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July 07, 2006

Clarence Thomas: Jurist For the Common Man

Long-suffering time VC readers know the half-vast editorial staff have long had a huge crush on dishy Supreme Court Justice Clarence Thomas, also known to our Democratic Brethren-in-Christ as Judge Dredd, Leader of the Black Five, Lord of the Nazgul, secret head of the ultra-sinister Constitution in Exile movement:

Membership in this clandestine Brotherhood must have been an awfully well-kept secret, for the arcane and conspiratorial nature of the plot was such that the rank and file apparently went about their business for decades, blissfully unaware they were engaged in a desperate struggle to overthrow the Republic...The fiendish members of this plot took the backward view that judges ought to try reading the actual verbiage penned by our Founding Fathers instead of haring off to nations like, say... France in search of a hand-rolled Gauloise and a Derrida primer (the better to deconstruct the Commerce Clause whilst staving off that annoying sense of anomie that comes from eating one too many confits).

We confess the very sight of Justice Thomas makes us feel warm and fuzzy all over. But oddly, he seems to inspire our Lefty friends to flights of hyperbole.

Thomas. Mein Gott Im Himmel!, who would have guessed it! That pudgy, avuncular-looking little man, suddenly rising up in his black robes like the Lord of the Nazgul. Stooping to pick at the flesh of a Woman's Right To Choose and grabbing welfare dollars from the hands of baby-Daddies all over this great nation! Sure, he may look like a teddy bear, but he's [[[shudder]]] worse than Scalia!

Well, Cohen's not quite that bad, but he comes darned close:

A minority [how dare the peasants contradict the majority! Don't they read the Constitution?] of the U.S. Supreme Court seems not to have been living in America for the past several years. The three -- Antonin Scalia, Clarence Thomas and Samuel Alito -- not only dissented from the majority's opinion that George W. Bush had confused himself with a monarch in establishing military tribunals at Guantanamo Bay, they also accused the other justices of "audacity" [!!!!] in second-guessing the president. Have these eminent jurists never heard of weapons of mass destruction?

If ever there was a president who begged to be second-guessed, it is the one we unaccountably now have. History will record him as the president who responded to a terrorist attack launched from Afghanistan by also going to war against Iraq. It will remember him as the one who insisted this be done so as to rid that foul nation of chemical, biological and atomic weapons, of which, when the smoke had cleared and the country was conquered, none could be found. It does not take audacity to second-guess Bush. It takes prudence.

But we have to be careful here. After all, the reason some in the Bush administration (and elsewhere) were so convinced that Saddam Hussein possessed WMD is that he once possessed WMD. If the weapons could not be found, it was because they were being cleverly and diabolically hidden -- not because they no longer existed. And when United Nations inspectors returned from Iraq with empty hands, they were vilified as fools and dismissed with contempt by such clear thinkers as Dick Cheney. The proof that Hussein had weapons of mass destruction was the very fact that he would not turn them over.

We here at VC just adore the faux populist rhetoric of the Cohen crowd. Just trust the media to protect you from those big, bad 'monarchists' in the Bush administration who keep "fear-mongering" to keep you "little people" in a state of terrified ignorance. Not that folks like Dick Cohen are trying to scare us with their portrayals of a Fourth Reich with a mad King George at the helm, mind you. Because that would be like... fear mongering, wouldn't it?

The irony is almost too delicious to contemplate at times.

There are so many things we of the great unwashed are not supposed to question in a free society. For instance, ignorant Red Staters should not question why UN inspectors were unable to find over 500 chemical munitions when they had free reign of a nation the size of California. Nossir. We are not supposed to wonder why they never got around to searching most of the suspected WMD sites before airily announcing that there were no WMDs. And above all, we are never to ask whether, just perhaps, not having found a thing after not having looked in most of the places it could have been hidden is really the best "proof" that it doesn't exist? That is, we are told, altogether the wrong sort of question, as we would know if we hadn't been brainwashed by the Bush administration. We should keep an open mind on the question of WMDs by accepting what the NY Times has told us unquestioningly.

We are not supposed to ask why informed deciders like Bill Keller (who assure us their default stance is always to inform the public first, even if this damages ongoing terrorism investigations) keep telling us there have never been any WMDs, but don't find it "in the public interest" to inform us when 500 of these munitions are found in Iraq. We are not to ask why he doesn't tell us that their contents, properly used, are just as deadly as the day they were manufactured, as even WWI-era weapons are known to be. Keller's defenders are quick to remind us: this is not news! It's all in the meaning of what "is", is, you see. These are not "real" WMDs, though Saddam was bound by UN sanctions to find and destroy them.

But Mr. Keller's determination to protect us from unpleasantness is not limited to non-news about non-existent WMDs. He also shields the public from non-news about non-existent non-terrorists! Apparently yesterday Mr. Keller did not find it "in the public interest" to inform his readers that the FBI had foiled a terrorist plot to place explosives in the Holland Tunnel. One might think, given the events at the WTC in September of 2001, this news might be of more than casual interest to the residents of New York City.

But one would be wrong. You see, this "is" not news either. It doesn't fit Mr. Keller's narrative. It isn't at all the type of complicated or inconvenient information with which the Times believes the public can be trusted.

Democrats like Harry Reid are quick to dismiss Clarence Thomas. He is, after all, a plain-spoken man. He is not given to the flights of rhetorical eloquence we've come to expect from an Antonin Scalia, but it is just this quality that makes me search out his dissents eagerly. He is a Justice for the Common Man. He returns law to each of us, distilling from a tangled and byzantine mess the essential rightness that the Founders intended: that we should be able to own and understand our Constitution. Cohen's elitist sentiments (that a minority dissent must somehow be intellectually wrong on the merits) is almost funny given that the Democrats have been complaining for ages about being drowned out by a conservative majority. Of course, now that liberals have the ascendancy, Cohen positively revels in majoritarian triumphalism. Got irony?

Mr. Cohen needs to abandon his partisanship and examine Judge Thomas' jurisprudence more closely. I think he would find much to admire. Unless they mean to repudiate all he stood for, the party that finds it convenient to selectively quote Thomas Jefferson, who favored a weak central government with most power reserved to the States, would surely approve of this statement by Judge Thomas:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

And Thomas' opinion in Hamdan is eminently sensible. He does not favor handing a blank check to the President. He merely observes that the Judiciary is neither charged with waging war nor negotiating treaties and foreign policy. Therefore he is alarmed at the Court's arbitrary treatment of the DTA passed by Congress. And he notes that the Court has ignored its own longstanding precedent in choosing not to defer to the President's equally reasonable interpretation of Article 3 of the Geneva Convention.

His reasoning makes perfect sense. The President, he notes, is charged by Article 2 with protecting the People and commanding our armed forces. The judiciary is not. If there are two equally reasonable interpretations of an ambiguous clause, and the Court itself has deferred to the President in the past in similar circumstances, wherein lies the rationale for departing from this practice now? Thomas notes that no one on the Court has experience in waging war or conducting foreign policy. No one on the Court is elected, nor are they responsible to the People if we are attacked. Therefore, the Court should defer to Congress and to the President in these matters and not overreach their Constitutional charter.

But to men like Richard Cohen, because Clarence Thomas doesn't eat brie and read Jacques Derrida whilst capriciously reinterpreting the Geneva Convention to include al Qaeda suspects among the class of persons to whom we should extend Geneva protections, he is "overreaching". Apparently, the Constitution, which intended the opinions of the minority as well as the majority to be respected, has no place for men like Clarence Thomas. They should simply go to the back of the bus.

Sometimes I wonder if this quietly gentle, compelling man will ever get the respect he deserves?

Posted by Cassandra at July 7, 2006 03:40 PM


He doesn't read the Desiderata? No doubt the universe is unfolding as it should and he has a right to be here. He will read someday, and then
he will Usher In The Age Of Aquarius.

Or slap someone.

Posted by: Cricket at July 8, 2006 12:51 PM

Good post, Cass.

Posted by: JannyMae at July 8, 2006 01:42 PM

Well-said. I have been a Thomas fan since at least last year - http://dw-links.blogspot.com/2005/06/supreme-court-not-in-anyones-backyard.html

Posted by: Don Wood Files at July 8, 2006 01:50 PM

Of all the Justices, Mr. Justice Thomas' spare, succinct, opinions have always signalled to me that he understands the weight of his office. His measured writings show that he is a man that not only thinks for himself, but that he also thinks deeply in a national sense, weighing both the past and the future before he ever opens his mouth. He continues to grow on the Court. I hope the Court will grow with him.

Posted by: The Man at July 8, 2006 03:20 PM

I agree wholeheartedly and shall defend to the death everything the Man said about Justice Thomas.

Posted by: KJ at July 8, 2006 03:25 PM

"...Leader of the Black Five..."

I thought Matt was our leader.

Posted by: Grim at July 8, 2006 03:29 PM

Your fidelity to The Man is very well appreciated, KJ. Judging from your billables this month, however, you should be thankful The Man doesen't overly concern himself with minimum wage employees.

Posted by: The Man at July 8, 2006 04:52 PM

Both of you appear to be racking up the billable hours of late.

I am sure the distaff sides of the rdr and J households appreciate all this effort to keep the wolf away from the door. A lot of guys don't bother.

Posted by: The Stranger at July 8, 2006 05:23 PM

I think that Thomas will eventually get the respect he deserves from legal historians. He is impressive.

Posted by: MaxedOutMama at July 8, 2006 05:47 PM

The opinion by some on the court regarding the Geneva Convention leads one to believe that the criteria used in the judicial nomination process is useless and the process pointless.

Many 3rd year law students could fair better.

Posted by: Neo at July 8, 2006 06:50 PM

His English muffins are pretty doggone good too.

BTW, on an unrelated note, I'm bicycling on the C & O next month. Email me for details, if interested...

Posted by: camojack at July 9, 2006 08:53 AM

Thomas wants to prevent the federal government from protecting the environmnet (or, if you nasty, "One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States"), ergo he's for the common man. Oh, and the NY Times is traitorous.

Compelling reason.

Posted by: jpe at July 9, 2006 12:35 PM

If these lefties were even truly understanding their Derrida, they'd realize that Thomas is actually right...because I and others agree and interpret his positions as such. That Cohen disagrees? Meh. Following Derridaian deconstructionism, it is relative. Since it is relative, there must be ideological space for Thomas to be absolutely right as well as Lord of the Nazgul. Correct?

Who are the left to claim exclusive providence over the "correct" interpretations of Thomas's opinions as texts or Thomas's jurisprudence and legal philosphy as text?

No one - that's who. Derrida is crack for those who want to abdicate thinking and comparitive judgement to the ether of "endless textual readings and interpretations." Kind of like the court justices who read things in the Constitution and the GC's that were never there nor were ever intended to be.

Great post!

Posted by: Good Lt at July 10, 2006 06:32 AM

I almost arm-wrestled Clarence Thomas.

Just sayin'

Posted by: Army Lawyer at July 10, 2006 01:32 PM

No! I'm so jealous! KJ met him, and I almost arm-wrestled KJ... heh.

Posted by: Cassandra at July 10, 2006 01:49 PM

camo, I'll try to catch up with you. I'm behind right now on my mail.

Posted by: Cassandra at July 10, 2006 01:49 PM

The Bush administration itself has acknowledged, on several ocassions, that they were wrong on the WMD issue, and even strong supporters of the Iraq war have pointed out that this is a very serious matter. When I went, with my conservative student group, to see conservative author and political genius Ben Stein at St. Louis University, he expressed support for the Iraq war, but said that the intelligence regarding it was wrong, and if President Bush had had the correct information, he would not have made the decision that he did. If I were one of the remaining supporters of horrid war, and if I also wanted to maintain straightforwardness and truthfulness, I wouldn't claim that the Bush administration was right after all about "WMDs," and would try to justify the war using other rationales.

And the Hon. Justice Thomas is, in my view, the best member of the U.S. Supreme Court. We need eight more of him there.

Posted by: Aakash at August 7, 2006 10:56 PM

LONG LIVE U.S.S.C. Justice Clarence Thomas.

Posted by: Gregory Creswell at June 6, 2007 02:10 PM

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