January 03, 2005

Thomas's Embarassment

Harry Reid (D - Nev) will be Senate Minority leader when the 109th Congress is formed. Very little ink has been shed on his disparagement of Justice Clarence Thomas. Outside of Taranto's Best of the Web Today very little.

Senator Reid said of Justice Thomas "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written." Taranto has called for interviewers to demand an example of a poorly written opinion.

It seems that on CNN's "Inside Politics" he did, saying that in Hillside Dairy v. Lyons the difference between Scalia's dissent and Thomas's was "like looking at an eighth-grade dissertation compared to somebody who just graduated from Harvard."

Follow the link to read Thomas's very brief dissent if you feel like a little "judis crituqueus" but don't look for Scalia's -- it doesn't exist!

That's right, there was no Scalia dissent. Scalia joined the court's majority opinion, written by Justice John Paul Stevens, as did every other justice except Thomas, and he dissented only from Part II.

Reid's substantive criticism of Thomas--if it can be dignified with such a description--turns out to be equally empty. According to Reid,

Scalia "doesn't want to turn stare decisis precedent on its head," while Thomas does. Presumably this refers to Thomas's rejection of the court's "negative Commerce Clause" jurisprudence. In his Hillside Dairy opinion, as we've seen, Thomas does not elaborate on this, instead pointing the reader to his lengthy dissent in the earlier Newfound/Owatonna case--a dissent Scalia joined. In other words, Thomas and Scalia both would overturn Supreme Court precedent in this area; the only point of disagreement in Hillside Dairy was whether to address the question in this particular case.

We suppose Reid will find some staff knucklehead to take the fall for this appallingly shoddy research, but the question remains: Why is the Democratic leader of the U.S. Senate so intent on insulting the intelligence of Clarence Thomas, the only black member of the Supreme Court?

I like Reid well enough. He will be far less objectionable than most of the Senate Ds, but I don't think he should get a pass on this.

More alarming still -- If President Bush names four more ultra-right-wing justices, the protection afforded our citizenry by Hillside Dairy v. Lyons could be taken away -- this President will roll the clock back to 2003!

UPDATE: Hey, my dumb joke made WSJ's Best of the Web today!

Posted by jk at January 3, 2005 04:12 PM

Yeah, but Taranto forgot to link to you. I hate when that happens. By the way, it wasn't a dumb joke; I liked it. (Oh, maybe that means it was.)

Posted by: Attila at January 4, 2005 02:07 PM

Thanks -- I encourage readers to click on the "Attila" name and visit his "Pillage Idiot" blog at http://pillageidiot.blogspot.com/

No! not all at once! You don't want to bring down his server!

Posted by: jk at January 5, 2005 10:46 AM
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