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    "ocrText": "Originally Processed With FOIA(s):\nFOIA Number:\n1998-0207-F\n1998-0207-F\nFOIA\nMARKER\nThis is not a textual record. This is used as an\nadministrative marker by the George Bush Presidential\nLibrary Staff.\nRecord Group/Collection:\nGeorge H.W. Bush Presidential Records\nCollection/Office of Origin:\nCabinet Affairs, White House Office of\nSeries:\nBlumenthal, Gary, Files\nSubseries:\nOA/ID Number:\n07790\nFolder ID Number:\n07790-033\nFolder Title:\nJudge Clarence Thomas [1]\nStack:\nRow:\nSection:\nShelf:\nPosition:\nG\n10\n6\n1\n1\nTHE WHITE HOUSE\nWASHINGTON\nAugust 20, 1991\nMEMORANDUM FOR CABINET AND AGENCY CONTACTS\nFROM:\nGARY BLUMENTHAL Mary\nSUBJECT:\nAdditional Materials on Clarence Thomas\nAttached are additional materials on Supreme Court nominee\nClarence Thomas. These materials were assembled to help\nsummarize Judge Thomas' legal perspective. Therefore, you may\nwish to share this specific packet with your general counsel.\nAttachment\nMATERIALS ON NOMINATION OF JUDGE CLARENCE THOMAS\nTO THE UNITED STATES SUPREME COURT\nPERSONAL\nWEDNESDAY, JULY 17, 1991\nClimb the Jagged Mountain\nThe truth of the matter IS we nave\nexcuses. The women who worked in\nBy Clarence Thomas\nbecome more interested in designer\nthose kitchens and waited on the bus\njeans and break dancing than we are\nknew It was prejudice which caused\nin obligations and responsibilities.\ntheir plight, but that didn't stop them\ngrew up here in Savannah. I\nOver the past 15 years. I have\nfrom working.\nI\nwas born not far from nere (in\nwatched as others have jumped\nMy grandfather knew why his busi-\nPinpoint). I am a child of\nquickly at the opportunity to make\nness wasn't more successful. but that\nthose marshes. a son of this\nexcuses for black Americans. It IS\ndidn't stop him from getting up at 2 in\nsoil. I am a descendant of the\nsaid that blacks cannot start busi-\nthe morning 10 carry ice. wood and\nslaves whose labors made the\nnesses because of discrimination. But\nfuel oil. Sure. they knew it was bad.\ndark soil of the South productive. I\nI remember businesses on East\nThey knew all too well that they were\nam the great-great-grandson of a\nBroad and West Broad that were run\nheld back by prejudice. But they\nfreed slave. whose enslavement con-\nin spite of bigotry. It IS said that we\nweren't pinned down by it. They\ntinued after my birth. I am the prod-\ncan't learn because of bigotry. But I\nfought discrimination under W.W.\nuct of hatred and love the hatred of\nknow for a fact that tens of thousands\nLaw (a Georgia civil rights leader|\nthe social and political structure\nof blacks were educated at historical-\nand the N.A.A.C.P. Equally impor-\nwhich dominated the segregated.\nhate-filled city of my youth. and the\nly black colleges. in spite of discrimi-\ntant, they fought against the awful\nnation. We learned to read in spite of\neffects of prejudice by doing all they\nlove of some people - my mother.\nsegregated libraries. We built homes\ncould do in spite of this obstacle.\nmy grandparents. my neighbors and\nin spite of segregated neighborhoods.\nrelatives - wno said by their actions.\nWe learned how to play basketball\nhey could still send\n\"You can make it. but first you must\n(and did we ever learn!). even though\ntheir children to\nendure.\"\nwe couldn't go to the N.B.A.\nT\nschool. They could still\nYou can survive. but first you must\nrespect and help each\nendure. You can live, but first you\nWe have lost something. We look\nother. They could still\nmust endure. You must endure the\nmoderate their use of\nfor role models in all the wrong\nunfairness. You must endure the ha-\nplaces. We refuse to reach back in our\nalcohol. They could still be decent,\ntred. You must endure the bigotry.\nnot too distant past for the lessons\nlaw-abiding citizens.\nYou must endure the segregation.\nand values we need to carry us into\nI had the benefit of people who\nYou must endure the indignities.\nthe uncertain future. We ignore what\nknew they had to walk a straighter\nI stand before you as one who had\nhas permitted blacks in this country\nline, climb a taller mountain and car-\nthe same beginning as yourselves\n10 survive the brutality of slavery and\nry a heavier load. They took all that\nas one who has walked a little farther\nthe bitter rejection of segregation. We\nsegregation and prejudice would al-\ndown the road. climbed a little higher\noverlook the reality of positive values\nlow them and at the same time fought\nup the mountain. I come back to you,\nand run to the mirage of promises.\nto remove these awful barriers.\nwho must now travel this road and\nYou all have a much tougher road\nvisions and dreams.\nclimb this jagged, steep mountain\nI dare not come to this city, which\nto travel. Not only do you have to\nthat hes ahead. I return as a messen-\ncontend with the ever-present big-\nger - a front-runner, a scout. What\nonly two decades ago clung so tena-\nclously to segregation. bigotry and\notry, you must do so with a recent\nlies ahead of you IS even tougher than\nJim Crowism. to convince you of the\ntradition that almost requires you to\nwhat IS now behind you.\nfairness of this society. My memory\nwallow in excuses. You now have a\nThat mean. callous world out there\nIS 100 precise. my recollection too\npopular national rhetoric which says\nIS still very much filled with discrimi-\nkeen. to venture down that path of\nthat you can't learn because of rac-\nnation. it still holds out a different life\nself-delusion. I am not blind to our\nism. you can't raise the babies you\nfor those who do not happen to be the\nhistory - nor do I turn a deaf ear to\nmake because of racism. you can't\nright race or the right sex. It is a\nthe pleas and cries of black Ameri-\nget up in the mornings because of\nworld in which the \"haves\" continue\ncans. Often I must struggle to contain\nracism. You commit crimes because\n10 reap more dividends than the\nmy outrage at what has happened to\nof racism. Unlike me. you must not\n\"have-nots.\"\nblack Americans - what continues to\nonly overcome the repressiveness of\nYou will enter a world in which\nmore than one-half of all black chil-\nhappen - what we let happen and\nracism, you must also overcome the\nlure of excuses. You have twice the\nwhat we do to ourselves.\ndren are born primarily to youthful\nIf 1 let myself go. I would rage in\njob I had.\nmothers and out of wedlock. You will\nthe words of Frederick Douglass:\nDo not be lured by sirens and pur-\nenter a world in which the black teen-\n\"At a time like this. scorching irony.\nveyors of misery who profit from\nage unemployment rate as always IS\nnot convincing argument. IS needed.\nconstantly regurgitating all that IS\nmore than double that of white teen-\nOh! Had I the ability, and could reach\nwrong with black Americans and\nagers. Any discrimination, like sharp\nthe nation's ear. 1 would today pour\nblaming these problems on others. Do\nturns in a road. becomes critical be-\nout a fiery stream of biting ridicule\nnot succumb to this temptation of\ncause of the tremendous speed at\nblasting reproach. withering sarcasm\nalways blaming others.\nwhich we are traveling into the high-\nand stern rebuke. For it IS not light\nDo not become obsessed with all\ntech world of a service economy.\nthat IS needed. but fire: It IS not the\nthat IS wrong with our race. Rather,\nThere IS a tendency among young,\nbecome obsessed with looking for so-\nupwardly mobile. intelligent minor-\ngentle shower. but thunder. We neec\nthe storm. the wnirlwind and the\nlutions to our problems. Be tolerant of\nalies to lorget. we forget the sweat of\nall positive ideas: their number IS\nour forefathers. We forget the blood\nearthquake.\"\nmuch smaller than the countless\nof the marchers. the prayers and\nI often hear rosy platitudes about\nnumber of problems to be solved. We\nhope of our race. We forget who\nthis country - much of which IS true.\nBut how are we black Americans to\nneed all the hope we can get\norought us into this world. We over-\nfeel when we have so little in a land\nMost importantly, draw on that\n100K wno put 1000 in our mouths and\nclothes on our backs. We forget com-\nwith so much? How IS black America\ngreat lesson and those positive role\nmitment to excellence. we procreate\nto respond to the celebration of the\nmodels who have gone down this road\nbefore us. He are Daogered and\nwith pleasure and retreat from the\nwonders of this great nation?\nIn 1964. when 1 entered the semi-\npushed by our imenus and peers to do\nresponsibilities of the babies we\nnary. I was the only black in my class\nunlike our parents and grandparents\nproduce.\n- we are told not to be old-fashioned.\nWe subdue. we seduce. but we don't\nand one of two in the school. A year\nlater, I was the only one in the school.\nBut they have weathered the storm.\nrespect ourselves. our women. our\nbabies. How do we expect a race that\nNot a day passed that I was not\nIt is up to us now to learn how.\nCountless nours 01 research are spent\nhas been thrown into the gutter of\npricked by prejudice.\nBut I had an advantage over black\nto determine why blacks fail or why\nsocio-economic indicators to rise\nstudents and kids today. I had never\nwe commit crimes. Why can't we\nabove these humiliating circum-\nstances if we hide from responsibility\nheard any excuses made. Nor had I\nspend a few hours learning now those\nseen my role models take comfort in\nclosest to us have survived and\nfor our own destiny?\nhelped us get this far?\nahead and taken a long. hard look. I\nhave seen two roads from my perch a\nfew humble feet above the madding\ncrowd. On the first, a race of people is\nrushing mindlessly down a highway\nof sweet, intoxicating destruction,\nwith all its bright lights and grand\npromises constructed by social scien-\ntists and politicians. To the side, there\nis a seldom used, overgrown road\nleading through the valley of life with\nall its pitfalls and obstacles. It is the\nroad - the old-fashioned road -\ntraveled by those who endured slav-\nery, who endured Jim Crowism, who\nendured hatred. It is the road that\nmight reward hard work and disci-\npline, that might reward intelligence,\nthat might be fair and provide equal\nopportunity. But there are no guaran-\ntees.\nYou must choose. The lure of the\nhighway is seductive and enticing.\nBut the destruction is certain. To\ntravel the road of hope and opportuni-\nty is hard and difficult, but there is a\nchance that you might somehow,\nsome way, with the help of God, make\nit.\n1.)\n150rt\nAUGUST 6, 1991\nMargaret Bush Wilson\nThe NAACP Is Wrong on Thomas\nThe young man standing at my door that\nSome have said that despite his chairmanship\nHe promised he would, and Judge Thomas has\nsummer day in 1974 looked like an African\nof the Equal Employment Opportunity Commis-\nbeen keeping his word ever since, looking out for\nprince. \"Hello, I'm Clarence Thomas,\" be said. T\nsion for eight years, he has not been a champion\nthe vulnerable and victimized on the job, in the\now,\" I replied. I've been expecting you.\" And\nof civil rights. Those people obviously don't know\ncommunity and at the court. I know that as a\nbegan a friendship with someone I think of\nJudge Thomas or the real facts about his tenure\nSupreme Court justice Clarence Thomas will\nndly as a second son.\nwith the EEOC. His record will speak for itself\ncontinue to defend and protect the rights of the\nI first heard of young Thomas (then almost 26)\nand will impress those willing to listen and look\nneedy. He does not permit anyone to think for\nfrom his employer-to-be, Sen. John Danforth\nbeyond misinformed rhetoric. On a personal\nhim, and be is intellectually honest.\n(R-Mo.), who was attorney general of Missouri at\nthe time. Mr. Danforth told me he had just hired\nlevel, be knows the struggle and hardship blacks\nWhen the history of these times is written, it\na bright young law graduate from Yale and asked\nand the impoverished of every race grapple with\nwill be interesting to see how historians view the\ndaily-not to mention the plight of most families,\nposition of the National Board of the NAACP-\nif I knew of a place the young man could live for\nthe summer while studying for the Missouri bar.\nsince in my judgment the central issue of our\nan organization committed to advancing colored\ntime is that some 82 percent of the families in\npeople, which is opposed, on ideological grounds,\nMy own son, Robert, was then a law student with\nplans to work that summer in Washington. I\nthese United States have no discretionary income\nto this nomination of a black man to the U.S.\nafter bills and taxes are paid.\nSupreme Court.\ninvited young Clarence to stay in my son's empty\nroom.\nWe didn't talk much about Judge Thomas's\nLet the record show that the NAACP's former\nI don't recall seeing another young person as\nbackground that summer 17 years ago, so it is\nnational board chair respectfully disagrees with\ndisciplined as Clarence Thomas. First thing,\nonly recently that I have learned about his\nits position.\nevery day, be would exercise with my son's\nhumble beginnings. The cramped house with no\nThe writer, an attorney in St. Louis, chaired\nweights and then be off to his studies. I asked of\nplumbing in rural Georgia, his wise but not\nlearned grandparents, the Catholic nuns and the\nthe National Board of Directors of the\nhim only one thing: I would prepare dinner, and\nbe would show up on time. We would eat\nrest have only recently come into full view for\nNational Association for the Advancement\ntogether every night, often with one or two\nme. To rise above the dual curses of poverty and\nof Colored People from 1975 to 1984.\nfriends or relatives and talk about any and all of\ndiscrimination requires tremendous individual ef-\nthe problems of the world.\nfort from a special kind of person, help from\nWe didn't always agree (Clarence was \"con-\nothers and luck. All these have been present in\nservative\" even then), but I was impressed con-\nJudge Thomas's career.\ntinually with one so young whose reasoning was\nThroughout the history of the U.S. Supreme\nso sound. I must also admit that his arguments,\nCourt, I don't believe any other nominee can\nboth legal and logical, forced me to rethink some\nclaim to have come so far. In point of fact, Judge\nof my own views. I know I sometimes made him\nThomas's unique perspective belongs not only on\nsee things differently, too, because Clarence\nthe Supreme Court but in the legislature, in the\nThomas knew how to listen as well as talk.\nwork place, at city hall and on our campuses.\nTOSS the years, I have kept in touch with\nNo one can deny that Judge Thomas would\nThomas, and to this day I respect his\ndiffer with Justice Thurgood Marshall on some\ngrity, his legal mind and his determination.\nissues. I don't always agree with the justice\nEven when we disagree, I have found him to be a\nmyself. I do believe that both men show a\nsensitive and compassionate person trying to do\ncommon, fundamental belief in the inherent\nwhat is right, working to make the world a better\nworth and rights of the individual. At one of his\nplace.\nfour previous Senate confirmation hearings.\nBack then I sensed that he would one day be in\nJudge Thomas said. \"The reason I became a\na position to have a larger impact, but I had no\nlawyer was to make sure that minorities, individ-\nway of knowing that this determined young man\nunis who did not have access to this society,\nmight one day have the chance to tackle some of\nour country's problems on this nation's highest\ngained\naccess.\nI may differ with others on\nhow best to do that, but the objective has always\ncourt.\nbeen to include those who have been excluded.\"\nRecently, the NAACP National Board took\naction opposing Judge Thomas's nomination. I\nAs young Clarence Thomas left my home at\nwish it had withheld judgment until after the\nthe end of the summer, be asked how much he\nhearings, because the Clarence Thomas I have\nowed for his stay. I told him that he owed me\nbeen reading about often bears little resemblance\nnothing, but I did want a promise from him. I\nto the thoughtful and caring man I have know\nasked him to promise that if be were ever in a\nover these years.\nposition to reach out and help others that he\nJudge Thomas reflects the diversity and com-\nwould do it, just as some had done for me and as I\nplexity of African-American thinking, but his\nhad done for him.\nviews are not nearly as radical as his critics\nsuggest. He has pushed for a new frontier in civil\nrights, and heaven knows we need one when\none-third of African Americans are still in poverty\nas we approach the 21st century. He seeks a\nclimate where African Americans and other mi-\nnorities feel empowered to compete equally with\ntheir counterparts of other races, with rational\nsupport from government programs.\nTHE WALL STREET JOURNAL.\nTUESDAY. JULY 2. 1991\nLiberal Praise\nThe Marshall Seat\nThe choice aiso will put Democrats on\nthe defensive: Judge Thomas draws praise\neven from some liberals. \"He has been a\nBush's Court Nominee,\nvery good colleague.\" says Chief Judge\nAbner Mikva of the appeais court here. a\nformer Democratic congressman. Moreo-\nA Black Republican,\nver. Democrats specifically urged the\npresident to consider appointing a minor-\nIs Deft Political Choice\nity-group member to fill the vacancy that\nwas created when Thurgood Marshall an-\nnounced his retirement last Thursday.\nJudge Thomas's association with mod-\nConservatives Laud Thomas:\nerate Republican Sen. John Danforth of\nMissouri. for whom he worked after his\nLiberals May Be Hard Put\ngraduation from Yale Law School in 1974.\nwill also weigh in his favor. Mr. Danforth's\nTo Mount a Strong Attack\nsupport will help reassure many moderate\nSenate Democrats and Republicans. much\nas New Hampshire GOP Sen. Warren Rud-\nGrandson of a Sharecropper\nman's sponsorship of David Souter did af-\nter President Bush nominated him last\nJuly.\nBy STEPHEN WERMIEL\nWhile liberals will focus on Judge\nAnd PALL M. BARRETT\nThomas's legal inexperience. his record on\nStaff Reporters of THE WALL STREET RNAL\nWASHINGTON-By choosing Clarence\nthe bench doesn't present them with the\nThomas. a conservative black federal\nsort of target they had with the articu-\njudge. for the Supreme Court. President\nlated. sharply conservative legal views of\nBush may have defused a fierce political\nRobert Bork. whose Supreme Court nomi-\nnation was defeated in 1987.\nbattle over the high court's shift to the\nA number of Senate Democrats. includ-\nright.\nJudge Thomas. who has been sitting on\ning Judiciary Chairman Joseph Biden of\nthe federal appeals court in Washington for\nDelaware. stressed when Judge Thomas\njust 14 months. won't be confirmed without\nwas confirmed for the appeals court that\na fight in the Senate focusing on his inex-\nhe would face tougher scrutiny if he were\nperience on the bench and his strong oppo-\nnominated for the Supreme Court. But that\nsition to affirmative action.\nwill be a difficult position to defend in light\nof Mr. Thomas's success last year in de-\nBut barring damaging unforeseen reve-\nlations about Judge Thomas. Democrats\nflecting liberal criticism.\nwill have a hard\nJudge Thomas's strong opposition to af-\ntime mounting a\nfirmative action and the abortion debate\nbroad-based cam-\nwill be grist for his confirmation hearings.\npaign against the af-\n\"I don't know where Judge Thomas stands\nfable 43-year-old.\non a woman's right to choose. but I intend\nwho is smart. tough\nto find out.\" said Democratic Sen. Howard\nand speaks power-\nMetzenbaum of Ohio. who was the lone op-\nfully about overcom-\nponent last year in the Senate Judiciary\ning racism and pov-\nCommittee's 12-to-1 approval of his appeals\nerty in the deep\ncourt nomination. \"Women have a right to\nSouth.\nknow whether Judge Thomas is committed\n\"Anybody who\nto protecting their fundamental rights.\"\ntakes him on in the\nAbortion and Catholicism\narea of civil rights is\nAbortion-rights groups are also likely to\ntaking on the grand-\nClarence Thomas\nbe concerned about the fact that Judge\nson of a sharecrop-\nThomas is a Catholic who spent a year in a\nper.\" observes conservative Republican\nMissouri seminary in the 1960s pondering\nSen. Orrin Hatch of Utah.\nthe priesthood. AS other Supreme Court\nJudge Thomas's nomination yesterday\nnominees have done. however. Judge\ngot a restrained reaction from many Sen-\nThomas is likely to go to great lengths to\nate Democrats. Civil rights groups. too.\navoid committing himself on abortion. an\nsaid they will have to study his record.\nissue that is expected to come before the\nboth in his brief tenure on the appeals\ncourt again and again.\ncourt and as chairman of the Equal Em-\nThe reaction from civil rights groups\nployment Opportunity Commission during\nwas muted. Raiph Neas. executive director\nthe Reagan administration.\nof the Leadership Conference on Civil\nMr. Bush's choice IS a bold political\nRights. said. With so many constitutiona!\nmove. coming in the midst of the current\nnehts and personal liberties a: stake. the\ndebate over civil rights legislation and\nSenate must make sure Clarence Thomas\nquotas. The president has nominated a\ncas demonstrated a commitment to equal\nman wno would be not merely the second\nopportunity and equal justice under the\nblack to serve on the Supreme Court. but a\nWe urge the Senate no: to rush to\nman who embodies the ideal of personal\nsucgment.\nachievement rather than reiiance on gov-\nTo friends and colleagues of Judge\n-rnment programs for a 1-0 up.\nThomas. nis own life story :S the mos:\ncompelling thing about him. With Justice\nMarshall retirement. CIVI! rights advo-\ncates worried that there would no longer\nsaid, \"I firmly insist that the Constitution\nbe anyone on the court who had exper-\nbe interpreted in a colorblind fashion\nenced racial segregation. Though Judge\nemphasize black self-help, as opposed to\nThomas may not find favor with those\nracial quotas and other race-conscious le\ngroups. the fact is that he knew nothing\ngal devices that only further and deepen\nbut segregation as he grew up outside Sa-\nthe original problem.\"\nvannah. Ga., in the 1950s.\nSince he has been on the federal benca\nBorn into rural poverty. he lived in a\nliberal and conservative legal analysts\nhouse with no bathroom until he was seven\nagree. the relatively few opinions he has\nyears old. His father left when he was\nwritten don't suggest a strong ideological\nyoung. and his mother sent him to live\nslant. although he has tended to rule for\nwith his grandparents.\nthe government in criminal cases and in\nThe grandparents raised him with strict\nbusiness regulatory matters.\ndiscipline. instilling in him a strong work\nOne highly controversial case on which\nethic. and sent him to an all-black Catholic\nJudge Thomas sat earlier this year has ye:\nschool run by white nuns. Yesterday.\nto be decided. A three-judge panel of the\nspeaking at a news conference at Presi-\nappeals court is considering the constitr-\ndent Bush's home in Kennebunkport.\ntionality of a Federal Communications\nMaine. Mr. Thomas choked up when he\nCommission policy giving preference to\ntalked about his grandparents' influence.\nwomen for broadcast licenses. The others\nFor a moment. it appeared that he might\nnot be able to finish his statement. He\non the panel were Judges Mikva and\npraised them as well as \"my mother and\nJames Buckley. a conservative. The ques-\nthe nuns. all of whom were adamant that I\ntions are: Will Judge Thomas use the case\nto once again attack affirmative action\ngrow up to make something of myself.\"\nand will that pour fuel on his confirmation\nAs a child. Judge Thomas said, \"I could\nfight?\nnot dare dream that I would ever see the\nJudge Thomas is well-liked by col-\nSupreme Court, not to mention be nomi-\nleagues. both at the EEOC. where the new\nnated to it. Indeed. my most vivid child-\nheadquarters building is named for hirr.\nhood memory of the Supreme Court was\nand at the appeals court.\nthe 'Impeach Earl Warren' signs which\nRicky Silberman. a close friend who IS\nlined Highway 17 near Savannah. I didn't\nvice chairman of the EEOC and whose\nquite understand who this Earl Warren fel-\nhusband. Laurence. sits on the appeais\nlow was, but I knew he was in some kind of\ncourt. says: \"He is a very simple persoz\ntrouble.\"\nwho loves to say he was a farm boy and\nThe first person in his family to attend\nremains a farm boy.\" A sometime jogger\ncollege. Judge Thomas spent a year at Lm-\nand weightlifter. he enjoys reading and lis-\nmaculate Conception Seminary in Concep-\ntening to music ranging from classical tc\ntion Junction. Mo., before transferring to\nhis favorite. country singer George\nHoly Cross College in Worcester, Mass. Af-\nJones.\nter law school. he went to work for Mr.\nFor much of his tenure at the EEOC.\nDanforth. who was then Missouri's attor-\nMr. Thomas was a single parent. raising a\nney general.\nson. Jamal. Some friends have expressed\nconcern that the bitterness of the divorce\nAfter two years in the Monsanto Co. le-\nfrom his first wife could spill over into his\ngal department. Judge Thomas rejoined\nconfirmation hearings. His second wife\nMr. Danforth. by then a U.S. senator. He\nVirginia. a deputy assistant secretary a:\nthen served for a year as chief of the U.S.\nthe Labor Department. is white.\nEducation Department's civil rights office\nbefore President Reagan appointed him\nIn light of the administration's strong\nattack on racial quotas in hiring. Presiden:\nchairman of the EEOC in 1982.\nBush's selection of a black man to fill Jus-\nHis eight-year tenure at the EEOC was\nmarked by controversy. He changed the\ntice Marshall's seat brought questions\nabout whether he was in fact observing a\nagency's approach to de-emphasize set-\nquota on the court. In his press conference.\ntling large numbers of cases quickly. con-\nMr. Bush strongly denied the very though:\ncentrating instead on instances in which\nof that. insisting that race wasn't a factor\nspecific victims of discrimination could be\nin the selection of Judge Thomas.\nidentified. In age discrimination. particu-\n\"The fact that he is black-a minor-\nlarly. that created case backlogs that dis-\nity-has nothing to do with this.\" the prest-\ntressed advocates for senior citizens.\ndent said. \"He is the best qualified.\"\nLiberals charged that. across-the-board.\nJudge Thomas. who just turned 43 last\nthe EEOC under Mr. Thomas's leadership\nweek. would be the youngest Supreme\ndidn't aggressively attack civil rights vio-\nCourt justice of the past 100 years with\nlations. \"As chairman of the EEOC. Clar-\nthe exception of William O. Douglas, who\nence Thomas failed to demonstrate a com-\njoined the court when he was 40. Senate\nmitment to civil rights and liberties.\" says\nJudiciary Committee hearings on the\nNan Aron of the liberal Alliance for Jus-\nThomas nomination are expected to be\ntice.\nheld in September. If they go smoothly.\nBut Mr. Thomas had strong views and\nJustice Thomas could be sworn in before\ndidn't shrink from expressing them.\nthe new Supreme Court term begins or.\nRather. he seized every opportunity-in\nOct. 7.\ncluding writing letters to editors. op-ed\npage articles and book reviews-to attack\naffirmative action as patronizing and as an\nineffective remedy for discrimination. In a\n1987 letter to The Wall Street Journal. he\nThe New Hork Times\nVEDNESDAY. IULY 3. !991\nInfluence of Nuns Lives\nOn With Court Nominee\nyears said today that the Clarence\nfriend and their conviction that his\nSAVANNAH. Ga.. July 2 - The old\nSt. Benedict the Moor School on East\nThomas they knew is not the one-di-\nviews on racial matters, though un-\nmensional conservative caricature\nconventional. may just be right.\nGordon Street here. which Clarence\nthat some news accounts have por-\n\"He's a controversial figure and I\nThomas attended for eight years in\ntrayed.\ndon't agree with all his positions, but I\nthe 1950's and 60's. has long been\nthink he will make a superb judge,\"\nclosed. a footnote to the history of seg.\n'No Knee-Jerk Conservative'\nMr. Guest said. \"I just pray he will be\nregated Savannan. Its windows are\nThey recall a young man involved\nconfirmed.\"\nboarded up. its swings broken. its plv-\nwith black student protests at Holy\nA Conservative View\nwood doors padlocked: the Irish nuns\nCross College, a receptive student of\nMr. Douglass, a criminal defense\nwho taught there. whom some white\nthe writings of Malcolm X, a fledgling\nlawyer, predicted that Judge Thomas\nseminarian who gave up the possibil-\ntownspeopie called the \"nigger SIS-\nwould rule conservatively in criminal\nity of a religious vocation after a\nters.\" have ali retired to convents\nlaw and privacy cases. \"Miranda IS\nbrush with ugly racism.\nnot going to find much comfort in\nelsewhere.\n\"It had to be hard coming up as a\nClarence Thomas.\" he said. But he\nBut their influence. and St. Bene-\nblack from the South into a northeast-\nadded: \"He's going to hold himself\ndict's. lives on in Judge Thomas. as\nern white community with a heavy\nspiritually accountable for his deci-\nhe quickly and regularly acknowl-\npopulation from Boston, but he didn't\nsions. He's not going to rule one way\nedges. Fourteen months ago. three of\nlet it throw him at all.\" said Father\nor the other because of pressure. He\nthe nuns were present when he took\nJohn E. Brooks, President of Holy\ncame up the rough side of the moun-\nhis seat on the United States Court of\nCross in Worcester, where Judge\ntain. and I know he's not going to be\nThomas spent his undergraduate\ninsensitive.\"\nAppeais for the District of Columbia\nyears as an English major. \"He's not\nSome who have long known Judge\nCircuit. He mentioned the nuns again\na complainer.\"\nThomas depict a man who has lost\non Monday. as ne stood beside Presi-\n\"He's obviously not a flaming lib-\ntouch with his roots and grown am-\ndent Bush in Kennebunkport. Me.\neral, but he's no knee-jerk conserva-\nbivalent about his racial identity, a\nAlo\nwith his grandparents and\ntive either.\" Father Brooks contin-\none-time black nationalist keeping\nm\nhe said. the nuns had been\nued. \"He wants to do his own think-\ncompany with conservative Republi-\nat that I grow up to make\ning. He's not following a crowd.\"\ncans. It is an evolution that both\nsomething of myself.\"\nJudge Thomas does represent an\ngrieves and puzzles these people.\nOld and fragile though they have\nodd, seemingly contradictory amal-\n\"I'd like to see if the person I knew\ngam of influences. He bears the mark\n20 years ago IS still there lodged\nbecome. Sisters Mary Carmine and\nof Booker T Washington whose nh.\nsomewhere deep inside of him. and if\nVirgilius and Mary Daniel and Aquin\nthe public person he's become over\nwill undoubtedlv be invited to Wash-\nlosophy of self-reliance was transmit-\nthe past 15 years IS more than a ve-\nington if their former student takes\nted principally through Judge\nneer.\" said Lanı Guinier. who now\nhis place on the United States Su-\nThomas's grandfather. Myers Ander-\nteaches at the University of Pennsyl-\npreme Court.\nson, the Savannah fuel and ice dealer\nvania Law School. She expressed\nwith whom he went to live at the age\nWhether or not the Franciscan\nhope that the magnitude of the Su-\nof 7. The better he prepared himself,\nnuns attended the ceremony. their\npreme Court would prompt Judge\nMr. Anderson told his grandson, the\nThomas to reflect upon and reconnect\npresence would certainly be felt.\nless dependent he would be on the\nhimself to his roots.\nTheir teachings are present in the\nwhite man.\nIn the tall of 1967. Clarence Thomas\ndefiant. almost-Darwinian conviction\n\"Clarence always seemed like a go-\nand 64 other young Catholic men en-\nthey instilled in Clarence Thomas\ngetter, but you didn't pay too much\ntered Immaculate Conception Semi-\nthat with enough hard work and\nattention because his grandfather\nnary in the nortwestern Missouri\ndetermination he could overcome\nwas like that.\" said Geraldine Wil-\ntown of Conception with the goal of\nquadruple handicaps: being black. fa-\nliams of Savannah, a long-time\nbecoming priests. Half the students.\ntherless. poor and Catholic in the\nfamily friend.\nincluding Mr. Thomas, left the semi-\nEisenhower-era South.\nThen there are his current political\nnary after the first year.\nmentors, - men like Ronald Reagan,\n\"He and I were not close friends.\"\nBut the nuns' lofty ideals about\nGeorge Bush, John Sununu and the\nsaid Father Benedict Neenan, a class-\nrace. justice and tolerance inevitably\nMissouri Republican Senator, John C.\nmate who is now a Benedictine monk\ncollided with the harsh realities of life\nDanforth, - who have helped make\nand the prior of Conception Abbey.\nin Savannah. Conception. Mo.,\nhim anathema to leaders of tradi-\n\"But in a small class you observe one\nWorcester. Mass.. and New Haven.\ntional civil rights organizations.\nanother quite a bit and I remember\nTo black schoolmates and friends,\nConn.. and the resulting disapoint-\nhim as a very intense person. I re-\nment helped make him the complex\nlike J. Hanson Guest. a lawyer in\nmember him as an excellent student.\nHartford. and Orian Douglass. a law-\nman he has become: fiercely inde-\nWhen he would speak in class he\nyer in Brunswick. Judge Thomas's\npendent. sometimes bitter. stoic, pro-\nknew what he was talking about and\nappointment is a cause for joy. What-\nfoundly skeptical of dogmas, conven-\npeople respected him.\never personal differences might have\ntions. and panaceas.\n\"He didn't speak out a lot in class\nwith him are overridden by two op-\nIn\nens of interviews. Judge\nposing forces: their loyalty to an old\nbut when he did he spoke with ma-\nThe\nfriends. teachers. class-\ntunty and understanding and vou\nma\n.d colleagues from his early\nwould say. Wow. he's been thinking\nabout this.\"\nJEGAL LOBBYING IN THE NATION'S CAPITAL\nweek OF JULY 8, 1991\nVOL. XIV, NO. 7\n$8.00\nClarence Thomas:\nMind and Matter\nHow the Supreme Court Nominee\nBrings His Hard Life Into the Law\nBY TERENCE MORAN\nas his lawyers argued, he was young and\nhad endured a violent, traumatic upbring-\nIt was just another drug appeal, just\ning, even watching as his mother was\nanother lousy, losing case brought to the\nthrown off a roof.\nU.S. Court of Appeals by a kid caught\nNo trial-court judge, Meade noted,\nwith cocaine.\nwould find such a tragic history unusual.\nThe facts before the D.C. Circuit panel\n\"Wait a minute, interjected one of the\nlast October were\njudges on the panel, bearing down on the\nHow the choice is\nsadly familiar.\ngovernment lawyer. \"Doesn't that depend\nplaying at the\nJosé Lopez, the\non where the judge is-whether he's in\nU.S. Courthouse.\n18-year-old de-\nsuburban Fairfax County or Washington,\nPage 7\nfendant, had\nD.C.?\"\npleaded guilty to\nFor a moment, the air in the courtroom\nClarence Thomas carries vivid\nconspiracy to\nwas charged with tension. Judge Clarence\nmemories of American apartheid.\nThomas' 'plain\ndistribute cocaine\nThomas terse, steely demand had lifted\nhow he brings the hard life he has led to\nreading' of the\nbase, and now\nLopez's case out of the realm of abstrac-\nthe law he makes, is the focus of a bur-\nConstitution.\nsought reduction\ntion and into the real world.\ngeoning battle over his nomination by\nVerbatim, Page 8\nof the stiff, 51-\n**It was the only question that Thomas\nPresident George Bush to the Supreme\nmonth sentence\nasked during the arguments, but when he\nCourt.\nmeted out to him\nExcerpts from\nasked it, he cut straight to the heart of the\nAs interest groups choose sides and\nunder federal sen-\n1984 Interview.\nissue,' recalls Stephen Leckar, Lopez's\nSenate staffers pore over the nominee's\ntencing guide-\ncourt-appointed lawyer, who is of counsel\npublic and private record, the search to\nPage 11\nlines.\nat D.C.'s Cohen & White. \"After it hap-\ncapture the essential character of the man,\nAssistant U.S.\npened, I kind of smiled inwardly and\nto limn the mind of Clarence Thomas, has\nAttorney James Meade made the gov-\nthought, 'There's one vote for reality.\nbegun in earnest. It won't be easy.\nemment's routine response that morning,\nLeckar was right-the panel unexpect-\nWillfully iconoclastic, gleefully ec-\nurging the judges to give great deference\nedly found for his client-but his com-\nlectic, Thomas defies categorization. He is\nto the guidelines. There was no need to\nment resonates beyond his case. For the\nlessen Lopez's sentence simply because,\nquestion of Clarence Thomas' reality, of\nSEE THOMAS, PAGE 10\nTHOMAS FROM PAGE\nthat conflict. The harsh questions that\nan advocate of limited government who\nhave always been flung at Thomas-how\nhas recommended sweeping federal power\na black man could strictly construe a\nto punish discriminators. He is a devotee\nConstitution that enshrined slavery, or go\nof original intent in reading the Constitu-\nto work for Ronald Reagan, a president\ntion who also asserts that the open-ended\nwhose blithe ignorance of the black\nconcept of natural law is the basis of that\nAmerican experience is legendary-are\nbound to come to a head when the Senate\nintent. He's a teetotaling Republican who\ndrives a black Corvette.\nJudiciary Committee holds hearings on his\nAmong his favorite recordings are the\nnomination after Labor Day.\nvintage sides of country music legend\n\"These confirmation hearings are more\nHank Williams and the collected speeches\nimportant than any I can remember,' says\nof Malcolm X. He loves the cowboy ro-\nAndrew Popper, a professor at American\nmances of Louis L'Amour and quotes\nUniversity's Washington College of Law.\nThomas Aquinas' Summa Theologica. He\n\"Are we going to see the Clarence\nThomas who believes the Constitution is\nis a private man who has lived a very pub-\nlic life.\nracially blind and who has indicated dis-\n\"I don't fit in with whites, and I don't\nfavor with any type of aggressive af-\nfit in with blacks,\" Thomas once told Le.\nfirmative action, or are we going to see the\nClarence Thomas who is sensitive to con-\ngai Times. \"We're a mixed-up genera-\ntion, those of us who were sent out to in-\ncerns of race and poverty?\"\ntegrate society.\" (For excerpts from the\nThomas does not necessarily recognize\n1984 interview, see Page 11.)\na conflict in those stands, a view that\nWrestling with that confusion has been\npuzzles and angers many civil-rights\nactivists.\nthe central drama of Thomas' public life.\nAt the heart of all of his work in politics\nBut the 43-year-old former Roman\nCatholic seminarian is more than a civil-\nand in the law is an evolving intellectual\nstruggle to reconcile his deeply held con-\nrights curiosity. His views on a host of is-\nve values with his firsthand experi-\nsues, ranging from unenumerated rights to\nantitrust law. reveal a social critic who\npoverty and injustice.\never this philosophical journey\nlooks constantly to the verities and values\nThomas, people who know him say\nof the past to address the pressing ques-\nthat he will carry with him those vivid\ntions of the present.\nchildhood memories of American apart-\nTake Thomas' approach to the problems\nbeid.\nof the poor. Time and again over the\nJudge Clarence Thomas joins President George Bush in Maine July 1.\n\"I grew up under state-enforced segre-\nyears, Thomas has scathingly criticized\ngation, which is as close to totalitarianism\ngovernment welfare programs as a kind of\nand 'right from wrong' were of the highest\nued. \"They were a way of life; they\nas I would like to get,\" Thomas said in a\nslow poison at work in the black commu-\npriority. Crime, welfare, slothfulness, and\nmarked the path of survival: and the es-\n1987 speech to the Heritage Foundation.\nnity, generating a culture of dependency\nalcohol were enemies.\ncape route from squalor.\nMy household, notwithstanding the\nthat has touched his own family.\n\"But these were not issues to be de-\nFor more than a decade, Thomas has\nmyth fabricated by experts, was strong,\nThomas' response to this trend has been\nbated by keen intellects. bellowed about\nbeen in the vanguard of a counter-\nstable, and conservative.\nGod was\nby rousing orators, or dissected by poll-\nrevolution in civil-rights law. and his\ncentral. School, discipline, hard work,\nsters and researchers,' Thomas contin-\nnomination has sparked a decisive bartle in\nSEE THOMAS, PAGE 11\nTHOMAS FROM PAGE 10\nto advocate a return to such old-fashioned\nClarence Thomas Sounds Off\nvirtues as self-reliance and neighborliness.\nMany of his friends and colleagues insist\nthat this constantly reiterated plea for\nSupreme Court nominee Clarence Thomas is anything but reticent. In 1984, 19 months\ncommunity is not mere rhetoric; Thomas\nafter President Ronald Reagan appointed Thomas chairman of the Equal Employment\nwalks the walk.\nOpportunity Commission, Legal Times interviewed him. He sounded off-sometimes\n\"Once or twice a week, he would come\ninto my office and tell me about somebody\nquite bluntly-on a variety of topics. The following are excerpts from that interview:\nhe had met in the elevator or out on the\nstreet, somebody he wanted us to help,'\nOn whether he was tailoring his views on civil rights to\nOn refusing to toe the line:\nrecalls Pamela Talkin, a member of the\nwin a second term at the EEOC:\n\"I'm a Dallas Cowboys fan. I love unpopular causes.\"\nFederal Labor Relations Authority who\n\"I'm not going to lobby for this job. This job has kicked\n*ked as Thomas' chief of staff during\nmy ass, and you can quote me on that\nYou don't just\nOn how the media react to him:\nnure as chair at the Equal Employee\nask for more pain.\"\n\"Here's a strange black. Let's go see if he has two heads\ntunity Commission. \"He was al-\nand tail.\"\nlooking for the person he could pull\nOn his political allies in Washington:\nup.\n\"I don't fit in with whites, and I don't fit in with blacks.\nOn why the government should not be the guarantor of\nJill Mack knows. A 58-year-old collec-\nWe're in a mixed-up generation-those of us who were sent\ncivil rights:\ntion agent with the EEOC, Mack remem-\nout to integrate society.\nIf it were not for [the] few\n\"In order to be free, you have to be independent.\nbers the day Thomas struck up a conver-\nfriends I have who do not give a damn about this stuff, this\nPeople keep trying to sell me sugar-coated dependency, and\nsation with her in the file room shortly af-\nplace could drive me insane.\"\nI'm not going to buy it. The [Reagan] administration is bon-\nter she arrived at the agency. Before com-\nest. It's about time we got some honesty [instead of] people\ning to the EEOC, she had spent many\nOn racial polarity in Washington:\nsmiling in your face. We're playing games with our-\nyears working on her feet in restaurants.\n\"T've showed up in some of the nicest places in this city.\nselves if we think suddenly, overnight, this national gov-\ndeveloping phlebitis in her legs. She was\nYou walk in one of the top-of-the-line restaurants, people\nemment is going to care for us.\"\nalso having some difficulty meeting other\nlook at you like you're out of your mind.\nIn my own\ndemands of her new job.\nneighborhood, I used to get\n\"He told me he was from Georgia,\"\nOn being true to his own beliefs:\nstopped by the cops.\"\n\"I will be me.\nrecalls Mack. \"I'm from Georgia, 100,\nIf [William Bradford Reynolds] gets\nand I used to sharecrop down there. We\non my nerves, I will argue with Brad. If the Civil Rights\nOn promoting greater racial\ntalked about working on the farm, picking\nCommission gets on my nerves, I will argue with them. And\nharmony:\ncotton, pulling corn, you know. He really\nif can't stand the heat, I'll get out of the kitchen.'\n\"You don't see anyone trying\nencouraged me-he put in a good word\nto integrate marriages, do you?\nwith my supervisor, stopped by my desk\nThat would solve everything.\nOn being black in the North vs. the South:\nall the time, helped me get a little training.\n\"h was more difficult for me to live in Massachusetts than\n\"He was always real nice,\" adds\nOn civil-rights activists:\nit was for me to live in Savannah. In Savannah, the rules\nMack, who has since been promoted. \"I\n\"They don't know what the\nwere indeed clear.\nthink he likes to see his people trying to\nbell I am. They have their ac-\nhelp themselves.\"\ncepted version of what the world\nOn being interviewed by private law firms upon gradue-\nDiscrimination's Impact\nshould be like.'\ntion from Tale Law School in 1974:\nThomas' fundamental conservatism\n\"They would always want to talk to me about doing pro\n\"What offends me is the civil-rights community saying\nbono work.\nstems from his well-documented upbring-\nHere I was, really labored over tax\nand\nI'm not black. I may disagree with [then Assistant Attorney\ning in Pin Point, Georgia. The traditions\nthey always wanted me to throw in pro bono. They've got to\nGeneral William Bradford Reynolds] and the Justice De-\nof the rural South-which as recently as\nsay something black to me.\"\npartment, but they don't offend me.\n1910 was home to more than 90 percent of\nall American blacks-lend Thomas' views\nwhy he goes to church any day but Sunday:\nOn being rick:\nthe patina of 19th-century optimism that\n\"I don't like people that much. God is all right. It's the\n\"I have no doubt I'm going to be wealthy, so I don't worry\nendears him to conservatives and alienates\npeople I don't like.\nabout\nit.\nI'll write a book that will sell for $19.95.\"\nhim from liberals.\nBut it is the more immediate experience\ncial discrimination in his own life that\nfused many of Thomas' positions\ndeep-seated bitterness. The prej-\nhis most adventurous excursion in the law,\nnature that precede any social compact-is\nmachinery. The Justice Department fought\nhe has encountered and the respon-\ninto the murky. metaphysical territory of\ndeeply rooted in Roman Catholic teach-\nthe merger, asserting that it would leave\nsibilities he held at the EEOC have led\nnatural law and its relationship to the\ning. Thomas found the tradition alive and\nthe U.S. market with too few suppliers\nThomas to develop an extremely tough\nConstitution.\nwell in the lives and writings of such\nand that new competitors would find it too\nlaw-enforcement approach to anti-\nIn the mid-1980s, as Thomas began to\nAmericans as Abraham Lincoln and\ndifficult to enter the market.\ndiscrimination laws, an approach that\nformulate more ambitious expressions of\nFrederick Douglass. (See \"Verbatim,\"\nThomas, in the July 1990 opinion,\nwould probably shock many conservatives\nhis philosophy, he turned toward the tra-\nPage\nshredded the government's case so thor-\nand libertarians.\ndition of natural law to inform his reading\n\"For a long period of time, he read\noughly that Solicitor General Kenneth\nDuring his tenure at the helm of the\nof American history. The ancient con-\neverything by or about Abe Lincoln,'\nStarr has decided not to file an appeal.\nEEOC, Thomas was fiercely criticized for\ncept-which holds that there are inherent,\nrecalls Talkin, Thomas' EEOC chief of\nThe enthusiastic manner with which\nde-emphasizing systemic attacks on em-\nimmutable principles of right and wrong in\nstaff from 1986 to 1989. \"He would really\nThomas has embraced his work on the\nployers whose work forces were under-\nponder these things-he's the kind of\ncircuit reflects his basic enjoyment of the\nrepresentative of minorities and women.\nperson who literally loses sleep over dif-\nintellectual challenges of the bench. He\nThis policy battle dominated the media\nficult philosophical issues.\"\ngoes out of his way to hire clerks who\ncoverage of the EEOC, obscuring the tack\nThomas' foray into natural rights en-\ndisagree with him, and he assigns all of his\nThomas tried to take.\nabled him to find a way of reading the\ncases to all of his clerks, just to watch the\nIn rejecting most broad-based group\nConstitution in the light of an expanded\nsparks fly.\nremedies to discrimination, Thomas pur-\nversion of \"original intent.\" It also led\n\"He likes his clerks to fight it out.\"\nsued policies that sought to investigate\nhim, Talkin says, to wrestle with the\nsays Clint Bolick of the Landmark Legal\nthoroughly and vindicate fully every gen-\nthomy issue of unenumerated rights in the\nFoundation, a friend and ideological\nuine, individual discrimination complaint.\nConstitution.\nsoulmate of Thomas'. \"He really enjoys\nHis success on that score has been\n\"He would try to figure out whether\nworking with some of the best young\ncontested.\nprivacy is encompassed by the Constitu-\nminds around.\"\nSome of his proposals to carry out his\ntion, what uncnumerated rights are, where\nThe intellectual combat Thomas thrives\npolicy-such as appointing special mas-\nabortion fits in.\" says Talkin, who de-\non should stand him in good stead when be\nters to take over a company's personnel\nscribes herself as a liberal Democrat. \"I\nfaces the Senate, in what promises to be a\ndepartment-are far from the laissez faire\nhonestly believe he's still thinking about\ngrueling confirmation. That struggle will\npolicies that other conservatives prefer.\nall this, and that he recognizes his personal\nin part be an effort to gel Clarence Thomas\n\"There are tougher means of deter-\nviews and subjugates those to what the law\nto define himself and his beliefs to the\nrence. Thomas wrote in a 1987 article\nrequires.'\ncountry. He has passionately resisted such\nfor the Yale Law and Policy Review. \"One\nThomas is clearly still thinking about a\nefforts to pigeonhole him in the past and\nsuch approach would be for courts to im-\nlot of things. His tenure on the D.C. Cir-\nwill probably put up a fight in September.\npose heavy fines and even jail sentences\ncuit has allowed him to return to the world\nBut Thomas' compelling personal his-\non discriminators who defy court in-\nof business law that he left years ago to\ntory, which informs so much of his in-\njunctions against further discrimination.\nfight the Reagan administration's civil-\ntellectual questing, is certain to leave a\n\"I am not aware of any case where a\nrights battles, and friends say he relishes\nlasting impression, no matter what hap-\ncourt has resorted to such measures, and I\nthe change.\npens to his nomination.\nmust wonder why they are so reluctant,'\nPerhaps the most important decision\nHe never forgot where he came\nThomas continued. \"To those of us who\nthat Thomas, if confirmed, will leave with\nfrom,\" says Jill Mack, the EEOC collec-\nder employment discrimination not\nthe D.C. Circuit is his careful, com-\ntion agent whom Thomas encouraged.\nnlawful but also a moral abomi-\nprehensive analysis of horizontal mergers\n\"I'm not talking about Republican, and\nsuch measures are altogether\nin United States V. Baker Hughes.\nI'm not talking Democrat. He's Georgia.\nThe case, brought by the Bush admin-\njust like me.\nThat righteous note, echoed in many of\nClint Bolick says Thomas enjoys\nistration's Justice Department, challenged\n-Reporters Daniel Klaidman and Anne\nThomas' writings on race, is the source for\nhaving his clerks debate cases.\na merger of two manufacturers of drilling\nKornhauser contributed to this story.\ncolleagues like Poldine L. Otto and\nWounded by Discrimination\nand the college IS now coeducational.\nRichard Wieler have of Mr. Thomas.\nSome classmates were baffled by\nDuring Mr. Thomas S senior year.\nthe only black then serving in the of.\nMr. Thomas's decision to leave Con-\nseveral students protested the cam-\nfice of the Missouri Altorney General.\nception. But Tom O'Brien. a close\npus recruitment of students by Gen-\nIt was there ne went after Yale\nfriend whose nome in Kansas City\neral Electric because of its military\nLaw School. Between 1974 and 1977.\nMr. Thomas oiten visited on week-\nwork. When the administration ex-\nMr. Thomas handled felony appeais\nends. said. \"I think Clarence exper-\npelled some protesters. about half\nand represented the Revenue Depart-\nenced some real discrimination\nwere black: the majority of protest-\nment in tax cases. He also was the\nthere.\" Mr. O'Brien. now a high\ners had been white.\nlawyer for the Human Rights Com-\nschool teacher of American history.\nAlmost every black student. includ-\nmission. handling JOD discrimination\nadded: \"He didn't go into names or\nmatters.\ning Mr. Thomas. walked off campus\nspecifics. but It was real and he was\nuntil the administration reinstated\nHis most celebrated case in the\ntorn up a little talking about it. I know\nthose expelled. Father LaBran said.\nmemory of the then-Attorney Gen-\nhe was torn up about It and I was\ncral and now United States Senator.\nStanley E. Grayson, a former\nshocked. I just couldn't see It. I felt\nMr. Danforth, involved a dispute over\nlike such a fool being so close and\ndeputy mavor of New York City, was\nlow-number license plates. distrib-\na friend of Mr. Thomas at Holy Cross,\nbeing oblivious to It.\"\nuted by past Democratic Governors\nwhere they were both active in- the\nMr. Thomas later told several\nblack student union.\nas political favors.\nblack friends about the incident that\nMr. Danforth. a Republican. recalls\n\"Clarence was always an independ-\nsome believe pushed him into leaving.\nsuggesting that Mr. Thomas acknowi-\ncnt thinker.\" Mr. Grayson said. \"He\nOn April 4. 1968, the day Rev. Dr.\nedge the political reality that a lot of\nwas the type who was going to look at\nMartin Luther King Jr. was assassi-\na set of circumstances and reach his\nimportant people. like judges. had the\nnated in Memphis, a group of stu-\nvanity plates and wanted to keep\nown conclusions. And I think that\ndents were watching television cover-\nthem. He suggested his aide let the\nprobably exists today.\"\nage of the event. MMr. Thomas heard\ncase die.\nMr. Grayson said that when he\none white student remark. \"That's\nMr. Thomas refused. another Dan-\nstarted at Holy Cross there were\nwhat they should do to all the nig-\nforth aide recalled. saving he would\nabout 32 black students at the college,\ngers.\"\ndrop the case only if ordered to do so.\nwhich was going through a \"time of\nJerry M. Hunter. general counsel\nbecause \"this IS the law.\" The courts\nheightened sensitivitv.'\nfor the National Labor Relations\nagreed. finding there was no author-\n\"II was a time of adjustment for\nBoard. said of Mr. Thomas: \"He re-\nity in Missouri law for the special\nthe school and, candidly, for many of\nmembers thinking, 'We're supposed\nplates. and he won. The Legislature\n, be people of God. If people have\nus.\" he said. \"It was a predominantly\nhas since restored vanity plates for\nIrish Catholic college that was in the\nat view here. then this is not a place\ndrivers willing to pay a special fee.\nor me to be.' Mr. Hunter and Mr.\nmidst of change. And the black stu-\nAlex Netchvolodoff. a long-time\nThomas met as fellow lawyers in St.\ndent union became a useful sounding\nDanforth assistant who IS now vice\nLouis in the late 1970's.\nboard for initiatives. The student\npresident for government affairs of\nMr. O'Brien said he was surprised\nunion united us.\"\nCox Enterprises in Washington. re-\nto hear Judge Thomas labeled as a\nMr. Thomas was as involved in the\ncalled Mr. Thomas telling him of hid-\nprotests as anyone. Mr. Grayson said.\ning in the back of his classes at Holy\nconservative. After all. he said. this\n'Clarence was always a leader. not a\nCross and Yale. explaining \"I didn't\nwas the same fellow who. as a college\nfollower.\"\nwant anyone to see my blackness. I\nstudent. used to end his letters with\nthe slogan Power to the people.\"\nFather LaBran said he was elated\nwanted them to judge my work.\"\n\"Conservatives and liberals may\nat Judge Thomas appointment to\nMr. Netchvolodoff tells of Mr. Dan-\nboth be surprised if he makes It onto\nthe High Court. \"I hoped it would be\nforth's recruiting Mr. Thomas at\nthe court.\" Mr. O'Brien said. \"Clar-\nClarence.\" he said. \"This country\nYale Law School. where \"he was a\nence Thomas IS absolute integrity.\nneeds a man like him who, I hope. will\nstar.\" Mr. Netchvolodoff said the law\nHe's honest. he's courageous. I can't\nbe a symbol of all people.\"\nstudent actually \"interviewed us.\"\nIn Missouri in the mid-70's a Con-\nasking If he would get good cases and\nimagine him belying his own system\nof beliefs for anything.\"\nfederate flag was usually a redneck\nenough work.\npolitical statement. But on the wall\nChris Brewster. another colleague\nMr. Thomas transferred to Holy\nbehind the desk of a new Assistant At-\nthen and now a Washington attorney,\nCross in Worcester, Mass. He and\ntorney General in Jefferson City, it\nrecalled Mr. Thomas describing the\nmost of the handful of other black stu-\nwas a wry declaration of individual-\npay as \"$11,000 a year and all the\ndents were housed together in Healey\nity. In effect, It meant: \"Don't pigeon-\ngruel he could eat.\"\nDormitory, named for the a black\nhole me.\"\nAnd Mr. Brewster said his friend\nRoman Catholic bishop. said the Rev.\nThat's the most vivid memory old\nnever shared his interest in movies.\nJoseph J. LaBran. who IS still a resi-\nbecause \"he grew UD not going to\ndence counselor at the college. The\nmovies much. All the first-run movies\nadministration thought that placing\nwere in the white-run movie houses\nthe students together would help\nand you had to sit in the balcony\" if\nthem find support in the overwhelm-\nyou were plack in Georgia. He said\ningly white school. he said. But the\nMr. Thomas lust would not 20.\ndormitory has since been integrated\nGov. John Ashcroit. who snared an\noffice with Mr. Thomas for 16\nmonths. called him a candid. frank\nindividual wno was a very hard work-\ner.\"\nJUDICIAL\nTHE WALL STREET JOURNAL.\nJULY 3, 1991\nThe Views of Justice Thomas, According to Judge Thoma\ncourt by giving special-interest groups-\none more chance to explain its deci-\nThe opinions on public policy he held\nbefore he joined the bench are getting a lot\nand occasionally even dolphins and trees-\nsion. (Tennessee Gas Pipeline v. FERC)\nstanding to sue. Judge Thomas took the\nOne case at first glance seems to raise\nof attention. but the best way to predict\nmore traditional approach in a partial dis-\nconstitutional questions, but turns out to be\nhow Justice Clarence Thomas would rule is\nto review how Judge Clarence Thomas has\nsent when a ferry company challenged an\nmore limited. Federal workers asked for a\nruled. In his year on the federal appeals\nexemption from a regulation that the Inter-\npreliminary injunction against a recent\nstate Commerce Commission granted to\nlaw that bars them from accepting pay-\ncourt in Washington, Judge Thomas wrote\none of its competitors.\nment for articles or speeches. This raises\n19 opinions. His political enemies won't\nJudge Thomas wrote in a partial dissent\nfree speech and property rights questions,\nfind much grist in these rulings, which are\ntextbook examples of judicial restraint.\nthat the ferry company had no business in\nbut Judge Thomas's opinion was limited to\nThe cases deal with issues as diverse as\ncourt because it wasn't the \"aggrieved\"\nwhether the trial court was right to deny a\nparty, as required by the statute regulat-\npreliminary injunction. He agreed that the\nRule of Law\ning litigation involving the ICC. The com-\nplaintiffs did not risk irreparable harm by\npany wanted the judges to force the ICC to\nwaiting for the trial court to rule on the\nprepare an environmental impact state-\ncase's merits. (NTEU v. U.S.)\nBy L. Gordon Crovitz\nment before granting new routes to its\nA pair of business cases discloses a so-\ncompetitor. \"I agree that as a matter of\nphisticated\nap-\npolicy, it probably should,\" Judge Thomas\nproach. He ruled\nan airport for Toledo, searches of crack\nwrote. \"As a matter of law, however, the\nagainst a Justice\ndealers and a spat over dog-food claims.\nCommission has no power to regulate fer-\nDepartment claim\nries for environmental reasons.\"\nthat a merger in the\nWhat is most important is the approach\nThis meant the ferry company had no\nmarket for under-\nJudge Thomas took. In interpreting stat-\nutes and precedents, he used close reason-\nstanding to sue, so judges had no right to\nground drilling rigs\ning and shunned any search for shadows,\nhear the case. \"When federal jurisdiction\nwould violate the an-\ntitrust laws. The\npenumbra or emanations.\ndoes not exist, federal judges have no au-\nThe case challenging the expansion of\nthority to exercise it, even if everyone-\nmerger between a\nthe Toledo airport asked whether the Fed-\njudges, parties, members of the public-\nFinnish company\neral Aviation Authority complied with all\nwants the dispute resolved,\" he wrote. \"A\nand a French sub-\nfederal court may not decide cases when it\nsidiary of a Texas\nthe environmental regulations before ap-\nproving the new plans. The plaintiffs in-\ncannot decide cases, and must determine\nfirm would give the\nvoked the broadly worded National Envi-\nwhether it can before it may.\" This is an\ncompany a large\nronmental Policy Act. In upholding most of\nimportant statement of separation of\nU.S. market share,\nClarence Thomas\npowers-not the view of a justice who\nbut Judge Thomas applied the Chicago\nthe FAA's action. Judge Thomas showed a\nwould take social questions away from the\nSchool jurisprudence that now guides the\nkeen wit. He wrote. \"Just as NEPA is not\na green Magna Carta, federal judges are\npolitical branches of government. (Cross-\nSupreme Court. Contrary to the Justice\nnot the barons at Runnymede.\" He said\nSound Ferry Services v. ICC)\nDepartment's big-is-bad approach, he\nthat judges enforce the law \"by ensuring\nJudge Thomas also showed his judicial\nruled that a large market share does not\nrestraint in a case of ineptitude by the\nby itself signal barriers to entry for new\nthat agencies comply with NEPA's proce-\ndures. and not by trying to coax agency\nFederal Energy Regulatory Commission.\ncompetitors. (U.S. v. Baker Hughes)\nJudges have repeatedly ruled that regula-\nAnother case arose when two pet-food\ndecision makers to reach certain results.\"\ntors used arbitrary calculations to deter-\ncompanies exchanged nasty accusations of\n(Citizens Against Burlington v. Busey)\nHis most important constitutional ruling\nmine the proper rate of return for a Ten-\nmisleading advertising-one dog food\nwas on the doctrine of standing. which is\nnessee gas pipeline. Judge Thomas warned\nclaimed it prevented hip disease, the other\nFERC that he was tempted to grant the\nclaimed it was preferred by more veteri-\na key limit to judicial activism. The Con-\npipeline company's request for a certain\nnarians. Judge Thomas reversed part of a\nstitution requires a case or controversy be-\nrate. But, he wrote, \"legitimate concerns\ndamage award because there was no\nfore judges can issue an opinion: there\nmust be real parties with real legal issues.\nabout judicial overreaching always mili-\n\"finding of willfullness or bad faith.\" as\nJudicial activists often wave non-cases into\ntate in favor of affording the agency just\nrequired by the false-advertising statute.\nThis emphasis on bad intent, often over-\nlooked in securities and environmental\ncases, is an important limit on liability.\n(ALPO v. Ralston Purina)\nSeven of Judge Thomas's opinions were\nappeals from drug cases; as a justice, he\nwill have some notion of what it is the po-\nlice are up against. Most of these cases\nwere requests by defense lawyers for a\njudge to find some technical problem with\na search, seizure or confession, which\nJudge Thomas refused. In one case, the de-\nfendants tried to throw a gym bag contain-\ning crack into a sewer when the police ap-\nproached. Other seizures included beepers,\na favorite tool of the drug trade. Judge\nThomas referred to one neighborhood as\n\"an open-air drug bazaar.\"\nHis close reading of a statute led him to\nreverse part of a criminal conviction of a\ndealer named Keith Long. The police used\na search warrant to find cocaine, butane\ntorches for processing the drug and large\namounts of cash. They also discovered a\nrevolver between the cushions of a sofa. A\njury convicted the defendant on the drug\ncharges, but also under a law against\nusing or carrying a weapon in drug traf-\nficking.\nJudge Thomas reversed the firearm -\nconviction. He said the prosecution reason-\ning went too far: \"Long was connected to\nthe drugs; the distribution of the drugs\nwas facilitated by the gun; since Long thus\nderived benefit from the gun, he 'used' it.\nHe rejected this view, saying it would\nmean \"that the word 'use' has no discerni-\nble boundaries.\"\nJudge Thomas is a conservative judge,\nif this means that he views his job as inter-\npreting the law and not making it up or\nruling for or against parties based on who\nthey are. A 30-year period of judicial activ-\nism from the Supreme Court is now des-\ntined to end. Even liberals should be able.\nto resolve themselves to a Justice Thomas,\nwho would know his job is the law and not\npolitics.\nPAGE 101\n14TH CASE of Level 1 printed in FULL format.\nCross-Sound Ferry Services, Inc., petitioner V. Interstate\nCommerce Commission and United States of America,\nrespondents and Viking Starship, Inc., intervenor\nNo. 90-1053\nUNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA\nCIRCUIT\n1991 U.S. App. LEXIS 8977\nNovember 28, 1990, Argued\nMay 10, 1991, Decided\nRIOR HISTORY: [*1]\netition for Review of an Order of the Interstate Commerce Commission.\nDUNSEL: Eugene D. Gulland for petitioner.\nCraig M. Keats, Attorney, Interstate Commerce Commission, with whom Robert S.\nırk, General Counsel, Henri F. Rush, Deputy General Counsel and Evelyn G.\nitay, Attorney, Interstate Commerce Commission, and James F. Rill, Assistant\n:torney General, Catherine G. O'Sullivan and David Seidman, Attorneys,\nepartment of Justice, were on the brief, for respondents.\nward D. Greenberg and Mark T. Priesing were on the brief for intervenor.\nIDSES: Mikva, Chief Judge, Williams and Thomas, Circuit Judges. Opinion for\ne Court filed by Chief Judge Mikva. Opinion concurring in part and concurring\n1 the denial of the petition for review filed by Circuit Judge Clarence Thomas.\n'INIONBY: MIKVA\nINION: In this case, we revisit the propriety of the Interstate Commerce\nmmission's (\"ICC\" or the \"Commission\") finding that certain water carrier\nrvices provided by intervenor Viking Starship, Inc. (\"Viking\") are ferry\nrvices exempt from ICC regulation. In Cross-Sound Ferry Servs., Inc. V. ICC,\n3 F.2d 395 (D.C. Cir. 1989) [hereinafter Cross-Sound I], [*2] we remanded\nr further clarification of the Commission's views as to the scope of the ferry\nemption. After reviewing the Commission's decision on remand, Viking Starship,\nc., Common Carrier Application, 6 I.C.C.2d 228 (1989) [hereinafter Viking II],\nd the contentions of petitioner Cross-Sound Ferry Services, Inc.\nCross-Sound\"), we conclude that the Commission has not changed its policy with\nspect to the ferry exemption. Accordingly, we uphold the Commission's finding\nat Viking is an exempt ferry service, and reject Cross-Sound's procedural\nallenges to the Commission's decisionmaking process. In addition, we find that\ne Commission's decision did not trigger environmental review responsibilities\nder the National Environmental Policy Act or the Coastal Zone Management Act.\nI.\nTn 1988, the Commission granted Viking temporary authority to transport\ngers over two routes in Long Island Sound: (1) Montauk, New York to\nPAGE 102\n1991 U.S. App. LEXIS 8977, *2\noton/New London, Connecticut, and 2) Montauk to Block Island, Rhode Island.\ne Cross-Sound I, 873 F.2d at 396 (describing statutory basis for temporary\ntr izations). Relying on a provision of the Interstate [*3] Commerce Act\na clares transportation provided \"by a ferry\" to be exempt from the\nnm.sion's jurisdiction, see 49 U.S.C. @ 10544 (a) (4) (1988), Viking\nosequently asked the Commission to dismiss its application for a permanent\ncense on the ground that its operations are exempt ferry services.\n>ss-Sound, which transports passengers, automobiles, and freight between\nient Point, New York and New London, challenged Viking's claim, but, as\n:ailed in Cross-Sound I, 873 F.2d at 396-400, the Commission agreed with\nting that its operations are exempt. See Viking Starship, Inc. - Common\nrier Application, 4 I.C.C.2d 634 (1988) [hereinafter Viking I].\nReviewing Viking I, we acknowledged the Commission's \"great latitude in\ntermining the scope of the ferry exemption,' Cross-Sound I, 873 F.2d at 398,\n: found ourselves unable to discern the Commission's interpretation. Id. at\n1. We noted several ICC decisions asserting jurisdiction over apparently\nilar Long Island Sound routes, and suggested that the discrepancy between\nse cases and the Viking decision were \"prima facie evidence [*4] of a\nnge in ICC policy.\" Id. at 399. In addition, we expressed uncertainty about\nsignificance of various factors the Commission uses to determine whether the\nry exemption applies, such as the length and directness of a carrier's route\nthe frequency of service. Id. at 399-400. Given these perceived ambiguities,\nremanded \"for a fuller exegesis of the Commission's views. Id. at 396.\nAlthough it acknowledged on remand that prior decisions may have misconstrued\nsignificance of certain factors flagged by the court in Cross-Sound I, see\n:\nII, 6 I.C.C.2d at 237 (referring to role of absolute distance), the\nion denied changing its view of the ferry exemption, id. @t 233 n.8. It\ntinguished the Long Island Sound cases we cited in our panel opinion, id.,\nexplained in greater detail the factors it uses to determine what\nstitutes a ferry, id. at 235-40. After discussing the general contours of the\nry exemption, the Commission specifically reaffirmed its earlier finding that\ning's services qualify as exempt ferriage under section 10544 (a) (4). [*5]\nat 241-46. In addition, the Commission rejected Cross-Sound's claim that a\nision exempting Viking from the Commission's jurisdiction nonetheless\nigated the ICC to comply with environmental review procedures under the\nional Environmental Policy Act and the Coastal Zone Management Act. Id. at\n-49.\nII.\nIn order to determine whether the Commission has complied with our mandate in\nss-Sound I, we must evaluate the sufficiency of the Commission's explanations\nViking II as to the scope of the ferry exemption. If we find that the ICC's\n:ent view of the ferry exemption \"diverges from agency precedent,\" then, in\ner to uphold the new interpretation, we must also find that the Commission\noplied a reasoned analysis indicating that prior policies and standards are\ng deliberately changed, not casually ignored.' See Hall V. McLaughlin, 864\nI 868, 872 (D.C. Cir. 1989) (quoting Greater Boston Television Corp. V. FCC,\nF.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) ) see also\nr Vehicle Mfrs. Ass'n V. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 57\n3). [*6] If, on the other hand, we determine that the Commission \"has\nin fact diverged from past decisions, [then] the need for a comprehensive\nlicit statement of its current rationale is less pressing.\" Hall, 864\nPAGE 103\n1991 U.S. App. LEXIS 8977, *6\n2d at 872. The agency's explanation in such a case \"need not be elaborate\"; we\nill uphold its findings, \"though of less than ideal clarity, if the agency's\nat ay reasonably be discerned.\" Id. at 872-73 (quoting Greater Boston\ne. sion, 444 F.2d at 851).\netitioner contends that our opinion in Cross-Sound I conclusively determined\nat the agency had changed its policy with respect to the ferry exemption. We\necline, however, to adopt so narrow a view of our earlier holding. We remanded\nne Commission's decision in Viking I precisely because we were unsure what its\nterpretation of the ferry exemption was, see Cross-Sound I, 873 F.2d at 400;\nE would be inappropriate to let our earlier expressions of puzzlement prevent a\nubsequent panel from evaluating the Commission's newly tendered explanations de\novo. Reviewing the Viking II decision, we conclude that the Commission [*7]\nas not diverged from prior precedent.\nFirst, we believe that the Commission persuasively distinguished those cases\nere it has exercised jurisdiction over water carriers operating in Long Island\nound. As the Commission explained in Viking II, 6 I.C.C.2d at 233 n.8, three of\nhe examples that we cited in Cross-Sound I as \"prima facie evidence of a change\na ICC policy,\" 873 F.2d at 398-99, involved the transportation not only of\nassengers but also of freight, a subject area over which the Commission has\nong exercised jurisdiction. See Mascony Transport and Ferry Servs., Inc., 353\n.C.C. 60, 61 (1976), petition for review denied sub nom Cross-Sound Ferry\nervs., Inc. V. U.S., 573 F.2d 725 (2d Cir. 1978) (applicant sought to transport\ngeneral commodities and passengers\" between New London and Greenport, New\nork) i Cross-Sound Ferry Servs., Inc. - Extension, ICC Docket No. W-1290 (Sept.\n3, 1983) (applicant sought to transport \"passengers, general commodities,\nobiles with passengers, and tractors, trailers, and trucks\" between New\n=\nh and Montauk) and B.I. Marine Express, Inc., [*8] ICC Docket No.\n-1450 (Oct. 14, 1986) (applicant proposed to transport \"both passengers and\neneral freight\" between Westerly, Rhode Island and Block Island).\nIndeed, the Commission has repeatedly held that \"the word ferry does not\nenerally include the transportation of goods and merchandise,\" McAllister\nCOS., Inc. - Investigation of Control, 336 I.C.C. 590, 592-93 (1970), and has\nefused to exempt freight carriers from regulation simply because the passenger\nspect of their operation, viewed in isolation, might qualify as a \"ferry.\" Id.\n= 593-94 (finding that carrier authorized to transport passengers and general\nommodities between Bridgeport, Connecticut and Port Jefferson, New York was not\n2 exempt ferry, even though carrier had apparently never exercised its freight\nthority). See also B.I. Marine Express, ICC Docket No. W-1450 (\"ferry service\nentails the transportation of passengers, their automobiles, and\nccompanying baggage, but does not involve the transportation of general\nreight\") Ann Arbor R.R. Co. Common Carrier Application, 250 I.C.C. 490, 491\nL942). The Supreme Court has interpreted the [*9] term \"ferry\" as excluding\nreight services, see St. Clair County V. Interstate Sand and Car Transfer Co.,\n92 U.S. 454, 467 (1904) (noting that \"the ferry business is confined to the\n:ansportation of persons with or without their property\"), as have various\nederal regulations. See, e.g., 46 CFR @ 171.010( (d) (2) (1990) (Coast Guard\nfety regulations) ; 49 CFR @ 171.8 (1989) (hazardous materials transportation).\nAlthough its efforts to distinguish the fourth example of Long Island Sound\nter carrier regulation that we cited in Cross-Sound I are less persuasive, the\n)mmission's view that Shoreline Boating Serv., Inc., ICC Docket No. W-1294\n'ed May 29, 1984), involved excursion operations (i.e., round-trip service\nPAGE 104\n1991 U.S. App. LEXIS 8977, *9\nonly) instead of point-to-point passenger service can be supported. See Viking\nI, 6 I.C.C.2d at 233 n.8 (noting that excursion operations, like freight\n;e ces, have \"historically been regulated\"). The administrative law judge\nit wing Shoreline's original request for operating authority discussed the\nexcursion character of the proposed services in some detail. See Shoreline\nBoating Serv., Inc., Common Carrier Application, [*10] ICC Docket No. W-1294\n(August 19, 1976) (noting that carrier sold \"round-trip transportation tickets\nlone\"; describing public support for the excursion operations; and discussing\nexcursion services offered by carriers contesting Shoreline's request for\noperating authority).\nWe also note that the Commission's decision in Viking II is consistent with\nit least one other decision finding water carrier services on Long Island Sound\nto be exempt ferriage. In North Rip Fish Harvest, Ltd., ICC Docket No. W-1325\n(May 13, 1980), the Commission held that passenger service between Montauk and\nBlock Island - one of Viking's proposed routes - was exempt from regulation\nunder section 10544 (a) (4). See also Michigan-Wisconsin Transp. Co., ICC Docket\nNo. W-1377 (May 15, 1984) (carrier operating across Lake Michigan is exempt\nunder section 10544 (a) (4)).\nFinally, we reject Cross-Sound's suggestion that the Commission's treatment\nof distance in Viking II rises to the level of a change in agency policy. See 6\n[.C.C.2d at 237-40 (noting that earlier cases may have \"overstated\" the role of\nabsolute distance). In Cross-Sound I, we criticized the Commission for failing\n[*11] to explain the significance it attached to the length of a carrier's\n:oute. See 873 F.2d at 399. Viking II suggests that the Commission, consistent\nwith its decision in Michigan-Wisconsin Transp. Co., ICC Docket No. W-1377,\nS distance as a relevant but not dispositive factor in determining whether a\nIcular service qualifies as a \"ferry.\" That is, so long as the carrier\nossesses the usual attributes of a ferry - such as significant time or distance\nsavings compared to overland routes - the absolute length of the route will not\nrevent the carrier from qualifying as a ferry. See Viking II, 6 I.C.C.2d at\n240.\nThis approach is consistent with prior Commission decisions that seemed to\nestablish per se limits on the distances a ferry could travel. As the Commission\nexplained, those decisions also involved services not regularly associated with\nferries. See Viking II, 6 I.C.C.2d at 239-40; Pere Marquette Ry. Co., 260 I.C.C.\n206 (1944) (carrier transporting not only passengers but also railroad cars and\nnewly manufactured automobiles across Lake Michigan); Ann Arbor R.R. Co. Common\nCarrier Application, 250 I.C.C. 490 (1942) [*12] (carrier transporting\nfreight cars, in addition to passengers, across Lake Michigan) Canadian Pacific\nRY. Co. V. U.S., 73 F.2d 831, 834-35 (9th Cir. 1934) (discussing excursion\ncharacter and luxurious nature of service across Puget Sound). Moreover, the\ndistances at issue in this case - between 15 and 30 miles, depending on the\nbarticular route, see Cross-Sound I, 873 F.2d at 397 - are well within the\n50-145 mile upper boundaries even those earlier cases established for ferry\nservice.\nThus, we conclude that the Commission did not diverge from prior precedent or\nolicy in evaluating Viking's services. Accordingly, there was no need for the\nCommission to justify a change in policy. Given the Commission's comprehensive\nliscussion of the ferry exemption, which responded specifically to this court's\nconcerns about apparently inconsistent precedents and the relative importance of\nvarious criteria used to evaluate ferries, we have no difficulty\nPAGE 105\n1991 U.S. App. LEXIS 8977, *12\niscerning the agency's path and conclude that it satisfied the standards for\neasoned decisionmaking.\nHaving concluded that the Commission did not impermissibly alter its view of\nhe ferry exemption, [*13] we may set aside the Commission's decision\npplying the exemption to Viking only if it was \"arbitrary, capricious, an abuse\nf discretion, or otherwise not in accordance with law.\" 5 U.S.C. @ 706 (2) (A)\n1988). See Railway Labor Execs. Ass'n V. ICC, 914 F.2d 276, 280 (D.C. Cir.\n990).\nUnder section 10544 (a) (4), ferries are exempt from regulation \"except to the\nxtent the Interstate Commerce Commission finds it necessary to exercise\nurisdiction to carry out\" the national transportation policy. See 49 U.S.C. @\n0101 (1988) (describing national transportation policy). Applying the\nrinciples it enunciated earlier in its decision, the Commission reasonably\netermined that Viking's Montauk-Block Island and Montauk-Groton/New London\nperations qualify as exempt ferries. See Viking II, 6 I.C.C.2d at 241-42\nnoting the \"frequent and regular\" character of the service; its \"modest,\"\nno-frills\" quality; the absence of any \"freight service whatsoever\" or \"detours\nor sightseeing purposes or for intermediate stops\"; and the services' ability\no \"substitute[ ], with a substantial reduction in overall mileage, for a road\nnd bridge connecting nearby points [*14] in neighboring states\")\nWe can find no error in the Commission's further determination that the\national transportation policy does not require regulation of Viking's services\nr\nder to protect Cross-Sound against potential diversion or \"cream-skimming\"\n1\ns customer base. See 49 U.S.C. @ 10101 (a) (1) (C) (national transportation\nolicy includes encouraging \"sound economic conditions among carriers\") ; Viking\nI, 6 I.C.C.2d at 242-46. The Commission found that the services of the two\narriers differed; that even with respect to shared services - i.e., passengers\nithout vehicles - the distance between Orient Point, New York and Montauk, New\nork (75 \"congested\" highway miles) limited actual competition; and that, in any\nase, there was \"sufficient traffic in the area to accommodate Viking's\nmall-scale operation without driving Cross-Sound out of business.\" Viking II, 6\n.C.C.2d at 243-44.\nCross-Sound contends that the Commission ignored evidence that Viking\nctually offers excursion and freight services inconsistent with the ferry\nxemption. As the Commission concedes, however, Cross-Sound may pursue these\nlleged violations through [*15] a properly framed request for enforcement.\nee Viking II, 6 I.C.C.2d at 230 n.3; 49 CFR Part 1111 (1990) (procedures for\niling complaints with the Commission).\nFinally, we reject Cross-Sound's claims that the Commission erred in failing\nO hold further hearings regarding Viking's services, or in denying the\nompany's discovery requests. Although we suggested in Cross-Sound I that the\nommission might \"find it useful on remand to use a hearing as a vehicle to\ne-examine and articulate its new view of the ferry exemption,\" 873 F.2d at 401,\nhat advice was premised on our assumption that the Commission would be altering\nts traditional ferry policy. Given the agency's \"broad discretion in deciding\nhether to grant a hearing,\" see, e.g., Cities of Carlisle and Neola, Iowa V.\nFRC, 741 F.2d 429, 431 (D.C. Cir. 1984), and its view (which we uphold here)\nthe Viking decisions do not constitute a change in policy, the Commission\nPAGE 106\n1991 U.S. App. LEXIS 8977, *15\nreasonably concluded that hearings would not be \"productive\" and that\n\"additional 'evidence' would not be particularly helpful in addressing the legal\nissues that predominate in this case.\" Viking II, 6 I.C.C.2d at 233. [*16]\nto Cross-Sound's discovery claims, we note this circuit's position that\n'the cysuct and extent of discovery in agency proceedings is a matter\nordinarily entrusted to the expert agency in the first instance and will not,\nbarring the most extraordinary circumstances, warrant the Draconian sanction of\noverturning a reasoned agency decision. See Trailways Lines, Inc. V. ICC, 756\n7.2d 1537, 1546 (D.C. Cir. 1985). No such extraordinary circumstances exist to\nvarrant overturning the Commission's denial of Cross-Sound's discovery requests.\nIV.\nHaving approved on both substantive and procedural grounds the Commission's\nfinding that Viking's services are exempt from regulation under section\n0544 (a) (4), we next address Cross-Sound's contention that the Commission\nviolated the National Environmental Policy Act (\"NEPA\"), 42 U.S.C. @@ 4321-4370b\n1988 & Supp. 1990), and the Coastal Zone Management Act (\"CZMA\"), 16 U.S.C. @@\n451-1464 (1988), by failing to conduct any environmental review of Viking's\nervices.\nAs an initial matter, the Commission contends that Cross-Sound lacks standing\no challenge its actions under either NEPA or CZMA. Standing constitutes a\nhreshold [*17] jurisdictional inquiry. But this court has held that \"when\nhe merits of a case are clearly against the party seeking to invoke the court's\nurisdiction, the jurisdictional question is especially difficult and\na- reaching, and the inadequacies in the record or briefing make the case a\nvehicle for deciding the jurisdictional question, we may rule on the merits\nithout reaching\" the jurisdictional contention. Adams V. Vance, 570 F.2d 950,\n54 n.7 (D.C. Cir. 1978); accord Chinese Am. Civic Council V. Attorney General,\n66 F.2d 321, 325 (D.C. Cir. 1977). See Secretary of the Navy V. Avrech, 418\n.S. 676, 678 (1974) (per curiam) (assuming that district court had jurisdiction\nnd resolving case on the merits, noting that \"even the most diligent and\nealous advocate could find his ardor somewhat dampened in arguing a\nurisdictional issue where the decision on the merits is thus foreordained\")\norton V. Mathews, 427 U.S. 524, 530-532 (1976) (finding it \"unnecessary\" to\nesolve \"difficult and perhaps close jurisdictional arguments\" where a prior\nupreme Court decision dictated resolution of the merits against [*18] the\narty asserting jurisdiction). See also United States V. Augenblick, 393 U.S.\n48, 351-52 (1969) i Southeastern Community College V. Davis, 442 U.S. 397, 404\n.5 (1979). We believe that this is a rare case in which we should exercise our\niscretion to proceed directly to the merits.\nFirst, as discussed more fully below, the merits of Cross-Sound's\nnvironmental contentions can be resolved easily, particularly in light of our\narlier finding that the Commission has not altered its policy with respect to\nne ferry exemption. Second, the question of Cross-Sound's standing is quite\nomplex, involving inquiries into difficult issues such as the prudential\ntanding of competitors, see, e.g., Hazardous Waste Treatment Council V. EPA,\n51 F.2d 277, 282-85 (D.C. Cir. 1988), cert. denied, 490 U.S. 1106 (1989)\nandowner injury, see, e.g., Goos V. ICC, 911 F.2d 1283, 1289-91 (8th Cir.\n990) i and the Commission's statutory authority to consider environmental\nctors under the national transportation policy of 49 U.S.C. @ 10101 in\nmining whether to override the ferry exemption. As to the [*19] last\nPAGE 107\n1991 U.S. App. LEXIS 8977, *19\nuestion, which goes to the redressability of Cross-Sound's asserted injuries,\ne have serious doubts concerning the narrow construction of section 10101 urged\ny X. concurring colleague. See Concurring Opinion at 3-6. Although this court\nu efer to an agency's reasonable interpretation of a statute that Congress\nas entrusted it to administer, see Chevron U.S.A. Inc. V. Natural Resources\nefense Council, 467 U.S. 837, 843 (1984), the Commission has not definitively\nonstrued section 10101 as precluding consideration of environmental factors,\notwithstanding the cursory footnote on which our colleague relies. See Viking\nI, 6 I.C.C.2d at 249 n.33; Concurring Opinion at 4-5. Whether Congress intended\nhe agency's inquiry under section 10101 to encompass environmental\nonsiderations is an intricate question we need not answer on the undeveloped\necord before us. We note only that the term \"efficient,\" which is used in\nection 10101 (a) (1) (B) 's directive that the Commission promote \"efficient\nransportation, has classically been thought to incorporate the full range of\nossible externalities, including environmental costs and benefits. [*20]\nFinally, the administrative record and the briefs in this case provide\nnsufficient factual documentation to verify or disprove Cross-Sound's\nnvironmental standing claims. See Avrech, 418 U.S. at 677-78 (expressing\nnwillingness to decide jurisdictional question without further argument, even\nfter ordering supplemental briefing). Our concurring colleague's view that\nross-Sound's asserted injuries could not be redressed by the Commission, as to\nhich we have serious qualms, allows him to avoid confronting knotty factual\nuestions concerning Cross-Sound's injuries, see Concurring Opinion at 2,\nuestions that would ultimately require a remand to the Commission for further\nindings. Under these circumstances, we deem it appropriate to review the merits\nf Cross-Sound's environmental claims directly, to which we now turn.\nPA\nSection 102 (2) (C) of NEPA requires federal agencies to prepare an\nnvironmental impact statement (\"EIS\") for every \"major Federal action[ ]\nignificantly affecting the quality of the human environment. 42 U.S.C. @\n332 (2) (c). In Viking II, the Commission found that a \"decision simply holding\nhat an operation is a ferry and [*21] declining to take the affirmative step\necessary to assert jurisdiction is not the type of action that triggers\" NEPA\neview. 6 I.C.C.2d at 248. Cross-Sound disputes this interpretation, arguing\nhat the Commission's change in policy with respect to section 10544 (a) (4)\nonstitutes a major federal action under NEPA.\nOur conclusion that the Commission did not change its policy with respect to\nhe ferry exemption might well dispose of Cross-Sound's claim. Indeed,\netitioner's counsel effectively conceded at oral argument that success on the\nolicy change question was a prerequisite to success on the NEPA claim. In any\nase, the only \"action\" the Commission even conceivably took was in finding that\niking's services are statutorily exempt. We believe that Defenders of Wildlife\nAndrus, 627 F.2d 1238 (D.C. Cir. 1980), in which this court held that the\necretary of the Interior's failure to prevent the state of Alaska from carrying\nit a wolf kill program on federal lands did not constitute a major federal\nction, is controlling. There, we held that an agency must undertake some \"overt\nit\" to trigger NEPA's requirements; the agency's mere refusal [*22] to\nercise its statutory authority to act would not suffice. Id. at 1245-46.\nUnlike an ordinary licensing decision, in which the Commission affirmatively\nmines that a water carrier's proposed services are required by the\nPAGE 108\n1991 U.S. App. LEXIS 8977, *22\npublic convenience and necessity\" under 49 U.S.C. @ 10922, the Commission here\nimply applied the statutory ferry exemption of section 10544 (a) (4) and declined\n) ? sert jurisdiction to advance the national transportation policy of section\n01 thereby placing the case squarely within the \"inaction\" rubric of\nefc ers of Wildlife. See Viking II, 6 I.C.C.2d at 247 (noting that section\n0544 (a) (4) \"itself exempts ferry services from our jurisdiction, and all that\ne agency did was to take a look at whether Viking was conducting exempt\nervices\"). Common sense supports our conclusion that the Commission's decision\nes not constitute a major federal action; as we said in Defenders of Wildlife,\n10 agency could meet its NEPA obligations if it had to prepare an environmental\nnpact statement every time the agency had power to act but did not do so.\" 627\n2d at 1246.\nCZMA\nThe Coastal Zone Management [*23] Act seeks to protect the land and water\nsources of the nation's coastal zone through a cooperative governmental effort\n1 which states are given primary responsibility for developing coastal resource\nnagement programs. See, e.g., 16 U.S.C. @ 1451 (i) (congressional findings); 16\nS.C. @ 1452 (2) (congressional declaration of policy). Section 307 (c) (1) of\nMA requires federal agencies \"conducting or supporting activities directly\nfecting the coastal zone\" to comply with the affected states' management\nograms \"to the maximum extent practicable.\" 16 U.S.C. @ 1456 (c) (1). An\nplementing regulation requires federal agencies to provide the affected states\nth so called \"consistency determinations\" for proposed activities at least\nnety days prior to final federal approval. See 15 CFR @ 930.34 (a), (b) (1990).\noss-Sound contends that the Commission violated these provisions by failing to\nt'v the relevant states prior to deeming Viking exempt from its jurisdiction\nsection 10544 (a) (4). We reject this claim.\nCZMA and the implementing regulations on which Cross-Sound relies expressly\nclude federal licensing or permitting activities from the definition of a\nederal [*24] activity,\" see 15 CFR @ 930.31 (c) i instead, a separate\nocedural scheme places primary compliance responsibilities for such matters on\ne applicant and the affected states, not the federal agency. See 16 U.S.C. @\n56 (c) (3) (A) (\"any applicant for a required Federal license or permit to\nnduct an activity affecting land or water uses in the coastal zone\" of a state\nst certify to the federal agency that its activity will comply with state\nograms, and must furnish a copy of the certification to the affected states,\nich may file objections with the federal agency) 15 CFR Part 930, Subpart D,\npecially 15 CFR @ 930.54; Viking II, 6 I.C.C.2d at 248 n.30. Here, the\nmmission's dismissal of Viking's application for common carrier authority on\nrisdictional grounds meant that no licensing proceeding existed sufficient to\nigger these regulations. See Viking I, 4 I.C.C.2d at 640 n.9; Exemption of\nter Carrier Operations, 4 I.C.C.2d 656, 1988 ICC Lexis 189 (June 14, 1988)\nereinafter Water Carriers] (noting that \"licensing\" requires an \"applicant\"\nr a license); 15 CFR @ 930.52 (defining \"applicant\" [*25] as \"any\ndividual [or corporation who] files an application for a Federal license or\nrmit to conduct an activity affecting the coastal zone\"). Thus, neither the\nmmission nor Viking breached any notice obligation under CZMA.\nWe find unpersuasive Cross-Sound's analogies to an earlier decision in which\ne Commission concluded that its exemption of entire classes of water carriers\nstituted a \"federal activity\" requiring a CZMA consistency determination. See\nCarriers, 1988 ICC Lexis 189, at 11. Unlike Viking II, in which one\nPAGE 109\n1991 U.S. App. LEXIS 8977, *25\narrier's services were held exempt, Water Carriers involved a broad,\nraditional rulemaking proceeding in which four classes of carriers were\nX6 ted. See id. at 2-10 (describing exempted classes, and recognizing that\n0 sion's action had \"potential for directly affecting coastal zones by\nllowing some additional water carrier operations\"). Indeed, the rulemaking fit\nquarely within the definition of \"federal activity,\" and could not qualify\nnder the less stringent licensing or permitting scheme discussed above. See id.\nt 11-12 (discussing why decision constitutes a federal activity); 15 CFR\n*26] @ 930.31 (a) (defining federal activity); 15 CFR @ 930.52 (requiring\napplicant\" for federal license). Thus, we find Cross-Sound's reliance on Water\narriers inapposite.\nV.\nWe conclude that the Commission has not changed its policy with respect to\nhe ferry exemption, and find that its comprehensive discussion of the exemption\nn Viking II satisfies this court's mandate in Cross-Sound I, as well as the\nore general standards for reasoned decisionmaking. We further conclude that the\nommission appropriately found Viking's operations to be exempt under section\n0544 (a) (4), and we reject Cross-Sound's allegations of procedural error.\ninally, we conclude that the Commission's finding that it lacked jurisdiction\nver Viking's services did not trigger environmental review responsibilities\nder either NEPA or CZMA. For the foregoing reasons, Cross-Sound's petition for\neview is denied.\n= is so ordered.\n, URBY: THOMAS (In Part)\n[SSENTBY: THOMAS (In Part)\n[SSENT: CLARENCE THOMAS, Circuit Judge, concurring in part and concurring\n1 the denial of the petition for review:\nAlthough I join the majority in rejecting Cross-Sound's claims under the\nterstate Commerce Act, I do not join the majority [*27] in reviewing\ntoss-Sound's claims under the National Environmental Policy Act (NEPA) and the\nastal Zone Management Act (CZMA). Before this court may review the merits of\ny of Cross-Sound's claims, we must decide whether we have the authority to do\n. See FW/PBS, Inc. v. City of Dallas, 110 S. Ct. 596, 607 (1990) (\"The federal\nourts are under an independent obligation to examine their own jurisdiction,\nd standing 'is perhaps the most important of [the jurisdictional] doctrines.'\n[uoting Allen V. Wright, 468 U.S. 737, 750 (1984) )). Having examined our own\nrisdiction over Cross-Sound's environmental claims, I conclude that we have\nne: Cross-Sound does not have article III standing. This court thus has no\nwer to judge the merits of Cross-Sound's claims under NEPA and CZMA.\nI.\nThe statute that gives this court the power to hear ICC cases limits our\nrisdiction to petitions brought by a \"party aggrieved.\" 28 U.S.C. @ 2344.\noss-Sound has participated aggressively at every level in all of the\noceedings in this case, and no one suggests that Cross-Sound has not achieved\nnk as a \"party.\" See Water Transp. Ass'n V. ICC, 819 F.2d 1189, 1192-93 & n.27\ncir. 1987). [*28] The question instead is whether, with respect to\nPAGE 110\n1991 U.S. App. LEXIS 8977, *28\nhe Commission's decision that it did not bear certain obligations under NEPA\nnd CZMA, Cross-Sound has been \"aggrieved.\" We answer this question by\n'f aging in traditional standing analysis. Id. at 1193 (citation omitted).\nn ler to establish constitutional standing, Cross-Sound must show \"that it\nas suffered an injury in fact traceable to the Commission's ruling and\nedressable by a decision in [Cross-Sound's] favor.\" Id. In order to establish\nrudential standing, Cross-Sound must show \"that the interest thereby abridged\nas arguably within the zone protected or regulated by the constitutional or\ntatutory guaranty in question.\" Id.\nCross-Sound alleges that the Commission's decision has aggrieved it both as\niking's competitor and as a landowner. I acknowledge that the Commission's\necision might ultimately affect Cross-Sound's fiscal health. And though the\necord does not reveal whether Cross-Sound owns any waterfront buildings, or\nulkheads, or other littoral property, I assume that the Commission's decision\nill lower the value of the company's land. Cross-Sound would thus have suffered\nnjuries-in-fact [*29] both as a competitor and as a landowner. But\nross-Sound would still not have attained article III standing. Cross-Sound\nould have us order the Commission to prepare an environmental impact statement\nnder NEPA and a consistency determination under CZMA, both of which ostensibly\nould provide the Commission with information on the environmental consequences\nf its choices. Cross-Sound suggests that the Commission would do well to ponder\nhe effects of its actions on the \"increasingly fragile\"\" waters of the Long\nsland Sound. Brief for Petitioner at 38 (citation omitted) ; see also id. at 38\n13 (citing L.I. Sound Is So Polluted It Faces Long-Term Damage, N.Y. Times,\nuly 6, 1990, at A1). I agree that as a matter of policy, it probably should. As\nmatter of law, however, the Commission has no power to regulate ferries for\n~onmental reasons. Therefore, neither of the alleged injuries could be\nssed by a decision in Cross-Sound's favor on its NEPA and CZMA claims, and\nross-Sound thus has no standing to bring them. n1\n-Footnotes-\nn1 In its claims under the Interstate Commerce Act, in contrast, Cross-Sound\neeks an order requiring the Commission to regulate Viking's ferry service. That\nemedy, if we were to direct it, would redress the injuries-in-fact that\nross-Sound asserts. I therefore agree with the majority's implicit conclusion\nhat Cross-Sound has standing to bring its Interstate Commerce Act claims.\n-End Footnotes-\n*30]\nThe Interstate Commerce Act deprives the Commission of jurisdiction over\ncansportation \"by a ferry,\" \"except to the extent the Commission\nfinds\nit\necessary to exercise jurisdiction to carry out the [national] transportation\nolicy. 49 U.S.C. @ 10544 (a) (4). n2 In defining the word \"ferry,\" the\nommission properly took into account the specific transportation criteria -\nirectness of route, character and frequency of service - that \"flow from the\ntatus of a ferry as a 'floating section of highway. Viking Starship, Inc., 6\n.C.C.2d 228, 235 (1989) (common carrier application) (quoting J. Perry,\nnerican Ferryboats 171 (1957)) [hereinafter Viking II]; see ante at 4-8\nendorsing Commission's definition). The Commission did not consider\nironmental criteria in defining the word \"ferry,\" and no one seriously\nontends that it could have.\nPAGE 111\n1991 U.S. App. LEXIS 8977, *30\n-Footnotes-\nSection 10544 (a) provides:\nxccpt to the extent the Interstate Commerce Commission finds it necessary to\nxercise jurisdiction to carry out the [national] transportation policy of\nection 10101 of this title, the Commission does not have jurisdiction under\nhis subchapter over transportation by water carrier when the transportation is\nrovided -\n(4) by a ferry.\n9 U.S.C. @ 10544(a).\n-End Footnotes\n*31]\nNor could the Commission have taken the environment into account at the\necond stage of its proceeding, when it decided whether it should regulate\niking's ferry service in order to carry out the national transportation policy.\nhe national transportation policy comprises several separate congressional\noncerns, such as safety and labor conditions in the transportation industry and\nelations between state and federal transportation authorities. See 49 U.S.C. @\n0101 (a) (1). n3 Each is meant to further Congress's ultimate goal: \"to ensure\nhe development, coordination, and preservation of a transportation system that\ne S the transportation needs of the United States.\" Id. @ 10101 (a) (emphasis\n)\n-Footnotes-\nn3 Section 10101 (a) provides:\n0 ensure the development, coordination, and preservation of a transportation\nystem that meets the transportation needs of the United States, ...\nit is the\nolicy of the United States Government to provide for the impartial regulation\nf the modes of transportation subject to this subtitle, and -\n(1) in regulating those modes -\n(A) to recognize and preserve the inherent advantage of each mode of\nransportation;\n(B) to promote safe, adequate, economical, and efficient transportation;\n(C) to encourage sound economic conditions in transportation, including sound\nconomic conditions among carriers;\n(D) to encourage the establishment and maintenance of reasonable rates for\nransportation, without unreasonable discrimination or unfair or destructive\nompetitive practices;\n(E) to cooperate with each State and the officials of each State on\nsportation matters; and\nPAGE 112\n1991 U.S. App. LEXIS 8977, *31\nF) to encourage fair wages and working conditions in the transportation\nnd try.\n9 s.c. @ 10101 (a).\n-End Footnotes\n*32]\nConspicuous in its absence from the national transportation policy is any\nllusion to our nation's environmental needs, and the Commission would be hard\nressed to fit environmental concerns as such within the language of the\ntatute. The majority suggests that the Commission might be able to squeeze the\nivironment into Congress's charge that the Commission promote \"efficient\nransportation. 49 U.S.C. @ 10101 (a) (1) (B) i see ante at 12. This reading seems\n, me flawed for two reasons. First, notwithstanding the majority's advice, the\nommission itself reads the national transportation policy, as I do, to exclude\nnvironmental matters - a point that the Commission made both in its opinion\nelow and in its brief to this court. See Viking II, 6 I.C.C.2d at 249 n.33 (\"We\nbubt that we have authority to use the [national transportation policy]\n<ception as a basis for addressing environmental issues associated with\ntherwise exempt ferry services, since the [policy] makes no reference to\nnvironmental issues. \") i Joint Brief of Respondents Interstate Commerce\nommission and United States of America at 29 (\"Neither section 10101 nor\nection 10544 (a) mention [sic] [*33] environmental impacts. Thus, the\nommission is to be guided by transportation and economic principles in deciding\nether the regulation of ferriage is necessary. Environmental impacts play no\n1ʳᵈ in determining whether certain transportation is ferry service, or whether\nommission should exercise its authority to overide [sic] the exemption in a\n1.\nIcular case. \").\nSecond, it is axiomatic that in construing a statute, \"the court must look to\ne particular statutory language at issue, as well as the language and design\n: the statute as a whole. \" K Mart Corp. V. Cartier, Inc., 486 U.S. 281, 291\nL988) (emphasis added). The majority here plucks one word, \"efficient, from a\nomprehensive statute that in language and design deals solely with our\nountry's \"transportation needs,' and suggests that the word is malleable enough\n, cover the \"environment. \" But the Interstate Commerce Act includes words that\ne far more elastic, and the Supreme Court has rejected attempts to stretch\nnose words as thinly as the majority proposes the Commission do here. In New\n>rk Central Securities Corp. V. United States, 287 U.S. 12 (1932), [*34]\nor example, a unanimous Court construed a section in the Act that gives the\nmission the power to regulate on behalf of the \"public interest.' Chief\nstice Hughes wrote:\nle term \"public interest\" as thus used [in the statute] is not a concept\nthout ascertainable criteria, but has direct relation to adequacy of\nansportation service, to its essential conditions of economy and efficiency,\nd to appropriate provision and best use of transportation facilities,\nestions to which the Interstate Commerce Commission has constantly addressed\nself in the exercise of the authority conferred.\nat 25; cf. NAACP V. FPC, 425 U.S. 662 (1976) (authority to promote \"public\nterest\" does not give Federal Power Commission (now FERC) warrant to try to\nly employment discrimination without regard to effects on utility rates).\nPAGE 113\n1991 U.S. App. LEXIS 8977, *34\nThen Congress wants the Commission to make decisions for environmental reasons,\nit explicitly tells the Commission to do so. See, e.g., 49 U.S.C. @ 10362 (c) (4)\nR- Services Planning Office must consider \"the cost to the environment\") i n4\n:f 1. @ 10101a (15) (under national rail transportation policy, Congress\nJ intends to \"encourage and promote energy conservation\"). When Congress\normally codified the national transportation policy, fifty-one years ago, see\nTransportation Act of 1940, Pub. L. No. 76-785, @ 1, 54 Stat. 899, 899, it\n;urely did not mean to give the Commission license to regulate ferries in order\n:o promote ecological consciousness-raising - or any other \"externalities\"\ninconnected to Congress's narrow focus on fields within the Commission's\nraditional realm of expertise, the economics of transportation.\n-Footnotes-\nn4 Section 10362 (c) provides:\nail properties are suitable for rail transportation continuation subsidies if\nhe cost of the required subsidy to the taxpayers for the properties each year\nS less than -\n(4) the cost to the environment measured by damage caused by increased\nollution.\n9 U.S.C. @ 10362 (c) (emphasis added).\n-End Footnotes\nin this case, Cross-Sound wants the Commission to prepare both an\nnvironmental impact statement, see 42 U.S.C. @ 4332(2) 4332 (2) (C), and a consistency\netermination, see [*36] 16 U.S.C. @ 1456 (c) (1) i 15 C.F.R. @ 930.4 (a), (b),\nith respect to its finding first, that Viking is a ferry and second, that\niking is not subject to the Commission's control. Both environmental impact\ntatements and consistency determinations are meant to disseminate information\nn the environmental consequences of government action. But as far as\nross-Sound is concerned, more information is not any better than less\nnformation, or, for that matter, than no information at all. Neither an\nnvironmental impact statement nor a consistency determination can affect the\nommission's decision whether Viking is or is not a ferry, and if it is, the\necision whether to regulate Viking nonetheless. In this case, the environment\nimply is not on the Commission's agenda.\nA favorable result for Cross-Sound on its environmental claims could not\nedress Cross-Sound's injuries-in-fact. Cross-Sound thus has no article III\ntanding to bring those claims, and we thus have no authority under the\nonstitution to hear them. See Public Citizen V. NHTSA, 848 F.2d 256, 262-63 &\n.27 (D.C. Cir. 1988); Natural Resources Defense Council, Inc. V. Berklund, 609\n.2d 553, 558 (D.C. Cir. 1979) [*37] (per curiam). n5 I express no opinion\nn the majority's discussion of the merits. With respect, though, I do offer a\new words on the majority's decision to assert jurisdiction without deciding\nether it has any and then to proceed to rule in this case on the merits of\ntoss-Sound's environmental claims.\n-Footnotes-\nPAGE 114\n1991 U.S. App. LEXIS 8977, *37\n- Since competitors are not within the zone of interests that NEPA and CZMA\n'C =, I doubt, in addition, that Cross-Sound meets the requirements of\nunitial standing. See Hazardous Waste Treatment Council V. EPA, 861 F.2d 277,\n3-84 (D.C. Cir. 1988) (per curiam) (\"When we grant standing to a party with\nly an oblique relation to the statutory goal, we run the risk that the outcome\nuld, even assuming technical fidelity to law, in fact thwart the congressional\nal. Further, of course, technical fidelity to law cannot be assumed; judges\nr.\"), cert. denied, 490 U.S. 1106 (1989) cf. Churchill Truck Lines, Inc. V.\nited States, 533 F.2d 411, 416 (8th Cir. 1976) (footnote and citations\nitted):\ntitioners, whose sole motivation\nwas their own economic self-interest\nd welfare, are singularly inappropriate parties to be entrusted with the\nsponsibility of asserting the public's environmental interest in proceedings\nincerning the issuance of operating authority to motor carriers\n[NEPA]\nS not designed to prevent loss of profits but was intended to promote\nvernmental awareness of and action concerning environmental problems.\n-End Footnotes-\n38]\nII.\nFederal courts are courts of limited jurisdiction. When federal jurisdiction\nes not exist, federal judges have no authority to exercise it, even if\none - judges, parties, members of the public - wants the dispute resolved.\n.g., CFTC v. Schor, 478 U.S. 833, 850-51 (1986) i Bender V. Williamsport\nEu School Dist., 475 U.S. 534, 541 & n.4 (1986) i Sosna V. Iowa, 419 U.S. 393,\n8 (1975) ; American Fire & Casualty Co. V. Finn, 341 U.S. 6, 17-18 & n.17\n951) i Anglo Am. Provision Co. V. Davis Provision Co. No. 2, 191 U.S. 376, 377\n903) (Holmes, J.) i Mansfield, Coldwater & Lake Mich. Ry. V. Swan, 111 U.S.\n9, 382-84 (1884) ; People's Bank V. Calhoun, 102 U.S. 256, 260-61 (1881) ;\ntler V. Rae, 48 U.S. (7 How.) 765, 767 (1849) i Jackson V. Ashton, 33 U.S. (8\nt.) 93, 94 (1834) (Marshall, C.J.) i Capron V. Van Noorden, 6 U.S. (2 Cranch)\n, 72 (1804) It follows that federal courts have a \"'special obligation\" to\npraise at the outset their own jurisdiction, even when the parties, [*39]\nthe lower courts, have not raised any jurisdictional questions themselves.\n/PBS, Inc. V. City of Dallas, 110 S. Ct. 596, 607 (1990) (citation omitted).\nis tenet is as solid as bedrock and almost as old. See, e.g., Duquesne Light\nV. Barasch, 488 U.S. 299, 306 (1989) i Bender, 475 U.S. at 541 & n.4; Juidice\nVail, 430 U.S. 327, 331-32 (1977) ; Liberty Mut. Ins. Co. V. Wetzel, 424 U.S.\n7, 740 (1976) i Clark V. Paul Gray, Inc., 306 U.S. 583, 588 (1939) i United\nates V. Corrick, 298 U.S. 435, 440 (1936) i Mitchell V. Maurer, 293 U.S. 237,\n4 (1934) (Brandeis, J.) ; Louisville & Nashville R.R. V. Mottley, 211 U.S. 149,\n2 (1908) ; Great Southern Fire Proof Hotel Co. V. Jones, 177 U.S. 449, 453-54 &\n1 (1900) i Mansfield, 111 U.S. at 382-84; Jackson, 33 U.S. (8 Pet.) at 94;\npron, 6 U.S. (2 Cranch) at 72; see also, e.g., Citizens for the Abatement of\nrcraft Noise, Inc. V. Metropolitan Washington Airports Auth., 917 F.2d 48, 53\n.C. Cir. 1990) [*40] (\"As a threshold matter, we must consider whether\nis case is justiciable. Although the [defendant] has not pressed the issue on\npeal, it is well established that a court of appeals must first satisfy itself\nits own jurisdiction, sua sponte if necessary, before proceeding to the\ns.\"), cert. granted on other grounds, 111 S. Ct. 750 (1991) ; Rubins\nPAGE 115\n1991 U.S. App. LEXIS 8977, *40\nontractors, Inc. V. Lumbermens Mut. Ins. Co., 821 F.2d 671, 673 (D.C. Cir.\n987) (\"Before addressing the merits of this dispute we must find jurisdiction\nO so\nAlthough [the defendant] sought to waive the issue at oral\nI ent, we have an independent obligation to determine whether jurisdiction\nas proper. i Reynolds V. Sheet Metal Workers, Local 102, 702 F.2d 221, 223\nD.C. cir. 1981) (\"Federal courts are courts of limited jurisdiction, and are\nbliged always to ascertain whether they have subject matter jurisdiction over\nhe litigation before them, even when the parties prefer to ignore the\nuestion. \").\nThe truistic constraint on the federal judicial power, then, is this: A\nederal court may not decide cases when it cannot decide cases, and must\netermine [*41] whether it can, before it may. The majority here changes this\nundamental precept to read, in effect, that under certain circumstances a\nederal court should decide cases regardless of whether it can, and need not\netermine whether it can, before it does. This revision seems to me difficult to\nquare with the Supreme Court's regular warnings to the federal courts to\nulfill their \"special obligation\" to inquire into their own jurisdiction at the\nutset. Originally stated in 1804, in Capron V. Van Noorden, 6 U.S. (2 Cranch)\nt 72, the rule was articulated most forcefully in Mansfield, Coldwater & Lake\nichigan Railway V. Swan, 111 U.S. 379 (1884). In Mansfield, a unanimous Court\nxplained that this rule, \"springing from the nature and limits of the judicial\nower of the United States, is inflexible and without exception.' Id. at 382.\nhe rule\n...\nrequires this court, of its own motion, to deny its own\nurisdiction, and, in the exercise of its appellate power, that of all the other\nourts of the United States, in all cases where such jurisdiction does not\nmatively appear in the record on which, in the exercise [*42] of that\n,\nit is called to act\n...\nThe first and fundamental question is that of\n21 sdiction, first, of this court, and then of the court from which the record\nomes. This question the court is bound to ask and answer for itself, even when\not otherwise suggested, and without respect to the relation of the parties to\n:.\n1.\nThe Supreme Court reiterated this principle twice last Term. In reviewing the\nespondents' citizenship in Carden V. Arkoma Associates, 110 S. Ct. 1015 (1990),\ne Court held that \"since diversity of citizenship is a jurisdictional\nquirement, the Court is always 'called upon to decide' it.\" Id. at 1021; see\n1. (\"'The failure of parties to urge objections [to diversity of citizenship]\nnnot relieve this court from the duty of ascertaining from the record whether\nle Circuit Court could properly take jurisdiction of this suit. (quoting\n'eat Southern Fire Proof Hotel, 177 U.S. at 453)). In FW/PBS, the Court ordered\nsmissal of a claim for lack of article III standing, even though neither the\nrties nor the lower courts had addressed the issue. The Court stressed that\nhe federal [*43] courts are under an independent obligation to examine\neir own jurisdiction, and standing 'is perhaps the most important of the\nurisdictional] doctrines. 110 S. Ct. at 607 (citation omitted).\nvery federal appellate court has a special obligation to 'satisfy itself not\nly of its own jurisdiction, but also that of the lower courts in a cause under\nview,' even though the parties are prepared to concede it. Mitchell V. Maurer,\n3 U.S. 237, 244 (1934). See Juidice V. Vail, 430 U.S. 327, 331-32 (1977)\nding). 'And if the record discloses that the lower court was without\nPAGE 116\n1991 U.S. App. LEXIS 8977, *43\nrisdiction this court will notice the defect, although the parties make no\nntention concerning it.' [United States V. Corrick, 298 U.S. 435, 440\n9? .]\"\n\\quoting Bender, 475 U.S. at 541).\nTo require that a court resolve jurisdictional questions before addressing\nn-jurisdictional ones raises the difficult question of how to distinguish the\nO. The rule of Mansfield might be reduced to tautology if jurisdiction were\nfined to encompass grounds that the court, on its own motion if necessary,\n44] must establish at the threshold. The term \"jurisdiction, however - \"an\n1-purpose word denoting adjudicatory power\" - bears different meanings in\nfferent contexts. Szabo Food Serv., Inc. V. Canteen Corp., 823 F.2d 1073, 1077\nth Cir. 1987), cert. dismissed, 485 U.S. 901 (1988). Sometimes, for example,\naracterizing a provision as \"jurisdictional\" implies that a court cannot\nmper the application of the provision through otherwise available equitable\nctrines such as waiver, tolling, and estoppel. See, e.g., Irwin V. Veterans\nmin., 111 S. Ct. 453, 455-58 (1990). Other times, characterizing a provision\nbearing on an inferior tribunal's \"jurisdiction\" might signify that on\npeal, that tribunal's interpretation of the provision is not entitled to\nference. See, e.g., Mississippi Power & Light Co. V. Mississippi ex rel.\nore, 487 U.S. 354, 386-89 (1988) (Brennan, J., dissenting).\nGiven the woolliness of the concept, it is hardly surprising that there\nists a significant gray area between grounds of decision that clearly are\nrisdictional and grounds that clearly are not. In a sense, all [*45]\nplicable rules limit the authority of the relevant adjudicative tribunal; for\nreason, proponents of deferring to reasonable agency interpretations of\njurisdictional\" provisions have argued that deference is necessary because\nintelligible distinction can be drawn between jurisdictional and\nn-jurisdictional provisions of statutes entrusted for their administration to\ne agency. See Mississippi Power, 487 U.S. at 380-82 (Scalia, J., concurring in\ne judgment). In contexts where distinctions between jurisdictional and\nn-jurisdictional provisions are made routinely, the distinctions can prove\nusive. Compare, e.g., Irwin, 111 S. Ct. at 457 (deeming a provision that \"an\nployee may file a civil action\" within a certain time to be\nn-jurisdictional for tolling purposes) with, e.g., Soriano V. United States, shall\n2 U.S. 270, 273-77 (1957) (deeming a provision that \"every claim\nbarred\nunless filed\" within a certain time to be jurisdictional for\nlling purposes). To complicate matters further, some provisions - the eleventh\nendment, for example - can be jurisdictional in some [*46] contexts, and\nn-jurisdictional in others. Compare Patsy V. Board of Regents, 457 U.S. 496,\n6 n.19 (1982) (stating that the eleventh amendment is not \"jurisdictional in\nle sense that it must be raised and decided by this Court on its own motion\")\nth Edelman V. Jordan, 415 U.S. 651, 678 (1974) (\"The Eleventh Amendment\nfense sufficiently partakes of the nature of a jurisdictional bar so that it\ned not be raised in the trial court.\"). Finally, and most importantly for\nesent purposes, it is well-settled that at some point a claim becomes\nfficiently frivolous on the merits as to justify a dismissal for lack of\nrisdiction. See, e.g., Bell V. Hood, 327 U.S. 678, 682-83 (1946) (dismissal\n'om district court when the claim is \"wholly insubstantial and frivolous\");\ncht v. King, 260 U.S. 174, 176-77 (1922) (dismissal from Supreme Court when\ne claim is not \"sufficiently substantial\").\n18\nPAGE 117\n1991 U.S. App. LEXIS 8977, *46\ne Mansfield rule is violated only if the ground passed over is\ndictional and the ground rested upon is non- jurisdictional, for courts\n2.\nerlv rest on one jurisdictional ground instead of another, or [*47] on\nIE\nS ground instead of another. In cases where either ground is difficult\na cerize, it is difficult to determine whether the rule has been\nted. Arguably, moreover, the rule might not apply at all if the ground\nd over sufficiently, though not entirely, \"partakes of the nature\" of a\nad\nS ground, or if the ground rested upon \"sufficiently,\" though not entirely,\nakes of the nature of a jurisdictional bar, Jordan, 415 U.S. at 678. Here,\ner, the ground passed over - whether there exists a case or controversy\nit\nn the meaning of article III - is unambiguously jurisdictional, see, e.g.,\nW\nV. Wright, 468 U.S. 737, 750-51 (1984), and the ground rested upon -\nry\ner the Commission took \"major Federal actions\" or engaged in \"Federal\nnd\nity\" sufficient to trigger duties under NEPA or CZMA - is unambiguously\nit\nurisdictional. In this situation, no Supreme Court case authorizes the\nat\nh of the Mansfield rule that the majority today commits. n6\n17\n-Footnotes-\nThe policies of avoiding constitutional questions for non-constitutional\nsee, e.g., Ashwander V. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J.,\nrring), apply with equal force to jurisdictional determinations. In this\nhowever, the constitutional questions go to jurisdiction and the\nonstitutional ones go to the merits, and the prudential concerns of\nnder cannot override a rule that is \"inflexible and without exception,\"\nield, 111 U.S. at 382. Thus, in Juidice V. Vail, 430 U.S. 327 (1977), the\nraised and decided a question of constitutional standing, see id. at\n3, before holding that the district court erred in not abstaining under\nHarris, 401 U.S. 37 (1971) - a non-constitutional ground of decision\n1\ntreated as non-jurisdictional, see, e.g., Ohio Bureau of Employment\nV. Hodory, 431 U.S. 471, 480 (1977) (permitting states to waive a Younger\nse) i Ellis V. Dyson, 421 U.S. 426, 435 (1975) (instructing district court\ncide on remand article III issues before reaching Younger issues).\n0\nEnd Footnotes-\nat\ny\nween 1969 and 1976, the Supreme Court decided four cases that are\n60\nmes cited in support of assuming jurisdiction arguendo and rendering a\nnt on the merits: United States V. Augenblick, 393 U.S. 348 (1969) i\ner V. Judicial Council, 398 U.S. 74 (1970) i Secretary of the Navy V.\n, 418 U.S. 676 (1974) (per curiam) i and Norton V. Mathews, 427 U.S. 524\na\nIn Augenblick, however, the ground passed over was at least arguably\nthe\nrisdictional, and in Chandler, Avrech, @nd Norton, the ground rested upon\nleast arguably jurisdictional. Upon close examination, therefore, none of\ncases authorizes the practice undertaken by the majority.\nenblick involved actions for back pay brought in the Court of Claims by\nius,\nrs challenging the constitutionality of their prior court-martial\n:s\ntions. See 393 U.S. at 348-49. The Court of Claims had \"jurisdiction to\njudgment against the United States on any claim 'founded\nof\nupon the\ntution. Id. at 349 n.2 (quoting 28 U.S.C. @ 1491). Thus, one issue in\nin\nAugenblick was whether the soldiers were barred from recovery in the\nof Claims by the preclusive effect of their convictions in the\non\nrtial. The Supreme Court declined to address this issue: \"Assuming,\nPAGE 11/\n1991 U.S. App. LEXIS 8977, *46\nThe Mansfield rule is violated only if the ground passed over is\nrisdictional and the ground rested upon is non- jurisdictional, for courts\noperly rest on one jurisdictional ground instead of another, or [*47] on\ne merits ground instead of another. In cases where either ground is difficult\ncharacterize, it is difficult to determine whether the rule has been\n, d. Arguably, moreover, the rule might not apply at all if the ground\nSS over sufficiently, though not entirely, \"partakes of the nature\" of a\nrits ground, or if the ground rested upon \"sufficiently,\" though not entirely,\nartakes of the nature of a jurisdictional bar,\" Jordan, 415 U.S. at 678. Here,\nwever, the ground passed over - whether there exists a case or controversy\nthin the meaning of article III - is unambiguously jurisdictional, see, e.g.,\nlen v. Wright, 468 U.S. 737, 750-51 (1984), and the ground rested upon -\nether the Commission took \"major Federal actions\" or engaged in \"Federal\ntivity\" sufficient to trigger duties under NEPA or CZMA - is unambiguously\nn-jurisdictional. In this situation, no Supreme Court case authorizes the\neach of the Mansfield rule that the majority today commits. n6\n-Footnotes-\nn6 The policies of avoiding constitutional questions for non-constitutional\nes, see, e.g., Ashwander V. TVA, 297 U.S. 288, 345-48 (1936) (Brandeis, J.,\nncurring), apply with equal force to jurisdictional determinations. In this\nse, however, the constitutional questions go to jurisdiction and the\nn-constitutional ones go to the merits, and the prudential concerns of\nhwander cannot override a rule that is \"inflexible and without exception,\"\nnsfield, 111 U.S. at 382. Thus, in Juidice V. Vail, 430 U.S. 327 (1977), the\nurt raised and decided a question of constitutional standing, see id. at\n1-33, before holding that the district court erred in not abstaining under\nunger V. Harris, 401 U.S. 37 (1971) - a non-constitutional ground of decision\nnevally treated as non-jurisdictional, see, e.g., Ohio Bureau of Employment\nV. Hodory, 431 U.S. 471, 480 (1977) (permitting states to waive a Younger\n1\nse) Ellis V. Dyson, 421 U.S. 426, 435 (1975) (instructing district court\ndecide on remand article III issues before reaching Younger issues).\n-End Footnotes-\n48]\nBetween 1969 and 1976, the Supreme Court decided four cases that are\nmetimes cited in support of assuming jurisdiction arguendo and rendering a\ndgment on the merits: United States V. Augenblick, 393 U.S. 348 (1969) ;\nandler V. Judicial Council, 398 U.S. 74 (1970) i Secretary of the Navy V.\nrech, 418 U.S. 676 (1974) (per curiam); and Norton V. Mathews, 427 U.S. 524\n976). In Augenblick, however, the ground passed over was at least arguably\nn-jurisdictional, and in Chandler, Avrech, @nd Norton, the ground rested upon\nS at least arguably jurisdictional. Upon close examination, therefore, none of\nese cases authorizes the practice undertaken by the majority.\nAugenblick involved actions for back pay brought in the Court of Claims by\nldiers challenging the constitutionality of their prior court-martial\nnvictions. See 393 U.S. at 348-49. The Court of Claims had \"jurisdiction to\nnder judgment against the United States on any claim 'founded ... upon\nthe\nnstitution. Id. at 349 n.2 (quoting 28 U.S.C. @ 1491). Thus, one issue in\n49] Augenblick was whether the soldiers were barred from recovery in the\nurt of Claims by the preclusive effect of their convictions in the\nurts-martial. The Supreme Court declined to address this issue: \"Assuming,\n1991 U.S. App. LEXIS 8977, *49\nne rguendo, held that the attacks before it were without 351-52.\nthat a collateral attack on a court-martial judgment\" merit. See could id. be at made,\nA defense of claim or issue preclusion, which can be waived if not properly\nreserved, is almost always considered non-jurisdictional. See, e.g., Fed. R.\ni' ? 8 (c) (requiring res judicata to be pleaded as an affirmative defense)\nV. Bowen, 817 F.2d 865, 869 & n.37 (D.C. Cir. 1987) (\"Failure to so plead\nD. onscitutes a waiver of the defense.' i see also 5 C. Wright & A. Miller,\nederal Practice and Procedure @ 1278, at 481-82 & n.9 (2d ed. 1990). Although\nhe argument for preclusion in Augenblick was statutory, the statute on which it\nas based gives little hint of a more jurisdictional flavor than the common-law\noctrine that the statute codifies. See 10 U.S.C. @ 876 (providing that military\neview of court-martial convictions shall be \"final [*50] and conclusive\" and\nof the United States\"). To the extent that\nbinding upon all\nugenblick bypassed a preclusion courts defense to reject the claims against which that\nefense was asserted, it simply rested on one merits ground as opposed to\nnother, and provides no basis for dodging jurisdiction to reach the merits. n7\n-Footnotes-\nn7 Norton bypassed the question whether a statute prohibited collateral\nttack in the district court upon an administrative adjudication by the\necretary of Health, Education, and Welfare. The Court correctly characterized\norton was written in expressly jurisdictional terms. See 42 U.S.C. @ 405 (h),\nhat question as jurisdictional, because the preclusion statute at issue in\n[uoted in 427 U.S. at 529 n.5.\n-End Footnotes\nDespite the general rule that questions of claim or issue preclusion are\njurisdictional, they are at least jurisdiction-like in two senses: first,\ncan usually be determined as a matter of law at the outset, simply by\nexamining the face of the [*51] new pleadings in light of the prior\nproceeding; second, because they touch upon the comity owed by one tribunal to\nthe judgments and orders of another, they implicate institutional concerns that\nJO beyond the rights of individual litigants. It is not surprising, therefore,\n:hat the Supreme Court occasionally has cast preclusion questions in expressly\njurisdictional terms. See District of Columbia Court of Appeals V. Feldman, 460\nJ.S. 462 (1983) i Rooker V. Fidelity Trust Co., 263 U.S. 413 (1923). In those\ncases, which involved the preclusive effect of state-court judgments in\nsubsequent federal-court litigation, the Supreme Court reasoned that if a\ndistrict court issues a judgment on a matter \"inextricably intertwined\" with a\nstate-court judgment, then \"the district court is in essence reviewing the\nstate-court decision,\" 460 U.S. at 483-84 n.16 - \"an exercise of appellate\njurisdiction\" unauthorized by statute, 263 U.S. at 416.\nJurisdictional recasting of preclusion questions has occurred only rarely.\nThe general rule remains that preclusion questions are non-jurisdictional. Thus,\nwhen determining the preclusive [*52] effect to which state-court judgments\nare entitled, the Court usually eschews the theory of Rooker-Feldman for the\nmore conventional approach of simply applying the substantive preclusion law of\nthe state, see 28 U.S.C. @ 1738, on the merits. See, e.g., Marrese v. American\nAcademy of Orthopaedic Surgeons, 470 U.S. 373 (1985) i Migra V. Warren City\nSchool Dist. Bd. of Educ., 465 U.S. 75 (1984) Kremer V. Chemical Construction\nCorp., 456 U.S. 461 (1982). See generally P. Bator, D. Meltzer, P. Mishkin &\nPAGE 119\n1991 U.S. App. LEXIS 8977, *52\nShapiro, Hart and Wechsler's The Federal Courts and the Federal System\n615-34 (3d ed. 1988).\nAugenblick, the Court at times spoke in terms reminiscent of Rooker and\nn\npating Feldman. Instead of consistently framing the issue in terms of\nhetner \"a collateral attack on a court-martial judgment\" was appropriate, 393\n.s. at 351 (emphasis added), it also questioned the \"jurisdiction\" of the Court\nf Claims to \"review\" court-martial convictions, id. at 349. In Schlesinger V.\nouncilman, 420 U.S. 738 (1975), however, another case involving [*53] the\nreclusive effect of a court-martial judgment, the Court returned to the more\nraditional, non-jurisdictional idiom. Councilman held that 10 U.S.C. @ 876, the\name preclusion statute at issue in Augenblick, merely \"defines the point at\nhich military court judgments become final and requires that they be given res\nudicata effect.\" Id. at 749. The Court expressly rejected the argument that\nection 876 divests the district courts of original jurisdiction to entertain\nollateral attacks on court-martial judgments, see id. at 748-53, and it at\neast implicitly rejected the alternative jurisdictional theory that any\nistrict court so doing would effectively be engaging in direct review without a\ntatutory grant of appellate jurisdiction. See id. at 753 (\"The district court\nad subject-matter jurisdiction\n\").\nIn light of this background, Augenblick cannot plausibly be read as\nuthorizing courts to sidestep jurisdiction. Interpreted that broadly,\nugenblick would stand without precedent or progeny, breaching an otherwise\nntact phalanx of Supreme Court authority spanning almost two centuries [*54]\nhile \"offering not a single word of analysis or justification\" for so doing.\nomment, Assuming Jurisdiction Arguendo: The Rationale and Limits of\nypothetical Jurisdiction, 127 U. Pa. L. Rev. 712, 713 (1979). To save\nblick from that dubious distinction, one need only posit that the Court,\nte occasional rhetoric to the contrary, viewed the preclusion question in\nustomary, non-jurisdictional terms, presaging its later, express holding in\nouncilman. n8\n-Footnotes-\nn8 Avrech probably can be explained in terms similar to Augenblick. In\nwrech, the court bypassed the question, which it cast in jurisdictional terms,\nether a district-court plaintiff seeking back pay could collaterally attack a\nourt-martial conviction. See 418 U.S. at 676-77. The Court's characterization\nE the bypassed preclusion question as jurisdictional was perhaps more plausible\nn Avrech than in Augenblick, however, for the plaintiff in Avrech (like the\nlaintiffs in Rooker and Feldman, but unlike the plaintiffs in Augenblick)\nought an actual declaration that another tribunal's judgment was invalid. See\n1. at 677. But since Avrech rested on jurisdictional grounds in any event, see\nfra pp. 17-19, it matters little whether the bypassed preclusion question\nere is considered jurisdictional or not.\n-End Footnotes\n*55]\nThe other Supreme Court cases passed over grounds that are clearly\nurisdictional, but rested on alternative grounds that are at least arguably\nrisdictional. Thus, in Chandler, the Supreme Court avoided deciding whether it\nd jurisdiction to issue writs of prohibition or mandamus against the judicial\nncil of the Tenth Circuit, holding instead that the petitioner was not\nPAGE 119\n1991 U.S. App. LEXIS 8977, *52\nShapiro, Hart and Wechsler's The Federal Courts and the Federal System\n15-34 (3d ed. 1988).\n\\ugenblick, the Court at times spoke in terms reminiscent of Rooker and\nt. .pating Feldman. Instead of consistently framing the issue in terms of\nether \"a collateral attack on a court-martial judgment\" was appropriate, 393\nS. at 351 (emphasis added), it also questioned the \"jurisdiction\" of the Court\nClaims to \"review\" court-martial convictions, id. at 349. In Schlesinger V.\nuncilman, 420 U.S. 738 (1975), however, another case involving [*53] the\neclusive effect of a court-martial judgment, the Court returned to the more\naditional, non-jurisdictional idiom. Councilman held that 10 U.S.C. @ 876, the\nme preclusion statute at issue in Augenblick, merely \"defines the point at\nich military court judgments become final and requires that they be given res\ndicata effect.\" Id. at 749. The Court expressly rejected the argument that\nction 876 divests the district courts of original jurisdiction to entertain\nllateral attacks on court-martial judgments, see id. at 748-53, and it at\nast implicitly rejected the alternative jurisdictional theory that any\nstrict court so doing would effectively be engaging in direct review without a\natutory grant of appellate jurisdiction. See id. at 753 (\"The district court\nd subject-matter jurisdiction\n\").\nIn light of this background, Augenblick cannot plausibly be read as\nthorizing courts to sidestep jurisdiction. Interpreted that broadly,\ngenblick would stand without precedent or progeny, breaching an otherwise\ntact phalanx of Supreme Court authority spanning almost two centuries [*54]\nile \"offering not a single word of analysis or justification\" for so doing.\nmment, Assuming Jurisdiction Arguendo: The Rationale and Limits of\nhetical Jurisdiction, 127 U. Pa. L. Rev. 712, 713 (1979). To save\nlick from that dubious distinction, one need only posit that the Court,\nbrite occasional rhetoric to the contrary, viewed the preclusion question in\nstomary, non-jurisdictional terms, presaging its later, express holding in\nuncilman. n8\n-Footnotes-\nn8 Avrech probably can be explained in terms similar to Augenblick. In\nrech, the court bypassed the question, which it cast in jurisdictional terms,\nether a district-court plaintiff seeking back pay could collaterally attack a\nurt-martial conviction. See 418 U.S. at 676-77. The Court's characterization\nthe bypassed preclusion question as jurisdictional was perhaps more plausible\nAvrech than in Augenblick, however, for the plaintiff in Avrech (like the\naintiffs in Rooker and Feldman, but unlike the plaintiffs in Augenblick)\night an actual declaration that another tribunal's judgment was invalid. See\nat 677. But since Avrech rested on jurisdictional grounds in any event, see\nfra pp. 17-19, it matters little whether the bypassed preclusion question\nere is considered jurisdictional or not.\n-End Footnotes-\n55]\nThe other Supreme Court cases passed over grounds that are clearly\nrisdictional, but rested on alternative grounds that are at least arguably\nrisdictional. Thus, in Chandler, the Supreme Court avoided deciding whether it\n1 jurisdiction to issue writs of prohibition or mandamus against the judicial\nil of the Tenth Circuit, holding instead that the petitioner was not\nPAGE 120\n1991 U.S. App. LEXIS 8977, *55\ntitled to so extraordinary a remedy because he had failed to exhaust the other\nvenues of relief available to him. See 398 U.S. at 86-89; see also Coalition\nor the Preservation of Hispanic Broadcasting V. FCC, No. 87-1285, slip op. at\nD.C. Cir. Apr. 23, 1991) (en banc) (avoiding standing question and\nis ssing petitioners' claim for failure to exhaust administrative remedies)\nampagne V. Schlesinger, 506 F.2d 979, 982 (7th Cir. 1974) (\"Exhaustion is a\nuasi-jurisdictional problem\n\").\nSimilarly, in Avrech and Norton, the Court rested on essentially\nrisdictional grounds - \"the inability of the federal judiciary 'to review moot\nses, DeFunis V. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (citation\nnitted). On [*56] the merits, Avrech and Norton involved constitutional\nallenges to, respectively, a court-martial conviction and an administrative\nijudication denying entitlement to certain benefits. In addition, each case\nresented a threshold question, cast in jurisdictional terms, n9 whether the\n:ior judgment could be collaterally attacked in the district court. While\nrech was pending, the Supreme Court decided another case presenting the\nientical merits issue, rejecting the position advocated by the plaintiff in\nrech. The same thing happened in Norton. In both cases, the Court refused to\necide the pending jurisdictional question, but issued a conforming merits\necision nonetheless.\n-Footnotes-\nn9 See supra notes 7, 8.\n-End Footnotes\nAvrech, the Court decided that the intervening decision had rendered the\nquestion so insubstantial that it effectively prevented the Court from\neceiving the requisite adversary presentation on the threshold, jurisdictional\nlestion. Faithful to the Mansfield rule, the Court [*57] had ordered\nipplemental briefing on the jurisdictional question, but had yet to hear oral\n:gument on it. The Court reasoned that deciding the jurisdictional question\nould be inappropriate under the circumstances, because \"even the most diligent\nd zealous advocate could find his ardor somewhat dampened in arguing a\nrisdictional issue where the decision on the merits is thus foreordained.\" 418\nS. at 678. n10\n-Footnotes-\nn10 Since the jurisdictional issue was under consideration only because the\nurt raised it on its own initiative after hearing oral argument on the merits,\nis especially ironic that Avrech has come to be cited in support of\ndestepping jurisdiction altogether.\n-End Footnotes\nNorton involved a similar situation, except that the jurisdictional question\nd been fully briefed and argued before the intervening decision was handed\nwn. Nonetheless, the Court made clear that the effect of the intervening\ncision was to render the merits issues so \"insubstantial\" as \"not even to\npport the jurisdiction [*58] of a three-judge district court to consider\nhem] on remand. 427 U.S. at 531 (emphasis added); see id. at 530-31 (\"The\nosition [in the intervening case] renders the merits in the present case a\nPAGE 121\n1991 U.S. App. LEXIS 8977, *58\ncided issue\" - foreordained - \"and thus no longer substantial in the\nrisdictional sense.\").\nen the mooting effect of the intervening decision in both Avrech and\n12 11, a more fastidious Court might have either dismissed the appeals or\ncated the lower court judgments and remanded with instructions to dismiss,\nternative dispositions that would have left the pending jurisdictional\nestions undecided by the Court. Cf. United States V. Munsingwear, 340 U.S. 36,\n(1950) (generally endorsing the latter course when a civil case becomes moot\nnding appeal). Instead, without deciding the jurisdictional questions, the\nurt reversed on the merits in Avrech and affirmed on the merits in Norton,\nasoning that \"whichever disposition we undertake, the effect is the same. 427\nS. at 532. Notwithstanding the Court's merits dispositions, it is clear from\ne supporting reasoning that Avrech [*59] and Norton permit this approach\nly when an intervening decision renders a pending claim so \"foreordained\" or\nnsubstantial\" that under cases like Bell V. Hood or Zucht V. King, the claim\nuld not even have supported federal jurisdiction had the intervening decision\nen decided beforehand. The majority might well be correct that the\nvironmental questions in this case are easier to resolve than are the standing\nestions, but the majority's answer is hardly so \"foreordained\" as to make the\naims insubstantial in a jurisdictional sense.\nIn sum, not a single Supreme Court case authorizes federal courts to shuffle\nound unambiguously jurisdictional problems in order to issue judgments\nambiguously on the merits. As one defender of this approach candidly admits,\nhere is no Supreme Court opinion unequivocally holding that it is\nrmissible to assume justiciability and rule on the substantive merits.\"\nent, supra, 127 U. Pa. L. Rev. at 745.\nrecognize, of course, that the majority's approach finds support in the\necedents of this court decided after Augenblick. See, e.g., Adams V. Vance,\n0 F.2d 950, 953-55 & n.7 (D.C. Cir. 1978) [*60] Chinese Am. Civic Council\nAttorney Gen., 566 F.2d 321, 325-26 & n.9 (D.C. Cir. 1977). Given only those\ncisions, I would of course be bound to accept this court's judgment that cases\nch as Augenblick implicitly overruled cases such as Capron and Mansfield and a\nst of others. n11 But if such venerable precedent can be implicitly overruled\nith not a single word of analysis or justification,\" Comment, supra, 127 U.\nL. Rev. at 713, it can also be revivified through express reaffirmation - as\nppened twice last Term. However valid this circuit's cases once might have\nen, in my view they do not survive the Supreme Court's most recent\nonouncements in FW/PBS and Carden. Since FW/PBS and Carden were decided, the\nly precedent from this court even arguably bypassing jurisdiction is Coker V.\nllivan, 902 F.2d 84 (D.C. Cir. 1990). In Coker, we assumed article III\nanding arguendo, resting instead on the ground that the challenge to the\nency's enforcement decision was unreviewable under Heckler V. Chaney, 470 U.S.\nL (1985). See Coker, 902 F.2d at 90. [*61] Coker provides at best weak\noport for the majority's approach, however; there, we explained that \"the\nternative rationale on which we rely is also a jurisdictional limitation.\" Id.\n88 (emphasis added) ; see also Hispanic Broadcasting, No. 87-1285, slip op. at\n(citing Coker as having \"dismissed case on non-constitutional jurisdictional\nunds to avoid problematic Article III inquiry\").\n-Footnotes-\nPAGE 122\n1991 U.S. App. LEXIS 8977, *61\nnll That concession, of course, would still not oblige me to endorse the\najority's approach in this case:\n= colleague - apparently of the view that the standing issue is too\nli. cult to resolve - believes we should pass on to the merits without deciding\nhether we have the constitutional authority to hear the case. To be sure, this\nourt has on occasion followed that course, although not often in recent times,\nut we are unaware of any case where a panel was criticized for not employing\nhat technique; in other words, for assuming its constitutional obligation. Here\nhe parties have briefed the standing issue and we have done our best to answer\nhe jurisdictional question raised. It is hard to understand why, under these\nircumstances, it could be thought a judicial virtue not to do so.\nnited Transp. Union V. ICC, 891 F.2d 908, 911 (D.C. Cir. 1989), cert. denied,\n10 S. Ct. 3271 (1990).\n-End Footnotes\n*62]\nRead in light of one hundred and eighty-seven years of other precedents, the\nupreme Court's opinions in FW/PBS and Carden confirm that federal courts must\nirst assure themselves that they have the authority to hear a dispute before\nhey may decide the dispute on the merits. See FW/PBS, 110 S. Ct. at 607-08;\narden, 110 S. Ct. at 1021. Federal courts simply may not assume jurisdiction\nypothetically. Some cases might cry out for decision on the merits; some might\nose difficult jurisdictional problems. Our threshold duty to examine our own\nurisdiction is no less obligatory in either instance.\nII.\n\"If there were no jurisdiction, there was no power to do anything but strike\nhe case from the docket. In that view of the subject the matter was as much\noram non judice as anything else could be\n\" The Mayor V. Cooper, 73 U.S.\n6 Wall.) 247, 250 (1868). In my view, this court has no jurisdiction to hear\nross-Sound's environmental claims. I would therefore strike those claims from\nhe docket and stop before reaching the merits. Because the majority here goes\nurther, I respectfully decline to join parts IV [*63] and V of the\najority's opinion and join only parts I, II, and III.\nEDERAL REPORTER, 2d SERIES\nU.S. V. BAKER HUGHES INC.\n981\nCite as 908 F.2d 981 (D.C. Clr. 1990)\n3. Monopolies 24(13)\nNITED STATES COURT OF APPEALS\nUNITED STATES of America,\nRebuttal of prima facie case that ac-\nAppellant,\nquisition or merger will lessen competition\nin relevant market does not require clear\nV.\nEleventh Circuit\nshowing that entry into market by competi-\nBAKER HUGHES INC., Eimco Secoma,\ntors will be \"quick and effective,\" rather,\nS.A., and Oy Tampella AB, Appellees.\nevidence on variety of factors can rebut\nNo. 90-5060.\nprima facie case. Clayton Act, § 7, 15 U.S.\nDENIALS OF REHEARING EN BANC\nC.A. § 18.\nUnited States Court of Appeals,\nderal Rules of Appellate Procedure; Local Eleventh Circuit Rule 35)\nDistrict of Columbia Circuit.\n4. Monopolies\n24(13)\nDenials where no member of the panel nor Judge in regular active\nArgued May 16, 1990.\nMisleading nature of statistics underly-\nervice on the Court requested that the Court be polled on rehearing\ning Government's prima facie case that\nDecided July 6, 1990.\n11 banc.\nmerger or acquisition would have effect of\nDenials after a poll requested by a member of the panel or a Circuit\nlessening competition, and sophistication of\nUnited States brought action to enjoin\nconsumers purchasing hardrock hydraulic\nudge in regular active service.\nDenials on the Court's own motion after a poll requested by a member\nFinnish manufacturer's proposed acquisi-\nunderground drilling rigs, provided support\ntion of French manufacturer of hardrock\nfor district court's conclusion that Govern-\nof the panel or a Circuit Judge in regular active service.\nhydraulic underground drilling rigs. The\nment's prima facie case of lessening of\nUnited States District Court for the Dis-\ncompetition was rebutted; market for such\nDocket\nDate of\nCitation of\ntrict of Columbia, Gerhard A. Gesell, J.,\ndrilling rigs was so minuscule that every\nNumber\nDenial\nPanel Decision\n731 F.Supp. 3, denied injunction, and appeal\nsale of rig increased seller's market share\nGROUP 1\n89-8359\n6/20/90\nM.D.Ga., 899\nwas taken. The Court of Appeals, Clar-\nby two to five percent, and consumers who\nence Thomas, Circuit Judge, held that evi-\ngenerally purchased such rigs, for thou-\nF.2d 1136\ning\n89-8407\n6/19/90\nN.D.Ga., 900\ndence justified district court's conclusion\nsands of dollars, closely examined available\nF.2d 266\nthat acquisition would not substantially\noptions and typically insisted on receiving\nrmers Home Admin\n89-8359\n6/20/90\nM.D.Ga., 899\nlessen competition in United States.\nmultiple, confidential bids for each order.\nF.2d 1136\nClayton Act, § 7, 15 U.S.C.A. § 18.\nAffirmed.\n5. Monopolies\n24(13)\nDistrict court's determination that en-\n1.\nMonopolies\n24(12)\ntry into United States hardrock hydraulic\nWhen Government presents evidence\nunderground drilling rig market would like-\nshowing that transaction involving merger\nly avert any anticompetitive effects of ac-\nor acquisition will lead to undue concentra-\ntion in market for particular product in\nquisition of one drilling rig manufacturer\nby second manufacturer, together with de-\nparticular geographic area, Government es-\ntermination that market share statistics\ntablishes presumption that transaction will\nwere misleading and sophistication of con-\nsubstantially lessen competition in violation\nsumers was likely to foster competition,\nof Clayton Act, and burden then shifts to\nwas sufficient to rebut Government's pri-\nparty seeking acquisition or merger to re-\nma facie case that acquisition would lessen\nbut such presumption. Clayton Act, § 7,\ncompetition. Clayton Act, § 7, 15 U.S.C.A.\n15 U.S.C.A. § 18.\n§ 18.\n2. Monopolies\n24(12)\nIf party seeking merger or acquisition\n6. Monopolies\n24(13)\nrebuts presumption that transaction will\nAntitrust defendant seeking to rebut\nsubstantially lessen competition, burden of\npresumption of anticompetitive effect of\nproducing additional evidence of anticom-\nacquisition or merger must show that pri-\npetitive effect shifts to Government, and\nma facie case inaccurately predicts relevant\nmerges with ultimate burden of persuasion,\ntransaction's probable effect on future\nwhich remains with Government at all\ncompetition. Clayton Act, § 7, 15 U.S.C.A.\ntimes. Clavton Act, § 7, 15 U.S.C.A. § 18.\n§ 18.\n982\n908 FEDERAL REPORTER, 2d SERIES\nU.S. V. BAKER HUGHES INC.\n983\nCite as 908 F.2d 981 (D.C. Clr. 1990)\nAppeal from the United States District\nUnited States HHUDR market in violation\nUnited States v. General Dynamics\ndid not expressly state the legal standard\nCourt for the District of Columbia (Civil\nof section 7 of the Clayton Act, 15 U.S.C.\nCorp., 415 U.S. 486, 496-504, 94 S.Ct. 1186,\nthat it applied in its analysis of rebuttal\nAction No. 89-03333).\n§ 18.¹ In December 1989, the government\n1193-97, 39 L.Ed.2d 530 (1974); Philadel-\nevidence, failed to apply a sufficiently\nDavid Seidman, Atty., Dept. of Justice,\nsought and obtained a temporary restrain-\nphia Bank, 374 U.S. at 363, 83 S.Ct. at\nstringent standard. The government ar-\nwith whom James F. Rill, Asst. Atty. Gen.,\ning order blocking the transaction. See\n1741. If the defendant successfully rebuts\ngues that, as a matter of law, section 7\nMichael Boudin and Judy L. Whalley, Dep-\nTemporary Restraining Order, United\nthe presumption, the burden of producing\ndefendants can rebut a prima facie case\nuty Asst. Attys. Gen., and Catherine G.\nStates v. Baker Hughes Inc., No. 89-03333\nadditional evidence of anticompetitive ef-\nonly by a clear showing that entry into\nO'Sullivan, Robert B. Nicholson and An-\n(D.D.C. Dec. 15, 1989). In February 1990,\nfect shifts to the government, and merges\nthe market by competitors would be quick\ndrea Limmer, Attys., Dept. of Justice, were\nthe district court held a bench trial and\nwith the ultimate burden of persuasion,\nand effective. Because the district court\non the brief, for appellant.\nissued a decision rejecting the govern-\nwhich remains with the government at all\nfailed to apply this standard, the govern-\nDavid Marx, Jr., with whom Ronald A.\nment's request for a permanent injunction\ntimes. See Kaiser Aluminum & Chem.\nment submits, the court erred in concluding\nand dismissing the section 7 claim. See\nCorp. v. FTC, 652 F.2d 1324, 1340 & n. 12\nthat the proposed acquisition would not\nBloch, Lizbeth R. Levinson and Amy E.\n(ith Cir.1981).\nsubstantially lessen future competition in\nHancock, for Oy Tampella AB and Eimco\nUnited States v. Baker Hughes Inc., 731\nSecoma, S.A., and William J. Baer, with\nF.Supp. 3 (D.D.C.1990). The government\nBy presenting statistics showing that\nthe United States HHUDR market.\nwhom Randal M. Shaheen for Baker\nimmediately appealed to this court, re-\ncombining the market shares of Tamrock\nWe find no merit in the legal standard\nquesting expedited proceedings and an in-\nand Secoma would significantly increase\npropounded by the government. It is de-\nHughes Inc., were on the joint brief, for\njunction pending appeal. We granted the\nconcentration in the already highly concen-\nvoid of support in the statute, in the case\nappellees.\nmotion for expedited briefing and argu-\ntrated United States HHUDR market, the\nlaw, and in the government's own Merger\nBefore RUTH B. GINSBURG,\nment, but denied the motion for an injune-\ngovernment established a prima facie case\nGuidelines. Moreover, it is flawed on its\nSENTELLE, and THOMAS, Circuit\ntion pending appeal. The appellees con-\nof anticompotitivo offect. The district\nmorits in three fundamental respects.\nsummated the acquisition shortly there-\ncourt, however, found sufficient evidence\nFirst, it assumes that ease of entry by\nJudges.\nafter.\nthat the merger would not substantially\ncompetitors is the only consideration rele-\nOpinion for the Court filed by Circuit\nlessen competition to conclude that the de-\nvant to a section 7 defendant's rebuttal.\n[1,2] The basic outline of a section 7\nfendants had rebutted this prima facie\nSecond, it requires that a defendant who\nJudge CLARENCE THOMAS.\nhorizontal acquisition case is familiar. By\ncase. The government did not produce any\nseeks to show ease of entry bear the oner-\nCLARENCE THOMAS, Circuit Judge:\nshowing that a transaction will lead to un-\nadditional evidence showing a probability\nous burden of proving that entry will be\nAppellee Oy Tampella AB, a Finnish cor-\ndue concentration in the market for a par-\nof substantially lessened competition, and\n\"quick and effective.\" Finally, by stating\nthat the defendant can rebut a prima facie\nporation, through its subsidiary Tamrock\nticular product in a particular geographic\nthus failed to carry its ultimate burden of\nAG, manufactures and sells hardrock hy-\narea,2 the government establishes a pre-\npersuasion.\ncase only by a clear showing, the standard\ndraulic underground drilling rigs\nsumption that the transaction will substan-\n[3] In this appeal, the government as-\nin effect shifts the government's ultimate\n(HHUDRs) in the United States and\ntially lessen competition. See United\nsails the court's conclusion that the defen-\nburden of persuasion to the defendant. Al-\nthroughout the world. Appellee Baker\nStates v. Citizens & Southern Nat'l Bank,\ndants rebutted the prima facie case.\nthough the district court in this case did\nHughes Inc., a corporation based in Hous-\n422 U.S. 86, 120-22, 95 S.Ct. 2099, 2118-19,\nDoubtless aware that this court will set\nnot expressly set forth a legal standard\nton, Texas, owned a French subsidiary,\naside the district court's findings of fact\nwhen it evaluated the defendants' rebuttal,\n45 L.Ed.2d 41 (1975); United States v.\nEimco Secoma, S.A. (Secoma), that was\nonly if they are clearly erroneous, see Fed.\nwe have carefully reviewed the court's\nPhiladelphia Nat'l Bank, 374 U.S. 321,\nsimilarly involved in the HHUDR industry.\n363, 83 S.Ct. 1715, 1741, 10 L.Ed.2d 915\nR.Civ.P. 52(a), the government frames the\nthorough analysis of competitive conditions\nIn 1989, Tamrock proposed to acquire Seco-\n(1963). The burden of producing evidence\nissue as a pure question of law, which we\nin the United States HHUDR market, and\nma.\nto rebut this presumption then shifts to the\nreview de novo. The government's key\nwe are satisfied that the court effectively\nThe United States challenged the pro-\ndefendant. See, e.g., United States v. Ma-\ncontention is that the district court, which\napplied a standard faithful to section 7.4\nposed acquisition, charging that it would\nrine Bancorporation, 418 U.S. 602, 631, 94\n3. From 1986 through 1988, Tamrock had an\nreprinted in 4 Trade Reg.Rep. (CCH) 11 13,103, at\nsubstantially lessen competition in the\nS.Ct. 2856, 2874-75, 41 L.Ed.2d 978 (1974);\naverage 40.8% share of the United States\n20,561-64 (1988). This acquisition has in-\nHHUDR market, while Secoma's share averaged\ncreased the HHI in this market from 2878 to\n1. Section 7 prohibits mergers and acquisitions\nAlthough the appellees quibble with the\n17.5%. 731 F.Supp. at 6. In 1988 alone, the\n4303. Brief for Appellant at 5 n. 3, 12 (calculat-\nthe effect of which \"may be substantially to\ncourt's product market definition, they conclude\ntwo firms enjoyed a combined share of 76% of\ned from 1986-1988 figures; see 731 F.Supp. at\nlessen competition, or to tend to create a mo-\nthat \"the [district] court's product market defini-\nthe market. (The district court inaccurately cal-\n6).\nnopoly.\" 15 U.S.C. § 18.\ntion presages its finding that the extent of\nculated this figure as 66%. See id. at 10; Brief\n4. Even if we found more impressive the argu-\n2. The parties in this case do not seriously con-\npresent competition and ease of entry preclude\nfor Appellant at 10 n. 10; Brief for Appellees\nment that the district court did not clearly artic-\ntest the district court's definition of the relevant\nfinding a violation of Section 7.\" Brief for\napp. A.) The acquisition thus has brought about\nulate the legal standard applicable to a section 7\nmarkets. The court defined the geographic\nAppellees at 10 (emphasis added). If the appel-\na dramatic increase in the Herfindahl-Hirsch-\nrebuttal, it would remain open to us to affirm\nmarket as the entire United States, see 731\nlees believe that the court's product market defi-\nman Index (HHI)-a yardstick of concentra-\nthat court's judgment. Cf. Nelson v. United\nF.Supp. at 5-6, and the relevant product as three\nnition contributed to their victory, we see no\nlion-for this market. The Department of Jus-\nStates, 838 F.2d 1280, 1285 (D.C.Cir.1988)\ntypes of HHUDRs: face drills (\"jumbos\"), long.\nreason to address their halfhearted and contra-\nlice's Merger Guidelines characterize as \"highly\n(\"[W]e may affirm a trial court's decision on a\nhole drills, and roof-bolting drills, as well as\ndictory challenges to that definition.\nconcentrated\" any market in which the HHI\nbasis not relied on by the district court where\nassociated spare parts, components, and acces-\nexceeds 1800. See United States Dep't of Jus-\nthat ground finds support in the record.\") (cita-\nsories, and used drills. See id. at 4, 6-8.\nlice, Merger Guidelines § 3.1 (June 14, 1984),\ntion omitted).\n984\n908 FEDERAL REPORTER, 2d SERIES\nU.S. v. BAKER HUGHES INC.\n985\nCite as 908 F.2d 981 (D.C. Clr. 1990)\nConcluding that the court applied this legal\nquiry into future competitiveness; the So-\nprer, the Court stressed that a transaction\nny made substantial lessening of competi-\nstandard to factual findings that are not\npreme Court has never indicated that a\nmust\ntion unlikely); United States v. Interna-\nclearly erroneous, we affirm the court's\ndefendant seeking to rebut a prima facie\nbe functionally viewed, in the context of\ntional Harvester Co., 564 F.2d 769, 773-79\ndenial of a permanent injunction and its\ncase is restricted to producing evidence of\nits particular industry. That is, whether\n(7th Cir.1977) (company successfully rebut-\ndismissal of the government's section 7\nease of entry. Indeed, in numerous cases,\nthe consolidation was to take place in an\nted prima facie case by showing, among\nclaim.\ndefendants have relied entirely on non-en-\nindustry that was fragmented rather\nother things, financial weakness of ac-\ntry factors in successfully rebutting a pri-\nthan concentrated, that had seen a recent\nquired company, de facto independence of\nI.\nma facie case.\ntrend toward domination by a few lead-\nacquired company from acquiring company,\nIt is a foundation of section 7 doctrine,\nIn United States v. General Dynamics\ners or had remained fairly consistent in\nstrong level of competition in relevant mar-\ndisputed by no authority cited by the\nCorp., 415 U.S. 486, 94 S.Ct. 1186, 39\nits distribution of market shares among\nket, and tendency of the market toward\ngovernment, that evidence on a variety of\nL.Ed.2d 530 (1974). for instance, the Su-\nthe participating companies, that had ex-\neven stronger levels of competition).\nfactors can rebut a prima facio case.\npreme Court rejected the government's an\nperienced easy access to markets by sup-\nIndeed, that a variety of factors other\nThese factors include, but are not limited\ngument that a merger between two leading\npliers and easy access to suppliers by\nthan ease of entry can rebut a prima facie\nto, the absence of significant entry barriers\ncoal producers would violate section 7. At\nbuyers or had witnessed foreclosure of\ncase has become hornbook law. See, e.g.,\nin the relevant market. In this appeal,\nthough the transaction would result in the\nbusiness, that had witnessed the ready\nP. Areeda & H. Hovenkamp, Antitrust\nhowever, the government inexplicably im-\ntwo largest firms controlling about half of\nentry of new competition or the erection\nLaw 919', 920.1, 921', 925', 934', 935',\nbues the entry factor with talismanic sig-\nall sales in an industry that was already\nof barriers to prospective entrants, all\n939', at 813-23 (Supp.1989) (other factors\nnificance. If, to successfully rebut a prima\nhighly concentrated because of a rapid de-\nwere aspects, varying in importance with\ninclude significance of market shares and\nfacie case, a defendant must show that\ncline in the number of competitors, the\nthe merger under consideration, which\nconcentration, likelihood of express collu-\nentry by competitors will be quick and ef-\ndefendants produced considerable evidence\nwould properly be taken into account.\nsion or tacit coordination, and prospect of\nfective, then other factors bearing on fu-\nthat the merger would not substantially\n370 U.S. at 321-22, 82 S.Ct. at 1521-22\nefficiencies from merger); H. Hovenkamp,\nture competitiveness are all but irrelevant.\nlessen competition. One of the parties to\n(footnote omitted).6 All these factors are\nEconomics and Federal Antitrust Law\nThe district court in this case considered at\nthe merger owned only minimal reserves of\nrelevant in determining whether a transac-\n§ 11.6, at 307-11 (1985) (other factors in-\nleast two factors in addition to entry: the\ncoal, an irreplaceable raw material, and had\ntion is likely to lessen competition substan-\nclude supply of irreplaceable raw materials,\nmisleading nature of the statistics underly-\nalready committed these reserves through\ntially, but none is invariably dispositive.\nexcess capacity, degree of product homo-\ning the government's prima facie case and\nlong-term contracts. This evidence led the\nSee Note, Horizontal Mergers After Unit-\ngeneity, marketing and sales methods, and\nthe sophistication of HHUDR consumers.\nCourt to conclude that the government's\ned States V. General Dynamics Corp., 92\nabsence of a trend toward concentration);\nThese non-entry factors provide compelling\nstatistics regarding concentration in the\nHarv.L.Rev. 491, 500 (1978).\nL. Sullivan, Handbook of the Law of Anti-\nsupport for the court's holding that Tam-\nwake of the merger inaccurately portrayed\nIn the wake of General Dynamics, the\ntrust § 204, at 622-25 (1977) (other factors\nrock's acquisition of Secoma was not likely\nthe post-merger company's weak competi-\nSupreme Court and lower courts have\ninclude industry structure, weakness of\nto lessen competition substantially. We\ntive stature, and that the defendants had\nfound section 7 defendants to have success-\ndata underlying prima facie case, elasticity\nhave concluded that the court's considera-\ntherefore rebutted the prima facie case.\nfully rebutted the government's prima fa-\nof industry demand, inter-industry cross-\ntion of these factors was crucial, and that\nId. at 503-04, 94 S.Ct. at 1196-97. No-\ncie case by presenting evidence on a variety\nelasticities of demand and supply, product\nthe government's fixation on ease of entry\nwhere did the Court consider barriers to\nof factors other than ease of entry. See,\ndifferentiation, and efficiency). See gener-\nis misplaced.\nentry.\ne.g., Citizens & Southern, 422 U.S. at 121-\nally Antitrust Section, ABA, Horizontal\nSection 7 involves probabilities, not cer-\nIndeed, the Court in General Dynamics\n23, 95 S.Ct. at 2119-20 (no lessening of\nMergers: Law and Policy 162-75, 201-04,\ntainties or possibilities.⁵ The Supreme\nemphasized the comprehensive nature of a\ncompetition, and thus no violation of sec-\n219-63 (Monograph No. 12, 1986).\nCourt has adopted a totality-of-the-circum-\nsection 7 inquiry, quoting at length from\ntion 7, where acquired banks were already\nIt is not surprising, then, that the De-\nstances approach to the statute, weighing a\nits decision a decade earlier in Brown Shoe\nassociated with acquiring bank; no discus-\npartment of Justice's own Merger Guide-\nvariety of factors to determine the effects\nCo. v. United States, 370 U.S. 294, 82 S.Ct.\nsion of ease of entry); Lektro-Vend Corp.\nlines contain a detailed discussion of non-\nof particular transactions on competition.\n1502, 8 L.Ed.2d 510 (1962). See General\nr. Vendo Co., 660 F.2d 255, 276 (7th Cir.\nentry factors that can overcome a presump-\nThat the government can establish a prima\nDynamics, 415 U.S. at 498, 94 S.Ct. at\n1981) (acquired company's deteriorating\ntion of illegality established by market\nfacie case through evidence on only one\n1194. In Brown Shoe, the Court applied\nmarket position both before and after ac-\nshare statistics. See United States Dep't\nfactor, market concentration, does not ne-\nsection 7 stringently, holding that a merger\nquisition rebutted prima facie case), cert.\nof Justice, Merger Guidelines (June 14,\ngate the breadth of this analysis. Evidence\nthat created a company with a 5% share of\ndenied, 455 U.S. 921, 102 S.Ct. 1277, 71\n1984) [hereinafter Guidelines], reprinted in\nof market concentration simply provides a\na highly fragmented market violated the\nL.Ed.2d 461 (1982); FTC v. National Tea\n4 Trade Reg.Rep. (CCH) 13,103, at 20,-\nconvenient starting point for a broader in-\nstatute. In arriving at this result, how-\nCo., 603 F.2d 694, 699-700 (8th Cir.1979)\n561-64 (1988). According to the Guide-\n(weak market position of acquiring compa-\nlines, these factors include changing mar-\n5. See Brown Shoe Co. V. United States, 370 U.S.\nfor dealing with clear-cut menaces to competi-\n294, 323, 82 S.Ct. 1502, 1522-23, 8 L.Ed.2d 510\ntion; no statute was sought for dealing with\n6. See also id. at 322 n. 38, 82 S.Ct. at 1522 n. 38\namination of the particular market-its struc-\n(1962) (\"Congress used the words 'may be sub-\nephemeral possibilities. Mergers with a proba-\n(\"Statistics reflecting the shares of the market\nture, history and probable future-can provide\nstantially to lessen competition' (emphasis sup-\nble anticompetitive effect were to be proscribed\ncontrolled by the industry leaders and the par-\nthe appropriate setting for judging the probable\nplied). to indicate that its concern was with\nby this Act.\") (footnote omitted) (emphasis add-\nties to the merger are, of course, the primary\nanticompetitive effect of the merger.\").\nprobabilities, not certainties. Statutes existed\ned).\nindex of market power; but only a further ex-\n986\n908 FEDERAL REPORTER, 2d SERIES\nU.S. V. BAKER HUGHES INC.\n987\nCite as 908 F.2d 981 (D.C. Clr. 1990)\nket conditions (§ 3.21), the financial condi-\nleading. Because the United States\nThe government has not provided us\ncourt's conclusion that the defendants suc-\ntion of firms in the relevant market\nHHUDR market is minuscule, market\nwith any reason to suppose that these find-\ncessfully rebutted the government's prima\n(§ 3.22), special factors affecting foreign\nshare statistics are \"volatile and shifting,\"\nings of fact are unsupported in the record\nfacie case.\nfirms (§ 3.23), the nature of the product\n731 F.Supp. at 11, and easily skewed. In\nor clearly erroneous, see Fed.R.Civ.P. 52(a).\nand the terms of sale (§ 3.41), information\nЛя authority for its \"quick and effective\"\n1986, for instance, only 22 HHUDRs were\nWe thus accept them as correct. These\nabout specific transactions and buyer mar-\nsold in the United States. In 1987, the\nfindings provide considerable support for\nentry test, the government relies primarily\nket characteristics (§ 3.42), the conduct of\nthe district court's conclusion that the de-\non United States v. Waste Management,\nnumber rose to 43, and in 1988 it fell to 38.\nfirms in the market (§ 3.44), market per-\nInc., 743 F.2d 976, 981-84 (2d Cir.1984).\nEvery HHUDR sold during this period,\nfendants successfully rebutted the govern-\nformance (§ 3.45), and efficiencies (§ 3.5).\nThis reliance is misplaced. Neither Waste\nthus, increased the seller's market share by\nment's prima facie case. Because the de-\nGiven this acknowledged multiplicity of\ntwo to five percent. A contract to provide\nfendants also provided compelling evidence\nManagement nor any other case purports\nrelevant factors, we are at a loss to under-\non ease of entry into this market, we need\nto establish a categorical \"quick and effec-\nmultiple HHUDRs could catapult a firm\nstand on what basis the government has\nnot decide whether these findings, without\ntive\" entry requirement. The Second Cir-\nfrom last to first place. The district court\ndecided that \"[t]o rebut the government's\nfound that, in this unusual market, \"at any\nmore, are sufficient to rebut the govern-\ncuit in Waste Management simply noted\nprima facie case, the defendants were re-\nment's prima facie case. The foregoing\nthat the defendant had successfully rebut-\ngiven point in time an individual seller's\nquired to show that entry would be both\nfuture competitive strength may not be\nanalysis of non-entry factors is intended\nted the government's prima facie case by\nshowing that entry into the Dallas/Fort\nquick and effective in preventing supra-\naccurately reflected.\" Id. at 9. While ac-\nmerely to underscore that, contrary to the\ncompetitive prices.\" Brief for Appellants\nknowledging that the HHUDR market\ngovernment's assumption, these factors are\nWorth trash collection market was \"easy.\"\nat 11-12 (emphasis added). If the district\nwould be highly concentrated after Tam-\nrelevant, and can even be dispositive, in a\nId. at 983. That a defendant may success-\nrock acquired Secoma, the court found that\nsection 7 rebuttal analysis.\nfully rebut a prima facie case by showing\ncourt in this case had focused exclusively\nquick and effective entry does not mean\non entry, it might be understandable that\nsuch concentration in and of itself would\nthe government would mirror that focus in\nII.\nthat successful rebuttal requires such a\nnot doom competition. High concentration\nshowing. We are at a loss to understand\nattacking the court's conclusion. The dis-\nhas long been the norm in this market.\nThe existence and significance of barri-\nhow the government derived from Waste\ntrict court, however, canvassed a number\nFor example, only four firms sold\ners to entry are frequently, of course, cru-\nManagement (where, lest the irony be\nof non-entry factors that contributed to its\nconclusion that the defendants had rebut-\nHHUDRs in the United States between\ncial considerations in a rebuttal analysis.\nmissed, the government lost) the proposi-\nIn the absence of significant barriers, a\n1986 and 1989. Id. at 5-6.⁷ Nor is concen-\ntion that \"a defendant arguing supposed\nted the prima facie case. By ignoring\ncompany probably cannot maintain supra-\ntration surprising where, as here, a product\nease of entry can rebut the government's\nthese factors, the government's arguments\ncompetitive pricing for any length of time.\nagainst that conclusion fall wide of the\nis esoteric and its market small. Indeed,\nSee, e.g., United States v. Falstaff Brew-\nprima facie case only by clearly showing\nmark.\nthe trial judge found that \"[c]oncentration\nthat entry will be both quick and effective\ning Corp., 410 U.S. 526, 532-33, 93 S.Ct.\nhas existed for some time [in the United\n[4] The district court's analysis of this\n1096, 1100-01, 35 L.Ed.2d 475 (1973); Unit-\nat preventing supracompetitive pricing.\"\nStates HHUDR market] but there is no\ncase is fully consonant with precedent and\ned States v. Syufy Enters., 903 F.2d 659,\nBrief for Appellant at 14 (emphasis added).\nproof of overpricing, excessive profit or\nlogic. The court reviewed the evidence\n664 (9th Cir.1990); California v. American\nThat the \"quick and effective\" standard\nany decline in quality, service or diminish-\nproffered by the defendants as part of its\nStores Co., 872 F.2d 837, 842 (9th Cir.1989),\nlacks support in precedent is not surpris-\ning innovation.\" Id. at 12.\noverall assessment of future competitive-\nrev'd on other grounds, - U.S. 110\ning, for it would require of defendants a\nness in the United States HHUDR market.\nThe second non-entry factor that the dis-\nS.Ct. 1853, 109 L.Ed.2d 240 (1990); Ball\ndegree of clairvoyance alien to section 7,\nAs noted above, the court gave particular\ntrict court considered was the sophistica-\nMemorial Hosp., Inc. v. Mutual Hosp.\nwhich, as noted above, deals with probabili-\nweight to two non-entry factors: the\ntion of HHUDR consumers. HHUDRs\nIns., 784 F.2d 1325, 1335-36 (7th Cir.1986).\nties, not certainties. Although the govern-\nflawed underpinnings of the government's\ncurrently cost hundreds of thousands of\nThe district court in this case reviewed the\nment disclaims any attempt to impose upon\nprima facie case and the sophistication of\ndollars, and orders can exceed $1 million.\nprospects for future entry into the United\ndefendants the burden of proving that en-\nHHUDR consumers. The court's consider-\nId. at 8. These products are hardly trink-\nStates HHUDR market and concluded that,\ntry actually will occur, see Reply Brief for\nation of these factors was not only appro-\nets sold to small consumers who may pos-\noverall, entry was likely, particularly if\nAppellant at 13 n. 13, we believe that an\npriate, but imperative, because in this case\nsess imperfect information and limited bar\nTamrock's acquisition of Secoma were to\ninflexible \"quick and effective\" entry re-\nthese factors significantly affected the\ngaining power. HHUDR buyers closely\nlead to supracompetitive pricing. The\nquirement would tend to impose precisely\nprobability that the acquisition would have\nexamine available options and typically in-\ngovernment attacks this conclusion, assert-\nsuch a burden. A defendant cannot real-\nanticompetitive effects.\nsist on receiving multiple, confidential bids\ning that, as a matter of law, the court\nistically be expected to prove that new com-\nWith respect to the first factor, the sta-\nfor each order. Id. This sophistication.\nshould have required the defendants to\npetitors will \"quickly\" or \"effectively\" en-\nshow clearly that entry would be \"quick\nter unless it produces evidence regarding\ntistical basis of the prima facie case, the\nthe court found, was likely to promote com-\nand effective.\" We reject this novel and\nspecific competitors and their plans. Such\ncourt accepted the defendants' argument\npetition even in a highly concentrated mar\nunduly onerous standard. The district\nevidence is rarely available; potential com-\nthat the government's statistics were mis-\nket. Id. at 11.\ncourt's factual findings amply support its\npetitors have a strong interest in downplay-\n7. See also supra note 3 (HHI of United States\nwhich HHI exceeds 1800 as \"highly concentral.\ndetermination that future entry into the\ning the likelihood that they will enter a\nHHUDR market before merger was 2878; De-\ned\").\nUnited States HHUDR market is likely.\ngiven market. When the government sar-\npartment of Justice regards any market in\nThis determination, in turn, supports the\ncastically \"wonders how slow and ineffec-\n988\n908 FEDERAL REPORTER, 2d SERIES\nU.S. V. BAKER HUGHES INC.\n989\nCite 908 F.2d 981 (D.C. Clr. 1990)\ntive entry rebuts a prima facie case,\" id. at\ntime, the Department is unlikely to chal\n12, it misses a crucial point. If the totality\nlenge mergers in that market\nfor future expansion.⁸ 731 F.Supp. at 9,\nIIL\nLa\nof a defendant's evidence suggests that\nassessing the ease of entry into a mar\n10. 11. Second, the court stressed that a\nentry will be slow and ineffective, then the\nket, the Department will consider the\nnumber of firms competing in Canada and\nFinally, we consider the strength of the\ndistrict court is unlikely to find the prima\nlikelihood and probable magnitude of en-\nother countries had not penetrated the\nshowing that a section 7 defendant must\ntry in response to a \"small but signift\nl'nited States market, but could be expect-\nmake to rebut a prima facie case. The\nfacie case rebutted. This is a far cry,\ncant and nontransitory\" increase in price.\ned to do so if Tamrock's acquisition of\ndistrict court simply reviewed the evidence\nhowever, from insisting that the defendant\nmust invariably show that new competi-\nSecoma led to higher prices. Id. at 10-11.'\nthat the defendants presented and conclud-\ntors will enter quickly and effectively.\nGuidelines § 3.3, reprinted in 4 Trade\nBecause the market is small, \"[i]t is inex-\ned that the acquisition was not likely to\nReg.Rep. (CCH) at 20,562. In its brief,\nFurthermore, the supposed \"quick and\npensive to develop a separate sales and\nsubstantially lessen competition. The\nmoreover, the government fails to state its\neffective\" entry requirement overlooks the\nservice network in the United States.\" Id.\ngovernment argues that the court erred by\nown standard consistently, insisting at one\nat 8. Third, these firms would exert com-\nfailing to require the defendants to make a\npoint that 11 firm that never enters is given\npoint that a defendant show that entry will\npetitive pressure on the United States\n\"clear\" showing. See Brief for Appellant\nmarket can nevertheless exert competitive\nbe \"sure, swift, and substantial.\" Brief for\nat 13. The relevant precedents, however,\npressure on that market. If barriers to\nHHUDR market even if they never actual-\nAppellant at 16. Our uncertainty over the\nly entered the market. Id. at 10-11. Final-\nsuggest that this formulation overstates\nentry are insignificant, the threat of entry\nmeaning and implications of \"quick and\ncan stimulate competition in a concentrated\nIv. the court noted that there had been\nthe defendants' burden. We conclude that\neffective\" entry makes us all the more\ntremendous turnover in the United States\na \"clear\" showing is unnecessary, and we\nmarket, regardless of whether entry ever\nresistant to the imposition of such a re-\noccurs. See Falstaff Brewing, 410 U.S. at\nHHUDR market in the 1980s. Secoma, for\nare satisfied that the district court required\nquirement. Nor has the government\n532-33, 93 S.Ct. at 1100-01 (potential for\nexample, did not sell a single HHUDR in\nthe defendants to produce sufficient evi-\nshown that current section 7 law is so\nthe United States in 1983 or 1984, but then\ndence.\ndefendant Falstaff to enter the market\nconfused as to warrant the invention of a\nmight induce brewers in the Northeast to\nlowered its price and improved its service,\nThe government's \"clear showing\" lan-\nnew standard.\nmaintain competitive prices); FTC v. Proc-\nbecoming market leader by 1989. Id. at 9,\nguage is by no means unsupported in the\nter & Gamble Co., 386 U.S. 568, 581, 87\nThe government's insistence on a \"quick\n10. Secoma's growth suggests that com-\ncase law. In the mid-1960s, the Supreme\nS.Ct. 1224, 1231-32, 18 L.Ed.2d 303 (1967)\nand effective\" entry standard only reaf-\npetitors not only can, but probably will,\nCourt construed section 7 to prohibit virtu-\n(\"It is clear that the existence of Procter at\nfirms our doubts, raised in section I of this\nenter or expand if this acquisition leads to\nally any horizontal merger or acquisition.\nthe edge of the industry exerted considera-\nopinion, about the government's approach\nhigher prices. The district court, to be\nAt the time, the Court envisioned an ideal\nble influence on the market\n[The] in-\nto section 7 analysis. Predicting future\nsure, also found some facts suggesting dif-\nmarket as one composed of many small\ndustry was influenced by each firm's pre-\ncompetitive conditions in a given market, as\nficulty of entry,¹⁰ but these findings do not\ncompetitors, each enjoying only a small\ndictions of the market behavior of its com-\nthe statute and precedents require, calls\nnegate its ultimate finding to the contrary.\nmarket share; the more closely a given\npetitors, actual and potential.\") (emphasis\nfor a comprehensive inquiry. The govern-\nIn sum, we see no error-legal or factu-\nmarket approximated this ideal, the more\nadded); cf. Byars v. Bluff City News Co.,\nment's standard would improperly narrow\nal-in the district court's determination\ncompetitive it was presumed to be. See\n609 F.2d 843, 851 n. 19 (6th Cir.1979) (\"If\nthe section 7 inquiry, channelling what\nthat entry into the United States HHUDR\nUnited States v. Aluminum Co. of Am.,\nentry barriers are low, the threat of poten-\nshould be an overall analysis of competi-\nmarket would likely avert anticompetitive\n377 U.S. 271, 280, 84 S.Ct. 1283, 1289, 12\ntial competition operates as a significant\ntiveness into a determination of whether a\neffects from Tamrock's acquisition of Seco-\nL.Ed.2d 314 (1964) (\"It is the basic premise\ncheck on monopoly power since competitors\ndefendant has shown particular facts.\nma. The court's determination on entry,\nof [section 7] that competition will be most\nwill quickly enter the market if prices are\nconsidered along with the findings dis-\nvital 'when there are many sellers, none of\nraised significantly.\"). If a firm that never\n[5] Having rejected the \"quick and ef-\ncussed in section I of this opinion, suffices\nwhich has any significant market share.'')\nenters a market can keep that market com-\nfective\" entry standard itself, we turn\nto rebut the government's prima facie case.\n(quoting United States v. Philadelphia\npetitive, a defendant seeking to rebut a\nbriefly to the government's more general\nprima facie case certainly need not show\nargument that the district court's findings\n8. As the Guidelines note, \"'Entry' may occur as\ners would exist after the merged firm had elimi-\nfirms outside the market enter for the first time\nnated some of its rivals, because at that point\nthat any firm will enter the relevant mar-\nregarding ease of entry failed to support\nor as fringe firms currently in the market greatly\nthe remaining firms would begin to charge su-\nket.\nits conclusion that the defendants had re-\nexpand their current capacity.\" Guidelines\npracompetitive prices, and the barriers that ex-\nThe final flaw in the proposed \"quick and\nbutted the prima facie case. The district\n§ 3.3, reprinted in 4 Trade Reg.Rep. (CCH) at\nisted during competitive conditions might well\ncourt in this case discussed a number of\n20,562 n. 20 (emphasis added).\nprove insignificant.\").\neffective\" standard is its manipulability.\nThe adjectives \"quick\" and \"effective\" are\nconsiderations that led it to conclude that\n9. Some of these firms have already tried, but\nnot self-defining, and have not traditionally\nentry barriers to the United States\nfailed, to penetrate the United States HHUDR\n10. The court, for instance, noted that HHUDRs\nHHUDR market were not high enough to\nmarket. As the district court correctly noted,\nare custom-made, and thus are not readily inter-\nbeen used in the section 7 context. The\nhowever, failed entry in the past does not neces-\nchangeable or replaceable. Buyers, therefore,\ngovernment's Merger Guidelines do not use\nimpede future entry should Tamrock's ac-\nsarily imply failed entry in the future: if prices\ntend to return to sellers from whom they have\nthe words when discussing entry, noting\nquisition of Secoma lead to supracompeti-\nreach supracompetitive levels, a company that\npurchased in the past. 731 F.Supp. at 8. The\ntive pricing. First, the court noted that at\nhas failed to enter in the past could become\ncourt also found that HHUDR customers typi-\nonly that\nleast two companies, Cannon and Inger\ncompetitive. See 731 F.Supp. at 11; cf. Cargill,\ncally place great importance on assurances of\n[i]f entry into a market is so easy that\nInc. v. Monfort of Colo., Inc., 479 U.S. 104, 119\nproduct quality and reliable future service-\nexisting competitors could not succeed in\nsoll-Rand, had entered the United States\nn. 15, 107 S.Ct. 484, 494 n. 15, 93 L.Ed.2d 427\nconsiderations that may handicap new entrants.\nraising price for any significant period of\nHHUDR market in 1989, and were poised\n(1986) (\"In evaluating entry barriers\na\ncourt\nId. It also noted the significant economies of\nshould focus on whether significant entry barri-\nscale involved in manufacturing HHUDRs. Id.\n990\n908 FEDERAL REPORTER, 2d SERIES\nU.S. v. BAKER HUGHES INC.\n991\nCite as 908 F.2d 981 (D.C. Clr. 1990)\nNat'l Bank, 374 U.S. 321, 363, 83 S.Ct.\ndismissed the defendants' contention that\ncarded Philadelphia Bank's insistence\nfects\") (emphasis added). The more com-\n1715, 1741, 10 L.Ed.2d 915 (1963)).\nthe post-merger market was highly compet-\nthat a defendant \"clearly\" disprove anti-\npelling the prima facie case, the more evi-\nThis perspective animated a series of de-\nitive. Id. at 277-78, 86 S.Ct. at 1482\"\ncompetitive effect, and instead described\ndence the defendant must present to rebut\ncisions in which the Court stated that a\nNoting that the market was \"marked at the\nthe rebuttal burden simply in terms of a\nit successfully. A defendant can make the\nsection 7 defendant's market share mea-\nsame time by both a continuous decline in\n\"showing.\" See, e.g., United States v. Ma-\nrequired showing by affirmatively showing\nsures its market power, that statistics\nthe number of small businesses and a large\nrine Bancorporation, 418 U.S. 602, 631, 94\nwhy a given transaction is unlikely to sub-\nalone establish a prima facie case, and that\nnumber of mergers,\" the Von's Grocery\nS.Ct. 2856, 2874-75, 41 L.Ed.2d 978 (1974)\nstantially lessen competition, or by discred-\na defendant carries a heavy burden in seek-\nCourt predicted that, if the merger were\nlafter government established prima facie\niting the data underlying the initial pre-\ning to rebut the presumption established by\nnot undone, the market \"would slowly but\ncase, \"the burden was then upon appellees\nsumption in the government's favor.\nsuch a prima facie case. The Court most\ninevitably gravitate from a market of many\nto show that the concentration ratios,\nclearly articulated this approach in Phila-\nsmall competitors to one dominated by one\nwhich can be unreliable indicators of actual\nBy focusing on the future, section 7\ndelphia Bank:\nmarket behavior, did not accurately depict\ngives a court the uncertain task of assess-\nor a few giants, and competition would\nTh[e] intense congressional concern with\nthe economic characteristics of the [rele-\ning probabilities. In this setting, allocation\nthereby be destroyed.\" Id. at 278, 86 S.Ct.\nof the burdens of proof assumes particular\nthe trend toward concentration [underly-\nat 1482; see also United States v. Pabst\nvant] market\") (citation omitted) (emphasis\ning section 7] warrants dispensing, in\nadded); United States v. Citizens &\nimportance. By shifting the burden of pro-\nBrewing Co., 384 U.S. 546, 550-52, 86 S.CL\ncertain cases, with elaborate proof of\n1665, 1668-69, 16 L.Ed.2d 765 (1966) (acqui-\nSouthern Nat'l Bank, 422 U.S. 86, 120, 95\nducing evidence, present law allows both\nmarket structure, market behavior, or\nS.Ct. 2099, 2118, 45 L.Ed.2d 41 (1975) (after\nsides to make competing predictions about\nsition producing brewer accounting for\nprobable anticompetitive effects. Specif-\n4.49% of nationwide beer sales violates sec-\ngovernment established prima facie case,\na transaction's effects. If the burden of\n\"[i]t\nwas\nincumbent upon [the defen-\nproduction imposed on a defendant is un-\nically, we think that a merger which pro-\ntion 7; brewer's rebuttal evidence virtually\ndant] to show that the market-share statis-\nduly onerous, the distinction between that\nduces a firm controlling an undue per-\nignored).\ntics gave an inaccurate account of the ac-\nburden and the ultimate burden of persua-\ncentage share of the relevant market,\nAlthough the Supreme Court has not\nand results in a significant increase in\nquisitions' probable effects on competi-\nsion-always an elusive distinction in prac-\noverruled these section 7 precedents, it has\ntion\") (emphasis added). Without overrul-\ntice-disintegrates completely. A defen-\nthe concentration of firms in that mar-\ncut them back sharply. In General Dy-\ning Philadelphia Bank, then, the Supreme\ndant required to produce evidence \"clearly\"\nket, is so inherently likely to lessen com-\nnamics, 415 U.S. at 498-504, 94 S.Ct. at\nCourt has at the very least lightened the\ndisproving future anticompetitive effects\npetition substantially that it must be en-\n1194-97, the Court affirmed a district court\nevidentiary burden on a section 7 defen-\nmust essentially persuade the trier of fact\njoined in the absence of evidence clearly\ndetermination that, by presenting evidence\ndant. See generally Note, 92 Harv.L.Rev.\non the ultimate issue in the case-whether\nshowing that the merger is not likely to\nat 491 (describing impact of General Dy-\nhave such anticompetitive effects.\nthat undermined the government's statis-\na transaction is likely to lessen competition\ntics, section 7 defendants had successfully\nnamics on section 7 jurisprudence).\nsubstantially. Absent express instructions\n374 U.S. at 363, 83 S.Ct. at 1741 (emphasis\nrebutted a prima facie case. In so holding,\nadded). Philadelphia Bank involved a\n[6] In the aftermath of General Dy-\nto the contrary, we are loath to depart\nthe Court did not expressly reaffirm or\nnamics and its progeny, a defendant seek-\nfrom settled principles and impose such a\nproposed merger that would have created a\ndisavow Philadelphia Bank's statement\nbank commanding over 30% of a highly\ning to rebut a presumption of anticompeti-\nheavy burden. Sce Kaiser Aluminum &\nthat a company must \"clearly\" show that a\nconcentrated market. While acknowl-\ntive effect must show that the prima facie\nChem. Corp. v. FTC, 652 F.2d 1324, 1340 &\ntransaction is not likely to have substantial\ncase inaccurately predicts the relevant\nn. 12 (7th Cir.1981); cf. Texas Dep't of\nedging that the banks could in principle\nanticompetitive effects. The Court simply\ntransaction's probable effect on future\nCommunity Affairs v. Burdine, 450 U.S.\nrebut the government's prima facie case,\nheld that the district court was justified,\nthe Court found unpersuasive the banks'\ncompetition. See American Stores, 872\n248, 253-56, 101 S.Ct. 1089, 1093-95, 67\nbased on all the evidence, in finding that\nevidence challenging the alleged anticom-\nF.2d at 842 (defendant can rebut prima\nL.Ed.2d 207 (1981) (applying similar pro-\n\"no substantial lessening of competition oc-\npetitive effect of the merger. See id. at\nfacie case \"through evidence demonstrat-\nduction-burden-shifting analysis to employ-\ncurred or was threatened by the acquisi-\n366-72, 83 S.Ct. at 1743-46.\ning that statistics on market share, market\nment discrimination suits under title VII,\ntion.\" General Dynamics, 415 U.S. at 498,\nconcentration, and market concentration\nand noting that \"[t]he ultimate burden of\nIn United States v. Von's Grocery Co.,\n94 S.Ct. at 1194.\ntrends portray inaccurately the merger's\npersuading the trier of fact remains\n384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555\nprobable effects on competition\") (empha-\nat all times with the plaintiff,\" id. at 253,\n(1966), the Court further emphasized the\nGeneral Dynamics began a line of deci-\nweight of a defendant's burden. Despite\nsions differing markedly in emphasis from\nsis added); cf. Waste Management, 743\n101 S.Ct. at 1093); 9 J. Wigmore, Evidence\nthe Court's antitrust cases of the 1960s.\nF.2d at 981 (defendant can rebut prima\n§ 2489, at 300 (J. Chadbourn rev.ed. 1981)\nevidence that a post-merger company had\nonly a 7.5% share of the Los Angeles retail\nInstead of accepting a firm's market share\nfacie case \"by a demonstration that the\n(burden of persuasion \"never shifts\" away\nas virtually conclusive proof of its market\nmerger will not have anticompetitive ef-\nfrom plaintiff).\ngrocery market, the Court, citing anticom-\npetitive \"trends\" in that market, ordered\npower, the Court carefully analyzed defen-\nthe lower courts, has said repeatedly that the\nment whether the challenged acquisition is\nthe merger undone. The Court summarily\ndants' rebuttal evidence.¹² These cases dis-\neconomic concept of competition, rather than\nlikely to hurt consumers, as by making it\nany desire to preserve rivals as such, is the\neasier for the firms in the market to collude,\n11. Justice Stewart, in dissent, emphasized the\n12. Judge Posner has elucidated this point:\nlodestar that shall guide the contemporary\nexpressly or tacitly, and thereby force price\nconsiderable amount of evidence in the record\nThe most important developments that cast\napplication of the antitrust laws, not exclud-\nabove or farther above the competitive level.\nindicating the market's competitiveness. 384\ndoubt on the continued vitality of such cases\ning\nthe\nClayton\nAct\nApplied\nto\ncases\nHospital Corp. of Am. V. FTC, 807 F.2d 1381,\nU.S. at 290-301, 86 S.Ct. at 1489-95 (Stewart, J.,\nas Brown Shoe and Von's are found in other\nbrought under Section 7. this principle re-\n1386 (7th Cir. 1986), cert. denied, 481 U.S. 1038,\ncases, where the Supreme Court, echoed by\nquires the district court\nto make a judg.\n107 S.Ct. 1975, 95 L.Ed.2d 815 (1987).\ndissenting).\n992\n908 FEDERAL REPORTER, 2d SERIES\nCOMMI\nImposing a heavy burden of production\non a defendant would be particularly ano-\nF.Supp. at 12. The government has given\nsculpture failed to ac\nus no reason to reverse that conclusion.\nmalous where, as here, it is easy to estab-\ntheme and format; (:\nFor the foregoing reasons, the judgment\ndecisionmaker was \"\nlish a prima facie case. The government,\nof the district court is\nPark Service's nubmi\nafter all, can carry its initial burden of\nproduction simply by presenting market\nAffirmed.\ndavits did not justify\nto be taken from the\nconcentration statistics. To allow the\nAffirmed.\ngovernment virtually to rest its case at\nKEY NUMBER SYSTEM\nthat point, leaving the defendant to prove\nthe core of the dispute, would grossly in-\n1. United States -\nflate the role of statistics in actions\nThe National P:\nbrought under section 7. The Herfindahl-\nabuse its discretion or\nHirschman Index cannot guarantee litiga-\ncapricious fashion \"\ntion victories.\" Cf. Ball Memorial Hosp.,\nCOMMUNITY FOR CREATIVE\nwithout regard to the\n784 F.2d at 1336 (explaining that \"[m]arket\nNON-VIOLENCE, et al.,\nture, that sculpture\nshare is just a way of estimating market\nAppellants,\nfamily was not a\npower, which is the ultimate considera-\nv.\nsymbol that accorded\ntion,\" and noting that \"[w]hen there are\nformat of the Christn\nbetter ways to estimate market power, the\nManuel LUJAN, Jr., Secretary of the\non the ellipse, behind\ncourt should use them\"). Requiring a\nInterior, et al.\nthus refused to include\n\"clear showing\" in this setting would move\nNo. 89-5218.\npageant. 5 U.S.C.A.\nfar toward forcing a defendant to rebut a\nprobability with a certainty.\nUnited States Court of Appeals,\n2. Administrative La\nDistrict of Columbia Circuit.\n-507\nUnited States 0-57\nArgued May 16, 1990.\nThe National Parl\nThe appellees in this case presented the\nDecided July 17, 1990.\ndistrict court with considerable evidence re-\nexplained the basis of\ngarding the United States HHUDR market.\nsculpture of homeless\nThe court credited the evidence concerning\nAction was brought challenging denial\nof Christmas pageant\nthe sophistication of HHUDR consumers\nby the National Park Service of request for\nlipse, behind the Whit\nand the insignificance of entry barriers, as\ninclusion of a sculpture of a homeless fami-\nthat it did not depict a\nwell as the argument that the statistics\nly in Christmas pageant of peace on the\nChristmas symbol.\nunderlying the government's prima facie\nellipse, behind the White House. Plain-\nseq.\ncase were misleading. This evidence amply\ntiff's motion for preliminary injunction was\n3. Federal Civil Proc.\njustified the court's conclusion that the pri-\ndenied, and Park Service's motions for pro-\nIn litigation cone\nma facie case inaccurately depicted the\ntective order and summary judgment were\nthe National Park Ser\\\nprobable anticompetitive effect of Tam-\ngranted by the United States District Court\ntrative Procedure Act\nrock's acquisition of Secoma. Because the\nfor the District of Columbia, Louis F. Ober-\ntain sculpture to be di\ngovernment did not produce sufficient evi-\ndorfer, J., and plaintiff appealed. The\npageant, submission by\ndence to overcome this successful rebuttal,\nCourt of Appeals, Sentelle, Circuit Judge,\ninappropriate litigation\nthe district court concluded that \"it is not\nheld that: (1) the Park Service did not\njustify allowing a de₁\nlikely that the acquisition will substantially\nabuse its discretion or act in an arbitrary\nfrom the regional dires\nlessen competition in the United States ei-\nand capricious fashion; (2) the Park Service\nService adequately ju\nther immediately or long-term.\" 731\nadequately explained its conclusion that the\nthe record materials.\n13. We refer the government to its own Merger\nthat the Department of Justice has ignored its\nseq., 706(2)(A).\nGuidelines, which recognize that \"[i]n a variety\nown admonition. The government does not\n4. Federal Civil Proc\nof situations, market share and market concen-\nmaximize its scarce resources when it allows\ntration data may either understate or overstate\nstatistics alone to trigger its ponderous enforce-\nDiscovery of ag.\nthe likely future competitive significance of a\nment machinery. Cf. Syufy Enters., 903 F.2d at\nprocess is allowed in\nfirm or firms in the market.\" Guidelines § 3.2,\n672 (\"It is a tribute to the state of competition in\nAmerica that the Antitrust Division of the De-\nes: where there has b.\nreprinted in 4 Trade Reg.Rep. (CCH) at 20,561.\nAlthough the Guidelines disclaim \"slavish[ ad-\npartment of Justice has found no worthier tar-\nof bad faith or improp\nhere[nce]\" to such data, id., statement, reprinted\nget than this paper tiger on which to expend\nexamination of decision\nin 4 Trade Reg.Rep. (CCH) at 20,552, we fear\nlimited taxpayer resources.\").\nonly possibility for eft\nTHE WALL STREET JOURNAL.\nOn Brown V. Board of Education,\nCall Him Thurgood Thomas\nThe NAACP board is scheduled to de-\nThere are nearly identical arguments\nthe Fourteenth Amendment, separate but\ncide today whether to join the interest\nabout what the Brown opinion should have\nequal could have been invalidated without\ngroups that oppose a black Supreme Court\nsaid in Mr. Marshall's legal briefs in the\nciting \"Kenneth Clark's controversial doll\nnominee. Benjamin Hooks has said his\ncase and Judge Thomas's recent speeches\nstudies, which could just as easily have\ngroup would have preferred another Thur-\nand law-review articles. They agreed that\nbeen used in support of segregation as\ngood Marshall. The NAACP should know\nthe court should have based its decision\nagainst It.\"\nthat when it comes to the Supreme Court's\non legal and constitutional sources. not so-\nThe court missed the forest for the\nciologists. They both referred to the Decla-\ntrees. \"The Brown focus on environment\nRule of Law\nration of Independence's self-evident truth\noverlooks the real problem with segrega-\nthat \"all men are created equal.\" which fi-\ntion, its origin in slavery. which was at\nnally applied to blacks after the Civil War\nfundamental odds with the founding princi-\nBy L. Gordon Crovitz\nthrough the Fourteenth Amendment.\nples. Had Brown done so. it would have\nMr. Marshall's brief and Judge\nbeen forced to talk about slavery. which it\nThomas's writings both cited Justice Har-\nnever mentions,\" Judge Thomas wrote. He\nmost important civil-rights case, Clarence\nThomas is another Thurgood Marshall.\nWith all the smoke cooked up by Judge\nNo Disagreement Hero\nThomas's critics. no one seems to have no-\nThorgood Marshall\nClarence Themas\nticed that he takes precisely the same\n(As the NAACP lawyer in Brown V. Board of\n(Writing in the Howard Law Journal in 1987):\nbroad view of the constitutional promise of\nEducation in 1954 arguing for a broad constitu-\nThe great flaw of Brown is that it did not rely\nequality that Mr. Marshall as the lawyer\ntional rejection or the separate-but-equal doctrine):\non Justice Hartan's dissent in Pleasy. which\narguing Brown l'. Board of Education\nWhile the majority opinion sought to\nunderstood well that the fundamental issue of\ntried-unsuccessfully-to persuade the Su-\nrationalize its holding on the basis of the state's\nguidance by the Founders' constitutional\npreme Court to adopt.\njudgment that separation of races was\nprinciples tay at the heart of the segregation\nThe 1954 case was a great victory for\nconducive to public peace and order. Justice\nissue Justice Hartan's Plessy opinion is a\nthe civil-rights movement and especially\nHarlan knew all too well that the seeds for\ngood example of thinking in the spirit of the\nfor the NAACP where Mr. Marshall\ncontinuing racial animosities had been\nFounding. His arguments can be fully\nworked. The justices finally declared that\nplanted. \"Our Constitution,\" said Justice\nappreciated only in light of the Founders'\nrate but equal facilities were unconsti-\nHartan, \"is colorblind, and neither knows nor\nintentions. Largely as a result of the dubious\nal. A filibuster in the Senate perpetu-\ntolerates classes among citizens.\" n is the\nreasoning of the post-Plessy Court. and a\nJim Crow segregation. so it was ap-\ndissenting opinion of Justice Hartan, rather\nnational indifference to the rights of all\npropriate that the court struck down these\nthan the majority opinion in Plessy K Ferguson,\nAmericans. Justice Harlen's argument that\nracist laws.\nthat is in keeping with the scope and meaning\nthe Constitution is \"colorblind\" did not rally\nof the Fourteenth Amendment.\nsupporters.\nThe problem is that Brown is a classic\nexample of a correct result reached by\nlousy reasoning. The opinion by Chief Jus-\nlan's dissent from the 1896 case that estab-\nsaid that a better understanding of the\ntice Earl Warren was based almost en-\nlished the doctrine of separate but equal,\n\"first principles of equality and liberty\"\ntirely on dubious sociological data on how\nPlessy v. Ferguson (see excerpts nearby)\nwould \"lead us above petty squabbling\nmuch better black students supposedly\nJustice Harian would instead have given\nover 'quotas,' 'affirmative action' and\nlearn when they study in the same class-\nthe Fourteenth Amendment its common-\nrace-conscious remedies of social ills.\"\nrooms as whites. A famous footnote cites\nsense reading, which is that it was in-\nOnce on the Supreme Court, Mr. Mar-\nbehavior studies in publications such as\ntended to replace slavery with equality by\nshall supported quotas, but be made some\nthe International Journal of Opinion and\nforbidding the government from treating\nof the same points about a colorblind Con-\nAttitude Research. It's now clear that this\npeople differently by race. The amend-\nstitution in his brief in Brown. \"The roots\ncase was the beginning of an era of judi-\nment promised blacks all the privileges\nof our American egalitarian ideal extend\ncial activism that substituted shadows,\nand immunities of citizenship and equal\ndeep into the history of the Western\npenumbras and judicial social engineering\nprotection of the laws.\nworld.\" the brief said. \"Philosophers of the\nfor adherence to constitutional text and\nJudge Thomas wrote that if the opinion\nseventeenth and eighteenth centuries pro-\noriginal intent.\nin Brown had adopted this broader view of\nduced an intellectual climate in which the\nJULY 31, 1991\nequality of man was a central concept.\nTheir beliefs rested upon the basic proposi-\ntion that all man are endowed with certain\nnatural rights.\"\nMr. Marshall's reference to natural\nrights is important because Judge\nThomas's critics accuse him of weirdness\nfor using similar terms. For different rea-\nsons, it's important reassurance for both\nliberals and conservatives to understand\nwhy Judge Thomas wrote about natural\nrights. The reason was his search as head\nof the Equal Employment Opportunity\nCommission for a more enduring guaran-\ntee of equality than the fleeting legal stan-\ndards in Brown.\nLiberals should know that Judge\nThomas is not on a goose chase for penum-\nbras or emanations from the Constitution\ninto which he can insert his conservative\npolicy preferences-as Justice Marshall\ntoo often did to enact his liberal views.\nConservatives should know that he invokes\nnatural rights in the service of original-in-\ntent jurisprudence. His law review article,\n\"Toward a 'Plain Reading' of the Constitu-\ntion-The Declaration of Independence in\nConstitutional Interpretation,\" stressed\nthat terms must be read according to their\noriginal meaning. Individual liberty is con-\nstitutionally protected, but group rights\nare not: discrimination must be punished,\nbut not by mandating quotas.\nThe NAACP's Mr. Hooks recently noted\nthis distinction. Judge Thomas is \"not\nwithout some good points.\" he said, adding\nthat \"if a black or a woman has been indi-\nvidually discriminated against or mis-\ntreated he'll go to the ends of the earth\nto correct it.\"\nNow it turns out there's not much dif-\nference between Justice Marshall and\nJudge Thomas on the broadest issues of\ncivil rights. It will be fascinating to see if\nthe NAACP has the courage to abandon its\nusual liberal allies who hope to do to Judge\nThomas what they did to Robert Bork.\nThe Washington Post\nJULY 19, 1991\nCharles Krauthammer\nThe greater curiosity is the charge\nof judicial activism. Coming from\nThe history of the liberal jurispru-\nTribe, this is hilarious. Tribe is one of\ndence he has spent his career justify-\nLook Who's\nthe great defenders of the idea of\ning is the history of one judicial usur-\nreading the Constitution, shall we say,\npation after another, each made over\nexpansively. When the liberal court of\nand above and against \"the power of\nDiscovered\nthe '60s and '70s-that Edison of the\nCongress and of every state and local\nlegislature.\" For liberais now to\nrights industry-minted new rights,\nyear in, year out, with Menlo Park\nchampion the power of every state\nefficiency, he applauded. When, for\nand local legislature, after having\nspent 40 years championing the right\nJudicial\nexample, Roe a Wade purported to\nfind the right to abortion in the Con-\nof the unelected judiciary to force\nstates and localities to raise taxes,\nstitution-or, to be more precise, in\nthe penumbral emanations of the Con-\nreform prisons, bus children, hire by\nrace and permit abortion is world\nRestraint\nstitution-that was good constitution-\nclass chutzpah.\nalism because it fit nicely with Tribe's\nAnd what exactly is Thomas's of-\nview that \"to conscript a woman to\nThe life of a columnist is a feast of\ncarry a fetus to term within her\nfense? Whether a judge calls what he\nis\nbelieves natural law or something\nironies, but rarely is one served a\na unique and most fundamental inva-\nmeal quite as sumptuous as the one\nsion of her constitutional liberty.\"\nelse, every justice brings a certain\nintellectual structure and understand-\njust cooked up by Laurence Tribe,\nAs Judge Richard Posner writes,\ning of rights to his interpretation of\nHarvard Law School professor and\nTribe's \"method is to use the skills of\nthe Constitution. Thomas is simply\nleading liberal constitutional scholar.\na lawyer to make political choices for\nmore ingeauous than most: He spells\nOn Monday, Tribe took to the New\nsociety in the name of a fictive consti-\nout what it is he appeals to-the\nYork Times to share with us his\ntution, as if the Supreme Court really\nclassical tradition of natural law and\nanxieties about Supreme Court nomi-\nwere a superlegislature and govern-\nthe explicit words of the Declaration\nnee Clarence Thomas.\nment by lawyers had, at last, arrived.\"\nof Independence. The nation is far\nThomas, it seems, is not a tradi-\nLiberal lawyers, that is. Now that\nsafer entrusting its future to such a\ntional conservative, meaning a judi-\nliberals have lost control of the court\njustice than to the kind that pulls new\ncially restrained one who believes\nthey are shocked-shocked!-that\nrights out of a hat and declares them\nhat a judge's job is to interpret the\njudges might go beyond the letter of\npenumbral emanations.\nN, not make it. It seems that Thom-\nthe Constitution and apply concepts\n& is a more radical kind of conserva-\nlike natural law through which they\ntive. Instead of just sticking to the\nmight legislate. Now that the tables\nConstitution and nothing but, Thomas\nare turned, liberals would like us to\nves in \"natural law\" as another\nbelieve that only constitutional liter-\nof rights beyond the Constitu-\nalism is permitted.\nAnd as a guide to understanding\nIt gets funnier. Tribe's concern is\nnatural law, Thomas invokes the Dec-\nthat Thomas \"might seek to replace\nlaration of Independence, which, for\nRoe not with a system that strength-\nexample, speaks of life, liberty and\nens states' rights,\" but one that de-\nthe pursuit of happiness as inalienable\nnies the states' right to permit a legal\nrights. Under such a theory of natural\nabortion. Tribe is terribly concerned\nrights, Tribe warns, a judge could ban\nthat \"Thomas has already dismissed\neverything from abortion counseling\ntalk of states' rights as a 'constitu-\nto anal sex to minimum wage laws.\ntional sideshow.'\nNothing less than the \"fate of self-\nIt has been a while since a champi-\ngovernment in the U.S.,\" it seems, is\non of liberal jurisprudence stood up\nthreatened by Thomas's kind of judi-\nfor the notion of states' rights, the old\ncial activism.\nsegregationist cry, but it is refresh-\nThe first oddity of this critique is\ning. And late. Where was Tribe's\nthat today, for the purposes of the\nconcern for states' rights under Roe,\nThomas nomination, a traditional con-\nwhich effectively deprived the 50\nservative seems to be a good conser-\nstates of any say in the matter of\nvative. Of course, the last time a\nabortion?\nprincipled judicial restraint conserva-\nTribe, born again defender of\ntive, Robert Bork, was nominated for\nstates' rights, warns darkly that with\nthe court, Tribe led the pack that\nthe Thomas nomination \"the power of\nsavaged him. But never mind.\nCongress and of every state and local\nlegislature [is] hanging in the bal-\nance.\" It is touching that Tribe should\nbe so concerned with judicial en-\ncroachment on legislative powers.\nOnly four years ago he was ridiculing\nthe idea of \"judicial restraint\" as a\n\"political buzzword.\"\n572\n905 FEDERAL REPORTER, 2d SERIES\nU.S. v. LONG\nas 909 F2d 1972 (D.C. Clr. 1990)\n1573\nceptional AFL-CIO's plea to be heard on\n1. Criminal Law 1081(6)\n6. Weapons is\nthe merits in this case. For failure to meet\nDistrict court's ministerial act of dock-\nAlthough defendant can use a firearm\nproceedings and thus favors joint trial of\ncodefendants.\na mandatory time limit, one our precedent\neting tardy notice of appeal was not an\nwithout actively employing it, Government.\nimpels us to apply on our own initiative, see\nimplicit grant by the district court of an\nat a minimum, must show that a particular\n12. Criminal Law >622.2(11)\nMicrowave Communications, 515 F.2d at\nextension of time to file the notice of ap-\ndefendant has actually or constructively\nInterest in efficient and expeditious\n390 n. 25, AFL-CIO's petition for review is\npeal. F.R.A.P.Rule 4(b), 28 U.S.C.A.\npossessed a firearm in order to prove that\nproceedings must never be allowed to\nhe has used it in connection with drug\neclipse the defendant's right to a fair trial,\nDismissed.\n2. Criminal Law -1181.5(3)\ntransaction. 18 U.S.C.A. § 924(c)(1).\nand a joint trial is inappropriate when the\nWhere notice of appeal was untimely,\n7. Conspiracy -41\nevidence against one defendant is far more\nKEY NUMBER SYSTEM\ncourt would remand case to district court\nDefendant involved in conspiracy can\ndamaging than the evidence against the\nother.\nfor determination of whether defendant\nbe punished as a principal of the offense of\nshould be granted 30-day extension of peri-\nuse of a firearm in connection with a drug\n13. Criminal Law -1166(6)\nod for filing notice of appeal. F.R.A.P.\noffense, regardless of whether he has pos-\nIn view of abundant evidence implicat-\nRule 4(b), 28 U.S.C.A.\nsessed firearm, based on the rule of vica-\ning defendant, such as the fact that he was\nrious liability for coconspirators. 18 U.S.\nsurrounded by narcotics and related para-\nUNITED STATES of America\n3. Criminal Law -1144.13(3), 1159.2(1, 7)\nC.A. § 924(c)(1).\nphernalia when he was arrested, he was\nOverturning a jury's determination of\n8. Weapons 1\nv.\nnot prejudiced by joint trial on theory that\nguilt on the ground of insufficient evidence\nWhere Government proves that defen-\nevidence against codefendant was much\nKeith D. LONG, Appellant.\nis not a task which court will undertake\ndant has aided or abetted another person's\ngreater.\nlightly; appellate court owes tremendous\nUNITED STATES of America\nuse of firearm in connection with drug\ndeference to jury verdict, and must consid-\noffense, defendant may be punished as a\nv.\ner the evidence in the light most favorable\nprincipal regardless of whether the defen-\nAppeal from the United States District\nSonia E. MAYFIELD. Appellant.\nto the Government and affirm the judg.\ndant has himself actually or constructively\nCourt for the District of Columbia (Crimi-\nment if any rational trier of fact could have\npossessed the firearm. 18 U.S.C.A. §§ 2,\nnal Nos. 88-00444-02 and 88-00444-01).\nNos. 89-3096, 89-3105.\nfound the essential elements of the crime\n924(c)(1).\nNicholas G. Karambelas with whom Ste-\nUnited States Court of Appeals,\nbeyond a reasonable doubt.\n9. Criminal Law =419(2.10)\nven R. Kiersh was on the brief, for appel-\nDistrict of Columbia Circuit.\nlunt in 89-3096.\n4. Weapons 17(4)\nEvidence that person who called upart.\nArgued April 16, 1990.\nDefendant's conviction for using a\nment while officers were conducting search\nRonny E. Jones, for appellant in 89-3105.\nweapon in connection with drug offense\nand making arrests asked whether a partic-\nDecided June 22, 1990.\nEric M. Acker, Asst. U.S. Atty., with\nular person \"still had any stuff\" and stated\nwas not supported by evidence that defen-\nwhom Jay B. Stephens, U.S. Atty., John R.\nthat she was looking for \"a fifty\" was not\ndant was arrested in room in which drugs\nFixher, Helen M. Bollwerk, Elizabeth Tros-\nevidence of an assertion, 80 that evidence\nDefendants were convicted in the Unit-\nwere found and in which a revolver was\nman, and Geoffrey Bestor, Asst. U.S. At-\ned States District Court for the District of\nfound some 10 to 15 feet away from him, in\nof that telephone call was not hoursay.\nlyn., were on the brief, for appellee.\nFed.Rules Evid.Rule 801(c), 28 U.S.C.A.\nColumbia, Stanley S. Harris, J., of drug\nthe absence of evidence that defendant\noffenses and they appealed. The Court of\nowned the gun or knew of its existence or\n10. Criminal Law\n1169.1(9)\nBefore SILBERMAN, SENTELLE, and\nthat he leased or lived at the premises. 18\nOfficer's testimony regarding tele-\nTHOMAS, Circuit Judges.\nAppeals, Clarence Thomas, Circuit Judge,\nheld that: (1) ministerial act of docketing\nU.S.C.A. § 924(c)(1).\nphone call which was received at apartment\nwhile officers were searching it and muk-\nOpinion for the court filed by Circuit\ndefendant's tardy notice of appeal was not\nJudge THOMAS.\nan implicit grant of extension of time by\n5. Weapons 17(4)\ning arrests was not unfairly prejudicial on\nthe district court for taking the appeal; (2)\nDefendant's conviction for use of a\ntheory that it was unreliable because the\nConcurring opinion filed by Circuit\nevidence was insufficient to sustain convic-\ngun in connection with a drug transaction\nofficer testified from memory and because\nJudge SENTELLE.\ntion for use of a weapon in connection with\ncould not be supported on evidence which\nthe declarant was unavailable for crome-ex-\na drug offense; and (3) testimony concern-\nconnected defendant to the drugs and\namination. Fed.Rules Evid.Rule 40%, 28\nCLARENCE THOMAS, Circuit Judge:\nshowed that the distribution of the drugs\nU.S.C.A.\ning telephone call received by officers at\nSonia Mayfield and Keith Long appeal\napartment while arrests were being made\nwas facilitated by the gun, on theory that\n11. Criminal Law\n622\ntheir convictions for possessing in excess\nwas not hearsay.\ndefendant derived benefit from the gun\nJudicial system has strong and legit-\nof five grams of cocaine base with intent to\nand thus \"used\" it. 18 U.S.C.A.\ndistribute,\n21\nAffirmed in part, reversed in part, and\nimate interest in efficient and expeditious\n241(b)(1)(B)(ii),' and using or carrying 841(a), a\nU.S.C.\n§§\nremanded.\n§ 924(c)(1).\nSee publication Words and Phrases\n1. Both Mayfield and Long were charged with\nSentelle, Circuit Judge, filed a concur-\nfor other judicial constructions and\npossessing in excess of fifty grams of URSINE\n, 841(b)(1)(A)(iii). The jury, however, convict.\nbase with intent to distribute, 21 U.S.C.\ned them of the lesser included offense of pos-\nring opinion.\ndefinitions.\n/4\n905 FEDERAL REPORTER, 2d SERIES\nU.S. V. LONG\nfirearm during and in relation to a drug\nCite as 905 F.2d 1572 (D.C. Ctr. 1990)\n1575\nAs Mayfield correctly notes, however,\ntrafficking crime, 18 U.S.C. § 924(c)(1). In\nserve vital interests of efficiency and finali-\nrule 4(b) does not absolutely bar criminal\nty in the administration of justice, and are\nby sufficient evidence, requires some elabo-\naddition, Mayfield appeals her conviction\nappeals in which the required notice is filed\nnot designed merely to ensnare hapless liti-\nration of the pertinent facts. On the eve-\nfor knowingly opening or maintaining a\nmore than ten days after entry of the judg-\ngants. As this court has noted when con-\nning of November 16, 1988, pursuant to a\nplace for the purpose of distributing or\nment. The rule allows the district court,\nsidering a civil appeal time-barred by rule\nvalid search warrant, several officers of\nusing a controlled substance, 21 U.S.C.\nwith or without motion and notice, to ex-\n4(a): \"The Federal Rules of Appellate Pro-\nthe D.C. Metropolitan Police Department\n§ 856(a)(1). Mayfield's appeal is not prop-\ntend the period for filing a notice of appeal\ncedure impose strict requirements for the\nforced their way into a one-room basement\nerly before this court. Thus, we do not\nfor an additional thirty days \"[u]pon a\ntimely\nfiling\nof\nappeals\n[W]e\ndecline\napartment where Mayfield lived. They\nconsider the merits of her arguments, and\nshowing of excusable neglect.\"\nto ... subvert the plain words and meaning\nfound Long emerging from behind a cur-\nremand her case to the district court.\nMayfield concedes that the district court\nof the federal rules. This court has never\ntain that separated the back of the room\nLong raises three challenges to his convic-\ndid not explicitly grant her a thirty-day\nhad the authority to revamp these rules.\"\nfrom the front. Tr. I at 23-24, 25, 68; Tr.\ntions. First, he asserts that there is insuf-\nextension to file her notice of appeal. She\nPolylok Corp. v. Manning, 793 F.2d 1318,\nII at 8. The police arrested Long and three\nficient evidence to support his conviction\nurges us, however, to hold that the district\n1322 (D.C.Cir.1986).\nother individuals, including Mayfield,\" and\nfor using or carrying a firearm in relation\ncourt implicitly granted the extension by\n[2] We therefore remand this case to\nbegan a search for evidence of drug-related\nto a drug trafficking crime. Second, he\n\"accepting\" her untimely notice of appeal.\nthe district court for a determination of\nactivity.\ncontends that the trial judge erred in ad-\nShe notes that the Eighth Circuit has, on\nwhether Mayfield should be granted the\nmitting into evidence the substance of an\noccasion, followed this approach. See\nthirty-day extension permitted by rule 4(b).\nThe search was hardly arduous; the one-\nincriminating telephone conversation. Fi-\nUnited States v. Williams, 508 F.2d 410,\nMayfield will thus have an opportunity to\nroom apartment brimmed with evidence.\nnally, he asserts that the trial judge abused\n410 (8th Cir.1974) (per curiam) (\"We con-\npresent to the district court whatever evi-\nIn the front part of the apartment, the\nhis discretion by declining to sever Long's\nstrue the district court's acceptance of the\ndence of excusable neglect she can muster.\npolice found rock cocaine, a razor blade,\ntrial from Mayfield's. We are persuaded\nnotice of appeal as a grant of additional\nThis resolution places us squarely in line\nand a butane torch lying on a table. They\nby Long's first argument and reverse his\ntime to file pursuant to Fed.R.App.P. 4(b)\nwith the majority of appellate courts that\nfound more rock cocaine and a scale on a\neven though no formal order is entered to\nfirearms conviction. Finding no merit in\nhave considered this issue. See, e.g., Unit-\ntable behind the curtain. The search also\nthat effect.\"); United States v. Mills, 430\nhis second and third contentions, however,\ned States v. Golding, 739 F.2d 183, 184 (5th\nyielded a large amount of cash, cocaine in\nF.2d 526, 528 (8th Cir.1970) (same), cert.\nwe affirm his narcotics conviction.\nCir.1984) (per curiam); United States v.\ndenied, 400 U.S. 1023, 91 S.Ct. 589, 27\npowder form, several pipes, a number of\nLucas, 597 F.2d 243, 245-46 (10th Cir.1979)\nL.Ed.2d 636 (1971).\nbutane torches, packaging materials, and a\n(per curiam); United States v. Stolarz, 547\nI.\nF.2d 108, 111-12 (9th Cir.1976), cert. de-\nsignificant supply of dextrose, a cutting\n[1] We decline Mayfield's invitation to\nequate the ministerial act of docketing a\nnied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d\nagent. Finally, the police found a function-\nThe Federal Rules of Appellate Proce-\n119 (1977).4 Even the Eighth Circuit has\nal but unloaded .22 caliber revolver be-\ndure require that parties wishing to appeal\ntardy notice of appeal with an implicit\ngrant of an extension of time by the dis-\ncut back significantly on its earlier, permis-\ntween the cushions of a sofa in the front\nin criminal cases file a notice \"in the dis-\ntrict court. Docketing a notice of appeal is\nsive attitude toward rule 4(b). See United\npart of the room. Although the barrel of\ntrict court within 10 days after the entry of\na clerical task, and does not require the\nStates v. Anna, 843 F.2d 1146, 1147 (8th\nthe gun was hidden, the handle protruded\nthe judgment or order appealed from.\"\napprobation of the trial judge. It thus\nCir.1988) (terming the Circuit's earlier prac-\nfrom the cushions. The police found no\nFed.R.App.P. 4(b). The district court dock-\npresents no occasion for a party to make a\ntice \"discretionary\" and declining to follow\nother firearms or any ammunition in the\neted the judgment against Mayfield on\nshowing of excusable neglect, which is a\nit, instead remanding case to district court\napartment.\nJune 5, 1989; she filed notice of this appeal\nprerequisite for obtaining the thirty-day ex-\nfor decision on excusable neglect).\non June 16, 1989, eleven days later. Citing\nIn addition to his narcotics conviction,\ntension contemplated by rule 4(b). Adopt-\nrule 4(b), and stressing that it is \"mandato-\nII.\nLong was convicted of violating 18 U.S.C.\ning the fiction that the district court implie-\nry and jurisdictional,\" United States v.\nitly granted the extension of time would\nConsideration of Long's first claim, that\n§ 924(c)(1). This statute, in pertinent part,\nRobinson, 361 U.S. 220, 226, 80 S.Ct. 282,\nundoubtedly expedite the final adjudication\nhis firearms conviction was not supported\nprovides that \"[w]hoever, during and in\n287, 4 L.Ed.2d 259 (1960), the government\nof Mayfield's case. But the unambiguous\nrelation to any drug trafficking crime\nurges us to dismiss Mayfield's appeal out-\nlanguage of the rule forecloses this short-\n3. But cf. United States v. Hoye, 548 F.2d 1271,\nright.\ncut.2 The time limits specified in the rules\n1273 (6th Cir.1977) (per curiam) (\"[W]here a\nglect, the court concluded that \"based on the\ndocument is filed within the 40-day period\nfacts present here the district court would find\nsessing in excess of five grams with intent to\nwhich represents a clear assertion of an intent\nexcusable neglect,\" and proceeded to consider\nv. Gibson, 568 F.2d 111, 112 (8th Cir.1978) (per\ndistribute.\nto appeal, courts of appeals have the power to\nthe merits of the case. See United States v.\ncuriam) (concluding that trial judge implicitly\nfound excusable neglect when he granted mo-\noverlook irregularities where fairness and jus-\nReyes, 759 F.2d 351, 354 (4th Cir.), cert. denied,\n2. There may be cases in which an implicit find-\ntice so require.\"). Having no idea of the source\n474 U.S. 857, 106 S.Ct. 164, 88 L.Ed.2d 136\ning of excusable neglect would be less of a\ntion for leave to appeal in forma pauperis dur-\nof this alleged \"power to overlook\" the clear\n(1985). Because Mayfield has proffered no ex-\nfiction than here. When a trial judge takes\ning thirty-day discretionary period). Because\nsome explicit action with respect to a tardy\nMayfield has not specified any action taken by\nlanguage proach. of rule 4(b), we reject the Hoye ap-\ncuse for her delay, the Reyes approach, even\nassuming that it can be squared with the lan-\nappeal, the judge at a minimum is aware of the\nthe district judge in her case that might consti-\nappeal; under these circumstances, his action\ntute an implicit extension of time, we need not\n4. The Fourth Circuit, in one case, took a novel\nguage of rule 4(b), is not available to us here.\ncould arguably be construed as an implicit find.\nconsider the merits of the Gibson approach.\napproach to this question. After noting the op-\ning of excusable neglect. See, e.g., United States\ntion of remanding an untimely appeal to the\n5. The other two individuals, indicted with Long\ndistrict court for a decision on excusable ne-\nand Mayfield, pleaded guilty to possession of a\ncontrolled substance, 21 U.S.C. § 844(a).\n905 FEDERAL REPORTER, 2d SERIES\nU.S. v. LONG\n1577\nCite - 905 F.2d 1572 (D.C. Clr. 1990)\nuses or carries a firearm, shall, in\nThere is no evidence suggesting that Long\nprove that he has \"used\" it.\" Cf. United\naddition to the punishment provided for\nviction of a defendant in the absence of any\nwas headed for the gun, or that he even\nStates v. Joseph, 892 F.2d 118, 126 (D.C.\nsuch crime be sentenced to imprison-\nindicia of possession would stretch the\nknew of its existence. The gun itself was\nCir.1989) (violation of section 924(c)(1) pos-\nment for five years.\" Id. (emphasis add-\nunregistered, and yielded no fingerprints.\nsible \"[w]hen a person 'has a present abili-\nmeaning of \"use\" beyond the breaking\ned). Long argues that the evidence ad-\nNor did Long own, lease, or live at the\nty to exercise dominion and control over'\npoint. We readily acknowledge that the\nduced at trial was insufficient to support a\na firearm\") (emphasis added) (quoting\nword \"use\" is expansive, but the difficulty\njury finding that he \"use[d] or carrie[d]\" a\npremises on which the gun was found.¹\nUnited States v. Evans, 888 F.2d 891, 895\nof pinpointing the outer limits of its mean-\nfirearm within the meaning of section\nThere was no evidence, in short, that the\n924(c)(1). We agree.\nfirearm was ever either actually or con-\n(D.C.Cir.1989), cert. denied, - U.S.\ning does not imply that no such limits exist.\nstructively in Long's possession. Although\n110 S.Ct. 1325, 108 L.Ed.2d 500 (1990));\nTo affirm Long's conviction for \"using\" the\n(3) Overturning a jury's determination\nUnited States v. Henry, 878 F.2d 937, 944\nrevolver in the sofa would be to concede\nthe gun was partially visible between the\nof guilt on the ground of insufficient evi-\n(6th Cir.1989) (violation of section 924(c)(1)\nthat the word \"use\" has no discernible\ndence is not a task that we undertake light-\nsofa cushions, its visibility, without more,\npossible \"if it reasonably appears that the\nboundaries. That prospect is particularly\nly. As an appellate court, we owe tremen-\ndoes not establish that any particular per-\nfirearms found on the premises controlled\ntroubling where, as here, we are constru-\ning a criminal statute.\ndous deference to a jury verdict; we must\nson either actually or constructively pos-\nor owned by a defendant and in his actual\nconsider the pri lence in the light most fa-\nsessed the gun.\nor constructive possession are to be used\nThe government has cited numerous\nvorable to the government, see Glasser \".\nto protect the drugs or otherwise facilitate\ncases in which this court and its sister\nUnited States, 315 U.S. 60, 80, 62 S.Ct.\n[5] The government argues that Long\na drug transaction\") (emphasis added);\ncircuits have upheld the firearms convic-\n457, 469, 86 L.Ed. 680 (1942), and affirm\n\"used\" the gun because he committed a\nUnited States v. Meggett, 875 F.2d 24, 29\ntions of defendants found to have \"used\"\nthe judgment if \"any rational trier of fact\ndrug offense facilitated by the gun. The\n(2d Cir.) (\"Possession of a gun, even if it is\nguns in a vast array of circumstances.\ncould have found the essential elements of\nlogic, in essence, is this: Long was connect-\nconcealed, constitutes 'use' if such posses-\nThese cases are inapposite. Our problem\nthe crime beyond a reasonable doubt,\"\ned to the drugs; the distribution of the\nsion is an integral part of the predicate\nhere is not with the notion that there are\nJackson v. Virginia, 443 U.S. 307, 319, 99\ndrugs was facilitated by the gun; since\noffense and facilitates the commission of\nS.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).\nLong thus derived benefit from the gun, he\nthat offense.\") (emphasis added), cert. de-\nmany ways in which a defendant can \"use\"\nWe do not, however, fulfill our duty\n\"used\" it. We reject the notion that a\nnied, - U.S. 110 S.Ct. 166, 107\na firearm in relation to a drug trafficking\nthrough rote incantation of these principles\nloose, transitive relationship of this type is\nL.Ed.2d 123 (1989); United States v. Ma-\ncrime, but rather with the notion that in\nsufficient to show that a person \"used\" a\ntra, 841 F.2d 837, 840-41 (8th Cir.1988)\norder to prove such \"use,\" the government\nfollowed by summary affirmance. We\ngun. This approach would obliterate any\n(\"[N]one of the guns was in the actual\nneed not show any nexus at all between a\nmust ensure that the evidence adduced at\npossession of the defendant, but all were\nparticular drug offender and the firearm\ntrial is sufficient to support a verdict as a\nremaining limits on the meaning of the\nmatter of law. A jury is entitled to draw a\nunder his control.\") (emphasis added);\nthat he allegedly \"used.\" As noted above,\nword \"use\" in section 924(c)(1).\nvast range of reasonable inferences from\nUnited States v. Stewart, 779 F.2d 538,\nthe record in this case is devoid of any\n[6-8] The word has been losing its con-\n540 (9th Cir.1985) (violation of section\nevidence linking Long to the revolver found\nevidence, but may not base a verdict on\nmere speculation.\nventional, active connotation for some time,\n924(c)(1) possible \"[if the firearm is with-\nin the sofa, other than his presence in the\nas courts have held that narcotics offend-\nin the possession or control of a person\napartment and involvement with the nar-\n[4] Having carefully reviewed the\nwho commits an underlying crime as de-\ncotics. In all the cases cited by the govern-\nrecord in this case, we conclude that the\ners can \"uno\" guns simply by possessing\nfined by the statute\") (emphasis added);\nment, some nexum was established through\ngovernment failed to provide any evidence\nthem in the vicinity of drugs. Although a\nUnited States v. LaGuardia, 774 F.2d 317,\nan explicit or implicit showing of actual or\nto support a reasonable inference that\ndefendant can \"use\" a firearm without ac-\n321 (8th Cir.1985) (\"Section 924(c)(1) reach-\nconstructive possession.\nLong \"used\" the revolver. When arrest-\ntively employing it, the government, at a\nes the possession of a firearm which in any\ned, Long was ten to fifteen feet away from\nminimum, must show that a particular de-\nIn United States v. Anderson, 881 F.2d\nmanner facilitates the execution of a felo-\nthe revolver, and was emerging from be-\nfendant has actually or constructively pos-\n1128 (D.C.Cir.1989), for example, we upheld\nny.\") (emphasis added). Upholding the con-\nhind the curtain that divided the room.\nsessed a particular firearm in order to\nthe firearms conviction of appellant Green-\n8. This analysis assumes a situation in which the\n6. There is no evidence that Long ever actually\ngovernment prosecutes a defendant for violat-\nU.S. 110 S.Ct. 117, 107 L.Ed.2d 79 (1989):\n7. Mayfield testified at trial that Long visited her\nor constructively \"carried\" the revolver, and\napartment two to three times per week. Tr. II\ning the statute as a principal. A defendant who\nsee also Pinkerton v. United States, 328 U.S. 640,\nhence we are not called upon to construe that\nhas not actually or constructively possessed a\n646-48, 66 S.Ct. 1180, 1183-85, 90 L.Ed. 1489\nat 92. Long did not live there, however. Even\nword. Instead, we focus exclusively on the stat-\nassuming that he visited the apartment to carry\nfirearm, of course, might nevertheless be pun-\n(1946) (coconspirator liable for all foreseeable\nutory term \"use,\" which we believe is properly\nished as a principal if the government can prove\nsubstantive offenses committed in furtherance\nout drug transactions, there was no evidence\nsusceptible of a broader interpretation than\nthat he exercised the degree of dominion and\nthat he has conspired in or aided or abetted a\nof the conspiracy).\n\"carry.\" Cf. United States v. Feliz-Cordero, 859\ncontrol over the premises that would support an\nsection 924(c)(1) offense.\nSimilarly, where the government proves that\nF.2d 250, 253-54 (2d Cir.1988) (legislative histo-\nry of section 924(c)(1) does not suggest that\ninference of constructive possession over their\nThus, a defendant involved in a conspiracy,\na defendant has aided or abetted another per-\n\"carry\" should be construed as having any\ncontents. This court has emphasized that con-\nregardless of whether he has possessed a fire-\nson's \"use\" of a firearm, the defendant may be\nmeaning beyond its literal meaning. and\nstructive possession \"should not be lightly im-\narm, can be punished as a principal based on\npunished as a principal regardless of whether\n\"[therefore, a person cannot be said to 'carry' a\nputed to one found In another's apartment or\nthe rule of vicarious liability for coconspirators.\nthe defendant himself has actually or construc.\nfirearm without at least a showing that the gun\nhome.\" United States v. Holland, 445 F.2d 701,\nSee United States v. Rosado, 866 F.2d 967, 968 n.\nlively possessed the firearm. 18 U.S.C. 5 2.\nis within reach during the commission of the\n703 (D.C.Cir.1971).\n1. 970 (7th Cir.) (defendant liable under section\nIn this case, the government has not proved a\ndrug offense\").\n924(c)(1) where coconspirator used firearm dur-\nconspiracy or aiding or abetting. Long's poten-\ning drug trafficking offense), cert. denied, -\ntial liability for using the gun is based entirely\non his own actions.\n78\n905 FEDERAL REPORTER, 2d SERIES\nU.S. V. LONG\n1579\nCite M 905 F.2d 1572 (D.C. Clr. 1990)\nwood, who was arrested inside the closet of\nhad kept them overnight in an apartment,\ntion that an individual can be convicted for\ncome around to pick up the \"fifty.\" Again,\na room adjoining a second room where\n\"within reach and available to protect him\n\"using\" a gun that he neither actually nor\nthe officer answered yes. Tr. I at 80-81.\nguns were found. Our holding, however,\nduring his ongoing crime of possession\nconstructively possessed. Evidence of pos-\nwas premised on our conclusion that \"there\nwith intent to distribute cocaine.\" Id. at\nsession, or evidence from which possession\nBefore trial, Long's counsel moved in\nwas substantial evidence connecting Green-\ncan reasonably be inferred, is a prerequi-\nlimine to exclude evidence of this telephone\n895 (emphasis added). This evidence al-\nwood to the bedroom in which the guns\nsite to a conviction for \"use\" under section\nconversation as inadmissible hearsay. The\nlowed the jury to infer constructive posses-\nwere found.\" Id. at 1141. Of paramount\nsion: \"An object is 'accessible' or 'within\n924(c)(1).\ntrial judge denied the motion. See Tran-\nimportance, the government had introduced\nscript of Suppression Hearing (Tr. Supp.\nreach,' as commonly understood, if a party\nWe decline to decide the case so narrow-\nevidence that Greenwood lived in the apart-\nHrg.) at 11. At trial, the police officer who\nis not just near it, but has a present ability\nly, however, as to reveal no principle appli-\nment; this evidence justified an inference\nhad taken the call testified about the con-\nto exercise dominion and control over it\ncable beyond these facts. The concurrence\nthat Greenwood constructively possessed\nversation. Tr. I at 80-81. In this appeal,\n[T]here was sufficient evidence from which\nargues that we should hold only that \"[o]n\nthe apartment's contents. In addition,\nLong renews his hearsay challenge to the\nthe jury could conclude that [the appellant]\nthe present facts, the government did not\nthere was testimony that Greenwood had\nintroduction of the officer's testimony.\nhad something approaching actual роввея.\noffer evidence of possession or any other\nthe keys to the particular bedroom in which\nsion of the gun during the commission of\nevidence that Long had used the firearm.\"\nAlthough Long concedes that the caller\nthe guns were found, and that the police\nthe predicate drug offense.\" Id. at 895.\nConc. op. at 1582 (emphasis modified).\ndid not expressly assert that he was in-\nfound Greenwood's wallet and photographs\nThis analysis, however, begs the central\nvolved in drug distribution, he argues that\nin that bedroom. See id. at 1141.\nOther courts have upheld section\n924(c)(1) convictions where the nexus was\nquestion in the case: was there sufficient\nher questions contain implicit assertions\nAnderson, thus, stands for the unexcep-\ntional proposition that a jury can reason-\nestablished in a variety of ways. See, e.g.,\nevidence to show that Long \"used\" the\nabout his involvement. Long contends that\ngun? The government obviously thought\nit is irrelevant that these alleged assertions\nably infer that a person who exercises do-\nUnited States v. Munoz-Fabela, 896 F.2d\nthere was. It argued strenuously in this\nwere couched in question form, since the\nminion and control over given premises\n908, 911 (5th Cir.1990) (firearm, registered\nin another person's name, was on floor-\nappeal that Long's connection to the drugs\nquestions plainly revealed assumptions that\nconstructively possesses contraband found\nboard of defendant's car, within view and\nand his presence in the room with the gun\nare the functional equivalent of direct as-\non those premises. See also United States\nreach of defendant); United States v.\namounted to \"use\" of the gun. Deciding\nsertions. Long maintains that the caller,\nv. Alvarado, 882 F.2d 645, 654 (2d Cir.1989)\n(affirming section 924(c)(1) conviction\nGrant, 545 F.2d 1309, 1311-12 (2d Cir.1976)\nwhether there was sufficient evidence to\nthrough her questions, in effect asserted\nwhere guns were found in defendant's resi-\nsupport Long's conviction for \"using\" a\nthat \"Keith has crack and sells it out of\n(firearms were found in rooms of social\nMayfield's apartment.\" He argues that\ndence), cert. denied, - U.S. 110\nclub; defendant lived there, managed the\ngun necessarily entails some decision about\nS.Ct. 1114, 107 L.Ed.2d 1021 (1990); Unit-\nclub, and had keys to the rooms), cert.\nwhat it means to \"use\" a gun. Despite the\nthe government introduced this testimony\ned States v. Robinson, 857 F.2d 1006, 1010\ndenied, 429 U.S. 1103, 97 S.Ct. 1130, 51\nconcurrence's qualms about setting a mini-\nto prove the truth of precisely these asser-\n(5th Cir.1988) (same); United States v. Ma-\nL.Ed.2d 554 (1977). A common theme\nmum threshold for finding \"use\" within the\ntions, and that the testimony, thus, should\ntra, 841 F.2d 837, 840-41 (8th Cir.1988)\nunites these cases and distinguishes them\nmeaning of section 924(c)(1), this case\nhave been excluded as hearsay.\n(same).\nfrom the present one. In each case, the\nforces us to set such a threshold, either\nHearsay is an out-of-court statement of-\nSimilarly, we have held that evidence re-\ndefendant's actual or constructive posses-\nexplicitly (as we have done) or implicitly.\nfered to prove the truth of the matter\nsion of a firearm was indicated by one or\nasserted in the statement. Fed.R.Evid.\ngarding a past connection between a defen-\nIII.\ndant and a firearm establishes a sufficient\nmore of several factors: close physical\n801(c). As a threshold matter, then, Long\nproximity to the firearm, possessory inter-\nHaving reversed Keith Long's conviction\nmust show that the evidence he seeks to\nnexus to support a conviction under section\nest in the firearm, or dominion and control\non the firearms charge, we now consider\n924(c)(1). In United States v. Evans, 888\nexclude as hearsay is a \"statement,\" which\nover the premises on which the firearm\nhis two remaining challenges, which per-\nthe rule defines as \"an oral or written\nF.2d 891 (D.C.Cir.1989), cert. denied, -\nU.S. 110 S.Ct. 1325, 108 L.Ed.2d 500\nwas located.\ntain to the narcotics charge.\nassertion.\" Fed.R.Evid. 801(a)(1). Al-\n(1990), we upheld the firearms conviction of\n[9] During the search of Mayfield's\nthough the rule does not define \"asser-\nLest this opinion foster confusion in an\na drug trafficker arrested across town\nalready unsettled area, we emphasize its\napartment, the telephone rang, and a police\ntion,\" the accompanying advisory commit-\nfrom the apartment where the relevant\nnarrowness: we reverse Long's conviction\nofficer answered it. An unidentified fe-\ntee note stresses that \"nothing is an asser-\nguns were found.' In that case, however,\nbecause the government failed to adduce\nmale voice asked to speak with \"Keith.\"\ntion unless intended to be one.\" Fed.R.\nthe government introduced testimony that\nany evidence suggesting that Long actual-\nThe officer replied that Keith was busy.\nEvid. 801 advisory committee note (empha-\nthe defendant had brought the guns and\nly or constructively possessed the revolv-\nThe caller then asked if Keith \"still had\nsis added).\ndrugs to Washington from New York and\ner.¹⁰ We simply cannot accept the proposi-\nany stuff.\" The officer asked the caller\nThe caller's words, thus, cannot be char-\nwhat she meant, and the caller responded\n9. Although Evans construed the \"carry\" compo-\nacterized as an \"assertion,\" even an implied\nthe firearm (2) during and in relation to a drug\nnent of the \"usel ] or carr(y)\" requirement, its\n\"a fifty.\" = The officer said \"yeah.\" The\ntrafficking crime. A person can possess a gun\none, unless the caller intended to make\nanalysis applies equally to the term \"use.\"\nwithout either \"using\" It or using it \"during and\ncaller then asked whether \"Mike\" could\nsuch an assertion.\" While Long's criticism\n10. We do not mean to imply that possession of a\nin relation 10\" a given crime. See, E.g., United\nStates v. Feliz-Cordero, 859 F.2d 250, 254 (2d\nnot used during or in relation to drug traffick.\nfirearm by a drug trafficker is invariably suffi-\ning offense).\n12. The advisory committee note's discussion of\ncient for a conviction under section 924(c)(1).\nCir.1988) (firearm found in dresser drawer was\nthe intent requirement focuses on situations in\nThe statute requires that the defendant (1) use\nnot accessible to drug traffickers and thus was\n11. A \"fifty\" refers to a bag of crack worth fifty\nwhich an Implied assertion arises from conduct,\ndollars. See Tr. I at 90; Tr. II at 50, 56.\nas opposed to words. The note appears to as-\n80\n905 FEDERAL REPORTER, 2d SERIES\nU.S. v. LONG\nCite as 905 F.2d 1572 (D.C. Ctr. 1990)\n1581\nof a rigid dichotomy between express and\ndence to suggest that the caller, through\n[11, The judicial system has a\nimplied assertions is not without merit, it\nher questions, intended to assert that he\nstrong and legitimate interest in efficient\nno dearth of evidence against Mayfield.\nmisses the point that the crucial distinction\nwas involved in drug dealing. The caller\nand expeditious proceedings. and hence the\nShe lived in the apartment where the drugs\nunder rule 801 is between intentional and\nmay indeed have conveyed messages about\nsystem favors the joint trial of codefend-\nwere found, which at a minimum suggests\nunintentional messages, regardless of\nLong through her questions, but any such\nants. See United States 1. Manner, 887\nsome connection to the drugs and the fire-\nwhether they are express or implied. It is\nF.2d 317, 324 (D.C.Cir.1989). cert. denied,\narm discovered there. There was, how.\nmessages were merely incidental and not\ndifficult to imagine any question, or for\nintentional. See United States v. Zenni,\n- U.S. 110 S.Ct. 879. 107 L.Ed.2d\never, abundant evidence implicating Long\nthat matter any act, that does not in some\n492 F.Supp. 464, 469 (E.D.Ky.1980) (phone\n962 (1990); United States 1. Hines, 455\nas well: when arrested, he was surrounded\nway convey an implicit message. One of\ncalls from bettors, answered by police dur-\nF.2d 1317, 1334 (D.C.Cir.1971), cert. de-\nby narcotics and related paraphernalia.\nthe principal goals of the hearsay rule is to\ning raid of illegal gambling establishment,\nnied, 406 U.S. 975, 92 S.Ct. 2427, 32\nThis case involves nowhere near the \"gross\nexclude declarations when their veracity\nL.Ed.2d 675 (1972). Of course. this interest\ndisparity\" of evidence required before we\nwere not assertions and therefore were\ncannot be tested through cross-examina-\nmust never be allowed to eclipse a defen-\nwill hold that a district court has abused its\noutside scope of hearsay rule). Long thus\nfails to satisfy the intent component of run\ndant's right to a fair trial. ^ joint trial is\ndiscretion in denying a motion to sever.\ntion. When a declarant does not intend to\nHaldeman, 559 F.2d at 72.\ncommunicate anything, however, his sincer-\n801, which \"place[s] the burden upon the\ninappropriate \"when the evidence against\nity is not in question and the need for\nparty claiming that the intention existed.\"\none defendant is 'far more damaging' than\ncross-examination is sharply diminished.\nFed.R.Evid. 801 advisory committee note;\nthe evidence against the moving party.\"\nFor the foregoing reasons, we remand\nThus, an unintentional message is pre-\naccord United States v. Hensel, 699 F.2d\nUnited States v. Bruner, 657 F.2d 1278,\nSonia Mayfield's case to the district court\nsumptively more reliable. See United\n18, 31 (1st Cir.), cert. denied, 461 U.S. 958,\n1290 (D.C.Cir.1981) (quoting United States\nto determine whether her tardiness in filing\nStates v. Groce, 682 F.2d 1359, 1364 (11th\n103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983). Be-\nv. Mardian, 546 F.2d 973, 977 (D.C.Cir.\na notice of appeal resulted from excusable\nCir.1982); 4 J. Weinstein & M. Berger,\ncause the caller's questions were nonasser-\n1976) (en banc)); see also United States v.\nneglect and, if so, whether to accept her\nWeinstein's Evidence 1801(a)[01] (1988).\ntive, they fall outside the scope of the\nSlade, 627 F.2d 293, 309-10 (1).C.Cir.), cert.\nnotice of appeal, which was filed within the\nEvidence of unintended implicit assertions\nhearsay rule, and the trial judge did not err\ndenied, 449 U.S. 1034, 101 S.Ct. 608, 66\nthirty-day discretionary period. We re-\nis \"[a]dmittedly ... untested with respect\nin admitting the testimony concerning the\nL.Ed.2d 495 (1980). In such rituations, the\nverse Keith Long's conviction for using or\nto the perception, memory, and narration\nquestions.\"\njury may not be able to compartmentalize\ncarrying a firearm during and in relation to\n(or their equivalents) of the actor,\" but\nthe evidence introduced against each defen-\na drug trafficking crime, 18 U.S.C.\n\"these dangers are minimal in the absence\nIV.\ndant, and the spillover may jeopardize one\n§ 924(c)(1), but affirm his conviction for\nof an intent to assert and do not justify the\ndefendant's right to a fair trial. See Unit-\npossessing in excess of five grams of co-\nLong and Mayfield were tried jointly.\nloss of the evidence on hearsay grounds.\"\ned States v. Sampol, 636 F.2d 621, 647\ncaine base with intent to distribute, 21\nAsserting that the evidence against May-\nFed.R.Evid. 801 advisory committee note.\n(D.C.Cir.1980) (per curiam); Mardian, 546\nU.S.C. §§ 841(a), 841(b)(1)(B)(iii).\nfield was far more damning than that\nF.2d at 979.\nIt is so ordered.\n[10] With our inquiry focused on the\nagainst him, Long argues that the district\nintent of the caller, we have little trouble\ncourt abused its discretion in denying his\n[13] Striking the balance between the\ndisposing of Long's theory about implied\nmotion to sever his trial from hers.¹⁴ We\nSENTELLE, Circuit Judge, concurring:\nsystem's interest in joint trialn and a defen-\nassertions. Long has not provided any evi-\nfind no merit in this claim.\ndant's right to a fair proceeding is peculiar-\nWhile I am in total agreement with the\nsume, In circular terms, that any communica.\nly within the province of the trial court,\nconclusion of the Court and in substantial\nshe testified from memory, and because the\ntion made in words is an assertion: \"It can\ndeclarant was unavailable for cross-examina-\nand we will not reverse the balance that\nagreement with the reasoning of Judge\nscarcely be doubted that an assertion made in\ntion. But this is invariably true whenever a\ncourt strikes absent a clear abuse of discre-\nThomas' careful opinion, I write separately,\nwords is intended by the declarant to be an\nwitness testifies about words spoken outside the\ntion. United States v. Hernandez, 780\nif briefly, for a distinct, finite purpose. I\nassertion. Hence verbal assertions readily fall\ncourtroom; Long has not explained why the\ninto the category of \"statement.\" Fed.R.Evid.\nprejudice inherent in this testimony is unfair.\nF.2d 113, 119 (D.C.Cir.1986); United States\nfind the opinion entirely correct as to the\n801 advisory committee note. The note also\nIn no way has Long shown the \"grave abuse\" of\nacknowledges the possibility of \"nonassertive\nv. Haldeman, 559 F.2d 31, 72 (D.C.Cir.\nfacts of this case and the law applied there-\ndiscretion that is required before we will disturb\n1976) (en banc) (per curium), cert. denied,\nto. But, by stating that in the general case\nverbal conduct,\" however, and suggests that In-\nthe delicate balance struck by the trial court\ntent determines whether such \"verbal conduct\"\n481 U.S. 933, 97 S.Ct. 2641, 528 L.Ed.2d 250\ncharging \"use\" of a firearm in violation of\nunder rule 403. See United States v. Payne, 805\nis hearsay. We are persuaded that the note's\nF.2d 1062, 1066 (D.C.Cir.1986).\n(1977). In this case, to be sure, there was\nTitle 18 U.S.C. & 924(c)(1), \"the govern-\nintent analysis applies with equal force to mes-\nment, at a minimum, must show that a\nsages implied from words and to messages im-\n14. The government contends that Long did not\nwith respect to that codefendant. but noted that\nplied from conduct.\npresent this argument to the district court, and\nhe \"would just like to preserve (the motion) in\nwas overwhelming. See Tr. II at 114-15 (\"[H]ad\n13. Long further argues that, even if testimony\nthat consequently he has waived it on appeal.\nthe event that disparity issues present them-\nthere been a separate trial, none of this evidence\nabout the telephone call is not hearsay, it should\nThe record, however, shows otherwise. In ad-\nselves at trial with respect 11, the remaining\nwith respect to Mr. Long on trial would have\nhave been excluded as unfairly prejudicial.\nvance of trial, Long filed a motion to sever his\ndefendants.\" Tr. Supp. Hrg. at : Long thus\ncome in against him It's a spillover; the\nRule 403. in pertinent part, provides that \"evi-\ntrial from that of his (then three) codefendants,\ncomplied with Fed.R.Crim.P. 12(h)(5). which re-\nprejudice is overwhelming: coupled with the\ndence may be excluded if its probative value is\non the ground that the evidence against him was\ntrial. quires that severance motions be raised before\nfact that this would not have come in had there\nsubstantially outweighed by the danger of un-\nmuch weaker than the evidence against them.\nbeen a separate trial.\"). The court denied\nfair prejudice.\" Fed.R.Evid. 403 (emphasis add-\nThe government opposed this motion, and both\nAt the close of all the evidence at trial, Long's\nLong's severance motion. Id. at 116. It is disin-\ned).\nsides filed briefs. When one of the codefend.\nattorney renewed his call for . argu-\ngenuous, at best, for the government now to\nLong argues that the officer's testimony re-\nants pleaded guilty. Long's attorney conceded\ning that the disparity between the evidence\ncontend that Long \"did not argue this ground to\ngarding the phone call was unreliable because\nthat the severance motion had become moot\nagainst Long and the evider.\". against Mayfield\nthe District Court.\" Brief for Appellee at 26.\n905 F 20-36\n1582\n905 FEDERAL REPORTER, 2d SERIES\nparticular defendant has actually or con-\nacting in concert possibilities, and there\nstructively possessed a particular firearm\nmay be other ways in which a defendant\nin order to prove that he has 'used' it.\"\nengaged in a drug transaction can \"use\" a\nMaj. op. at 8, the Court has gone beyond\nfirearm possessed by some other person to\nthe holding necessary to determine this\nprotect the defendant's own drug enter-\ncase. On the present facts, the govern-\nprise. What the quantum of evidence nec-\nment did not offer evidence of possession\nessary for such other concept of use might\nor any other evidence that Long had used\nbe, I would leave for the case that presents\nthe firearm, as the Court's opinion well\nthe question.\nACCORD AND\nestablishes. That, however, is all that is\n2(2). Matters cover\nnecessary to decide the controversy before\ncelpt.\nE KEY NUMBER SYSTEM\nC.A.10 (Okl.) 1990. I\nus. There may be other cases in which\ncontractor's agreement\nevidence sufficient to support a jury verdict\naccord and satisfaction\nclaims against owner 1..\nof \"use\" would appear without fitting the\nlate supply deliveries\ntechnical rubric of possession. The majori-\nby evidence that partic\norder to discharge any\nty's opinion at footnote 8 points out the\nspower Constructors. a\nCorp. v. Grand River\n1413.\nACCOU\nPerformanc\nand liabilities.\nC.A.D.C. 1990. No\nbetween alleged deficion\nauditor's annual audits\nnancial problems: alth.\nauditor failed to specifical\nfailure to pass on will\nstated value of certain\ning concern\" qualificati\ncorporation was in ver\nand corporation's direct\nthat condition.-Drabk\nCo., 905 F.2d 453.\n-9. Dutles and llabi\nC.A.10 (Utah) 1990. I\ntive negligence defense\ntor's malpractice action\nness in absence of evider\nconduct contributed to\nform his work or to fur\ninformation: allegation\nhave discovered precar\nbusiness and would h\nmany of their losses\nproper attention and th:\nactions with business\nmanner did not estable\ndefense.-Fullmer v. We\n1394.\nUnder Utah law, audit\nthe negligent preparatic\ncial statements to third.,\ncorporation, inasmuch\nthose who could reason.\naudited statements.-I.I\n-10. Actions.\nC.A.10 (Utah) 1990.\nsufficient evidence th.\nwith business in relatio\nwere loans, rather than\nests, that investors rel\nprepared by auditor in\nand that such reliance\nawarding damages to in\ntransactions for auditor\nfinancial statements.—\nBeck, 905 F.2d 1394.\nPraised for Demeanor, Scholarship on Bench\nBy RICHARD CARELLI, Associated Press Writer\nWASHINGTON (AP) Lawyers who appeared before Clarence Thomas\nin his brief federal appeals-court tenure praised on Tuesday his\njudicial demeanor, \"good, probing questions\" from the bench and\nhis scholarship.\n\"He looks, sounds and acts like a judge,\" said Washington\nlawyer Richard J. Leighton of the man President Bush wants on the\nSupreme Court to replace the retiring Thurgood Marshall.\nNone of the lawyers contacted used words such as \"brilliant\"\nor \"erudite\" often-cited adjectives when Supreme Court nominees\nare discussed but all said he was, in their cases, well-prepared,\na good listener or fair.\nLeighton was involved in one of the 18 cases in which Thomas\nwrote an opinion during his 15 months on the U.S. Circuit Court of\nAppeals here. Leighton, who represented Alpo Petfoods in a\nfalse-advertising dispute with competitor Ralston Purina, remembers\nbeing impressed with Thomas when the case was argued in April 1990.\n\"He asked good, probing questions, and from his follow-ups I\ncould tell the questions weren't just coming from some law clerk's\nmemo, Leighton said. \"He really ran me through my tricks.\" =\nThe ruling went against Alpo on a key point, and against Ralston\nPurina on another.\n\"Judge Thomas' decision in the case has been cited often, and\nis being discussed in all the seminars on the Lanham Act (a federal\nlaw on false advertising), Leighton said. \"It's an\nextraordinarily clear opinion that's written in a scholarly\nfashion. This was a weighty decision, no piece of fluff.\"\nMichael Olshonsky, a Washington criminal defense lawyer,\nremembers being favorably impressed with Thomas when Olshonsky\nrepresented a client whose drug conviction was upheld by a\nThomas-authored decision.\nA three-judge panel ruled that forcing three defendants to stand\ntrial together did not violate their rights, and that all three\ncorrectly were convicted of possessing a weapon found on one of\nthem.\n\"My impression during arguments was that the judge was\nthoroughly prepared,\" Olshonsky said. \"The decision itself was\nconsistent with the general trend in this circuit.\"\nGeorge Davies, a Birmingham, Ala., lawyer who represented the\nUnited Mine Workers union before Thomas and two other judges in a\nmine-safety dispute earlier this year, has one standout memory of\noral arguments in the case \"He didn't like our position very\n-\nmuch.\"\n=\nDavies said Thomas' questions focused on the \"highly technical\npoints\" of the relevant federal law.\n\"It was evident he had read the briefs and been through the\nrecord. Although I was disappointed with the decision,\" said\nDavies, \"I do think he did look hard at the case. He did his\nhomework.\"\nWhen Washington lawyer James Davenport heard of Thomas'\nselection for the Supreme Court, he had trouble remembering that\nThomas was on a three-judge panel that upheld a client's criminal\nconviction last August.\n\"To the best of my recollection, he didn't ask a single\nquestion during arguments.\"\nBut Thomas wrote the decision in the case. Davenport's\nassessment: \"I obviously was not pleased by the result, but it was\na reasoned opinion.\"\nAP-DS-07-02-91 1714EDT\nEEOC\nHow EEOC Thrived\nWhy would the\nDuring Thomas's\nRepublican chairman\nof the EEOC ask me, a\nTenure as Chairman\nDemocrat and a career\nThe nomination of Clarence Thomas to\nthe Supreme Court has evoked a great deal\nfederal employee, to\nof productive and enlightened discussion.\nbe his chief of staff?\nUnfortunately, it has also resulted in the\nrepetition, however innocent, of un-\nfounded criticisms of his record as chair-\nquestion me as to my philosophical views;\nman of the Equal Employment Opportunity\nmy strict and single mandate from him was\nCommission.\nto help make the EEOC effective.\nClarence Thomas vigorously and effec-\nDuring his tenure as chairman, the EEOC\ntively enforced the laws against employ-\nwent to court on behalf of workers 60\nment discrimination. I marvel at the will-\npercent more often than in previous years\ningness with which generally intelligent\nand collected more than $1 billion on be-\nand skeptical individuals have accepted\nhalf of American workers, more than dur-\nbare assertions to the contrary. The record\ning any other comparable period.\nestablishes that the EEOC came of age\nFor the first time, policies were adopted\nunder the leadership of Judge Thomas. As\nrequiring thorough investigation of all\nhis chief of staff, I witnessed it.\ncharges of discrimination and full redress\nWhy would the Republican chairman of\nfor its victims. Workers unlawfully de-\nthe EEOC ask me, a Democrat and a career\nprived of a livelihood were to receive a job\nfederal employee, to be his chief of staff?\nand full backpay. Those who discriminated\nAnd why would a \"politically correct\" civil\nhad to take such additional affirmative\nservant accept the position? Because we\nsteps as discharging offending supervisors\nshared a commitment to equal employment\nand posting notices to employees to assure\nopportunity and the full protection and\nthem that their rights would not again be\nvindication of the rights of women, minori-\nviolated.\nties, older Americans, and workers with\nIn the past, field offices-made unreview-\ndisabilities.\nable determinations to litigate only a few of\nWe were dedicated to the goal of making\nthe many cases found to have merit. Under\nthe EEOC a credible and aggressive law\nThomas, all meritorious cases were submit-\nenforcement agency. Thomas concentrated\nted to the Commission for litigation.\non my law enforcement experience, ig-\nSome have mistakenly assumed that the\nnored my party affiliation, and did not\nincreased efforts on behalf of individual\nworkers constituted a shift away from\nconcern about the existence of broad-based\ndiscrimination stemming from employ-\nment patterns and practices.\nRoll Call - August 1, 1991\nTo the contrary. In 1981 the EEOC had\nonly one broad systemic pattern and prac-\ntice case in litigation; in 1988 the Commis-\nsion had 16 such cases in active litigation.\nPamela Talkin is a member of the Federal\nLabor Relations Authority.\nThursday, August 1, 1991 ROLL CALL Page 5\nGuest Observer\nBy Pamela Talkin\nMoreover, the EEOC, on its own initiative,\nthe laws ensuring equal opportunity and\nture, but he also succeeded in transforming\nactively prosecuted as broad, pattern and\nprohibiting discrimination.\nthe EEOC into a respected and highly pro-\npractice actions hundreds of cases that had\nJudge Thomas was,committed to identi-\nfessional agency.\nbeen filed as individual claims.\nfying and eliminating all arbitrary ob-\nNo one was more dismayed than Clar-\nIn accordance with precedent, Thomas\nstacles to equal opportunity. Employers\nence Thomas when the evolving EEOC did\nvoted to approve settlements involving the\nwere required to recruit actively minerities\nnot, on occasion, live up to its own en-\nuse of goals and timetables, despite his now\nand women and to setaside millions for the\nhanced expectations. As he often stated, we\nwell-publicized personal views on the effi-\ntraining of minority and woman employees\nbuilt our wagon while we were riding in it\ncacy of such measures.\nand the establishment of scholarship funds\nand, with 50 offices and 3,000 employees,\nReasonable people can and do differ with\nfor minority students.\nmistakes occurred. Thomas took full re-\nhis views on this matter. However, the\nFederal agencies were required to submit\nsponsibility for any shortcomings and re-\npotential use of goals and timetables was\naffirmative action plans identifying barri-\ndoubled his efforts to make the EEOC a\ninvolved in less than one-half of one per-\ners to the full employment of all employees\nformidable opponent of those who would\ncent of the more than 60,000 cases filed\nand detailing the steps to be taken to re-\nviolate the laws prohibiting discrimination.\nannually. A difference of opinion over the\nmove those obstacles.\nToday's EEOC is a fitting and lasting\nutility of thisone form of affirmative action\nWhen he became chairman in 1982;\ntribute to Clarence Thomas's vision and his\ncannot serve as a legitimate basis for cava-\nThomas found an EEOC in disarray. Clar-\nunwavering commitment to upholding the\nlier assertions that Thomas did not enforce\nence Thomas not only built the infrastruc-\nlaws protecting American workers.\nLOS Angeles Times\nSUNDAY, JULY 7, 1991\nHe Is Nothing If Not\nan Independent Thinker'\nThere were cheers that day as well\nPERSONAL\nClarence loves to tell the story of the\nPERSPECTIVE\nday be arrived at the EEOC. His prede.\ncessor had left him the title of \"chair.\" but\nwhen he finally gained admittance to his\noffice-he had trouble convincing the.\nBy R. Goull Sliberman\nguard that be. Clarence Thomas. was the\nWASHINGTON\nnew chairman of the EEOC chair mL\nW\nben Clarence Thomas stepped\nbehind his desk. Neither chair. systems\nonto the national stage last\nor.sembiance of organization was to be\nMonday in Kennebunkport.\nfound. Clarence got himself a chair and &\nMa. cheers erupted at the Equal Emoloy-\nClassic Coke put his grandfather's and his,\nment Opportunity Commission. the -gen-\nson's pictures on his desk (It at least\ncy be headed for eight years. That\nremained) and went to work.\nlongtime employees of the often beles-\nMuch has been written about Myers.\nguared commission cheered Thomas'\nAnderson, Clarence's grandfather. the\nnomination to the Supreme Court is a\nmost profound influence on his life. When\nstory to itself.\nI first came to the commission in late.\nImmediately after President George\n1984. Anderson had only died recently,\nBush introduced Thomas. members of the\nWhen Clarence talked about him. his eyes:\nprem started calling the commission\nwelled up. Anderson's injunctions to his\n\"Who is this Clarence Thomas!\"\ngrandson to \"make something of your-\nFor those of - who were his col-\nself.\" that \"Mr. Can't is dead. I helped:\nleagues. the answer is quite simple He is\nbury him\" became the railying cries for\ndignified. reflective. direct. careful. cou-\nan agency in which \"Mr. Can't\" had been\nregeous-a friendly. funny man with a\nvery much ative.\nhearty laugh. The Clarence Thomas you\nThe men and\nsee is the Clarence Thomas you get\nwomen of the\nEveryone at the EDOC remembers that\nEEOC love Clar-\nhis arrival in May. 1982. aroused a good\nence because. in\nmeasure of skepticism from a staff weary\na real sense. be:\nof uncertainty and leary of this Reagan-\nis one of them.\nappointed black man. They, too, asked.\nIn the earty\n\"Who is this Clarence Thomas!\"\ndays of his\nThis past week. I've been reminiscing\nchairmanship,\nwith some of the men and women of the\nhe would \"\nEEOC about then-Chairman Thomas. One\ndown to the fl-\ntheme stands out Thomas profoundly\nnance section so\ninfluenced the commission and the men\noften that be\nand women who work for IL AL his\nhad his own chair there. The supervisors\nrenomination hearings in 1987. the line to\nwere not sure that the chairman's tree\nfor into the committee room wound\nquest. unannounced visits were Decear\naround the corridors of the Dirkson\nsartly a good thing. But as staffer Mary\nBuilding, so many commission employees\nStringer remembered this week. \"We\nhad taken annual leave to go down and\nclosed the books on Sept. 30th and и we\nsupport their leader.\nwere here 'til two in the morning, Clar.\nAnd lead he did. Clarence challenged\nence was here.\"\nhis staff to do better. convinced them that\n\"Pop\" Tate. once janitor. now roving\nbe and the agency needed their best. He\nEEOC jack-of-all-trades. is keeping a\ntold them that tough times were ahead\nscrapbook of everything that's being\n(be was right). that they were going to\nwritten about his friend. Judge Thomas\nhave to break some crockery but. togeth-\n\"Pop\" never quite understood how any.\ner. they would pick up the pieces and\none who lived in Washington could root\ncreate a revitalized agency of which they\nfor the Dallas Cowboys. but Clarence M.\ncould all be proud. And be did just\nnothing of not an independent thinker.\nthat-when be left the commission. the\nClarence does not uncritically accept\nnew building for which be had fought so\northodaxy of any stripe. He questions\nhard was named the Thomas Building.\ncliches like \"color-blind society.\" know.\ning full well that color and race are facts'\nof life. factors in life. You can make them\na plus. make them a minus. but you can't\nerase them.\nClarence publicly questioned the Rea-\ngan Administration's seeming reluctance\nto broaden the Republican Party. He\ninstated that his party had room for people\nof all colors. faiths. conditions and classes.\nThat's why he was an inspering bodd of\nthe EEOC. His liberating message to all\nwho know him - You count because of\nwho you are and what you do. not because\nof what goods you possess or to what race\n(or religion) you belong.\nAnd that's the signaficance of his ap-\npointment. Clarence Thomas' confirma-\nLion hearings present a historic oppor-\ntunity to reasoure the people of this\ncountry that the American dream lives.\nThe men and women of the United States\nEqual Employment Opportunity Commis-\nsion are getung ready to cheer again.\nInitiatives of Judge Clarence Thomas\nat the U.S. Equal Employment Opportunity Commission\n(Tenure: May 1982 to March 1990)\n\"Overall, it seems clear that he left the [EEOC] in better\ncondition than he found it.' (U.S. News and World Report, July\n15, 1991).\nENFORCEMENT\nCharge Processing\nBefore Thomas\nIn April 1981, the General Accounting Office found, \"The\nrapid charge process has over-emphasized obtaining settlement\nagreements with the result that EEOC has obtained negotiated\nsettlements for some charges on which GAO believes there was no\nreasonable cause to believe that the charges were true. The\nsettlement agreements for these charges have little substance\nand they distort the results of the rapid charge process by\ninflating the number of settlements.\"\nThe GAO report found that these negotiated settlements\n\"undermine EEOC's credibility because charging parties and\nemployers said they were pressured into settlements they\ndisagreed with [and] charging parties were led to believe that,\nsince the charges were resolved with settlement agreements, their\ncharges had merit but EEOC handled them ineffectively.' (GAO,\nFurther Improvements Needed in EEOC Enforcement Activities,\n(April 9, 1981).\nThomas Initiative\nUnder Judge Thomas' leadership in 1983, the Commission\nunanimously adopted a resolution to shift its presumption in\nfavor of rapid charge processing to one of case-by-case decisions\non appropriate methods for resolving administrative charges, so\nthat adequate evidence could be obtained to ensure strong cases\nfor conciliation and litigation. This resulted in more full\ninvestigations and ultimately, in more cases being considered by\nthe Commission for litigation. (EEOC).\nThe Thomas Commission adopted a remedies policy which calls\nfor a full remedy to be sought in every case where discrimination\nis found, including elimination of the discriminatory practices.\n(EEOC, Policy Statement on Remedies and Relief for Individual\nCases of Unlawful Discrimination, Feb. 5, 1985).\nThomas at EEOC\nPage 2\nLitigation\nBefore Thomas\nCases were selectively litigated. (EEOC).\nThomas Initiative\nAn enforcement policy was adopted which called for every\ncase of discrimination which fails conciliation to be presented\nto the Commission for litigation consideration. (EEOC, Statement\nof Enforcement Policy, Sept. 11, 1984. This resulted in a\nStatistics). dramatic increase in the number of lawsuits filed by EEOC. (EEOC\nSystemic Cases\nBefore Thomas\nBefore Clarence Thomas arrived at EEOC, the agency had no\nviable systemic program. Many systemic charges were never\ninvestigated or resolved. (EEOC).\nThomas Initiative\nIn 1985, Judge Thomas reorganized the systemic function so\nthat investigations and litigation of systemic cases were placed\nrespectively into the two offices best equipped to conduct these\nspecialized functions. (EEOC). In 1988, 103 systemic cases were\ninvestigated and 16 were in active litigation. of the $131\nmillion in relief obtained in FY 1988, over $48 million was\nawarded in large class action/pattern and practices cases. (Vice\nChairman R. Gaull Silberman, EEOC).\nLawsuits\nBefore Thomas\nIn 1981, EEOC filed 444 lawsuits on behalf of discrimination\nvictims. (EEOC Enforcement Statistics).\nThomas Initiative\nBy 1986, the agency was routinely, filing more than 500\nlawsuits each year. Altogether during Thomas' tenure, EEOC filed\nmore than 3,300 lawsuits and obtained nearly $1 billion in\nmonetary benefits for victims of discrimination. (EEOC\nEnforcement Statistics).\nFEDERAL SECTOR ENFORCEMENT\nFederal EEO Appeals\nBefore Thomas\nEEOC's Office of Review and Appeals, which reviews federal\nagency decisions on employee EEO complaints, in 1982 was\nunderstaffed and ineffectively managed. Unassigned cases were\nplaced in cardboard boxes stacked in a room from floor to\nceiling; most were 2 or 3 years old before being assigned to an\nattorney, some were 6 to 8 years old before being completed. ORA\ndecisions were not indexed or recorded for attorneys; GAO in 1982\nreported that ORA decisions were inconsistent, even on separate\nappeals filed on the same case. (EEOC).\nThomas Initiative\nEEOC under Clarence Thomas established a viable case filing\nsystem for federal appeals, assigned more attorneys to ORA,\ncomputerized case indices and a tracking system, a library was\nestablished for the staff and the average case processing was\nreduced to 130 days by 1989. (EEOC). In 1982, ORA completed\n3,488 cases. In 1988, it completed 6,380.\n(EEOC, EEOC: 1982 to the Present, Dec. 1988).\nFederal EEO\nBefore Thomas\nWhen Clarence Thomas arrived at EEOC, no \"management\ndirectives\" to federal agencies had been issued on the employment\nof minorities and women, no information or statistics existed on\nthe status of minorities, women and disabled individuals employed\nby the federal government, mail was backlogged and paperwork was\nin boxes. (EEOC).\nThomas Response\nUnder Thomas, Management Directives 707 and 707A, for\nminorities and women, were issued for 1982 - 1987; Management\nDirective 714 for minorities and women and 713 for persons with\ndisabilities were issued for 1988 - 1992. Reports on the\nemployment of minorities, women and disabled individuals were\nissued on an annual basis since 1982 and the agency became a\nmodel employer of persons with disabilities. By the end of\nChairman Thomas' tenure, all mail was answered within 30 days and\nall files were organized and computerized.\nThomas at EEOC\nPage 4\nFINANCIAL MANAGEMENT\nBefore Thomas\nIn May 1982, GAO reported to Congress that EEOC had not\nmaintained accurate and up-to-date financial records, had not\nimplemented adequate audit controls, had engaged in a\nquestionable \"loan\" program to finance private Title VII\ndiscrimination suits and that the financial disarray of EEOC\nforced senior staff to make unsupported and improper manual\nadjustments to the year-end reports for fiscal years 1980-81.\n(GAO, Continuing Financial Management Problems at the Equal\nEmployment Opportunity Commission, May 17, 1982). More than $1\nmillion in outstanding employee travel debts remained uncollected\nand in fiscal 1981, the agency underwent a reduction in force,\nwhich according to a former budget official was directly related\nto the agency having returned to the Department of Treasury\nunspent more than $10 million of its $140 million appropriation\ndue to poor financial management. (EEOC Fact Sheet).\nThomas Initiative\nAs Chairman, Judge Thomas improved the agency's financial\nmanagement. By the time he left EEOC, the agency was regularly\nobligating more than 99 percent of its appropriation and is able\nto monitor all funds in its various offices. In 1984, for the\nfirst time, EEOC's financial accounting systems met GAO\nstandards. (EEOC Fact Sheet).\nPERSONNEL\nBefore Thomas\nIn 1982, the Office of Personnel Management described the\nEEOC work environment as \"beset by acrimony, improper employee\nconduct, poor performance and favoritism.\" (The Washington\nTimes, July 5, 1991). In 1982, 60 jobs at EEOC were audited --\n53 were subsequently downgraded (of those, 42% were found to be\novergraded by three or more grades) ; there was no accurate count\nof agency employees; employee pay records frequently contained\nerrors. (EEOC Fact Sheet).\nThomas at EEOC\nPage 5\nThomas Initiative\nChairman Thomas implemented employee training and\nrecruitment programs to upgrade and train the existing work force\nand to recruit and attract high quality employees. For the first\ntime in 1987, virtually all investigators received comprehensive\ninvestigative training. Equal Opportunity Specialist positions\nwere converted to Investigators in 1988, reflecting EEOC's\ncommitment to more full investigations. Federal sector Hearing\nExaminer positions were upgraded to Administrative Judges and\ngiven more authority. Incentive programs were implemented.\n(EEOC Fact Sheets).\nWithout additional resources, the personnel system was\ncentralized and linked to the payroll system; by the end of\nClarence Thomas' tenure the error rate was .01 percent. By the\ntime Thomas left the agency, EEOC 's personnel organization was\nroutinely commended and consulted by other small agencies and the\nOffice of Personnel Management for its excellent personnel\npractices.\nIn 1988, EEOC received the Office of Management and Budget's\nProductivity Improvement Award for quality, effectiveness and\nefficiency. (EEOC News Release, July 1, 1988).\nAfter a July 1991 visit to EEOC, Senator John C. Danforth\nsaid, \"While at the headquarters, I had the opportunity to speak\nwith a wide variety of individuals\nThe clear message of\nthose I visited was that Clarence Thomas had transformed the EEOC\nfrom the dregs of the federal bureaucracy to an efficiently\noperating agency which was effectively performing the duties\nCongress had assigned to it.' (Sen. John C. Danforth, July 16,\n1991, Floor Statement).\nCOMPUTERIZATION\nBefore Thomas\nWhen Clarence Thomas arrived at EEOC, the only\nautomated equipment for case management was two outdated\nmainframe computers with keypunch equipment. There were outmoded\nand incompatible word processors; the agency did not own even one\npersonal computer. (EEOC Fact Sheet).\nThomas at EEOC\nPage 6\nThomas Initiative\nUnder Judge Thomas' guidance, EEOC began to automate by\npurchasing its first personal computer in 1983. The agency was\ncomputerized without any additional funding from Congress. As a\nresult of Thomas' initiatives, an integrated charge data system\nwas installed in all 50 field office which connected to a\nnational database containing nationwide enforcement data on more\nthan a million cases by the end of Thomas' tenure, more than\n1,000 compatible personal computers were installed throughout\nEEOC and virtually every program at EEOC was computerized,\nincluding financial management, personnel, and federal sector\nappeals, in addition to enforcement. (EEOC Fact Sheets).\n###\nPRESS\nThe New York Times\nWhat Clarence Thomas Knows\nBy Guido Calabresi\nespecially not on African-Americans.\nant is served by a lousy lawyer, they\nIf he had, he would be unworthy to sit\nsound like what they are: people who\non the Supreme Court. What he has\nneither through personal experience\nNEW HAVEN\ndone is to conclude, with many others\nnor academic thought could ever\nam a Democrat. Since the\nand probably wrongly, that certain\nimagine themselves erroneously\nI\nPresident and others have\nmeasures have done more harm than\ncrushed by the power of the state.\nstarted to throw mud on liber-\ngood. I wish I could convince him\nClarence Thomas, at least, knows\nals, I have proudly asserted\notherwise. Maybe some day someone\nbetter, and someday, in some case,\nthat I am a liberal. I despise\nwill.\nthat knowledge will make itself felt.\nthe current Supreme Court\nWhat matters most, though, is that,\nOf course, there are others as able\nand find its aggressive, willful, statist\nunlike many on the Court, he does\nas Clarence Thomas who also know\nbehavior disgusting - the very oppo-\nknow the deep need of the poor and\nthis. And if I were President I would\nsite of what a judicious moderate, or\nespecially of poor blacks, and wants\nname someone like that who also\neven conservative, judicial body\nto help. That will keep him open to\nshared my views. But it is a gross\nshould do.\nargument as a Justice should be.\nillusion to think that this Administra-\nI think it strange that these strict\nThe second reason I support him\ntion will do anything like that any\ndestructionists should be allowed to\nderives from this direct knowledge of\nmore than the Reagan White House\nget away with the claim that they are\nwhat it is like to be in need. This Court\ndid when Robert Bork was cruelly\nfollowing the Constitution when, in-\ncaricatured and defeated. What we\nstead, they persistently reach well\ngot then, what we would get now, is\nbeyond the issues before them to Im-\nsomeone less able, with less life expe-\npose their misguided values on the\nHe may stand up\nrience, a gray follower of all that is\nGreat Charter and on all of us.\nworst in the Court today.\nYet I support the nomination of\nagainst a willful,\nAnd now, as then, The New York\nClarence Thomas to that Court. Why?\nTimes and eminent scholars who de-\nFirst, because I know him and\nstatist Court.\nfeated the nominee will join the band-\nknow he is a decent human being who\nwagon of support for the nonentity.\ncares profoundly for his fellows. He is\nFor in such a person the \"offending\"\nnot the caricature that some of his\nviews will not stand out against the\nopponents have put forth. It is true\ngrayness of his background.\nthat he has come to believe that some\nis outrageously homogeneous. It is\nNo, I would much rather have\nthings we liberals have espoused to\noverwhelmingly made up of gray Re-\nsomeone who does stand out, who\nhelp African-Americans (and many\npublican political hangers-on of virtu-\nholds his or her own views, with\nother people, too) are counterproduc-\nally identical backgrounds. They all\nwhich I deeply disagree but who has\ntive. I think that on the whole he is\nbring to the Court the same life expe-\nsomewhere, same time, experienced\nwrong.\nrience and lack thereof.\nlife and has been willing to stand up\nBut his conclusion is not so impor-\nHow can they know what discrimi-\nagainst the pack. Better such a one\ntant as the fact that he does not deny\nnation really means? How can they\nthan someone who will readily blend\nthat such measures helped him or\nunderstand what fear of police, prose-\nin and be another anonymous vote for\nthat the people whom these remedies\ncutorial or state abuse and brutality\nthe activist and virulent views now so\nseek to help are deserving and often\nis? When they babble that coerced\ndominant on the Court.\ndesperately need help. He has not\nconfessions need not make trials un-\nFor there is just a chance that such\nturned his back on those in need, and\nfair; that discrimination must be\na one may stand up to the pack again,\nproved in individual cases and not\nand remind us all of what it is like to\nGuido Calabresi is dean of Yale Law\nthrough statistics, or that a single\nbe poor and friendless and to be fac-\nSchool.\nappeal is adequate even if a defend-\ning a hostile state.\nJULY 28, 1991\nemcago Cribune\nJULY 18, 1991\nFar from being eccentric, this general belief is\nIs Thomas' belief\nwidely accepted. Says Randy Barnett, a professor at\nIIT-Kent College of Law: \"Americans believe they\nhave rights that the government didn't create and\nin natural law\ncan't take away. Thomas is right in the mainstream\nof what Americans think.\"\nThomas is also in harmony with one Joseph Biden,\nchairman of the Judiciary Committee, who during\nunnaturally odd?\nRobert Bork's confirmation hearings said of\nconstitutionally protected rights: \"What has been\nprotected\n[are] important and fundamental\nliberties that, in my view, predate the Constitution. I\nOpponents of Clarence Thomas have discovered\nhave them because I exist.\nthat on occasion be has invoked something known as\nIn fact, liberal interpreters take a similar approach\n\"natural law.\" From their reaction you would think\nto the Constitution, arguing that certain transcendent\nthey had found him at the airport in a Hare Krishna\nvalues and moral principles, like human dignity and\nrobe.\nequal respect for all, deserve protection even though\nHarvard law professor Laurence Tribe depicts him\nthey aren't mentioned in the text. Tribe himself\nas a scary medieval relic, \"the first Supreme Court\nthinks it should be read imaginatively to guarantee\nnominee in 50 years\" to draw on natural law.\nthe right to \"a decent level of affirmative\nThomas, be suggests, may return us to the time when\ngovernmental protection in meeting the basic human\nthe Supreme Court said women could be prohibited\nneeds of physical survival and security, health and\nfrom becoming attorneys because the law of nature\nhousing, work and schooling.\"\nconsigned them to the job of wife and mother.\nYes, that's hypocrisy you smell. \"There is not a\nHe was seconded by Robert Alley, an adviser to\nfundamental or significant difference between using\nAmericans United for Separation of Church and\nnatural law and using moral principles to interpret\nState: \"If be develops an agenda of declaring\nthe Constitution,\" says University of Minnesota law\nprofessor Suzanna Sherry, a self-described liberal.\nStephen Chapman\nThe critics suggest that Thomas will analyze the\nConstitution by trying to make it conform to\nAquinas' Summa Theologica. They might be forgiven\n'unnatural' things as immoral, I'm frightened.\"\nif he hadn't taken such trouble to specify what he\nThe logic is that since natural law has been used to\nmeans when be refers to natural law.\ndefend oppressive practices, it can be used only to\nWhat he means is the ideals of the Declaration of\ndefend oppressive practices. This is like saying that\nIndependence, which says, \"We hold these truths to\nsince (a) the Nazis had moral principles, and (b) the\nbe self-evident, that all men are created equal, that\nNazis were bad, (c) moral principles are bad. Tribe\nthey are endowed by their creator with certain\ndoesn't mention one modern proponent of natural\nunalienable rights, that among these are life, liberty\nlaw, Martin Luther King Jr., who wrote that \"an\nand the pursuit of happiness.' It is impcasible to\nunjust law is a human law that is not rooted in\nmake sense of the Constitution, Thomas argues,\neternal law and natural law.\"\nwithout understanding that its authors intended it as\nNatural law is essentially the broad idea, which\nan expression of these \"self-evident truths.\"\ntraces back to Thomas Aquinas, that human nature\nReferring to the Declaration, Thomas has written:\ndefines how people should live, and that some\n\"Here, as Lincoln put it, bies 'the father of all moral\nactions are wrong regardless of law or custom. The\nprinciple' in Americans. Equality means equality of\nterm is also sometimes used to refer to the belief that\nindividual rights, an equality resting on the laws of\npeople have inherent (\"natural\") rights that others\nnature and of nature's God.\nBecause no man is\nhave a duty to respect. Sometimes these are viewed\nthe natural ruler of another, government must\nas God-given, but not always: Novelist and\nproceed by consent. And that, in turn, requires\nphilosopher Ayn Rand, a vociferous atheist, fervently\nrepresentation, elections and the separation of\nbelieved in natural rights.\npowers. These are the requirements of free\ngovernment, and they rest on a moral conception of\nhuman worth, based on human nature.\"\nThomas agrees with the Framers that rights don't\nexist because the Constitution protects them; the\nConstitution protects them because they exist. He\nshares the view of most Americans that liberties are\nnot something created by government that can be\nrepealed by government, but the undeniable birthright\nof every individual.\nIf Thomas' crities want to turn his confirmation\nhearings into a debute over those propositions, it isn't\nThomas who will end up looking scary.\nEDITORIAL\nBY DAVID GERGEN\nEDITOR AT LARGE\nTHE BRIEF ON CLARENCE THOMAS\nT\nhe more one learns about Clarence Thomas, the\nthe game over. ensuring that it is now played with abso-\nmore compelling he becomes as a nominee to\nlute fairness. To insist upon preferences or quotas for\nthe Supreme Court-and as a fresh hope in\nblacks may grant them temporary gain but cost them\nbreaking America's paralyzing deadlock over race. In\ntheir own self-confidence and white respect. Stop rob-\nrecent days, his life story has already been turned into\nbing us of our manhood. he says angrily.\nthe stuff of legend: a young man whip lifted himself\nThomas does not walk away from disadvantaged\nfrom the hardscrabble of rural Georgia, so dark-\nblacks: indeed. he has invested years trying to help them.\nskinned that other blacks in Savannah called him ABC\nBut he thinks the proper role for government is to clear\n(\"America's Blackest Child\"); nurtured by a grandfa-\naway the hurdles of all poor people - the drugs, crime\nther who could barely read, but knew enough to instill\nand malnutrition that plague inner cities-without re-\nthe old values of hard work. self-reliance and religious\ngard to race. Nor is he a lackey for white bigots. At the\nfaith: taught by nuns, but taunted by classmates in an\nEEOC, he sought much tougher penalties against\nall-white high school: persevering up\nwhites ho discriminate: He wanted to\nthe ladder through Yale Law School,\nfine them heavily and toss them in jail.\nonto the staff of, John Danforth in\nAs a Reagan appointee. he attacked\nMissouri, then to Washington. and al-\n'He believes\nthe administration for dragging its feet\nways. always. a lonely. personal strug-\ngle to be his own man.\ngovernment's role\non voting rights. for granting a tax ex-\nempti- to all-white Bob Jones Uni-\nYet Thomas offers far more than\nis to protect the\nversity and for failing to offer a positive\ninspiring biography. \"What Clarence\nindividual, not to\nvision to blacks. He is not even certain\nis all about,\" says his friend, Republi-\nadvance the\nabout the merits of integration. Just to\ncan Senator Danforth. \"is that in this\nsit next to a white child in school solves\ncountry you should have the freedom\ninterests of any\nnothing. he believes. First. the black\nto think what you want to think.\nchild must learn to believe in himself.\nwhether you're black. white. or any-\none group.\nIn donning judicial robes, Thomas\nthing else.\" Just as he has cut his own\nhas pledged that his personal views\ncareer path, he has plowed his own\nwill not matter. So strong is his alle-\nmental furrow, catching hell from all\ngiance to law and precedent that his\nsides. Many civil-rights groups believe\nclosest admirers believe he is more\nhe betrays blacks because he refuses to march in lock-\nlikely to fit the Felix Frankfurter than the William\nstep with their agenda. From his days running the Equal\nRehnquist mold. refusing to join conservative activists\nEmployment Opportunity Commission, when he op-\neager to strike down rulings from the Warren court. We\nposed racial quotas, they dismiss him as a black conser-\nwon't know for sure how he will come out on abortion,\nvative doing the white man's bidding. In truth, Thomas\nschool prayer or crime until he actually sits on the court.\ndoesn't fit into any political box; he is, as Washington\nWhat we do know is that, as George Bush said. this\npolitical writer Juan Williams described him four years\nnew nominee is \"fiercely independent,\" and in today's\nago in The Atlantic, \"ideologically sui generis.\"\nclimate, his voice is welcome. America has wound up\nDrawing heavily upon his life and his readings,\nin a terrible cul-de-sac over race: Most whites, blacks\nThomas believes that under natural law (and America's\nand browns now believe in equality, but we are hung\nDeclaration of Independence). all men and women are\nup in arguments and in government programs that\ncreated equal, and that the U.S. Constitution provides\naren't working to bring it about. Too many black activ-\nlegal guarantees. Government's role is to protect the\nists insist that all blacks are victims and need special\nrights of the individual but not to advance the interests\npreferences throughout life: too many whites have giv-\nof any group. black or white; it is up to the individual to\nen up trying to find answers and suspect a black under-\nmake it on his own. Yes. whites tilted the game unfairly\nclass will be with us forever. Now comes Clarence\nin their direction for generations. but rather than com-\nThomas insisting that if both races shape up, blacks\npensating blacks for past sins. government should start\ncan still make it on their own. He should know.\n84\nU.S.NEWS & WORLD REPORT. JULY 15. 1991\nThe Detroit News\nSUNDAY. JULY 7, 1991\nA Man for This Season\nIn politics, timing is almost as important as sub-\nrather than laying burdensome new rules on em-\nstance.\nployers.\nWithout the legacy of retiring Supreme Court\nAs a result, court actions filed on behalf of plain-\nJustice Thurgood Marshall, Clarence Thomas\ntiffs rose from less than 250,000 in 1982 to more\nmight not be the likely next justice of the Supreme\nthan 560,000 a year under Mr. Thomas. From\nCourt. But just as Thurgood Marshall was a man\n1980-82, EEOC collected $320 million in fines\nfor his time, leading the charge\nfrom employers. From 1984\nfor the basic civil rights of black\nthrough 1986, EEOC collected\n$381 million. That hardly strikes\nAmericans, 80 Judge Thomas\nus as the actions of a man who\nmay be the right man for this\nlacks \"sensitivity\" to employ-\ntime, keeping the pendulum\nment discrimination. Moreover,\nfrom swinging too far in the di-\nthe Thomas rules have contin-\nrection of policies of racial pref-\nerence that could threaten the\nued in force to this day, another\nindication that he was hardly a\nsocial fabric.\nSadly, many black leaders see\nrogue ideologue when it came to\nfair play in the workplace.\nJudge Thomas as a threat to\nThe one area in which Mr.\ntheir turf. A campaign of disin-\nformation about him has already\nThomas' performance has been\nmost severely questioned is in\nbegun similar to that waged\nagainst Judge Robert Bork.\nage discrimination cases. The\nbacklog of these cases reached a\nThere appear to be three main\nnew high in 1987, and many were\nareas of criticism: his conserva-\nallowed to lapse. This precipitat-\ntive \"ideology,\" his record as\ned an investigation by a Senate\nchairman of the Equal Employ-\nsubcommittee. But at least part\nment Opportunities Commission\nof that backlog was found attrib-\nand his apparent opposition to\nClarence Thomas\nutable to the fact that Congress\nabortion.\nWe don't know how Mr. Thomas would.vote on\nitself repeatedly appropriated less for EEOC opera-\nthe matter of Roe VS. Wade. We do know the prem-\ntions than even the Reagan administration re-\nise on which abortion rights folks are now attack-\nquested.\ning him is false, namely that he is, as Virginia Gov.\nHow about the charge that Judge Thomas is a\nDouglas Wilder said the other day, \"a devout Ro-.\nhardline conservative who is \"out of touch\" with\nthe American mainstream?\nman Catholic.\"\nIt is true that Judge Thomas was schooled by\nThat charge should have been laid to rest by\nRoman Catholic nuns and attended Holy Cross\nMark Gitenstein, a liberal former Senate Judiciary\nUniversity. Now, it is worth noting that some of\ncounsel, who now heads the Foundation for\nthe strongest pro-choice voices in America are\nChange, a Washington think tank. He told the Le-\nCatholic, including Sen. Joseph Biden, chairman\ngal Times in October 1989, during Mr. Thomas'\nof the Judiciary Committee which will sit in judg-\nconfirmation as an Appeals Court judge, \"In my\nment on Judge Thomas. But the fact is, as Judge\nview, in the context of this administration Mr.\nThomas pointed out in an interview last week, he\nThomas is a moderate, pragmatic, reasonable nom-\nis not a Catholic. \"Currently I am attending the\ninee.\"\nEpiscopal Church,\" he said, which tends to leave\nAnd as Detroit Judge Damon Keith, a Carter\nquestions of abortion to individual conscience.\nappointee to the 6th Circuit Court of Appeals, said\nat the time of Judge Thomas' nomination to the\nThat does not settle the question of how he\nD.C. Court of Appeals: \"IfI or a member of my\nmight rule on abortion as a judge, but it does un-\nfamily were in trouble, he is the kind of person rd\nderline the fact that his opponents are likely to\nlike to appear before.\" For making this statement,\nshow no great regard for the truth in their cam-\nrepeated in a Wall Street Journal article last week,\npaign against him. And the fact that \"liberals,\" who\nJudge Keith says he has been the target of some\nnot so long ago had to defend John F. Kennedy\nangry phone calls from other civil rights leaders.\nfrom anti-Catholic bigotry, would seek to hold a\nBut he says he stands by his earlier statement.\nman's religion against him is a sign of the extent to\nwhich liberalism has degenerated as a principled\nOne of the ironies of this line of attack is that\npolitical creed.\nMr. Thomas was accused of being too \"moderate\"\nMr. Thomas also is being attacked for his alleg-\nby members of the Reagan administration. The\nedly \"insensitive and questionable enforcement re-\nmain reason: He opposed race-based remedies such\ncord\" at the Equal Employment Opportunity Com-\nas quotas, but he deeply believed in affirmative ac-\nmission. What is overlooked here is that when\ntion for qualified individual minorities. There are\nClarence Thomas took over this agency, it was in\nambiguities in such a position, but polls consis-\nchaos. It's no accident that one of Mr. Thomas'\ntently show that this is where the American people\nmost strident critics is D.C. Delegate Eleanor\nare, too.\nHolmes Norton, who was his predecessor at the\nJudge Thomas stands as living proof that even\nEEOC. The nonpartisan General Accounting Of-\nthe poorest black American can rise out of a Geor-\nfice in 1982 concluded that the internal record-\ngia sharecropper background to the highest court\nkeeping of that agency under Ms. Norton was so\nin the land. That should be taken not as a rejection\nbad that \"EEOC faces a formidable task in correct-\nof the vision of a Justice Marshall, but as affirma-\ning the operational deficiencies that allowed the\ntion of the courageous struggle for equality before\nunreliable records to develop.\"\nthe law in which Thurgood Marshall played such a\nUnder Mr. Thomas the EEOC was for the first\nformative role.\ntime fully computerized. Management also was\nJust as Thurgood Marshall was a man for his\nstreamlined. And Mr. Thomas put the emphasis on\ntime, Clarence Thomas appears to be a man for\nprosecuting individual cases of discrimination\nthis season.\nThe Atlanta Zournal\nTHE ATLANTA CONSTITUTION\nSUNDAY. JULY 7. 1991\nmunity. Wouldn't it be ironic if,\nThomas\nin your haste to conquer the\ntrained and capable black pro-\nworld, you lost those closest to\nfessionals and business people\nyou? Or, in looking beyond the\nwho were frustrated because\nhorizons, you fell down a mine\nthey were viewed only as mem-\nan asset\nshaft?\"\nbers of a group who got their po-\nsitions through quotas rather\nThese observations of Judge\nthan because of their qualifica-\nto bench\nThomas as a lawyer of keen intel-\ntions as individuals. Their true\nlect with strong values are all\nachievements were being deval-\npart of my simple response to\nued and masked.\nquestions regarding his confir-\nmation.\nYet, many black leaders con-\nHe offers strong values,\ntinued to advocate more govern-\nBut, there is another, more\nintellect to court\nment and private programs\ncomplex reason why I believe he\nbased on racial quotas.\nshould be confirmed. Judge\nBy Larry D. Thompson\nThomas, who is black, has said\nOstracized by black liberals\nthat we cannot simply dismiss\nB\necause I practiced law with Judge\nrace as a factor in our society.\nJudge Thomas was an early,\nClarence Thomas some 14 years\nHis confirmation, I believe, may\ncourageous advocate of so-called\nago, many people have asked me,\nconservative positions. He was\n\"Do you think he will be confirmed?\" The\nsignal the beginung of the ac-\nostracized, often quite bitterly,\nsimple answer is a resounding yes.\nceptance of new ideas and values\nby many black liberal leaders.\nWhile some may disagree with Judge\nfor a generation of black Amer-\nThomas's views on several issues, I do\nicans.\nnot believe that many who may differ\nJudge Thomas was never ob-\nwith him on these issues, but who have\nsequious. He was always his own\nThe wrong approach\nhad an opportunity to know him, will op-\nperson and was never a shill for\npose his nomination.\nanyone or any cause. He has crit-\nJudge Thomas, who is almost\nA graduate of Yale Law School. Judge\nicized the national Rep\nhalf the age of Justice Marshall,\nThomas is a legal scholar with valuable\nParty for what he saw as\nhas, through intellect and hard\nhands-on experience in the public policy\ntant indifference\" towar\nwork, been able to take advan-\narena. As chairman of the Equal Employ-\nvoters and criticized the\ntage of the opportunities made\nment Opportunity Commission, he led\npossible for our generation by\nadministration for its po:\nthe agency in removing a backlog of dis-\nthe work of Justice Marshall and\nthe Bob Jones University\ncrimination cases that served to unfairly\nother black leaders. Yet, obvious\nwhen it tried to grant tax\ndeny relief to individuals who suffered\nproblems remain.\nstatus to that institution\nemployment discrimination. The EEOC\ncharges that it practic\nunder his leadership became a more ef-\nWhen we were working to-\ncrimination.\nfective advocate for individuals who\ngether, Judge Thomas and I\nIn a speech at Suffolk\nwere victims of discrimination, and it\nwould once a week leave our cor-\nsity, he expressed the fru\nav\ndehumanizing litigation and pol-\nporate law offices and go to our\nof many black conservat.\nici\nat led to minorities simply being\nfavorite Chinese restaurant and\n\"It often seemed that to be ac-\ntreated as numbers. For example, the\ncepted within the conservative\nnumber of discrimination charges con-\ntalk about the problems of the\nranks and to be treated with\nsidered for litigation authorization by the\nEEOC rose from 401 in 1982, when Judge\nday. We would discuss the prob-\nsome degree of acceptance, a\nlems black people were experi-\nThomas became chairman, to 764 in 1988\nencing and our dismay over\nand approximately 800 in 1989.\nblack was required to become a\nsome black leaders who contin-\ncaricature of sorts, providing\nAn outstanding role model\nued to preach the \"politics of\ndespair.\"\nside shows of anti-black quips\nJudge Thomas is a warm and engag-\nand attacks. But there was more\ning person. He is, as they say, down to\nThese leaders stressed the\nmuch more to our concerns\nearth. He is also very wise and, because\nstatus of black people as victims\nthan merely attacking previous\nof his background, will serve as an out-\nand advocated more government\npolicies and so-called black lead-\nstanding role model for our nation's\nassistance as the only way of\ners. The future, not the past,\nyouth, especially those who are poor or\novercoming our problems. They\ncould be influenced.\"\nblack.\nignored other problems facing\nWhile genuinely appreciative\nOver the years, we have exchanged\nthe black community: drug use,\nand respectful of the important\nspeeches and articles each of us wrote\nlack of respect for the law, kids\ncontributions and sacrifices of\nand, quite frankly, I benefited more from\nhaving children too soon and fa-\nleaders of the past, many believe\nthis practice than did Judge Thomas.\nthers who were not taking their\nthat a new generation of black\nJudge Thomas is a prolific and insightful\nresponsibilities seriously.\nleaders with new ideas will ad-\nwriter. In a commencement address at\nWe noted the pernicious ef-\nvance black Americans and this\nSyracuse University Law School this\nfects of group politics. We each\nnation even more. With this in\nyear, Judge Thomas offered the follow-\nknew many outstanding, highly\nmind, Judge Thomas once told\ning advice to the graduates:\nme, \"Our day will come.\" With\n\"I encourage you to focus first on\nhis nomination to the United\nthose who are nearest you, your parents,\nhas. States Supreme Court, perhaps it\nsiblings, children, friends - your com-\nTHE WALL STREET JOURNAL.\nJULY 17, 1991\nBorking Begins, but Mudballs Bounce Off Judge Thon\nAmong the inadvertent benefits which\nHe Is Black. When Sen. George Mitchell\nJudge Thomas wrote that a more endur-\nfollowed from the timing of the Bork nome-\ndeclared that Judge Thomas was nomi-\ning opinion would have reflected the origi-\nration was the coincidence of the regularly\nnated only because of his race, President\nnal intent of the post-Civil War amend-\nscheduled July annual meetings of mass\nBush wondered if he \"accused Lyndon\nments, which fulfilled the promise of equal\nmembership organizations, including\nJohnson of a quota\" for nominating Thur-\nrights in the Declaration of Independence.\nPlanned Parenthood, the NAACP, the Na-\ngood Marshall. On what grounds is Judge\nBrown, he said, was a \"missed opportu-\ntional Education Association, the National\nThomas unqualified? He's written more\nnity to turn policy toward reason\nOrganization for Women and the National\nlaw review articles than David Souter, has\nrather than sentiment, toward justice\nAbortion Rights Action League. These\nmore law-enforcement experience than\nrather than sensitivity, toward freedom\nwere followed by the August conventions of\nJustice Marshall and his years at Mon-\nrather than dependence-in other words,\nthe Southern Christian Leadership Confer-\nsanto would make him the only justice\ntoward the spirit of the Founding.' A close\nence and the national board meetings of\nwith experience working as a corporation\nunderstanding of the Founders' back-\nlawyer. Admittedly, there is a single most-\nground in natural-rights theory is impor-\nRule of Law\nqualified nominee; maybe President Bush\ntant in interpreting the original intent of\nshould send up Robert Bork's name if\nthe document they left behind.\nJudge Thomas is defeated.\nHe's an Anti-Semite. Critics dug out a\nBy L. Gordon Crovitz\nHe's an Affirmative Action Ingrate.\n1983 speech where he praised Louis Far-\nJudge Thomas represents a generation of\nrahkan's message of self-help for blacks.\nminorities who have felt both sides of the\nOnce Mr. Farrahkan's anti-semitism be-\nCommon Cause, the AFL-CIO and the\naffirmative-action sword. At Yale Lav\ncame widely known, Judge Thomas gave\nACLU.\"\nSchool. he sat in the back of classrooms in\nspeeches criticizing him-more than Rep.\nThis reminiscence is from \"The People\nthe hope that professors would not notice\nGus Savage and others in the Black\nRising.\" a book celebrating how special in-\nhis race and assume he was less qualified.\nCaucus can say. Mr. Thomas international-\nterest groups defeated Robert Bork's nomi-\nOne of his happiest experiences at Yale\nized the EEOC by demanding rights for So-\nnation. This past July 1. four years to the\nwas when he went to pick up his blindly\nviet Jews. He was also the 1986 winner of\nday after the Bork nomination, many of\ngraded final exam in tax law. The secre-\nthe Humanitarian Award from the Union\nthe same groups went into high gear when\ntary handed him a copy of the best exam\nof Orthodox Jewish Congregations of\nPresident Bush nominated another conser-\nwhile she looked for his. He was thrilled to\nAmerica. recognized for his \"commitment\nvative. Will Clarence Thomas also die the\nsee that the model exam was his.\nto the right of all Americans to live free\ndeath of a thousand interest groups?\nHe ran into a double standard when law\nfrom discrimination based on race. reli-\n\"We're going to Bork him,\" Florence\nfirms recruited him. Instead of discussing\ngion or national origin and your support\nKennedy said of NOW's game plan. \"We're\nhis favorite legal subjects-tax and corpo-\nfor the rights of Sabbath observers.\"\ngoing to kill him politically\nThis\nlittle\nrate law-lawyers would only tell him\nHe Has a Weird Personal Life. There\ncreep. where did he come from? The\nabout their minority hiring and public-in-\nwas a leak about Judge Thomas using ma-\nript calls for throwing up endless\nterest work. This is why Judge Thomas in-\nrijuana in college, which he disclosed when\nears: if there's enough smoke, there's\nstead became assistant attorney general in\nhe was appointed to the appeals court.\nexcuse. Recall how Alabama Sen. How-\nMissouri under John Danforth, who agreed\nThen there were reports that Mr. Thomas\neil Heflin explained that he voted against\nto treat him like anyone else.\nand his first wife had a bitter divorce. His\nMr. Bork because \"He had a strange life-\nOnly Liberals Can Cite Natural Rights.\nformer father-in-law said the two \"were\nstyle.\" Senators representing the liberal\nThe hypocrisy award goes to Harvard's\ncongenial and have remained so,\" telling\nplantation must see a conservative black\nLaurence Tribe. After a career of urging\nthe Boston Herald that \"I'm very proud of\nas the very definition of a strange life-\nliberal judges to look beyond the Constitu-\nClarence, my whole family is.\" It's been\nstyle. The attempted smears so far:\ntion. he criticized Judge Thomas for writ-\nreported that Judge Thomas hung a Con-\nHe's Catholic. Judge Thomas's Catholic\ning about natural\nfederate flag in his Missouri office, but the\nupbringing is code for the assumption that\nrights. which he\nflag was the Georgia State flag. which\nhe finds no constitutional right to abortion.\nhasn't invoked as a\nJudge Thomas displayed in mischievous\nThe abortion issue has already returned to\njudge. He had a nar-\npatriotism for his home state. Perhaps try-\nthe state legislatures following the Webster\nrow purpose for\ning to repeat the infarnous scoop of the vid-\ndecision but. fresh from his grudge match\nthinking about natu-\neotapes Mr. Bork had rented. reporters pe-\nwith Chuck Robb. Virginia Gov. Douglas\nral rights when he\nrused the books Judge Thomas stores in\nWilder asked. \"How much allegiance does\nran the Equal Em-\nhis garage. They found such lascivious ma-\n(Judge Thomas) have to the pope?\" The\nployment Opportu-\nterial as books by Ayn Rand. Alexander\nJohn Kennedy precedent aside, the Consti-\nnity Commission.\nSolzhenitsyn and Alexander Pope.\ntution says \"no religious test shall ever be\nThis is that he\nThese mudballs have not stuck. but the\nrequired as a qualification to any office.\"\nthought Brown v.\ninterest groups know they have until the\nThis non-issue may be moot. Judge\nBoard of Education\nSeptember hearings. Judge Thomas and\nThomas attends the Truro Episcopal\ndid not go far\nthe country deserve a debate on the Consti-\nChurch in Virginia.\nenough because it\ntution, original-intent jurisprudence and ju-\nHe's Not Black. Derrick Bell, a Har-\nrelied on sociologi-\nClarence Thomas\ndicial restraint. Instead, we will get end-\nvard law professor, declared that Judge\ncal evidence more than legal principle to\nless smears that liberals hope will post-\nThomas \"doesn't think like a black.\" Col-\noverrule the separate-but-equal doctrine.\npone their greatest fear-a conservative\numnist Carl Rowan said, \"If you gave\nblack justice who will help legitimize a\nClarence Thomas a little flour on his face.\ncompeting social and legal view.\nyou'd think you had David Duke talking.\"\nUgly, but nothing new. \"Here's a strange\nblack.\" Judge Thomas says about how peo-\nple see black conservatives. \"Let's go see\nif he has two heads and a tail.\"\nWEDNESDAY. JULY 10. 1991 A21\nBut we don't know black conserva-\nMaybe he really does believe that\ntives-we doubt that it is legitimate\nthere's nothing the government can\neven to be a black conservative. What\nor should do about entrenched\nWilliam Raspberry\nThomas is speaks SO loudly to us that\nracism, but I doubt it. I hear him the\nwe cannot hear what he says.\nsame way I hear Wilder and Jackson\nThomas\nNone of this, I should note, speaks to\nand scores of other plain-spoken\nThemas's fitness for the Supreme\nblacks. I hear him saying with Wilder\nCourt. He wouldn't have been my\nthat blacks are foolish to wait for\nchoice. But then no one likely to be\nwhites to deliver us, that we must\nLnd the\nappointed by a conservative Republican\nreturn to the old values that worked\npresident would be my choice. I believe\nfor us in harsher times than these.\nthe court is too conservative al-\nthat we must \"redig the wells our\nready-too devoted to the privileges of\nfathers dug.\"\nBlack\nauthority and too uncaring about the\nAnd I hear him saying with Jackson\nrights of ordinary people, too wrapped\nthat whatever succor may exist in big-\nup in governmental theory and too\nger budgets and greater concession\nfrom the larger society, there will re-\nMainstream\ninnocent of experience as outsiders in a\nsociety dominated by white men.\nmain work that only we can do, that\nGiven an unfettered choice, I'd opt\n\"nobody can save us for us-but us.\"\nfor a liberal whose bona fides include a\nThe speaker. having recounted his\nhistory of concern for the underdog.\nown humble, race-restricted origins,\nBut the choice isn't unfettered.\nurged his NAACP audience to take\nWe're playing \"Let's Make a Deal\" with\n\"pride in endeavor and accomplish-\na host who offers us a choice between a\nment, discipline of mind and body\nserviceable Chevrolet and a goat, and\nnot succumbing to those who talk about\nwe're holding out for a curtain that\ntaking shortcuts.\" The young people in\nconceals (we hope) a Mercedes Benz\nthe audience, he counseled. shouldn't\nwith an interior designed by Thurgood\nbe afraid to accept menial jobs or to say\nMarshall. Well, there's no Benz behind\n\"yes, sir\" and \"yes, ma'am,\" if that is\nany of the curtains. If we're not pre-\nwhat it takes to get where they want to\npared to deal with the goat, we'd better\ngo. \"If you know you have to be doubly\ntake the Chevy.\nprepared, be doubly prepared. and then\nGranted it's a strange Chevy. We\nget on with doing the job.\"\ndon't know many black Americans in\nHe cautioned against race-specific\nhigh places who will dismiss affirmative\napproaches to solving the problems\naction out of hand, or who will argue\nthat confront black people. \"Only when\nagainst government catch-up programs\nAmerica understands that they are not\nfor blacks or who will align themselves\nproblems but American problems\nwith conservative politicians. We've\ne be able to solve them.\" Three\nseen conservatism and racism wearing\ntrungs about that speech. delivered five\nthe same garb SO often that we've\nyears ago and greeted with near-unani-\ncome to believe you can't have one\nmous enthusiasm:\nwithout the other.\nFirst. the speaker was a lawyer\nWell, I'm not convinced. At least\nworking for the government, not a\nsome of Thomas's conservatism finds\nnominee for the Supreme Court. Sec-\nechoes in black America, including\nond. it wasn't Clarence Thomas: it was\nthe black establishment. Note the re-\nDoug Wilder. then lieutenant governor\nmarks of Jackson and Wilder. And the\nof Virginia. And third. the remarks\nrest of it, no matter how much I\nwere well within the mainstream of\nmight reject it, is inevitably tempered\nblack thought. A full decade earlier,\nby his experience as a black man\njesse Jackson was warning against the\nwhose own opportunities have been\nrhetoric that leads black youngsters to\nblunted by racism.\nsee themselves as society's victims\nAs a friend of mine puts it, \"Given a\nrather than as human beings capable of\nchoice between two conservatives, I'll\ncontrolling their own destinies. \"No-\ntake the one who's been called 'nig-\nbody can save us from us-but us,\" he\nger.'\nused to say.\nI believe with this friend that\nWhy is it that when a Wilder or a\nThomas is sufficiently acquainted\nJackson says these things they are\nwith racism to recognize it when it\ntaken as necessary, if uncomfortable,\ncomes before him on the Supreme\ntruth, but when a Thomas says them\nCourt, that he is independent enough\nthey are taken as evidence of personal\nnot to see the critical issues in the\nsmugness, of his lack of interest in the\nlight of his own experience and that\nplight of his own people?\nhe is smart enough to find in the\nThe reaction, it seems to me, is less\nConstitution protection against the\nto what is said than to who says it. We\npresumptions of white privilege.\nknow who Jackson and Wilder are-\nfor their battles waged on behalf\n:ks and for their allegiance to\nDemocratic politics, which has\nbecome the black political orthodoxy.\nST.LOUIS POST-DISPATCH\nSUNDAY, JULY 28, 1991\n3B\nThe Clarence Thomas I Know\nHis Life Is The Embodiment Of The Values Our Nation Prizes\nClarence was a great conversationalist. Because he had\nBy Alex V. Netchvolodoff\nliterally grown up with discrimination. I was particularly inter-\nc\nlarence Thomas is a black man from rural Pinpeint. Ga.\nested in his views on civil rights. He had absorbed the thinking\nHe was born to an impoverished family with an absentee\nof America's black leaders through the prism of his grandfa-\nfather. an overworked mother. a home without plumb-\nther's values. Clarence applauded Booker T. Washington's\ning and a very bleak future. Yet Clarence Thomas has just been\nemphasis on black education. From W.E.B. DuBois, he bor-\nnominated by President Bush to serve as associate justice of\nrowed an aggressive and unbending contempt for discrimina-\nthe U.S. Supreme Court.\ntion and social injustice. From Martin Luther King, he advocat-\nAt an early age, Clarence was sent to live with his maternal\ned nonviolence and social reconciliation. From Malcolm X, he\ngrandparents. For him, it was a turning point. He became the\nembraced the imperatives of black independence, pride and\nobject of his grandfather's unrelenting attention and expecta-\nself-help. And from Thomas Sowell, he accepted free markets\nand hard work as the best path\ntions. \"work hard and then\nto economic justice. While argu-\nwork even harder; be self-reli-\ning that the full force of the law\nant: get a decent education; be\nand the moral authority of soci-\nfaithful to your vision of person-\nety should be marshaled\nal achievement and, by example,\nagainst racial discrimination,\nto your own people's struggle.\"\nhe rejected as counterproduc-\nClarence has been living up to\ntive numerical goals and quotas\nhis grandfather's expectations\nin schools and the work place.\never since.\nAs chairman of the Equal\nThomas' growing up was stark.\nEmployment Opportunity Com-\nHe had more than a full-time job\nmission, Clarence had a chance\non his grandfather's truck, but\nnevertheless. he excelled at his\nto put these values into action.\nHe had inherited a demoral-\nall-black parochial school. There\nized, directionless agency. Sev-\nwas little time and money for\neral years later, Clarence\ndiversion. Even so, Clarence dis-\nproudly showed me around. De-\ndained Savannah's segregated\nspite congressional budget cuts,\nmovie theaters and restaurants.\nhe had reorganized EEOC's fi-\nInstead, he satisfied his appetite\nnances, personnel and docket.\nfor books at an all-black library.\nThe staff was upbeat and proud\nClarence left Savannah for\nof its accomplishments. New\nHoly Cross College with his wits\nenforcement records had been\nand a few dollars in the sole of\nhis shoe. He founded the Black\nset. Upon Thomas' departure to\nthe U.S. Court of Appeals. the\nStudents' Union and began to\nnew EEOC headquarters was\nconsider how blacks could suc-\nnamed after him.\nceed in a white society. He grad-\nClarence Thomas is an au-\nuated with honors and went on to\nthentic American hero. His life\nYale Law School, where he\nis the embodiment of the values\nserved as a student volunteer at\nthat our nation prizes. He has\nthe New Haven Office of Legal\ndeveloped, with singleness of\nAssistance.\npurpose, an inquiring and pene-\nI first met Clarence Thomas in\ntrating mind. He has pursued.\n1974 when I flew him to Jeffer-\nwith equal tenacity, his vision of\nson City as part of an effort to\nrecruit him as an assistant attorney general. He had to know\nself-improvement. He has served loyally as a role model for his\nhow every gauge and every control worked on that plane. His\nown people. He has refused to bend to bigotry and discrimina-\nexuberant curiosity and penetrating mind were striking. By the\ntion. He has turned the other cheek. He has advocated a vision\ntime we arrived, he was practically flying the plane, and he\nfor social and economic justice that is focused on education and\nself-reliance, rather than on condescension and reprisal.\nwas great company in the process.\nAt his job interview, Clarence interviewed us! He wanted to\nHe is open-minded, but he calls things as he sees then. He is\nbe assigned the toughest litigation and a heavy workload. He\nforever linked by history and by personal memory to those in\ngot his wish - and he delivered. As Thomas was leaving state\nour society who are weak, fragile or different. Who better to\ngovernment for the climes of a corporate law practice at\nrepresent us in the Supreme Court of the United States of\nMonsanto, Robert Dowd, presiding judge of the Missouri Court\nAmerica than Clarence Thomas?\nof Appeals. noted that Clarence was one of the best prepared\nI, for one, am proud to tell his story, and I look forward to his\nand most effective lawyers to appear in his court.\nservice on the court for the challenge to us and the surprises\nThomas was also a person of great self confidence and\nfor us that I know it will bring.\nintegrity. He once told the attorney general (who had suggested\nthat Clarence show a bit more political sensitivity) that if the\nattorney general wanted a political opinion instead of a legal\nopinion. then he should go find a politician rather than a lawyer\nto write it. The opinion was issued as Thomas had drafted it.\nINTERVIEW\nAnd in the interim they encourage us to\nbelieve that redress is our power. I don't\ntake any simpleminded black-and-white\nNothing Is Ever Simply\nview and say racial preferences have nev-\ner done a bit of good for anybody. All\nI've tried to do is point out the down side\nBlack and White\nand that we've probably come to the\npoint where they are doing more harm\nthan good.\nOutspoken author SHELBY STEELE defends Clarence\nThomas and argues that too many African Americans see\nQ. Are you letting white people off the hook?\nthemselves as victims\nA. I don't mean in any way to let white peo-\nple off the hook. I think as American citi-\nA. Clarence Thomas is considered a conser-\nzens, they have a profound responsibility\nBy SYLVESTER MONROE MONTEREY\nvative today because of the context, and the\nto black Americans. I favor every form of\nQ. Why are so many African Americans con-\ncontext is that for the past 25 years civil\naffirmative action except preferences. I fa-\ncerned about Clarence Thomas' nomination\nrights organizations have focused one-di-\nvor the government improving the educa-\nto the Supreme Court?\nmensionally on our oppression and de-\ntion system in the inner cities. I favor pro-\nA. On the deepest level, he touches the\nmanded redress based on that. Well, here\ngrams that go down to the teenage mother\nvery soul of the debate in black Ameri-\ncomes a man in 1991 who stands for self-\nand try. to break that cycle of poverty by\nca, which is a debate between using the\nhelp, and so he is anathema. The principle\nteaching her parenting skills.\nThe most important thing that people\nwho have been victimized can under-\nANDY FREEBERG FOR TIME\n\"I don't say racial\nstand, whether it is fair or unfair, and it\ncertainly is not fair, is that change will\npreferences have\nhave to come from themselves. Thomas\nnever done a bit of\nand I are not hardhearted people who\nare simply saying, \"Get up off your butt,\ngood for anybody.\npull yourself up by your bootstraps.\" We\nAll I've tried to do\nneed government intervention to help us.\nis point out the\nBut we've also got to help ourselves. Op-\nportunity follows struggle. It follows ef-\ndown side and that\nfort. It follows hard work. It doesn't\nwe've probably\ncome before.\ncome to the point\nQ. You once said that liberals are no friends\nwhere they are\nof blacks. What did you mean?\ndoing more harm\nA. Watch out that your closest friend may\nbe your greatest enemy, is my feeling about\nthan good.\"\nliberals, because they encourage us to\nidentify with our victimization. It is one\nthing to be victimized; it is another to make\nan identity out of it. I am not willing to be a\nboy because I am inferior, and I am not go-\ning to be a boy because I am a victim. I re-\nject both avenues to being a boy. The one\nthing a white liberal can never do with a\nblack is be honest and tell him what he tells\nprinciple of self-sufficiency as a means\nof self-reliance seems to devalue victimiza-\nhis own children.\nto power as opposed to using our history\ntion as a source of power. I don't think it\nof victimization. We have taken our\nnecessarily does, but it seems to. And so\nQ. Which is what?\npower from our history of victimization,\nThomas seems to be against the interests of\nA. Which is that you have to work hard and\nwhich gave us an enormous moral au-\nblack people merely by standing for self-re-\nyour life in many ways will reflect the\nthority and brought social reforms, to\nliance. He's not remotely anti-black. He's\namount of effort you put into it. They teach\nthe neglect of self-reliance and individ-\njust asking that we develop another source\nthat every day to their own children, but\nual initiative. And now, any time you\nof power.\nthen they come out in public and talk about\ntalk about self-reliance in relation to\nblacks as just victims who need redress.\nblack problems, you are automatically\nQ. You have said that you are against prefer-\nThis is racial exploitation by white liberals,\nconsidered a conservative.\nential treatment, not affirmative action per se.\nwho transform this into their own source of\nBut the widespread perception is that you\npower. We're being had by them, and we\nQ. You don't consider yourself a conservative?\nare anti-affirmative action, and so is Clar-\nreally need to know that.\nA. No. I think of myself more as a classical\nence Thomas.\nLiberals are screaming for racial pref-\nliberal. I focus on freedom, on the sacred-\nA. What I've tried to say, and I think\nerences. But as soon as they give you the\nness of the individual, the power to be found\nClarence Thomas stands for pretty much\npreference, they hold it against you. \"Hey,\nin the individual.\nthe same thing, is that by opposing racial\nyou were helped by affirmative action,\"\npreferences we stand for black strength\nthey say about Clarence Thomas. \"You\nQ. But other black thinkers from Booker T.\nrather than weakness. The thing that dis-\nwouldn't be where you are if it was not for\nWashington to Malcolm X to Jesse Jackson\nturbs me about affirmative action, about\naffirmative action.\" That's one reason I\nhave preached self-reliance, and nobody\npreferences, is that they can and will be\nhave a problem with preferences. How can\ncalled them conservatives.\ntaken away. They will diminish over time.\nhe win? He can't.\n6\nTIME, AUGUST 12, 1991\nSeldane\nINTERVIEW\n(terfenaone 60 mg Tablets\nBRIEF SUMMARY\nQ. How much impact does racism have on\nhimself. Now you are going to take that\nCAUTION Federal law prohibits dispensing without prescription.\nthe lives of black Americans?\nDESCRIPTION\naway from him and say he made it because\nSeidane (terfenadine) IS available as tablets for oral administration Each tablet\nA. I think being lower class has a much\nof affirmative action. He didn't have affir-\ncontains 60 mg terfenadine Tablets also contain. as inactive ingredients. corn\nstarch gesatin. lactose. magnesium stearate. and sodium bicarbonate.\nINDICATIONS AND USAGE\ngreater impact. You and I both know, as a\nmative action back there in Pin Point, Ga.\nSeldane IS indicated for the relief of symptoms associated with seasonal allergic\nrhinitis such as sneezing. rhinorrhea. pruntus. and lacrimation\nmiddle-class black you can send your kid to\nHis grandfather made him go to school and\nCONTRAINDICATIONS\nany school you want. But if you and I were\nstudy hard, and then he gets into the posi-\nSeidane 5 contraindicated in patients with a known hypersensitivity to terfena-\ndine or any of its ingredients.\non the South Side of Chicago and not do-\ntion where, yes, maybe he could benefit.\nPRECAUTIONS\nGeneral Terfenadine undergoes extensive metabolism in the Irver. Patients with\ning very well economically, then clearly you\nBut if all that early work had not been\nimpaired hepatic function (alcoholic cirrhosis. hepatitis). or on ketoconazole or\ntroleandomycin therapy. or having conditions leading to QT prolongation (e.g.\nwould not be able to send your kid to what-\ndone, we wouldn't know Clarence Thomas\nhypokalemia congenital QT syndrome) may experience QT prolongation and/or\nventricular tachycardia at the recommended dose The effect of terfenadine in\never school you wanted. At this point,\ntoday.\npatients who are receiving agents which alter the QT interval IS not known These\nevents have also occurred in patients on macrolide antibiotics. including\nclass, poverty and isolation are far more\nerythromycin. but causality IS unclear. The events may be related to altered\nmetaboism of the drug. to electrolyte imbalance. or both.\ndifficult variables for blacks than racism.\nQ. What are you telling young blacks?\nInformation for patients Patients taking Seldane should receive the following\ninformation and instructions. Antihistamines are prescribed to reduce allergic\nThat does not mean racism is gone; I think\nA. The most important thing for young\nsymptoms Patients should be questioned about pregnancy or lactation before\nstarting Seidane therapy. since the drug should be used in pregnancy or lacta-\nyou'll meet it wherever you go. But it does\nblack people to do is what you and I did-\ntion only if the potential benefit justifies the potential risk to fetus or baby.\nPatients should be instructed to take Seidane only as needed and not to exceed\nnot have the power to contain your life that\nbecome educated. If you are educated,\nthe prescribed dose. Patients should also be instructed to store this medication\nin a lightly closed container in a cool, dry place. away from heat or direct sun-\nit used to have.\nthen at least you have some kind of chance.\nlight. and away from children.\nDrug Interactions: Preliminary evidence exists that concurrent ketoconazole or\nLearn to think, to read, to be in touch with\nmacrolide administration significantly alters the metabolism of terfenadine.\nConcurrent use of Seldane with ketoconazole or troleandomycin IS not recom-\nQ. According to you, there is a great deal of\nthe larger world. One of the saddest things\nmended Concurrent use of other macrolides should be approached with caution.\nCarcinogenesis mutagenesis. impairment of fertility Oral doses of terfenadine.\nopportunity that blacks are simply not taking\nI see is black students who say to me, \"I\ncorresponding to 63 times the recommended human daily dose. in mice for 18\nmonths or in rats for 24 months. revealed no evidence of tumorigenicity Micro-\nadvantage of. Many blacks disagree with\nonly read' black writers.\" And what they\nbial and micronucleus test assays with terfenadine have revealed no evidence of\nyou.\nreally mean is they are reading people like\nmutagenesis.\nReproduction and fertility studies in rats showed no effects on male or female\nA. It depends on how you define opportu-\nDon L. Lee and Louis Farrakhan. I say,\nfertility at oral doses of up to 21 times the human daily dose At 63 times the\nhuman daily dose there was a small but significant reduction in implants and at\nnity. I don't see opportunity in a one-\nHave you ever read any Jean-Paul Sartre?\n125 times the human daily dose reduced implants and increased postimplanta-\ntion losses were observed. which were judged to be secondary to maternal\ndimensional sense as something that is\nHave you ever read any Ralph Ellison or\ntoxicity\nPregnancy Category C: There was no evidence of animal teratogenicity Repro-\nsimply there either waiting or not waiting\nAlbert Murray or James Baldwin? Nope.\nduction studies have been performed in rats at doses 63 times and 125 times\nthe human daily dose and have revealed decreased pup weight gain and survival\nfor somebody to come and grab it. I think\nBut they read Don L. Lee's tract on what a\nwhen terfenadine was administered throughout pregnancy and lactation There\nare no adecuate and ell-controlled studies in pregnant women Seldane should\nof opportunity as something that one cre-\nblack man should be, as though this is dif-\nbe used during pregnancy only if the potential benefit justifies the potential nsk\nto the letus\nates, that you generate opportunities for\nferent from what any man should be. And\nNonteratogenic effects Seldane IS not recommended for nursing women. The\ndrug has caused decreased pup weight gain and survival in rats given doses 63\nyourself.\nso there's this sort of intellectual segrega-\ntimes and 125 times the human daily dose throughout pregnancy and lactation\nEffects on pups exposed to Seldane only during lactation are not known. and\nA Jewish woman told my brother\ntion that I think is absolutely a death knell\nthere are no adequate and well-controlled studies in women during lactation.\nPediatric use Safety and effectiveness of Seidane in children below the age of 12\nsomething I think is absolutely vital for\nfor our future.\nyears have not been established.\nADVERSE REACTIONS\nblack people to understand. It was a simple\nExperience from clinical studies. including both controlled and uncontrolled\nstudies involving more than 2.400 patients who received Seldane. provides\nphrase: \"Don't wait for people to love\nQ. Many blacks accuse you of allowing your-\ninformation on adverse experience incidence for penods of a few days up to SIX\nmonths The usual dose in these studies was 60 mg twice daily. but in a small\nyou.\" We are too preoccupied with wheth-\nself to be used by white neoconservatives,\nnumber of patients. the dose was as low as 20 mg twice a day. or as high as 600\nmg daily\ner white people love us or not, whether\nwho are no longer willing to deal with the\nIn controlled clinical studies using the recommended dose of 60 mg b.i.d. the\nincidence of reported adverse effects in patients receiving Seldane was similar\nthey are racist or not, what they think\nproblems of race and poverty.\nto that reported in patients receiving placebo. (See Table below.)\nabout the color of our skin or the texture of\nA. Some of them do use me, and I think\nADVERSE EVENTS REPORTED IN CLINICAL TRIALS\nour hair. Who cares? We have to go for-\nsome of them do not have the best interests\nPercent of Patients Reporting\nward and make our own opportunities.\nof black Americans at heart. But if every-\nControlled Studies'\nAll Clinical Studies**\nAdverse\nSeldase\nPlacebe\nControl\nSeldane\nPlacebe\nEvent\nN=626***\nbody is hip enough to ask me this question,\nN=781\nN=665\nN=2462\nN=1478\nQ. You've told me that you admired your fa-\nthen my use to the neoconservatives is\nCentral Nervous System\nDrowsiness\n90\n81\n18.1\n85\n82\nther and that he saved your life, taking you to\nneutralized.\nHeacache\n63\n74\n38\n15.8\n112\nFatique\n29\n09\n58\n45\n3.0\nDizziness\n14\n1.1\n10\n15\n1.2\nthe YMCA when other black parents said it\nIn many ways, the fear that I'm being\nNervousness\n0.9\n02\n06\n17\n1.0\nWeakness\n09\n0.6\n0.2\n06\n0.5\nwas too far to go or too expensive. Clarence\nused by neoconservatives reflects a para-\nAppetite increase\n06\n00\n0.0\n0.5\n0.0\nGastrointestinal System\nThomas talks much the same way about his\nnoia that has always been part of black life,\nGastrointestinal Distress\n(Abdominal distress.\nNausea vomiting.\ngrandfather. How do you duplicate that expe-\nand it is part of the life of any oppressed\nChange in Bowel habits)\n46\n3.0\n27\n7.6\n5.4\nEye Ear Nose and Throat\nrience for less fortunate blacks?\ngroup, a paranoia about what you say in\nDry Mouth Nose/ Throat\n23\n18\n3.5\n48\n3.1\nCough\n09\n02\n0.5\n2.5\n1.7\nA. This is one of the heartbreaking things\nfront of the Man because he'll use it\nSore Throat\n0.5\n03\n0.5\n32\n1.6\nEpistaxes\n00\n0.8\n02\n07\n0.4\nabout the politics of victimization. We\nagainst you. One of the things I stand for\nSiun\nEnuption (including rash\nhave always had the tradition of self-reli-\nand urticaria) or itching\n10\n17\n14\n16\n2.0\nmore deeply than anything else is that I do\nance in the black community, but this tradi-\nnot see the white man as all that powerful,\n\"Duration of treatment in CONTROLLED STUDIES was usually 7-14 DAYS.\n\"Duration of treatment in ALL CLINICAL STUDIES was up to 6 months.\ntion gets squashed because it conflicts with\nall that smart. Blacks really need to begin\nCONTROL DRUGS: Chiorpheniramine (291 patients). d-Chiorpheniramine (189\npatients). Clemastine (146 patients).\nvictimization. We think we are here be-\nto understand that these people do not\nRare reports of severe cardiovascular adverse effects have been received which\ninclude armythmias (ventricular tachyarmythmia. torsades de pointes. ventricu-\ncause of affirmative action, but we are not.\ncontrol our fate as much we think they do.\nlar fibriliation) hypotension. paipitations. and syncope in controlled clinical\ntrials in otherwise normal patients with rhinitis. at doses of 60 mg b.i.d. small\nWe are here because of those people who\nincreases in QTc interval were observed Changes of this magnitude in a normal\npopulation are of doubtful clinical significance However, in another study (N=20\nlet us get into a position to be able to take\nQ. What has this debate and being labeled a\npatients) at 300 mg b.i.d. a mean increase in QTc of 10% (range -4% to +30%)\n(mean increase of 46 msec) was observed without clinical signs or symptoms.\nadvantage of what society was trying to do\nblack conservative done to Shelby Steele?\nin addition to the more frequent side effects reported in clinical trials (See Table).\nadverse effects have been reported at a lower incidence in clinical trials and/or\nfor us. But this victimology causes us to de-\nA. It has put a lot of stress on me. It's not fun\nspontaneously during marketing of Seldane that warrant listing as possibly\nassociated with drug administration These include alopecia (hair loss or thin-\nnounce as a race our greatest source of\nto be labeled when you know that it's very\nning). anaphylaxis. angioedema. bronchospasm. confusion. depression. galac-\ntorrhea insomnia. menstrual disorders (including dysmenorrhea).\nstrength, which is people like that, who\nshortsighted. On the other hand. overall I\nmusculoskeletal symptoms. nightmares. paresthesia. photosensitivity. seiz-\nures. sinus tachycardia. sweating. tremor. urinary frequency. and visual\nought to be held up as role models.\nam very, very happy because I think the\ndisturbance\nClarence Thomas ought to be held up\nterms of the debate have been really opened\nIn clinical trials. several instances of mild. or in one case. moderate transamin-\nase elevations were seen in patients receiving Seldane Mild elevations were\nas a role model. But no, we say, he made it\nup. I don't think things will ever be the same\nalso seen in placebo treated patients Marketing experiences include isolated\nreports of jaundice. cholestatic hepatitis. and hepatitis. In most cases available\nby himself too much. He's not a victim. We\nagain. And I think Clarence Thomas' nomi-\ninformation IS incomplete\nOVERDOSAGE\ndon't want him.\nnation drives that nail home. There will now\nInformation concerning possible overdosage and its treatment appears in Full\nPrescribing information\nforever more be diversity of opinion in the\nDOSAGE AND ADMINISTRATION\nOne tablet (60 mg) twice daily for adults and children 12 years and older\nQ. But one major criticism of Thomas is that\nblack community. People will think about\nProduct information as of July 1990\nMARION MERRELL DOW INC.\nhe thinks he did make it all by himself.\nthese things a great deal more than they did\nPrescription Products Division\nSELAE 302/A1895\nKansas City MO 64114\n6130B1\nA. This is the shortsightedness of victim-\nwhen we were a sort of one-party system. I\nology. You're goddam right he made it by\nfeel very good about that.\nTIME, AUGUST 12, 1991\nThe Washington Post\nJudge Thomas (Cont'd.)\nS\nINCE JUDGE Clarence Thomas's nomina-\nto the profile of the man that has emerged in the\ntion to serve on the Supreme Court, a host\ndebate so far. \"There is a tendency among young,\nof interest groups and prominent individuals\nhave weighed in with their opinions. While most\nupwardly mobile, intelligent minorities to forget,\"\nhe said. \"We forget the sweat of our forefathers.\nof the offerings from both sides have been\nthoughtful and judicious, a few uninformed, silly\nWe forget the blood of the marchers, the prayers\ncomments have crept into the discussion. To\nand hope of our race.\" In that speech, Judge\nspeculate about Judge Thomas's fate were he\nThomas decried the erosion of those positive\nwhite (he's not) or to argue that he is a \"quota\"\nvalues that have enabled generations of African\ncandidate is a good political shot to take at\nAmericans to endure and overcome the worst\nanti-quota George Bush, but off the mark so far\nthis nation has had to offer. His warning was\nas the nominee is concerned. What matters are\ndirected particularly toward the younger genera-\nhis qualifications and fitness to serve on the\ntion in our inner-cities who must bear the burden\ncourt. On that score, more voices will be heard\nof broken homes, joblessness, crime and depen-\nfrom in the weeks leading up to his September\ndency.\nconfirmation hearings. As the smoke clears from\nBut his was not a message of hopelessness. \"Do\nthis initial volley, however, Judge Thomas's nom-\nnot become obsessed with all that is wrong with\nination seems to us to have taken no disqualifying\nour race,\" he said. \"Rather, become obsessed\nblow.\nwith looking for solutions to our problems. Be\nIt's not as if he were a total stranger. His\ntolerant of all positive ideas; their number is\nrecord of government service, particularly the\nmuch smaller than the countless number of\ncivil rights enforcement record at the Equal\nproblems to be solved. We need all the hope we\nEmployment Opportunity Commission, is there\ncan get.\"\nfor examination. Having covered much of that\nFrom this and other speeches and writings, our\nterritory only a year and a half ago during the\nsense is that Judge Thomas understands the\nconfirmation process for his position on the\nAmerica in which he lives and well knows that\nappellate court, the Senate, which approved him\nmuch of what this nation offers is conditioned on\nthen, will be revisiting familiar ground. His quali-\nskin color and that discrimination is found across\nfications, judicial philosophy and views on that\nbody of constitutional law and statutory rights\nthe length of the land. It is not so much his\nthat protect individual freedoms will be scruti-\nconservative political ideology as his personal and\nnized once more, as they should be. Again, based\npublic life experiences that have made him less\non the totality of what is known about Judge\nsanguine about the ability of law and social policy\nThomas, it is quite a reach if not unfair to brand\nto solve by themselves those problems that\nhim a \"reactionary\" and one whose \"confirmation\nweigh most heavily on black America. That, it\nwould be inimical to the best interests of African\nseems, is the genesis of his frequent pitches for\n.Americans\" as the NAACP did this week.\nreliance on hard work and discipline, pride, self-\nSome excerpts from a speech he gave in 1985\nrespect and acceptance of responsibility by black\nto the graduates of Savannah State College, a\nAmericans for their own destiny. His record will\nhistorically black institution, which were printed\nand should get a closer look next month. But it is\nin the New York Times, add a useful dimension\nimportant now not to caricature his views.\nAUGUST 5, 1991\nQUOTES ABOUT JUDGE THOMAS\nWHAT OTHERS ARE SAYING ABOUT JUDGE THOMAS\nAlvares, Fred. (former Commissioner, EEOC) \"He totally turned\naround the management and reputation EEOC had.\" Los Angeles\nTimes: July 7, 1991 \"The commission [EEOC] became a much\nstronger government agency in the years he was there. Miami\nHerald: July 11, 1991\nAshcroft, Governor John. (Governor, Missouri) \"Thomas possesses\nthe highest standards of honesty, integrity, and ethical conduct.\nHis judicial intellect is superb. His life serves as an\n1991 inspiration for all Americans.\" St. Louis Post-Dispatch: July 2,\nBell, Griffin. (former United States Attorney General) \"The\npeople who think that we're entitled to have a black on the\nSupreme Court but only a liberal black, they will vote against\nhim. But I can't imagine that there are too many senators like\nthat. Whoever heard of such an argument that only a liberal\nblack can be on the Supreme Court. What kind of country do we\nhave where people would take that position?\" Associated Press:\nJuly 9, 1991\nBoicourt, Michael. (Chief Counsel, Office of the Missouri\nAttorney General) \"Personally, there is a great dignity and self-\nconfidence about him. He wore a sense of purpose about him that\nwas almost overwhelming. He charmed and conquered everyone of all\nkinds of persuasions.\" Chicago Tribune: July 2, 1991\nCiviletti, Benjamin. (former United States Attorney General) \"I\nthink the President made a good choice. I think he put quality\nand qualifications ahead of minority quotas.\" Baltimore Evening\nSun: July 2, 1991\nDanforth, senator John. (United States Senator, Missouri)\n\"[Thomas] would have great empathy for the ordinary person. In\nmany ways, Clarence Thomas is the people's nominee for the\nSupreme Court.\" St. Louis Post-Dispatch: July 9, 1991. \"The\nclear message from those I visited was that Clarence Thomas had\ntransformed the EEOC from the dregs of the federal bureaucracy to\nan efficiently operating agency, which was effectively performing\nthe duties Congress had assigned to it. St. Louis Post-Dispatch:\nJuly 17, 1991 \"If anyone thinks that Clarence Thomas is a\npre-determined vote on any particular issue, that individual does\nnot know Clarence Thomas. He is fiercely independent.\" St. Louis\nPost-Dispatch: July 9, 1991\nDeConcini, Senator Dennis. (United States Senator, New Mexico)\n\"I'm impressed with him. He has a lot of experience. He's a\ngood writer. He's a conservative. That's positive as far as I'm\nconcerned.\" Associated Press: July 7, 1991.\nGoldstein, Barry. (former attorney, NAACP Legal Defense Fund)\n\"The EEOC policy seeking full relief for victims of intentional\nJuly 2, 1991\ndiscrimination was a positive step. St. Louis Post-Dispatch:\nHatch, Senator Orrin. (United States Senator, Utah) \"This man is\nhighly 1991 qualified and very, very capable.\" Boston Herald: July 2,\nHeflin, Senator Howell. (United States Senator, Alabama) \"He has\na 1991 good academic background.\" United Press International: July 11,\nHooks, Benjamin. (Executive Director, NAACP) \"When it comes to\nindividual discrimination, his record is pretty clear. If a black\nor woman has been individually discriminated against or\nmistreated he'll go to the ends of the earth to correct it.\"\nAssociated Press: July 24, 1991\nJackson, Alphonso. (Executive Director, Dallas Housing Authority)\n\"Clarence has the greatest appreciation for Thurgood Marshall,\nfor Martin Luther King. He knows, he truly knows, that without\nthem we would not be where we are. And that's why he believes\npeople must be judged on merit and not on the color of their\nskin. We've all had experiences with racism, but he did not use\nthose experiences as a crutch. He used them as a propeller.\"\nDallas Morning News: July 2, 1991\nKeith, Judge Damon. (Judge, United States Court of Appeals, 6th\nCircuit) \"If I or a member of my family were in trouble, he is\nthe kind of person I'd like to appear before. Our judicial\nphilosophy may not be the same, but he is a bright and reflective\nman who believes passionately in fairness. I say this without\nabout him.\" Wall Street Journal: July 2, 1991\nreservation, and in full knowledge of all the people who complain\nKemp, Evan J. (Chairman, EEOC) \"He made the EEOC a first-rate law\nenforcement agency where people were proud to say they worked.'\nAssociated Press: July 2, 1991.\nLecraft Henderson, Judge Karen. (Judge, United States Court of\nAppeals, DC Circuit) \"Clarence Thomas is the American dream\npersonified.\" Associated Press: July 1, 1991\nLeighton, Richard J. (attorney who argued case before Judge\nThomas) \"Judge Thomas' decision in the case [Alpo Petfoods V.\nRalston Purina] has been cited often, and is being discussed in\nall the seminars on the Lanham Act (a federal law on false\nadvertising). It's an extraordinarily clear opinion that's\npiece of fluff.\" Associated Press: July 2, 1991\nwritten in a scholarly fashion. This was a weighty opinion, no\nLits, Judge Arthur. (Judge, Circuit Court of St. Louis County)\n\"I have known Judge Thomas for over 15 years. He first appeared\nbefore me as Assistant Attorney General of Missouri in an\nimportant case having statewide effect. I immediately was struck\nnot only by his demeanor, superior knowledge and presentation of\nthe law, but his fine personality and warmth. The country will\ngreatly benefit from the acumen, knowledge, and attitude of such\na fine gentleman, lawyer, and judge.\" Letter of Recommendation\nto President Bush: June 28, 1991\nMikva, Judge Abner. (Chief Judge, United States Court of Appeals,\nDC Circuit) \"He has been a very good colleague.\" Wall Street\nJournal: July 2, 1991\nNunn, Senator Sam. (United States Senator, Georgia) \"My intention\nright now is to support him, and I'll be having warm words of\nsupport at the hearings.\" Atlanta Constitution: July 17, 1991\n\"Clarence comes from a background of a segregated society, and I\nthink over a period of time, if he is on the court, he will be\nvery sensitive to discrimination.\" Washington Times: July 17,\n1991\nQuevedo, Frank. (former Chairman, Mexican-American Legal Defense\nand Education Fund) \"[Thomas] made this agency (EEOC)\nresponsible to the concerns of Hispanics, in word and in deed.\"\nAssociated Press: July 25, 1991\nRichey, Judge Charles R. (Judge, United States District Court\nfor the District of Columbia) \"I like Clarence Thomas. He's\nknowledgeable about the law. 1 think that he has all the\nsensitivities required to be a great justice.\" Associated Press:\nJuly 1, 1991.\nRobinson, Judge Aubrey. (Chief Judge, United States District\nCourt for the District of Columbia) \"[Thomas is] a very\nhardworking person He'll be very conscientious.\" Savannah\nMorning News: July 5, 1991\nsantaniello, Judge Angelo. (Justice, Connecticut Suprame Court)\n\"How would I describe him? He's a very warm person. Humble,\npersonable, intense, straightforward with no airs. Clarence\nThomas is a real fair guy. He shouldn't be stereotyped, because\nhe won't walk a stereotyped line. Clarence calls it as he sees\nit, not as someone wants him to see it.\" New York Newsday: July\n17, 1991\nsilberman, R. Gaull. (Vice-Chairman, EEOC) \"He walked in the\ndoor, rolled up his sleeves and went to work and turned the\nagency around. Under Clarence Thomas' leadership, the agency\nfound its mission as a law enforcement agency and it attained a\ncredibility that it had never had before.\" Los Angeles Times:\nJuly 7, 1991.\nSpradling, James. (former Chairman, Missouri Department of\nRevenue) \"He's one of the best lawyers I ever ran into. St.\nLouis Post-Dispatch: July 2, 1991\nTHE WHITE HOUSE\nWASHINGTON\nJuly 25, 1991\nMEMORANDUM FOR EDE HOLIDAY\nFROM:\nGARY BLUMENTHAL\nSUBJECT:\nClarence Thomas Update\nWe do not have much to report at this time.\n1) Connie Newman's speech to the National Federation of Business\nand Professional Women's Clubs on July 22 reportedly went very\nwell. Nonetheless, they passed a resolution opposing him (see\nattached).\n2) Bobbie told me yesterday that Gwen King was connecting with\nthe National Association of Blacks in Government and that it\nshould work out for their July 29 - August 4 meeting.\n3) Just to repeat, Secretary Sullivan is likely to appear at the\nCatholic Golden Age Conference on August 15.\n4) We are still awaiting word whether Roger Wallace will do the\nTexas Hispanic Chamber of Commerce convention on July 27. Thus\nfar, we have failed with Carla Hills, John Negroponte, Mike\nFarren, and Jules Katz. It is Roger's last day as Dep. Und. Sec.\nbefore he heads for his new position as commercial counselor in\nMexico City. Therefore, it is a real inconvenience from a\npersonal standpoint. I called Shiree yesterday to check what she\nthought of Lujan or Madigan, but I havn't heard back from her.\n5) Both Alexander and Sullivan are working on the HBCU\nresolution. Remember that the goal is made just slightly more\ndelicate by the ambition of the HBCU Board to be physically\nlocated at the White House.\nIDEAS FOR THE FUTURE\nDan Casse of course claims the news in the next few weeks will be\ndominated by the William Kennedy Smith trial and the Milwaukee\nmass murder case. Nonetheless, a few wild thoughts for future\nactivities:\na. Alexander has found it very effective to challenge\naudiences to read the 1985 Clarence Thomas piece from the\nNew York Times in which he explains the basis for his\nphilosophy in life. Others may try a similar tack since\nreading Clarence Thomas is more persuasive then listening to\npressure groups.\n-2-\nPage Two\nb. The President may attend the September 11 Stan Scott\ndinner. The presence of many Black leaders could make it\nan opportune time to mention Judge Thomas.\nC. We can remind the Cabinet of the President's discussion\nof the nomination at the July 23 Cabinet meeting and suggest\nthey be prepared for him to possibly raise it again at the\nSeptember 4 Cabinet meeting (e.g. follow what he wants).\nPlease call if you have questions.\nRESOLUTION #10\nSUPREME COURT NOMINATION\nWHEREAS, the National Federation of Business and Professional\nwomen's Clubs, Inc. (BPW/USA) has traditionally supported and\nsought to protect individual rights and freedoms foz all and has\npromoted and supported said individual rights for women in\nparticular, and;\nWHEREAS, the retirement of Justice Thurgood Marshall has created a\nvacancy on the United States Supreme Court and Judge Clarence\nThomas of the U.S. Court of Appeals has been nominated for this\nposition by President George Bush, and;\nWHEREAS, Judge Clarence Thomas has limited experience in the\nJudiciary, opposed most affirmative action plans as the former head\nof the Equal Employment Opportunity Commission, and appears\nreluctant to clearly state his position on basic individual rights,\nincluding a woman's right to reproductive freedom, and failed to\nprovide full and fair interpretation and enforcement of existing\ncivil rights laws, and;\nWHEREAS, there are many qualified and experienced members of the\nJudiciary who aggressively support individuals' rights and freedoms\nprovided under the Constitution of the United States, now,\ntherefore, be it\nRESOLVED that BPW/USA strongly opposes the appointment of Judge\nClarence Thomas to the Supreme Court, and endorses the appointment\nand confirmation of a qualified, experienced Justice to the Supreme\nCourt of the United states, who aggressively supports and promotes\nthe preservation of individual rights and freedoms for 211, and be\nit further\nRESOLVED that BPW/USA ask all state federations and all other\nwomen's organizations to request their U.S. Senators to vote\nagainst ratification of the appointment of Clarence Thomas.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY ALEXANDER\nFROM:\nEDE HOLIDAY\nSAA\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCalls placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting the below listed Members of the Senate\non his behalf:\n*\nSenator Graham\n*\nSenator Pell\nPlease place these calls no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluations. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nwashington\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY MOSBACHER\nFROM:\nEDE HOLIDA\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCall placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting Senator Bill Cohen.\nPlease place this call no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluation. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nwashington\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY BRADY\nFROM:\nEDE HOLIDAY that\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCall placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting Senator Lloyd Bentsen.\nPlease place this call no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluation. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nwashington\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY MADIGAN\nFROM:\nEDE HOLIDA\nMA\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCall placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting Senator Richard Shelby.\nPlease place this call no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluation. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY SKINNER\nFROM:\nEDE HOLIDAY SAAA\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCall placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting Senator Wendell Ford.\nPlease place this call no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluation. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nwashington\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY LUJAN\nFROM:\nEDE HOLIDAY\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCall placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting Senator Jeff Bingaman.\nPlease place this call no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluation. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nwashington\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY DERWINSKI\nFROM:\nEDE HOLIDA SAA\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCalls placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting the below listed Members of the Senate\non his behalf:\n*\nSenator Dodd\n*\nSenator Pryor\nPlease place these calls no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluations. Your help with this\nvery important nomination is greatly appreciated.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 1, 1991\nMEMORANDUM FOR SECRETARY KEMP\nFROM:\nEDE HOLIDAY\n&\nASSISTANT TO THE PRESIDENT\nAND SECRETARY OF THE CABINET\nSUBJECT:\nCalls placed on behalf of Judge Clarence Thomas\nAs you know, the confirmation vote of Judge Clarence Thomas is\nnearing. We are asking for your help in ensuring his\nconfirmation by contacting the below listed Members of the Senate\non his behalf:\n*\nSenator Moynihan\n*\nSenator Lieberman\n*\nSenator Shelby\nPlease place these calls no later than Wednesday, October 2 and\ncontact Fred McClure, Assistant to the President for Legislative\nAffairs (456-2230), with your evaluations. Your help with this\nvery important nomination is greatly appreciated.\n7/11/91\nMEMORANDUM TO ALL ASSOCIATE DIRECTORS\nFROM:\nGARY BLUMENTHAL Gary\nSUBJECT: JUDGE THOMAS\nFirst, please call your contacts and ask that they seek all\nopportunities for their Cabinet member to plug Judge Thomas.\nThey should keep a tally of all the times their boss does a plug\nand report them to you.\nSecond, you need to review all major addresses by your Cabinet\nmembers between now and mid-October. By COB tomorrow, I want to\npresent to Ede this separate calendar with a recommendation as to\nthose speeches where we think the Cabinet member could make it a\nmajor address on behalf of Judge Thomas.\nThank you for your help on this. Please call with questions!"
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