Dispatches from the Creation Wars

Clarence Thomas was 43 years old when he was nominted by the elder George Bush. But he had plenty of legitimate expereince. He had been Assistant Attorney General of Missouri, Assistant Secretary of Education for the Office of Civil Rights in the U.S. Department of Education, Chairman of the US Equal Employment Opportunity Commission, and served on the United States Court of Appeals for the District of Columbia Circuit. In other words, yes, Thomas was young, but qualified to be a Supreme Court Justice.

There's just one problem with this argument: Obama didn't say anything at all about Thomas' experience. Here's the full text of what he said about why he would not nominate Clarence Thomas:

I WOULD NOT HAVE NOMINATED CLARENCE THOMAS. I DON'T THINK THAT HE. I DON'T THINK THAT HE WAS A STRONG ENOUGH JURIST OR LEGAL THINKER AT THE TIME FOR THAT ELEVATION. SETTING ASIDE THE FACT THAT I PROFOUNDLY DISAGREE WITH HIS INTERPRETATION OF A LOT OF THE CONSTITUTION.

Not a word about experience. The only thing he talks about is him not being a strong enough legal thinker and disagreeing with his interpretations of the constitution.

I thought Obama's answer was interesting, perhaps mostly because of my own complicated views on Clarence Thomas. At the time he was nominated I did not think he was the most qualified man for the job; I don't even think he was the most qualified black conservative for the job. I still think that. And I disagree with most, but certainly not all, of his jurisprudence.

On the other hand, as I've stated many times, I think most of the attacks on Thomas from the left run the gamut from ridiculous to downright idiotic. The three in particular that really bug the shit out of me:

1. The repeated claim, very popular on the left, that Thomas is stupid. Absolute nonsense. This is the kind of simplistic bullshit repeated only by those who A) have never bothered to read anything he's written, or B) are so extreme in their hatred of those they disagree with that they confuse being wrong with being stupid. Clarence Thomas is a very, very intelligent man. He's also a very clear thinker and writer, even when his conclusions are utterly false.

2. The repeated claim, also very popular on the left, that Thomas is "Scalia's lapdog" who just votes whichever way Scalia does. Again, this is a highly popular myth among those who don't bother to actually read the rulings of these two men. While they agree most of the time (duh - what two conservatives or two liberals won't agree most of the time?), there are some profound disagreements between Scalia and Thomas. They disagree, for example, on the question of whether the Declaration of Independence should be a guide to constitutional interpretation.

Thomas is far more consistent than Scalia is, far more willing to apply his interpretive theory consistently even if he doesn't like the result. A perfect example is Raich, the medical marijuana case, where Scalia completely abandoned his alleged originalism and voted to give a federal law precedence over state law in a situation where the interstate commerce clause clearly did not apply (and where the founding fathers, perhaps without exception, would have been appalled at the notion that it did). Thomas not only didn't abandon his legal theory to reach a desired result, he criticized Scalia for doing so. Lapdog indeed.

There have also been instances where Scalia has had his mind changed by Thomas. In one case, and I forget which one now but it was fairly early on in Thomas' tenure on the court, the original vote at the conference was 8-1, with Thomas being the lone dissenter. But when the first drafts of the written opinions were circulated, Thomas' dissent changed Scalia's mind and he joined him in dissent in the case. Perhaps that makes Scalia into Thomas' lapdog?

3. This remarkably silly uproar over the fact that Thomas rarely asks questions during oral argument. This one just baffles me, and again I think it's popular primarily among those who don't understand how the court works. By the time oral argument takes place, the justices have already read the entire trial transcript from both the district and appeals courts as well as every brief filed by both sides and whatever amicus briefs were filed by other organizations. Advocates have all of half an hour for oral argument. Some of the justices, Scalia and Breyer in particular, love to interrupt the attorneys and pepper them with questions and even sarcastic comments at times. Thomas prefers to let the advocates have their say and only interrupt them if there's a question whose answer might really affect his view of the case - and those are going to be very rare.

There are plenty of legitimate bases for criticizing Clarence Thomas and I've offered many of them on this blog over the years. I think he's wrong most of the time and I've often spelled out why I think he's wrong on various issues (especially his views on the first amendment). But the arguments listed above are nonsense and they should be abandoned immediately.