Baseball Crank
Covering the Front and Back Pages of the Newspaper
December 10, 2004
LAW: If Not Bigotry, What Then?

I really meant to blog earlier in the week about Harry Reid's bizarre comments about Clarence Thomas; as you've probably seen by now, in an interview with Tim Russert, Reid objected to Justice Scalia as Chief Justice but conceded that "I may not agree with some of his opinions, but I agree with the brilliance of his mind"; then, turning to Thomas, he argued that

I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.

Taranto, Stuart Buck, and Ann Althouse have all taken this apart quite well. I hate to throw around unjustified accusations of bigotry, so I'm certainly prepared to believe that Reid wasn't taking a potshot at Thomas' intellect either (1) because he regards Justice Thomas as dumb because he's black or (2) because he thinks he can convince others that Thomas is dumb because he's black. But if Reid has something else in mind, I can't imagine what it is. He didn't bother to give examples, and Russert didn't press him for any. I very much doubt that Reid has read many of Thomas' opinions, and I suspect that he was just parroting what his staffers tell him. I have read quite a number of those opinions, ranging from opinions on intensely arcane subjects to critical issues of civil procedure to impassioned dissents on hot-button issues, and I can tell you that the charge of bad writing is ludicrously off the mark. At times, he can be quite eloquent. Thomas may not be the stylistic genius Scalia is, but Scalia is almost certainly the best writer the Court has ever seen (which is high praise, compared to people like Robert Jackson and Oliver Wendell Holmes); nobody else on the Court today compares to him either. Thomas' opinions certainly don't suffer from the kind of sloppiness and high-handedness that characterized, say, William O. Douglas. Buck, who's a great admirer of Justice Thomas, has links to some sample opinions and to comments of grudging admiration for Thomas' legal thinking by a prominent left-leaning academic, and you should go check out his links. (I should add that I've met Justice Thomas, and he's quite an impressive guy in person).

If Reid has even a shred of support for the argument that Justice Thomas is unqualified to be Chief Justice by virtue of his writing abilities or any other defect of competence or intellect, let him come forward with it. Thus far, I'm hearing nothing from Reid or his defenders to suggest he can. To the contrary, Noam Scheiber of the New Republic had to conclude:

Since Reid doesn't provide any evidence for his low opinion of Thomas, it sounds to me like he's thoughtlessly embracing the increasingly untenable view that Thomas is an affirmative action case utterly incapable of the kind of deep (or independent) thoughts Supreme Court justices are supposed to think, which has more than a slight whiff of racism.

I'll add a few examples of Thomas opinions of my own on a variety of subjects:

*Cross-burning

*Campaign finance laws (more here).

*Racial preferences in law school admissions

*The "dormant" Commerce Clause

*Partial-birth abortion

*Insider trading

*Pleading standards on a motion to dismiss

*Abandoned property

*Arbitration clauses

Posted by Baseball Crank at 9:22 AM | Law 2002-04 | Comments (7) | TrackBack (1)
Comments

Yeah, the traditional beefs with Thomas are:

1. The Anita Hill case.
2. That he was under-qualified for the court.
3. That he rarely speaks during oral arguments.
4. That he too often sides with Scalia.
5. That he doesnít adequately represent the black community.

I donít really buy any of those arguments. (#1 is probably the best, although I donít remember all the gory details of that case. For some reason, this isnít the Democratsí favorite attack against Thomas anymore. Itís almost like they decided in the late 1990ís that sexual harassment cases were too much of a ďhe said, she saidĒ matter to disqualify a man from high office. I wonder why.)

Any of those positions, however, would be more tenable than the position that Thomas canít write or has been an intellectually deficient Supreme Court justice. Reid deserves the heat he is getting.

Posted by: The Mad Hibernian at December 10, 2004 10:53 AM

The left is going to vehemently oppose any nominee of the presidents. With that in mind they would much rather trash Scalia (white male = acceptable target) than Thomas. This was a preemptory challenge against Thomas. Russert's performance was equally shameful. He didn't ask follow up questions for a couple reasons. Reid is on his team and the lies about Thomas have been told so many times they are accepted as fact by those with no first hand knowledge of the man or his writings.

Posted by: LargeBill at December 10, 2004 12:31 PM

Don't forget capital punishment. Who else would have made sure to point out, as Thomas did in his concurrence in Graham v. Collins, 506 U.S. 461 (1993), that: "To withhold the death penalty out of sympathy for a defendant who is a member of a favored group is no different from a decision to impose the penalty on the basis of negative bias...." (at 495)?

Posted by: Attila at December 10, 2004 1:17 PM

Also, I hope you caught the current Ann Coulter column, from which I quote this:

"On the Sean Hannity radio show, Democratic pundit Pat Halpin defended Sen. Reid's laughable attack on Thomas by citing Bob Woodward's book "The Brethren," which -- according to Halpin -- vividly portrays Thomas as a nincompoop.

I return to my standing point that liberals don't read. Harry Reid clearly hasn't read any of the decisions Justice Thomas has written, and Pat Halpin clearly hasn't read "The Brethren."

"The Brethren" came out a decade before Thomas was even nominated to the Supreme Court. The only black Supreme Court justice discussed in "The Brethren" is Thurgood Marshall. That's one we haven't heard in a while: I just can't tell you guys apart."

Posted by: Attila at December 10, 2004 3:09 PM

Ya had to be there in the eighties when Barney Frank would have to let up on Clarence - then head of EEOC - beacuse it wasn't a fair fight.

The more things change....

Keep pressing the point, and some holiday I'll dig up a transcript.

Oh, and I'm sure Clarence's intellecutal development could have matured since then. Doesn't mean he wasn't a principled and worth appontment at EEOC, I'm suurrre :)

Posted by: yeahsure at December 11, 2004 1:16 PM

I think you probably hit the nail on the head yourself - Reid was just passing along what he had been told by his staffers.

My one thought on this, though, is that attacking Reid as a racist was a dumb move by the Republicans. How can I put this? No one who would be upset by a charge of racism is going to buy one coming from the Republicans against the Democrats. I think they would have been much better attacking Reid's comments on their merits.

Posted by: Devin McCullen at December 12, 2004 1:11 AM

Definitely racist. And knowing from whence Reid comes culturally, not surprising. He was speaking off the cuff, clearly hasn't read any of Thomas' opinions, and let his latent racism show. . . by the way, Thomas/Scalia is only the third most common correlative voting pattern on the court. . .

Posted by: Spear Shaker at December 12, 2004 7:34 PM
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