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Department of What If: Clarence Thomas in 2012

The end of the Supreme Court term later this month marks a milestone: four years in which Justice Clarence Thomas hasn't spoken during oral arguments. That's more than 250 cases heard, and not one word from Thomas, the longest silence of his nearly 19 years on the bench.

Is he unhappy? Bored? Restless?

This is not his normal state. When the justice from Georgia steps out of his black robes, he's a gregarious fellow. When addressing law students, bar associations or Congress, he is charismatic and compelling. At a speech at the University of Florida this year, he cracked self-deprecating jokes and made football references. Unfortunately, his people skills are wasted in the stuffy, stilted, stylized interactions between lawyers and Supreme Court justices.

So why not step down? Thomas should leave his perch at 1 First Street — and head for 1600 Pennsylvania Ave.

The Republican Party is in disarray, with no clear message — as shown in last week's primaries — and with no obvious candidate to challenge President Barack Obama in 2012. Thomas could be the GOP's new standard-bearer.

A Thomas candidacy would bring racial diversity and a moving personal story to the Republican ticket. Thomas was born into poverty in Pin Point, Ga. He didn't have indoor plumbing until he moved to Savannah to live with his grandparents at age 7.

Thomas is well suited for political office. On the nation's highest court, he has had to reflect and rule on the country's most divisive issues. He also has political experience predating the court. He worked as an assistant attorney general in Missouri and then for the Reagan administration in the Education Department and as head of the Equal Employment Opportunity Commission.

And it's clear that Thomas prefers the open road over cloistered chambers. During the court's summer recesses, he enjoys driving around the country in his motor home, parking at Walmarts and seeing "a part of real America," as his wife put it in an interview. Thomas says he loves it because it "gets you out among your fellow citizens." The justice could spend the next two years in his RV, simply adding a sign to its side: "Vote Clarence Thomas!"

Thomas' presidential platform would have broad appeal, especially among Republican primary voters. His libertarian leanings are reflected in his judicial opinions, such as his questioning of the federal government's regulatory authority under the commerce clause.

Would it be insane for Thomas to leave a lifetime appointment to run for president?

Well, he is a judge, so let's talk precedent. If elected, Thomas would not be the first person to serve as both president and justice: William Howard Taft was president from 1909 to 1913, then chief justice from 1921 to 1930. And Thomas wouldn't even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.

Lawyers tend to be risk-averse, so let's consider the downsides for Thomas if he leaves his post. The most obvious is giving Obama a third Supreme Court vacancy. But this problem should not be overestimated. Thus far, Obama has not nominated hard-core liberals to the court; his recent choice of Solicitor General Elena Kagan disappointed many on the left. Furthermore, Republican senators would subject Thomas' successor to a much higher degree of scrutiny than replacements for liberals David Souter and John Paul Stevens. And, if he won in 2012, Thomas could appoint conservative justices of his choosing.

What if Thomas left the high court, ran against Obama and lost? It wouldn't be the end of the world for him. Although Hughes failed in his presidential bid, things turned out well: He served in the executive branch as secretary of state under Warren Harding and eventually returned to the court, succeeding Taft as chief justice.

There's an entire world beyond 1 First Street just waiting to be explored. Thomas belongs out in that world — not cooped up inside a marble palace, separated from the people by a bench, trapped underneath black robes.

Clarence Thomas in 2012!

David Lat is the founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog.

Department of What If: Clarence Thomas in 2012 06/16/10 [Last modified: Wednesday, June 16, 2010 6:33pm]
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