Now that’s the kind of dissing we enjoy. Noam Scheiber:
So, if I’m understanding Reid correctly, Scalia would be okay because, even though he’s really conservative, he’s also really smart. Thomas is objectionable because he’s both really conservative and really dumb. 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.
Scheiber helpfully links to a fascinating review in TNR ($$$) by David Garrow of Ken Foskett’s Judging Thomas, which provides numerous insights into this man. It is hard to know where to begin to quote. Garrow, noted author of several books on Martin Luther King, shares with Foskett a seemingly enormous respect for Thomas, and it’s hard not to, based on his hardscrabble life and struggles through it.
In Memphis, Thomas recalled that it was during his first year at that largely white school that he “answered with a resounding ‘yes’” the question of “whether as an individual I truly believed that I was the equal of individuals who were white.” Upon graduating in 1967, Thomas left Savannah to attend a tiny Benedictine college in western Missouri. His goal was to become a Roman Catholic priest, but he quickly learned that the overt racism that he had experienced in Georgia existed outside the South, too.
The first major turning point in Thomas’s life occurred on April 4, 1968, when news of Martin Luther King Jr.’s assassination prompted one of his white classmates to exclaim, “Good. I hope the SOB dies.” Thomas was horrified, by King’s killing and by his fellow seminarian’s response. That night he resolved to leave school when the semester ended and to abandon his goal of the priesthood. Thirty years later, Thomas recalled his experience of King’s death. “The rush of hopelessness and isolation was immediate and overwhelming,” he told his Memphis listeners. “This cataclysmic event ripped me from the moorings of my grandparents, my youth, and my faith” and “shattered my faith in my religion and my country.”
Thomas returned to Savannah, where Myers Anderson reacted with fury to his grandson’s decision, creating a rift that Foskett says “never fully healed.” Thomas moved into his mother’s small apartment, and later remembered that “I stood at the brink of the great abyss of anger, frustration, and animosity.” When the nun who taught him high school chemistry encountered him on the street and heard his story, she called a former student who was attending the College of the Holy Cross in Massachusetts and begged him to tell school officials about Thomas. An application packet arrived in the mail, and Thomas reluctantly completed it out of a sense of obligation to his teacher. Holy Cross quickly offered Thomas an academic scholarship, and in the fall of 1968 he enrolled there as a sophomore. He waited tables for more than five hours a day in a campus dining hall and became an active member of the Black Student Union. When the group voted on a proposal for an all-black floor in a dorm, Foskett reports, the plan “passed 24 to 1. Thomas was the lone holdout.”
So he had tough times in life, as we all do, and persevered through them. Thomas’s path has been unique, however, and not parallel to that of Scalia:
The popular fiction that Thomas [is] nothing more than the hapless dupe of Justice Scalia,” says Foskett, betrays “an obvious racist subtext.” “Because I am black, it is said that Justice Scalia has to do my work for me,” Thomas mockingly observed in 2000. The widespread perception is rooted in the simple truth that “he is really the only justice whose basic approach to the law is the same as mine,” Scalia told Foskett. Yet during the court’s 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.
Thomas’s independence is obvious and undeniable, and he is sometimes a more principled and radical jurist than his benchmate, as Scalia himself admitted to Foskett. “He does not believe in stare decisis, period,” Scalia said of Thomas’s attitude toward the presumptive authority of prior decisions. “If a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.”
But Lopez shows that Thomas is not actually as radical as Scalia says. While Thomas complained that “our case law has drifted far from the original understanding of the Commerce Clause,” he recommended “constructing a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence.” As Thomas explained in a footnote, “Although I might be willing to return to the original understanding, I recognize that many believe it is too late in the day to undertake a fundamental reexamination of the past sixty years. Considerations of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.”
Despite Thomas’s modified strict constructionism, there is a powerful individuality that comes through in opinions where race is an issue:
During his first year on the court, he made a valiant and largely successful effort to ensure that a ruling in the long-running Mississippi higher education desegregation case, United States v. Fordice, did not harm the state’s historically black public colleges. Challenging both Scalia and O’Connor, Thomas’s undeniably pro-black opinion asserted that “it would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.”
Thomas summed up his deply arrived at views in a 1998 speech:
Thomas asserted that to “define each of us by our race” is “nothing short of a denial of our humanity.” Objecting once again to “this notion that our race defines us,” Thomas proclaimed that he was standing before his fellow black lawyers “to assert my right to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black. I come to state that I’m a man, free to think for myself.” Perhaps aware of a poll that found that 44 percent of African Americans viewed him negatively and only 32 percent favorably, Thomas told his Memphis audience that “it pains me more deeply than any of you can imagine to be perceived by so many members of my race as doing them harm.” And his opinions in race cases certainly do not justify any such perception.
This was most powerfully demonstrated in 1995, by his single most notable statement, in Missouri v. Jenkins, a school desegregation case. “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior,” Thomas complained. In the context of public education, that presumption led to the belief “that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.”
Take that, Harry Reid, you cracker. Oh, but wait, it’s not Harry Reid himself, as Zev Chafets posits in the Daily News:
Harry Reid, the newly selected Democratic Senate minority leader, is said to be a good guy. And that’s how he came across Sunday on “Meet the Press,” soft-spoken, reasonable and decent. Until Clarence Thomas came up. Moderator Tim Russert asked Reid whom he could accept as the next chief justice on the Supreme Court. Reid replied that the conservative Antonin Scalia might be all right – “I cannot dispute the fact . . . that this is one brilliant guy” – but not his ideological soul mate Clarence Thomas. According to Reid, Thomas – a justice for 13 years – is too dimwitted for promotion. “I think he has been an embarrassment to the Supreme Court,” Reid said. “I think his opinions are poorly written – I just don’t think he has done a good job.”
Russert did not demand details. Perhaps he was taken aback by the dismissive crudeness of Reid’s remark. Senators do not normally publicly demean the intellect of Supreme Court justices. Or perhaps Russert – like many of his colleagues in the elite media – simply regards it as self-evident that Thomas is a wrong-thinking Negro, incapable of writing decent English.
Reid’s overt disrespect for Thomas is, at first glance, surprising. Reid is, after all, the conservative leader of a liberal Senate faction. He belongs to the Church of Jesus Christ of Latter-day Saints, a denomination that banned blacks from the priesthood until 1978. And he represents Nevada, a state with a less than sparkling record on civil rights. In other words, Reid is vulnerable to the charge of racial insensitivity. And in this case, guilty. Reid never would have had the brass to attack Thomas as an incompetent dummy without the encouragement of his party’s black establishment.
It would not be surprising to learn that those pols who would be most injured by the strong vision of a Chief Justice Thomas ordered a pre-emptive hit on the man.
Meet the new Daschle, same as the old Daschle.