The first and less interesting (if more judicially pressing) question is why Thomas has so far refused to recuse himself from an upcoming Supreme Court argument regarding the constitutionality of health care reform in which he has a clear conflict of interest, since his family has financial connections to organizations lobbying against the reform legislation. The answer to that question is obvious: Thomas, judging from his history, is a boorishly cynical and self-interested man.
The second question, though, is more provocative. This excerpt from a February 13 New York Times story sets the stage:
A week from Tuesday, when the Supreme Court returns from its midwinter break and hears arguments in two criminal cases, it will have been five years since Justice Clarence Thomas has spoken during a court argument.
If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G. Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions.
In the past 40 years, no other justice has gone an entire term, much less five, without speaking at least once during arguments, according to Timothy R. Johnson, a professor of political science at the University of Minnesota. Justice Thomas’s epic silence on the bench is just one part of his enigmatic and contradictory persona. He is guarded in public but gregarious in private. He avoids elite universities but speaks frequently to students at regional and religious schools. In those settings, he rarely dwells on legal topics but is happy to discuss a favorite movie, like “Saving Private Ryan.”
The Times piece goes to say that Thomas's only utterances on the bench are when he announces majority opinions rote from written text, relying on Latin and formal legal terms and, unlike most of the other justices, providing no explanations for laypersons in the courtroom. The article also cites the reasons Thomas has given for his silence on the bench: he is self-conscious about his country Georgia accent; he is being polite to petitioners; he thinks the justices talk too much.
So what gives with The Justice Who Has Nothing To Say?
I have never met Clarence Thomas. But it seems to me that all of his explanations for his behavior make a sad kind of sense. Everything I have seen of Thomas from the Anita Hill hearings onward is consistent with his being insecure, uncomfortable with his origins, and intimidated by his peers – and therefore overly formal, pompous, and defiantly reticent in a sneering, adolescent kind of way. That is the way people act when they feel they don't belong where they are. And if we know one thing, it is that Clarence Thomas has never belonged on the Supreme Court.
Clarence Thomas is the rare African-American man who is over- instead of under-employed. He is under-prepared and under-qualified for the position he holds. He was shoehorned into his job – in one of President George H.W. Bush's cannier political moves – in a Faustian bargain that gave Thomas an undeserved appointment in exchange for Thomas's shilling for right-wing ideology and using his blackness as a defense against opponents of his confirmation. I remember those hearings well: how Thomas called criticism of his qualifications and well-founded accusations of sexual harassment against him a "high-tech lynching;" how senators folded rather than reject an unqualified Supreme Court nominee who happened to be black.
Justice Clarence Thomas is the Republican Party's robed whore. And I believe he knows it. And having that self-knowledge has really got to suck.
It's enough to make any man surly, self-loathing, defensive, and uncommunicative.