Senator Reid and Justice Thomas

Kudos to you, Ed. I have no problem with those who disagree with the substance of Justice Thomas's opinions; but calling him stupid (which is essentially what Reid did) is beyond the pale.

Why are Reid's comments beyond the pale? He didn't call him stupid, at least not that I've seen quoted.

He called him "an embarassment to the Court" which seems rather harsh, but certainly not an unknown phrase in politics, and that he considered his opinions "poorly written". (Which I took to mean "poorly reasoned" and not a slur on Thomas grammer).

But how is this out of line? Surely one can hold the opinion that a Supreme Court justice really isn't up to the job, can't you? What's wrong with that belief? How is that "over the top"?

I can understand disagreeing with Reid....even thinking he's horribly, horribly wrong, but I don't see anything to be personally upset by.

Denigrating judges -- even Supreme Court Justices -- happens a dozen times a day. So what?

I agree with Morat. If Reid has studied Thomas's opinions carefully and concluded that they are of poor quality, he is entitled to voice his opinion bluntly. I would be offended if Reid's opinion were uninformed or insincere, but I see no evidence of that.

He called him "an embarassment to the Court" which seems rather harsh, but certainly not an unknown phrase in politics, and that he considered his opinions "poorly written". (Which I took to mean "poorly reasoned" and not a slur on Thomas grammer).
Calling him an embarrassment to the court is more than harsh, and the fact that it's not an unknown phrase in politics doesn't make it any better or worse. Without that phrase, the comments would have been fair. I would certainly make the argument that his opinions are often poorly reasoned (if I thought they were well-reasoned, I would agree with them - every argument we disagree with we consider poorly-reasoned, if we're at all honest). There's absolutely nothing wrong with thinking or saying that a Justice is not up to the job; I make those arguments regularly here. But calling someone an embarrassment to the court is well over the line of polite discourse, especially in that kind of a setting. And it simply isn't true, in Thomas' case. He earns his fair share of criticism, and I've given him his fair share of it here, but he's a whole lot smarter than some of his critics give him credit for and he certainly hasn't earned that kind of derision any more than any other member of the court.

I agree with Morat. If Reid has studied Thomas's opinions carefully and concluded that they are of poor quality, he is entitled to voice his opinion bluntly. I would be offended if Reid's opinion were uninformed or insincere, but I see no evidence of that.
If Reid had made any actual substantive criticism of Thomas, as I have and many others have, and not used the phrase "embarrassment to the court", I wouldn't be the least bit bothered by any conclusion he wishes to reach. But he didn't make any substantive criticism at all, just that he was an embarrassment to the court. It's not really a question of being offended - I'm not offended by his views of someone else. I just think it was both unwarranted and undignified in this case. And I highly doubt that Reid could cite a Thomas decision he disagreed with specifically if he was put on the spot, nor would I imagine most senators could. Which I find absurd, by the way. Our senators should know more about those issues than an educated amateur does, but I doubt even 1/10th of them does.
I just don't think that it's possible to make a reasoned case for Thomas being an "embarrassment to the court" any more than you could make that case for anyone else on the court. I think perhaps the strongest case you could make for that phrase would be to use it against Scalia, whose off-the-court rhetoric and activities and harsh treatment of his fellow justices might be viewed as giving the court a black eye (I don't really buy that, but it's at least a plausible argument). You could certainly point out cases in which you think Thomas is wrong, as I have done myself, but you could do that for any justice on the court. So by that reasoning, we'd have to call them all embarrassments. Either way, I think a Senator, especially in the leadership, should learn to restrain his rhetoric a bit. If you're going to throw that kind of rhetoric at someone, it better be well-earned. Bork has earned it, in my view. But I can't see a well-reasoned argument that Thomas has.

So, basically, you are stating that you do NOT consider Thomas an "embarassment to the court" and therefore Reid was beyond the pale to call him one.

So, in conclusion, Reid should clear his opinions with you, lest you become upset.

Seriously, man. He was harsh on Thomas. So what? The man's criticism was -- if nothing else -- strictly focused on Thomas's job performance. Thomas is, after all, a public figure with a public job.

If he'd insulted Thomas' wife or mother, or insulted him based on his skin color, his gender, his personal disabilities, etc....you'd have a point.

But insulting the man's job performance? Come on...

If I called George Bush an "embarassment to the White House" and his Presidency a "Stain on the office" would that be beyond the pale?

So, basically, you are stating that you do NOT consider Thomas an "embarassment to the court" and therefore Reid was beyond the pale to call him one.
So, in conclusion, Reid should clear his opinions with you, lest you become upset.
LOL. Come on Morat, you have to know that's a really dumb argument. Here, let me demonstrate why it's dumb.
"So, basically, you are stating that you DO consider Thomas an "embarrassment to the court" and therefore I'm wrong for saying that Reid was out of line to call him one. So, in conclusion, I should clear my opinions with you, lest you become upset."
See how that sounds? I think Reid is wrong. You think I'm wrong. No problem in either situation, unless of course you want to equate that to either of us having to clear our opinions of the other person before airing them. Of course Reid has every right to say what he did; I have every right to say that what he said was unjustified; you have every right to say I'm wrong about that. But your silly argument above doesn't mean anything at all.
Seriously, man. He was harsh on Thomas. So what? The man's criticism was -- if nothing else -- strictly focused on Thomas's job performance. Thomas is, after all, a public figure with a public job.
And if Thomas' performance justified such harsh rhetoric, I'd happily say so. I certainly don't have any reason to want to defend Thomas, with whom I disagree most of the time. But I just don't think that phrase can be reasonably justified in this case. Obviously I have no problem with harsh rhetoric; I give out an Idiot of the Month award, for crying out loud. The only question that matters is whether such rhetoric is deserved or not. In this case, I don't think it is, and I doubt Reid could make anything approaching a reasoned defense of the charge. He might be able to point to some decisions he made that were wrong. So can I; in fact, so have I already. But I can do that with any member of the court. So why is Thomas singled out as an embarrassment to the court? I don't see any case being made that he is, only rhetoric to that effect. I'll be more than happy to call Robert Bork an embarrassment to the entire legal profession, and I'm sure many people would find that rhetoric to be harsh. But I'm also prepared to defend it as a reasonable description of the man. I think it would be entirely justified in that case, while I don't think it is in this case. It's really pretty simple.
If I called George Bush an "embarassment to the White House" and his Presidency a "Stain on the office" would that be beyond the pale?
Possibly. I think that statement can be defended more easily than Reid's statement. But there is a difference between a commentator with a blog and a US Senator. There's also a difference, at least in my view, between the President and the Supreme Court. I could make a case for pretty much any president being an embarrassment to the White House. It's a political office that has been almost entirely occupied by mediocrities and charlatans, in my opinion. I hold the Supreme Court in much higher regard as an institution, and the justices in much higher regard as scholars and thinkers than I hold anyone who has occupied the White House in my lifetime. You don't have to agree with that, but that's my perspective.

From what I've been able to tell, Thomas is the closest thing we have on the Court to a libertarian, or strict constructionist. If that's embarassing, then we've fallen a long way.

So now you're arguing that US Senators are not allowed to air their personal beliefs about other public figures?

You're still dodging the point. You're not saying Reid was wrong...you're saying he was "way out of line".

The first implies he is in error, which you're free to believe (perhaps I even agree with you). The second, however, implies that he has done something wrong by saying it.

Has he? He's a US Senator. He -- above all others -- should be open and honest about what he thinks of the rest of the government. If this constituents don't like it, there are a variety of mechanisms to address that.

So how was he out of line? I'm still waiting for an answer, and all I'm getting is a firm vibe that no one should be allowed to insult the beloved 9 Justices.

Let me try to be clearer: Your post does NOT state "I think Reid is TOTALLY wrong about this and an idiot to think that".

If you'd have posted that, what would I have cared? We all have our opinions, me you and Reid included.

What you stated was that he was "Way out of line" for saying it. Not wrong. Not incorrect. Not holding an erroneous opinion. That he, in fact, crossed some line -- some taboo -- in airing his opinion of Justice Thomas.

If he'd called Thomas an "Uncle Tom", I'd have totally agreed with you. Race-baiting and racial insults DO cross a well-established societal line. And US Senators SHOULD -- more than citizens -- be scrupulously careful not to even get near that line.

But he didn't. He said, basically, that the guy sucked as a Judge and shouldn't be on the court. I'm not aware of any "line" that crosses, other than the line of your personal disagreement.

So now you're arguing that US Senators are not allowed to air their personal beliefs about other public figures?
Oh for crying out loud, Morat, you're smarter than this. This is the kind of stupid thing said by halfwits in internet chat rooms, for goodness sake. Of course they're allowed to say whatever they want to say. And I'm allowed to say I think they're wrong, or stupid, or crazy, or whatever I want to say about them. Are you arguing that I'm not allowed to air my opinions about what Senators say? Of course you're not.
You're still dodging the point. You're not saying Reid was wrong...you're saying he was "way out of line".
The first implies he is in error, which you're free to believe (perhaps I even agree with you). The second, however, implies that he has done something wrong by saying it.
In my view, they are the same statement. It's out of line to express such a harsh opinion about someone who doesn't deserve it, and Thomas doesn't deserve it. I've said repeatedly in this exchange that the reason I object is not that I think harsh rhetoric is out of bounds automatically, but because it should be reserved for those who deserve it and that if one is going to engage in such rhetoric, they need to be able to make a strong case that it's justified. I don't think Reid could do that with his statement about Thomas because there just is no reasonable basis for it. It all comes down to the question of whether his statement was justified. If it's not justified - and in my view, for the 9 millionth time - it's not. It really is that simple.
So how was he out of line? I'm still waiting for an answer, and all I'm getting is a firm vibe that no one should be allowed to insult the beloved 9 Justices.
Then I suggest you go back and read what I've written. How many times have I said in various ways that the problem with Reid's statement is that it isn't justified with regard to Thomas? I haven't said a single word to the effect that no one should be allowed to insulted the beloved justices, and I've said about a half a dozen times that this insult is undeserved. If that doesn't make it clear what my position is, I really can't help you any further with it. It just isn't that complicated.

Perry wrote:
From what I've been able to tell, Thomas is the closest thing we have on the Court to a libertarian, or strict constructionist.
I don't think I'd go quite that far, or at least I would say that we shouldn't so casually equate libertarian with strict constructionist. To Thomas' way of thinking, strict construction requires many positions that are decidedly different from libertarian positions. I'd say that he applies his conception of strict constructionism more consistently than the other two on the court who might go by that title (though probably Scalia and Rehnquist would not accept the title of "strict constructionism"; Scalia at least prefers "textualism" and "original meaning"). I think Thomas is more likely than either Rehnquist or Scalia to follow his judicial theory to a conclusion he doesn't like and still vote that way, though I can think of one or two examples where Scalia has done so as well. For that, I think he deserves some credit for consistency.
But I would not describe Thomas as anything like a libertarian. For that matter, I wouldn't describe anyone on the court as a libertarian, though Kennedy has made some movement in that direction on questions of individual rights and, as Randy Barnett has pointed out, laid down a possible framework for a major change in judicial reasoning concerning individual rights with his Lawrence decision.

I don't think we disagree too much on this. I said "from what I can tell, " Thomas is the closest thing." But I don't follow this to the degree that you clearly do. I liked Kennedy's opinion in the campaign finance case, but not as much as I liked Thomas' and Scalia's, but that's just one case.

Look, the only right answer to this is to demand to know which opinions are "embarrassing" and why. That is not the same thing as asking what opinions one disagrees with and why; it means, what opinions are so far beyond the pale of legitimate legal conduct and theory that one can call them embarrassing. The reporter--who, of course, is every bit as ignorant as the Honorable Senator--did not ask this question, but if he had, then we would know just how many of Thomas' opinions the Honorable Senator has read, and understood. I suspect we already know.

It is extremely rare for a Justice to do something that could legitimately be called "embarrassing" by these standards. Not even Chief Justice Taney's opinion in Dred Scott would qualify, since it was a coherent argument based on a long body of precedent. Now, perhaps there is something that Thomas has done that is embarrassing that I've just not heard about. I've read a great many of his opinions, though, and I have yet to see something that rises to the level of, for example, Justice Douglas enjoining the bombing of Cambodia after several other Justices declined to do so (which required a clearly humiliated Justice Marshall to overrule him), or Justice Blackmun droning on about how he's 85 and can't live forever, or the conduct of the Justices in the Ex Parte Quirin case (the mortifying details of which are described here), or Justice O'Connor's holding, without the slightest shred of principle or constitutional support, that affirmative action is okay for 25 years. But, again, maybe I've missed something.

Reid was probably terribly unfair to Thomas. I haven't done an exhaustive study of opinions of any Supreme Court justice since I left law school 30 years ago, but, from what I have read, Thomas's opinions aren't particularly embarrassing. His opinions are certainly no worse than those of Potter "I can't define obscenity, but I know it when I see it" Stewart. Or those of Whizzer White, for that matter. On the other hand, it's unfortunate that, in his dissenting opinion in the Lawrence case--which I liked, in a way--he was unable to at least see the equal protection issue in regards the Texas sodomy law. Even O'Conner, in her concurring opinion, was able to recognize that issue. (Scalia lambasted her for that, but what would one expect from the justice who apparently views himself as the Vatican's representative on the Supreme Court?)

On the other hand, with regards Thomas's suitability as chief justice, quite frankly the quality of his opinions isn't particularly important. As Jack Balkin has noted on his blog, the position as chief justice is largely a managerial one, and query whether Thomas can provide the leadership necessary. Although I don't particularly care for Rehnquist from a doctrinal standpoint, it appears that he has been a decent chief justice from a managerial standpoint.

That said, I do have to wonder about Thomas. The issue I have isn't that significant, but from reports I have read, during one argument he uncharacteristically made comments apparently waxing eloquent about the plight of black people under segregation. I don't know the details, but I wondered whether the facts that he was purporting to describe were in the record in the case. Or whether he wanted to suggest that the court should take judicial notice of his meanderings.

On the other hand, with regards Thomas's suitability as chief justice, quite frankly the quality of his opinions isn't particularly important. As Jack Balkin has noted on his blog, the position as chief justice is largely a managerial one, and query whether Thomas can provide the leadership necessary. Although I don't particularly care for Rehnquist from a doctrinal standpoint, it appears that he has been a decent chief justice from a managerial standpoint.
I've read a wide range of opinions on who the next Chief Justice should be. For reasons of pleasing his constituency, Bush would obviously like to name either Scalia or Thomas, but either one could be problematic. Scalia would likely be confirmed, but it would be a controversial choice given his penchant for flaming his fellow justices when they disagree with him. Thomas would likely turn down the offer to avoid another nasty confirmation fight, and who could blame him? The most compelling suggestion I've seen so far is a sort of two for one deal, suggested by Dan Ray - Bush names Kennedy as Chief Justice, a moderate voice, and gets one of his more conservative picks, like a Garza, on the bench to replace Rehnquist. It would be a wash in terms of the voting breakdowns, with a conservative replacing a conservative, and you'd have a moderate dealmaker type of Chief Justice in Kennedy.

I've never read an opinion by Thomas that was poorly written.

I know of at least one liberal who doesn't think much of Thomas, who doubts his intellectual capabilities...but even he realizes that Thomas opinions are well written -- so he has a suspicion that Thomas's clerks are responsible for their high quality.

Jon, you're probably correct that some opinions attributed to Thomas might be due to his astute selection of clerks. So? One might say the same about all judges. If Thomas was intelligent enough to hire clerks who would pen coherent opinions--with his guidance, of course--it strikes me that he might be intelligent enough to manage a court. On the other hand, maybe the fact that he appears to be outside of the mainstream of the court suggests that he might have a difficult time managing it.

Actually, if he would speak up more at the oral arguments, I might have more confidence in him.

I think you're misreading Jon, raj. He was reporting his friend's opinion, not his own. Jon doesn't think Thomas is stupid at all.

I recall a sole dissenting opinion by Justice Thomas where he favored the right of prison guards to beat inmates "as long as it resulted in no permanent injuries."

Thomas' statement sounds a lot like the slave owner who tells his straw boss he can beat the slaves as much as he wants, as long as they can still work in the fields the next day.

Of course appropriate force may be used to control unruly prisoners, but hauling someone off and beating the c--p out of them, there's no justification for that.

An American youngster in Singapore was sentenced to caning for vandalizing several cars. What an uproar from his parents and others. We don't do that in the US they asserted. I know of no crime in the US where the sentence is corporal punishment of any kind. How could Thomas think there's an exception for inmates when there is no precedent for it elsewhere?

Maybe opinions like this one are what Sen Reid is talking about. B

I stand corrected, Ed.

More here.

Timothy-
Thanks for the information. I was not at all familiar with the case or with anything Thomas had said on the subject. I think this highlights something important when discussing judicial decisions, which is that they are usually quite complex and often the legal basis for the claim and the decision are considerably different than the way it is portrayed in the media. Last week's medical marijuana case is a textbook example - the case really has little to do with drug laws and judgements about whether marijuana is good, bad or neither, or whether it helps patients or doesn't help them. The case has to do with how to interpret the commerce clause and the drug laws themselves are only tangential to that question. If the case is decided in favor of the government, the media will no doubt report it as "Supreme court upholds drug laws" or "Supreme Court says patient can't have medical marijuana", which really will not be the case. Those will merely be the effects of a case decided on much more narrow grounds. That makes such decisions easy to distort, misrepresent, or just plain misunderstand.

A tip of the hat to Tim Sandefur for his excellent analysis of the Thomas opinions. There was no way I could have found those on my own or understood them if I did.

I've gone through them several times and as you said Ed, they are rather complex, and I don't understand the half of it. For example, when Thomas opines that the eighth amendment doesn't apply to less serious injuries to prisoners, only more serious injuries, is he also saying that some other provision applies instead, in which case I'm entirely wrong; or If not, then isn't what I said correct, albeit exaggerated?

I tell ya, flying planes sure is a lot easier than this stuff. B

What Justice Thomas is referring to is that the prisoner would have recourse to a lawsuit against the individual prison guard for a tort. The State is presumed to not approve of the harming of prisoners by its employees, which would take the guard out of the course and scope of his employment and deprive him of the protections of qualified immunity that are accorded to him as a law-enforcement employee of the state.

Of course, prison guards don't have lots of money to pay judgments, and since they were outside the course and scope of employment, the state doesn't have to pay for their defense, or any judgment against them.

That's the quick and dirty answer from someone who makes a living defending counties and municipalities in Mississippi.

Thanks, Scipio.

I see you skipped over Tim's other suggestion, that the guard might be brought up on criminal charges of abuse in state court. I can't imagine the state prosecutor (AG?) holding his state prison or a state prison guard accountable in this way. His "soft on crime" position would result in his being voted out of office.

This would be like telling a slave, that if he has any complaints about the field boss, he should take it up with the slave owner.

If Thomas opined that only "serious" injuries are subject to eighth amendment review by the USSC, and state abuse charges are a fantasy, then I guess you're right, civil tort action is the only available remedy.

I may have exaggerated the seriousness of the injuries Thomas referred to, but I believe the main point I was making is correct. N'est pas?

B

Nothing I have read this whole weekend (which, to be honest, has mostly been loan documents) has made me laugh as much as the suggestion that Sen. Reid might have actually "studied Thomas's opinions closely and concluded that they are of poor quality." I'd bet quite a few dollars that the number of senators who have read and understood an entire Supreme Court opinion is mighty small. I mean, the Senate isn't exactly selected on the basis of their LSAT scores, is it? It's obvious that Reid is repeating some talking points ginned up by his staff, because that is what a senator's job actually entails.