Talks with Authors: Created Equal: Clarence Thomas in His Own Words

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Mark Paoletta and Michael Pack have co-edited a new book, Created Equal: Clarence Thomas in His Own Words, which is a follow-on project of Michael Pack’s very successful 2020 documentary of the same name. In making the film, Pack interviewed Justice Thomas for 25 hours. Created Equal is a book-length interview taken from those 25 hours of interviews, where Justice Thomas discusses in an informal and moving way his remarkable life – from being born into abject poverty in 1948 in the segregated Deep South of Georgia to being a justice on the U.S. Supreme Court. He talks about the challenges he faced and overcame, including his contentious confirmation battle in 1991. 95% of what is in the book did not appear in the film.

Co-editor Mark Paoletta joined us for a discussion of one of our most interesting justices. Mr. Paoletta served as a lawyer in the White House Counsel’s Office in the George H.W. Bush administration and worked on the confirmation of Justice Thomas. He is a partner at Schaerr-Jaffe.

The movie trailer is available here.

Featuring:

Mark Paoletta, Partner, Schaerr-Jaffe

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of Practice Groups at The Federalist Society. Today we’re very excited to host “Talk” with Mark Paoletta, one of the editors of Created Equal: Clarence Thomas in His Own Words. In the interest of time, I’ll keep his intro really brief here, but you view his whole bio at fedsoc.org. Mr. Paoletta served as a lawyer in the White House Counsel’s Office in the George H. W. Bush administration and worked on the confirmation of Justice Thomas. His most recent role in government was general counsel of the Office of Management and Budget, and he is now partner at Schaerr-Jaffe.

 

After discussion, we’ll go to audience Q&A, so please enter any questions into the Q&A function at the bottom of right of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion are those of the guest speaker joining us today. And with that, Mark, I think we can get right into it. It’s really great to have you with me today.

 

Mark Paoletta:  Hey, Jack. Thanks for having me. Thanks, everyone, for joining us for this talk about my new book that I co-edited, as Jack said, with Michael Pack. It’s called Created Equal: Clarence Thomas in His Own Words. It’s a follow-on to the great movie that came out in 2020 of the same name. And when Michael Pack made that movie -- or I should back up a little bit. That movie came about because there had been just a relentless attack over the 30 years of Justice Thomas being on the Court, and there was a movie that came out called Confirmation that starred Kerry Washington as Anita Hill in -- it came out in 2016. I became aware of the movie in 2015 and was just livid that the corporate media would continue to do these types of movies and attacks, one-sided smears on Justice Thomas.

 

And, so, I wanted to make a movie that told Justice Thomas’s remarkable life in a fair and balanced way. And, so, I talked to some friends and connected up with Michael Pack, who is a great documentary filmmaker. He’s made about 15 films, most of them shown on PBS, maybe all of them have shown on PBS. And in fact, he was interested in making this film on Justice Thomas. And, so, when -- in the genius of what Michael Pack did there -- and I hope everyone has seen it. If you haven’t, I really encourage you to watch it. It’s on Amazon. It’s on other -- different platforms. But it’s a wonderful, wonderful movie.

 

And what Michael did when he was looking at making this movie was, instead of your typical PBS movie where you have people who are pro-Thomas and then anti-Thomas, he thought he’d use Justice Thomas’s unique voice. And, so, he decided to just do a movie where he would interview Justice Thomas from his perspective. Justice Thomas recommended that Michael interview Justice Thomas’s wife, Ginni, to get a true sense of him and their life and particularly during the confirmation hearings. And, so, Michael Pack ended up interviewing Justice Thomas for 25 hours. This was back in 2017 and 2018. It was six sessions that Michael interviewed Justice Thomas for about four hours a clip. And then, he interviewed Ginni a little bit later, six hours, I think, over three sessions. And I sat in most of those interviews.

 

And there were so many exchanges and so many discussions that I thought were just -- would be gold for the movie. And then, when it came time to make the movie and I was watching it develop and Michael was sending me different cuts of it, some of it was longer at first. But as we cut it down -- or as he cut it down, there was so much that was being lost. And I thought it would be sort of a crime to have these amazing exchanges and discussions and Justice Thomas’s thoughts on his life, his jurisprudence on a cutting room floor, never to see the light of day. The first focus was, “Let’s make this movie and get it done.” And that was done.

 

But the idea was to gather up all of this footage and put it into a book-length interview. So that’s what this book is. It’s a follow-on to the movie, but it’s a book-length interview of Justice Thomas from those sessions. And there’s an appendix that has 30 pages or so of Michael Pack’s interviews with Ginni Thomas. And I thought the -- just to get a flavor of the book and how it -- the passage, I think, that made me most want and try to get something into the film that just couldn’t because of time constraints was this passage. And I think it gives you a sense of Justice Thomas and those discussions and just -- so I’m going to read it since we have a little bit of time. It’s a little bit lengthy, but it’s on page 136 and 137 if you’re all following along.

 

“Michael asked him, ‘Well, on the more libertarian side, you also watched The Fountainhead, the movie based on Ayn Rand’s book of the same name. Right?’ And Clarence Thomas says, ‘Oh, I still do. I still watch it a lot. The Fountainhead, I like the individual. Think about it. I’m in Savanah, Georgia. What’s going on in Savanah, Georgia, during my youth? All these things that the government tells me I can’t do. I can’t walk across the park. I have to walk around it. I can’t drink out of this water fountain because the colored one is over here. I can’t go to Georgia Tech. There’re all these things, all these limitations. If you drive down here, you don’t have any rights. If you go over there, you don’t have any rights. On and on and on and on.

 

When I read Fountainhead and Atlas Shrugged, I’m not going to tell you I understood objectivism, but it emphasized the individual. I’m free to do what I want to do. That’s in the individual. Then, I read later on, after Black Boy and Native Son by Richard Wright, I read Ralph Ellison’s Invisible Man. Again, where is the invisible man? Underground. You get to think for yourself. You get to be who you are, despite what society says. So it’s -- so you have stood against segregation. You have to go in doors that they said should be closed. Right? Then why don’t you get to think the thoughts that they say are closed to you, even if your own people are saying it.

 

So let’s just take an example. We agree it was wrong for me to be prevented from going to the Savanah Public Library. Okay? People agree. That’s just, again, society. So then, okay, what if they let me go in the library, but they said, “There’s a certain part of the library or certain stacks in there that are off limits to Blacks.” Oh, that would also be wrong. Okay. What if they say there are certain books that are marked, “No Coloreds Allowed?” Would that be right? No. That would be wrong.

 

If all those things are wrong, it’s wrong for them to prevent me from being in the library. It’s wrong for them to prevent me from going to certain parts of the library. It’s wrong for them to prevent me from going to certain books in the library. Why is it right for them to tell me I can’t have certain thoughts that are in the books in the library? Obviously, there is no answer. It’s absurd.’”

 

So that’s a passage from Created Equal, and it catches, I think, Justice Thomas so well in peeling away, tearing away all the noise to get to what’s at issue. And, so, that’s what the book is, is wonderful exchanges like that. Ninety-five percent of what’s in the book is not in the movie. It’s a two-hour movie. It's 30 hours of interviews, so, if you do the math, it’s -- most of it is not in it. All the movie is in the book because obviously those -- a lot of those exchanges and a lot of those passages were gold. And that’s what -- why it was such a great movie.

 

A lot of you are familiar with Justice Thomas, but it’s important to go back to where he came from. Right? I think, in modern times, certainly, he’s traveled further, certainly on the Supreme Court — and I’d say of most national public figures — of being born into segregation in 1948 in Pin Point, Georgia. And he’s born into -- in a little coastal town, right outside of Savanah, to a broken family. His mom is -- has three kids. She’s a maid, trying to raise three kids, and he’s running around with his brother. And the mother’s having difficulty raising him.

 

And he goes to live with his grandfather when he’s seven years old. And that changes his life. His grandfather, when he arrives, says, “Boys, the damn vacation is over.” That begins this new life for him. And his grandfather is a man who was born 1907 in the segregated South, and he is making his way. And his grandfather teaches him hard work and discipline and no excuses. And he learns those lessons. He goes to work for his grandfather on his oil truck — he has a small fuel oil business — and he learns hard work.

 

His grandfather believes that, in order to really succeed, you need to go get a good education. And, so, he rolls -- he enrolls his brother, Myers, and Clarence into St. Benedict’s Catholic School, which is an all-Black, segregated Catholic school. And it’s run by these Irish nuns who are down in the South, who are called all sorts of terrible things for being down South and teaching in the Black schools -- the all-Black schools. And -- but they teach the students hard work and no excuses, and they’re going to get them ready for their math, their history, their English. They’re going to show them that there’s -- that they are equal, despite what the segregation laws say. They are equal.

 

And that is -- those two things — his grandfather, who teaches him hard work, discipline and no excuses; and the nuns, who teach him the same — those are the most impactful people on Justice Thomas’s life to this day. To this day, he talks about the nuns; he talks about his grandfather. His memoirs are called My Grandfather’s Son. And, so, those are the most important foundational elements of Justice Thomas’s life.

 

He goes off -- right? -- into the seminary. So Justice Thomas is an altar boy at St. Benedict’s. He goes into the seminary for high school, and he loses his vocation. He goes into seminary. He’s the first of two Black students to into -- it was called St. John Vianney’s Minor Seminary; it’s a high school. And he faces racial episodes and racist incidents, and, when he finds his way there, he goes off to the -- to major seminary for college.

 

And, again, in there he loses his vocation, not because he lost his faith, but because he thought the Church wasn’t doing enough in addressing racial injustice. And, so, he leaves the -- he -- there’s a terrible incident where, when Martin Luther King is assassinated, one of the seminarians says, “I hope that SOB dies.” And with that, Justice Thomas said he lost his vocation. And when he was wanting to go into the seminary, his grandfather had said, “You can go, but you can’t quit.” So, when Justice Thomas quits, his grandfather, when he comes back home, his grandfather kicks him out of the house. And he goes up to Holy Cross College, ultimately, to go to school.

 

And there, he becomes a radical, by his own terms. He rejects his grandfather’s and the nuns’ teachings. He says race and racism explains everything. He joins the Black Student Union. He becomes a leader of the Black Student Union, connects up with the Black Panthers and Black Nationalism. But even when he’s going through those times, he’s always fiercely independent. You really see Justice Thomas trying to figure things out.

 

And there’s a -- the Black Student Union — and it’s interesting for times like today — the Black Student Union wanted to create a Black corridor in the dormitory of only Black students on a particular hallway or area of the dorm. And Justice Thomas said, “You know, I just came out of segregation.” Remember, Justice Thomas was born in segregation in 1948. He’s going to an all-Black Catholic high school in 1964 -- ’63. And he breaks the color line in 1964. So, now, he’s up at Holy Cross in the late ‘60s, and he’s thinking, “This is crazy. Why are we doing this?”

 

But he wants to support his friends, and, so, his agreement is, “I’ll live on the Black quarters so long as I can have my” -- when he had first to Holy Cross as a sophomore, his first year at Holy Cross, his roommate was a white student from Rhode Island, who was great -- became great friends with Justice Thomas, was very helpful. They were great friends. And, so, he said, “I’ll live on the Black corridor so long as I can have my friend and my roommate, John, live with me.” So that’s what Clarence Thomas did so a classic Clarence Thomas action. He was fiercely independent, loyal to his friends, always loyal to his friends, but I think that’s a great way to capture Justice Thomas.

 

So he goes -- he’s at Holy Cross, and he gets involved with all these protests. And he goes to a protest in -- up at Harvard. I guess, it’s up at Boston. It goes over to Cambridge. It’s an anti-war riot, and a riot breaks out and a lot of violence, a lot of just bad things going on, as he said. And he realized he had jumped the rails and that he had really become the antithesis of what he had been raised to be. And, so, he comes back to Holy Cross that night, early in the morning, and he stops in front of the chapel — and he had left the church; he had not been in a church for a few years — and he stood in front of the chapel, and he looked up at the cross and said, “If you take,” to God, “If you anger out of my heart, I will never hate again.” And Justice Thomas says that’s the beginning of a slow return to his faith and to his grandparents’ and the nuns’ teachings.

 

So, in this book, you can see Justice Thomas’s intellectual journey. He talks about reading To Kill a Mockingbird by Harper Lee, The Fountainhead by Ayn Rand, Native Son by Richard Wright, Invisible Man by Ralph Ellison -- as I read from that passage. And then, of course, when he leaves Yale Law School and goes out to Kansas City -- so he goes to Jefferson City. When he goes to Yale Law School, he graduates in ’74. As he says, he can’t get a job, in his view, because of the stigma of what people think are -- is affirmative action, that, as he says in the book and in the movie, “We’re going to discount that a little bit.” And, so, Justice Thomas tells a story of how he interviewed with a number of different firms, and he couldn’t find a job until Jack Danforth, who was the new Republican Attorney General and an alum of Yale Law School, came to town, interviewed Justice Thomas — Clarence Thomas — offered him a job in Jefferson City to work for Jack Danforth.

 

He goes out there, and he talks about those days as some of the happiest days of his life. He had hundreds and hundreds of cases working in the Attorney General’s office. He loved the people he was working with, really finding his way. And he’s also, again, intellectually, he was kind of moving now towards libertarian, to more conservative, and he discovers Thomas Sowell. And he said, when he first read Thomas Sowell, I think at Yale, he had seen this book, looked at it a little bit, and threw it in the garbage, and said no Black man could think this way. He gets reintroduced to him by a colleague in the Attorney General’s office who references this book that had just been reviewed in the Wall Street Journal.

 

And Justice Thomas reads the book and loves it. He says it's like finding water in the desert. And he becomes a huge fan of Thomas Sowell, and to this day, they are extraordinarily close friends. And Justice Thomas meets Thomas Sowell in -- at Washington University in 1978, and Thomas Sowell is debating Ruth Bader Ginsburg on a panel. And Justice Thomas goes over and meets him and talks with him, and that begins this lifelong friendship. So, you see, Justice Thomas, again, in this book, talking about those days.

 

He comes into the Reagan administration, and there’s a story on him, just at the beginning of the Reagan administration, in December of 1980, just before it begins, by Juan Williams. And Justice Thomas is talking about some of the problems of social programs and how they have adversely impacted his family and his sister. And it becomes this big story, and he’s pilloried. And I call that — from, I think, December 16, 1980, is when that article appears — and I sort of peg that as a day when Justice Thomas got on the radar of the left of wanting to destroy Clarence Thomas because he was not singing off the song sheet that was accepted. But he goes into the Reagan administration and starts at the Department of Education and then moves over to the Equal Employment Opportunity Commission.

 

And that place is a wreck when he gets there. And he cleans it up. There’s no filing system. There’s fleas. It’s dilapidated. They have no system for their records. He really cleans it all up. That’s his focus. It’s really the managerial part of it and also bringing it back to -- instead of doing these charging of companies and settling for nothing, he was looking for real discrimination and then hitting those companies hard with penalties. That’s how he thought it should be done. The Washington Post gave him great reviews and a great editorial about him having cleaned up the place.

 

And after he’d kind of gotten on top of the job there, he is -- becomes really interested in the Constitution, in our founding. And that’s where he hires these two Claremont professors, Ken Masugi and John Marini. And it’s really interesting because I don’t think there’s another presidential appointee who does that -- does a deep dive to learn about the Constitution while he’s running this agency. And it really becomes the foundation, as Justice Thomas says, “I was looking for a governing philosophy that show that slavery was wrong, right from the beginning.” And, so, that’s -- that became the animating throughline for his philosophical quest here. And it becomes, I think, the beginning of his jurisprudence when he ultimately gets on the DC Circuit.

 

So, again, the book is Justice Thomas talking about these issues in a very conversational and informal way. He talks about his time on the Court. He wrote his memoirs in 2007. Those memoirs ended — My Grandfather’s Son — when Justice Thomas went on the Supreme Court in 1991. And, so, this talks about his time on the Court, his approach to judging. It talks about his relationship with his colleagues, in particular Justice Scalia.

 

He talks about stare decisis, and when he talks about stare decisis, it’s interesting. He goes back to this whole idea of his resistance of being told what to do, that he -- this fierce reaction to being told, “You know, you have to think this way. You have to do this.” With stare decisis, when it comes up, he calls it these notions of stare decisis. And he says, “When I was at Holy Cross, I resisted this when I at Holy Cross. I was told that I needed to listen to this jazz musician named Hugh Masekela” — who I had never heard of, but I looked him up. And every Black student at Holy Cross is supposed to listen and love Hugh Masekela. And Clarence Thomas says, “You know, I didn’t have against Hugh Masekela. I didn’t have anything against jazz. I like jazz. But I wanted to listen to country. I wanted to listen to classical. You know, the idea of them telling me what I’m supposed to be listening to was offensive.”

 

And then, he ties is and goes over to stare decisis, and he says, “It’s like these notions of stare decisis. It’s been decided. You need to go along. You need to do x.” And, so, you could bring this all the way to Dobbs, or you could bring it to some of the other cases when he looks at stare decisis and says, “You know, I’m not being -- going to be told to move along. I’m going to look at this anew. I’m going to look at this based on the original meaning of the Constitution. I’m going to do my own work and come up with what I think is proper.”

 

So I think it’s a great, again, connecting up what I’ll call his personal journey, his personal life with his jurisprudence and how it informs him through the years. He talks about his battles with the left, and he talks about his confirmation hearings. He talks about the liberal policies and tactics and, on the policies, this idea of virtue signaling, being for something and not really looking at how it’s going to impact the communities that you’re thinking you’re helping and, in his view, a lot of times, not caring whether they’re helping or being harmful to communities. So he spends a lot of time on that, much more than in the movie. In the movie, he touches upon it, but there’s pages upon pages of him going back to, again, his -- a lot of his grandfather’s comments and what he learned from his grandfather.

 

And his grandfather’s seeing a lot of these liberal policies harming the Black communities in particular and how folks who are -- the theoreticians who sit in the ivory towers. And one of the interesting things, in terms of Justice Thomas’ life, when he went to Yale Law School, he worked at the Yale -- at the New Haven Legal Assistance office for three years. For his entire time at Yale, he worked on the ground, in an office, in the city, helping people who had problems, everyday problems, as he calls them. And, so, he saw what were the problems and that the folks that were up in the ivory towers, as he called them, some of these Yale students who had these grand ideas of how to save humanity, didn’t have any connection or understanding of how those issues or how those policies would impact the people they thought they were trying to help or that they were intending to help.

 

So -- and then, he goes on to the Court, obviously, and has an immediate impact. A lot of people don’t know that Justice Thomas writes more opinions per year than any justice on the Court. And this year, I think, was the first year in some time actually, Justice Sotomayor wrote, I think, one or two more opinions than Justice Thomas. She wrote a lot of dissents this year. But he’s put down a body of work from the day he got on that Court that would be the roadmap for an originalist view of the Constitution that others could pick up. So even if he was a solo dissent, even if he was in concurrence, he was going to make his point, do the hard work, do the deep work, do the deep dive on providing the evidence for why this particular clause in the Constitution should be applied this way.

 

Same thing with -- and statutes and textualism, we’re going back to the Constitution, the most important document -- a roadmap, a body of work, and you’re seeing, I think, over the years with Justice Thomas laying these things down. And in the fact — right? — that the left — and I can revisit this in some Q&A — but the left has always attacked Justice Thomas for being not qualified. Right? When he first got on the Court, there was cartoons — and some of them are in the movie — of Justice Thomas being dependent entirely on Justice Scalia. And there were these awful cartoons in the movie that were run in the press, and it was to belittle, disparage, trash Justice Thomas. And all he did was he did his job. He did it -- and this was part of the problem, in my view of the narrative of Justice Thomas, just going back to the confirmation.

 

When those hearings were done and after all the Anita Hill allegations, which I think are absolutely false, the American people watched those hearings, and it was 58-24 that they believed Clarence Thomas over Anita Hill. And only 26 percent believed Anita Hill. So, from the day -- that’s an overwhelming majority of people who believe Clarence Thomas was telling the truth and then to go on the Court and the attacks to continue on Justice Thomas and in the most racist of ways. And you saw from Jan Greenburg Crawford’s book that -- from the, I think, the first conference that Justice Thomas sits in, he moves -- he votes in solo dissent on, I think, it’s Foucha v. Louisiana. And by the time that case is ultimately voted, he brings along Scalia and Rehnquist. So it shows Justice Thomas moving his colleagues to him, and he did it time and time again.

 

And now, you’re seeing this body of work and his commitment to originalism, his fearless commitment to originalism, bearing fruit and you see with the EPA case, you see with the Dobbs case, you see with the religious liberties case with Coach Kennedy. All of these cases are the justices, in my view, looking at Justice Thomas for both his unapologetic originalism, and, so, his -- the boldness and courage of his opinions but also the courage of his personal commitment to never bowing down to the attacks that come to you. So I’m happy to — I’ve got about half hour right now — happy to take questions on the book or anything else. And, Jack, thanks for having me.

 

Jack Derwin:  Of course. I feel like I could hear you just talk for the rest of the half hour, but we’ll certainly open it up to Q&A. Once again, to our audience, if you’d to ask a question, you can the Q&A function at the bottom right of the Zoom window. I will kick us off now with a question of my own. You touched on it a little bit, I suppose, but sort of to contextualize from the discussion in the book, during the interview, as Justice Thomas discusses some of what he takes to be issues with our current separate of powers and constitutional problems with how government is currently carried out. Can you talk a little bit about how that philosophy and some of the things he discusses have showed up in recent cases, like West Virginia v. EPA?

 

Mark Paoletta:  Yeah. Justice Thomas -- what’s interesting, he just goes back -- it’s this -- this interplay of talking about the current and going back to history and how the Founders were very aware of their abuses from the crown and the British government and how they separated these powers and just -- let me see if I can find this. They separated these powers to protect our liberties. And yet the administrative state and what’s happening over the past 50 years, if not longer, is that — longer — is that they were creating this, as he says, this body outside the Constitution and -- which was a coalescing of these three powers, again, the judicial, legislative, and the executive, which was all meant, as he says, to -- he says, “The whole point was to keep the government in this box. Justice Scalia and I often talked about that, that the structure was the main way to protect your liberty. The danger in the administrative state is seeing those powers all coalesce again in various agency.”

 

He makes a neat observation up top. He says, “The very people who say they don’t want government in their lives want this sort of expansive administrative state, which is in their lives and in every aspect of their lives.” So I just love the way Justice Thomas pinpoints the — sort of what I call — the hypocrisy of what’s going on and then how it doesn’t accord with our Constitution. You’re seeing the Court starting to really address these issues in some of these administrative state cases. And -- yeah. So it’s -- he touches on it several times in the interview, but that was a good -- I think, a little flavor of how he talks about these issues in the interview.

 

Jack Derwin:  All right. We’ll turn to audience Q&A now. One audience member is curious, “What most surprised you when you were writing this book and going through the interviews?”

 

Mark Paoletta:  I’ve known Justice Thomas for a long time and am close friends with him. I think it’s just that fierceness of his -- of not being told what to do in every aspect of his life, even during the interview, of how Michael Pack would set up the question, and -- so -- and then his, again, his thirst for knowledge just -- again, knowing him well and -- but -- through his whole life of reading these books and trying to make sense of how to make it find that governing philosophy, find those answers and that continual quest for that. And then the other thing that a lot of people -- you see it when he talks about it, is how kind and giving Justice Thomas is to everyone. And he’s been that way his entire life.

 

And you see some of the hirers, even including Anita Hill. His friend, Gil Hardy, who was his best friend at Holy Cross and at Yale, had asked him to hire Anita Hill because she was not doing well at her law firm. And he said -- he goes back, and he says, “You know, when I came out of law school, I couldn’t find a job, so I know what that’s like. I know what it’s like to struggle. And, so, when my friend asks me to help somebody, I feel obligated to do that.” And, so, there’s a -- you saw the comments by Justice Sotomayor about Justice Thomas recently, about how he knows everyone who works in the Supreme Court, from the janitor to the justice. He knows their family. He knows their kids and what’s going on with them. He takes a real interest.

 

So that part just shines through over and over and over again and particularly in these interviews. So I was aware of that, but it was just seeing it in action and just hearing him talk about these things was just really interesting.

 

Jack Derwin:  I’d be curious to hear a little bit more about the confirmation process, given that you worked directly on that. And we do have a question here specifically about some of the external voices that were at play there. Someone’s curious about how, just a year earlier, David Souter’s experience was rated quite differently, even though it was pretty similar to Justice Thomas’s at the time. Can you talk a little bit about that sort of thing and the confirmation process more generally?

 

Mark Paoletta:  Yeah. So I’m just looking at the question here. So the confirmation process of Justice -- so the Souter one -- people forget that, when Souter went through — and I was part of that process; I was a junior lawyer — they tried to make him into a monster, the left did, when he first was going through. And obviously, he was not conservative or originalist. And -- but you saw the caricatures that the left would even do to someone like David Souter. Clarence Thomas had gone through the DC Circuit in 1990, and I -- so I had met Justice Thomas back in ’83 when I was a senior in college and met him on a trip, spent about an hour with him and was really taken with him. I was the first person to reach out to him in the White House in 19 -- March of 1989 to -- I was on the Judicial Selection Committee, and they were interested in selecting Justice Thomas for the DC Circuit, so I reached out to him. That’s where I first got to know him.

 

And I think the Democrats were fine with him going onto the DC Circuit and said, essentially -- again, going back to that time, they had this incredibly voluminous document request that they sent to Justice Thomas — The Wall Street Journal, I think, ran in their editorial page — and took him through, I’ll call, the paces and all that but made it clear that, if he was going up to the Supreme Court, it would be a completely different story. And I think that -- and I think the Democrats after Justice Thomas went on the other court and — we can talk a little about — and tried to destroy him. I think they saw that letting any sort of conservative, Black or Hispanic, get up to a Circuit Court is going to be trouble for them, so that’s why, as you saw, Janice Rogers Brown, the Democrats filibustered. Right? Miguel Estrada, the Democrats filibustered. And I think it went back to what they learned with Justice Thomas when he went on the DC Circuit.

 

So the confirmation hearing was just -- he was nominated on July 1st by President Bush -- July 1, 1991. And literally, from the first day that happened, it was just an effort by the left to destroy, attack him nonstop on made-up things, on distorted things. And so that was a lot of my job was to work with Justice Thomas and the team on pushing back on all these smears. And they were constant. I think we did a pretty good job, and Justice Thomas was out there so that, by the time the hearings came along, people thought he was going to get confirmed, despite -- you had the NAACP come out against him and NOW. And Justice Thomas talks about how this was all driven around — and it’s interesting we’re talking about it right after this term — was all about abortion. Everything about going after Clarence Thomas was about abortion and the left not wanting him to be on because they know, I think, that he was this fiercely independent thinker who would rule the way he -- and, again, as he said, he hadn’t thought about it at the time as a judge in terms of how to -- where he would be on it, but I think they recognized that here was a person who was committed to the Constitution.

 

So it was a horrible experience. The hearings -- the first set of hearings in September were, I still think, the longest on record before the Judiciary Committee. And then, obviously, when the Anita Hill allegations were lodged, everything blew up and, to me, the most disgusting and despicable attacks on him. But, again, as I said, fighting back against those lies, in my view, the American people got to see Anita Hill testify, got to see Clarence Thomas testify, got to see the various people who were the witnesses — both supporting Thomas, supporting Hill. And it was overwhelming believing Clarence Thomas. The problem, in my view, is that you go on the Supreme Court, and people think you have some army, or you have some PR firm; you have somebody who’s going to defend you.

 

And you go on the Court, and Justice Thomas in particular, is not going to go out and defend his reputation. And there isn’t a body that does that sort of stuff, so the left kept pushing this idea that Anita Hill had told the truth, that somehow Clarence Thomas hadn’t told the truth. And, so, there was this drumbeat. And as I started off my talk, 30 years or 25 years of just constant pounding of this narrative and books and that sort of thing made it where it’s flipped. And that was -- and, so, that is a disappointing thing about the whole confirmation hearing and its aftermath, is that, once I got to continually push their view and -- and it had its effect.

 

Jack Derwin:  We have a really interesting question here about how, for a long time, Justice Thomas seemed to be writing more dissents than majority opinions, and now, with the new balance of the Court, that might be shifting. And I’ll just read, “Do you think his time as a dissenter or a solo opinion writer, laying groundwork for potential future Courts is nearly over, or should we still expect significant solo opinions, laying out view for the future?”

 

Mark Paoletta:  Let’s see. I think that obviously the Court -- he’s going to be writing a lot more concurrences. I think the Dobbs one is a perfect example where the justices are aligned more with Justice Thomas. But on the substantive due process, Justice Thomas, one, writes separately on that, so I think you’re going to see by and large -- not always, I think, Justice Thomas -- I don’t know where maybe some of the con law folks in the audience would have a better sense of where Justice Thomas is splitting from his originalist colleagues on certain things, or they have a different view in their view on originalism on some aspect of it. But, by and large, I think it will be he’s done the work for 30 years, a lot of them in dissent, laying that groundwork. The Court is now aligned with him.

 

There was a great -- there’s a great article, I have a footnote to it in my book -- in this book, that -- it was an article, I think, in 2014 or 2015 by Chuck Cooper on the administrative state cases in the three or four cases Justice Thomas wrote back then, concurrences, maybe a dissent. And Chuck Cooper said, “You know, Justice Thomas is writing on this, and no other justice is, and it’s likely to be that we won’t have any justices be coming to his side for the foreseeable future.” And yet, a few years later -- right? -- in 2022, the world has changed because of these appointments, because of President Trump’s appointments to the Supreme Court. And, so, I think you’ll, like I said, I think you’ll probably see some dissents from Justice Thomas from time to time on -- and, again, when the Court -- when there’s those alignments where it’s not an originalist view, he’ll certainly be writing in dissent. But hopefully, they’ll be majorities and mostly concurrences.

 

Jack Derwin:  Do you think — not to put you on the spot too much here — but is there a particular opinion that you think does a particularly good job of distilling Justice Thomas’s philosophy or maybe a favorite opinion of yours? Anything come to mind there?

 

Mark Paoletta:  Again, I think there’s just so many of them, and I’ll leave it to maybe the Thomas former clerk. I love the Dobbs decision because Justice Thomas went out of his way to stay true to what he’s been writing on for 30 years, which is that substantive due process is completely made-up. You don’t want unelected judges coming up with new rights or telling the American people what your rights are. And, again, in classical Thomas fashion, he talks about, even though it was before the 14th Amendment, the Roger Taney opinion, the worst opinion perhaps ever, in Dred Scot, where he essentially says there is a substantive due process right to -- for slave owners, for property interests in their slave. And then, even though there was a law that said, “If you -- if this person escaped the South and got to the North, you were free.” No, Roger Taney had different ideas.

 

And, so, I think Justice Thomas, in classic Thomas fashion, is saying, “This is what -- you may like these rights, but here’s what happens when you don’t like these rights, or we allow people to have the power to do that.” He did that in Grutter, too, where he talks about the arguments that the litigants for affirmative action were arguing. He basically said that the racists, the segregationists back in the race cases, as he called them, were making the exact same arguments in their briefs, and he actually cites to them. And, so, those are the kinds of things, where Justice Thomas does the deep dive and he’s calling out the other side, that I like. The McDonald case, where he goes through the history of gun control and how it was meant to prevent Blacks from getting guns, that the racist Southerners that were passing laws.

 

And, so, he loves to put things, what I call, plainly to what’s going on. I can just -- before I forget, I’ve set up two websites so justicethomas.com is one that has a lot of his opinions. Some of these opinions right here and analysis some of the Thomas clerks have written, some of the material. It’s got links to his speeches, articles, articles about him. So that’s justicethomas.com. And then, because I’ve done so much work on the Anita Hill/Thomas -- Clarence Thomas hearings, I have a website called anitahillcase.com, that goes through those hearings comprehensively. Every witness, there’s a write up on and why her story never added up, as I say is, I think, the subtitle of the website. So I encourage your viewers to go look at those two websites.

 

Jack Derwin:  We have an audience member here who had the pleasure of meeting Justice Thomas and noted that they were particularly struck by his optimism.

 

Mark Paoletta:  Yes.

 

Jack Derwin:  Can you speak a little bit about how that shines through in the interviews and how you might have experienced that in your personal relationship with him?

 

Mark Paoletta:  Yeah. I -- the optimism, I call it joyful. It’s a joyful life that he lives. He loves his friends. He loves his family. And he’s just always -- when I say laughing, he’s just enjoying life. And, so, that’s what most people are so shocked by when you meet Justice Thomas. I was on Tucker Carlson, and he mentioned the same thing. He had met Justice Thomas several years ago and was floored that this image of him as this dour, angry person is just belied by -- he’s just -- everyone who meets him -- he’s, I call, electrifying. He’s got so much energy.

 

And the other thing that he does, and this is -- lots of people can be energetic or joyful, I guess, but he’s so interested in the person he’s talking to, no matter who you are, and that’s the part I also think is really surprising to people, is just -- people will come in and visit him. A friend of a friend will meet Justice Thomas and say, “You should stop by my chambers,” and they end up talking to Justice Thomas for two hours. And -- or when he’s at these events, he does this Horatio Alger event, which is a group he’s been involved with for many years, with kids who have gone through terrible, terrible times, who are -- have done well in school and have gotten a scholarship and being supported by -- with a scholarship through this group. And he spends hours with these high school students; they’re going into college.

 

And it’s -- that’s -- so that’s optimism. That’s joyfulness. And, so, you had it in the movie, and he’s laughing about some things. Obviously, going through his life and some of the more painful moments was difficult. You see that in the movie, but overwhelmingly, it’s his optimism and joyfulness.

 

Jack Derwin:  We have a fun question here, wondering if all the cutting room floor material from the movie ended up in this book, or is there maybe a part two coming, or is this it?

 

Mark Paoletta:  Yeah, it’s probably -- it -- when Michael Pack was -- so it’s one thing to go into a -- so this was going to be a movie. When this project was first launched, it was to make movie on PBS because Michael Pack had done most of his movies on PBS. And, so, you’re going to film it that way, what you’re looking for to make a movie. And, so, when sometimes you go back over and you have another session, and maybe the discussion was a certain way but Michael thought, “Let me just go revisit that.” And it could be weeks later, whatever it was -- months later. Justice Thomas might be talking about the same thing because Michael Pack would have brought up the same topic. You know what I mean? And it kind of goes a little bit different.

 

So there’s a lot of -- there’s some repetition in the interview. But, right now, at least, it was — let me put it this way, it was a lot more work than I thought it be to put it all together. And I knew I wanted to get this out, and I went through the book and -- or through the interview. And this is what we came up with. Maybe down the road but, for now, it’s this. This is it.

 

And I have some other Thomas-related projects I want to focus on, so maybe, at some point, I’ll go back and look through the interview again and see if there’s -- there’s more stuff there obviously, but I think this was the best cut on it.

 

Jack Derwin:  So how long do you think Justice Thomas will serve? And in a big picture sense, what do you think will be his ultimate legacy?

 

Mark Paoletta:  I think Justice Thomas will serve for another 10 or 15 years. When he was confirmed, he was 43 years old. He said the left had robbed him of his 43 years. They had just taken away his -- tried to destroy his reputation. So he’s at 31, so he’s got 12 more years, by his own lights. And I think it will be longer.

 

He loves his job. I think he gets energy from it, and he’s -- he knows this is where he belongs. He’s in good health. And, so, I expect him to serve as long as he’s physically able, and I’m hoping that’s 20 years. He’s 74, so he’s got a lot of time.

 

And then, his legacy -- I think it’s, I guess, two -- maybe two-fold, in terms of, obviously, his jurisprudence and his unflinching commitment to originalism. I think he's the greatest originalist on the Court and has been. And, so, that body of work, I think, will be a great legacy, and you see the Court already coming towards his view on many, many things. I also think his legacy of — more than any other justice, I think — he has 15 former clerks as judges, most of them on the federal bench, and he’s got an army of former clerks that are out there. And then, I think, he’s inspired a whole generation of lawyers to think this way. And when I say think this way, be bold. Believe in yourself and be fearless.

 

And, so, in his jurisprudence and then also in his personal life, that they see him under attack nonstop, and he never gives an inch. He never moves. And that’s inspiring to, I think, a lot of people, and I hope -- I think he hopes it shows an example of how to be courageous in these times. And, so, that’s what I think his legacy will ultimately be. And I think, again, on the current Court, a lot of these justices, in particular on the conservative side, were clerks when he was up there, and I think they got to see a justice who was a committed originalist.

 

There was that great -- during Justice Gorsuch’s confirmation, which I worked on, there was an email that came out where Neil Gorsuch is at the Department of Justice, and the Kelo decision comes down and Justice Thomas’s dissent. He emails Greg Casas, like, “Wow. Look at this Thomas dissent,” like, “What a guy.” And, so, to me it would just show the impact he’s having. You can’t replace that, of a young lawyer seeing a justice throw down, if you will, on his view of what’s right and what’s wrong. And those are two -- right? -- justices -- well, one’s a justice and one’s a judge on the Court and the impact that Justice Thomas had on them when they were young lawyers. And I think that’s through and through so many young lawyers who are older and coming into positions of influence and responsibility.

 

Jack Derwin:  Well, I’ll do one final callout for questions here. Once again, to our audience, you can submit through the Q&A box in the bottom right of the Zoom window. And while we wait to see if we get any more, I will just close out with a sort of more fun one. “What is something about Justice Thomas that would surprise the average American that hasn’t met him?”

 

Mark Paoletta:  Well, again, it’s been written about a little bit, but he loves to go out on his bus. It’s a real bus. It’s a Prevost, kind of Greyhound-type bus that’s been outfitted to have a personal living space. And I’ve been on it -- been out on it a bunch with him. And he’s just this regular guy, and -- but people sometimes recognize him. But he loves to go out on his bus and see America. He goes with Ginni.

 

They’ve been to about 40 states over the years, and they stay in camping grounds and Walmart parking lots and that sort of stuff. And, so, he’s -- and he knows everything about a bus. He knows every -- engine size, or he can fix his bus, when need be, but he’s a gear head in that regard. But that’s probably, maybe something surprising for people.

 

Jack Derwin:  Certainly. Well, thanks so much, Mark. This has been absolutely fantastic. Sorry, just double- checking to make sure we don’t have any more questions coming in. Think we are all set with that. Any closing comments here?

 

Mark Paoletta:  No. I -- thanks for having me, and I hope everyone will read the book -- buy the book, read the book, and watch the movie and visit the sites. Justice Thomas, he’ll never do anything to -- when Michael Pack agreed to do the movie, Justice Thomas had not -- wasn’t convinced. We had to convince him to actually participate, to be interviewed because he’s that, what I call, uninterested in his legacy or putting out his legacy or proclaiming it, so I hope the members of The Federalist Society will do that. Read Justice Thomas’s memoirs and watch the movie and buy this book and defend him when he’s being attack by the left — and, I’ll call it, spread the good news — but defend him because, yeah, I do think he’s our greatest justice and our living American right now, and he needs defending. He’s been under constant attack. And, so, those are my closing thoughts.

 

Jack Derwin:  Can’t thank you enough, Mark, for taking the time. And thanks, again, to our audience for tuning into today’s event. You can check out our website, fedsoc.org, or throw us a follow on all the major social media platforms, @fedsoc, to stay up to date. With that, we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.