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How Not to Criticize Clarence Thomas

[ 237 ] February 13, 2014 |

In Paul’s thread from yesterday, a commenter expresses a sentiment that I’ve encountered way too often among American liberals:

I didn’t realize Thomas could actually speak. I thought Scalia just stuck his hand up Thomas’ ass and worked his mouth like a ventriloquist dummy.

I’ve been addressing this misconception since the beginning days of this blog, is very, very wrong. Thomas is absolutely not and has never been a Scalia clone. As witless Chum puts it [lighlty edited]:

Whether the “Thomas is Scalia’s stupid puppet” argument from liberals is motivated by racism or not, it’s indistinguishable from what polite racists would say about him. Even worse, it’s just wrong. And worst of all, it credits Scalia as something other than a verbose exemplar of the classic stupid person’s idea of what a smart person sounds like.

Right — the narrative is not only wrong in offensive way about Thomas, it buys into the Scalia myth. There are several respects in which Thomas’s jurisprudence is more distinctive and interesting, sometimes even in ways that liberals should approve of. (The right to a jury trial and not to incriminate oneself really are much more plausibly described as “privileges and immunities” of American citizenship than as “fundamental to the concept of ordered liberty.”) There are many, many highly critical things one can say about Clarence Thomas’s jurisprudence as well as his public political pronouncements, but this is really not the road any liberal should go down.


Comments (237)

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  1. Shakezula says:

    p.s. People who feel inclined to call him Uncle Tom should first hit themselves in the face. Repeat as needed.

    • ThrottleJockey says:

      You think? I do call him Uncle Thomas on occasion. I don’t doubt that some snooty NE types shit all over him in New Haven, but I also think he sold out.

      One of my favorite lines from “Quiz Show” was when Goodwin’s wife calls him “a Jewish Uncle Tom”…The label can be used injudiciously (we got called “white” as a kid ‘cuz ma made me & my siblings use proper English) but in Thomas’ case its well deserved. He’s well to the Right of his primary political benefactor, the man who ushered him through Senate confirmation, John Danforth. Thomas has earned his label.

  2. postmodulator says:

    To a politically inclined and not legally educated observer, the trait Scalia and Thomas share is the rather ballsy jettisoning of even the pretense of objectivity. Thomas officiated one of Rush Limbaugh’s weddings. Scalia has too many incidents to count, although his refusal to recuse himself from that case involving Cheney a couple of months after he’d gone duck hunting with Cheney comes to mind.

    • Helmut Monotreme says:

      These two items from Clarence Thomas’s wikipedia page, open him up to serious criticism.

      In January 2011, the liberal advocacy group Common Cause reported that between 2003 and 2007 Thomas failed to disclose $686,589 in income earned by his wife from the Heritage Foundation, instead reporting “none” where “spousal noninvestment income” would be reported on his Supreme Court financial disclosure forms.[177] The following week, Thomas stated that the disclosure of his wife’s income had been “inadvertently omitted due to a misunderstanding of the filing instructions”.[178] Thomas amended reports going back to 1989


      Thomas’s wife remained active in conservative politics, serving as a consultant to the Heritage Foundation, a conservative think tank, and as founder and president of Liberty Central, an advocacy group associated with the Tea Party movement.[170] As of 2011, Thomas’s wife stepped down from Liberty Central to open a conservative lobbying firm touting her “experience and connections”, meeting with newly elected Republican congressmen, and describing herself as an “ambassador to the tea party”

      In my opinion, they illustrate, that Clarence Thomas doesn’t understand the concept of “conflict of interest” or for some reason, thinks it doesn’t apply to him.

      • postmodulator says:

        Has anything bad happened to him as a result of this? No? Well, then, in the only way he cares about, the concept of “conflict of interest” doesn’t apply to him.

      • ThrottleJockey says:

        The DOJ should’ve investigated that…and sent his ass to Leavenworth. Or at least Club Fed.

      • David M. Nieporent says:

        The first story is consistently reported misleadingly. Thomas did omit information from the forms, but did not “fail[] to disclose $686,589 in income earned by his wife.” The disclosure form in question requires disclosure of his own income, but only his spouse’s sources of income, not the income. So, in other words, the only thing missing from the form were the words “Heritage Foundation.” But accusing Thomas of “failing to disclose” that his wife worked for the Heritage Foundation — while perhaps literally true, in that it was left off the forms — is nutty; it wasn’t exactly a clandestine job. It was public knowledge.

        As to the second, it’s you who doesn’t understand the concept of “conflict of interest.” Judges’ spouses are allowed to work. Marjorie Rendell is a federal judge on the Third Circuit. During the time she has sat on the bench, her husband, Ed Rendell, has been mayor of Philadelphia, governor of Pennsylvania, and head of the DNC. Nobody ever suggested that she “didn’t understand the concept of ‘conflict of interest.'”

        Stephen Reinhardt is a federal judge on the Ninth Circuit. During the time he has sat on the bench, his wife, Ramona Ripston, spent thirty years as the executive director of the ACLU’s Southern California branch. While Ed Whelan argued that Reinhardt should have recused himself in one particular case (Perry v. Schwarzenegger), nobody suggested that this was some sort of general “conflict of interest.”

        • Hogan says:

          I’m with David on this one. Thomas’s jurisprudence is what it is; I see no reason to think he’s tilting his opinions on cases of particular interest to the Heritage Foundation. It’s generally the way he’d be ruling anyway.

          • Helmut Monotreme says:

            Perhaps my interpretation of conflict of interest is impractically broad, but I see a person literally in bed with a Heritage Foundation lobbyist and fundraiser, and I’m going to think that their impartiality is compromised.

            • timb says:

              That’s just it, whether Ginny’s there or not, Thomas is gonna rule like an assface, because he IS an assface, not because his wife is in on the Big Con that is right wing sinecure.

              David’s pathetic attempts to defend him in the first instance are also bs. Thomas didn’t want to disclose anything, but no Senate would ever impeach someone for what he lied about (and none should).

            • TribalistMeathead says:

              First you’d have to check whether Thomas’ rulings have shifted ideologically along with Heritage’s.

              • Hogan says:

                Well, he voted against the individual mandate, which was the Heritage Foundation healthcare plan, right? Bet he slept on the sofa that night, nome sane?

                • timb says:

                  Given how much his wife has made then and now, I think he got to watch his favorite movies (hello, Long Dong) while making the sexytime

                  And, good for them

          • Scott Lemieux says:

            Agreed — people who think this matters are getting cause and effect backwards.

            • jphillips says:

              Not disputing you, but if cause and effect are reversed, then Ginny Thomas is being paid hundreds of thousands of dollars by a partisan think tank solely because her husband is a politically allied Supreme Court justice. How does that not represent a conflict of interest (if not outright graft)? The direction of causality here doesn’t change the nature of the relationship.

              • Anon21 says:

                No, the cause is that both of them are extreme reactionaries and the effect is that they’re attracted to one another.

                • jphillips says:

                  Ok, but would Ginny Thomas be pulling down six figures from Heritage in the absence of her marital status? That strikes me as implausible.

                • Greg says:

                  Why? Seems perfectly plausible that between two conservative activists who married each other, one would end up on the Supreme Court and one would be a well-compensated executive at a think tank.

                • jphillips says:

                  I mean, sure, it’s possible that Ginny’s tenure at Heritage had nothing to do with her husband’s position. There are a lot of aggressively conservative activists out there, however, and not a whole lot of highly-paid think tank slots (too many, sure, but not a lot). I guess I just don’t understand why it’s weird for Heritage’s hiring of the wife of a sitting Supreme Court justice to raise a few eyebrows.

                • Anon21 says:

                  They’ve both moved in conservative social and professional circles since before they were married, and that’s probably the independent predominant factor that has determined each of their career arcs. Ginni worked for the Chamber of Commerce before and after her marriage, and is probably pretty effective at the kind of hackwork she does. If there was some evidence that she was a terrible fundraiser/propagandist/apparatchik, that would be one thing, but from what little I’ve read she’s pretty good at her foul life’s work. I just don’t see her former association with Heritage as crying out for a special explanation.

                • Jeremy says:

                  You could probably make a decent case that providing well-paid sinecures for the relatives of prominent conservatives is one of the most deeply cherished ideological principles of groups like Heritage. They don’t expect anything special from hiring the wife of Supreme Court justice, they just believe in furthering the cause of nepotism. If there’s actual work that needs to be done, just pawn it off on the interns.

        • Anon21 says:

          Agreed; there could be a conflict of interest in a particular case that the Heritage Foundation is party to (not sure if amicus would be enough), but it’s not a conflict of interest for a judge to have a spouse working for an entity with well-defined, public positions on issues that the judge rules on.

    • timb says:

      From a legal perspective, Thomas’s bullshit Natural Law formulation and Scalia’s Originalism look similar in a lot of cases, but they really aren’t. Thomas is more consistent than Scalia and way more crazy. On occasion, both of them make sense: Scalia’s general approach to Admin law and Thomas’s opinions on rights of the accused…

      Scalia is glad to overturn precedent for whatever the Republican party needs, while Thomas, I imagine, doesn’t think the Republican Party is reactionary enough

  3. Pseudonym says:

    Wouldn’t this suggest that non-citizens aren’t guaranteed a right to trial by jury or protection from self-incrimination?

    • Pseudonym says:

      Or would the equal protection clause extend those rights to non-citizens as well?

      • Joe says:

        The equal protection saving clause argument is used. Also, trial rights isn’t really the best used of that argument. They are logically “due process” in nature. Substantive rights like free speech or gun ownership (how Thomas used it at that link) is where P/I is particularly strong.

        Also, it is those rights that at times aliens arguably might have a somewhat weaker claim — e.g., foreigners can be regulated more in respect to campaign finance laws. Even Justice Kennedy agreed to that. Aliens might not have a right to join the “militia.” OTOH, they would generally have the same rights to free exercise of religion.

        • Scott Lemieux says:

          They are logically “due process” in nature.

          Right, except that when it comes to incorporation the question is whether they’re so fundamental that it’s impossible to have due process without them, which is problematic if you look at other liberal democracies.

  4. aimai says:

    I think you are overestimating how much people who say things like this (“Thomas is Scalia’s puppet” etc..) know about the Supreme Court or about Law. There are a lot more people who say stupid shit about stuff, especially on the internet, than even know what stuff is. I know its shocking to imagine this but there are people who talk about the SC and even particular cases who don’t know the names of all the Justices, don’t know what oral argument is, and think Lexis/Nexis was a character on Deep Space Nine.

    • Pseudonym says:

      Oral argument? Isn’t that Clarence Thomas’s nap time?

      • Jason says:

        I think Clarence Thomas is ahead of his time in realizing that oral argument is next to worthless on today’s court.

        • Karate Bearfighter says:

          I got a chance to ask him about this at a law school event. He said something to the effect of, “oral argument has become an opportunity for justices to showboat, and it has nothing to do with how we decide cases.” I love appellate oral argument, but he has a point.

          • timb says:

            I’ll remember that later this year when I’m giving a Circuit Court oral argument:

            “Your honors, the reason I sound so incoherent shouldn’t matter, because this is just an opportunity for you guys to showboat.”

            Should go well

            • Dilan Esper says:

              The thing is, the fact that judges don’t want to think about it as window dressing doesn’t mean it isn’t window dressing.

              Karl Llewellyn made this point about legal reasoning 70 years ago.

              • timb says:

                Doesn’t mean they wouldn’t rhetorically kick my ass if I said it either

                • Dilan Esper says:

                  Of course. Just because the emperor has no clothes doesn’t mean you don’t get hanged for pointing it out.

                • sharculese says:

                  This is exactly the kind of pretentious bullshit that convinced I shouldn’t have gone to lawschool.

                • Karate Bearfighter says:

                  They’d kick your ass up one side of the courtroom and down the other. And then, if you believe Justice Thomas*, they’d go back and write their opinions and dissents based on the briefs and the discussion in conference.

                  *I’ve heard state-level appellate judges make this same claim in CLEs, seminars, etc.

                • Dilan Esper says:

                  Rehnquist, who was a more active participant in oral argument than Thomas is, said that at most it has an effect in 5 percent of the cases.

                  Look, first of all, most judges come to a matter with certain predilections and beliefs. And second, briefing is a LOT more effective means of presenting legal analysis than oral argument is, because you can analyze cases in depth, marshal facts, rebut the contentions of the opposing party, etc.

                  So what are you left with when you get to oral argument. Maybe, occasionally, there’s something missing in the briefs that a judge needs to know before he or she can decide the issue. That definitely happens sometimes in trial courts. But how often does it happen in the US Supreme Court?

                  I suspect in actuality the US Supreme Court could decide its cases with no oral argument at all. If something was truly missing from the briefing, they could ask for a supplemental brief. Oral argument is much more of a matter of tradition than it is an important aspect of the decisionmaking process.

                • Scott Lemieux says:

                  Rehnquist, who was a more active participant in oral argument than Thomas is

                  And, as an aside, was pretty openly contemptuous of Scalia’s grandstanding.

      • DrS says:

        No, an oral argument is what he leaves on Coke cans.

      • Tybalt says:

        No. Thomas listens to oral arguments.

    • Manju says:

      So true. And most people just blindly vote for these justices whenever they come up for reelection.

    • jim, some guy in iowa says:

      what people know about the law wasn’t the point, though. The point was that saying Thomas is Scalia’s puppet is basically racist, right? or did I miss something

      • aimai says:

        No, you are correct. Calling Thomas Scalia’s puppet is racist and plays into racist tropes. But I’m just pointing out that the people saying that are not well enough informed about the Supreme Court, or law, to even grasp what it means to say that Thomas has his own jurisprudence.

        • Monty says:

          Calling Thomas Scalia’s puppet is racist and plays into racist tropes.

          I’m just not making the connection here. Not that I agree with the characterization of Thomas as Scalia’s puppet (I don’t), but wtf does it have to do with racism?

          • MattT says:

            It’s racist because it gets selectively applied to Thomas and not, say, Alito, who’s actually a much bigger hack.

            • djw says:

              Or the other way around: why isn’t Scalia Thomas’s puppet?

            • SqueakyRat says:

              That’s because there’s a much better term for Alito: “Scalito”

            • Monty says:

              OK, I understand that line of reasoning (clarified by additional replies below). Gracias to all. But the original comment under discussion was only “selectively” applied to Thomas because the original thread was about Thomas. With that in mind, pointing out whether Alito is Scalia’s puppet would be a non-sequitur. Am I insuffiently race-conscious, or is there too much subtext?

              Would it be acceptable accurate to label Thomas Bush41’s (or Republican conservatism’s) ‘Uncle Tom?’ given Thomas’s own views on affirmative action?

              The phrase “Uncle Tom” has also become an epithet for a person who is slavish and excessively subservient to perceived authority figures, particularly a black person who behaves in a subservient manner to white people; or any person perceived to be a participant in the oppression of their own group.[1][2] The negative epithet is the result of later works derived from the original novel.

              Perhaps if I were smarter I’d just leave it alone…

              There are no stupid questions, only stupid people.

          • jim, some guy in iowa says:

            implication T isn’t smart enough to think for himself & just parrots S

          • Hogan says:

            The black man is too dumb to have his own opinions, so he’s obviously cribbing them from a white man. (See also “affirmative action hire.”)

            • aimai says:

              Still, I get a mean satsifaction from Thomas being labled as an affirmative action hire to the Supreme Court. Thats an enormous part of his rage against the imagined liberal enemy, that affirmative action means that he will never be recognized as having risen on his own merits. That this is a right wing argument doesn’t seem to matter to him–he still blames liberals for creating/fostering affirmative action because it detracts from his preferred, galtian, vision of himself as a natural superman.

              • Scott Lemieux says:

                The thing is, Thomas was an affirmative action hire. Liberals just shouldn’t have a problem with that — it shows that you can consider diversity without selecting “unqualified’ people.

                • Warren Terra says:

                  I have considerably more problems with Thomas being hired for his youth than for his ethnicity. Appointing a 40-year-old seems like gaming the lifetime appointment system rather a bit.

                  As to his being an Affirmative Action hire, of course he was. His whole life was about Affirmative Action preferments, it’s how someone with his disadvantages and credentials could have a chance to be considered for the schools he went to and the jobs Republicans gave him. But he’s an example of Affirmative Action working: having been given special consideration to get into those schools, he succeeded at them. He’s done his jobs for the Republicans well, and people who read his Court opinions say they’re especially cogent, if incredibly wrongheaded. I just wish he’d be honest about the role Affirmative Action played in his life, and about what role it plays in society.

                • JazzBumpa says:

                  it shows that you can consider diversity without selecting “unqualified’ people.

                  Not sure what this means. The ABA gave Thomas a mixed review, under pressure from the right, and no one review pane member rated him highly qualified.

                  Was he distinguished in any way before joining SCOTUS?

                • gghdrh says:

                  Thomas wasn’t an affirmative action hire, he was a token hire. Not to give a race more representation on the court, but conceal the lack of that race’s representation
                  in the party that appointed him.

            • gmack says:

              There is a long history of arguing that Blacks simply aren’t capable of their own thought, rational action, opinions, political movements, etc. So if and when such things appear, they must be the result of other forces. So, for instance, X civil rights group is just a paid front group for Y white (or Jewish!) organization. Another variation is the whole rhetoric about how liberal welfare programs “enslave” blacks in a new government plantation, as if the behaviors of poor people can only ever be the result of (white) groups and programs.

            • mds says:

              (See also “affirmative action hire.”)

              Isn’t “affirmative action hire” usually used as a perceived criticism of why George H.W. Bush picked Clarence Thomas in particular for the Supreme Court, though? It’s not saying Clarence Thomas had no intrinsic intellectual merit; it’s saying that Bush didn’t care about the substantive qualifications of someone who wouldn’t have been able to join his Houston-area country club. That’s a tricky needle to thread, I’ll admit.

            • timb says:

              Thomas, weirdly, IS an affirmative action hire. George H.W. wanted to appoint an African-American justice to Thurgood Marshall’s seat. He did choose Clarence because he was African-American. In my lifetime, outside of Harriet Myers, I can’t think of a person who had fewer credentials for the Court.

              • Anon21 says:

                “In my lifetime, outside of Harriet Myers, I can’t think of a person who had fewer credentials for the Court.”

                I don’t agree; I think his conventional qualifications were completely sufficient. His qualifications don’t differ all that much from Roberts except that Roberts had a pretty long stretch of private practice, reflecting the fact that Thomas was a younger nominee.

                • timb says:

                  He served a whole 16 months as an appeals judge. I’ll stick with my formulation

                • Anon21 says:

                  Roberts was on the D.C. Circuit 26 months prior to being nominated to the Court. I don’t think the 10 months made a whole world of difference. Thomas was qualified.

                • Warren Terra says:

                  Roberts was ten years older, had served as deputy and as acting Solicitor General, and spent a decade after his time on the bench practicing law. Thomas was 40 and had mostly worked in executive positions not requiring a law degree. Their resume credentials for the Court were fairly different.

                • jb says:

                  I don’t agree; I think his conventional qualifications were completely sufficient.

                  If that’s the case, then why did the American Bar Association-under heavy pressure from the Republicans- give him the lowest possible rating besides “unqualified”. Is the ABA somehow biased towards the Democrats?

                • Anon21 says:

                  “Is the ABA somehow biased towards the Democrats?”

                  Well, yeah. It’s not a huge deal or anything, but the organization is dominated by liberal lawyers, and I think Republicans are right to think they tend to be harder on conservative nominees.

                • Warren Terra says:

                  Anon21, what about your assertion that his qualifications don’t differ greatly from Roberts’s?

                • Anon21 says:

                  I forgot that Roberts was deputy SG, and that’s a significant qualification that Thomas lacked. I don’t think it’s much of a hit to say that Thomas’s executive-branch positions didn’t require a law degree. That’s increasingly true of legal academics, and yet that’s rightly seen as highly relevant experience for SCOTUS. I think Thomas’s experience as EEOC chairman is highly relevant to the kind of work that federal judges do.

                  Basically what it comes down to is that he was younger than Roberts and never served in the SG’s office. While the latter is a legitimate point in Roberts’s favor, I place less weight on the former; piling up years up private practice has never struck me as a particularly good way of preparing for a judgeship.

                • Tom Servo says:

                  Not that working in the SG’s office isn’t impressive, or that it isn’t an excellent experience/resume bullet point (probably the most relevant work experience short of being a SCOTUS clerk for a future Justice).

                  But I think that pedigree diversity is important. I don’t think Justices (and CoA judges while we’re at it) should all come from the same plum federal jobs and top law firms. I’m not going to argue that it’s bad to have a Justice who worked in the SG’s office (or, in Kagan’s case, was the SG), but how about diversifying a little bit? How about a state Attorney General? Why not more state supreme court judges like Souter?

                • Tom Servo says:

                  Maybe private practice in general. But Roberts’ private practice focused on the Supreme Court. I’d think a guy like, say, Neal Katyal, even if he had never been a Deputy SG/Acting SG would be qualified on the basis of, well, basically having Roberts’ old job at Hogan Lovells.

                • Lee Rudolph says:

                  Why not more state supreme court judges like Souter?

                  Or like Joe Bevilacqua and Thomas Fay!!!

                • Breadbaker says:

                  What the court needs is fewer people with federal court of appeals experience and more people with state trial judge and state appellate judge experience. If I recall, only Sotomayor has trial judge experience at all and that was federal and none of the current bench has been a state court judge. The Supreme Court’s decisions matter a lot to those judges because they’re bound by them. Having someone on the court who knows what it’s like to actually put a U.S. Supreme Court decision into effect would be a really helpful thing.

              • Richard Gadsden says:

                I think that, at the time, he was the only African-American appeal court judge appointed by a Republican President.

                He was technically not the only registered Republican: Amalya Kearse never changed her registration.

    • Royko says:

      I get the same impression. It’s a myth that got started on the left (possibly due to racism) and spread, and now it keeps getting repeated by people who just don’t know better.

      But I still think it’s valuable for Scott to keep informing people that as an attack on Thomas it’s both wrong and playing into racist tropes. Zombie myths are hard to kill.

    • ThrottleJockey says:

      Everyone knows that Lexis/Nexis was the name of the time transport Martian ultimate weapon on Lost in Space.

    • Dilan Esper says:

      I think you are overestimating how much people who say things like this (“Thomas is Scalia’s puppet” etc..) know about the Supreme Court or about Law. There are a lot more people who say stupid shit about stuff, especially on the internet, than even know what stuff is.

      This is absolutely true. I am not going to rehash my argument about snark, but there’s just a lot of disrespect for legitimate expertise on the Internet (and it happens on both the right and the left, though I do believe it happens MORE on the right because of ideological hobbyhorses they have on issues such as global warming and evolution). And discussions also veer off way too often into such subjects as hypocrisy, tone policing, and debates over logical fallacy. There are things that really exist and are bad (such as “mansplaining”) but which get overused by people who just don’t want to have a discussion at all.

      There really isn’t that much that can be done about this. The Internet puts so much information out there that it has the tendency to leave everyone thinking like they are an expert at everything. But people really should step back and understand their areas of expertise. For instance, I make very measured comments about the education policy posts here, because even though I have SOME opinions on education policy, I really know that I am not an expert at it and haven’t looked at all the data or followed all of the debates. On the other hand, I speak much more definitively about constitutional law.

      But people who think they know more than experts about fields they haven’t worked in or researched carefully are going to end up looking like they have their heads up their asses.

  5. Modulo Myself says:

    My private take on Thomas is that he’s a very smart man, but completely unsuited for most public things.

    Like he totally harassed Anita Hill and countless other women in the seventies, and I doubt his misogyny has been lost, but in his mind, I think, the narrative he built was that he drank a ton in the and did all of these terrible things, but in the eighties, when he found God, all of his sins were behind him and so it was as if none if it had ever happened.

    It’s very warped and insane philosophy for someone who ended up as Supreme Court Justice to have. That he fits in so well with other conservatives, and that no one really says, off the record, he’s fucking alarming when you talk to him, is fucking alarming.

    • postmodulator says:

      You know, I followed the original Thomas/Hill hearings and I’d never heard the part about the boozing.

      “Found God?” Thomas is a Catholic. Typically Catholics don’t talk that way, in my experience.

      • Lee Rudolph says:

        Not even Charistmatic Catholics (of which I think I thought he was one)?

        • postmodulator says:

          That’s a thing?

          • Lee Rudolph says:

            Certainly it is (you can look it up in Wikipedia).
            However, my information about Thomas’s religious behavior seems to have been a bit confused in the first place, and may also be outdated. I found this in a 1991 LA Times article:

            Supreme Court nominee Clarence Thomas and his wife regularly attend services at a charismatic Episcopal church that has been active in the anti-abortion movement in the Washington area, according to church officials. Although he grew up a Roman Catholic, Thomas has gone to Episcopal churches for the last decade, friends and White House officials said. During the last year, he and his wife, Virginia, have become regular attendees at the Truro Episcopal Church in Fairfax, Va.

            According to the Wikipedia article on Thomas, he has more recently become “reconciled to the Catholic Church”, and so he may now be doing without a weekly helping of glossolalia, faith healing, and suchlike
            “charismatic” practices. Bet he’s still an anti-choice zealot, though!

            • postmodulator says:

              One of the features of the Thomas hearings, before Anita Hill testified, was Thomas’s defenders accusing his critics of anti-Catholic bigotry in opposing him.

              I can’t fucking believe they did that at a time when Thomas hadn’t been a practicing Catholic for a decade.

          • Shakezula says:

            I have some in-laws who are members of a Charismatic RCC in Florida. I always thought it would be cool if when they spoke in tongues it was perfect Latin, but I didn’t ask.

          • Egg MacGuffin says:

            I grew up around Pentecostals (who hate Catholics as a matter of faith), and had never heard of this either. I wonder if they would get along?

      • jim, some guy in iowa says:

        if memory serves, he’s one of those super-duty Catholics (Opus Dei?) that have an awful lot in common with Protestant fundamentalists

        • james says:

          Lots, in some ways. But the come to Jesus stuff is really deeply foreign to Catholics. There are lots of reasons for that; the faith and good works thing is a pretty serious divide, culturally. Sometimes you’ll see a bit of it from media figures, but generally even deeply conservative Catholics find it a bit gross.

          • SatanicPanic says:

            Anecdotal but when I was kid the priest in our Catholic church was always mentioning Jimmy Swaggart in his sermons and once or twice played tapes of people “speaking in tongues”. The general consensus was relief when he finally retired and the next guy didn’t try anything similar.

          • aimai says:

            Anybody remember this? This is the story, reported everywhere, that Clarence Thomas participated in one of Ashcroft’s loony “I annoint myself with oil” like the Kings of Judea before assuming political office? IIRC there was quite a bit of overlap between the various branches of charismatic believers over such things as the annointing with oil. Who was Thomas’s best friend–a Senator or a Congressman? I can’t find his name but I remember that there was a whole lot of “laying on of hands” and praying over Thomas at the time of the hearings.

            My point here, and I do have one, is that Thomas, like Scalia, participates in a very overwrought and totalizing, catastrophizing, approach to his religious identity and the idea that we are living in a devil haunted world or near the end times.

            • postmodulator says:

              It’s crazy how we went out, found a bunch of people who were essentially babbling to themselves on street corners, and decided to have them run the country.

            • JazzBumpa says:

              living in a devil haunted world or near the end times.

              With climate change, hive collapse, the impending Keyston pipeline [what could possibly go wrong?] West VA water, fracking, a sink hole in the Corvette musem swallowing cars, and drought in the California bread basket I wonder if we actually are in the end times.

          • jim, some guy in iowa says:

            yeah, I was trying to make a distinction by using ‘super-duty’… the Catholics of my acquaintance and in the extended family are serious but at the same time pretty quiet about it all

      • Modulo Myself says:

        There’s this:

        Supreme Court Justice Clarence Thomas was a binge drinker who had a pornography habit or fetish in the 1980s, then changed radically when he stopped drinking alcohol, his former girlfriend told CNN on Monday.

        “Clarence became not the person I knew when I first met him,” she said, adding that he “drank to excess” when they first met and might have been a “raving alcoholic” at that time. When he gave up alcohol, she said, he became “angry, short-tempered, asexual” and obsessive with ambition and what she called “weird things,” such as long runs in the dark before dawn.

    • Egg MacGuffin says:

      But it’s true that he still denies any impropriety towards Professor Hill, right? As a Catholic, shouldn’t he have some proscriptions against, you know, blatantly lying in public?

    • Phoeey the Lurker says:

      Anita Hill was still in college in the seventies. She graduated from law school in 1980.

  6. DAS says:

    When a liberal tells other liberals how they can or cannot criticize Clarence Thomas, doesn’t that make liberals the real racists? ( / wingnut logic )

  7. sleepyirv says:

    Thomas not speaking during oral arguments is one of the most idiotic things to hold against a judge. Supreme Court justices like to preen by embarrassing lawyers with impossible questions while all the important arguments appear in the briefs.

    The problem with Thomas is that he’s an unrestrained zealot who blames everyone but himself for everything wrong in his life. From his zealotry, he is more intellectually coherent than Scalia and more willing to cut through precedent to get to his preferred conclusion (correct in the case of privileges and immunities, but otherwise usually wrong and sometimes dangerously wrong).

    I wonder if down the road Thomas becomes the more respected judge than Scalia. I think the ideologically driven judges with a recognizable philosophy are more fondly remembered than the politicians.

    • DAS says:

      I thought one of the perks of being an appellate judge or being a justice was getting to preen whilst embarrassing lawyers in oral arguments. What kind of person would pass up such a fun opportunity?

      Yes. I am a tenured professor. Why do you ask?

      • CJColucci says:

        The thing about Thomas isn’t that he asks a lot fewer questions at oral argument than other judges, it’s that he goes years without asking any. I have no idea what to make of it, but it’s just weird on a human level.

        • Tom Servo says:

          Yeah, that’s the thing. It’s fine to not place importance on it, but years and years without asking a single question? I get that there are 8 other justices, and maybe they’ll hit on points that you are curious about. But asking no questions whatsoever for years seems more like an affectation. I myself am skeptical about oral argument. I’ve been a moot court competitor and a moot court judge, and I have to say, I have always enjoyed the brief writing and reading much more. But even still, I find it hard to believe that I, in his position, would never ask a single question. Both because one has to occur to you more frequently than once every several years, and because why would I hand my detractors a cudgel like that on a silver platter, life tenure notwithstanding?

          • Breadbaker says:

            That’s exactly the point. Let’s take his criticism of oral argument at absolute face value: what is to stop Justice Thomas from being a force for change by asking questions on the simple basis that he has some issues on which he’d appreciate some attention by the lawyers arguing. I served as a judicial clerk at a court where preening wasn’t the custom, and my judge would mark the briefs with questions on which he wanted to know the parties’ positions. Sometimes it was as simple as “how do you explain the fact that you conceded this point below?”

            • Tom Servo says:

              Indeed. I never usually don’t like to make absolute statements, but I’m confident in this one: you always have questions floating through your mind after you read a brief. Clarification, asking why a party didn’t discuss a certain case, asking them to explain apparent contradictions in their brief-there’s always something you can ask.

              And unless your fellow justices are clairvoyant, they won’t always ask what you’re thinking. And you add on top of that the fact that Justices quite honestly don’t spend that much time discussing cases, it’s unlikely that they’ll ask exactly what another’s thinking.

    • Joe says:

      I mostly agree with this though the P/I point is a case in point in respect to how Thomas pushes aside precedent, which is a basic part and restraint of judging. Starting from scratch would be something of a mess, even if it would be better (if there wasn’t so much water under the bridge) if that is the path taken. Anyway, if you read his opinions, the test he references amounts to a similar code phrase for determining what rights are fundamental. At the end of the day, doctrinal nicety gets you little there at this stage. Scalia realizes this & it is a way his actual judging is not as knee-jerk as his rhetoric.

      Anyway, this Thomas as Scalia’s puppet deal is really akin to conservatives who made Marshall out to be Brennan’s puppet. The not talking at oral argument thing is to me misguided (he actually asked some good questions the few times he did back in the day) since he takes it to extremes imho but it is a pretty lame thing to rest on when criticizing him.

      • Tom Servo says:

        Case in point: his McDonald concurrence. I think his history is solid and he makes valid point, but you can’t just deep-six a century and a half of substantive due process in one fell swoop.

    • Nobdy says:

      It’s not a good thing to hold against him as a jurist (and not only is the preening inane but it often interrupts presentation of arguments and rarely leads to anything illuminating) but it’s understandable why the public is uncomfortable with a guy who sits up there and says nothing while the others all jabber away.

      There are many problems with Thomas. Not only does he blame others with what’s wrong with his life (And really what’s so bad? He’s a goddamned Supreme Court justice. It’s not like he was relegated to being a janitor at Arby’s.) but is lacking in compassion and way too comfortable with power and tyranny.

      • Tom Servo says:

        One could make the very convincing point that since, unlike the Executive branch which can use force to carry out its will, the Judicial branch relies on its esteem and reputation, so appearances are more important there than any other branch (even the Legislative branch). So even if Thomas is right about oral argument, asking questions might be important from a perspective of maintaining the Supreme Court’s institutional legitimacy (the same can be said about too many 5-4 decisions undermining the legitimacy of the Court’s decisions, opinions like Bush v. Gore, etc.)

    • rea says:

      As someone who ahs done a fair number of appellate oral arguments, I really appreciate a judge who can ask good questions, judges who ask foolish questions are annoying (I’ll never forgive the one who got cross with me because I didn’t know where my client’s business was located–it had nothing to do with the issues on appeal)and judges who remain silent make you wonder whether they are awake.

      • Denverite says:

        One time I got ripped into by a federal appellate judge for using the word “stuff.” The judge didn’t like it. S/he thought it was too informal for such a somber setting.

      • Joe says:

        Thomas has a unique view of things. I repeatedly find it wrong, but appreciate it that it is put out there. Not asking questions is one less way advocates can have an ability to directly address his specific concerns.

        I find Thomas often is assigned mundane cases or has mundane if perfectly professional opinions and his passion comes out in his concurring and dissenting opinions. But, one thing good about Scalia is that he gives and takes. He overdoes it, but Thomas should do more of it.

        • Tom Servo says:

          Well, picture yourself being the Chief, or the senior justice assigning an opinion. If you’ve got a narrow coalition, you’re going to assign it to the shakiest vote-that’s why Kennedy gets so many juicy opinions. Thomas isn’t going to dissent because Kennedy isn’t conservative enough, he’ll just write separately to say he’d go further.

          • Joe says:

            That’s true as far as it goes, but Thomas has gotten some opinions in touchy areas too. They still are written in a usual dry style. It’s sort of like if you get him at some public event (like a college event) where he is comfortable and he lets loose a bit.

          • chris says:

            Technically, he’s only going to “dissent” if he disagrees with the majority *outcome*. If he wants to reach the same result for other reasons, he’d “concur in the result only” (and sometimes does).

            IIRC, according to the traditions of the Court, the only time when Thomas can be assigned to write the main opinion is when he not only agrees with the majority on the outcome, but *also* agrees with a plurality of that side on the reasoning. (I’m not sure which opinion is considered the main one if 6 justices agree on the result, but split 3-3 on the reasoning, or similar.)

            So the idiosyncrasy of his views would explain why it only happens on the most bland cases.

            • Tom Servo says:

              I think you misunderstood me. I’m well aware of what dissents and concurrences are. The point is, Thomas is so unshakably to the right in most instances, he’s not going to go over to the other side like another Justice might if Thomas wrote an opinion that was too far to the right. Although, he would be far more likely to concur, but you still want to avoid that if it’s going to get you a 4-4-1.

              Thomas can be assigned to write any opinion by either the Chief or the senior justice for the majority/dissent (this isn’t even a rule, it’s just an institutional norm, albeit a powerful one)-opinion assignments are determined by pragmatism, among other things.

      • David M. Nieporent says:

        The rare en banc court aside, the Supreme Court is one of the biggest appellate panels one will face, though. Most federal/state appellate divisions have three judge panels, and even state supreme courts tend to have only seven. My point is that while I agree that as an advocate you want good questions, you don’t need all nine justices speaking up in order to get them, and in fact if all nine justices are talking, there’s not really much time for you to do so.

        • Breadbaker says:

          There’s a difference between “all nine justices talking on every case” and “eight justices talking on some cases during a term and one justice not speaking a word.” If Justice Kagan has nothing to say on a particular case she can keep her mouth shut for that one case, but if she has something to say on the next case she will (I pick her only because she’s the only one I know well enough to say hello to).

      • Tom Servo says:

        Can you imagine drawing a panel at the Circuit level that’s all judges like Thomas? I mean, shit. I don’t do appellate work (well, I do occasionally, I just don’t do the oral arguments), but I remember getting cold benches in my moot court days.

        Thing is, the way they teach you, at least in moot court, that on a really hot bench you’ll be interrupted before you can finish even your first point, and you have to get used to circling back around to what you were saying on a dime-it’s easy to get lost when facing a barrage of questions. I was always prepared to at least go two solid minutes in case I got a cold bench, but it’s really, really off-putting when a bench is cold or even freezing (student judges my 1L year-ugh, maybe 5 questions in 10 minutes). It’s not an opening statement, it’s not supposed to be a speech, but if you in front of three Clarence Thomases, it would become a speech.

        • Tom Servo says:

          I mean, it would never happen, but the thought is terrifying.

        • Anon21 says:

          Professional appellate advocates—particularly prosecutors—know that it’s okay to hit on a point or two that you think may have gotten short shrift in the briefing, respond to any point of your opponent’s that you think may have gotten purchase with the panel, ask for questions, then sit down three minutes after you took the podium. When I clerked, I saw one AUSA make use of this technique several times to very good effect. Judges appreciate it when you don’t waste their time arguing obvious points.

    • Tom Servo says:

      You make a valid point, but you fall into the trap of overstating your case. Assholes like Antonin Scalia and Byron White give oral argument a bad rap: it’s for grandstanding and messing with lawyers. And sometimes it is. And sometimes the more dignified justices, like Roberts (I’m no fan of his, but he takes oral argument seriously and doesn’t use it to abuse the lawyers) and Ginsburg ask thoughtful, pointed questions. Sometimes Breyer will be overly professorial and ask meandering questions, but it’s not really the same as Scalia-ing.

      And oral argument is important if a judge/justice thinks it’s important. Thomas will stare at the ceiling during oral argument (I’ve been to oral argument and seen it, not taking a gratuitous swipe at him). Chief Justice Roberts wrote an interesting article while he was on the DC Circuit about how he, as a practitioner, questioned how important oral argument was, but grew to appreciate it and place importance on it as a judge. Now, some of that might have just been posturing, but the fact of the matter is that it was a thoughtful piece.

    • agorabum says:

      To be respected, he needs to do something worthy of respect. There is a lot of injustice in the US, is he doing something on the bench that might change that? Generally no? Well, ok then.
      Scalia will have more ‘respect’ of a kind, because he is more quotable. Scalia will be this era’s quotable, reactionary curmudgeon.
      Thomas doesn’t write enough majority opinions, or blistering dissents, to be that guy. And even when he does, his legal jurisprudence is so odd that it doesn’t get traction.
      Put another way: if we live in a future where Thomas is celebrated and his legal philosophy holds a broad sway – we are in a bad place. Far more likely that his thoughts lead down an intellectual cul-de-sac.

  8. aimai says:

    The way I think Scalia and Thomas are alike is that they are both bitter, angry, grudge holders who see their role on the Supreme Court as punishing and correcting the errors of liberal society. In that way I think its fair to see a link between them or a shared type.

  9. Derelict says:

    Thomas is, indeed, open to all manner of criticism. From his confirmation hearings (“I’m the victim of a high-tech lynching.”) to the substance and reasoning of his opinions, there is much to dislike.

    I don’t know where the characterization of him as Scalia’s sock puppet came from. I’m much more inclined to just look at the man’s record and behavior, and then draw the natural conclusion that he doesn’t really understand the country or the system in which (and under which) he lives.

    • Poochy says:

      From wikipedia:

      The conventional wisdom that Thomas’s votes follow Antonin Scalia’s is reflected by Linda Greenhouse’s observation that Thomas voted with Scalia 91 percent of the time during October Term 2006, and with Justice John Paul Stevens the least, 36% of the time.[98] Jan Crawford Greenburg asserts that to some extent, this is true in the other direction as well, that Scalia often joins Thomas instead of Thomas joining Scalia.[99] Statistics compiled annually by Tom Goldstein of SCOTUSblog demonstrate that Greenhouse’s count is methodology-specific, counting non-unanimous cases where Scalia and Thomas voted for the same litigant, regardless of whether they got there by the same reasoning.[100] Goldstein’s statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences. For example, in that same term, Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia. By the metric that produces the 91% Scalia/Thomas figure, Ginsburg and Breyer agreed 90% of the time. Roberts and Alito agreed 94% of the time.[101]

      So the perception of Thomas as a sock puppet comes from a fairly close alignment in voting and the fact that Thomas is typically quiet during oral arguments and Scalia is a grandstanding loudmouth.

    • sharculese says:

      That’s the thing. There are so many obviously correct ways to criticize Thomas there’s no reason except laziness to fall back on the lame, kind-of-racist ones.

    • postmodulator says:

      I’d bet it forms as a result of: the conservatives on the court vote as a bloc, Thomas never says anything in oral arguments, Scalia is kind of the face of the conservatives of the court, ergo Thomas is just voting how Scalia wants.

      As others have said, it’s an easy assumption to make if you don’t have the education to read the opinions. (As I, for example, do not.)

      • postmodulator says:

        Poochy got there just ahead of me — and with a cite! Go back to your home planet, Poochy.

        • JazzBumpa says:

          Here’s the previous paragraph.

          Thomas voted most frequently with Chief Justice Rehnquist and Justice Scalia in his early tenure on the Supreme Court.[80] On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%).[96] Scalia and Thomas’s agreement rate peaked in 1996, at 97.7%.[96] By 2004, however, other pairs of justices were observed to be more closely aligned than Scalia and Thomas

          This goes beyond mere conservative partisanship. Thomas earned the sock puppet description by silently aligning himself with a radical outlier. Impressions like that are hard to overturn.

          You can read a racist interpretation into if you wish, but it is not inherent in the sock-puppet idea, nor in its application to Thomas.

          • Tom Servo says:

            Nah, your rationalization that it’s not racist or at the very least dubious is not at all convincing. Think what you want, but keep your embarrassing rationalizations to yourself.

            Also, it takes a while to sort of “grow into” the job. I’d like to see a comparison to other Justices.

            • JazzBumpa says:

              What about an 86.7% correspondence with an extremist is not convincing?

              How does not convincing lead to embarrassing rationalization?

              Isn’t a decade plus plenty of time to grow into a job?

              • Sebastian H says:

                The problems is you are ignoring the next sentence. Multiple pairings of other justices agree more frequently, but they never get called sock puppets of each other. Only the black man gets the label, and on less evidence.

      • Tom Servo says:

        That’s not really a fair characterization-both sides tend to vote as a bloc. You sometimes get exotic coalitions with, say, criminal procedure cases, but both the liberals and conservatives tend to be predictable in their votes and coalitions.

    • somethingblue says:

      I think one classic formulation goes back to a 1994 column by Anna Quindlen:

      Time, they say, wounds all heels. Justice Thomas’s tenure on the high court is shadowed not by Ms. Hill’s charges but by his own lack of stature. The taxpayers could save on the salaries of his staff if Justice Scalia was simply given two votes.

      I think that was probably fair at the time; I’ll take Scott’s word for it that Thomas’s jurisprudence has become more distinctive and interesting in the intervening two decades. To me he just seems like an embittered man who’s going to take out his considerable personal issues on liberals until they pry the pen from his cold dead fingers. That’s about as much thought as I’m willing to give him.

      • Scott Lemieux says:

        I think that was probably fair at the time

        It really wasn’t — Thomas has always had very distinctive views. I like Quindlen but she just didn’t know what she was talking about here.

        • Tyto says:

          IIRC, even Scalia affirmed this, referring obliquely to Thomas as a “nut.”

        • Tyto says:

          Here’s the quote, from the NYT:

          Justice Scalia doesn’t dispute these historical conclusions, but he said that unlike Justice Thomas, he wasn’t ready to reverse the decisions applying the First Amendment’s restrictions on religion to the states. “I’m not going to rip all that up; it’s water under the dam,” he said in a 1997 speech. “In other words, I am an originalist. I am a textualist. I am not a nut.”

        • JazzBumpa says:

          I like Quindlen but she just didn’t know what she was talking about here.


          On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%).[96] Scalia and Thomas’s agreement rate peaked in 1996, at 97.7%

          • Tyto says:

            Yes. Despite clear differences in constitutional theory, they are both fundamentally conservative and will vote together on a number of issues. They “action” is where they do not align, and Quindlen’s claim that the similarity in records means we might as well have two Scalias is lazy and factually wrong.

          • Scott Lemieux says:

            So was Souter Gibsburg’s puppet, or vice versa?

      • Tom Servo says:

        OK, look. Even assuming arguendo that it was fair at the time, that does not excuse intellectual laziness in the present.

  10. N__B says:

    He’s a flaming asshole. Why confuse the issue with other accusations?

    • Lee Rudolph says:

      There are apparently important distinctions to be made between assholes that flame subsequent to the ingestion of Sriracha, and those achieve superficially equivalent effects from Three Alarm Chili.

  11. Nobdy says:

    A lot of this comes not from racism necessarily but from the fact that Thomas does not talk during oral arguments…at all. If you don’t read his judicial opinions (And most people don’t because they are not lawyers) you get the impression that he’s a blank slate with nothing to say. Combine that with his voting alongside Scalia the vast majority of the time and the fact that Scalia was on the Court first and it seems like he joined the Court and just started doing Scalia’s bidding while having nothing to say for himself. This is, of course, false, but a lot of people are very frustrated by Thomas who is, let’s face it, a huge weirdo. From the not speaking thing to the Anita Hill stuff, to his bizarre ideas about racism, he’s just a weird, weird hard to read guy. It’s easier to think of him as a puppet than to try to understand him.

    • CJColucci says:

      This makes a great deal of sense.

    • Tom Servo says:

      For all his faults, Thomas consistently (and deliberately, as interviews with him bear out) writes some of the easiest to read/understand opinions. You won’t find rhetorical flourishes, but you probably won’t get lost either. Compare his opinions to, say, Ginsburg’s. Justice Ginsburg is one of my personal heroes, but I do not like her writing style.

      • Scott Lemieux says:

        This is sometimes true, but it should be noted that I’ve rarely seen a dissent eviscerate an opinion more calmly and thoroughly than her Shelby County dissent. I know it’s a soft target, but still.

  12. Eli Rabett says:

    Everyday Clarence Thomas sets a new world record as the least self aware person alive. Undoubtedly the streak will continue when he dies.

    • agorabum says:

      Massively lacking self awareness…but there are so many other wingnuts who score very well in this regard.
      Karl Rove just published a piece in the WSJ attacking Obama, noting that from “rising political polarization to retreating U.S. power overseas and increasing Middle East chaos and violence, Mr. Obama’s successor—Republican or Democratic—will inherit a mess.”
      I can’t say that Thomas on race relations in 1960 was less-self aware…but it can be so hard to choose.

  13. Denverite says:

    I have two loosely connected points to make.

    First, there was some suggestion yesterday that “oh, it’s just Thomas’s clerks doing all of the heavy lifting.” That could mean two things. The first is that the clerks are determining how cases should be decided, what analysis to use, etc. As Scott noted, given that the clerks are only there for a year, that’s highly unlikely. Thomas’s views have been pretty consistent and pretty outside the mainstream, and his clerks are pretty eclectic, so it’s very difficult to reconcile those facts with the idea that he’s some sort of imbecile letting his clerks do his thinking for him.

    The second thing it could mean is that Thomas gives his clerks a general idea of how he wants to come out, and what sort of analysis to use, and then they do the leg work of getting that vision down on paper. The best thing to say about this is that if that practice makes you an imbecile, then at least 90% of the federal judiciary are imbeciles. Virtually everyone — from magistrates hearing a social security appeal up through SCOTUS justices — has their clerks prepare the first draft of almost every opinion. Indeed, the only judge I’ve heard of that doesn’t in Easterbrook, and even then, I’ve always had my suspicions that his legendary unwillingness to let clerks prepare the first draft is overstated. Part of being a good clerk is figuring out how your judge likes to write and trying to mimic it; part of being a good judge is learning how to edit a draft opinion so it seems like your own but doesn’t seem like it was written by two different people.

    That takes me to my second point. Scalia is really bad at that last bit. His opinions go along, flowing smoothly, and then there will be a disjointed snarky or nasty aside thrown in. As I said in the other thread, you might as well have an explicit flag that says “Nino’s comments start here.” You never get that sense with Thomas. Ever.

    • timb says:

      from magistrates hearing a social security appeal

      Ow, Denverite, just ow.

      • Denverite says:


        I’m not saying those aren’t important, just that they’re a pretty mundane, run-of-the-mill proceeding — and the judges typically have their clerks prepare a first draft, just like SCOTUS justices do in cases involving profound issues of constitutional law.

        • timb says:

          Nah, I was kidding you. My only quibble with your reply is that I’m not the magistrates ever do anything to their law clerks’ decisions. I always train our law clerks and new attorneys to write for 2L’s. Given the choice of handling habeaus appeals and multimillion dollar lawsuits, I think my “the-ALJ-made-the-same-mistake-as-the-latest-ten-times-I’ve-been-here” ends up on the back burner.

          Seriously, you should see how long it takes the Court to make a decision on these cases. And, since 2010 elections, the approval rate dropped from 62% to 45%, even though the cases didn’t change, there are now twice as many of them than before (according to my local AUSA)

          • Denverite says:

            I think a lot of the fall in the approval rate can be traced to the rise in the number of cases. If you’re going to approve, you have to address all of the grounds raised by the applicant. If you remand, you only have to address one.

            • timb says:

              I meant the the fall in approvals was at the administrative level. Nationally, in Federal Courts SSA still loses 50-55% of the time (although my firm’s record is better than 80% — holla).

          • Tom Servo says:

            It really is amazing how much habeas and social security stuff you get. If I lived in a low cost of living area somewhere in the plains or the mountain west, I wouldn’t mind the pay and job security of being a federal district judge, but it seems boring and repetitive. I’d rather play a judge on TV.

            • Denverite says:

              This depends entirely on who handles the brunt of the social security appeals and the habeas stuff. If you’re in a district where the former get referred automatically to the magistrate and you have some really good habeas clerks, it can go pretty smoothly. (We had the latter but not the former, alas. I don’t remember how many social security decisions I did, but it’s double digits to be sure.)

    • Tom Servo says:

      I think Posner is another guy who doesn’t let his clerks draft opinions. But, as far as judges go, he’s weird. My (district) judge hated drafting (as in first draft) opinions, even interesting ones. To be fair, the first draft is the hardest (at least I think), and most people, not just judges, don’t enjoy writing as much as Posner obviously does (he’s written what, 40 books??!).

  14. Srsly Dad Y says:

    I mostly agree about oral arguments, but still … You’ve probably done some judging right? Sitting mute throughout an argument is unnatural (and, in the case of a single judge, even a bit of a power play) in our legal culture. The advocate wants most of all not to leave the court with unanswered questions. Not asking a single one year after year seems to reflect some odd personal commitment to staying silent. I think he’s dug himself a hole at this point, since he knows that if he says anything now it will make a splash. And apparently, he has said he passes notes to Justice Breyer to suggest questions, which suggests he has a double standard.

    • Srsly Dad Y says:

      Was supposed to be a reply to sleepyirv.

    • L2P says:

      In appellate practice I’ve often had one or sometimes two justices remain silent. If one justice asks the pertinent questions and there’s no need for follow up, that’s it. They don’t want to waste time.

      There’s no need for Thomas to say anything at these hearings even if he wanted to get more info. The other justices are certainly going to cover whatever needs to be covered. I don’t see the problem.

      • Tom Servo says:

        I guess, but years? If I were him I’d ask one question every other day (hell, week) of oral argument. Just to give my detractors less of a cudgel to beat me with. Life tenure though…

    • Tom Servo says:

      I mean, when I did (policy) debate, the judges were silent, so silent judging only seems unnatural to me because of my legal training. But, I agree.

  15. rea says:

    In the 1880s, claiming that Slaughterhouse Cases was wrongly decided might have made sense, but today, arguing that we should rethink 14th Amendment jurisprudence da capo is a recipe for disaster.

  16. I disagree strongly with both of their jurisprudential and political ideologies but I met both of them back in the late 90’s. In my limited interactions, Thomas was friendly, gregarious, took time to thoughtfully answer questions and smiled. Tony was dismissive, haughty, and berated a poor server at a restaurant for 5 minutes for making a small mistake.
    Take it for what it’s worth.

    • PSP says:

      I’ve been told by several people that Thomas was very friendly when they met him. This includes a couple of female law students who expected him to be repellent.

      Alito was also very friendly when I met him (he was still a Third Circuit Judge then).

      I’d still rather that neither of them was on the Court.

      • David M. Nieporent says:

        Quoting Nina Totenberg:

        Indeed, within the walls of the Supreme Court, he’s the most well-liked justice. He knows the janitors, cafeteria workers, everyone. He knows their names, the names of their family members, where they’re in school, and he is viewed by the law clerks of all the justices as the most accessible of the court’s members.

  17. Brian Leiter says:


  18. Gwen says:

    You’re right… even though they are almost always on the same side of the vote, my recollection is that Thomas’s jurisprudence tends to be more libertarian and textualist (and less committed to stare decisis) whereas Scalia’s tends to be more traditionalist and stand-pat.

  19. Walmart parkinglot visitor says:

    Well, is it OK with you if I call Thomas a mumchance vengeful geek?

  20. Major Kong says:

    As I said in my original post:

    I feel no requirement to be kind or fair where someone as vile as Clarence Thomas is concerned.

    I had no intention of being fair when I made the statement.

    When he does something that deserves fairness let me know.

    • Anon21 says:

      Great. So good to know that we can lob racist and misogynistic garbage at Michelle Malkin just because she’s a horrible sub-Coulter right-wing propagandist. And that we can lob anti-semitic slurs at Jonah Goldberg. Really wonderful that because Clarence Thomas is a bad person, you’re entitled to be a racist.

    • JL says:

      It’s not about whether Thomas is vile or not, it’s about whether you should be feeding racist tropes. Which affect an awful lot of people who aren’t Clarence Thomas.

      Also, as Scott pointed out, it’s about contributing to the overrating of Scalia, who is also vile.

    • Warren Terra says:

      Thomas is slime, and is deserving of vitriol. Hell, leaving his jurisprudence aside, the interviews from the book tour for his memoirs were characterized by a stream of anti-liberal bile that would set him among the more disreputable Teabaggers.

      The point isn’t Thomas, it’s you, it’s how you appear, and how you make the rest of us appear. When you attack Thomas using echoes of a racist trope, your apparent comfortableness with racism becomes the message, not how thoroughly awful and worthy of attack Thomas is. You let yourself down, and you leave yourself open; also, the rest of us.

      Feel free to be vile about the despicable, but have a care how you do it! Aim higher as you aim lower!

    • Tom Servo says:

      We’ll buy you a big wooden cross, so that every time you feel unappreciated for your comments, you can climb on up and nail yourself to it.

      You’re underinformed and made a jackass comment. Whatever. But keep digging yourself deeper, that’s smart.

    • witless chum says:

      Major, I almost always like your comments when I see them, but you’re dead wrong on this. It doesn’t cost anything to be fair to Thomas.

  21. CP Norris says:

    Mr. Lemieux, I don’t think that that link labeled “since the beginning days of this blog” works as you intended.

  22. wengler says:

    This is true because while Scalia is a paranoid asshole, Thomas is a corrupt misogynist.

  23. CDWard says:

    Thomas should be impeached for failing to recuse himself in Bush v. Gore when his wife was on the Bush transition team.

    • Warren Terra says:

      As referenced above with respect to his failure to disclose his wife’s employer, Thomas is probably incorruptable: he is completely closed to persuasion and unwilling to change his mind, so there’s nothing to corrupt. There was no way he was ever going to rule against Bush.

      • Breadbaker says:

        That is not what conflict of interest means, however. The actual legal issues in Bush v. Gore had absolutely no “liberal” or “conservative” aspect; only the result did. If someone has a personal economic stake in the outcome because their spouse or other close family relation will benefit from that outcome, they should recuse themselves because of the appearance of fairness even if their decision is in no sense going to be changed as a result of that fact.

        The best example is Tom Clark resigning from the court when his son was appointed Attorney General. If you were to ask Thomas (or Scalia) why that happened, they’d probably give you a very dull look. Well, Nino wouldn’t because that’s not in his repertoire.

  24. Halloween Jack says:

    I think it comes down to Scalia being the public loudmouth vs. Thomas being the guy who doesn’t ask questions in oral arguments.

  25. […] to the south again," said Bernd Osterloh, head of VW's works council.Don't call Clarence Thomas a Scalia puppet.[T]he narrative is not only wrong in offensive way about Thomas, it buys into the Scalia myth. […]

  26. […] regulations. Clarence Thomas’s tenure heading the EEOC is both an excellent rebuttal to the myth that he’s an intellectual lightweight and strong contemporaneous evidence that he was very reactionary. Hans von Spakovsky worked on […]

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