Well, the new year has brought lots of commentary on the ongoing Chief Justice derby. Law prof Steven Lubet opines here (hat tip: How Appealing) that Democrats should not filibuster Scalia for CJ, because (among other things) Scalia would likely be an ineffective chief. We made a similar point here, as did Rick Hasen.
Even more interesting is the commentary that a possible Clarence Thomas nomination is generating. Hasen says its unlikely — Anita Hill redux will generate too much heat, and his relative youth will embolden Democratic opposition. Larry Solum disagrees — he thinks Hill is old news, and Thomas’s youth alone isn’t enough to support a filibuster. We’ve already stated our view that Thomas is a better (from Bush’s perspective) nominee than Scalia, but that he too would likely be an ineffective Chief because his views are simply too radical for the rest of the Court (we also noted the risk of reopening the Anita Hill business). We’ve also noted that Thomas’s penchant for expensive gifts could be additional fodder for unpleasant confirmation hearings (the National Review’s "Corner" responds here). It’d be much savvier for Bush to nominate someone like Michael McConnell than either of these sitting Justices (as we’ve already discussed) — Bush would still get a smart religious conservative, but he’d get one who carries far less baggage than either Scalia or Thomas, who would be supported by liberal and conservative academics alike, and who’d likely be a far more effective Chief.
Unfortunately, there is an ugly undercurrent in the debate over Justice Thomas, fueled by the ill-advised comment by Senate minority leader-elect Harry Reid (D-Nev.) that Thomas is an "embarrassment to the Supreme Court" and that his opinions are "poorly written" (see our earlier post here for more on Reid). Frankly, I don’t see what Reid is talking about — Thomas’s opinions seem to me no better or worse written than anyone else’s on the Court, and calling him an "embarrassment" without further explanation is just, well, embarrassing. A group of conservative African-Americans has called upon Reid to apologize for his "racially-insensitive" remarks, and the conservative commentariat has been having a field day proffering Reid’s comments as evidence of pervasive "liberal racism." (There’s also anecdotal evidence of academics worrying that writing anything about Justice Thomas other than a critique could damage their standing with their colleagues.)
I don’t profess to know what Reid was (or wasn’t) thinking when he made his comment. And I utterly reject any suggestion (such as the one posted here by "Darleen," one of our own commenters) that all criticism of Thomas is actually covert criticism of him for "rejecting the Leftist dogma while black."
That said, I think it’s also fair to say that Democrats have left themselves open to these kinds of charges, at least in the case of Justice Thomas. So let’s be clear: Thomas is a smart, creative thinker — he is not a "Scalia clone" — and he has staked out reasonably clear and consistent positions on many important legal issues. Democrats, particularly those in the Senate, need to get that through their sometimes frustratingly thick skulls and deal with it.
Make no mistake: I am no fan of Justice Thomas’s jurisprudence, and the only reason I’d want to see him as Chief is because I think he’d be less effective (for reasons already stated) than some of the other candidates out there. And, as my earlier posts (see above for links) reveal, I think it’s perfectly legitimate to talk about the value of Thomas’s gifts exceeding by orders of magnitude those of any other Justice, particularly when the most valuable of them comes from a partisan activist whose organization filed amicus briefs in the Supreme Court; that is a valid issue of legal ethics (of course, its importance will be debated, but that doesn’t mean it’s not a valid issue). It’s also legitimate to argue against Thomas as Chief Justice based on a reasoned disagreement with his legal views. But to demean him with terms like "an embarrassment to the Supreme Court" (especially while simultaneously praising Scalia as a "smart guy" who might make a good Chief) plays right into the hands of those who think that all Democrats are hypocrites. Democrats should know better. It is neither morally acceptable nor smart politics to treat Justice Thomas with anything other than the respect that any other serious contender for Chief Justice would receive.
UPDATE: Jack Balkin has this thoughtful commentary from a couple of weeks ago on the word "embarrassment" as applied to Justice Thomas. (Hat tip: SCOTUSblog.)
FURTHER UPDATE: Justice Thomas is certainly a hot topic today. Volokh Conspiracy, How Appealing, SCOTUSblog, and several others picked up on this post, giving Blue Mass. Group our largest number of daily hits in our not quite two months of blogging. (Y’all come back now, ya hear?) And there’s more: Eugene Volokh has this post on Sen. Reid’s utterly lame effort on CNN to show how "poorly written" Thomas’s opinions are, in which Reid (1) cited a one-paragraph Thomas dissent which appears to be perfectly competent; and (2) compared it to Scalia’s supposedly brilliant dissent in the same case — a case in which there is no Scalia dissent! Oy.
I agree with the comments about how “embarassing” Justice Thomas were stupid … it tries to shame him when really what is at issue is a strong disagreement with his judicial philosophy. This confuses matters. OTOH, I honestly have enough respect in the SC as a Constitution to reject the cynical suggestions by some that Dems should root for a weak chief, even if it is a bad choice on substantive grounds. I don’t know if you support this view, so it is not meant to be applied to anyone in particular, though Richard Hasen seems to view Justice (CJ) Scalia in this light.
Thomas’s opinion in Hamdi was an embarassment. See this link to Greedy Clerks (http://tinyurl.com/4ey4q) for a short explanation of why that opinion had no foundation anywhere in anglo-american jurisprudence (at least since the magna carta.
I suppose it’s a matter of judgment (trying not to say “taste”), but it seems that the quality of J. Thomas’s opinions is entirely fair for criticism, even for those who simultaneously think Scalia’s are praiseworthy. Not only conclusions and typographical errors are to be lamented about judicial opinions; it seems perfectly reasonable to conclude Scalia is wrong and brilliant and Thomas is just wrong.And I would agree that being a serious contender for Chief is, in itself, sufficient reason to show respect to the man, if the person in charge of saying whether or not he gets there hadn’t thought Priscilla Owen was so gangbusters. I think people probably show respect to Scalia because his intellect commands it, not because he has some weird status of up-and-comer.
You are right — the dems need to clean up their “act”, regarding Clarence…….Consider,If we are not at war (as in officially through an act of Congress), and the government doesn’t like you (as in someone most likely anonymous has a accused you of something), then according to Thomas as sole dissenter in Hamdi vs Rumsfeld, you can be imprisoned essentially forever without being charged, without a phone call, without anyone ever knowing what became of you, in short; without any rights that even criminals get…It is not enough to wear a fancy hat.