" the role of
absolute distance). In Cross-Sound I, we criticized the Commission for failing
[*11] to explain the significance it attached to the length of a carrier's
:oute. See 873 F.2d at 399. Viking II suggests that the Commission, consistent
with its decision in Michigan-Wisconsin Transp. Co., ICC Docket No. W-1377,
S distance as a relevant but not dispositive factor in determining whether a
Icular service qualifies as a "ferry." That is, so long as the carrier
ossesses the usual attributes of a ferry - such as significant time or distance
savings compared to overland routes - the absolute length of the route will not
revent the carrier from qualifying as a ferry. See Viking II, 6 I.C.C.2d at
240.
This approach is consistent with prior Commission decisions that seemed to
establish per se limits on the distances a ferry could travel. As the Commission
explained, those decisions also involved services not regularly associated with
ferries. See Viking II, 6 I.C.C.2d at 239-40; Pere Marquette Ry. Co., 260 I.C.C.
206 (1944) (carrier transporting not only passengers but also railroad cars and
newly manufactured automobiles across Lake Michigan); Ann Arbor R.R. Co. Common
Carrier Application, 250 I.C.C. 490 (1942) [*12] (carrier transporting
freight cars, in addition to passengers, across Lake Michigan) Canadian Pacific
RY. Co. V. U.S., 73 F.2d 831, 834-35 (9th Cir. 1934) (discussing excursion
character and luxurious nature of service across Puget Sound). Moreover, the
distances at issue in this case - between 15 and 30 miles, depending on the
barticular route, see Cross-Sound I, 873 F.2d at 397 - are well within the
50-145 mile upper boundaries even those earlier cases established for ferry
service.
Thus, we conclude that the Commission did not diverge from prior precedent or
olicy in evaluating Viking's services. Accordingly, there was no need for the
Commission to justify a change in policy. Given the Commission's comprehensive
liscussion of the ferry exemption, which responded specifically to this court's
concerns about apparently inconsistent precedents and the relative importance of
various criteria used to evaluate ferries, we have no difficulty
PAGE 105
1991 U.S. App. LEXIS 8977, *12
iscerning the agency's path and conclude that it satisfied the standards for
easoned decisionmaking.
Having concluded that the Commission did not impermissibly alter its view of
he ferry exemption, [*13] we may set aside the Commission's decision
pplying the exemption to Viking only if it was "arbitrary, capricious, an abuse
f discretion, or otherwise not in accordance with law." 5 U.S.C. @ 706 (2) (A)
1988). See Railway Labor Execs. Ass'n V. ICC, 914 F.2d 276, 280 (D.C. Cir.
990).
Under section 10544 (a) (4), ferries are exempt from regulation "except to the
xtent the Interstate Commerce Commission finds it necessary to exercise
urisdiction to carry out" the national transportation policy. See 49 U.S.C. @
0101 (1988) (describing national transportation policy). Applying the
rinciples it enunciated earlier in its decision, the Commission reasonably
etermined that Viking's Montauk-Block Island and Montauk-Groton/New London
perations qualify as exempt ferries. See Viking II, 6 I.C.C.2d at 241-42
noting the "frequent and regular" character of the service; its "modest,"
no-frills" quality; the absence of any "freight service whatsoever" or "detours
or sightseeing purposes or for intermediate stops"; and the services' ability
o "substitute[ ], with a substantial reduction in overall mileage, for a road
nd bridge connecting nearby points [*14] in neighboring states")
We can find no error in the Commission's further determination that the
ational transportation policy does not require regulation of Viking's services
r
der to protect Cross-Sound against potential diversion or "cream-skimming"
1
s customer base. See 49 U.S.C. @ 10101 (a) (1) (C) (national transportation
olicy includes encouraging "sound economic conditions among carriers") ; Viking
I, 6 I.C.C.2d at 242-46. The Commission found that the services of the two
arriers differed; that even with respect to shared services - i.e., passengers
ithout vehicles - the distance between Orient Point, New York and Montauk, New
ork (75 "congested" highway miles) limited actual competition; and that, in any
ase, there was "sufficient traffic in the area to accommodate Viking's
mall-scale operation without driving Cross-Sound out of business." Viking II, 6
.C.C.2d at 243-44.
Cross-Sound contends that the Commission ignored evidence that Viking
ctually offers excursion and freight services inconsistent with the ferry
xemption. As the Commission concedes, however, Cross-Sound may pursue these
lleged violations through [*15] a properly framed request for enforcement.
ee Viking II, 6 I.C.C.2d at 230 n.3; 49 CFR Part 1111 (1990) (procedures for
iling complaints with the Commission).
Finally, we reject Cross-Sound's claims that the Commission erred in failing
O hold further hearings regarding Viking's services, or in denying the
ompany's discovery requests. Although we suggested in Cross-Sound I that the
ommission might "find it useful on remand to use a hearing as a vehicle to
e-examine and articulate its new view of the ferry exemption," 873 F.2d at 401,
hat advice was premised on our assumption that the Commission would be altering
ts traditional ferry policy. Given the agency's "broad discretion in deciding
hether to grant a hearing," see, e.g., Cities of Carlisle and Neola, Iowa V.
FRC, 741 F.2d 429, 431 (D.C. Cir. 1984), and its view (which we uphold here)
the Viking decisions do not constitute a change in policy, the Commission
PAGE 106
1991 U.S. App. LEXIS 8977, *15
reasonably concluded that hearings would not be "productive" and that
"additional 'evidence' would not be particularly helpful in addressing the legal
issues that predominate in this case." Viking II, 6 I.C.C.2d at 233. [*16]
to Cross-Sound's discovery claims, we note this circuit's position that
'the cysuct and extent of discovery in agency proceedings is a matter
ordinarily entrusted to the expert agency in the first instance and will not,
barring the most extraordinary circumstances, warrant the Draconian sanction of
overturning a reasoned agency decision. See Trailways Lines, Inc. V. ICC, 756
7.2d 1537, 1546 (D.C. Cir. 1985). No such extraordinary circumstances exist to
varrant overturning the Commission's denial of Cross-Sound's discovery requests.
IV.
Having approved on both substantive and procedural grounds the Commission's
finding that Viking's services are exempt from regulation under section
0544 (a) (4), we next address Cross-Sound's contention that the Commission
violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. @@ 4321-4370b
1988 & Supp. 1990), and the Coastal Zone Management Act ("CZMA"), 16 U.S.C. @@
451-1464 (1988), by failing to conduct any environmental review of Viking's
ervices.
As an initial matter, the Commission contends that Cross-Sound lacks standing
o challenge its actions under either NEPA or CZMA. Standing constitutes a
hreshold [*17] jurisdictional inquiry. But this court has held that "when
he merits of a case are clearly against the party seeking to invoke the court's
urisdiction, the jurisdictional question is especially difficult and
a- reaching, and the inadequacies in the record or briefing make the case a
vehicle for deciding the jurisdictional question, we may rule on the merits
ithout reaching" the jurisdictional contention. Adams V. Vance, 570 F.2d 950,
54 n.7 (D.C. Cir. 1978); accord Chinese Am. Civic Council V. Attorney General,
66 F.2d 321, 325 (D.C. Cir. 1977). See Secretary of the Navy V. Avrech, 418
.S. 676, 678 (1974) (per curiam) (assuming that district court had jurisdiction
nd resolving case on the merits, noting that "even the most diligent and
ealous advocate could find his ardor somewhat dampened in arguing a
urisdictional issue where the decision on the merits is thus foreordained")
orton V. Mathews, 427 U.S. 524, 530-532 (1976) (finding it "unnecessary" to
esolve "difficult and perhaps close jurisdictional arguments" where a prior
upreme Court decision dictated resolution of the merits against [*18] the
arty asserting jurisdiction). See also United States V. Augenblick, 393 U.S.
48, 351-52 (1969) i Southeastern Community College V. Davis, 442 U.S. 397, 404
.5 (1979). We believe that this is a rare case in which we should exercise our
iscretion to proceed directly to the merits.
First, as discussed more fully below, the merits of Cross-Sound's
nvironmental contentions can be resolved easily, particularly in light of our
arlier finding that the Commission has not altered its policy with respect to
ne ferry exemption. Second, the question of Cross-Sound's standing is quite
omplex, involving inquiries into difficult issues such as the prudential
tanding of competitors, see, e.g., Hazardous Waste Treatment Council V. EPA,
51 F.2d 277, 282-85 (D.C. Cir. 1988), cert. denied, 490 U.S. 1106 (1989)
andowner injury, see, e.g., Goos V. ICC, 911 F.2d 1283, 1289-91 (8th Cir.
990) i and the Commission's statutory authority to consider environmental
ctors under the national transportation policy of 49 U.S.C. @ 10101 in
mining whether to override the ferry exemption. As to the [*19] last
PAGE 107
1991 U.S. App. LEXIS 8977, *19
uestion, which goes to the redressability of Cross-Sound's asserted injuries,
e have serious doubts concerning the narrow construction of section 10101 urged
y X. concurring colleague. See Concurring Opinion at 3-6. Although this court
u efer to an agency's reasonable interpretation of a statute that Congress
as entrusted it to administer, see Chevron U.S.A. Inc. V. Natural Resources
efense Council, 467 U.S. 837, 843 (1984), the Commission has not definitively
onstrued section 10101 as precluding consideration of environmental factors,
otwithstanding the cursory footnote on which our colleague relies. See Viking
I, 6 I.C.C.2d at 249 n.33; Concurring Opinion at 4-5. Whether Congress intended
he agency's inquiry under section 10101 to encompass environmental
onsiderations is an intricate question we need not answer on the undeveloped
ecord before us. We note only that the term "efficient," which is used in
ection 10101 (a) (1) (B) 's directive that the Commission promote "efficient
ransportation, has classically been thought to incorporate the full range of
ossible externalities, including environmental costs and benefits. [*20]
Finally, the administrative record and the briefs in this case provide
nsufficient factual documentation to verify or disprove Cross-Sound's
nvironmental standing claims. See Avrech, 418 U.S. at 677-78 (expressing
nwillingness to decide jurisdictional question without further argument, even
fter ordering supplemental briefing). Our concurring colleague's view that
ross-Sound's asserted injuries could not be redressed by the Commission, as to
hich we have serious qualms, allows him to avoid confronting knotty factual
uestions concerning Cross-Sound's injuries, see Concurring Opinion at 2,
uestions that would ultimately require a remand to the Commission for further
indings. Under these circumstances, we deem it appropriate to review the merits
f Cross-Sound's environmental claims directly, to which we now turn.
PA
Section 102 (2) (C) of NEPA requires federal agencies to prepare an
nvironmental impact statement ("EIS") for every "major Federal action[ ]
ignificantly affecting the quality of the human environment. 42 U.S.C. @
332 (2) (c). In Viking II, the Commission found that a "decision simply holding
hat an operation is a ferry and [*21] declining to take the affirmative step
ecessary to assert jurisdiction is not the type of action that triggers" NEPA
eview. 6 I.C.C.2d at 248. Cross-Sound disputes this interpretation, arguing
hat the Commission's change in policy with respect to section 10544 (a) (4)
onstitutes a major federal action under NEPA.
Our conclusion that the Commission did not change its policy with respect to
he ferry exemption might well dispose of Cross-Sound's claim. Indeed,
etitioner's counsel effectively conceded at oral argument that success on the
olicy change question was a prerequisite to success on the NEPA claim. In any
ase, the only "action" the Commission even conceivably took was in finding that
iking's services are statutorily exempt. We believe that Defenders of Wildlife
Andrus, 627 F.2d 1238 (D.C. Cir. 1980), in which this court held that the
ecretary of the Interior's failure to prevent the state of Alaska from carrying
it a wolf kill program on federal lands did not constitute a major federal
ction, is controlling. There, we held that an agency must undertake some "overt
it" to trigger NEPA's requirements; the agency's mere refusal [*22] to
ercise its statutory authority to act would not suffice. Id. at 1245-46.
Unlike an ordinary licensing decision, in which the Commission affirmatively
mines that a water carrier's proposed services are required by the
PAGE 108
1991 U.S. App. LEXIS 8977, *22
public convenience and necessity" under 49 U.S.C. @ 10922, the Commission here
imply applied the statutory ferry exemption of section 10544 (a) (4) and declined
) ? sert jurisdiction to advance the national transportation policy of section
01 thereby placing the case squarely within the "inaction" rubric of
efc ers of Wildlife. See Viking II, 6 I.C.C.2d at 247 (noting that section
0544 (a) (4) "itself exempts ferry services from our jurisdiction, and all that
e agency did was to take a look at whether Viking was conducting exempt
ervices"). Common sense supports our conclusion that the Commission's decision
es not constitute a major federal action; as we said in Defenders of Wildlife,
10 agency could meet its NEPA obligations if it had to prepare an environmental
npact statement every time the agency had power to act but did not do so." 627
2d at 1246.
CZMA
The Coastal Zone Management [*23] Act seeks to protect the land and water
sources of the nation's coastal zone through a cooperative governmental effort
1 which states are given primary responsibility for developing coastal resource
nagement programs. See, e.g., 16 U.S.C. @ 1451 (i) (congressional findings); 16
S.C. @ 1452 (2) (congressional declaration of policy). Section 307 (c) (1) of
MA requires federal agencies "conducting or supporting activities directly
fecting the coastal zone" to comply with the affected states' management
ograms "to the maximum extent practicable." 16 U.S.C. @ 1456 (c) (1). An
plementing regulation requires federal agencies to provide the affected states
th so called "consistency determinations" for proposed activities at least
nety days prior to final federal approval. See 15 CFR @ 930.34 (a), (b) (1990).
oss-Sound contends that the Commission violated these provisions by failing to
t'v the relevant states prior to deeming Viking exempt from its jurisdiction
section 10544 (a) (4). We reject this claim.
CZMA and the implementing regulations on which Cross-Sound relies expressly
clude federal licensing or permitting activities from the definition of a
ederal [*24] activity," see 15 CFR @ 930.31 (c) i instead, a separate
ocedural scheme places primary compliance responsibilities for such matters on
e applicant and the affected states, not the federal agency. See 16 U.S.C. @
56 (c) (3) (A) ("any applicant for a required Federal license or permit to
nduct an activity affecting land or water uses in the coastal zone" of a state
st certify to the federal agency that its activity will comply with state
ograms, and must furnish a copy of the certification to the affected states,
ich may file objections with the federal agency) 15 CFR Part 930, Subpart D,
pecially 15 CFR @ 930.54; Viking II, 6 I.C.C.2d at 248 n.30. Here, the
mmission's dismissal of Viking's application for common carrier authority on
risdictional grounds meant that no licensing proceeding existed sufficient to
igger these regulations. See Viking I, 4 I.C.C.2d at 640 n.9; Exemption of
ter Carrier Operations, 4 I.C.C.2d 656, 1988 ICC Lexis 189 (June 14, 1988)
ereinafter Water Carriers] (noting that "licensing" requires an "applicant"
r a license); 15 CFR @ 930.52 (defining "applicant" [*25] as "any
dividual [or corporation who] files an application for a Federal license or
rmit to conduct an activity affecting the coastal zone"). Thus, neither the
mmission nor Viking breached any notice obligation under CZMA.
We find unpersuasive Cross-Sound's analogies to an earlier decision in which
e Commission concluded that its exemption of entire classes of water carriers
stituted a "federal activity" requiring a CZMA consistency determination. See
Carriers, 1988 ICC Lexis 189, at 11. Unlike Viking II, in which one
PAGE 109
1991 U.S. App. LEXIS 8977, *25
arrier's services were held exempt, Water Carriers involved a broad,
raditional rulemaking proceeding in which four classes of carriers were
X6 ted. See id. at 2-10 (describing exempted classes, and recognizing that
0 sion's action had "potential for directly affecting coastal zones by
llowing some additional water carrier operations"). Indeed, the rulemaking fit
quarely within the definition of "federal activity," and could not qualify
nder the less stringent licensing or permitting scheme discussed above. See id.
t 11-12 (discussing why decision constitutes a federal activity); 15 CFR
*26] @ 930.31 (a) (defining federal activity); 15 CFR @ 930.52 (requiring
applicant" for federal license). Thus, we find Cross-Sound's reliance on Water
arriers inapposite.
V.
We conclude that the Commission has not changed its policy with respect to
he ferry exemption, and find that its comprehensive discussion of the exemption
n Viking II satisfies this court's mandate in Cross-Sound I, as well as the
ore general standards for reasoned decisionmaking. We further conclude that the
ommission appropriately found Viking's operations to be exempt under section
0544 (a) (4), and we reject Cross-Sound's allegations of procedural error.
inally, we conclude that the Commission's finding that it lacked jurisdiction
ver Viking's services did not trigger environmental review responsibilities
der either NEPA or CZMA. For the foregoing reasons, Cross-Sound's petition for
eview is denied.
= is so ordered.
, URBY: THOMAS (In Part)
[SSENTBY: THOMAS (In Part)
[SSENT: CLARENCE THOMAS, Circuit Judge, concurring in part and concurring
1 the denial of the petition for review:
Although I join the majority in rejecting Cross-Sound's claims under the
terstate Commerce Act, I do not join the majority [*27] in reviewing
toss-Sound's claims under the National Environmental Policy Act (NEPA) and the
astal Zone Management Act (CZMA). Before this court may review the merits of
y of Cross-Sound's claims, we must decide whether we have the authority to do
. See FW/PBS, Inc. v. City of Dallas, 110 S. Ct. 596, 607 (1990) ("The federal
ourts are under an independent obligation to examine their own jurisdiction,
d standing 'is perhaps the most important of [the jurisdictional] doctrines.'
[uoting Allen V. Wright, 468 U.S. 737, 750 (1984) )). Having examined our own
risdiction over Cross-Sound's environmental claims, I conclude that we have
ne: Cross-Sound does not have article III standing. This court thus has no
wer to judge the merits of Cross-Sound's claims under NEPA and CZMA.
I.
The statute that gives this court the power to hear ICC cases limits our
risdiction to petitions brought by a "party aggrieved." 28 U.S.C. @ 2344.
oss-Sound has participated aggressively at every level in all of the
oceedings in this case, and no one suggests that Cross-Sound has not achieved
nk as a "party." See Water Transp. Ass'n V. ICC, 819 F.2d 1189, 1192-93 & n.27
cir. 1987). [*28] The question instead is whether, with respect to
PAGE 110
1991 U.S. App. LEXIS 8977, *28
he Commission's decision that it did not bear certain obligations under NEPA
nd CZMA, Cross-Sound has been "aggrieved." We answer this question by
'f aging in traditional standing analysis. Id. at 1193 (citation omitted).
n ler to establish constitutional standing, Cross-Sound must show "that it
as suffered an injury in fact traceable to the Commission's ruling and
edressable by a decision in [Cross-Sound's] favor." Id. In order to establish
rudential standing, Cross-Sound must show "that the interest thereby abridged
as arguably within the zone protected or regulated by the constitutional or
tatutory guaranty in question." Id.
Cross-Sound alleges that the Commission's decision has aggrieved it both as
iking's competitor and as a landowner. I acknowledge that the Commission's
ecision might ultimately affect Cross-Sound's fiscal health. And though the
ecord does not reveal whether Cross-Sound owns any waterfront buildings, or
ulkheads, or other littoral property, I assume that the Commission's decision
ill lower the value of the company's land. Cross-Sound would thus have suffered
njuries-in-fact [*29] both as a competitor and as a landowner. But
ross-Sound would still not have attained article III standing. Cross-Sound
ould have us order the Commission to prepare an environmental impact statement
nder NEPA and a consistency determination under CZMA, both of which ostensibly
ould provide the Commission with information on the environmental consequences
f its choices. Cross-Sound suggests that the Commission would do well to ponder
he effects of its actions on the "increasingly fragile"" waters of the Long
sland Sound. Brief for Petitioner at 38 (citation omitted) ; see also id. at 38
13 (citing L.I. Sound Is So Polluted It Faces Long-Term Damage, N.Y. Times,
uly 6, 1990, at A1). I agree that as a matter of policy, it probably should. As
matter of law, however, the Commission has no power to regulate ferries for
~onmental reasons. Therefore, neither of the alleged injuries could be
ssed by a decision in Cross-Sound's favor on its NEPA and CZMA claims, and
ross-Sound thus has no standing to bring them. n1
-Footnotes-
n1 In its claims under the Interstate Commerce Act, in contrast, Cross-Sound
eeks an order requiring the Commission to regulate Viking's ferry service. That
emedy, if we were to direct it, would redress the injuries-in-fact that
ross-Sound asserts. I therefore agree with the majority's implicit conclusion
hat Cross-Sound has standing to bring its Interstate Commerce Act claims.
-End Footnotes-
*30]
The Interstate Commerce Act deprives the Commission of jurisdiction over
cansportation "by a ferry," "except to the extent the Commission
finds
it
ecessary to exercise jurisdiction to carry out the [national] transportation
olicy. 49 U.S.C. @ 10544 (a) (4). n2 In defining the word "ferry," the
ommission properly took into account the specific transportation criteria -
irectness of route, character and frequency of service - that "flow from the
tatus of a ferry as a 'floating section of highway. Viking Starship, Inc., 6
.C.C.2d 228, 235 (1989) (common carrier application) (quoting J. Perry,
nerican Ferryboats 171 (1957)) [hereinafter Viking II]; see ante at 4-8
endorsing Commission's definition). The Commission did not consider
ironmental criteria in defining the word "ferry," and no one seriously
ontends that it could have.
PAGE 111
1991 U.S. App. LEXIS 8977, *30
-Footnotes-
Section 10544 (a) provides:
xccpt to the extent the Interstate Commerce Commission finds it necessary to
xercise jurisdiction to carry out the [national] transportation policy of
ection 10101 of this title, the Commission does not have jurisdiction under
his subchapter over transportation by water carrier when the transportation is
rovided -
(4) by a ferry.
9 U.S.C. @ 10544(a).
-End Footnotes
*31]
Nor could the Commission have taken the environment into account at the
econd stage of its proceeding, when it decided whether it should regulate
iking's ferry service in order to carry out the national transportation policy.
he national transportation policy comprises several separate congressional
oncerns, such as safety and labor conditions in the transportation industry and
elations between state and federal transportation authorities. See 49 U.S.C. @
0101 (a) (1). n3 Each is meant to further Congress's ultimate goal: "to ensure
he development, coordination, and preservation of a transportation system that
e S the transportation needs of the United States." Id. @ 10101 (a) (emphasis
)
-Footnotes-
n3 Section 10101 (a) provides:
0 ensure the development, coordination, and preservation of a transportation
ystem that meets the transportation needs of the United States, ...
it is the
olicy of the United States Government to provide for the impartial regulation
f the modes of transportation subject to this subtitle, and -
(1) in regulating those modes -
(A) to recognize and preserve the inherent advantage of each mode of
ransportation;
(B) to promote safe, adequate, economical, and efficient transportation;
(C) to encourage sound economic conditions in transportation, including sound
conomic conditions among carriers;
(D) to encourage the establishment and maintenance of reasonable rates for
ransportation, without unreasonable discrimination or unfair or destructive
ompetitive practices;
(E) to cooperate with each State and the officials of each State on
sportation matters; and
PAGE 112
1991 U.S. App. LEXIS 8977, *31
F) to encourage fair wages and working conditions in the transportation
nd try.
9 s.c. @ 10101 (a).
-End Footnotes
*32]
Conspicuous in its absence from the national transportation policy is any
llusion to our nation's environmental needs, and the Commission would be hard
ressed to fit environmental concerns as such within the language of the
tatute. The majority suggests that the Commission might be able to squeeze the
ivironment into Congress's charge that the Commission promote "efficient
ransportation. 49 U.S.C. @ 10101 (a) (1) (B) i see ante at 12. This reading seems
, me flawed for two reasons. First, notwithstanding the majority's advice, the
ommission itself reads the national transportation policy, as I do, to exclude
nvironmental matters - a point that the Commission made both in its opinion
elow and in its brief to this court. See Viking II, 6 I.C.C.2d at 249 n.33 ("We
bubt that we have authority to use the [national transportation policy]
<ception as a basis for addressing environmental issues associated with
therwise exempt ferry services, since the [policy] makes no reference to
nvironmental issues. ") i Joint Brief of Respondents Interstate Commerce
ommission and United States of America at 29 ("Neither section 10101 nor
ection 10544 (a) mention [sic] [*33] environmental impacts. Thus, the
ommission is to be guided by transportation and economic principles in deciding
ether the regulation of ferriage is necessary. Environmental impacts play no
1ʳᵈ in determining whether certain transportation is ferry service, or whether
ommission should exercise its authority to overide [sic] the exemption in a
1.
Icular case. ").
Second, it is axiomatic that in construing a statute, "the court must look to
e particular statutory language at issue, as well as the language and design
: the statute as a whole. " K Mart Corp. V. Cartier, Inc., 486 U.S. 281, 291
L988) (emphasis added). The majority here plucks one word, "efficient, from a
omprehensive statute that in language and design deals solely with our
ountry's "transportation needs,' and suggests that the word is malleable enough
, cover the "environment. " But the Interstate Commerce Act includes words that
e far more elastic, and the Supreme Court has rejected attempts to stretch
nose words as thinly as the majority proposes the Commission do here. In New
>rk Central Securities Corp. V. United States, 287 U.S. 12 (1932), [*34]
or example, a unanimous Court construed a section in the Act that gives the
mission the power to regulate on behalf of the "public interest.' Chief
stice Hughes wrote:
le term "public interest" as thus used [in the statute] is not a concept
thout ascertainable criteria, but has direct relation to adequacy of
ansportation service, to its essential conditions of economy and efficiency,
d to appropriate provision and best use of transportation facilities,
estions to which the Interstate Commerce Commission has constantly addressed
self in the exercise of the authority conferred.
at 25; cf. NAACP V. FPC, 425 U.S. 662 (1976) (authority to promote "public
terest" does not give Federal Power Commission (now FERC) warrant to try to
ly employment discrimination without regard to effects on utility rates).
PAGE 113
1991 U.S. App. LEXIS 8977, *34
Then Congress wants the Commission to make decisions for environmental reasons,
it explicitly tells the Commission to do so. See, e.g., 49 U.S.C. @ 10362 (c) (4)
R- Services Planning Office must consider "the cost to the environment") i n4
:f 1. @ 10101a (15) (under national rail transportation policy, Congress
J intends to "encourage and promote energy conservation"). When Congress
ormally codified the national transportation policy, fifty-one years ago, see
Transportation Act of 1940, Pub. L. No. 76-785, @ 1, 54 Stat. 899, 899, it
;urely did not mean to give the Commission license to regulate ferries in order
:o promote ecological consciousness-raising - or any other "externalities"
inconnected to Congress's narrow focus on fields within the Commission's
raditional realm of expertise, the economics of transportation.
-Footnotes-
n4 Section 10362 (c) provides:
ail properties are suitable for rail transportation continuation subsidies if
he cost of the required subsidy to the taxpayers for the properties each year
S less than -
(4) the cost to the environment measured by damage caused by increased
ollution.
9 U.S.C. @ 10362 (c) (emphasis added).
-End Footnotes
in this case, Cross-Sound wants the Commission to prepare both an
nvironmental impact statement, see 42 U.S.C. @ 4332(2) 4332 (2) (C), and a consistency
etermination, see [*36] 16 U.S.C. @ 1456 (c) (1) i 15 C.F.R. @ 930.4 (a), (b),
ith respect to its finding first, that Viking is a ferry and second, that
iking is not subject to the Commission's control. Both environmental impact
tatements and consistency determinations are meant to disseminate information
n the environmental consequences of government action. But as far as
ross-Sound is concerned, more information is not any better than less
nformation, or, for that matter, than no information at all. Neither an
nvironmental impact statement nor a consistency determination can affect the
ommission's decision whether Viking is or is not a ferry, and if it is, the
ecision whether to regulate Viking nonetheless. In this case, the environment
imply is not on the Commission's agenda.
A favorable result for Cross-Sound on its environmental claims could not
edress Cross-Sound's injuries-in-fact. Cross-Sound thus has no article III
tanding to bring those claims, and we thus have no authority under the
onstitution to hear them. See Public Citizen V. NHTSA, 848 F.2d 256, 262-63 &
.27 (D.C. Cir. 1988); Natural Resources Defense Council, Inc. V. Berklund, 609
.2d 553, 558 (D.C. Cir. 1979) [*37] (per curiam). n5 I express no opinion
n the majority's discussion of the merits. With respect, though, I do offer a
ew words on the majority's decision to assert jurisdiction without deciding
ether it has any and then to proceed to rule in this case on the merits of
toss-Sound's environmental claims.
-Footnotes-
PAGE 114
1991 U.S. App. LEXIS 8977, *37
- Since competitors are not within the zone of interests that NEPA and CZMA
'C =, I doubt, in addition, that Cross-Sound meets the requirements of
unitial standing. See Hazardous Waste Treatment Council V. EPA, 861 F.2d 277,
3-84 (D.C. Cir. 1988) (per curiam) ("When we grant standing to a party with
ly an oblique relation to the statutory goal, we run the risk that the outcome
uld, even assuming technical fidelity to law, in fact thwart the congressional
al. Further, of course, technical fidelity to law cannot be assumed; judges
r."), cert. denied, 490 U.S. 1106 (1989) cf. Churchill Truck Lines, Inc. V.
ited States, 533 F.2d 411, 416 (8th Cir. 1976) (footnote and citations
itted):
titioners, whose sole motivation
was their own economic self-interest
d welfare, are singularly inappropriate parties to be entrusted with the
sponsibility of asserting the public's environmental interest in proceedings
incerning the issuance of operating authority to motor carriers
[NEPA]
S not designed to prevent loss of profits but was intended to promote
vernmental awareness of and action concerning environmental problems.
-End Footnotes-
38]
II.
Federal courts are courts of limited jurisdiction. When federal jurisdiction
es not exist, federal judges have no authority to exercise it, even if
one - judges, parties, members of the public - wants the dispute resolved.
.g., CFTC v. Schor, 478 U.S. 833, 850-51 (1986) i Bender V. Williamsport
Eu School Dist., 475 U.S. 534, 541 & n.4 (1986) i Sosna V. Iowa, 419 U.S. 393,
8 (1975) ; American Fire & Casualty Co. V. Finn, 341 U.S. 6, 17-18 & n.17
951) i Anglo Am. Provision Co. V. Davis Provision Co. No. 2, 191 U.S. 376, 377
903) (Holmes, J.) i Mansfield, Coldwater & Lake Mich. Ry. V. Swan, 111 U.S.
9, 382-84 (1884) ; People's Bank V. Calhoun, 102 U.S. 256, 260-61 (1881) ;
tler V. Rae, 48 U.S. (7 How.) 765, 767 (1849) i Jackson V. Ashton, 33 U.S. (8
t.) 93, 94 (1834) (Marshall, C.J.) i Capron V. Van Noorden, 6 U.S. (2 Cranch)
, 72 (1804) It follows that federal courts have a "'special obligation" to
praise at the outset their own jurisdiction, even when the parties, [*39]
the lower courts, have not raised any jurisdictional questions themselves.
/PBS, Inc. V. City of Dallas, 110 S. Ct. 596, 607 (1990) (citation omitted).
is tenet is as solid as bedrock and almost as old. See, e.g., Duquesne Light
V. Barasch, 488 U.S. 299, 306 (1989) i Bender, 475 U.S. at 541 & n.4; Juidice
Vail, 430 U.S. 327, 331-32 (1977) ; Liberty Mut. Ins. Co. V. Wetzel, 424 U.S.
7, 740 (1976) i Clark V. Paul Gray, Inc., 306 U.S. 583, 588 (1939) i United
ates V. Corrick, 298 U.S. 435, 440 (1936) i Mitchell V. Maurer, 293 U.S. 237,
4 (1934) (Brandeis, J.) ; Louisville & Nashville R.R. V. Mottley, 211 U.S. 149,
2 (1908) ; Great Southern Fire Proof Hotel Co. V. Jones, 177 U.S. 449, 453-54 &
1 (1900) i Mansfield, 111 U.S. at 382-84; Jackson, 33 U.S. (8 Pet.) at 94;
pron, 6 U.S. (2 Cranch) at 72; see also, e.g., Citizens for the Abatement of
rcraft Noise, Inc. V. Metropolitan Washington Airports Auth., 917 F.2d 48, 53
.C. Cir. 1990) [*40] ("As a threshold matter, we must consider whether
is case is justiciable. Although the [defendant] has not pressed the issue on
peal, it is well established that a court of appeals must first satisfy itself
its own jurisdiction, sua sponte if necessary, before proceeding to the
s."), cert. granted on other grounds, 111 S. Ct. 750 (1991) ; Rubins
PAGE 115
1991 U.S. App. LEXIS 8977, *40
ontractors, Inc. V. Lumbermens Mut. Ins. Co., 821 F.2d 671, 673 (D.C. Cir.
987) ("Before addressing the merits of this dispute we must find jurisdiction
O so
Although [the defendant] sought to waive the issue at oral
I ent, we have an independent obligation to determine whether jurisdiction
as proper. i Reynolds V. Sheet Metal Workers, Local 102, 702 F.2d 221, 223
D.C. cir. 1981) ("Federal courts are courts of limited jurisdiction, and are
bliged always to ascertain whether they have subject matter jurisdiction over
he litigation before them, even when the parties prefer to ignore the
uestion. ").
The truistic constraint on the federal judicial power, then, is this: A
ederal court may not decide cases when it cannot decide cases, and must
etermine [*41] whether it can, before it may. The majority here changes this
undamental precept to read, in effect, that under certain circumstances a
ederal court should decide cases regardless of whether it can, and need not
etermine whether it can, before it does. This revision seems to me difficult to
quare with the Supreme Court's regular warnings to the federal courts to
ulfill their "special obligation" to inquire into their own jurisdiction at the
utset. Originally stated in 1804, in Capron V. Van Noorden, 6 U.S. (2 Cranch)
t 72, the rule was articulated most forcefully in Mansfield, Coldwater & Lake
ichigan Railway V. Swan, 111 U.S. 379 (1884). In Mansfield, a unanimous Court
xplained that this rule, "springing from the nature and limits of the judicial
ower of the United States, is inflexible and without exception.' Id. at 382.
he rule
...
requires this court, of its own motion, to deny its own
urisdiction, and, in the exercise of its appellate power, that of all the other
ourts of the United States, in all cases where such jurisdiction does not
matively appear in the record on which, in the exercise [*42] of that
,
it is called to act
...
The first and fundamental question is that of
21 sdiction, first, of this court, and then of the court from which the record
omes. This question the court is bound to ask and answer for itself, even when
ot otherwise suggested, and without respect to the relation of the parties to
:.
1.
The Supreme Court reiterated this principle twice last Term. In reviewing the
espondents' citizenship in Carden V. Arkoma Associates, 110 S. Ct. 1015 (1990),
e Court held that "since diversity of citizenship is a jurisdictional
quirement, the Court is always 'called upon to decide' it." Id. at 1021; see
1. ("'The failure of parties to urge objections [to diversity of citizenship]
nnot relieve this court from the duty of ascertaining from the record whether
le Circuit Court could properly take jurisdiction of this suit. (quoting
'eat Southern Fire Proof Hotel, 177 U.S. at 453)). In FW/PBS, the Court ordered
smissal of a claim for lack of article III standing, even though neither the
rties nor the lower courts had addressed the issue. The Court stressed that
he federal [*43] courts are under an independent obligation to examine
eir own jurisdiction, and standing 'is perhaps the most important of the
urisdictional] doctrines. 110 S. Ct. at 607 (citation omitted).
very federal appellate court has a special obligation to 'satisfy itself not
ly of its own jurisdiction, but also that of the lower courts in a cause under
view,' even though the parties are prepared to concede it. Mitchell V. Maurer,
3 U.S. 237, 244 (1934). See Juidice V. Vail, 430 U.S. 327, 331-32 (1977)
ding). 'And if the record discloses that the lower court was without
PAGE 116
1991 U.S. App. LEXIS 8977, *43
risdiction this court will notice the defect, although the parties make no
ntention concerning it.' [United States V. Corrick, 298 U.S. 435, 440
9? .]"
\quoting Bender, 475 U.S. at 541).
To require that a court resolve jurisdictional questions before addressing
n-jurisdictional ones raises the difficult question of how to distinguish the
O. The rule of Mansfield might be reduced to tautology if jurisdiction were
fined to encompass grounds that the court, on its own motion if necessary,
44] must establish at the threshold. The term "jurisdiction, however - "an
1-purpose word denoting adjudicatory power" - bears different meanings in
fferent contexts. Szabo Food Serv., Inc. V. Canteen Corp., 823 F.2d 1073, 1077
th Cir. 1987), cert. dismissed, 485 U.S. 901 (1988). Sometimes, for example,
aracterizing a provision as "jurisdictional" implies that a court cannot
mper the application of the provision through otherwise available equitable
ctrines such as waiver, tolling, and estoppel. See, e.g., Irwin V. Veterans
min., 111 S. Ct. 453, 455-58 (1990). Other times, characterizing a provision
bearing on an inferior tribunal's "jurisdiction" might signify that on
peal, that tribunal's interpretation of the provision is not entitled to
ference. See, e.g., Mississippi Power & Light Co. V. Mississippi ex rel.
ore, 487 U.S. 354, 386-89 (1988) (Brennan, J., dissenting).
Given the woolliness of the concept, it is hardly surprising that there
ists a significant gray area between grounds of decision that clearly are
risdictional and grounds that clearly are not. In a sense, all [*45]
plicable rules limit the authority of the relevant adjudicative tribunal; for
reason, proponents of deferring to reasonable agency interpretations of
jurisdictional" provisions have argued that deference is necessary because
intelligible distinction can be drawn between jurisdictional and
n-jurisdictional provisions of statutes entrusted for their administration to
e agency. See Mississippi Power, 487 U.S. at 380-82 (Scalia, J., concurring in
e judgment). In contexts where distinctions between jurisdictional and
n-jurisdictional provisions are made routinely, the distinctions can prove
usive. Compare, e.g., Irwin, 111 S. Ct. at 457 (deeming a provision that "an
ployee may file a civil action" within a certain time to be
n-jurisdictional for tolling purposes) with, e.g., Soriano V. United States, shall
2 U.S. 270, 273-77 (1957) (deeming a provision that "every claim
barred
unless filed" within a certain time to be jurisdictional for
lling purposes). To complicate matters further, some provisions - the eleventh
endment, for example - can be jurisdictional in some [*46] contexts, and
n-jurisdictional in others. Compare Patsy V. Board of Regents, 457 U.S. 496,
6 n.19 (1982) (stating that the eleventh amendment is not "jurisdictional in
le sense that it must be raised and decided by this Court on its own motion")
th Edelman V. Jordan, 415 U.S. 651, 678 (1974) ("The Eleventh Amendment
fense sufficiently partakes of the nature of a jurisdictional bar so that it
ed not be raised in the trial court."). Finally, and most importantly for
esent purposes, it is well-settled that at some point a claim becomes
fficiently frivolous on the merits as to justify a dismissal for lack of
risdiction. See, e.g., Bell V. Hood, 327 U.S. 678, 682-83 (1946) (dismissal
'om district court when the claim is "wholly insubstantial and frivolous");
cht v. King, 260 U.S. 174, 176-77 (1922) (dismissal from Supreme Court when
e claim is not "sufficiently substantial").
18
PAGE 117
1991 U.S. App. LEXIS 8977, *46
e Mansfield rule is violated only if the ground passed over is
dictional and the ground rested upon is non- jurisdictional, for courts
2.
erlv rest on one jurisdictional ground instead of another, or [*47] on
IE
S ground instead of another. In cases where either ground is difficult
a cerize, it is difficult to determine whether the rule has been
ted. Arguably, moreover, the rule might not apply at all if the ground
d over sufficiently, though not entirely, "partakes of the nature" of a
ad
S ground, or if the ground rested upon "sufficiently," though not entirely,
akes of the nature of a jurisdictional bar, Jordan, 415 U.S. at 678. Here,
er, the ground passed over - whether there exists a case or controversy
it
n the meaning of article III - is unambiguously jurisdictional, see, e.g.,
W
V. Wright, 468 U.S. 737, 750-51 (1984), and the ground rested upon -
ry
er the Commission took "major Federal actions" or engaged in "Federal
nd
ity" sufficient to trigger duties under NEPA or CZMA - is unambiguously
it
urisdictional. In this situation, no Supreme Court case authorizes the
at
h of the Mansfield rule that the majority today commits. n6
17
-Footnotes-
The policies of avoiding constitutional questions for non-constitutional
see, e.g., Ashwander V. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J.,
rring), apply with equal force to jurisdictional determinations. In this
however, the constitutional questions go to jurisdiction and the
onstitutional ones go to the merits, and the prudential concerns of
nder cannot override a rule that is "inflexible and without exception,"
ield, 111 U.S. at 382. Thus, in Juidice V. Vail, 430 U.S. 327 (1977), the
raised and decided a question of constitutional standing, see id. at
3, before holding that the district court erred in not abstaining under
Harris, 401 U.S. 37 (1971) - a non-constitutional ground of decision
1
treated as non-jurisdictional, see, e.g., Ohio Bureau of Employment
V. Hodory, 431 U.S. 471, 480 (1977) (permitting states to waive a Younger
se) i Ellis V. Dyson, 421 U.S. 426, 435 (1975) (instructing district court
cide on remand article III issues before reaching Younger issues).
0
End Footnotes-
at
y
ween 1969 and 1976, the Supreme Court decided four cases that are
60
mes cited in support of assuming jurisdiction arguendo and rendering a
nt on the merits: United States V. Augenblick, 393 U.S. 348 (1969) i
er V. Judicial Council, 398 U.S. 74 (1970) i Secretary of the Navy V.
, 418 U.S. 676 (1974) (per curiam) i and Norton V. Mathews, 427 U.S. 524
a
In Augenblick, however, the ground passed over was at least arguably
the
risdictional, and in Chandler, Avrech, @nd Norton, the ground rested upon
least arguably jurisdictional. Upon close examination, therefore, none of
cases authorizes the practice undertaken by the majority.
enblick involved actions for back pay brought in the Court of Claims by
ius,
rs challenging the constitutionality of their prior court-martial
:s
tions. See 393 U.S. at 348-49. The Court of Claims had "jurisdiction to
judgment against the United States on any claim 'founded
of
upon the
tution. Id. at 349 n.2 (quoting 28 U.S.C. @ 1491). Thus, one issue in
in
Augenblick was whether the soldiers were barred from recovery in the
of Claims by the preclusive effect of their convictions in the
on
rtial. The Supreme Court declined to address this issue: "Assuming,
PAGE 11/
1991 U.S. App. LEXIS 8977, *46
The Mansfield rule is violated only if the ground passed over is
risdictional and the ground rested upon is non- jurisdictional, for courts
operly rest on one jurisdictional ground instead of another, or [*47] on
e merits ground instead of another. In cases where either ground is difficult
characterize, it is difficult to determine whether the rule has been
, d. Arguably, moreover, the rule might not apply at all if the ground
SS over sufficiently, though not entirely, "partakes of the nature" of a
rits ground, or if the ground rested upon "sufficiently," though not entirely,
artakes of the nature of a jurisdictional bar," Jordan, 415 U.S. at 678. Here,
wever, the ground passed over - whether there exists a case or controversy
thin the meaning of article III - is unambiguously jurisdictional, see, e.g.,
len v. Wright, 468 U.S. 737, 750-51 (1984), and the ground rested upon -
ether the Commission took "major Federal actions" or engaged in "Federal
tivity" sufficient to trigger duties under NEPA or CZMA - is unambiguously
n-jurisdictional. In this situation, no Supreme Court case authorizes the
each of the Mansfield rule that the majority today commits. n6
-Footnotes-
n6 The policies of avoiding constitutional questions for non-constitutional
es, see, e.g., Ashwander V. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J.,
ncurring), apply with equal force to jurisdictional determinations. In this
se, however, the constitutional questions go to jurisdiction and the
n-constitutional ones go to the merits, and the prudential concerns of
hwander cannot override a rule that is "inflexible and without exception,"
nsfield, 111 U.S. at 382. Thus, in Juidice V. Vail, 430 U.S. 327 (1977), the
urt raised and decided a question of constitutional standing, see id. at
1-33, before holding that the district court erred in not abstaining under
unger V. Harris, 401 U.S. 37 (1971) - a non-constitutional ground of decision
nevally treated as non-jurisdictional, see, e.g., Ohio Bureau of Employment
V. Hodory, 431 U.S. 471, 480 (1977) (permitting states to waive a Younger
1
se) Ellis V. Dyson, 421 U.S. 426, 435 (1975) (instructing district court
decide on remand article III issues before reaching Younger issues).
-End Footnotes-
48]
Between 1969 and 1976, the Supreme Court decided four cases that are
metimes cited in support of assuming jurisdiction arguendo and rendering a
dgment on the merits: United States V. Augenblick, 393 U.S. 348 (1969) ;
andler V. Judicial Council, 398 U.S. 74 (1970) i Secretary of the Navy V.
rech, 418 U.S. 676 (1974) (per curiam); and Norton V. Mathews, 427 U.S. 524
976). In Augenblick, however, the ground passed over was at least arguably
n-jurisdictional, and in Chandler, Avrech, @nd Norton, the ground rested upon
S at least arguably jurisdictional. Upon close examination, therefore, none of
ese cases authorizes the practice undertaken by the majority.
Augenblick involved actions for back pay brought in the Court of Claims by
ldiers challenging the constitutionality of their prior court-martial
nvictions. See 393 U.S. at 348-49. The Court of Claims had "jurisdiction to
nder judgment against the United States on any claim 'founded ... upon
the
nstitution. Id. at 349 n.2 (quoting 28 U.S.C. @ 1491). Thus, one issue in
49] Augenblick was whether the soldiers were barred from recovery in the
urt of Claims by the preclusive effect of their convictions in the
urts-martial. The Supreme Court declined to address this issue: "Assuming,
1991 U.S. App. LEXIS 8977, *49
ne rguendo, held that the attacks before it were without 351-52.
that a collateral attack on a court-martial judgment" merit. See could id. be at made,
A defense of claim or issue preclusion, which can be waived if not properly
reserved, is almost always considered non-jurisdictional. See, e.g., Fed. R.
i' ? 8 (c) (requiring res judicata to be pleaded as an affirmative defense)
V. Bowen, 817 F.2d 865, 869 & n.37 (D.C. Cir. 1987) ("Failure to so plead
D. onscitutes a waiver of the defense.' i see also 5 C. Wright & A. Miller,
ederal Practice and Procedure @ 1278, at 481-82 & n.9 (2d ed. 1990). Although
he argument for preclusion in Augenblick was statutory, the statute on which it
as based gives little hint of a more jurisdictional flavor than the common-law
octrine that the statute codifies. See 10 U.S.C. @ 876 (providing that military
eview of court-martial convictions shall be "final [*50] and conclusive" and
of the United States"). To the extent that
binding upon all
ugenblick bypassed a preclusion courts defense to reject the claims against which that
efense was asserted, it simply rested on one merits ground as opposed to
nother, and provides no basis for dodging jurisdiction to reach the merits. n7
-Footnotes-
n7 Norton bypassed the question whether a statute prohibited collateral
ttack in the district court upon an administrative adjudication by the
ecretary of Health, Education, and Welfare. The Court correctly characterized
orton was written in expressly jurisdictional terms. See 42 U.S.C. @ 405 (h),
hat question as jurisdictional, because the preclusion statute at issue in
[uoted in 427 U.S. at 529 n.5.
-End Footnotes
Despite the general rule that questions of claim or issue preclusion are
jurisdictional, they are at least jurisdiction-like in two senses: first,
can usually be determined as a matter of law at the outset, simply by
examining the face of the [*51] new pleadings in light of the prior
proceeding; second, because they touch upon the comity owed by one tribunal to
the judgments and orders of another, they implicate institutional concerns that
JO beyond the rights of individual litigants. It is not surprising, therefore,
:hat the Supreme Court occasionally has cast preclusion questions in expressly
jurisdictional terms. See District of Columbia Court of Appeals V. Feldman, 460
J.S. 462 (1983) i Rooker V. Fidelity Trust Co., 263 U.S. 413 (1923). In those
cases, which involved the preclusive effect of state-court judgments in
subsequent federal-court litigation, the Supreme Court reasoned that if a
district court issues a judgment on a matter "inextricably intertwined" with a
state-court judgment, then "the district court is in essence reviewing the
state-court decision," 460 U.S. at 483-84 n.16 - "an exercise of appellate
jurisdiction" unauthorized by statute, 263 U.S. at 416.
Jurisdictional recasting of preclusion questions has occurred only rarely.
The general rule remains that preclusion questions are non-jurisdictional. Thus,
when determining the preclusive [*52] effect to which state-court judgments
are entitled, the Court usually eschews the theory of Rooker-Feldman for the
more conventional approach of simply applying the substantive preclusion law of
the state, see 28 U.S.C. @ 1738, on the merits. See, e.g., Marrese v. American
Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985) i Migra V. Warren City
School Dist. Bd. of Educ., 465 U.S. 75 (1984) Kremer V. Chemical Construction
Corp., 456 U.S. 461 (1982). See generally P. Bator, D. Meltzer, P. Mishkin &
PAGE 119
1991 U.S. App. LEXIS 8977, *52
Shapiro, Hart and Wechsler's The Federal Courts and the Federal System
615-34 (3d ed. 1988).
Augenblick, the Court at times spoke in terms reminiscent of Rooker and
n
pating Feldman. Instead of consistently framing the issue in terms of
hetner "a collateral attack on a court-martial judgment" was appropriate, 393
.s. at 351 (emphasis added), it also questioned the "jurisdiction" of the Court
f Claims to "review" court-martial convictions, id. at 349. In Schlesinger V.
ouncilman, 420 U.S. 738 (1975), however, another case involving [*53] the
reclusive effect of a court-martial judgment, the Court returned to the more
raditional, non-jurisdictional idiom. Councilman held that 10 U.S.C. @ 876, the
ame preclusion statute at issue in Augenblick, merely "defines the point at
hich military court judgments become final and requires that they be given res
udicata effect." Id. at 749. The Court expressly rejected the argument that
ection 876 divests the district courts of original jurisdiction to entertain
ollateral attacks on court-martial judgments, see id. at 748-53, and it at
east implicitly rejected the alternative jurisdictional theory that any
istrict court so doing would effectively be engaging in direct review without a
tatutory grant of appellate jurisdiction. See id. at 753 ("The district court
ad subject-matter jurisdiction
").
In light of this background, Augenblick cannot plausibly be read as
uthorizing courts to sidestep jurisdiction. Interpreted that broadly,
ugenblick would stand without precedent or progeny, breaching an otherwise
ntact phalanx of Supreme Court authority spanning almost two centuries [*54]
hile "offering not a single word of analysis or justification" for so doing.
omment, Assuming Jurisdiction Arguendo: The Rationale and Limits of
ypothetical Jurisdiction, 127 U. Pa. L. Rev. 712, 713 (1979). To save
blick from that dubious distinction, one need only posit that the Court,
te occasional rhetoric to the contrary, viewed the preclusion question in
ustomary, non-jurisdictional terms, presaging its later, express holding in
ouncilman. n8
-Footnotes-
n8 Avrech probably can be explained in terms similar to Augenblick. In
wrech, the court bypassed the question, which it cast in jurisdictional terms,
ether a district-court plaintiff seeking back pay could collaterally attack a
ourt-martial conviction. See 418 U.S. at 676-77. The Court's characterization
E the bypassed preclusion question as jurisdictional was perhaps more plausible
n Avrech than in Augenblick, however, for the plaintiff in Avrech (like the
laintiffs in Rooker and Feldman, but unlike the plaintiffs in Augenblick)
ought an actual declaration that another tribunal's judgment was invalid. See
1. at 677. But since Avrech rested on jurisdictional grounds in any event, see
fra pp. 17-19, it matters little whether the bypassed preclusion question
ere is considered jurisdictional or not.
-End Footnotes
*55]
The other Supreme Court cases passed over grounds that are clearly
urisdictional, but rested on alternative grounds that are at least arguably
risdictional. Thus, in Chandler, the Supreme Court avoided deciding whether it
d jurisdiction to issue writs of prohibition or mandamus against the judicial
ncil of the Tenth Circuit, holding instead that the petitioner was not
PAGE 119
1991 U.S. App. LEXIS 8977, *52
Shapiro, Hart and Wechsler's The Federal Courts and the Federal System
15-34 (3d ed. 1988).
\ugenblick, the Court at times spoke in terms reminiscent of Rooker and
t. .pating Feldman. Instead of consistently framing the issue in terms of
ether "a collateral attack on a court-martial judgment" was appropriate, 393
S. at 351 (emphasis added), it also questioned the "jurisdiction" of the Court
Claims to "review" court-martial convictions, id. at 349. In Schlesinger V.
uncilman, 420 U.S. 738 (1975), however, another case involving [*53] the
eclusive effect of a court-martial judgment, the Court returned to the more
aditional, non-jurisdictional idiom. Councilman held that 10 U.S.C. @ 876, the
me preclusion statute at issue in Augenblick, merely "defines the point at
ich military court judgments become final and requires that they be given res
dicata effect." Id. at 749. The Court expressly rejected the argument that
ction 876 divests the district courts of original jurisdiction to entertain
llateral attacks on court-martial judgments, see id. at 748-53, and it at
ast implicitly rejected the alternative jurisdictional theory that any
strict court so doing would effectively be engaging in direct review without a
atutory grant of appellate jurisdiction. See id. at 753 ("The district court
d subject-matter jurisdiction
").
In light of this background, Augenblick cannot plausibly be read as
thorizing courts to sidestep jurisdiction. Interpreted that broadly,
genblick would stand without precedent or progeny, breaching an otherwise
tact phalanx of Supreme Court authority spanning almost two centuries [*54]
ile "offering not a single word of analysis or justification" for so doing.
mment, Assuming Jurisdiction Arguendo: The Rationale and Limits of
hetical Jurisdiction, 127 U. Pa. L. Rev. 712, 713 (1979). To save
lick from that dubious distinction, one need only posit that the Court,
brite occasional rhetoric to the contrary, viewed the preclusion question in
stomary, non-jurisdictional terms, presaging its later, express holding in
uncilman. n8
-Footnotes-
n8 Avrech probably can be explained in terms similar to Augenblick. In
rech, the court bypassed the question, which it cast in jurisdictional terms,
ether a district-court plaintiff seeking back pay could collaterally attack a
urt-martial conviction. See 418 U.S. at 676-77. The Court's characterization
the bypassed preclusion question as jurisdictional was perhaps more plausible
Avrech than in Augenblick, however, for the plaintiff in Avrech (like the
aintiffs in Rooker and Feldman, but unlike the plaintiffs in Augenblick)
ight an actual declaration that another tribunal's judgment was invalid. See
at 677. But since Avrech rested on jurisdictional grounds in any event, see
fra pp. 17-19, it matters little whether the bypassed preclusion question
ere is considered jurisdictional or not.
-End Footnotes-
55]
The other Supreme Court cases passed over grounds that are clearly
risdictional, but rested on alternative grounds that are at least arguably
risdictional. Thus, in Chandler, the Supreme Court avoided deciding whether it
1 jurisdiction to issue writs of prohibition or mandamus against the judicial
il of the Tenth Circuit, holding instead that the petitioner was not
PAGE 120
1991 U.S. App. LEXIS 8977, *55
titled to so extraordinary a remedy because he had failed to exhaust the other
venues of relief available to him. See 398 U.S. at 86-89; see also Coalition
or the Preservation of Hispanic Broadcasting V. FCC, No. 87-1285, slip op. at
D.C. Cir. Apr. 23, 1991) (en banc) (avoiding standing question and
is ssing petitioners' claim for failure to exhaust administrative remedies)
ampagne V. Schlesinger, 506 F.2d 979, 982 (7th Cir. 1974) ("Exhaustion is a
uasi-jurisdictional problem
").
Similarly, in Avrech and Norton, the Court rested on essentially
risdictional grounds - "the inability of the federal judiciary 'to review moot
ses, DeFunis V. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (citation
nitted). On [*56] the merits, Avrech and Norton involved constitutional
allenges to, respectively, a court-martial conviction and an administrative
ijudication denying entitlement to certain benefits. In addition, each case
resented a threshold question, cast in jurisdictional terms, n9 whether the
:ior judgment could be collaterally attacked in the district court. While
rech was pending, the Supreme Court decided another case presenting the
ientical merits issue, rejecting the position advocated by the plaintiff in
rech. The same thing happened in Norton. In both cases, the Court refused to
ecide the pending jurisdictional question, but issued a conforming merits
ecision nonetheless.
-Footnotes-
n9 See supra notes 7, 8.
-End Footnotes
Avrech, the Court decided that the intervening decision had rendered the
question so insubstantial that it effectively prevented the Court from
eceiving the requisite adversary presentation on the threshold, jurisdictional
lestion. Faithful to the Mansfield rule, the Court [*57] had ordered
ipplemental briefing on the jurisdictional question, but had yet to hear oral
:gument on it. The Court reasoned that deciding the jurisdictional question
ould be inappropriate under the circumstances, because "even the most diligent
d zealous advocate could find his ardor somewhat dampened in arguing a
risdictional issue where the decision on the merits is thus foreordained." 418
S. at 678. n10
-Footnotes-
n10 Since the jurisdictional issue was under consideration only because the
urt raised it on its own initiative after hearing oral argument on the merits,
is especially ironic that Avrech has come to be cited in support of
destepping jurisdiction altogether.
-End Footnotes
Norton involved a similar situation, except that the jurisdictional question
d been fully briefed and argued before the intervening decision was handed
wn. Nonetheless, the Court made clear that the effect of the intervening
cision was to render the merits issues so "insubstantial" as "not even to
pport the jurisdiction [*58] of a three-judge district court to consider
hem] on remand. 427 U.S. at 531 (emphasis added); see id. at 530-31 ("The
osition [in the intervening case] renders the merits in the present case a
PAGE 121
1991 U.S. App. LEXIS 8977, *58
cided issue" - foreordained - "and thus no longer substantial in the
risdictional sense.").
en the mooting effect of the intervening decision in both Avrech and
12 11, a more fastidious Court might have either dismissed the appeals or
cated the lower court judgments and remanded with instructions to dismiss,
ternative dispositions that would have left the pending jurisdictional
estions undecided by the Court. Cf. United States V. Munsingwear, 340 U.S. 36,
(1950) (generally endorsing the latter course when a civil case becomes moot
nding appeal). Instead, without deciding the jurisdictional questions, the
urt reversed on the merits in Avrech and affirmed on the merits in Norton,
asoning that "whichever disposition we undertake, the effect is the same. 427
S. at 532. Notwithstanding the Court's merits dispositions, it is clear from
e supporting reasoning that Avrech [*59] and Norton permit this approach
ly when an intervening decision renders a pending claim so "foreordained" or
nsubstantial" that under cases like Bell V. Hood or Zucht V. King, the claim
uld not even have supported federal jurisdiction had the intervening decision
en decided beforehand. The majority might well be correct that the
vironmental questions in this case are easier to resolve than are the standing
estions, but the majority's answer is hardly so "foreordained" as to make the
aims insubstantial in a jurisdictional sense.
In sum, not a single Supreme Court case authorizes federal courts to shuffle
ound unambiguously jurisdictional problems in order to issue judgments
ambiguously on the merits. As one defender of this approach candidly admits,
here is no Supreme Court opinion unequivocally holding that it is
rmissible to assume justiciability and rule on the substantive merits."
ent, supra, 127 U. Pa. L. Rev. at 745.
recognize, of course, that the majority's approach finds support in the
ecedents of this court decided after Augenblick. See, e.g., Adams V. Vance,
0 F.2d 950, 953-55 & n.7 (D.C. Cir. 1978) [*60] Chinese Am. Civic Council
Attorney Gen., 566 F.2d 321, 325-26 & n.9 (D.C. Cir. 1977). Given only those
cisions, I would of course be bound to accept this court's judgment that cases
ch as Augenblick implicitly overruled cases such as Capron and Mansfield and a
st of others. n11 But if such venerable precedent can be implicitly overruled
ith not a single word of analysis or justification," Comment, supra, 127 U.
L. Rev. at 713, it can also be revivified through express reaffirmation - as
ppened twice last Term. However valid this circuit's cases once might have
en, in my view they do not survive the Supreme Court's most recent
onouncements in FW/PBS and Carden. Since FW/PBS and Carden were decided, the
ly precedent from this court even arguably bypassing jurisdiction is Coker V.
llivan, 902 F.2d 84 (D.C. Cir. 1990). In Coker, we assumed article III
anding arguendo, resting instead on the ground that the challenge to the
ency's enforcement decision was unreviewable under Heckler V. Chaney, 470 U.S.
L (1985). See Coker, 902 F.2d at 90. [*61] Coker provides at best weak
oport for the majority's approach, however; there, we explained that "the
ternative rationale on which we rely is also a jurisdictional limitation." Id.
88 (emphasis added) ; see also Hispanic Broadcasting, No. 87-1285, slip op. at
(citing Coker as having "dismissed case on non-constitutional jurisdictional
unds to avoid problematic Article III inquiry").
-Footnotes-
PAGE 122
1991 U.S. App. LEXIS 8977, *61
nll That concession, of course, would still not oblige me to endorse the
ajority's approach in this case:
= colleague - apparently of the view that the standing issue is too
li. cult to resolve - believes we should pass on to the merits without deciding
hether we have the constitutional authority to hear the case. To be sure, this
ourt has on occasion followed that course, although not often in recent times,
ut we are unaware of any case where a panel was criticized for not employing
hat technique; in other words, for assuming its constitutional obligation. Here
he parties have briefed the standing issue and we have done our best to answer
he jurisdictional question raised. It is hard to understand why, under these
ircumstances, it could be thought a judicial virtue not to do so.
nited Transp. Union V. ICC, 891 F.2d 908, 911 (D.C. Cir. 1989), cert. denied,
10 S. Ct. 3271 (1990).
-End Footnotes
*62]
Read in light of one hundred and eighty-seven years of other precedents, the
upreme Court's opinions in FW/PBS and Carden confirm that federal courts must
irst assure themselves that they have the authority to hear a dispute before
hey may decide the dispute on the merits. See FW/PBS, 110 S. Ct. at 607-08;
arden, 110 S. Ct. at 1021. Federal courts simply may not assume jurisdiction
ypothetically. Some cases might cry out for decision on the merits; some might
ose difficult jurisdictional problems. Our threshold duty to examine our own
urisdiction is no less obligatory in either instance.
II.
"If there were no jurisdiction, there was no power to do anything but strike
he case from the docket. In that view of the subject the matter was as much
oram non judice as anything else could be
" The Mayor V. Cooper, 73 U.S.
6 Wall.) 247, 250 (1868). In my view, this court has no jurisdiction to hear
ross-Sound's environmental claims. I would therefore strike those claims from
he docket and stop before reaching the merits. Because the majority here goes
urther, I respectfully decline to join parts IV [*63] and V of the
ajority's opinion and join only parts I, II, and III.
EDERAL REPORTER, 2d SERIES
U.S. V. BAKER HUGHES INC.
981
Cite as 908 F.2d 981 (D.C. Clr. 1990)
3. Monopolies 24(13)
NITED STATES COURT OF APPEALS
UNITED STATES of America,
Rebuttal of prima facie case that ac-
Appellant,
quisition or merger will lessen competition
in relevant market does not require clear
V.
Eleventh Circuit
showing that entry into market by competi-
BAKER HUGHES INC., Eimco Secoma,
tors will be "quick and effective," rather,
S.A., and Oy Tampella AB, Appellees.
evidence on variety of factors can rebut
No. 90-5060.
prima facie case. Clayton Act, § 7, 15 U.S.
DENIALS OF REHEARING EN BANC
C.A. § 18.
United States Court of Appeals,
deral Rules of Appellate Procedure; Local Eleventh Circuit Rule 35)
District of Columbia Circuit.
4. Monopolies
24(13)
Denials where no member of the panel nor Judge in regular active
Argued May 16, 1990.
Misleading nature of statistics underly-
ervice on the Court requested that the Court be polled on rehearing
ing Government's prima facie case that
Decided July 6, 1990.
11 banc.
merger or acquisition would have effect of
Denials after a poll requested by a member of the panel or a Circuit
lessening competition, and sophistication of
United States brought action to enjoin
consumers purchasing hardrock hydraulic
udge in regular active service.
Denials on the Court's own motion after a poll requested by a member
Finnish manufacturer's proposed acquisi-
underground drilling rigs, provided support
tion of French manufacturer of hardrock
for district court's conclusion that Govern-
of the panel or a Circuit Judge in regular active service.
hydraulic underground drilling rigs. The
ment's prima facie case of lessening of
United States District Court for the Dis-
competition was rebutted; market for such
Docket
Date of
Citation of
trict of Columbia, Gerhard A. Gesell, J.,
drilling rigs was so minuscule that every
Number
Denial
Panel Decision
731 F.Supp. 3, denied injunction, and appeal
sale of rig increased seller's market share
GROUP 1
89-8359
6/20/90
M.D.Ga., 899
was taken. The Court of Appeals, Clar-
by two to five percent, and consumers who
ence Thomas, Circuit Judge, held that evi-
generally purchased such rigs, for thou-
F.2d 1136
ing
89-8407
6/19/90
N.D.Ga., 900
dence justified district court's conclusion
sands of dollars, closely examined available
F.2d 266
that acquisition would not substantially
options and typically insisted on receiving
rmers Home Admin
89-8359
6/20/90
M.D.Ga., 899
lessen competition in United States.
multiple, confidential bids for each order.
F.2d 1136
Clayton Act, § 7, 15 U.S.C.A. § 18.
Affirmed.
5. Monopolies
24(13)
District court's determination that en-
1.
Monopolies
24(12)
try into United States hardrock hydraulic
When Government presents evidence
underground drilling rig market would like-
showing that transaction involving merger
ly avert any anticompetitive effects of ac-
or acquisition will lead to undue concentra-
tion in market for particular product in
quisition of one drilling rig manufacturer
by second manufacturer, together with de-
particular geographic area, Government es-
termination that market share statistics
tablishes presumption that transaction will
were misleading and sophistication of con-
substantially lessen competition in violation
sumers was likely to foster competition,
of Clayton Act, and burden then shifts to
was sufficient to rebut Government's pri-
party seeking acquisition or merger to re-
ma facie case that acquisition would lessen
but such presumption. Clayton Act, § 7,
competition. Clayton Act, § 7, 15 U.S.C.A.
15 U.S.C.A. § 18.
§ 18.
2. Monopolies
24(12)
If party seeking merger or acquisition
6. Monopolies
24(13)
rebuts presumption that transaction will
Antitrust defendant seeking to rebut
substantially lessen competition, burden of
presumption of anticompetitive effect of
producing additional evidence of anticom-
acquisition or merger must show that pri-
petitive effect shifts to Government, and
ma facie case inaccurately predicts relevant
merges with ultimate burden of persuasion,
transaction's probable effect on future
which remains with Government at all
competition. Clayton Act, § 7, 15 U.S.C.A.
times. Clavton Act, § 7, 15 U.S.C.A. § 18.
§ 18.
982
908 FEDERAL REPORTER, 2d SERIES
U.S. V. BAKER HUGHES INC.
983
Cite as 908 F.2d 981 (D.C. Clr. 1990)
Appeal from the United States District
United States HHUDR market in violation
United States v. General Dynamics
did not expressly state the legal standard
Court for the District of Columbia (Civil
of section 7 of the Clayton Act, 15 U.S.C.
Corp., 415 U.S. 486, 496-504, 94 S.Ct. 1186,
that it applied in its analysis of rebuttal
Action No. 89-03333).
§ 18.¹ In December 1989, the government
1193-97, 39 L.Ed.2d 530 (1974); Philadel-
evidence, failed to apply a sufficiently
David Seidman, Atty., Dept. of Justice,
sought and obtained a temporary restrain-
phia Bank, 374 U.S. at 363, 83 S.Ct. at
stringent standard. The government ar-
with whom James F. Rill, Asst. Atty. Gen.,
ing order blocking the transaction. See
1741. If the defendant successfully rebuts
gues that, as a matter of law, section 7
Michael Boudin and Judy L. Whalley, Dep-
Temporary Restraining Order, United
the presumption, the burden of producing
defendants can rebut a prima facie case
uty Asst. Attys. Gen., and Catherine G.
States v. Baker Hughes Inc., No. 89-03333
additional evidence of anticompetitive ef-
only by a clear showing that entry into
O'Sullivan, Robert B. Nicholson and An-
(D.D.C. Dec. 15, 1989). In February 1990,
fect shifts to the government, and merges
the market by competitors would be quick
drea Limmer, Attys., Dept. of Justice, were
the district court held a bench trial and
with the ultimate burden of persuasion,
and effective. Because the district court
on the brief, for appellant.
issued a decision rejecting the govern-
which remains with the government at all
failed to apply this standard, the govern-
David Marx, Jr., with whom Ronald A.
ment's request for a permanent injunction
times. See Kaiser Aluminum & Chem.
ment submits, the court erred in concluding
and dismissing the section 7 claim. See
Corp. v. FTC, 652 F.2d 1324, 1340 & n. 12
that the proposed acquisition would not
Bloch, Lizbeth R. Levinson and Amy E.
(ith Cir.1981).
substantially lessen future competition in
Hancock, for Oy Tampella AB and Eimco
United States v. Baker Hughes Inc., 731
Secoma, S.A., and William J. Baer, with
F.Supp. 3 (D.D.C.1990). The government
By presenting statistics showing that
the United States HHUDR market.
whom Randal M. Shaheen for Baker
immediately appealed to this court, re-
combining the market shares of Tamrock
We find no merit in the legal standard
questing expedited proceedings and an in-
and Secoma would significantly increase
propounded by the government. It is de-
Hughes Inc., were on the joint brief, for
junction pending appeal. We granted the
concentration in the already highly concen-
void of support in the statute, in the case
appellees.
motion for expedited briefing and argu-
trated United States HHUDR market, the
law, and in the government's own Merger
Before RUTH B. GINSBURG,
ment, but denied the motion for an injune-
government established a prima facie case
Guidelines. Moreover, it is flawed on its
SENTELLE, and THOMAS, Circuit
tion pending appeal. The appellees con-
of anticompotitivo offect. The district
morits in three fundamental respects.
summated the acquisition shortly there-
court, however, found sufficient evidence
First, it assumes that ease of entry by
Judges.
after.
that the merger would not substantially
competitors is the only consideration rele-
Opinion for the Court filed by Circuit
lessen competition to conclude that the de-
vant to a section 7 defendant's rebuttal.
[1,2] The basic outline of a section 7
fendants had rebutted this prima facie
Second, it requires that a defendant who
Judge CLARENCE THOMAS.
horizontal acquisition case is familiar. By
case. The government did not produce any
seeks to show ease of entry bear the oner-
CLARENCE THOMAS, Circuit Judge:
showing that a transaction will lead to un-
additional evidence showing a probability
ous burden of proving that entry will be
Appellee Oy Tampella AB, a Finnish cor-
due concentration in the market for a par-
of substantially lessened competition, and
"quick and effective." Finally, by stating
that the defendant can rebut a prima facie
poration, through its subsidiary Tamrock
ticular product in a particular geographic
thus failed to carry its ultimate burden of
AG, manufactures and sells hardrock hy-
area,2 the government establishes a pre-
persuasion.
case only by a clear showing, the standard
draulic underground drilling rigs
sumption that the transaction will substan-
[3] In this appeal, the government as-
in effect shifts the government's ultimate
(HHUDRs) in the United States and
tially lessen competition. See United
sails the court's conclusion that the defen-
burden of persuasion to the defendant. Al-
throughout the world. Appellee Baker
States v. Citizens & Southern Nat'l Bank,
dants rebutted the prima facie case.
though the district court in this case did
Hughes Inc., a corporation based in Hous-
422 U.S. 86, 120-22, 95 S.Ct. 2099, 2118-19,
Doubtless aware that this court will set
not expressly set forth a legal standard
ton, Texas, owned a French subsidiary,
aside the district court's findings of fact
when it evaluated the defendants' rebuttal,
45 L.Ed.2d 41 (1975); United States v.
Eimco Secoma, S.A. (Secoma), that was
only if they are clearly erroneous, see Fed.
we have carefully reviewed the court's
Philadelphia Nat'l Bank, 374 U.S. 321,
similarly involved in the HHUDR industry.
363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915
R.Civ.P. 52(a), the government frames the
thorough analysis of competitive conditions
In 1989, Tamrock proposed to acquire Seco-
(1963). The burden of producing evidence
issue as a pure question of law, which we
in the United States HHUDR market, and
ma.
to rebut this presumption then shifts to the
review de novo. The government's key
we are satisfied that the court effectively
The United States challenged the pro-
defendant. See, e.g., United States v. Ma-
contention is that the district court, which
applied a standard faithful to section 7.4
posed acquisition, charging that it would
rine Bancorporation, 418 U.S. 602, 631, 94
3. From 1986 through 1988, Tamrock had an
reprinted in 4 Trade Reg.Rep. (CCH) 11 13,103, at
substantially lessen competition in the
S.Ct. 2856, 2874-75, 41 L.Ed.2d 978 (1974);
average 40.8% share of the United States
20,561-64 (1988). This acquisition has in-
HHUDR market, while Secoma's share averaged
creased the HHI in this market from 2878 to
1. Section 7 prohibits mergers and acquisitions
Although the appellees quibble with the
17.5%. 731 F.Supp. at 6. In 1988 alone, the
4303. Brief for Appellant at 5 n. 3, 12 (calculat-
the effect of which "may be substantially to
court's product market definition, they conclude
two firms enjoyed a combined share of 76% of
ed from 1986-1988 figures; see 731 F.Supp. at
lessen competition, or to tend to create a mo-
that "the [district] court's product market defini-
the market. (The district court inaccurately cal-
6).
nopoly." 15 U.S.C. § 18.
tion presages its finding that the extent of
culated this figure as 66%. See id. at 10; Brief
4. Even if we found more impressive the argu-
2. The parties in this case do not seriously con-
present competition and ease of entry preclude
for Appellant at 10 n. 10; Brief for Appellees
ment that the district court did not clearly artic-
test the district court's definition of the relevant
finding a violation of Section 7." Brief for
app. A.) The acquisition thus has brought about
ulate the legal standard applicable to a section 7
markets. The court defined the geographic
Appellees at 10 (emphasis added). If the appel-
a dramatic increase in the Herfindahl-Hirsch-
rebuttal, it would remain open to us to affirm
market as the entire United States, see 731
lees believe that the court's product market defi-
man Index (HHI)-a yardstick of concentra-
that court's judgment. Cf. Nelson v. United
F.Supp. at 5-6, and the relevant product as three
nition contributed to their victory, we see no
lion-for this market. The Department of Jus-
States, 838 F.2d 1280, 1285 (D.C.Cir.1988)
types of HHUDRs: face drills ("jumbos"), long.
reason to address their halfhearted and contra-
lice's Merger Guidelines characterize as "highly
("[W]e may affirm a trial court's decision on a
hole drills, and roof-bolting drills, as well as
dictory challenges to that definition.
concentrated" any market in which the HHI
basis not relied on by the district court where
associated spare parts, components, and acces-
exceeds 1800. See United States Dep't of Jus-
that ground finds support in the record.") (cita-
sories, and used drills. See id. at 4, 6-8.
lice, Merger Guidelines § 3.1 (June 14, 1984),
tion omitted).
984
908 FEDERAL REPORTER, 2d SERIES
U.S. v. BAKER HUGHES INC.
985
Cite as 908 F.2d 981 (D.C. Clr. 1990)
Concluding that the court applied this legal
quiry into future competitiveness; the So-
prer, the Court stressed that a transaction
ny made substantial lessening of competi-
standard to factual findings that are not
preme Court has never indicated that a
must
tion unlikely); United States v. Interna-
clearly erroneous, we affirm the court's
defendant seeking to rebut a prima facie
be functionally viewed, in the context of
tional Harvester Co., 564 F.2d 769, 773-79
denial of a permanent injunction and its
case is restricted to producing evidence of
its particular industry. That is, whether
(7th Cir.1977) (company successfully rebut-
dismissal of the government's section 7
ease of entry. Indeed, in numerous cases,
the consolidation was to take place in an
ted prima facie case by showing, among
claim.
defendants have relied entirely on non-en-
industry that was fragmented rather
other things, financial weakness of ac-
try factors in successfully rebutting a pri-
than concentrated, that had seen a recent
quired company, de facto independence of
I.
ma facie case.
trend toward domination by a few lead-
acquired company from acquiring company,
It is a foundation of section 7 doctrine,
In United States v. General Dynamics
ers or had remained fairly consistent in
strong level of competition in relevant mar-
disputed by no authority cited by the
Corp., 415 U.S. 486, 94 S.Ct. 1186, 39
its distribution of market shares among
ket, and tendency of the market toward
government, that evidence on a variety of
L.Ed.2d 530 (1974). for instance, the Su-
the participating companies, that had ex-
even stronger levels of competition).
factors can rebut a prima facio case.
preme Court rejected the government's an
perienced easy access to markets by sup-
Indeed, that a variety of factors other
These factors include, but are not limited
gument that a merger between two leading
pliers and easy access to suppliers by
than ease of entry can rebut a prima facie
to, the absence of significant entry barriers
coal producers would violate section 7. At
buyers or had witnessed foreclosure of
case has become hornbook law. See, e.g.,
in the relevant market. In this appeal,
though the transaction would result in the
business, that had witnessed the ready
P. Areeda & H. Hovenkamp, Antitrust
however, the government inexplicably im-
two largest firms controlling about half of
entry of new competition or the erection
Law 919', 920.1, 921', 925', 934', 935',
bues the entry factor with talismanic sig-
all sales in an industry that was already
of barriers to prospective entrants, all
939', at 813-23 (Supp.1989) (other factors
nificance. If, to successfully rebut a prima
highly concentrated because of a rapid de-
were aspects, varying in importance with
include significance of market shares and
facie case, a defendant must show that
cline in the number of competitors, the
the merger under consideration, which
concentration, likelihood of express collu-
entry by competitors will be quick and ef-
defendants produced considerable evidence
would properly be taken into account.
sion or tacit coordination, and prospect of
fective, then other factors bearing on fu-
that the merger would not substantially
370 U.S. at 321-22, 82 S.Ct. at 1521-22
efficiencies from merger); H. Hovenkamp,
ture competitiveness are all but irrelevant.
lessen competition. One of the parties to
(footnote omitted).6 All these factors are
Economics and Federal Antitrust Law
The district court in this case considered at
the merger owned only minimal reserves of
relevant in determining whether a transac-
§ 11.6, at 307-11 (1985) (other factors in-
least two factors in addition to entry: the
coal, an irreplaceable raw material, and had
tion is likely to lessen competition substan-
clude supply of irreplaceable raw materials,
misleading nature of the statistics underly-
already committed these reserves through
tially, but none is invariably dispositive.
excess capacity, degree of product homo-
ing the government's prima facie case and
long-term contracts. This evidence led the
See Note, Horizontal Mergers After Unit-
geneity, marketing and sales methods, and
the sophistication of HHUDR consumers.
Court to conclude that the government's
ed States V. General Dynamics Corp., 92
absence of a trend toward concentration);
These non-entry factors provide compelling
statistics regarding concentration in the
Harv.L.Rev. 491, 500 (1978).
L. Sullivan, Handbook of the Law of Anti-
support for the court's holding that Tam-
wake of the merger inaccurately portrayed
In the wake of General Dynamics, the
trust § 204, at 622-25 (1977) (other factors
rock's acquisition of Secoma was not likely
the post-merger company's weak competi-
Supreme Court and lower courts have
include industry structure, weakness of
to lessen competition substantially. We
tive stature, and that the defendants had
found section 7 defendants to have success-
data underlying prima facie case, elasticity
have concluded that the court's considera-
therefore rebutted the prima facie case.
fully rebutted the government's prima fa-
of industry demand, inter-industry cross-
tion of these factors was crucial, and that
Id. at 503-04, 94 S.Ct. at 1196-97. No-
cie case by presenting evidence on a variety
elasticities of demand and supply, product
the government's fixation on ease of entry
where did the Court consider barriers to
of factors other than ease of entry. See,
differentiation, and efficiency). See gener-
is misplaced.
entry.
e.g., Citizens & Southern, 422 U.S. at 121-
ally Antitrust Section, ABA, Horizontal
Section 7 involves probabilities, not cer-
Indeed, the Court in General Dynamics
23, 95 S.Ct. at 2119-20 (no lessening of
Mergers: Law and Policy 162-75, 201-04,
tainties or possibilities.⁵ The Supreme
emphasized the comprehensive nature of a
competition, and thus no violation of sec-
219-63 (Monograph No. 12, 1986).
Court has adopted a totality-of-the-circum-
section 7 inquiry, quoting at length from
tion 7, where acquired banks were already
It is not surprising, then, that the De-
stances approach to the statute, weighing a
its decision a decade earlier in Brown Shoe
associated with acquiring bank; no discus-
partment of Justice's own Merger Guide-
variety of factors to determine the effects
Co. v. United States, 370 U.S. 294, 82 S.Ct.
sion of ease of entry); Lektro-Vend Corp.
lines contain a detailed discussion of non-
of particular transactions on competition.
1502, 8 L.Ed.2d 510 (1962). See General
r. Vendo Co., 660 F.2d 255, 276 (7th Cir.
entry factors that can overcome a presump-
That the government can establish a prima
Dynamics, 415 U.S. at 498, 94 S.Ct. at
1981) (acquired company's deteriorating
tion of illegality established by market
facie case through evidence on only one
1194. In Brown Shoe, the Court applied
market position both before and after ac-
share statistics. See United States Dep't
factor, market concentration, does not ne-
section 7 stringently, holding that a merger
quisition rebutted prima facie case), cert.
of Justice, Merger Guidelines (June 14,
gate the breadth of this analysis. Evidence
that created a company with a 5% share of
denied, 455 U.S. 921, 102 S.Ct. 1277, 71
1984) [hereinafter Guidelines], reprinted in
of market concentration simply provides a
a highly fragmented market violated the
L.Ed.2d 461 (1982); FTC v. National Tea
4 Trade Reg.Rep. (CCH) 13,103, at 20,-
convenient starting point for a broader in-
statute. In arriving at this result, how-
Co., 603 F.2d 694, 699-700 (8th Cir.1979)
561-64 (1988). According to the Guide-
(weak market position of acquiring compa-
lines, these factors include changing mar-
5. See Brown Shoe Co. V. United States, 370 U.S.
for dealing with clear-cut menaces to competi-
294, 323, 82 S.Ct. 1502, 1522-23, 8 L.Ed.2d 510
tion; no statute was sought for dealing with
6. See also id. at 322 n. 38, 82 S.Ct. at 1522 n. 38
amination of the particular market-its struc-
(1962) ("Congress used the words 'may be sub-
ephemeral possibilities. Mergers with a proba-
("Statistics reflecting the shares of the market
ture, history and probable future-can provide
stantially to lessen competition' (emphasis sup-
ble anticompetitive effect were to be proscribed
controlled by the industry leaders and the par-
the appropriate setting for judging the probable
plied). to indicate that its concern was with
by this Act.") (footnote omitted) (emphasis add-
ties to the merger are, of course, the primary
anticompetitive effect of the merger.").
probabilities, not certainties. Statutes existed
ed).
index of market power; but only a further ex-
986
908 FEDERAL REPORTER, 2d SERIES
U.S. V. BAKER HUGHES INC.
987
Cite as 908 F.2d 981 (D.C. Clr. 1990)
ket conditions (§ 3.21), the financial condi-
leading. Because the United States
The government has not provided us
court's conclusion that the defendants suc-
tion of firms in the relevant market
HHUDR market is minuscule, market
with any reason to suppose that these find-
cessfully rebutted the government's prima
(§ 3.22), special factors affecting foreign
share statistics are "volatile and shifting,"
ings of fact are unsupported in the record
facie case.
firms (§ 3.23), the nature of the product
731 F.Supp. at 11, and easily skewed. In
or clearly erroneous, see Fed.R.Civ.P. 52(a).
and the terms of sale (§ 3.41), information
Ля authority for its "quick and effective"
1986, for instance, only 22 HHUDRs were
We thus accept them as correct. These
about specific transactions and buyer mar-
sold in the United States. In 1987, the
findings provide considerable support for
entry test, the government relies primarily
ket characteristics (§ 3.42), the conduct of
the district court's conclusion that the de-
on United States v. Waste Management,
number rose to 43, and in 1988 it fell to 38.
firms in the market (§ 3.44), market per-
Inc., 743 F.2d 976, 981-84 (2d Cir.1984).
Every HHUDR sold during this period,
fendants successfully rebutted the govern-
formance (§ 3.45), and efficiencies (§ 3.5).
This reliance is misplaced. Neither Waste
thus, increased the seller's market share by
ment's prima facie case. Because the de-
Given this acknowledged multiplicity of
two to five percent. A contract to provide
fendants also provided compelling evidence
Management nor any other case purports
relevant factors, we are at a loss to under-
on ease of entry into this market, we need
to establish a categorical "quick and effec-
multiple HHUDRs could catapult a firm
stand on what basis the government has
not decide whether these findings, without
tive" entry requirement. The Second Cir-
from last to first place. The district court
decided that "[t]o rebut the government's
found that, in this unusual market, "at any
more, are sufficient to rebut the govern-
cuit in Waste Management simply noted
prima facie case, the defendants were re-
ment's prima facie case. The foregoing
that the defendant had successfully rebut-
given point in time an individual seller's
quired to show that entry would be both
future competitive strength may not be
analysis of non-entry factors is intended
ted the government's prima facie case by
showing that entry into the Dallas/Fort
quick and effective in preventing supra-
accurately reflected." Id. at 9. While ac-
merely to underscore that, contrary to the
competitive prices." Brief for Appellants
knowledging that the HHUDR market
government's assumption, these factors are
Worth trash collection market was "easy."
at 11-12 (emphasis added). If the district
would be highly concentrated after Tam-
relevant, and can even be dispositive, in a
Id. at 983. That a defendant may success-
rock acquired Secoma, the court found that
section 7 rebuttal analysis.
fully rebut a prima facie case by showing
court in this case had focused exclusively
quick and effective entry does not mean
on entry, it might be understandable that
such concentration in and of itself would
the government would mirror that focus in
II.
that successful rebuttal requires such a
not doom competition. High concentration
showing. We are at a loss to understand
attacking the court's conclusion. The dis-
has long been the norm in this market.
The existence and significance of barri-
how the government derived from Waste
trict court, however, canvassed a number
For example, only four firms sold
ers to entry are frequently, of course, cru-
Management (where, lest the irony be
of non-entry factors that contributed to its
conclusion that the defendants had rebut-
HHUDRs in the United States between
cial considerations in a rebuttal analysis.
missed, the government lost) the proposi-
In the absence of significant barriers, a
1986 and 1989. Id. at 5-6.⁷ Nor is concen-
tion that "a defendant arguing supposed
ted the prima facie case. By ignoring
company probably cannot maintain supra-
tration surprising where, as here, a product
ease of entry can rebut the government's
these factors, the government's arguments
competitive pricing for any length of time.
against that conclusion fall wide of the
is esoteric and its market small. Indeed,
See, e.g., United States v. Falstaff Brew-
prima facie case only by clearly showing
mark.
the trial judge found that "[c]oncentration
that entry will be both quick and effective
ing Corp., 410 U.S. 526, 532-33, 93 S.Ct.
has existed for some time [in the United
[4] The district court's analysis of this
1096, 1100-01, 35 L.Ed.2d 475 (1973); Unit-
at preventing supracompetitive pricing."
States HHUDR market] but there is no
case is fully consonant with precedent and
ed States v. Syufy Enters., 903 F.2d 659,
Brief for Appellant at 14 (emphasis added).
proof of overpricing, excessive profit or
logic. The court reviewed the evidence
664 (9th Cir.1990); California v. American
That the "quick and effective" standard
any decline in quality, service or diminish-
proffered by the defendants as part of its
Stores Co., 872 F.2d 837, 842 (9th Cir.1989),
lacks support in precedent is not surpris-
ing innovation." Id. at 12.
overall assessment of future competitive-
rev'd on other grounds, - U.S. 110
ing, for it would require of defendants a
ness in the United States HHUDR market.
The second non-entry factor that the dis-
S.Ct. 1853, 109 L.Ed.2d 240 (1990); Ball
degree of clairvoyance alien to section 7,
As noted above, the court gave particular
trict court considered was the sophistica-
Memorial Hosp., Inc. v. Mutual Hosp.
which, as noted above, deals with probabili-
weight to two non-entry factors: the
tion of HHUDR consumers. HHUDRs
Ins., 784 F.2d 1325, 1335-36 (7th Cir.1986).
ties, not certainties. Although the govern-
flawed underpinnings of the government's
currently cost hundreds of thousands of
The district court in this case reviewed the
ment disclaims any attempt to impose upon
prima facie case and the sophistication of
dollars, and orders can exceed $1 million.
prospects for future entry into the United
defendants the burden of proving that en-
HHUDR consumers. The court's consider-
Id. at 8. These products are hardly trink-
States HHUDR market and concluded that,
try actually will occur, see Reply Brief for
ation of these factors was not only appro-
ets sold to small consumers who may pos-
overall, entry was likely, particularly if
Appellant at 13 n. 13, we believe that an
priate, but imperative, because in this case
sess imperfect information and limited bar
Tamrock's acquisition of Secoma were to
inflexible "quick and effective" entry re-
these factors significantly affected the
gaining power. HHUDR buyers closely
lead to supracompetitive pricing. The
quirement would tend to impose precisely
probability that the acquisition would have
examine available options and typically in-
government attacks this conclusion, assert-
such a burden. A defendant cannot real-
anticompetitive effects.
sist on receiving multiple, confidential bids
ing that, as a matter of law, the court
istically be expected to prove that new com-
With respect to the first factor, the sta-
for each order. Id. This sophistication.
should have required the defendants to
petitors will "quickly" or "effectively" en-
show clearly that entry would be "quick
ter unless it produces evidence regarding
tistical basis of the prima facie case, the
the court found, was likely to promote com-
and effective." We reject this novel and
specific competitors and their plans. Such
court accepted the defendants' argument
petition even in a highly concentrated mar
unduly onerous standard. The district
evidence is rarely available; potential com-
that the government's statistics were mis-
ket. Id. at 11.
court's factual findings amply support its
petitors have a strong interest in downplay-
7. See also supra note 3 (HHI of United States
which HHI exceeds 1800 as "highly concentral.
determination that future entry into the
ing the likelihood that they will enter a
HHUDR market before merger was 2878; De-
ed").
United States HHUDR market is likely.
given market. When the government sar-
partment of Justice regards any market in
This determination, in turn, supports the
castically "wonders how slow and ineffec-
988
908 FEDERAL REPORTER, 2d SERIES
U.S. V. BAKER HUGHES INC.
989
Cite 908 F.2d 981 (D.C. Clr. 1990)
tive entry rebuts a prima facie case," id. at
time, the Department is unlikely to chal
12, it misses a crucial point. If the totality
lenge mergers in that market
for future expansion.⁸ 731 F.Supp. at 9,
IIL
La
of a defendant's evidence suggests that
assessing the ease of entry into a mar
10. 11. Second, the court stressed that a
entry will be slow and ineffective, then the
ket, the Department will consider the
number of firms competing in Canada and
Finally, we consider the strength of the
district court is unlikely to find the prima
likelihood and probable magnitude of en-
other countries had not penetrated the
showing that a section 7 defendant must
try in response to a "small but signift
l'nited States market, but could be expect-
make to rebut a prima facie case. The
facie case rebutted. This is a far cry,
cant and nontransitory" increase in price.
ed to do so if Tamrock's acquisition of
district court simply reviewed the evidence
however, from insisting that the defendant
must invariably show that new competi-
Secoma led to higher prices. Id. at 10-11.'
that the defendants presented and conclud-
tors will enter quickly and effectively.
Guidelines § 3.3, reprinted in 4 Trade
Because the market is small, "[i]t is inex-
ed that the acquisition was not likely to
Reg.Rep. (CCH) at 20,562. In its brief,
Furthermore, the supposed "quick and
pensive to develop a separate sales and
substantially lessen competition. The
moreover, the government fails to state its
effective" entry requirement overlooks the
service network in the United States." Id.
government argues that the court erred by
own standard consistently, insisting at one
at 8. Third, these firms would exert com-
failing to require the defendants to make a
point that 11 firm that never enters is given
point that a defendant show that entry will
petitive pressure on the United States
"clear" showing. See Brief for Appellant
market can nevertheless exert competitive
be "sure, swift, and substantial." Brief for
at 13. The relevant precedents, however,
pressure on that market. If barriers to
HHUDR market even if they never actual-
Appellant at 16. Our uncertainty over the
ly entered the market. Id. at 10-11. Final-
suggest that this formulation overstates
entry are insignificant, the threat of entry
meaning and implications of "quick and
can stimulate competition in a concentrated
Iv. the court noted that there had been
the defendants' burden. We conclude that
effective" entry makes us all the more
tremendous turnover in the United States
a "clear" showing is unnecessary, and we
market, regardless of whether entry ever
resistant to the imposition of such a re-
occurs. See Falstaff Brewing, 410 U.S. at
HHUDR market in the 1980s. Secoma, for
are satisfied that the district court required
quirement. Nor has the government
532-33, 93 S.Ct. at 1100-01 (potential for
example, did not sell a single HHUDR in
the defendants to produce sufficient evi-
shown that current section 7 law is so
the United States in 1983 or 1984, but then
dence.
defendant Falstaff to enter the market
confused as to warrant the invention of a
might induce brewers in the Northeast to
lowered its price and improved its service,
The government's "clear showing" lan-
new standard.
maintain competitive prices); FTC v. Proc-
becoming market leader by 1989. Id. at 9,
guage is by no means unsupported in the
ter & Gamble Co., 386 U.S. 568, 581, 87
The government's insistence on a "quick
10. Secoma's growth suggests that com-
case law. In the mid-1960s, the Supreme
S.Ct. 1224, 1231-32, 18 L.Ed.2d 303 (1967)
and effective" entry standard only reaf-
petitors not only can, but probably will,
Court construed section 7 to prohibit virtu-
("It is clear that the existence of Procter at
firms our doubts, raised in section I of this
enter or expand if this acquisition leads to
ally any horizontal merger or acquisition.
the edge of the industry exerted considera-
opinion, about the government's approach
higher prices. The district court, to be
At the time, the Court envisioned an ideal
ble influence on the market
[The] in-
to section 7 analysis. Predicting future
sure, also found some facts suggesting dif-
market as one composed of many small
dustry was influenced by each firm's pre-
competitive conditions in a given market, as
ficulty of entry,¹⁰ but these findings do not
competitors, each enjoying only a small
dictions of the market behavior of its com-
the statute and precedents require, calls
negate its ultimate finding to the contrary.
market share; the more closely a given
petitors, actual and potential.") (emphasis
for a comprehensive inquiry. The govern-
In sum, we see no error-legal or factu-
market approximated this ideal, the more
added); cf. Byars v. Bluff City News Co.,
ment's standard would improperly narrow
al-in the district court's determination
competitive it was presumed to be. See
609 F.2d 843, 851 n. 19 (6th Cir.1979) ("If
the section 7 inquiry, channelling what
that entry into the United States HHUDR
United States v. Aluminum Co. of Am.,
entry barriers are low, the threat of poten-
should be an overall analysis of competi-
market would likely avert anticompetitive
377 U.S. 271, 280, 84 S.Ct. 1283, 1289, 12
tial competition operates as a significant
tiveness into a determination of whether a
effects from Tamrock's acquisition of Seco-
L.Ed.2d 314 (1964) ("It is the basic premise
check on monopoly power since competitors
defendant has shown particular facts.
ma. The court's determination on entry,
of [section 7] that competition will be most
will quickly enter the market if prices are
considered along with the findings dis-
vital 'when there are many sellers, none of
raised significantly."). If a firm that never
[5] Having rejected the "quick and ef-
cussed in section I of this opinion, suffices
which has any significant market share.'')
enters a market can keep that market com-
fective" entry standard itself, we turn
to rebut the government's prima facie case.
(quoting United States v. Philadelphia
petitive, a defendant seeking to rebut a
briefly to the government's more general
prima facie case certainly need not show
argument that the district court's findings
8. As the Guidelines note, "'Entry' may occur as
ers would exist after the merged firm had elimi-
firms outside the market enter for the first time
nated some of its rivals, because at that point
that any firm will enter the relevant mar-
regarding ease of entry failed to support
or as fringe firms currently in the market greatly
the remaining firms would begin to charge su-
ket.
its conclusion that the defendants had re-
expand their current capacity." Guidelines
pracompetitive prices, and the barriers that ex-
The final flaw in the proposed "quick and
butted the prima facie case. The district
§ 3.3, reprinted in 4 Trade Reg.Rep. (CCH) at
isted during competitive conditions might well
court in this case discussed a number of
20,562 n. 20 (emphasis added).
prove insignificant.").
effective" standard is its manipulability.
The adjectives "quick" and "effective" are
considerations that led it to conclude that
9. Some of these firms have already tried, but
not self-defining, and have not traditionally
entry barriers to the United States
failed, to penetrate the United States HHUDR
10. The court, for instance, noted that HHUDRs
HHUDR market were not high enough to
market. As the district court correctly noted,
are custom-made, and thus are not readily inter-
been used in the section 7 context. The
however, failed entry in the past does not neces-
changeable or replaceable. Buyers, therefore,
government's Merger Guidelines do not use
impede future entry should Tamrock's ac-
sarily imply failed entry in the future: if prices
tend to return to sellers from whom they have
the words when discussing entry, noting
quisition of Secoma lead to supracompeti-
reach supracompetitive levels, a company that
purchased in the past. 731 F.Supp. at 8. The
tive pricing. First, the court noted that at
has failed to enter in the past could become
court also found that HHUDR customers typi-
only that
least two companies, Cannon and Inger
competitive. See 731 F.Supp. at 11; cf. Cargill,
cally place great importance on assurances of
[i]f entry into a market is so easy that
Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 119
product quality and reliable future service-
existing competitors could not succeed in
soll-Rand, had entered the United States
n. 15, 107 S.Ct. 484, 494 n. 15, 93 L.Ed.2d 427
considerations that may handicap new entrants.
raising price for any significant period of
HHUDR market in 1989, and were poised
(1986) ("In evaluating entry barriers
a
court
Id. It also noted the significant economies of
should focus on whether significant entry barri-
scale involved in manufacturing HHUDRs. Id.
990
908 FEDERAL REPORTER, 2d SERIES
U.S. v. BAKER HUGHES INC.
991
Cite as 908 F.2d 981 (D.C. Clr. 1990)
Nat'l Bank, 374 U.S. 321, 363, 83 S.Ct.
dismissed the defendants' contention that
carded Philadelphia Bank's insistence
fects") (emphasis added). The more com-
1715, 1741, 10 L.Ed.2d 915 (1963)).
the post-merger market was highly compet-
that a defendant "clearly" disprove anti-
pelling the prima facie case, the more evi-
This perspective animated a series of de-
itive. Id. at 277-78, 86 S.Ct. at 1482"
competitive effect, and instead described
dence the defendant must present to rebut
cisions in which the Court stated that a
Noting that the market was "marked at the
the rebuttal burden simply in terms of a
it successfully. A defendant can make the
section 7 defendant's market share mea-
same time by both a continuous decline in
"showing." See, e.g., United States v. Ma-
required showing by affirmatively showing
sures its market power, that statistics
the number of small businesses and a large
rine Bancorporation, 418 U.S. 602, 631, 94
why a given transaction is unlikely to sub-
alone establish a prima facie case, and that
number of mergers," the Von's Grocery
S.Ct. 2856, 2874-75, 41 L.Ed.2d 978 (1974)
stantially lessen competition, or by discred-
a defendant carries a heavy burden in seek-
Court predicted that, if the merger were
lafter government established prima facie
iting the data underlying the initial pre-
ing to rebut the presumption established by
not undone, the market "would slowly but
case, "the burden was then upon appellees
sumption in the government's favor.
such a prima facie case. The Court most
inevitably gravitate from a market of many
to show that the concentration ratios,
clearly articulated this approach in Phila-
small competitors to one dominated by one
which can be unreliable indicators of actual
By focusing on the future, section 7
delphia Bank:
market behavior, did not accurately depict
gives a court the uncertain task of assess-
or a few giants, and competition would
Th[e] intense congressional concern with
the economic characteristics of the [rele-
ing probabilities. In this setting, allocation
thereby be destroyed." Id. at 278, 86 S.Ct.
of the burdens of proof assumes particular
the trend toward concentration [underly-
at 1482; see also United States v. Pabst
vant] market") (citation omitted) (emphasis
ing section 7] warrants dispensing, in
added); United States v. Citizens &
importance. By shifting the burden of pro-
Brewing Co., 384 U.S. 546, 550-52, 86 S.CL
certain cases, with elaborate proof of
1665, 1668-69, 16 L.Ed.2d 765 (1966) (acqui-
Southern Nat'l Bank, 422 U.S. 86, 120, 95
ducing evidence, present law allows both
market structure, market behavior, or
S.Ct. 2099, 2118, 45 L.Ed.2d 41 (1975) (after
sides to make competing predictions about
sition producing brewer accounting for
probable anticompetitive effects. Specif-
4.49% of nationwide beer sales violates sec-
government established prima facie case,
a transaction's effects. If the burden of
"[i]t
was
incumbent upon [the defen-
production imposed on a defendant is un-
ically, we think that a merger which pro-
tion 7; brewer's rebuttal evidence virtually
dant] to show that the market-share statis-
duly onerous, the distinction between that
duces a firm controlling an undue per-
ignored).
tics gave an inaccurate account of the ac-
burden and the ultimate burden of persua-
centage share of the relevant market,
Although the Supreme Court has not
and results in a significant increase in
quisitions' probable effects on competi-
sion-always an elusive distinction in prac-
overruled these section 7 precedents, it has
tion") (emphasis added). Without overrul-
tice-disintegrates completely. A defen-
the concentration of firms in that mar-
cut them back sharply. In General Dy-
ing Philadelphia Bank, then, the Supreme
dant required to produce evidence "clearly"
ket, is so inherently likely to lessen com-
namics, 415 U.S. at 498-504, 94 S.Ct. at
Court has at the very least lightened the
disproving future anticompetitive effects
petition substantially that it must be en-
1194-97, the Court affirmed a district court
evidentiary burden on a section 7 defen-
must essentially persuade the trier of fact
joined in the absence of evidence clearly
determination that, by presenting evidence
dant. See generally Note, 92 Harv.L.Rev.
on the ultimate issue in the case-whether
showing that the merger is not likely to
at 491 (describing impact of General Dy-
have such anticompetitive effects.
that undermined the government's statis-
a transaction is likely to lessen competition
tics, section 7 defendants had successfully
namics on section 7 jurisprudence).
substantially. Absent express instructions
374 U.S. at 363, 83 S.Ct. at 1741 (emphasis
rebutted a prima facie case. In so holding,
added). Philadelphia Bank involved a
[6] In the aftermath of General Dy-
to the contrary, we are loath to depart
the Court did not expressly reaffirm or
namics and its progeny, a defendant seek-
from settled principles and impose such a
proposed merger that would have created a
disavow Philadelphia Bank's statement
bank commanding over 30% of a highly
ing to rebut a presumption of anticompeti-
heavy burden. Sce Kaiser Aluminum &
that a company must "clearly" show that a
concentrated market. While acknowl-
tive effect must show that the prima facie
Chem. Corp. v. FTC, 652 F.2d 1324, 1340 &
transaction is not likely to have substantial
case inaccurately predicts the relevant
n. 12 (7th Cir.1981); cf. Texas Dep't of
edging that the banks could in principle
anticompetitive effects. The Court simply
transaction's probable effect on future
Community Affairs v. Burdine, 450 U.S.
rebut the government's prima facie case,
held that the district court was justified,
the Court found unpersuasive the banks'
competition. See American Stores, 872
248, 253-56, 101 S.Ct. 1089, 1093-95, 67
based on all the evidence, in finding that
evidence challenging the alleged anticom-
F.2d at 842 (defendant can rebut prima
L.Ed.2d 207 (1981) (applying similar pro-
"no substantial lessening of competition oc-
petitive effect of the merger. See id. at
facie case "through evidence demonstrat-
duction-burden-shifting analysis to employ-
curred or was threatened by the acquisi-
366-72, 83 S.Ct. at 1743-46.
ing that statistics on market share, market
ment discrimination suits under title VII,
tion." General Dynamics, 415 U.S. at 498,
concentration, and market concentration
and noting that "[t]he ultimate burden of
In United States v. Von's Grocery Co.,
94 S.Ct. at 1194.
trends portray inaccurately the merger's
persuading the trier of fact remains
384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555
probable effects on competition") (empha-
at all times with the plaintiff," id. at 253,
(1966), the Court further emphasized the
General Dynamics began a line of deci-
weight of a defendant's burden. Despite
sions differing markedly in emphasis from
sis added); cf. Waste Management, 743
101 S.Ct. at 1093); 9 J. Wigmore, Evidence
the Court's antitrust cases of the 1960s.
F.2d at 981 (defendant can rebut prima
§ 2489, at 300 (J. Chadbourn rev.ed. 1981)
evidence that a post-merger company had
only a 7.5% share of the Los Angeles retail
Instead of accepting a firm's market share
facie case "by a demonstration that the
(burden of persuasion "never shifts" away
as virtually conclusive proof of its market
merger will not have anticompetitive ef-
from plaintiff).
grocery market, the Court, citing anticom-
petitive "trends" in that market, ordered
power, the Court carefully analyzed defen-
the lower courts, has said repeatedly that the
ment whether the challenged acquisition is
the merger undone. The Court summarily
dants' rebuttal evidence.¹² These cases dis-
economic concept of competition, rather than
likely to hurt consumers, as by making it
any desire to preserve rivals as such, is the
easier for the firms in the market to collude,
11. Justice Stewart, in dissent, emphasized the
12. Judge Posner has elucidated this point:
lodestar that shall guide the contemporary
expressly or tacitly, and thereby force price
considerable amount of evidence in the record
The most important developments that cast
application of the antitrust laws, not exclud-
above or farther above the competitive level.
indicating the market's competitiveness. 384
doubt on the continued vitality of such cases
ing
the
Clayton
Act
Applied
to
cases
Hospital Corp. of Am. V. FTC, 807 F.2d 1381,
U.S. at 290-301, 86 S.Ct. at 1489-95 (Stewart, J.,
as Brown Shoe and Von's are found in other
brought under Section 7. this principle re-
1386 (7th Cir. 1986), cert. denied, 481 U.S. 1038,
cases, where the Supreme Court, echoed by
quires the district court
to make a judg.
107 S.Ct. 1975, 95 L.Ed.2d 815 (1987).
dissenting).
992
908 FEDERAL REPORTER, 2d SERIES
COMMI
Imposing a heavy burden of production
on a defendant would be particularly ano-
F.Supp. at 12. The government has given
sculpture failed to ac
us no reason to reverse that conclusion.
malous where, as here, it is easy to estab-
theme and format; (:
For the foregoing reasons, the judgment
decisionmaker was "
lish a prima facie case. The government,
of the district court is
Park Service's nubmi
after all, can carry its initial burden of
production simply by presenting market
Affirmed.
davits did not justify
to be taken from the
concentration statistics. To allow the
Affirmed.
government virtually to rest its case at
KEY NUMBER SYSTEM
that point, leaving the defendant to prove
the core of the dispute, would grossly in-
1. United States -
flate the role of statistics in actions
The National P:
brought under section 7. The Herfindahl-
abuse its discretion or
Hirschman Index cannot guarantee litiga-
capricious fashion "
tion victories." Cf. Ball Memorial Hosp.,
COMMUNITY FOR CREATIVE
without regard to the
784 F.2d at 1336 (explaining that "[m]arket
NON-VIOLENCE, et al.,
ture, that sculpture
share is just a way of estimating market
Appellants,
family was not a
power, which is the ultimate considera-
v.
symbol that accorded
tion," and noting that "[w]hen there are
format of the Christn
better ways to estimate market power, the
Manuel LUJAN, Jr., Secretary of the
on the ellipse, behind
court should use them"). Requiring a
Interior, et al.
thus refused to include
"clear showing" in this setting would move
No. 89-5218.
pageant. 5 U.S.C.A.
far toward forcing a defendant to rebut a
probability with a certainty.
United States Court of Appeals,
2. Administrative La
District of Columbia Circuit.
-507
United States 0-57
Argued May 16, 1990.
The National Parl
The appellees in this case presented the
Decided July 17, 1990.
district court with considerable evidence re-
explained the basis of
garding the United States HHUDR market.
sculpture of homeless
The court credited the evidence concerning
Action was brought challenging denial
of Christmas pageant
the sophistication of HHUDR consumers
by the National Park Service of request for
lipse, behind the Whit
and the insignificance of entry barriers, as
inclusion of a sculpture of a homeless fami-
that it did not depict a
well as the argument that the statistics
ly in Christmas pageant of peace on the
Christmas symbol.
underlying the government's prima facie
ellipse, behind the White House. Plain-
seq.
case were misleading. This evidence amply
tiff's motion for preliminary injunction was
3. Federal Civil Proc.
justified the court's conclusion that the pri-
denied, and Park Service's motions for pro-
In litigation cone
ma facie case inaccurately depicted the
tective order and summary judgment were
the National Park Ser\
probable anticompetitive effect of Tam-
granted by the United States District Court
trative Procedure Act
rock's acquisition of Secoma. Because the
for the District of Columbia, Louis F. Ober-
tain sculpture to be di
government did not produce sufficient evi-
dorfer, J., and plaintiff appealed. The
pageant, submission by
dence to overcome this successful rebuttal,
Court of Appeals, Sentelle, Circuit Judge,
inappropriate litigation
the district court concluded that "it is not
held that: (1) the Park Service did not
justify allowing a de₁
likely that the acquisition will substantially
abuse its discretion or act in an arbitrary
from the regional dires
lessen competition in the United States ei-
and capricious fashion; (2) the Park Service
Service adequately ju
ther immediately or long-term." 731
adequately explained its conclusion that the
the record materials.
13. We refer the government to its own Merger
that the Department of Justice has ignored its
seq., 706(2)(A).
Guidelines, which recognize that "[i]n a variety
own admonition. The government does not
4. Federal Civil Proc
of situations, market share and market concen-
maximize its scarce resources when it allows
tration data may either understate or overstate
statistics alone to trigger its ponderous enforce-
Discovery of ag.
the likely future competitive significance of a
ment machinery. Cf. Syufy Enters., 903 F.2d at
process is allowed in
firm or firms in the market." Guidelines § 3.2,
672 ("It is a tribute to the state of competition in
America that the Antitrust Division of the De-
es: where there has b.
reprinted in 4 Trade Reg.Rep. (CCH) at 20,561.
Although the Guidelines disclaim "slavish[ ad-
partment of Justice has found no worthier tar-
of bad faith or improp
here[nce]" to such data, id., statement, reprinted
get than this paper tiger on which to expend
examination of decision
in 4 Trade Reg.Rep. (CCH) at 20,552, we fear
limited taxpayer resources.").
only possibility for eft
THE WALL STREET JOURNAL.
On Brown V. Board of Education,
Call Him Thurgood Thomas
The NAACP board is scheduled to de-
There are nearly identical arguments
the Fourteenth Amendment, separate but
cide today whether to join the interest
about what the Brown opinion should have
equal could have been invalidated without
groups that oppose a black Supreme Court
said in Mr. Marshall's legal briefs in the
citing "Kenneth Clark's controversial doll
nominee. Benjamin Hooks has said his
case and Judge Thomas's recent speeches
studies, which could just as easily have
group would have preferred another Thur-
and law-review articles. They agreed that
been used in support of segregation as
good Marshall. The NAACP should know
the court should have based its decision
against It."
that when it comes to the Supreme Court's
on legal and constitutional sources. not so-
The court missed the forest for the
ciologists. They both referred to the Decla-
trees. "The Brown focus on environment
Rule of Law
ration of Independence's self-evident truth
overlooks the real problem with segrega-
that "all men are created equal." which fi-
tion, its origin in slavery. which was at
nally applied to blacks after the Civil War
fundamental odds with the founding princi-
By L. Gordon Crovitz
through the Fourteenth Amendment.
ples. Had Brown done so. it would have
Mr. Marshall's brief and Judge
been forced to talk about slavery. which it
Thomas's writings both cited Justice Har-
never mentions," Judge Thomas wrote. He
most important civil-rights case, Clarence
Thomas is another Thurgood Marshall.
With all the smoke cooked up by Judge
No Disagreement Hero
Thomas's critics. no one seems to have no-
Thorgood Marshall
Clarence Themas
ticed that he takes precisely the same
(As the NAACP lawyer in Brown V. Board of
(Writing in the Howard Law Journal in 1987):
broad view of the constitutional promise of
Education in 1954 arguing for a broad constitu-
The great flaw of Brown is that it did not rely
equality that Mr. Marshall as the lawyer
tional rejection or the separate-but-equal doctrine):
on Justice Hartan's dissent in Pleasy. which
arguing Brown l'. Board of Education
While the majority opinion sought to
understood well that the fundamental issue of
tried-unsuccessfully-to persuade the Su-
rationalize its holding on the basis of the state's
guidance by the Founders' constitutional
preme Court to adopt.
judgment that separation of races was
principles tay at the heart of the segregation
The 1954 case was a great victory for
conducive to public peace and order. Justice
issue Justice Hartan's Plessy opinion is a
the civil-rights movement and especially
Harlan knew all too well that the seeds for
good example of thinking in the spirit of the
for the NAACP where Mr. Marshall
continuing racial animosities had been
Founding. His arguments can be fully
worked. The justices finally declared that
planted. "Our Constitution," said Justice
appreciated only in light of the Founders'
rate but equal facilities were unconsti-
Hartan, "is colorblind, and neither knows nor
intentions. Largely as a result of the dubious
al. A filibuster in the Senate perpetu-
tolerates classes among citizens." n is the
reasoning of the post-Plessy Court. and a
Jim Crow segregation. so it was ap-
dissenting opinion of Justice Hartan, rather
national indifference to the rights of all
propriate that the court struck down these
than the majority opinion in Plessy K Ferguson,
Americans. Justice Harlen's argument that
racist laws.
that is in keeping with the scope and meaning
the Constitution is "colorblind" did not rally
of the Fourteenth Amendment.
supporters.
The problem is that Brown is a classic
example of a correct result reached by
lousy reasoning. The opinion by Chief Jus-
lan's dissent from the 1896 case that estab-
said that a better understanding of the
tice Earl Warren was based almost en-
lished the doctrine of separate but equal,
"first principles of equality and liberty"
tirely on dubious sociological data on how
Plessy v. Ferguson (see excerpts nearby)
would "lead us above petty squabbling
much better black students supposedly
Justice Harian would instead have given
over 'quotas,' 'affirmative action' and
learn when they study in the same class-
the Fourteenth Amendment its common-
race-conscious remedies of social ills."
rooms as whites. A famous footnote cites
sense reading, which is that it was in-
Once on the Supreme Court, Mr. Mar-
behavior studies in publications such as
tended to replace slavery with equality by
shall supported quotas, but be made some
the International Journal of Opinion and
forbidding the government from treating
of the same points about a colorblind Con-
Attitude Research. It's now clear that this
people differently by race. The amend-
stitution in his brief in Brown. "The roots
case was the beginning of an era of judi-
ment promised blacks all the privileges
of our American egalitarian ideal extend
cial activism that substituted shadows,
and immunities of citizenship and equal
deep into the history of the Western
penumbras and judicial social engineering
protection of the laws.
world." the brief said. "Philosophers of the
for adherence to constitutional text and
Judge Thomas wrote that if the opinion
seventeenth and eighteenth centuries pro-
original intent.
in Brown had adopted this broader view of
duced an intellectual climate in which the
JULY 31, 1991
equality of man was a central concept.
Their beliefs rested upon the basic proposi-
tion that all man are endowed with certain
natural rights."
Mr. Marshall's reference to natural
rights is important because Judge
Thomas's critics accuse him of weirdness
for using similar terms. For different rea-
sons, it's important reassurance for both
liberals and conservatives to understand
why Judge Thomas wrote about natural
rights. The reason was his search as head
of the Equal Employment Opportunity
Commission for a more enduring guaran-
tee of equality than the fleeting legal stan-
dards in Brown.
Liberals should know that Judge
Thomas is not on a goose chase for penum-
bras or emanations from the Constitution
into which he can insert his conservative
policy preferences-as Justice Marshall
too often did to enact his liberal views.
Conservatives should know that he invokes
natural rights in the service of original-in-
tent jurisprudence. His law review article,
"Toward a 'Plain Reading' of the Constitu-
tion-The Declaration of Independence in
Constitutional Interpretation," stressed
that terms must be read according to their
original meaning. Individual liberty is con-
stitutionally protected, but group rights
are not: discrimination must be punished,
but not by mandating quotas.
The NAACP's Mr. Hooks recently noted
this distinction. Judge Thomas is "not
without some good points." he said, adding
that "if a black or a woman has been indi-
vidually discriminated against or mis-
treated he'll go to the ends of the earth
to correct it."
Now it turns out there's not much dif-
ference between Justice Marshall and
Judge Thomas on the broadest issues of
civil rights. It will be fascinating to see if
the NAACP has the courage to abandon its
usual liberal allies who hope to do to Judge
Thomas what they did to Robert Bork.
The Washington Post
JULY 19, 1991
Charles Krauthammer
The greater curiosity is the charge
of judicial activism. Coming from
The history of the liberal jurispru-
Tribe, this is hilarious. Tribe is one of
dence he has spent his career justify-
Look Who's
the great defenders of the idea of
ing is the history of one judicial usur-
reading the Constitution, shall we say,
pation after another, each made over
expansively. When the liberal court of
and above and against "the power of
Discovered
the '60s and '70s-that Edison of the
Congress and of every state and local
legislature." For liberais now to
rights industry-minted new rights,
year in, year out, with Menlo Park
champion the power of every state
efficiency, he applauded. When, for
and local legislature, after having
spent 40 years championing the right
Judicial
example, Roe a Wade purported to
find the right to abortion in the Con-
of the unelected judiciary to force
states and localities to raise taxes,
stitution-or, to be more precise, in
the penumbral emanations of the Con-
reform prisons, bus children, hire by
race and permit abortion is world
Restraint
stitution-that was good constitution-
class chutzpah.
alism because it fit nicely with Tribe's
And what exactly is Thomas's of-
view that "to conscript a woman to
The life of a columnist is a feast of
carry a fetus to term within her
fense? Whether a judge calls what he
is
believes natural law or something
ironies, but rarely is one served a
a unique and most fundamental inva-
meal quite as sumptuous as the one
sion of her constitutional liberty."
else, every justice brings a certain
intellectual structure and understand-
just cooked up by Laurence Tribe,
As Judge Richard Posner writes,
ing of rights to his interpretation of
Harvard Law School professor and
Tribe's "method is to use the skills of
the Constitution. Thomas is simply
leading liberal constitutional scholar.
a lawyer to make political choices for
more ingeauous than most: He spells
On Monday, Tribe took to the New
society in the name of a fictive consti-
out what it is he appeals to-the
York Times to share with us his
tution, as if the Supreme Court really
classical tradition of natural law and
anxieties about Supreme Court nomi-
were a superlegislature and govern-
the explicit words of the Declaration
nee Clarence Thomas.
ment by lawyers had, at last, arrived."
of Independence. The nation is far
Thomas, it seems, is not a tradi-
Liberal lawyers, that is. Now that
safer entrusting its future to such a
tional conservative, meaning a judi-
liberals have lost control of the court
justice than to the kind that pulls new
cially restrained one who believes
they are shocked-shocked!-that
rights out of a hat and declares them
hat a judge's job is to interpret the
judges might go beyond the letter of
penumbral emanations.
N, not make it. It seems that Thom-
the Constitution and apply concepts
& is a more radical kind of conserva-
like natural law through which they
tive. Instead of just sticking to the
might legislate. Now that the tables
Constitution and nothing but, Thomas
are turned, liberals would like us to
ves in "natural law" as another
believe that only constitutional liter-
of rights beyond the Constitu-
alism is permitted.
And as a guide to understanding
It gets funnier. Tribe's concern is
natural law, Thomas invokes the Dec-
that Thomas "might seek to replace
laration of Independence, which, for
Roe not with a system that strength-
example, speaks of life, liberty and
ens states' rights," but one that de-
the pursuit of happiness as inalienable
nies the states' right to permit a legal
rights. Under such a theory of natural
abortion. Tribe is terribly concerned
rights, Tribe warns, a judge could ban
that "Thomas has already dismissed
everything from abortion counseling
talk of states' rights as a 'constitu-
to anal sex to minimum wage laws.
tional sideshow.'
Nothing less than the "fate of self-
It has been a while since a champi-
government in the U.S.," it seems, is
on of liberal jurisprudence stood up
threatened by Thomas's kind of judi-
for the notion of states' rights, the old
cial activism.
segregationist cry, but it is refresh-
The first oddity of this critique is
ing. And late. Where was Tribe's
that today, for the purposes of the
concern for states' rights under Roe,
Thomas nomination, a traditional con-
which effectively deprived the 50
servative seems to be a good conser-
states of any say in the matter of
vative. Of course, the last time a
abortion?
principled judicial restraint conserva-
Tribe, born again defender of
tive, Robert Bork, was nominated for
states' rights, warns darkly that with
the court, Tribe led the pack that
the Thomas nomination "the power of
savaged him. But never mind.
Congress and of every state and local
legislature [is] hanging in the bal-
ance." It is touching that Tribe should
be so concerned with judicial en-
croachment on legislative powers.
Only four years ago he was ridiculing
the idea of "judicial restraint" as a
"political buzzword."
572
905 FEDERAL REPORTER, 2d SERIES
U.S. v. LONG
as 909 F2d 1972 (D.C. Clr. 1990)
1573
ceptional AFL-CIO's plea to be heard on
1. Criminal Law 1081(6)
6. Weapons is
the merits in this case. For failure to meet
District court's ministerial act of dock-
Although defendant can use a firearm
proceedings and thus favors joint trial of
codefendants.
a mandatory time limit, one our precedent
eting tardy notice of appeal was not an
without actively employing it, Government.
impels us to apply on our own initiative, see
implicit grant by the district court of an
at a minimum, must show that a particular
12. Criminal Law >622.2(11)
Microwave Communications, 515 F.2d at
extension of time to file the notice of ap-
defendant has actually or constructively
Interest in efficient and expeditious
390 n. 25, AFL-CIO's petition for review is
peal. F.R.A.P.Rule 4(b), 28 U.S.C.A.
possessed a firearm in order to prove that
proceedings must never be allowed to
he has used it in connection with drug
eclipse the defendant's right to a fair trial,
Dismissed.
2. Criminal Law -1181.5(3)
transaction. 18 U.S.C.A. § 924(c)(1).
and a joint trial is inappropriate when the
Where notice of appeal was untimely,
7. Conspiracy -41
evidence against one defendant is far more
KEY NUMBER SYSTEM
court would remand case to district court
Defendant involved in conspiracy can
damaging than the evidence against the
other.
for determination of whether defendant
be punished as a principal of the offense of
should be granted 30-day extension of peri-
use of a firearm in connection with a drug
13. Criminal Law -1166(6)
od for filing notice of appeal. F.R.A.P.
offense, regardless of whether he has pos-
In view of abundant evidence implicat-
Rule 4(b), 28 U.S.C.A.
sessed firearm, based on the rule of vica-
ing defendant, such as the fact that he was
rious liability for coconspirators. 18 U.S.
surrounded by narcotics and related para-
UNITED STATES of America
3. Criminal Law -1144.13(3), 1159.2(1, 7)
C.A. § 924(c)(1).
phernalia when he was arrested, he was
Overturning a jury's determination of
8. Weapons 1
v.
not prejudiced by joint trial on theory that
guilt on the ground of insufficient evidence
Where Government proves that defen-
evidence against codefendant was much
Keith D. LONG, Appellant.
is not a task which court will undertake
dant has aided or abetted another person's
greater.
lightly; appellate court owes tremendous
UNITED STATES of America
use of firearm in connection with drug
deference to jury verdict, and must consid-
offense, defendant may be punished as a
v.
er the evidence in the light most favorable
principal regardless of whether the defen-
Appeal from the United States District
Sonia E. MAYFIELD. Appellant.
to the Government and affirm the judg.
dant has himself actually or constructively
Court for the District of Columbia (Crimi-
ment if any rational trier of fact could have
possessed the firearm. 18 U.S.C.A. §§ 2,
nal Nos. 88-00444-02 and 88-00444-01).
Nos. 89-3096, 89-3105.
found the essential elements of the crime
924(c)(1).
Nicholas G. Karambelas with whom Ste-
United States Court of Appeals,
beyond a reasonable doubt.
9. Criminal Law =419(2.10)
ven R. Kiersh was on the brief, for appel-
District of Columbia Circuit.
lunt in 89-3096.
4. Weapons 17(4)
Evidence that person who called upart.
Argued April 16, 1990.
Defendant's conviction for using a
ment while officers were conducting search
Ronny E. Jones, for appellant in 89-3105.
weapon in connection with drug offense
and making arrests asked whether a partic-
Decided June 22, 1990.
Eric M. Acker, Asst. U.S. Atty., with
ular person "still had any stuff" and stated
was not supported by evidence that defen-
whom Jay B. Stephens, U.S. Atty., John R.
that she was looking for "a fifty" was not
dant was arrested in room in which drugs
Fixher, Helen M. Bollwerk, Elizabeth Tros-
evidence of an assertion, 80 that evidence
Defendants were convicted in the Unit-
were found and in which a revolver was
man, and Geoffrey Bestor, Asst. U.S. At-
ed States District Court for the District of
found some 10 to 15 feet away from him, in
of that telephone call was not hoursay.
lyn., were on the brief, for appellee.
Fed.Rules Evid.Rule 801(c), 28 U.S.C.A.
Columbia, Stanley S. Harris, J., of drug
the absence of evidence that defendant
offenses and they appealed. The Court of
owned the gun or knew of its existence or
10. Criminal Law
1169.1(9)
Before SILBERMAN, SENTELLE, and
that he leased or lived at the premises. 18
Officer's testimony regarding tele-
THOMAS, Circuit Judges.
Appeals, Clarence Thomas, Circuit Judge,
held that: (1) ministerial act of docketing
U.S.C.A. § 924(c)(1).
phone call which was received at apartment
while officers were searching it and muk-
Opinion for the court filed by Circuit
defendant's tardy notice of appeal was not
Judge THOMAS.
an implicit grant of extension of time by
5. Weapons 17(4)
ing arrests was not unfairly prejudicial on
the district court for taking the appeal; (2)
Defendant's conviction for use of a
theory that it was unreliable because the
Concurring opinion filed by Circuit
evidence was insufficient to sustain convic-
gun in connection with a drug transaction
officer testified from memory and because
Judge SENTELLE.
tion for use of a weapon in connection with
could not be supported on evidence which
the declarant was unavailable for crome-ex-
a drug offense; and (3) testimony concern-
connected defendant to the drugs and
amination. Fed.Rules Evid.Rule 40%, 28
CLARENCE THOMAS, Circuit Judge:
showed that the distribution of the drugs
U.S.C.A.
ing telephone call received by officers at
Sonia Mayfield and Keith Long appeal
apartment while arrests were being made
was facilitated by the gun, on theory that
11. Criminal Law
622
their convictions for possessing in excess
was not hearsay.
defendant derived benefit from the gun
Judicial system has strong and legit-
of five grams of cocaine base with intent to
and thus "used" it. 18 U.S.C.A.
distribute,
21
Affirmed in part, reversed in part, and
imate interest in efficient and expeditious
241(b)(1)(B)(ii),' and using or carrying 841(a), a
U.S.C.
§§
remanded.
§ 924(c)(1).
See publication Words and Phrases
1. Both Mayfield and Long were charged with
Sentelle, Circuit Judge, filed a concur-
for other judicial constructions and
possessing in excess of fifty grams of URSINE
, 841(b)(1)(A)(iii). The jury, however, convict.
base with intent to distribute, 21 U.S.C.
ed them of the lesser included offense of pos-
ring opinion.
definitions.
/4
905 FEDERAL REPORTER, 2d SERIES
U.S. V. LONG
firearm during and in relation to a drug
Cite as 905 F.2d 1572 (D.C. Ctr. 1990)
1575
As Mayfield correctly notes, however,
trafficking crime, 18 U.S.C. § 924(c)(1). In
serve vital interests of efficiency and finali-
rule 4(b) does not absolutely bar criminal
ty in the administration of justice, and are
by sufficient evidence, requires some elabo-
addition, Mayfield appeals her conviction
appeals in which the required notice is filed
not designed merely to ensnare hapless liti-
ration of the pertinent facts. On the eve-
for knowingly opening or maintaining a
more than ten days after entry of the judg-
gants. As this court has noted when con-
ning of November 16, 1988, pursuant to a
place for the purpose of distributing or
ment. The rule allows the district court,
sidering a civil appeal time-barred by rule
valid search warrant, several officers of
using a controlled substance, 21 U.S.C.
with or without motion and notice, to ex-
4(a): "The Federal Rules of Appellate Pro-
the D.C. Metropolitan Police Department
§ 856(a)(1). Mayfield's appeal is not prop-
tend the period for filing a notice of appeal
cedure impose strict requirements for the
forced their way into a one-room basement
erly before this court. Thus, we do not
for an additional thirty days "[u]pon a
timely
filing
of
appeals
[W]e
decline
apartment where Mayfield lived. They
consider the merits of her arguments, and
showing of excusable neglect."
to ... subvert the plain words and meaning
found Long emerging from behind a cur-
remand her case to the district court.
Mayfield concedes that the district court
of the federal rules. This court has never
tain that separated the back of the room
Long raises three challenges to his convic-
did not explicitly grant her a thirty-day
had the authority to revamp these rules."
from the front. Tr. I at 23-24, 25, 68; Tr.
tions. First, he asserts that there is insuf-
extension to file her notice of appeal. She
Polylok Corp. v. Manning, 793 F.2d 1318,
II at 8. The police arrested Long and three
ficient evidence to support his conviction
urges us, however, to hold that the district
1322 (D.C.Cir.1986).
other individuals, including Mayfield," and
for using or carrying a firearm in relation
court implicitly granted the extension by
[2] We therefore remand this case to
began a search for evidence of drug-related
to a drug trafficking crime. Second, he
"accepting" her untimely notice of appeal.
the district court for a determination of
activity.
contends that the trial judge erred in ad-
She notes that the Eighth Circuit has, on
whether Mayfield should be granted the
mitting into evidence the substance of an
occasion, followed this approach. See
thirty-day extension permitted by rule 4(b).
The search was hardly arduous; the one-
incriminating telephone conversation. Fi-
United States v. Williams, 508 F.2d 410,
Mayfield will thus have an opportunity to
room apartment brimmed with evidence.
nally, he asserts that the trial judge abused
410 (8th Cir.1974) (per curiam) ("We con-
present to the district court whatever evi-
In the front part of the apartment, the
his discretion by declining to sever Long's
strue the district court's acceptance of the
dence of excusable neglect she can muster.
police found rock cocaine, a razor blade,
trial from Mayfield's. We are persuaded
notice of appeal as a grant of additional
This resolution places us squarely in line
and a butane torch lying on a table. They
by Long's first argument and reverse his
time to file pursuant to Fed.R.App.P. 4(b)
with the majority of appellate courts that
found more rock cocaine and a scale on a
even though no formal order is entered to
firearms conviction. Finding no merit in
have considered this issue. See, e.g., Unit-
table behind the curtain. The search also
that effect."); United States v. Mills, 430
his second and third contentions, however,
ed States v. Golding, 739 F.2d 183, 184 (5th
yielded a large amount of cash, cocaine in
F.2d 526, 528 (8th Cir.1970) (same), cert.
we affirm his narcotics conviction.
Cir.1984) (per curiam); United States v.
denied, 400 U.S. 1023, 91 S.Ct. 589, 27
powder form, several pipes, a number of
Lucas, 597 F.2d 243, 245-46 (10th Cir.1979)
L.Ed.2d 636 (1971).
butane torches, packaging materials, and a
(per curiam); United States v. Stolarz, 547
I.
F.2d 108, 111-12 (9th Cir.1976), cert. de-
significant supply of dextrose, a cutting
[1] We decline Mayfield's invitation to
equate the ministerial act of docketing a
nied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d
agent. Finally, the police found a function-
The Federal Rules of Appellate Proce-
119 (1977).4 Even the Eighth Circuit has
al but unloaded .22 caliber revolver be-
dure require that parties wishing to appeal
tardy notice of appeal with an implicit
grant of an extension of time by the dis-
cut back significantly on its earlier, permis-
tween the cushions of a sofa in the front
in criminal cases file a notice "in the dis-
trict court. Docketing a notice of appeal is
sive attitude toward rule 4(b). See United
part of the room. Although the barrel of
trict court within 10 days after the entry of
a clerical task, and does not require the
States v. Anna, 843 F.2d 1146, 1147 (8th
the gun was hidden, the handle protruded
the judgment or order appealed from."
approbation of the trial judge. It thus
Cir.1988) (terming the Circuit's earlier prac-
from the cushions. The police found no
Fed.R.App.P. 4(b). The district court dock-
presents no occasion for a party to make a
tice "discretionary" and declining to follow
other firearms or any ammunition in the
eted the judgment against Mayfield on
showing of excusable neglect, which is a
it, instead remanding case to district court
apartment.
June 5, 1989; she filed notice of this appeal
prerequisite for obtaining the thirty-day ex-
for decision on excusable neglect).
on June 16, 1989, eleven days later. Citing
In addition to his narcotics conviction,
tension contemplated by rule 4(b). Adopt-
rule 4(b), and stressing that it is "mandato-
II.
Long was convicted of violating 18 U.S.C.
ing the fiction that the district court implie-
ry and jurisdictional," United States v.
itly granted the extension of time would
Consideration of Long's first claim, that
§ 924(c)(1). This statute, in pertinent part,
Robinson, 361 U.S. 220, 226, 80 S.Ct. 282,
undoubtedly expedite the final adjudication
his firearms conviction was not supported
provides that "[w]hoever, during and in
287, 4 L.Ed.2d 259 (1960), the government
of Mayfield's case. But the unambiguous
relation to any drug trafficking crime
urges us to dismiss Mayfield's appeal out-
language of the rule forecloses this short-
3. But cf. United States v. Hoye, 548 F.2d 1271,
right.
cut.2 The time limits specified in the rules
1273 (6th Cir.1977) (per curiam) ("[W]here a
glect, the court concluded that "based on the
document is filed within the 40-day period
facts present here the district court would find
sessing in excess of five grams with intent to
which represents a clear assertion of an intent
excusable neglect," and proceeded to consider
v. Gibson, 568 F.2d 111, 112 (8th Cir.1978) (per
distribute.
to appeal, courts of appeals have the power to
the merits of the case. See United States v.
curiam) (concluding that trial judge implicitly
found excusable neglect when he granted mo-
overlook irregularities where fairness and jus-
Reyes, 759 F.2d 351, 354 (4th Cir.), cert. denied,
2. There may be cases in which an implicit find-
tice so require."). Having no idea of the source
474 U.S. 857, 106 S.Ct. 164, 88 L.Ed.2d 136
ing of excusable neglect would be less of a
tion for leave to appeal in forma pauperis dur-
of this alleged "power to overlook" the clear
(1985). Because Mayfield has proffered no ex-
fiction than here. When a trial judge takes
ing thirty-day discretionary period). Because
some explicit action with respect to a tardy
Mayfield has not specified any action taken by
language proach. of rule 4(b), we reject the Hoye ap-
cuse for her delay, the Reyes approach, even
assuming that it can be squared with the lan-
appeal, the judge at a minimum is aware of the
the district judge in her case that might consti-
appeal; under these circumstances, his action
tute an implicit extension of time, we need not
4. The Fourth Circuit, in one case, took a novel
guage of rule 4(b), is not available to us here.
could arguably be construed as an implicit find.
consider the merits of the Gibson approach.
approach to this question. After noting the op-
ing of excusable neglect. See, e.g., United States
tion of remanding an untimely appeal to the
5. The other two individuals, indicted with Long
district court for a decision on excusable ne-
and Mayfield, pleaded guilty to possession of a
controlled substance, 21 U.S.C. § 844(a).
905 FEDERAL REPORTER, 2d SERIES
U.S. v. LONG
1577
Cite - 905 F.2d 1572 (D.C. Clr. 1990)
uses or carries a firearm, shall, in
There is no evidence suggesting that Long
prove that he has "used" it." Cf. United
addition to the punishment provided for
viction of a defendant in the absence of any
was headed for the gun, or that he even
States v. Joseph, 892 F.2d 118, 126 (D.C.
such crime be sentenced to imprison-
indicia of possession would stretch the
knew of its existence. The gun itself was
Cir.1989) (violation of section 924(c)(1) pos-
ment for five years." Id. (emphasis add-
unregistered, and yielded no fingerprints.
sible "[w]hen a person 'has a present abili-
meaning of "use" beyond the breaking
ed). Long argues that the evidence ad-
Nor did Long own, lease, or live at the
ty to exercise dominion and control over'
point. We readily acknowledge that the
duced at trial was insufficient to support a
a firearm") (emphasis added) (quoting
word "use" is expansive, but the difficulty
jury finding that he "use[d] or carrie[d]" a
premises on which the gun was found.¹
United States v. Evans, 888 F.2d 891, 895
of pinpointing the outer limits of its mean-
firearm within the meaning of section
There was no evidence, in short, that the
924(c)(1). We agree.
firearm was ever either actually or con-
(D.C.Cir.1989), cert. denied, - U.S.
ing does not imply that no such limits exist.
structively in Long's possession. Although
110 S.Ct. 1325, 108 L.Ed.2d 500 (1990));
To affirm Long's conviction for "using" the
(3) Overturning a jury's determination
United States v. Henry, 878 F.2d 937, 944
revolver in the sofa would be to concede
the gun was partially visible between the
of guilt on the ground of insufficient evi-
(6th Cir.1989) (violation of section 924(c)(1)
that the word "use" has no discernible
dence is not a task that we undertake light-
sofa cushions, its visibility, without more,
possible "if it reasonably appears that the
boundaries. That prospect is particularly
ly. As an appellate court, we owe tremen-
does not establish that any particular per-
firearms found on the premises controlled
troubling where, as here, we are constru-
ing a criminal statute.
dous deference to a jury verdict; we must
son either actually or constructively pos-
or owned by a defendant and in his actual
consider the pri lence in the light most fa-
sessed the gun.
or constructive possession are to be used
The government has cited numerous
vorable to the government, see Glasser ".
to protect the drugs or otherwise facilitate
cases in which this court and its sister
United States, 315 U.S. 60, 80, 62 S.Ct.
[5] The government argues that Long
a drug transaction") (emphasis added);
circuits have upheld the firearms convic-
457, 469, 86 L.Ed. 680 (1942), and affirm
"used" the gun because he committed a
United States v. Meggett, 875 F.2d 24, 29
tions of defendants found to have "used"
the judgment if "any rational trier of fact
drug offense facilitated by the gun. The
(2d Cir.) ("Possession of a gun, even if it is
guns in a vast array of circumstances.
could have found the essential elements of
logic, in essence, is this: Long was connect-
concealed, constitutes 'use' if such posses-
These cases are inapposite. Our problem
the crime beyond a reasonable doubt,"
ed to the drugs; the distribution of the
sion is an integral part of the predicate
here is not with the notion that there are
Jackson v. Virginia, 443 U.S. 307, 319, 99
drugs was facilitated by the gun; since
offense and facilitates the commission of
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Long thus derived benefit from the gun, he
that offense.") (emphasis added), cert. de-
many ways in which a defendant can "use"
We do not, however, fulfill our duty
"used" it. We reject the notion that a
nied, - U.S. 110 S.Ct. 166, 107
a firearm in relation to a drug trafficking
through rote incantation of these principles
loose, transitive relationship of this type is
L.Ed.2d 123 (1989); United States v. Ma-
crime, but rather with the notion that in
sufficient to show that a person "used" a
tra, 841 F.2d 837, 840-41 (8th Cir.1988)
order to prove such "use," the government
followed by summary affirmance. We
gun. This approach would obliterate any
("[N]one of the guns was in the actual
need not show any nexus at all between a
must ensure that the evidence adduced at
possession of the defendant, but all were
particular drug offender and the firearm
trial is sufficient to support a verdict as a
remaining limits on the meaning of the
matter of law. A jury is entitled to draw a
under his control.") (emphasis added);
that he allegedly "used." As noted above,
word "use" in section 924(c)(1).
vast range of reasonable inferences from
United States v. Stewart, 779 F.2d 538,
the record in this case is devoid of any
[6-8] The word has been losing its con-
540 (9th Cir.1985) (violation of section
evidence linking Long to the revolver found
evidence, but may not base a verdict on
mere speculation.
ventional, active connotation for some time,
924(c)(1) possible "[if the firearm is with-
in the sofa, other than his presence in the
as courts have held that narcotics offend-
in the possession or control of a person
apartment and involvement with the nar-
[4] Having carefully reviewed the
who commits an underlying crime as de-
cotics. In all the cases cited by the govern-
record in this case, we conclude that the
ers can "uno" guns simply by possessing
fined by the statute") (emphasis added);
ment, some nexum was established through
government failed to provide any evidence
them in the vicinity of drugs. Although a
United States v. LaGuardia, 774 F.2d 317,
an explicit or implicit showing of actual or
to support a reasonable inference that
defendant can "use" a firearm without ac-
321 (8th Cir.1985) ("Section 924(c)(1) reach-
constructive possession.
Long "used" the revolver. When arrest-
tively employing it, the government, at a
es the possession of a firearm which in any
ed, Long was ten to fifteen feet away from
minimum, must show that a particular de-
In United States v. Anderson, 881 F.2d
manner facilitates the execution of a felo-
the revolver, and was emerging from be-
fendant has actually or constructively pos-
1128 (D.C.Cir.1989), for example, we upheld
ny.") (emphasis added). Upholding the con-
hind the curtain that divided the room.
sessed a particular firearm in order to
the firearms conviction of appellant Green-
8. This analysis assumes a situation in which the
6. There is no evidence that Long ever actually
government prosecutes a defendant for violat-
U.S. 110 S.Ct. 117, 107 L.Ed.2d 79 (1989):
7. Mayfield testified at trial that Long visited her
or constructively "carried" the revolver, and
apartment two to three times per week. Tr. II
ing the statute as a principal. A defendant who
see also Pinkerton v. United States, 328 U.S. 640,
hence we are not called upon to construe that
has not actually or constructively possessed a
646-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489
at 92. Long did not live there, however. Even
word. Instead, we focus exclusively on the stat-
assuming that he visited the apartment to carry
firearm, of course, might nevertheless be pun-
(1946) (coconspirator liable for all foreseeable
utory term "use," which we believe is properly
ished as a principal if the government can prove
substantive offenses committed in furtherance
out drug transactions, there was no evidence
susceptible of a broader interpretation than
that he exercised the degree of dominion and
that he has conspired in or aided or abetted a
of the conspiracy).
"carry." Cf. United States v. Feliz-Cordero, 859
control over the premises that would support an
section 924(c)(1) offense.
Similarly, where the government proves that
F.2d 250, 253-54 (2d Cir.1988) (legislative histo-
ry of section 924(c)(1) does not suggest that
inference of constructive possession over their
Thus, a defendant involved in a conspiracy,
a defendant has aided or abetted another per-
"carry" should be construed as having any
contents. This court has emphasized that con-
regardless of whether he has possessed a fire-
son's "use" of a firearm, the defendant may be
meaning beyond its literal meaning. and
structive possession "should not be lightly im-
arm, can be punished as a principal based on
punished as a principal regardless of whether
"[therefore, a person cannot be said to 'carry' a
puted to one found In another's apartment or
the rule of vicarious liability for coconspirators.
the defendant himself has actually or construc.
firearm without at least a showing that the gun
home." United States v. Holland, 445 F.2d 701,
See United States v. Rosado, 866 F.2d 967, 968 n.
lively possessed the firearm. 18 U.S.C. 5 2.
is within reach during the commission of the
703 (D.C.Cir.1971).
1. 970 (7th Cir.) (defendant liable under section
In this case, the government has not proved a
drug offense").
924(c)(1) where coconspirator used firearm dur-
conspiracy or aiding or abetting. Long's poten-
ing drug trafficking offense), cert. denied, -
tial liability for using the gun is based entirely
on his own actions.
78
905 FEDERAL REPORTER, 2d SERIES
U.S. V. LONG
1579
Cite M 905 F.2d 1572 (D.C. Clr. 1990)
wood, who was arrested inside the closet of
had kept them overnight in an apartment,
tion that an individual can be convicted for
come around to pick up the "fifty." Again,
a room adjoining a second room where
"within reach and available to protect him
"using" a gun that he neither actually nor
the officer answered yes. Tr. I at 80-81.
guns were found. Our holding, however,
during his ongoing crime of possession
constructively possessed. Evidence of pos-
was premised on our conclusion that "there
with intent to distribute cocaine." Id. at
session, or evidence from which possession
Before trial, Long's counsel moved in
was substantial evidence connecting Green-
can reasonably be inferred, is a prerequi-
limine to exclude evidence of this telephone
895 (emphasis added). This evidence al-
wood to the bedroom in which the guns
site to a conviction for "use" under section
conversation as inadmissible hearsay. The
lowed the jury to infer constructive posses-
were found." Id. at 1141. Of paramount
sion: "An object is 'accessible' or 'within
924(c)(1).
trial judge denied the motion. See Tran-
importance, the government had introduced
script of Suppression Hearing (Tr. Supp.
reach,' as commonly understood, if a party
We decline to decide the case so narrow-
evidence that Greenwood lived in the apart-
Hrg.) at 11. At trial, the police officer who
is not just near it, but has a present ability
ly, however, as to reveal no principle appli-
ment; this evidence justified an inference
had taken the call testified about the con-
to exercise dominion and control over it
cable beyond these facts. The concurrence
that Greenwood constructively possessed
versation. Tr. I at 80-81. In this appeal,
[T]here was sufficient evidence from which
argues that we should hold only that "[o]n
the apartment's contents. In addition,
Long renews his hearsay challenge to the
the jury could conclude that [the appellant]
the present facts, the government did not
there was testimony that Greenwood had
introduction of the officer's testimony.
had something approaching actual роввея.
offer evidence of possession or any other
the keys to the particular bedroom in which
sion of the gun during the commission of
evidence that Long had used the firearm."
Although Long concedes that the caller
the guns were found, and that the police
the predicate drug offense." Id. at 895.
Conc. op. at 1582 (emphasis modified).
did not expressly assert that he was in-
found Greenwood's wallet and photographs
This analysis, however, begs the central
volved in drug distribution, he argues that
in that bedroom. See id. at 1141.
Other courts have upheld section
924(c)(1) convictions where the nexus was
question in the case: was there sufficient
her questions contain implicit assertions
Anderson, thus, stands for the unexcep-
tional proposition that a jury can reason-
established in a variety of ways. See, e.g.,
evidence to show that Long "used" the
about his involvement. Long contends that
gun? The government obviously thought
it is irrelevant that these alleged assertions
ably infer that a person who exercises do-
United States v. Munoz-Fabela, 896 F.2d
there was. It argued strenuously in this
were couched in question form, since the
minion and control over given premises
908, 911 (5th Cir.1990) (firearm, registered
in another person's name, was on floor-
appeal that Long's connection to the drugs
questions plainly revealed assumptions that
constructively possesses contraband found
board of defendant's car, within view and
and his presence in the room with the gun
are the functional equivalent of direct as-
on those premises. See also United States
reach of defendant); United States v.
amounted to "use" of the gun. Deciding
sertions. Long maintains that the caller,
v. Alvarado, 882 F.2d 645, 654 (2d Cir.1989)
(affirming section 924(c)(1) conviction
Grant, 545 F.2d 1309, 1311-12 (2d Cir.1976)
whether there was sufficient evidence to
through her questions, in effect asserted
where guns were found in defendant's resi-
support Long's conviction for "using" a
that "Keith has crack and sells it out of
(firearms were found in rooms of social
Mayfield's apartment." He argues that
dence), cert. denied, - U.S. 110
club; defendant lived there, managed the
gun necessarily entails some decision about
S.Ct. 1114, 107 L.Ed.2d 1021 (1990); Unit-
club, and had keys to the rooms), cert.
what it means to "use" a gun. Despite the
the government introduced this testimony
ed States v. Robinson, 857 F.2d 1006, 1010
denied, 429 U.S. 1103, 97 S.Ct. 1130, 51
concurrence's qualms about setting a mini-
to prove the truth of precisely these asser-
(5th Cir.1988) (same); United States v. Ma-
L.Ed.2d 554 (1977). A common theme
mum threshold for finding "use" within the
tions, and that the testimony, thus, should
tra, 841 F.2d 837, 840-41 (8th Cir.1988)
unites these cases and distinguishes them
meaning of section 924(c)(1), this case
have been excluded as hearsay.
(same).
from the present one. In each case, the
forces us to set such a threshold, either
Hearsay is an out-of-court statement of-
Similarly, we have held that evidence re-
defendant's actual or constructive posses-
explicitly (as we have done) or implicitly.
fered to prove the truth of the matter
sion of a firearm was indicated by one or
asserted in the statement. Fed.R.Evid.
garding a past connection between a defen-
III.
dant and a firearm establishes a sufficient
more of several factors: close physical
801(c). As a threshold matter, then, Long
proximity to the firearm, possessory inter-
Having reversed Keith Long's conviction
must show that the evidence he seeks to
nexus to support a conviction under section
est in the firearm, or dominion and control
on the firearms charge, we now consider
924(c)(1). In United States v. Evans, 888
exclude as hearsay is a "statement," which
over the premises on which the firearm
his two remaining challenges, which per-
the rule defines as "an oral or written
F.2d 891 (D.C.Cir.1989), cert. denied, -
U.S. 110 S.Ct. 1325, 108 L.Ed.2d 500
was located.
tain to the narcotics charge.
assertion." Fed.R.Evid. 801(a)(1). Al-
(1990), we upheld the firearms conviction of
[9] During the search of Mayfield's
though the rule does not define "asser-
Lest this opinion foster confusion in an
a drug trafficker arrested across town
already unsettled area, we emphasize its
apartment, the telephone rang, and a police
tion," the accompanying advisory commit-
from the apartment where the relevant
narrowness: we reverse Long's conviction
officer answered it. An unidentified fe-
tee note stresses that "nothing is an asser-
guns were found.' In that case, however,
because the government failed to adduce
male voice asked to speak with "Keith."
tion unless intended to be one." Fed.R.
the government introduced testimony that
any evidence suggesting that Long actual-
The officer replied that Keith was busy.
Evid. 801 advisory committee note (empha-
the defendant had brought the guns and
ly or constructively possessed the revolv-
The caller then asked if Keith "still had
sis added).
drugs to Washington from New York and
er.¹⁰ We simply cannot accept the proposi-
any stuff." The officer asked the caller
The caller's words, thus, cannot be char-
what she meant, and the caller responded
9. Although Evans construed the "carry" compo-
acterized as an "assertion," even an implied
the firearm (2) during and in relation to a drug
nent of the "usel ] or carr(y)" requirement, its
"a fifty." = The officer said "yeah." The
trafficking crime. A person can possess a gun
one, unless the caller intended to make
analysis applies equally to the term "use."
without either "using" It or using it "during and
caller then asked whether "Mike" could
such an assertion." While Long's criticism
10. We do not mean to imply that possession of a
in relation 10" a given crime. See, E.g., United
States v. Feliz-Cordero, 859 F.2d 250, 254 (2d
not used during or in relation to drug traffick.
firearm by a drug trafficker is invariably suffi-
ing offense).
12. The advisory committee note's discussion of
cient for a conviction under section 924(c)(1).
Cir.1988) (firearm found in dresser drawer was
the intent requirement focuses on situations in
The statute requires that the defendant (1) use
not accessible to drug traffickers and thus was
11. A "fifty" refers to a bag of crack worth fifty
which an Implied assertion arises from conduct,
dollars. See Tr. I at 90; Tr. II at 50, 56.
as opposed to words. The note appears to as-
80
905 FEDERAL REPORTER, 2d SERIES
U.S. v. LONG
Cite as 905 F.2d 1572 (D.C. Ctr. 1990)
1581
of a rigid dichotomy between express and
dence to suggest that the caller, through
[11, The judicial system has a
implied assertions is not without merit, it
her questions, intended to assert that he
strong and legitimate interest in efficient
no dearth of evidence against Mayfield.
misses the point that the crucial distinction
was involved in drug dealing. The caller
and expeditious proceedings. and hence the
She lived in the apartment where the drugs
under rule 801 is between intentional and
may indeed have conveyed messages about
system favors the joint trial of codefend-
were found, which at a minimum suggests
unintentional messages, regardless of
Long through her questions, but any such
ants. See United States 1. Manner, 887
some connection to the drugs and the fire-
whether they are express or implied. It is
F.2d 317, 324 (D.C.Cir.1989). cert. denied,
arm discovered there. There was, how.
messages were merely incidental and not
difficult to imagine any question, or for
intentional. See United States v. Zenni,
- U.S. 110 S.Ct. 879. 107 L.Ed.2d
ever, abundant evidence implicating Long
that matter any act, that does not in some
492 F.Supp. 464, 469 (E.D.Ky.1980) (phone
962 (1990); United States 1. Hines, 455
as well: when arrested, he was surrounded
way convey an implicit message. One of
calls from bettors, answered by police dur-
F.2d 1317, 1334 (D.C.Cir.1971), cert. de-
by narcotics and related paraphernalia.
the principal goals of the hearsay rule is to
ing raid of illegal gambling establishment,
nied, 406 U.S. 975, 92 S.Ct. 2427, 32
This case involves nowhere near the "gross
exclude declarations when their veracity
L.Ed.2d 675 (1972). Of course. this interest
disparity" of evidence required before we
were not assertions and therefore were
cannot be tested through cross-examina-
must never be allowed to eclipse a defen-
will hold that a district court has abused its
outside scope of hearsay rule). Long thus
fails to satisfy the intent component of run
dant's right to a fair trial. ^ joint trial is
discretion in denying a motion to sever.
tion. When a declarant does not intend to
Haldeman, 559 F.2d at 72.
communicate anything, however, his sincer-
801, which "place[s] the burden upon the
inappropriate "when the evidence against
ity is not in question and the need for
party claiming that the intention existed."
one defendant is 'far more damaging' than
cross-examination is sharply diminished.
Fed.R.Evid. 801 advisory committee note;
the evidence against the moving party."
For the foregoing reasons, we remand
Thus, an unintentional message is pre-
accord United States v. Hensel, 699 F.2d
United States v. Bruner, 657 F.2d 1278,
Sonia Mayfield's case to the district court
sumptively more reliable. See United
18, 31 (1st Cir.), cert. denied, 461 U.S. 958,
1290 (D.C.Cir.1981) (quoting United States
to determine whether her tardiness in filing
States v. Groce, 682 F.2d 1359, 1364 (11th
103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983). Be-
v. Mardian, 546 F.2d 973, 977 (D.C.Cir.
a notice of appeal resulted from excusable
Cir.1982); 4 J. Weinstein & M. Berger,
cause the caller's questions were nonasser-
1976) (en banc)); see also United States v.
neglect and, if so, whether to accept her
Weinstein's Evidence 1801(a)[01] (1988).
tive, they fall outside the scope of the
Slade, 627 F.2d 293, 309-10 (1).C.Cir.), cert.
notice of appeal, which was filed within the
Evidence of unintended implicit assertions
hearsay rule, and the trial judge did not err
denied, 449 U.S. 1034, 101 S.Ct. 608, 66
thirty-day discretionary period. We re-
is "[a]dmittedly ... untested with respect
in admitting the testimony concerning the
L.Ed.2d 495 (1980). In such rituations, the
verse Keith Long's conviction for using or
to the perception, memory, and narration
questions."
jury may not be able to compartmentalize
carrying a firearm during and in relation to
(or their equivalents) of the actor," but
the evidence introduced against each defen-
a drug trafficking crime, 18 U.S.C.
"these dangers are minimal in the absence
IV.
dant, and the spillover may jeopardize one
§ 924(c)(1), but affirm his conviction for
of an intent to assert and do not justify the
defendant's right to a fair trial. See Unit-
possessing in excess of five grams of co-
Long and Mayfield were tried jointly.
loss of the evidence on hearsay grounds."
ed States v. Sampol, 636 F.2d 621, 647
caine base with intent to distribute, 21
Asserting that the evidence against May-
Fed.R.Evid. 801 advisory committee note.
(D.C.Cir.1980) (per curiam); Mardian, 546
U.S.C. §§ 841(a), 841(b)(1)(B)(iii).
field was far more damning than that
F.2d at 979.
It is so ordered.
[10] With our inquiry focused on the
against him, Long argues that the district
intent of the caller, we have little trouble
court abused its discretion in denying his
[13] Striking the balance between the
disposing of Long's theory about implied
motion to sever his trial from hers.¹⁴ We
SENTELLE, Circuit Judge, concurring:
system's interest in joint trialn and a defen-
assertions. Long has not provided any evi-
find no merit in this claim.
dant's right to a fair proceeding is peculiar-
While I am in total agreement with the
sume, In circular terms, that any communica.
ly within the province of the trial court,
conclusion of the Court and in substantial
she testified from memory, and because the
tion made in words is an assertion: "It can
declarant was unavailable for cross-examina-
and we will not reverse the balance that
agreement with the reasoning of Judge
scarcely be doubted that an assertion made in
tion. But this is invariably true whenever a
court strikes absent a clear abuse of discre-
Thomas' careful opinion, I write separately,
words is intended by the declarant to be an
witness testifies about words spoken outside the
tion. United States v. Hernandez, 780
if briefly, for a distinct, finite purpose. I
assertion. Hence verbal assertions readily fall
courtroom; Long has not explained why the
into the category of "statement." Fed.R.Evid.
prejudice inherent in this testimony is unfair.
F.2d 113, 119 (D.C.Cir.1986); United States
find the opinion entirely correct as to the
801 advisory committee note. The note also
In no way has Long shown the "grave abuse" of
acknowledges the possibility of "nonassertive
v. Haldeman, 559 F.2d 31, 72 (D.C.Cir.
facts of this case and the law applied there-
discretion that is required before we will disturb
1976) (en banc) (per curium), cert. denied,
to. But, by stating that in the general case
verbal conduct," however, and suggests that In-
the delicate balance struck by the trial court
tent determines whether such "verbal conduct"
481 U.S. 933, 97 S.Ct. 2641, 528 L.Ed.2d 250
charging "use" of a firearm in violation of
under rule 403. See United States v. Payne, 805
is hearsay. We are persuaded that the note's
F.2d 1062, 1066 (D.C.Cir.1986).
(1977). In this case, to be sure, there was
Title 18 U.S.C. & 924(c)(1), "the govern-
intent analysis applies with equal force to mes-
ment, at a minimum, must show that a
sages implied from words and to messages im-
14. The government contends that Long did not
with respect to that codefendant. but noted that
plied from conduct.
present this argument to the district court, and
he "would just like to preserve (the motion) in
was overwhelming. See Tr. II at 114-15 ("[H]ad
13. Long further argues that, even if testimony
that consequently he has waived it on appeal.
the event that disparity issues present them-
there been a separate trial, none of this evidence
about the telephone call is not hearsay, it should
The record, however, shows otherwise. In ad-
selves at trial with respect 11, the remaining
with respect to Mr. Long on trial would have
have been excluded as unfairly prejudicial.
vance of trial, Long filed a motion to sever his
defendants." Tr. Supp. Hrg. at : Long thus
come in against him It's a spillover; the
Rule 403. in pertinent part, provides that "evi-
trial from that of his (then three) codefendants,
complied with Fed.R.Crim.P. 12(h)(5). which re-
prejudice is overwhelming: coupled with the
dence may be excluded if its probative value is
on the ground that the evidence against him was
trial. quires that severance motions be raised before
fact that this would not have come in had there
substantially outweighed by the danger of un-
much weaker than the evidence against them.
been a separate trial."). The court denied
fair prejudice." Fed.R.Evid. 403 (emphasis add-
The government opposed this motion, and both
At the close of all the evidence at trial, Long's
Long's severance motion. Id. at 116. It is disin-
ed).
sides filed briefs. When one of the codefend.
attorney renewed his call for . argu-
genuous, at best, for the government now to
Long argues that the officer's testimony re-
ants pleaded guilty. Long's attorney conceded
ing that the disparity between the evidence
contend that Long "did not argue this ground to
garding the phone call was unreliable because
that the severance motion had become moot
against Long and the evider.". against Mayfield
the District Court." Brief for Appellee at 26.
905 F 20-36
1582
905 FEDERAL REPORTER, 2d SERIES
particular defendant has actually or con-
acting in concert possibilities, and there
structively possessed a particular firearm
may be other ways in which a defendant
in order to prove that he has 'used' it."
engaged in a drug transaction can "use" a
Maj. op. at 8, the Court has gone beyond
firearm possessed by some other person to
the holding necessary to determine this
protect the defendant's own drug enter-
case. On the present facts, the govern-
prise. What the quantum of evidence nec-
ment did not offer evidence of possession
essary for such other concept of use might
or any other evidence that Long had used
be, I would leave for the case that presents
the firearm, as the Court's opinion well
the question.
ACCORD AND
establishes. That, however, is all that is
2(2). Matters cover
necessary to decide the controversy before
celpt.
E KEY NUMBER SYSTEM
C.A.10 (Okl.) 1990. I
us. There may be other cases in which
contractor's agreement
evidence sufficient to support a jury verdict
accord and satisfaction
claims against owner 1..
of "use" would appear without fitting the
late supply deliveries
technical rubric of possession. The majori-
by evidence that partic
order to discharge any
ty's opinion at footnote 8 points out the
spower Constructors. a
Corp. v. Grand River
1413.
ACCOU
Performanc
and liabilities.
C.A.D.C. 1990. No
between alleged deficion
auditor's annual audits
nancial problems: alth.
auditor failed to specifical
failure to pass on will
stated value of certain
ing concern" qualificati
corporation was in ver
and corporation's direct
that condition.-Drabk
Co., 905 F.2d 453.
-9. Dutles and llabi
C.A.10 (Utah) 1990. I
tive negligence defense
tor's malpractice action
ness in absence of evider
conduct contributed to
form his work or to fur
information: allegation
have discovered precar
business and would h
many of their losses
proper attention and th:
actions with business
manner did not estable
defense.-Fullmer v. We
1394.
Under Utah law, audit
the negligent preparatic
cial statements to third.,
corporation, inasmuch
those who could reason.
audited statements.-I.I
-10. Actions.
C.A.10 (Utah) 1990.
sufficient evidence th.
with business in relatio
were loans, rather than
ests, that investors rel
prepared by auditor in
and that such reliance
awarding damages to in
transactions for auditor
financial statements.—
Beck, 905 F.2d 1394.
Praised for Demeanor, Scholarship on Bench
By RICHARD CARELLI, Associated Press Writer
WASHINGTON (AP) Lawyers who appeared before Clarence Thomas
in his brief federal appeals-court tenure praised on Tuesday his
judicial demeanor, "good, probing questions" from the bench and
his scholarship.
"He looks, sounds and acts like a judge," said Washington
lawyer Richard J. Leighton of the man President Bush wants on the
Supreme Court to replace the retiring Thurgood Marshall.
None of the lawyers contacted used words such as "brilliant"
or "erudite" often-cited adjectives when Supreme Court nominees
are discussed but all said he was, in their cases, well-prepared,
a good listener or fair.
Leighton was involved in one of the 18 cases in which Thomas
wrote an opinion during his 15 months on the U.S. Circuit Court of
Appeals here. Leighton, who represented Alpo Petfoods in a
false-advertising dispute with competitor Ralston Purina, remembers
being impressed with Thomas when the case was argued in April 1990.
"He asked good, probing questions, and from his follow-ups I
could tell the questions weren't just coming from some law clerk's
memo, Leighton said. "He really ran me through my tricks." =
The ruling went against Alpo on a key point, and against Ralston
Purina on another.
"Judge Thomas' decision in the case has been cited often, and
is being discussed in all the seminars on the Lanham Act (a federal
law on false advertising), Leighton said. "It's an
extraordinarily clear opinion that's written in a scholarly
fashion. This was a weighty decision, no piece of fluff."
Michael Olshonsky, a Washington criminal defense lawyer,
remembers being favorably impressed with Thomas when Olshonsky
represented a client whose drug conviction was upheld by a
Thomas-authored decision.
A three-judge panel ruled that forcing three defendants to stand
trial together did not violate their rights, and that all three
correctly were convicted of possessing a weapon found on one of
them.
"My impression during arguments was that the judge was
thoroughly prepared," Olshonsky said. "The decision itself was
consistent with the general trend in this circuit."
George Davies, a Birmingham, Ala., lawyer who represented the
United Mine Workers union before Thomas and two other judges in a
mine-safety dispute earlier this year, has one standout memory of
oral arguments in the case "He didn't like our position very
-
much."
=
Davies said Thomas' questions focused on the "highly technical
points" of the relevant federal law.
"It was evident he had read the briefs and been through the
record. Although I was disappointed with the decision," said
Davies, "I do think he did look hard at the case. He did his
homework."
When Washington lawyer James Davenport heard of Thomas'
selection for the Supreme Court, he had trouble remembering that
Thomas was on a three-judge panel that upheld a client's criminal
conviction last August.
"To the best of my recollection, he didn't ask a single
question during arguments."
But Thomas wrote the decision in the case. Davenport's
assessment: "I obviously was not pleased by the result, but it was
a reasoned opinion."
AP-DS-07-02-91 1714EDT
EEOC
How EEOC Thrived
Why would the
During Thomas's
Republican chairman
of the EEOC ask me, a
Tenure as Chairman
Democrat and a career
The nomination of Clarence Thomas to
the Supreme Court has evoked a great deal
federal employee, to
of productive and enlightened discussion.
be his chief of staff?
Unfortunately, it has also resulted in the
repetition, however innocent, of un-
founded criticisms of his record as chair-
question me as to my philosophical views;
man of the Equal Employment Opportunity
my strict and single mandate from him was
Commission.
to help make the EEOC effective.
Clarence Thomas vigorously and effec-
During his tenure as chairman, the EEOC
tively enforced the laws against employ-
went to court on behalf of workers 60
ment discrimination. I marvel at the will-
percent more often than in previous years
ingness with which generally intelligent
and collected more than $1 billion on be-
and skeptical individuals have accepted
half of American workers, more than dur-
bare assertions to the contrary. The record
ing any other comparable period.
establishes that the EEOC came of age
For the first time, policies were adopted
under the leadership of Judge Thomas. As
requiring thorough investigation of all
his chief of staff, I witnessed it.
charges of discrimination and full redress
Why would the Republican chairman of
for its victims. Workers unlawfully de-
the EEOC ask me, a Democrat and a career
prived of a livelihood were to receive a job
federal employee, to be his chief of staff?
and full backpay. Those who discriminated
And why would a "politically correct" civil
had to take such additional affirmative
servant accept the position? Because we
steps as discharging offending supervisors
shared a commitment to equal employment
and posting notices to employees to assure
opportunity and the full protection and
them that their rights would not again be
vindication of the rights of women, minori-
violated.
ties, older Americans, and workers with
In the past, field offices-made unreview-
disabilities.
able determinations to litigate only a few of
We were dedicated to the goal of making
the many cases found to have merit. Under
the EEOC a credible and aggressive law
Thomas, all meritorious cases were submit-
enforcement agency. Thomas concentrated
ted to the Commission for litigation.
on my law enforcement experience, ig-
Some have mistakenly assumed that the
nored my party affiliation, and did not
increased efforts on behalf of individual
workers constituted a shift away from
concern about the existence of broad-based
discrimination stemming from employ-
ment patterns and practices.
Roll Call - August 1, 1991
To the contrary. In 1981 the EEOC had
only one broad systemic pattern and prac-
tice case in litigation; in 1988 the Commis-
sion had 16 such cases in active litigation.
Pamela Talkin is a member of the Federal
Labor Relations Authority.
Thursday, August 1, 1991 ROLL CALL Page 5
Guest Observer
By Pamela Talkin
Moreover, the EEOC, on its own initiative,
the laws ensuring equal opportunity and
ture, but he also succeeded in transforming
actively prosecuted as broad, pattern and
prohibiting discrimination.
the EEOC into a respected and highly pro-
practice actions hundreds of cases that had
Judge Thomas was,committed to identi-
fessional agency.
been filed as individual claims.
fying and eliminating all arbitrary ob-
No one was more dismayed than Clar-
In accordance with precedent, Thomas
stacles to equal opportunity. Employers
ence Thomas when the evolving EEOC did
voted to approve settlements involving the
were required to recruit actively minerities
not, on occasion, live up to its own en-
use of goals and timetables, despite his now
and women and to setaside millions for the
hanced expectations. As he often stated, we
well-publicized personal views on the effi-
training of minority and woman employees
built our wagon while we were riding in it
cacy of such measures.
and the establishment of scholarship funds
and, with 50 offices and 3,000 employees,
Reasonable people can and do differ with
for minority students.
mistakes occurred. Thomas took full re-
his views on this matter. However, the
Federal agencies were required to submit
sponsibility for any shortcomings and re-
potential use of goals and timetables was
affirmative action plans identifying barri-
doubled his efforts to make the EEOC a
involved in less than one-half of one per-
ers to the full employment of all employees
formidable opponent of those who would
cent of the more than 60,000 cases filed
and detailing the steps to be taken to re-
violate the laws prohibiting discrimination.
annually. A difference of opinion over the
move those obstacles.
Today's EEOC is a fitting and lasting
utility of thisone form of affirmative action
When he became chairman in 1982;
tribute to Clarence Thomas's vision and his
cannot serve as a legitimate basis for cava-
Thomas found an EEOC in disarray. Clar-
unwavering commitment to upholding the
lier assertions that Thomas did not enforce
ence Thomas not only built the infrastruc-
laws protecting American workers.
LOS Angeles Times
SUNDAY, JULY 7, 1991
He Is Nothing If Not
an Independent Thinker'
There were cheers that day as well
PERSONAL
Clarence loves to tell the story of the
PERSPECTIVE
day be arrived at the EEOC. His prede.
cessor had left him the title of "chair." but
when he finally gained admittance to his
office-he had trouble convincing the.
By R. Goull Sliberman
guard that be. Clarence Thomas. was the
WASHINGTON
new chairman of the EEOC chair mL
W
ben Clarence Thomas stepped
behind his desk. Neither chair. systems
onto the national stage last
or.sembiance of organization was to be
Monday in Kennebunkport.
found. Clarence got himself a chair and &
Ma. cheers erupted at the Equal Emoloy-
Classic Coke put his grandfather's and his,
ment Opportunity Commission. the -gen-
son's pictures on his desk (It at least
cy be headed for eight years. That
remained) and went to work.
longtime employees of the often beles-
Much has been written about Myers.
guared commission cheered Thomas'
Anderson, Clarence's grandfather. the
nomination to the Supreme Court is a
most profound influence on his life. When
story to itself.
I first came to the commission in late.
Immediately after President George
1984. Anderson had only died recently,
Bush introduced Thomas. members of the
When Clarence talked about him. his eyes:
prem started calling the commission
welled up. Anderson's injunctions to his
"Who is this Clarence Thomas!"
grandson to "make something of your-
For those of - who were his col-
self." that "Mr. Can't is dead. I helped:
leagues. the answer is quite simple He is
bury him" became the railying cries for
dignified. reflective. direct. careful. cou-
an agency in which "Mr. Can't" had been
regeous-a friendly. funny man with a
very much ative.
hearty laugh. The Clarence Thomas you
The men and
see is the Clarence Thomas you get
women of the
Everyone at the EDOC remembers that
EEOC love Clar-
his arrival in May. 1982. aroused a good
ence because. in
measure of skepticism from a staff weary
a real sense. be:
of uncertainty and leary of this Reagan-
is one of them.
appointed black man. They, too, asked.
In the earty
"Who is this Clarence Thomas!"
days of his
This past week. I've been reminiscing
chairmanship,
with some of the men and women of the
he would "
EEOC about then-Chairman Thomas. One
down to the fl-
theme stands out Thomas profoundly
nance section so
influenced the commission and the men
often that be
and women who work for IL AL his
had his own chair there. The supervisors
renomination hearings in 1987. the line to
were not sure that the chairman's tree
for into the committee room wound
quest. unannounced visits were Decear
around the corridors of the Dirkson
sartly a good thing. But as staffer Mary
Building, so many commission employees
Stringer remembered this week. "We
had taken annual leave to go down and
closed the books on Sept. 30th and и we
support their leader.
were here 'til two in the morning, Clar.
And lead he did. Clarence challenged
ence was here."
his staff to do better. convinced them that
"Pop" Tate. once janitor. now roving
be and the agency needed their best. He
EEOC jack-of-all-trades. is keeping a
told them that tough times were ahead
scrapbook of everything that's being
(be was right). that they were going to
written about his friend. Judge Thomas
have to break some crockery but. togeth-
"Pop" never quite understood how any.
er. they would pick up the pieces and
one who lived in Washington could root
create a revitalized agency of which they
for the Dallas Cowboys. but Clarence M.
could all be proud. And be did just
nothing of not an independent thinker.
that-when be left the commission. the
Clarence does not uncritically accept
new building for which be had fought so
orthodaxy of any stripe. He questions
hard was named the Thomas Building.
cliches like "color-blind society." know.
ing full well that color and race are facts'
of life. factors in life. You can make them
a plus. make them a minus. but you can't
erase them.
Clarence publicly questioned the Rea-
gan Administration's seeming reluctance
to broaden the Republican Party. He
instated that his party had room for people
of all colors. faiths. conditions and classes.
That's why he was an inspering bodd of
the EEOC. His liberating message to all
who know him - You count because of
who you are and what you do. not because
of what goods you possess or to what race
(or religion) you belong.
And that's the signaficance of his ap-
pointment. Clarence Thomas' confirma-
Lion hearings present a historic oppor-
tunity to reasoure the people of this
country that the American dream lives.
The men and women of the United States
Equal Employment Opportunity Commis-
sion are getung ready to cheer again.
Initiatives of Judge Clarence Thomas
at the U.S. Equal Employment Opportunity Commission
(Tenure: May 1982 to March 1990)
"Overall, it seems clear that he left the [EEOC] in better
condition than he found it.' (U.S. News and World Report, July
15, 1991).
ENFORCEMENT
Charge Processing
Before Thomas
In April 1981, the General Accounting Office found, "The
rapid charge process has over-emphasized obtaining settlement
agreements with the result that EEOC has obtained negotiated
settlements for some charges on which GAO believes there was no
reasonable cause to believe that the charges were true. The
settlement agreements for these charges have little substance
and they distort the results of the rapid charge process by
inflating the number of settlements."
The GAO report found that these negotiated settlements
"undermine EEOC's credibility because charging parties and
employers said they were pressured into settlements they
disagreed with [and] charging parties were led to believe that,
since the charges were resolved with settlement agreements, their
charges had merit but EEOC handled them ineffectively.' (GAO,
Further Improvements Needed in EEOC Enforcement Activities,
(April 9, 1981).
Thomas Initiative
Under Judge Thomas' leadership in 1983, the Commission
unanimously adopted a resolution to shift its presumption in
favor of rapid charge processing to one of case-by-case decisions
on appropriate methods for resolving administrative charges, so
that adequate evidence could be obtained to ensure strong cases
for conciliation and litigation. This resulted in more full
investigations and ultimately, in more cases being considered by
the Commission for litigation. (EEOC).
The Thomas Commission adopted a remedies policy which calls
for a full remedy to be sought in every case where discrimination
is found, including elimination of the discriminatory practices.
(EEOC, Policy Statement on Remedies and Relief for Individual
Cases of Unlawful Discrimination, Feb. 5, 1985).
Thomas at EEOC
Page 2
Litigation
Before Thomas
Cases were selectively litigated. (EEOC).
Thomas Initiative
An enforcement policy was adopted which called for every
case of discrimination which fails conciliation to be presented
to the Commission for litigation consideration. (EEOC, Statement
of Enforcement Policy, Sept. 11, 1984. This resulted in a
Statistics). dramatic increase in the number of lawsuits filed by EEOC. (EEOC
Systemic Cases
Before Thomas
Before Clarence Thomas arrived at EEOC, the agency had no
viable systemic program. Many systemic charges were never
investigated or resolved. (EEOC).
Thomas Initiative
In 1985, Judge Thomas reorganized the systemic function so
that investigations and litigation of systemic cases were placed
respectively into the two offices best equipped to conduct these
specialized functions. (EEOC). In 1988, 103 systemic cases were
investigated and 16 were in active litigation. of the $131
million in relief obtained in FY 1988, over $48 million was
awarded in large class action/pattern and practices cases. (Vice
Chairman R. Gaull Silberman, EEOC).
Lawsuits
Before Thomas
In 1981, EEOC filed 444 lawsuits on behalf of discrimination
victims. (EEOC Enforcement Statistics).
Thomas Initiative
By 1986, the agency was routinely, filing more than 500
lawsuits each year. Altogether during Thomas' tenure, EEOC filed
more than 3,300 lawsuits and obtained nearly $1 billion in
monetary benefits for victims of discrimination. (EEOC
Enforcement Statistics).
FEDERAL SECTOR ENFORCEMENT
Federal EEO Appeals
Before Thomas
EEOC's Office of Review and Appeals, which reviews federal
agency decisions on employee EEO complaints, in 1982 was
understaffed and ineffectively managed. Unassigned cases were
placed in cardboard boxes stacked in a room from floor to
ceiling; most were 2 or 3 years old before being assigned to an
attorney, some were 6 to 8 years old before being completed. ORA
decisions were not indexed or recorded for attorneys; GAO in 1982
reported that ORA decisions were inconsistent, even on separate
appeals filed on the same case. (EEOC).
Thomas Initiative
EEOC under Clarence Thomas established a viable case filing
system for federal appeals, assigned more attorneys to ORA,
computerized case indices and a tracking system, a library was
established for the staff and the average case processing was
reduced to 130 days by 1989. (EEOC). In 1982, ORA completed
3,488 cases. In 1988, it completed 6,380.
(EEOC, EEOC: 1982 to the Present, Dec. 1988).
Federal EEO
Before Thomas
When Clarence Thomas arrived at EEOC, no "management
directives" to federal agencies had been issued on the employment
of minorities and women, no information or statistics existed on
the status of minorities, women and disabled individuals employed
by the federal government, mail was backlogged and paperwork was
in boxes. (EEOC).
Thomas Response
Under Thomas, Management Directives 707 and 707A, for
minorities and women, were issued for 1982 - 1987; Management
Directive 714 for minorities and women and 713 for persons with
disabilities were issued for 1988 - 1992. Reports on the
employment of minorities, women and disabled individuals were
issued on an annual basis since 1982 and the agency became a
model employer of persons with disabilities. By the end of
Chairman Thomas' tenure, all mail was answered within 30 days and
all files were organized and computerized.
Thomas at EEOC
Page 4
FINANCIAL MANAGEMENT
Before Thomas
In May 1982, GAO reported to Congress that EEOC had not
maintained accurate and up-to-date financial records, had not
implemented adequate audit controls, had engaged in a
questionable "loan" program to finance private Title VII
discrimination suits and that the financial disarray of EEOC
forced senior staff to make unsupported and improper manual
adjustments to the year-end reports for fiscal years 1980-81.
(GAO, Continuing Financial Management Problems at the Equal
Employment Opportunity Commission, May 17, 1982). More than $1
million in outstanding employee travel debts remained uncollected
and in fiscal 1981, the agency underwent a reduction in force,
which according to a former budget official was directly related
to the agency having returned to the Department of Treasury
unspent more than $10 million of its $140 million appropriation
due to poor financial management. (EEOC Fact Sheet).
Thomas Initiative
As Chairman, Judge Thomas improved the agency's financial
management. By the time he left EEOC, the agency was regularly
obligating more than 99 percent of its appropriation and is able
to monitor all funds in its various offices. In 1984, for the
first time, EEOC's financial accounting systems met GAO
standards. (EEOC Fact Sheet).
PERSONNEL
Before Thomas
In 1982, the Office of Personnel Management described the
EEOC work environment as "beset by acrimony, improper employee
conduct, poor performance and favoritism." (The Washington
Times, July 5, 1991). In 1982, 60 jobs at EEOC were audited --
53 were subsequently downgraded (of those, 42% were found to be
overgraded by three or more grades) ; there was no accurate count
of agency employees; employee pay records frequently contained
errors. (EEOC Fact Sheet).
Thomas at EEOC
Page 5
Thomas Initiative
Chairman Thomas implemented employee training and
recruitment programs to upgrade and train the existing work force
and to recruit and attract high quality employees. For the first
time in 1987, virtually all investigators received comprehensive
investigative training. Equal Opportunity Specialist positions
were converted to Investigators in 1988, reflecting EEOC's
commitment to more full investigations. Federal sector Hearing
Examiner positions were upgraded to Administrative Judges and
given more authority. Incentive programs were implemented.
(EEOC Fact Sheets).
Without additional resources, the personnel system was
centralized and linked to the payroll system; by the end of
Clarence Thomas' tenure the error rate was .01 percent. By the
time Thomas left the agency, EEOC 's personnel organization was
routinely commended and consulted by other small agencies and the
Office of Personnel Management for its excellent personnel
practices.
In 1988, EEOC received the Office of Management and Budget's
Productivity Improvement Award for quality, effectiveness and
efficiency. (EEOC News Release, July 1, 1988).
After a July 1991 visit to EEOC, Senator John C. Danforth
said, "While at the headquarters, I had the opportunity to speak
with a wide variety of individuals
The clear message of
those I visited was that Clarence Thomas had transformed the EEOC
from the dregs of the federal bureaucracy to an efficiently
operating agency which was effectively performing the duties
Congress had assigned to it.' (Sen. John C. Danforth, July 16,
1991, Floor Statement).
COMPUTERIZATION
Before Thomas
When Clarence Thomas arrived at EEOC, the only
automated equipment for case management was two outdated
mainframe computers with keypunch equipment. There were outmoded
and incompatible word processors; the agency did not own even one
personal computer. (EEOC Fact Sheet).
Thomas at EEOC
Page 6
Thomas Initiative
Under Judge Thomas' guidance, EEOC began to automate by
purchasing its first personal computer in 1983. The agency was
computerized without any additional funding from Congress. As a
result of Thomas' initiatives, an integrated charge data system
was installed in all 50 field office which connected to a
national database containing nationwide enforcement data on more
than a million cases by the end of Thomas' tenure, more than
1,000 compatible personal computers were installed throughout
EEOC and virtually every program at EEOC was computerized,
including financial management, personnel, and federal sector
appeals, in addition to enforcement. (EEOC Fact Sheets).
###
PRESS
The New York Times
What Clarence Thomas Knows
By Guido Calabresi
especially not on African-Americans.
ant is served by a lousy lawyer, they
If he had, he would be unworthy to sit
sound like what they are: people who
on the Supreme Court. What he has
neither through personal experience
NEW HAVEN
done is to conclude, with many others
nor academic thought could ever
am a Democrat. Since the
and probably wrongly, that certain
imagine themselves erroneously
I
President and others have
measures have done more harm than
crushed by the power of the state.
started to throw mud on liber-
good. I wish I could convince him
Clarence Thomas, at least, knows
als, I have proudly asserted
otherwise. Maybe some day someone
better, and someday, in some case,
that I am a liberal. I despise
will.
that knowledge will make itself felt.
the current Supreme Court
What matters most, though, is that,
Of course, there are others as able
and find its aggressive, willful, statist
unlike many on the Court, he does
as Clarence Thomas who also know
behavior disgusting - the very oppo-
know the deep need of the poor and
this. And if I were President I would
site of what a judicious moderate, or
especially of poor blacks, and wants
name someone like that who also
even conservative, judicial body
to help. That will keep him open to
shared my views. But it is a gross
should do.
argument as a Justice should be.
illusion to think that this Administra-
I think it strange that these strict
The second reason I support him
tion will do anything like that any
destructionists should be allowed to
derives from this direct knowledge of
more than the Reagan White House
get away with the claim that they are
what it is like to be in need. This Court
did when Robert Bork was cruelly
following the Constitution when, in-
caricatured and defeated. What we
stead, they persistently reach well
got then, what we would get now, is
beyond the issues before them to Im-
someone less able, with less life expe-
pose their misguided values on the
He may stand up
rience, a gray follower of all that is
Great Charter and on all of us.
worst in the Court today.
Yet I support the nomination of
against a willful,
And now, as then, The New York
Clarence Thomas to that Court. Why?
Times and eminent scholars who de-
First, because I know him and
statist Court.
feated the nominee will join the band-
know he is a decent human being who
wagon of support for the nonentity.
cares profoundly for his fellows. He is
For in such a person the "offending"
not the caricature that some of his
views will not stand out against the
opponents have put forth. It is true
grayness of his background.
that he has come to believe that some
is outrageously homogeneous. It is
No, I would much rather have
things we liberals have espoused to
overwhelmingly made up of gray Re-
someone who does stand out, who
help African-Americans (and many
publican political hangers-on of virtu-
holds his or her own views, with
other people, too) are counterproduc-
ally identical backgrounds. They all
which I deeply disagree but who has
tive. I think that on the whole he is
bring to the Court the same life expe-
somewhere, same time, experienced
wrong.
rience and lack thereof.
life and has been willing to stand up
But his conclusion is not so impor-
How can they know what discrimi-
against the pack. Better such a one
tant as the fact that he does not deny
nation really means? How can they
than someone who will readily blend
that such measures helped him or
understand what fear of police, prose-
in and be another anonymous vote for
that the people whom these remedies
cutorial or state abuse and brutality
the activist and virulent views now so
seek to help are deserving and often
is? When they babble that coerced
dominant on the Court.
desperately need help. He has not
confessions need not make trials un-
For there is just a chance that such
turned his back on those in need, and
fair; that discrimination must be
a one may stand up to the pack again,
proved in individual cases and not
and remind us all of what it is like to
Guido Calabresi is dean of Yale Law
through statistics, or that a single
be poor and friendless and to be fac-
School.
appeal is adequate even if a defend-
ing a hostile state.
JULY 28, 1991
emcago Cribune
JULY 18, 1991
Far from being eccentric, this general belief is
Is Thomas' belief
widely accepted. Says Randy Barnett, a professor at
IIT-Kent College of Law: "Americans believe they
have rights that the government didn't create and
in natural law
can't take away. Thomas is right in the mainstream
of what Americans think."
Thomas is also in harmony with one Joseph Biden,
chairman of the Judiciary Committee, who during
unnaturally odd?
Robert Bork's confirmation hearings said of
constitutionally protected rights: "What has been
protected
[are] important and fundamental
liberties that, in my view, predate the Constitution. I
Opponents of Clarence Thomas have discovered
have them because I exist.
that on occasion be has invoked something known as
In fact, liberal interpreters take a similar approach
"natural law." From their reaction you would think
to the Constitution, arguing that certain transcendent
they had found him at the airport in a Hare Krishna
values and moral principles, like human dignity and
robe.
equal respect for all, deserve protection even though
Harvard law professor Laurence Tribe depicts him
they aren't mentioned in the text. Tribe himself
as a scary medieval relic, "the first Supreme Court
thinks it should be read imaginatively to guarantee
nominee in 50 years" to draw on natural law.
the right to "a decent level of affirmative
Thomas, be suggests, may return us to the time when
governmental protection in meeting the basic human
the Supreme Court said women could be prohibited
needs of physical survival and security, health and
from becoming attorneys because the law of nature
housing, work and schooling."
consigned them to the job of wife and mother.
Yes, that's hypocrisy you smell. "There is not a
He was seconded by Robert Alley, an adviser to
fundamental or significant difference between using
Americans United for Separation of Church and
natural law and using moral principles to interpret
State: "If be develops an agenda of declaring
the Constitution," says University of Minnesota law
professor Suzanna Sherry, a self-described liberal.
Stephen Chapman
The critics suggest that Thomas will analyze the
Constitution by trying to make it conform to
Aquinas' Summa Theologica. They might be forgiven
'unnatural' things as immoral, I'm frightened."
if he hadn't taken such trouble to specify what he
The logic is that since natural law has been used to
means when be refers to natural law.
defend oppressive practices, it can be used only to
What he means is the ideals of the Declaration of
defend oppressive practices. This is like saying that
Independence, which says, "We hold these truths to
since (a) the Nazis had moral principles, and (b) the
be self-evident, that all men are created equal, that
Nazis were bad, (c) moral principles are bad. Tribe
they are endowed by their creator with certain
doesn't mention one modern proponent of natural
unalienable rights, that among these are life, liberty
law, Martin Luther King Jr., who wrote that "an
and the pursuit of happiness.' It is impcasible to
unjust law is a human law that is not rooted in
make sense of the Constitution, Thomas argues,
eternal law and natural law."
without understanding that its authors intended it as
Natural law is essentially the broad idea, which
an expression of these "self-evident truths."
traces back to Thomas Aquinas, that human nature
Referring to the Declaration, Thomas has written:
defines how people should live, and that some
"Here, as Lincoln put it, bies 'the father of all moral
actions are wrong regardless of law or custom. The
principle' in Americans. Equality means equality of
term is also sometimes used to refer to the belief that
individual rights, an equality resting on the laws of
people have inherent ("natural") rights that others
nature and of nature's God.
Because no man is
have a duty to respect. Sometimes these are viewed
the natural ruler of another, government must
as God-given, but not always: Novelist and
proceed by consent. And that, in turn, requires
philosopher Ayn Rand, a vociferous atheist, fervently
representation, elections and the separation of
believed in natural rights.
powers. These are the requirements of free
government, and they rest on a moral conception of
human worth, based on human nature."
Thomas agrees with the Framers that rights don't
exist because the Constitution protects them; the
Constitution protects them because they exist. He
shares the view of most Americans that liberties are
not something created by government that can be
repealed by government, but the undeniable birthright
of every individual.
If Thomas' crities want to turn his confirmation
hearings into a debute over those propositions, it isn't
Thomas who will end up looking scary.
EDITORIAL
BY DAVID GERGEN
EDITOR AT LARGE
THE BRIEF ON CLARENCE THOMAS
T
he more one learns about Clarence Thomas, the
the game over. ensuring that it is now played with abso-
more compelling he becomes as a nominee to
lute fairness. To insist upon preferences or quotas for
the Supreme Court-and as a fresh hope in
blacks may grant them temporary gain but cost them
breaking America's paralyzing deadlock over race. In
their own self-confidence and white respect. Stop rob-
recent days, his life story has already been turned into
bing us of our manhood. he says angrily.
the stuff of legend: a young man whip lifted himself
Thomas does not walk away from disadvantaged
from the hardscrabble of rural Georgia, so dark-
blacks: indeed. he has invested years trying to help them.
skinned that other blacks in Savannah called him ABC
But he thinks the proper role for government is to clear
("America's Blackest Child"); nurtured by a grandfa-
away the hurdles of all poor people - the drugs, crime
ther who could barely read, but knew enough to instill
and malnutrition that plague inner cities-without re-
the old values of hard work. self-reliance and religious
gard to race. Nor is he a lackey for white bigots. At the
faith: taught by nuns, but taunted by classmates in an
EEOC, he sought much tougher penalties against
all-white high school: persevering up
whites ho discriminate: He wanted to
the ladder through Yale Law School,
fine them heavily and toss them in jail.
onto the staff of, John Danforth in
As a Reagan appointee. he attacked
Missouri, then to Washington. and al-
'He believes
the administration for dragging its feet
ways. always. a lonely. personal strug-
gle to be his own man.
government's role
on voting rights. for granting a tax ex-
empti- to all-white Bob Jones Uni-
Yet Thomas offers far more than
is to protect the
versity and for failing to offer a positive
inspiring biography. "What Clarence
individual, not to
vision to blacks. He is not even certain
is all about," says his friend, Republi-
advance the
about the merits of integration. Just to
can Senator Danforth. "is that in this
sit next to a white child in school solves
country you should have the freedom
interests of any
nothing. he believes. First. the black
to think what you want to think.
child must learn to believe in himself.
whether you're black. white. or any-
one group.
In donning judicial robes, Thomas
thing else." Just as he has cut his own
has pledged that his personal views
career path, he has plowed his own
will not matter. So strong is his alle-
mental furrow, catching hell from all
giance to law and precedent that his
sides. Many civil-rights groups believe
closest admirers believe he is more
he betrays blacks because he refuses to march in lock-
likely to fit the Felix Frankfurter than the William
step with their agenda. From his days running the Equal
Rehnquist mold. refusing to join conservative activists
Employment Opportunity Commission, when he op-
eager to strike down rulings from the Warren court. We
posed racial quotas, they dismiss him as a black conser-
won't know for sure how he will come out on abortion,
vative doing the white man's bidding. In truth, Thomas
school prayer or crime until he actually sits on the court.
doesn't fit into any political box; he is, as Washington
What we do know is that, as George Bush said. this
political writer Juan Williams described him four years
new nominee is "fiercely independent," and in today's
ago in The Atlantic, "ideologically sui generis."
climate, his voice is welcome. America has wound up
Drawing heavily upon his life and his readings,
in a terrible cul-de-sac over race: Most whites, blacks
Thomas believes that under natural law (and America's
and browns now believe in equality, but we are hung
Declaration of Independence). all men and women are
up in arguments and in government programs that
created equal, and that the U.S. Constitution provides
aren't working to bring it about. Too many black activ-
legal guarantees. Government's role is to protect the
ists insist that all blacks are victims and need special
rights of the individual but not to advance the interests
preferences throughout life: too many whites have giv-
of any group. black or white; it is up to the individual to
en up trying to find answers and suspect a black under-
make it on his own. Yes. whites tilted the game unfairly
class will be with us forever. Now comes Clarence
in their direction for generations. but rather than com-
Thomas insisting that if both races shape up, blacks
pensating blacks for past sins. government should start
can still make it on their own. He should know.
84
U.S.NEWS & WORLD REPORT. JULY 15. 1991
The Detroit News
SUNDAY. JULY 7, 1991
A Man for This Season
In politics, timing is almost as important as sub-
rather than laying burdensome new rules on em-
stance.
ployers.
Without the legacy of retiring Supreme Court
As a result, court actions filed on behalf of plain-
Justice Thurgood Marshall, Clarence Thomas
tiffs rose from less than 250,000 in 1982 to more
might not be the likely next justice of the Supreme
than 560,000 a year under Mr. Thomas. From
Court. But just as Thurgood Marshall was a man
1980-82, EEOC collected $320 million in fines
for his time, leading the charge
from employers. From 1984
for the basic civil rights of black
through 1986, EEOC collected
$381 million. That hardly strikes
Americans, 80 Judge Thomas
us as the actions of a man who
may be the right man for this
lacks "sensitivity" to employ-
time, keeping the pendulum
ment discrimination. Moreover,
from swinging too far in the di-
the Thomas rules have contin-
rection of policies of racial pref-
erence that could threaten the
ued in force to this day, another
indication that he was hardly a
social fabric.
Sadly, many black leaders see
rogue ideologue when it came to
fair play in the workplace.
Judge Thomas as a threat to
The one area in which Mr.
their turf. A campaign of disin-
formation about him has already
Thomas' performance has been
most severely questioned is in
begun similar to that waged
against Judge Robert Bork.
age discrimination cases. The
backlog of these cases reached a
There appear to be three main
new high in 1987, and many were
areas of criticism: his conserva-
allowed to lapse. This precipitat-
tive "ideology," his record as
ed an investigation by a Senate
chairman of the Equal Employ-
subcommittee. But at least part
ment Opportunities Commission
of that backlog was found attrib-
and his apparent opposition to
Clarence Thomas
utable to the fact that Congress
abortion.
We don't know how Mr. Thomas would.vote on
itself repeatedly appropriated less for EEOC opera-
the matter of Roe VS. Wade. We do know the prem-
tions than even the Reagan administration re-
ise on which abortion rights folks are now attack-
quested.
ing him is false, namely that he is, as Virginia Gov.
How about the charge that Judge Thomas is a
Douglas Wilder said the other day, "a devout Ro-.
hardline conservative who is "out of touch" with
the American mainstream?
man Catholic."
It is true that Judge Thomas was schooled by
That charge should have been laid to rest by
Roman Catholic nuns and attended Holy Cross
Mark Gitenstein, a liberal former Senate Judiciary
University. Now, it is worth noting that some of
counsel, who now heads the Foundation for
the strongest pro-choice voices in America are
Change, a Washington think tank. He told the Le-
Catholic, including Sen. Joseph Biden, chairman
gal Times in October 1989, during Mr. Thomas'
of the Judiciary Committee which will sit in judg-
confirmation as an Appeals Court judge, "In my
ment on Judge Thomas. But the fact is, as Judge
view, in the context of this administration Mr.
Thomas pointed out in an interview last week, he
Thomas is a moderate, pragmatic, reasonable nom-
is not a Catholic. "Currently I am attending the
inee."
Episcopal Church," he said, which tends to leave
And as Detroit Judge Damon Keith, a Carter
questions of abortion to individual conscience.
appointee to the 6th Circuit Court of Appeals, said
at the time of Judge Thomas' nomination to the
That does not settle the question of how he
D.C. Court of Appeals: "IfI or a member of my
might rule on abortion as a judge, but it does un-
family were in trouble, he is the kind of person rd
derline the fact that his opponents are likely to
like to appear before." For making this statement,
show no great regard for the truth in their cam-
repeated in a Wall Street Journal article last week,
paign against him. And the fact that "liberals," who
Judge Keith says he has been the target of some
not so long ago had to defend John F. Kennedy
angry phone calls from other civil rights leaders.
from anti-Catholic bigotry, would seek to hold a
But he says he stands by his earlier statement.
man's religion against him is a sign of the extent to
which liberalism has degenerated as a principled
One of the ironies of this line of attack is that
political creed.
Mr. Thomas was accused of being too "moderate"
Mr. Thomas also is being attacked for his alleg-
by members of the Reagan administration. The
edly "insensitive and questionable enforcement re-
main reason: He opposed race-based remedies such
cord" at the Equal Employment Opportunity Com-
as quotas, but he deeply believed in affirmative ac-
mission. What is overlooked here is that when
tion for qualified individual minorities. There are
Clarence Thomas took over this agency, it was in
ambiguities in such a position, but polls consis-
chaos. It's no accident that one of Mr. Thomas'
tently show that this is where the American people
most strident critics is D.C. Delegate Eleanor
are, too.
Holmes Norton, who was his predecessor at the
Judge Thomas stands as living proof that even
EEOC. The nonpartisan General Accounting Of-
the poorest black American can rise out of a Geor-
fice in 1982 concluded that the internal record-
gia sharecropper background to the highest court
keeping of that agency under Ms. Norton was so
in the land. That should be taken not as a rejection
bad that "EEOC faces a formidable task in correct-
of the vision of a Justice Marshall, but as affirma-
ing the operational deficiencies that allowed the
tion of the courageous struggle for equality before
unreliable records to develop."
the law in which Thurgood Marshall played such a
Under Mr. Thomas the EEOC was for the first
formative role.
time fully computerized. Management also was
Just as Thurgood Marshall was a man for his
streamlined. And Mr. Thomas put the emphasis on
time, Clarence Thomas appears to be a man for
prosecuting individual cases of discrimination
this season.
The Atlanta Zournal
THE ATLANTA CONSTITUTION
SUNDAY. JULY 7. 1991
munity. Wouldn't it be ironic if,
Thomas
in your haste to conquer the
trained and capable black pro-
world, you lost those closest to
fessionals and business people
you? Or, in looking beyond the
who were frustrated because
horizons, you fell down a mine
they were viewed only as mem-
an asset
shaft?"
bers of a group who got their po-
sitions through quotas rather
These observations of Judge
than because of their qualifica-
to bench
Thomas as a lawyer of keen intel-
tions as individuals. Their true
lect with strong values are all
achievements were being deval-
part of my simple response to
ued and masked.
questions regarding his confir-
mation.
Yet, many black leaders con-
He offers strong values,
tinued to advocate more govern-
But, there is another, more
intellect to court
ment and private programs
complex reason why I believe he
based on racial quotas.
should be confirmed. Judge
By Larry D. Thompson
Thomas, who is black, has said
Ostracized by black liberals
that we cannot simply dismiss
B
ecause I practiced law with Judge
race as a factor in our society.
Judge Thomas was an early,
Clarence Thomas some 14 years
His confirmation, I believe, may
courageous advocate of so-called
ago, many people have asked me,
conservative positions. He was
"Do you think he will be confirmed?" The
signal the beginung of the ac-
ostracized, often quite bitterly,
simple answer is a resounding yes.
ceptance of new ideas and values
by many black liberal leaders.
While some may disagree with Judge
for a generation of black Amer-
Thomas's views on several issues, I do
icans.
not believe that many who may differ
Judge Thomas was never ob-
with him on these issues, but who have
sequious. He was always his own
The wrong approach
had an opportunity to know him, will op-
person and was never a shill for
pose his nomination.
anyone or any cause. He has crit-
Judge Thomas, who is almost
A graduate of Yale Law School. Judge
icized the national Rep
half the age of Justice Marshall,
Thomas is a legal scholar with valuable
Party for what he saw as
has, through intellect and hard
hands-on experience in the public policy
tant indifference" towar
work, been able to take advan-
arena. As chairman of the Equal Employ-
voters and criticized the
tage of the opportunities made
ment Opportunity Commission, he led
possible for our generation by
administration for its po:
the agency in removing a backlog of dis-
the work of Justice Marshall and
the Bob Jones University
crimination cases that served to unfairly
other black leaders. Yet, obvious
when it tried to grant tax
deny relief to individuals who suffered
problems remain.
status to that institution
employment discrimination. The EEOC
charges that it practic
under his leadership became a more ef-
When we were working to-
crimination.
fective advocate for individuals who
gether, Judge Thomas and I
In a speech at Suffolk
were victims of discrimination, and it
would once a week leave our cor-
sity, he expressed the fru
av
dehumanizing litigation and pol-
porate law offices and go to our
of many black conservat.
ici
at led to minorities simply being
favorite Chinese restaurant and
"It often seemed that to be ac-
treated as numbers. For example, the
cepted within the conservative
number of discrimination charges con-
talk about the problems of the
ranks and to be treated with
sidered for litigation authorization by the
EEOC rose from 401 in 1982, when Judge
day. We would discuss the prob-
some degree of acceptance, a
lems black people were experi-
Thomas became chairman, to 764 in 1988
encing and our dismay over
and approximately 800 in 1989.
black was required to become a
some black leaders who contin-
caricature of sorts, providing
An outstanding role model
ued to preach the "politics of
despair."
side shows of anti-black quips
Judge Thomas is a warm and engag-
and attacks. But there was more
ing person. He is, as they say, down to
These leaders stressed the
much more to our concerns
earth. He is also very wise and, because
status of black people as victims
than merely attacking previous
of his background, will serve as an out-
and advocated more government
policies and so-called black lead-
standing role model for our nation's
assistance as the only way of
ers. The future, not the past,
youth, especially those who are poor or
overcoming our problems. They
could be influenced."
black.
ignored other problems facing
While genuinely appreciative
Over the years, we have exchanged
the black community: drug use,
and respectful of the important
speeches and articles each of us wrote
lack of respect for the law, kids
contributions and sacrifices of
and, quite frankly, I benefited more from
having children too soon and fa-
leaders of the past, many believe
this practice than did Judge Thomas.
thers who were not taking their
that a new generation of black
Judge Thomas is a prolific and insightful
responsibilities seriously.
leaders with new ideas will ad-
writer. In a commencement address at
We noted the pernicious ef-
vance black Americans and this
Syracuse University Law School this
fects of group politics. We each
nation even more. With this in
year, Judge Thomas offered the follow-
knew many outstanding, highly
mind, Judge Thomas once told
ing advice to the graduates:
me, "Our day will come." With
"I encourage you to focus first on
his nomination to the United
those who are nearest you, your parents,
has. States Supreme Court, perhaps it
siblings, children, friends - your com-
THE WALL STREET JOURNAL.
JULY 17, 1991
Borking Begins, but Mudballs Bounce Off Judge Thon
Among the inadvertent benefits which
He Is Black. When Sen. George Mitchell
Judge Thomas wrote that a more endur-
followed from the timing of the Bork nome-
declared that Judge Thomas was nomi-
ing opinion would have reflected the origi-
ration was the coincidence of the regularly
nated only because of his race, President
nal intent of the post-Civil War amend-
scheduled July annual meetings of mass
Bush wondered if he "accused Lyndon
ments, which fulfilled the promise of equal
membership organizations, including
Johnson of a quota" for nominating Thur-
rights in the Declaration of Independence.
Planned Parenthood, the NAACP, the Na-
good Marshall. On what grounds is Judge
Brown, he said, was a "missed opportu-
tional Education Association, the National
Thomas unqualified? He's written more
nity to turn policy toward reason
Organization for Women and the National
law review articles than David Souter, has
rather than sentiment, toward justice
Abortion Rights Action League. These
more law-enforcement experience than
rather than sensitivity, toward freedom
were followed by the August conventions of
Justice Marshall and his years at Mon-
rather than dependence-in other words,
the Southern Christian Leadership Confer-
santo would make him the only justice
toward the spirit of the Founding.' A close
ence and the national board meetings of
with experience working as a corporation
understanding of the Founders' back-
lawyer. Admittedly, there is a single most-
ground in natural-rights theory is impor-
Rule of Law
qualified nominee; maybe President Bush
tant in interpreting the original intent of
should send up Robert Bork's name if
the document they left behind.
Judge Thomas is defeated.
He's an Anti-Semite. Critics dug out a
By L. Gordon Crovitz
He's an Affirmative Action Ingrate.
1983 speech where he praised Louis Far-
Judge Thomas represents a generation of
rahkan's message of self-help for blacks.
minorities who have felt both sides of the
Once Mr. Farrahkan's anti-semitism be-
Common Cause, the AFL-CIO and the
affirmative-action sword. At Yale Lav
came widely known, Judge Thomas gave
ACLU."
School. he sat in the back of classrooms in
speeches criticizing him-more than Rep.
This reminiscence is from "The People
the hope that professors would not notice
Gus Savage and others in the Black
Rising." a book celebrating how special in-
his race and assume he was less qualified.
Caucus can say. Mr. Thomas international-
terest groups defeated Robert Bork's nomi-
One of his happiest experiences at Yale
ized the EEOC by demanding rights for So-
nation. This past July 1. four years to the
was when he went to pick up his blindly
viet Jews. He was also the 1986 winner of
day after the Bork nomination, many of
graded final exam in tax law. The secre-
the Humanitarian Award from the Union
the same groups went into high gear when
tary handed him a copy of the best exam
of Orthodox Jewish Congregations of
President Bush nominated another conser-
while she looked for his. He was thrilled to
America. recognized for his "commitment
vative. Will Clarence Thomas also die the
see that the model exam was his.
to the right of all Americans to live free
death of a thousand interest groups?
He ran into a double standard when law
from discrimination based on race. reli-
"We're going to Bork him," Florence
firms recruited him. Instead of discussing
gion or national origin and your support
Kennedy said of NOW's game plan. "We're
his favorite legal subjects-tax and corpo-
for the rights of Sabbath observers."
going to kill him politically
This
little
rate law-lawyers would only tell him
He Has a Weird Personal Life. There
creep. where did he come from? The
about their minority hiring and public-in-
was a leak about Judge Thomas using ma-
ript calls for throwing up endless
terest work. This is why Judge Thomas in-
rijuana in college, which he disclosed when
ears: if there's enough smoke, there's
stead became assistant attorney general in
he was appointed to the appeals court.
excuse. Recall how Alabama Sen. How-
Missouri under John Danforth, who agreed
Then there were reports that Mr. Thomas
eil Heflin explained that he voted against
to treat him like anyone else.
and his first wife had a bitter divorce. His
Mr. Bork because "He had a strange life-
Only Liberals Can Cite Natural Rights.
former father-in-law said the two "were
style." Senators representing the liberal
The hypocrisy award goes to Harvard's
congenial and have remained so," telling
plantation must see a conservative black
Laurence Tribe. After a career of urging
the Boston Herald that "I'm very proud of
as the very definition of a strange life-
liberal judges to look beyond the Constitu-
Clarence, my whole family is." It's been
style. The attempted smears so far:
tion. he criticized Judge Thomas for writ-
reported that Judge Thomas hung a Con-
He's Catholic. Judge Thomas's Catholic
ing about natural
federate flag in his Missouri office, but the
upbringing is code for the assumption that
rights. which he
flag was the Georgia State flag. which
he finds no constitutional right to abortion.
hasn't invoked as a
Judge Thomas displayed in mischievous
The abortion issue has already returned to
judge. He had a nar-
patriotism for his home state. Perhaps try-
the state legislatures following the Webster
row purpose for
ing to repeat the infarnous scoop of the vid-
decision but. fresh from his grudge match
thinking about natu-
eotapes Mr. Bork had rented. reporters pe-
with Chuck Robb. Virginia Gov. Douglas
ral rights when he
rused the books Judge Thomas stores in
Wilder asked. "How much allegiance does
ran the Equal Em-
his garage. They found such lascivious ma-
(Judge Thomas) have to the pope?" The
ployment Opportu-
terial as books by Ayn Rand. Alexander
John Kennedy precedent aside, the Consti-
nity Commission.
Solzhenitsyn and Alexander Pope.
tution says "no religious test shall ever be
This is that he
These mudballs have not stuck. but the
required as a qualification to any office."
thought Brown v.
interest groups know they have until the
This non-issue may be moot. Judge
Board of Education
September hearings. Judge Thomas and
Thomas attends the Truro Episcopal
did not go far
the country deserve a debate on the Consti-
Church in Virginia.
enough because it
tution, original-intent jurisprudence and ju-
He's Not Black. Derrick Bell, a Har-
relied on sociologi-
Clarence Thomas
dicial restraint. Instead, we will get end-
vard law professor, declared that Judge
cal evidence more than legal principle to
less smears that liberals hope will post-
Thomas "doesn't think like a black." Col-
overrule the separate-but-equal doctrine.
pone their greatest fear-a conservative
umnist Carl Rowan said, "If you gave
black justice who will help legitimize a
Clarence Thomas a little flour on his face.
competing social and legal view.
you'd think you had David Duke talking."
Ugly, but nothing new. "Here's a strange
black." Judge Thomas says about how peo-
ple see black conservatives. "Let's go see
if he has two heads and a tail."
WEDNESDAY. JULY 10. 1991 A21
But we don't know black conserva-
Maybe he really does believe that
tives-we doubt that it is legitimate
there's nothing the government can
even to be a black conservative. What
or should do about entrenched
William Raspberry
Thomas is speaks SO loudly to us that
racism, but I doubt it. I hear him the
we cannot hear what he says.
same way I hear Wilder and Jackson
Thomas
None of this, I should note, speaks to
and scores of other plain-spoken
Themas's fitness for the Supreme
blacks. I hear him saying with Wilder
Court. He wouldn't have been my
that blacks are foolish to wait for
choice. But then no one likely to be
whites to deliver us, that we must
Lnd the
appointed by a conservative Republican
return to the old values that worked
president would be my choice. I believe
for us in harsher times than these.
the court is too conservative al-
that we must "redig the wells our
ready-too devoted to the privileges of
fathers dug."
Black
authority and too uncaring about the
And I hear him saying with Jackson
rights of ordinary people, too wrapped
that whatever succor may exist in big-
up in governmental theory and too
ger budgets and greater concession
from the larger society, there will re-
Mainstream
innocent of experience as outsiders in a
society dominated by white men.
main work that only we can do, that
Given an unfettered choice, I'd opt
"nobody can save us for us-but us."
for a liberal whose bona fides include a
The speaker. having recounted his
history of concern for the underdog.
own humble, race-restricted origins,
But the choice isn't unfettered.
urged his NAACP audience to take
We're playing "Let's Make a Deal" with
"pride in endeavor and accomplish-
a host who offers us a choice between a
ment, discipline of mind and body
serviceable Chevrolet and a goat, and
not succumbing to those who talk about
we're holding out for a curtain that
taking shortcuts." The young people in
conceals (we hope) a Mercedes Benz
the audience, he counseled. shouldn't
with an interior designed by Thurgood
be afraid to accept menial jobs or to say
Marshall. Well, there's no Benz behind
"yes, sir" and "yes, ma'am," if that is
any of the curtains. If we're not pre-
what it takes to get where they want to
pared to deal with the goat, we'd better
go. "If you know you have to be doubly
take the Chevy.
prepared, be doubly prepared. and then
Granted it's a strange Chevy. We
get on with doing the job."
don't know many black Americans in
He cautioned against race-specific
high places who will dismiss affirmative
approaches to solving the problems
action out of hand, or who will argue
that confront black people. "Only when
against government catch-up programs
America understands that they are not
for blacks or who will align themselves
problems but American problems
with conservative politicians. We've
e be able to solve them." Three
seen conservatism and racism wearing
trungs about that speech. delivered five
the same garb SO often that we've
years ago and greeted with near-unani-
come to believe you can't have one
mous enthusiasm:
without the other.
First. the speaker was a lawyer
Well, I'm not convinced. At least
working for the government, not a
some of Thomas's conservatism finds
nominee for the Supreme Court. Sec-
echoes in black America, including
ond. it wasn't Clarence Thomas: it was
the black establishment. Note the re-
Doug Wilder. then lieutenant governor
marks of Jackson and Wilder. And the
of Virginia. And third. the remarks
rest of it, no matter how much I
were well within the mainstream of
might reject it, is inevitably tempered
black thought. A full decade earlier,
by his experience as a black man
jesse Jackson was warning against the
whose own opportunities have been
rhetoric that leads black youngsters to
blunted by racism.
see themselves as society's victims
As a friend of mine puts it, "Given a
rather than as human beings capable of
choice between two conservatives, I'll
controlling their own destinies. "No-
take the one who's been called 'nig-
body can save us from us-but us," he
ger.'
used to say.
I believe with this friend that
Why is it that when a Wilder or a
Thomas is sufficiently acquainted
Jackson says these things they are
with racism to recognize it when it
taken as necessary, if uncomfortable,
comes before him on the Supreme
truth, but when a Thomas says them
Court, that he is independent enough
they are taken as evidence of personal
not to see the critical issues in the
smugness, of his lack of interest in the
light of his own experience and that
plight of his own people?
he is smart enough to find in the
The reaction, it seems to me, is less
Constitution protection against the
to what is said than to who says it. We
presumptions of white privilege.
know who Jackson and Wilder are-
for their battles waged on behalf
:ks and for their allegiance to
Democratic politics, which has
become the black political orthodoxy.
ST.LOUIS POST-DISPATCH
SUNDAY, JULY 28, 1991
3B
The Clarence Thomas I Know
His Life Is The Embodiment Of The Values Our Nation Prizes
Clarence was a great conversationalist. Because he had
By Alex V. Netchvolodoff
literally grown up with discrimination. I was particularly inter-
c
larence Thomas is a black man from rural Pinpeint. Ga.
ested in his views on civil rights. He had absorbed the thinking
He was born to an impoverished family with an absentee
of America's black leaders through the prism of his grandfa-
father. an overworked mother. a home without plumb-
ther's values. Clarence applauded Booker T. Washington's
ing and a very bleak future. Yet Clarence Thomas has just been
emphasis on black education. From W.E.B. DuBois, he bor-
nominated by President Bush to serve as associate justice of
rowed an aggressive and unbending contempt for discrimina-
the U.S. Supreme Court.
tion and social injustice. From Martin Luther King, he advocat-
At an early age, Clarence was sent to live with his maternal
ed nonviolence and social reconciliation. From Malcolm X, he
grandparents. For him, it was a turning point. He became the
embraced the imperatives of black independence, pride and
object of his grandfather's unrelenting attention and expecta-
self-help. And from Thomas Sowell, he accepted free markets
and hard work as the best path
tions. "work hard and then
to economic justice. While argu-
work even harder; be self-reli-
ing that the full force of the law
ant: get a decent education; be
and the moral authority of soci-
faithful to your vision of person-
ety should be marshaled
al achievement and, by example,
against racial discrimination,
to your own people's struggle."
he rejected as counterproduc-
Clarence has been living up to
tive numerical goals and quotas
his grandfather's expectations
in schools and the work place.
ever since.
As chairman of the Equal
Thomas' growing up was stark.
Employment Opportunity Com-
He had more than a full-time job
mission, Clarence had a chance
on his grandfather's truck, but
nevertheless. he excelled at his
to put these values into action.
He had inherited a demoral-
all-black parochial school. There
ized, directionless agency. Sev-
was little time and money for
eral years later, Clarence
diversion. Even so, Clarence dis-
proudly showed me around. De-
dained Savannah's segregated
spite congressional budget cuts,
movie theaters and restaurants.
he had reorganized EEOC's fi-
Instead, he satisfied his appetite
nances, personnel and docket.
for books at an all-black library.
The staff was upbeat and proud
Clarence left Savannah for
of its accomplishments. New
Holy Cross College with his wits
enforcement records had been
and a few dollars in the sole of
his shoe. He founded the Black
set. Upon Thomas' departure to
the U.S. Court of Appeals. the
Students' Union and began to
new EEOC headquarters was
consider how blacks could suc-
named after him.
ceed in a white society. He grad-
Clarence Thomas is an au-
uated with honors and went on to
thentic American hero. His life
Yale Law School, where he
is the embodiment of the values
served as a student volunteer at
that our nation prizes. He has
the New Haven Office of Legal
developed, with singleness of
Assistance.
purpose, an inquiring and pene-
I first met Clarence Thomas in
trating mind. He has pursued.
1974 when I flew him to Jeffer-
with equal tenacity, his vision of
son City as part of an effort to
recruit him as an assistant attorney general. He had to know
self-improvement. He has served loyally as a role model for his
how every gauge and every control worked on that plane. His
own people. He has refused to bend to bigotry and discrimina-
exuberant curiosity and penetrating mind were striking. By the
tion. He has turned the other cheek. He has advocated a vision
time we arrived, he was practically flying the plane, and he
for social and economic justice that is focused on education and
self-reliance, rather than on condescension and reprisal.
was great company in the process.
At his job interview, Clarence interviewed us! He wanted to
He is open-minded, but he calls things as he sees then. He is
be assigned the toughest litigation and a heavy workload. He
forever linked by history and by personal memory to those in
got his wish - and he delivered. As Thomas was leaving state
our society who are weak, fragile or different. Who better to
government for the climes of a corporate law practice at
represent us in the Supreme Court of the United States of
Monsanto, Robert Dowd, presiding judge of the Missouri Court
America than Clarence Thomas?
of Appeals. noted that Clarence was one of the best prepared
I, for one, am proud to tell his story, and I look forward to his
and most effective lawyers to appear in his court.
service on the court for the challenge to us and the surprises
Thomas was also a person of great self confidence and
for us that I know it will bring.
integrity. He once told the attorney general (who had suggested
that Clarence show a bit more political sensitivity) that if the
attorney general wanted a political opinion instead of a legal
opinion. then he should go find a politician rather than a lawyer
to write it. The opinion was issued as Thomas had drafted it.
INTERVIEW
And in the interim they encourage us to
believe that redress is our power. I don't
take any simpleminded black-and-white
Nothing Is Ever Simply
view and say racial preferences have nev-
er done a bit of good for anybody. All
I've tried to do is point out the down side
Black and White
and that we've probably come to the
point where they are doing more harm
than good.
Outspoken author SHELBY STEELE defends Clarence
Thomas and argues that too many African Americans see
Q. Are you letting white people off the hook?
themselves as victims
A. I don't mean in any way to let white peo-
ple off the hook. I think as American citi-
A. Clarence Thomas is considered a conser-
zens, they have a profound responsibility
By SYLVESTER MONROE MONTEREY
vative today because of the context, and the
to black Americans. I favor every form of
Q. Why are so many African Americans con-
context is that for the past 25 years civil
affirmative action except preferences. I fa-
cerned about Clarence Thomas' nomination
rights organizations have focused one-di-
vor the government improving the educa-
to the Supreme Court?
mensionally on our oppression and de-
tion system in the inner cities. I favor pro-
A. On the deepest level, he touches the
manded redress based on that. Well, here
grams that go down to the teenage mother
very soul of the debate in black Ameri-
comes a man in 1991 who stands for self-
and try. to break that cycle of poverty by
ca, which is a debate between using the
help, and so he is anathema. The principle
teaching her parenting skills.
The most important thing that people
who have been victimized can under-
ANDY FREEBERG FOR TIME
"I don't say racial
stand, whether it is fair or unfair, and it
certainly is not fair, is that change will
preferences have
have to come from themselves. Thomas
never done a bit of
and I are not hardhearted people who
are simply saying, "Get up off your butt,
good for anybody.
pull yourself up by your bootstraps." We
All I've tried to do
need government intervention to help us.
is point out the
But we've also got to help ourselves. Op-
portunity follows struggle. It follows ef-
down side and that
fort. It follows hard work. It doesn't
we've probably
come before.
come to the point
Q. You once said that liberals are no friends
where they are
of blacks. What did you mean?
doing more harm
A. Watch out that your closest friend may
be your greatest enemy, is my feeling about
than good."
liberals, because they encourage us to
identify with our victimization. It is one
thing to be victimized; it is another to make
an identity out of it. I am not willing to be a
boy because I am inferior, and I am not go-
ing to be a boy because I am a victim. I re-
ject both avenues to being a boy. The one
thing a white liberal can never do with a
black is be honest and tell him what he tells
principle of self-sufficiency as a means
of self-reliance seems to devalue victimiza-
his own children.
to power as opposed to using our history
tion as a source of power. I don't think it
of victimization. We have taken our
necessarily does, but it seems to. And so
Q. Which is what?
power from our history of victimization,
Thomas seems to be against the interests of
A. Which is that you have to work hard and
which gave us an enormous moral au-
black people merely by standing for self-re-
your life in many ways will reflect the
thority and brought social reforms, to
liance. He's not remotely anti-black. He's
amount of effort you put into it. They teach
the neglect of self-reliance and individ-
just asking that we develop another source
that every day to their own children, but
ual initiative. And now, any time you
of power.
then they come out in public and talk about
talk about self-reliance in relation to
blacks as just victims who need redress.
black problems, you are automatically
Q. You have said that you are against prefer-
This is racial exploitation by white liberals,
considered a conservative.
ential treatment, not affirmative action per se.
who transform this into their own source of
But the widespread perception is that you
power. We're being had by them, and we
Q. You don't consider yourself a conservative?
are anti-affirmative action, and so is Clar-
really need to know that.
A. No. I think of myself more as a classical
ence Thomas.
Liberals are screaming for racial pref-
liberal. I focus on freedom, on the sacred-
A. What I've tried to say, and I think
erences. But as soon as they give you the
ness of the individual, the power to be found
Clarence Thomas stands for pretty much
preference, they hold it against you. "Hey,
in the individual.
the same thing, is that by opposing racial
you were helped by affirmative action,"
preferences we stand for black strength
they say about Clarence Thomas. "You
Q. But other black thinkers from Booker T.
rather than weakness. The thing that dis-
wouldn't be where you are if it was not for
Washington to Malcolm X to Jesse Jackson
turbs me about affirmative action, about
affirmative action." That's one reason I
have preached self-reliance, and nobody
preferences, is that they can and will be
have a problem with preferences. How can
called them conservatives.
taken away. They will diminish over time.
he win? He can't.
6
TIME, AUGUST 12, 1991
Seldane
INTERVIEW
(terfenaone 60 mg Tablets
BRIEF SUMMARY
Q. How much impact does racism have on
himself. Now you are going to take that
CAUTION Federal law prohibits dispensing without prescription.
the lives of black Americans?
DESCRIPTION
away from him and say he made it because
Seidane (terfenadine) IS available as tablets for oral administration Each tablet
A. I think being lower class has a much
of affirmative action. He didn't have affir-
contains 60 mg terfenadine Tablets also contain. as inactive ingredients. corn
starch gesatin. lactose. magnesium stearate. and sodium bicarbonate.
INDICATIONS AND USAGE
greater impact. You and I both know, as a
mative action back there in Pin Point, Ga.
Seldane IS indicated for the relief of symptoms associated with seasonal allergic
rhinitis such as sneezing. rhinorrhea. pruntus. and lacrimation
middle-class black you can send your kid to
His grandfather made him go to school and
CONTRAINDICATIONS
any school you want. But if you and I were
study hard, and then he gets into the posi-
Seidane 5 contraindicated in patients with a known hypersensitivity to terfena-
dine or any of its ingredients.
on the South Side of Chicago and not do-
tion where, yes, maybe he could benefit.
PRECAUTIONS
General Terfenadine undergoes extensive metabolism in the Irver. Patients with
ing very well economically, then clearly you
But if all that early work had not been
impaired hepatic function (alcoholic cirrhosis. hepatitis). or on ketoconazole or
troleandomycin therapy. or having conditions leading to QT prolongation (e.g.
would not be able to send your kid to what-
done, we wouldn't know Clarence Thomas
hypokalemia congenital QT syndrome) may experience QT prolongation and/or
ventricular tachycardia at the recommended dose The effect of terfenadine in
ever school you wanted. At this point,
today.
patients who are receiving agents which alter the QT interval IS not known These
events have also occurred in patients on macrolide antibiotics. including
class, poverty and isolation are far more
erythromycin. but causality IS unclear. The events may be related to altered
metaboism of the drug. to electrolyte imbalance. or both.
difficult variables for blacks than racism.
Q. What are you telling young blacks?
Information for patients Patients taking Seldane should receive the following
information and instructions. Antihistamines are prescribed to reduce allergic
That does not mean racism is gone; I think
A. The most important thing for young
symptoms Patients should be questioned about pregnancy or lactation before
starting Seidane therapy. since the drug should be used in pregnancy or lacta-
you'll meet it wherever you go. But it does
black people to do is what you and I did-
tion only if the potential benefit justifies the potential risk to fetus or baby.
Patients should be instructed to take Seidane only as needed and not to exceed
not have the power to contain your life that
become educated. If you are educated,
the prescribed dose. Patients should also be instructed to store this medication
in a lightly closed container in a cool, dry place. away from heat or direct sun-
it used to have.
then at least you have some kind of chance.
light. and away from children.
Drug Interactions: Preliminary evidence exists that concurrent ketoconazole or
Learn to think, to read, to be in touch with
macrolide administration significantly alters the metabolism of terfenadine.
Concurrent use of Seldane with ketoconazole or troleandomycin IS not recom-
Q. According to you, there is a great deal of
the larger world. One of the saddest things
mended Concurrent use of other macrolides should be approached with caution.
Carcinogenesis mutagenesis. impairment of fertility Oral doses of terfenadine.
opportunity that blacks are simply not taking
I see is black students who say to me, "I
corresponding to 63 times the recommended human daily dose. in mice for 18
months or in rats for 24 months. revealed no evidence of tumorigenicity Micro-
advantage of. Many blacks disagree with
only read' black writers." And what they
bial and micronucleus test assays with terfenadine have revealed no evidence of
you.
really mean is they are reading people like
mutagenesis.
Reproduction and fertility studies in rats showed no effects on male or female
A. It depends on how you define opportu-
Don L. Lee and Louis Farrakhan. I say,
fertility at oral doses of up to 21 times the human daily dose At 63 times the
human daily dose there was a small but significant reduction in implants and at
nity. I don't see opportunity in a one-
Have you ever read any Jean-Paul Sartre?
125 times the human daily dose reduced implants and increased postimplanta-
tion losses were observed. which were judged to be secondary to maternal
dimensional sense as something that is
Have you ever read any Ralph Ellison or
toxicity
Pregnancy Category C: There was no evidence of animal teratogenicity Repro-
simply there either waiting or not waiting
Albert Murray or James Baldwin? Nope.
duction studies have been performed in rats at doses 63 times and 125 times
the human daily dose and have revealed decreased pup weight gain and survival
for somebody to come and grab it. I think
But they read Don L. Lee's tract on what a
when terfenadine was administered throughout pregnancy and lactation There
are no adecuate and ell-controlled studies in pregnant women Seldane should
of opportunity as something that one cre-
black man should be, as though this is dif-
be used during pregnancy only if the potential benefit justifies the potential nsk
to the letus
ates, that you generate opportunities for
ferent from what any man should be. And
Nonteratogenic effects Seldane IS not recommended for nursing women. The
drug has caused decreased pup weight gain and survival in rats given doses 63
yourself.
so there's this sort of intellectual segrega-
times and 125 times the human daily dose throughout pregnancy and lactation
Effects on pups exposed to Seldane only during lactation are not known. and
A Jewish woman told my brother
tion that I think is absolutely a death knell
there are no adequate and well-controlled studies in women during lactation.
Pediatric use Safety and effectiveness of Seidane in children below the age of 12
something I think is absolutely vital for
for our future.
years have not been established.
ADVERSE REACTIONS
black people to understand. It was a simple
Experience from clinical studies. including both controlled and uncontrolled
studies involving more than 2.400 patients who received Seldane. provides
phrase: "Don't wait for people to love
Q. Many blacks accuse you of allowing your-
information on adverse experience incidence for penods of a few days up to SIX
months The usual dose in these studies was 60 mg twice daily. but in a small
you." We are too preoccupied with wheth-
self to be used by white neoconservatives,
number of patients. the dose was as low as 20 mg twice a day. or as high as 600
mg daily
er white people love us or not, whether
who are no longer willing to deal with the
In controlled clinical studies using the recommended dose of 60 mg b.i.d. the
incidence of reported adverse effects in patients receiving Seldane was similar
they are racist or not, what they think
problems of race and poverty.
to that reported in patients receiving placebo. (See Table below.)
about the color of our skin or the texture of
A. Some of them do use me, and I think
ADVERSE EVENTS REPORTED IN CLINICAL TRIALS
our hair. Who cares? We have to go for-
some of them do not have the best interests
Percent of Patients Reporting
ward and make our own opportunities.
of black Americans at heart. But if every-
Controlled Studies'
All Clinical Studies**
Adverse
Seldase
Placebe
Control
Seldane
Placebe
Event
N=626***
body is hip enough to ask me this question,
N=781
N=665
N=2462
N=1478
Q. You've told me that you admired your fa-
then my use to the neoconservatives is
Central Nervous System
Drowsiness
90
81
18.1
85
82
ther and that he saved your life, taking you to
neutralized.
Heacache
63
74
38
15.8
112
Fatique
29
09
58
45
3.0
Dizziness
14
1.1
10
15
1.2
the YMCA when other black parents said it
In many ways, the fear that I'm being
Nervousness
0.9
02
06
17
1.0
Weakness
09
0.6
0.2
06
0.5
was too far to go or too expensive. Clarence
used by neoconservatives reflects a para-
Appetite increase
06
00
0.0
0.5
0.0
Gastrointestinal System
Thomas talks much the same way about his
noia that has always been part of black life,
Gastrointestinal Distress
(Abdominal distress.
Nausea vomiting.
grandfather. How do you duplicate that expe-
and it is part of the life of any oppressed
Change in Bowel habits)
46
3.0
27
7.6
5.4
Eye Ear Nose and Throat
rience for less fortunate blacks?
group, a paranoia about what you say in
Dry Mouth Nose/ Throat
23
18
3.5
48
3.1
Cough
09
02
0.5
2.5
1.7
A. This is one of the heartbreaking things
front of the Man because he'll use it
Sore Throat
0.5
03
0.5
32
1.6
Epistaxes
00
0.8
02
07
0.4
about the politics of victimization. We
against you. One of the things I stand for
Siun
Enuption (including rash
have always had the tradition of self-reli-
and urticaria) or itching
10
17
14
16
2.0
more deeply than anything else is that I do
ance in the black community, but this tradi-
not see the white man as all that powerful,
"Duration of treatment in CONTROLLED STUDIES was usually 7-14 DAYS.
"Duration of treatment in ALL CLINICAL STUDIES was up to 6 months.
tion gets squashed because it conflicts with
all that smart. Blacks really need to begin
CONTROL DRUGS: Chiorpheniramine (291 patients). d-Chiorpheniramine (189
patients). Clemastine (146 patients).
victimization. We think we are here be-
to understand that these people do not
Rare reports of severe cardiovascular adverse effects have been received which
include armythmias (ventricular tachyarmythmia. torsades de pointes. ventricu-
cause of affirmative action, but we are not.
control our fate as much we think they do.
lar fibriliation) hypotension. paipitations. and syncope in controlled clinical
trials in otherwise normal patients with rhinitis. at doses of 60 mg b.i.d. small
We are here because of those people who
increases in QTc interval were observed Changes of this magnitude in a normal
population are of doubtful clinical significance However, in another study (N=20
let us get into a position to be able to take
Q. What has this debate and being labeled a
patients) at 300 mg b.i.d. a mean increase in QTc of 10% (range -4% to +30%)
(mean increase of 46 msec) was observed without clinical signs or symptoms.
advantage of what society was trying to do
black conservative done to Shelby Steele?
in addition to the more frequent side effects reported in clinical trials (See Table).
adverse effects have been reported at a lower incidence in clinical trials and/or
for us. But this victimology causes us to de-
A. It has put a lot of stress on me. It's not fun
spontaneously during marketing of Seldane that warrant listing as possibly
associated with drug administration These include alopecia (hair loss or thin-
nounce as a race our greatest source of
to be labeled when you know that it's very
ning). anaphylaxis. angioedema. bronchospasm. confusion. depression. galac-
torrhea insomnia. menstrual disorders (including dysmenorrhea).
strength, which is people like that, who
shortsighted. On the other hand. overall I
musculoskeletal symptoms. nightmares. paresthesia. photosensitivity. seiz-
ures. sinus tachycardia. sweating. tremor. urinary frequency. and visual
ought to be held up as role models.
am very, very happy because I think the
disturbance
Clarence Thomas ought to be held up
terms of the debate have been really opened
In clinical trials. several instances of mild. or in one case. moderate transamin-
ase elevations were seen in patients receiving Seldane Mild elevations were
as a role model. But no, we say, he made it
up. I don't think things will ever be the same
also seen in placebo treated patients Marketing experiences include isolated
reports of jaundice. cholestatic hepatitis. and hepatitis. In most cases available
by himself too much. He's not a victim. We
again. And I think Clarence Thomas' nomi-
information IS incomplete
OVERDOSAGE
don't want him.
nation drives that nail home. There will now
Information concerning possible overdosage and its treatment appears in Full
Prescribing information
forever more be diversity of opinion in the
DOSAGE AND ADMINISTRATION
One tablet (60 mg) twice daily for adults and children 12 years and older
Q. But one major criticism of Thomas is that
black community. People will think about
Product information as of July 1990
MARION MERRELL DOW INC.
he thinks he did make it all by himself.
these things a great deal more than they did
Prescription Products Division
SELAE 302/A1895
Kansas City MO 64114
6130B1
A. This is the shortsightedness of victim-
when we were a sort of one-party system. I
ology. You're goddam right he made it by
feel very good about that.
TIME, AUGUST 12, 1991
The Washington Post
Judge Thomas (Cont'd.)
S
INCE JUDGE Clarence Thomas's nomina-
to the profile of the man that has emerged in the
tion to serve on the Supreme Court, a host
debate so far. "There is a tendency among young,
of interest groups and prominent individuals
have weighed in with their opinions. While most
upwardly mobile, intelligent minorities to forget,"
he said. "We forget the sweat of our forefathers.
of the offerings from both sides have been
thoughtful and judicious, a few uninformed, silly
We forget the blood of the marchers, the prayers
comments have crept into the discussion. To
and hope of our race." In that speech, Judge
speculate about Judge Thomas's fate were he
Thomas decried the erosion of those positive
white (he's not) or to argue that he is a "quota"
values that have enabled generations of African
candidate is a good political shot to take at
Americans to endure and overcome the worst
anti-quota George Bush, but off the mark so far
this nation has had to offer. His warning was
as the nominee is concerned. What matters are
directed particularly toward the younger genera-
his qualifications and fitness to serve on the
tion in our inner-cities who must bear the burden
court. On that score, more voices will be heard
of broken homes, joblessness, crime and depen-
from in the weeks leading up to his September
dency.
confirmation hearings. As the smoke clears from
But his was not a message of hopelessness. "Do
this initial volley, however, Judge Thomas's nom-
not become obsessed with all that is wrong with
ination seems to us to have taken no disqualifying
our race," he said. "Rather, become obsessed
blow.
with looking for solutions to our problems. Be
It's not as if he were a total stranger. His
tolerant of all positive ideas; their number is
record of government service, particularly the
much smaller than the countless number of
civil rights enforcement record at the Equal
problems to be solved. We need all the hope we
Employment Opportunity Commission, is there
can get."
for examination. Having covered much of that
From this and other speeches and writings, our
territory only a year and a half ago during the
sense is that Judge Thomas understands the
confirmation process for his position on the
America in which he lives and well knows that
appellate court, the Senate, which approved him
much of what this nation offers is conditioned on
then, will be revisiting familiar ground. His quali-
skin color and that discrimination is found across
fications, judicial philosophy and views on that
body of constitutional law and statutory rights
the length of the land. It is not so much his
that protect individual freedoms will be scruti-
conservative political ideology as his personal and
nized once more, as they should be. Again, based
public life experiences that have made him less
on the totality of what is known about Judge
sanguine about the ability of law and social policy
Thomas, it is quite a reach if not unfair to brand
to solve by themselves those problems that
him a "reactionary" and one whose "confirmation
weigh most heavily on black America. That, it
would be inimical to the best interests of African
seems, is the genesis of his frequent pitches for
.Americans" as the NAACP did this week.
reliance on hard work and discipline, pride, self-
Some excerpts from a speech he gave in 1985
respect and acceptance of responsibility by black
to the graduates of Savannah State College, a
Americans for their own destiny. His record will
historically black institution, which were printed
and should get a closer look next month. But it is
in the New York Times, add a useful dimension
important now not to caricature his views.
AUGUST 5, 1991
QUOTES ABOUT JUDGE THOMAS
WHAT OTHERS ARE SAYING ABOUT JUDGE THOMAS
Alvares, Fred. (former Commissioner, EEOC) "He totally turned
around the management and reputation EEOC had." Los Angeles
Times: July 7, 1991 "The commission [EEOC] became a much
stronger government agency in the years he was there. Miami
Herald: July 11, 1991
Ashcroft, Governor John. (Governor, Missouri) "Thomas possesses
the highest standards of honesty, integrity, and ethical conduct.
His judicial intellect is superb. His life serves as an
1991 inspiration for all Americans." St. Louis Post-Dispatch: July 2,
Bell, Griffin. (former United States Attorney General) "The
people who think that we're entitled to have a black on the
Supreme Court but only a liberal black, they will vote against
him. But I can't imagine that there are too many senators like
that. Whoever heard of such an argument that only a liberal
black can be on the Supreme Court. What kind of country do we
have where people would take that position?" Associated Press:
July 9, 1991
Boicourt, Michael. (Chief Counsel, Office of the Missouri
Attorney General) "Personally, there is a great dignity and self-
confidence about him. He wore a sense of purpose about him that
was almost overwhelming. He charmed and conquered everyone of all
kinds of persuasions." Chicago Tribune: July 2, 1991
Civiletti, Benjamin. (former United States Attorney General) "I
think the President made a good choice. I think he put quality
and qualifications ahead of minority quotas." Baltimore Evening
Sun: July 2, 1991
Danforth, senator John. (United States Senator, Missouri)
"[Thomas] would have great empathy for the ordinary person. In
many ways, Clarence Thomas is the people's nominee for the
Supreme Court." St. Louis Post-Dispatch: July 9, 1991. "The
clear message from those I visited was that Clarence Thomas had
transformed the EEOC from the dregs of the federal bureaucracy to
an efficiently operating agency, which was effectively performing
the duties Congress had assigned to it. St. Louis Post-Dispatch:
July 17, 1991 "If anyone thinks that Clarence Thomas is a
pre-determined vote on any particular issue, that individual does
not know Clarence Thomas. He is fiercely independent." St. Louis
Post-Dispatch: July 9, 1991
DeConcini, Senator Dennis. (United States Senator, New Mexico)
"I'm impressed with him. He has a lot of experience. He's a
good writer. He's a conservative. That's positive as far as I'm
concerned." Associated Press: July 7, 1991.
Goldstein, Barry. (former attorney, NAACP Legal Defense Fund)
"The EEOC policy seeking full relief for victims of intentional
July 2, 1991
discrimination was a positive step. St. Louis Post-Dispatch:
Hatch, Senator Orrin. (United States Senator, Utah) "This man is
highly 1991 qualified and very, very capable." Boston Herald: July 2,
Heflin, Senator Howell. (United States Senator, Alabama) "He has
a 1991 good academic background." United Press International: July 11,
Hooks, Benjamin. (Executive Director, NAACP) "When it comes to
individual discrimination, his record is pretty clear. If a black
or woman has been individually discriminated against or
mistreated he'll go to the ends of the earth to correct it."
Associated Press: July 24, 1991
Jackson, Alphonso. (Executive Director, Dallas Housing Authority)
"Clarence has the greatest appreciation for Thurgood Marshall,
for Martin Luther King. He knows, he truly knows, that without
them we would not be where we are. And that's why he believes
people must be judged on merit and not on the color of their
skin. We've all had experiences with racism, but he did not use
those experiences as a crutch. He used them as a propeller."
Dallas Morning News: July 2, 1991
Keith, Judge Damon. (Judge, United States Court of Appeals, 6th
Circuit) "If I or a member of my family were in trouble, he is
the kind of person I'd like to appear before. Our judicial
philosophy may not be the same, but he is a bright and reflective
man who believes passionately in fairness. I say this without
about him." Wall Street Journal: July 2, 1991
reservation, and in full knowledge of all the people who complain
Kemp, Evan J. (Chairman, EEOC) "He made the EEOC a first-rate law
enforcement agency where people were proud to say they worked.'
Associated Press: July 2, 1991.
Lecraft Henderson, Judge Karen. (Judge, United States Court of
Appeals, DC Circuit) "Clarence Thomas is the American dream
personified." Associated Press: July 1, 1991
Leighton, Richard J. (attorney who argued case before Judge
Thomas) "Judge Thomas' decision in the case [Alpo Petfoods V.
Ralston Purina] has been cited often, and is being discussed in
all the seminars on the Lanham Act (a federal law on false
advertising). It's an extraordinarily clear opinion that's
piece of fluff." Associated Press: July 2, 1991
written in a scholarly fashion. This was a weighty opinion, no
Lits, Judge Arthur. (Judge, Circuit Court of St. Louis County)
"I have known Judge Thomas for over 15 years. He first appeared
before me as Assistant Attorney General of Missouri in an
important case having statewide effect. I immediately was struck
not only by his demeanor, superior knowledge and presentation of
the law, but his fine personality and warmth. The country will
greatly benefit from the acumen, knowledge, and attitude of such
a fine gentleman, lawyer, and judge." Letter of Recommendation
to President Bush: June 28, 1991
Mikva, Judge Abner. (Chief Judge, United States Court of Appeals,
DC Circuit) "He has been a very good colleague." Wall Street
Journal: July 2, 1991
Nunn, Senator Sam. (United States Senator, Georgia) "My intention
right now is to support him, and I'll be having warm words of
support at the hearings." Atlanta Constitution: July 17, 1991
"Clarence comes from a background of a segregated society, and I
think over a period of time, if he is on the court, he will be
very sensitive to discrimination." Washington Times: July 17,
1991
Quevedo, Frank. (former Chairman, Mexican-American Legal Defense
and Education Fund) "[Thomas] made this agency (EEOC)
responsible to the concerns of Hispanics, in word and in deed."
Associated Press: July 25, 1991
Richey, Judge Charles R. (Judge, United States District Court
for the District of Columbia) "I like Clarence Thomas. He's
knowledgeable about the law. 1 think that he has all the
sensitivities required to be a great justice." Associated Press:
July 1, 1991.
Robinson, Judge Aubrey. (Chief Judge, United States District
Court for the District of Columbia) "[Thomas is] a very
hardworking person He'll be very conscientious." Savannah
Morning News: July 5, 1991
santaniello, Judge Angelo. (Justice, Connecticut Suprame Court)
"How would I describe him? He's a very warm person. Humble,
personable, intense, straightforward with no airs. Clarence
Thomas is a real fair guy. He shouldn't be stereotyped, because
he won't walk a stereotyped line. Clarence calls it as he sees
it, not as someone wants him to see it." New York Newsday: July
17, 1991
silberman, R. Gaull. (Vice-Chairman, EEOC) "He walked in the
door, rolled up his sleeves and went to work and turned the
agency around. Under Clarence Thomas' leadership, the agency
found its mission as a law enforcement agency and it attained a
credibility that it had never had before." Los Angeles Times:
July 7, 1991.
Spradling, James. (former Chairman, Missouri Department of
Revenue) "He's one of the best lawyers I ever ran into. St.
Louis Post-Dispatch: July 2, 1991
THE WHITE HOUSE
WASHINGTON
July 25, 1991
MEMORANDUM FOR EDE HOLIDAY
FROM:
GARY BLUMENTHAL
SUBJECT:
Clarence Thomas Update
We do not have much to report at this time.
1) Connie Newman's speech to the National Federation of Business
and Professional Women's Clubs on July 22 reportedly went very
well. Nonetheless, they passed a resolution opposing him (see
attached).
2) Bobbie told me yesterday that Gwen King was connecting with
the National Association of Blacks in Government and that it
should work out for their July 29 - August 4 meeting.
3) Just to repeat, Secretary Sullivan is likely to appear at the
Catholic Golden Age Conference on August 15.
4) We are still awaiting word whether Roger Wallace will do the
Texas Hispanic Chamber of Commerce convention on July 27. Thus
far, we have failed with Carla Hills, John Negroponte, Mike
Farren, and Jules Katz. It is Roger's last day as Dep. Und. Sec.
before he heads for his new position as commercial counselor in
Mexico City. Therefore, it is a real inconvenience from a
personal standpoint. I called Shiree yesterday to check what she
thought of Lujan or Madigan, but I havn't heard back from her.
5) Both Alexander and Sullivan are working on the HBCU
resolution. Remember that the goal is made just slightly more
delicate by the ambition of the HBCU Board to be physically
located at the White House.
IDEAS FOR THE FUTURE
Dan Casse of course claims the news in the next few weeks will be
dominated by the William Kennedy Smith trial and the Milwaukee
mass murder case. Nonetheless, a few wild thoughts for future
activities:
a. Alexander has found it very effective to challenge
audiences to read the 1985 Clarence Thomas piece from the
New York Times in which he explains the basis for his
philosophy in life. Others may try a similar tack since
reading Clarence Thomas is more persuasive then listening to
pressure groups.
-2-
Page Two
b. The President may attend the September 11 Stan Scott
dinner. The presence of many Black leaders could make it
an opportune time to mention Judge Thomas.
C. We can remind the Cabinet of the President's discussion
of the nomination at the July 23 Cabinet meeting and suggest
they be prepared for him to possibly raise it again at the
September 4 Cabinet meeting (e.g. follow what he wants).
Please call if you have questions.
RESOLUTION #10
SUPREME COURT NOMINATION
WHEREAS, the National Federation of Business and Professional
women's Clubs, Inc. (BPW/USA) has traditionally supported and
sought to protect individual rights and freedoms foz all and has
promoted and supported said individual rights for women in
particular, and;
WHEREAS, the retirement of Justice Thurgood Marshall has created a
vacancy on the United States Supreme Court and Judge Clarence
Thomas of the U.S. Court of Appeals has been nominated for this
position by President George Bush, and;
WHEREAS, Judge Clarence Thomas has limited experience in the
Judiciary, opposed most affirmative action plans as the former head
of the Equal Employment Opportunity Commission, and appears
reluctant to clearly state his position on basic individual rights,
including a woman's right to reproductive freedom, and failed to
provide full and fair interpretation and enforcement of existing
civil rights laws, and;
WHEREAS, there are many qualified and experienced members of the
Judiciary who aggressively support individuals' rights and freedoms
provided under the Constitution of the United States, now,
therefore, be it
RESOLVED that BPW/USA strongly opposes the appointment of Judge
Clarence Thomas to the Supreme Court, and endorses the appointment
and confirmation of a qualified, experienced Justice to the Supreme
Court of the United states, who aggressively supports and promotes
the preservation of individual rights and freedoms for 211, and be
it further
RESOLVED that BPW/USA ask all state federations and all other
women's organizations to request their U.S. Senators to vote
against ratification of the appointment of Clarence Thomas.
THE WHITE HOUSE
WASHINGTON
October 1, 1991
MEMORANDUM FOR SECRETARY ALEXANDER
FROM:
EDE HOLIDAY
SAA
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Calls placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting the below listed Members of the Senate
on his behalf:
*
Senator Graham
*
Senator Pell
Please place these calls no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluations. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
washington
October 1, 1991
MEMORANDUM FOR SECRETARY MOSBACHER
FROM:
EDE HOLIDA
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Call placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting Senator Bill Cohen.
Please place this call no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluation. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
washington
October 1, 1991
MEMORANDUM FOR SECRETARY BRADY
FROM:
EDE HOLIDAY that
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Call placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting Senator Lloyd Bentsen.
Please place this call no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluation. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
washington
October 1, 1991
MEMORANDUM FOR SECRETARY MADIGAN
FROM:
EDE HOLIDA
MA
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Call placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting Senator Richard Shelby.
Please place this call no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluation. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
WASHINGTON
October 1, 1991
MEMORANDUM FOR SECRETARY SKINNER
FROM:
EDE HOLIDAY SAAA
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Call placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting Senator Wendell Ford.
Please place this call no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluation. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
washington
October 1, 1991
MEMORANDUM FOR SECRETARY LUJAN
FROM:
EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Call placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting Senator Jeff Bingaman.
Please place this call no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluation. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
washington
October 1, 1991
MEMORANDUM FOR SECRETARY DERWINSKI
FROM:
EDE HOLIDA SAA
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Calls placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting the below listed Members of the Senate
on his behalf:
*
Senator Dodd
*
Senator Pryor
Please place these calls no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluations. Your help with this
very important nomination is greatly appreciated.
THE WHITE HOUSE
WASHINGTON
October 1, 1991
MEMORANDUM FOR SECRETARY KEMP
FROM:
EDE HOLIDAY
&
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
SUBJECT:
Calls placed on behalf of Judge Clarence Thomas
As you know, the confirmation vote of Judge Clarence Thomas is
nearing. We are asking for your help in ensuring his
confirmation by contacting the below listed Members of the Senate
on his behalf:
*
Senator Moynihan
*
Senator Lieberman
*
Senator Shelby
Please place these calls no later than Wednesday, October 2 and
contact Fred McClure, Assistant to the President for Legislative
Affairs (456-2230), with your evaluations. Your help with this
very important nomination is greatly appreciated.
7/11/91
MEMORANDUM TO ALL ASSOCIATE DIRECTORS
FROM:
GARY BLUMENTHAL Gary
SUBJECT: JUDGE THOMAS
First, please call your contacts and ask that they seek all
opportunities for their Cabinet member to plug Judge Thomas.
They should keep a tally of all the times their boss does a plug
and report them to you.
Second, you need to review all major addresses by your Cabinet
members between now and mid-October. By COB tomorrow, I want to
present to Ede this separate calendar with a recommendation as to
those speeches where we think the Cabinet member could make it a
major address on behalf of Judge Thomas.
Thank you for your help on this. Please call with questions!