Did anyone NOT stack the SCOTUS?

Great Debates
21

[QUOTE=Renob]
dennis, you are correct about Thomas’s career, but so what? As others have pointed out, there have been quite a few justices who had little judicial experience and who were nominated. Earl Warren, for one. So don’t try to assert that Thomas was “unqualified” for the Court. There are a variety of different backgrounds that makes one qualified for the Court. Thomas had a perfectly reasonable background for a Justice.

Do yourself a favor and pick up Supreme Conflict, the recently published book about the recent Supreme Court. In that, author Jan Greenburg details how from his very first cast Thomas has staked out positions that have repeatedly won over his fellow jusitices and has been very influential in the writing of decisions. I know this blows away the trendy thought that Thomas is a token, an idiot, and a clone of Scalia, but you might find it useful nonetheless.
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So nothing, so it is my opinion that with the nomination of Thomas an uoproar over stacking the court finally erupted. It is not so much that he was academically and legally unqualified, some of his own professors at Yale signed statements to that effect, but he was so clearly lying in the confirmation hearings. I, myself, don’t know what he could have said to ease the troubled mind of NOW, but saying that he had no opinion on Roe v. Wade was a blatant lie. This fact coupled with his antagonism toward affirmative action when he had benefitted from it his entire academic life, making his very supreme court appointment an affirmative action just fanned the flames. His appointment might be the most politcally motivated in the history of the court. As a result every appointment since has been suspect and seen to be part of some evil plan. It may have always been this way, but the appointment of Thomas really woke everyone up.

22

dennis, have you forgotten the Robert Bork experience a few years prior to the Thomas nomination? I think that was the beginning of the current animosity that surrounds SC appointments. Before that, Scalia sailed through the Senate with nary a “no” vote. You think someone with Scalia’s background would be able to do this today?

23

[QUOTE=dennis ]
This fact coupled with his antagonism toward affirmative action when he had benefitted from it his entire academic life,
[/quote]

Cite?

24

[QUOTE=Renob]
dennis, have you forgotten the Robert Bork experience a few years prior to the Thomas nomination? I think that was the beginning of the current animosity that surrounds SC appointments. Before that, Scalia sailed through the Senate with nary a “no” vote. You think someone with Scalia’s background would be able to do this today?
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Well, this is the debate page so you can certainly make that claim, but I would say there were a few significant differences. Noone, to my knowledge, argued that Bork was not qualified either because of a shortage in the academic area or because he did not have sufficient legal experience. (Just as important, he is from my hometown.)

The problem with Bork was, it seems to me, he attempted to honestly answer the committee’s questions and disqualified himself. Thomas went the other route and lied. Probably there is very little difference between their philosophies although for some reason whenever Bork explains something I seem to have no idea what he is talking about.

Yes, I think a Scalia clone could get through today because one did, Clarence Thomas. I also think Scalia could as well because he is so very clever and so it is said, amiable.

25

[QUOTE=Bricker]
Cite?
[/QUOTE]

It is not clear what you want a cite for - Thomas benefitting from affirmative action?
Wikipedia reports that he was admitted to Holy Cross because of a wide search for qualified blacks that took place just as Thomas was leaving the seminary. He did very well at Holy Cross and was admitted under affirmative action to Yale, where he found things very difficult (and where he may have developed his dislike for affirmative action) due to what he felt were assumptions that he was not qualified. He eventually was made head of the EEOC at the age of 34 (and I am just going to say that this is my opinion that race was a factor.) I am also going to boldly say that I think race was a factor in his nomination to replace Thurgood Marshall, the only black to previously sit on the court. Since neither of these two assertions can be proved without getting the nominating part to agree, in the case of the EEOC, Reagan is dead and in the case of the SC, Bush has already stated that he picked Thomas because he was the most qualified candidate, which I say is a lie, I can do no more than cite the opinion of another, which seems pointless.

If you think affirmative action was not a factor in his success I would be curious to hear your side.

26

Can anyone recommend a good treatise/article on the subject of the history of SJ nominee hearings? My recollection (subject to my faulty memory) is that Bork, not Thomas, rekindled the partisan nature of hearings, and that prior to that as long as the nominee was presentable he sailed through without the Senate looking too closely during the hearings at the nominee’s jurisprudence. I seem to recall that the Senate gave deference to the President, but at the same time the President knew better than to nominate someone certain to draw the Senate’s ire.

Put another way, my mom solved disputes between warring siblings over the last piece of cake by letting sibling #1 cut the cake and sibling #2 get first pick of which slice to take. This process ensured that that cake was cut evenly. Nowadays, the President makes no bones about trying to take the biggest slice and his nominee always puts on a dance of the seven veils to claim that such isn’t the case, to really really mix metaphors.

27

[QUOTE=Renob]
How was Clarence Thomas lacking a Supreme Court resume? And how was he a Scalia “clone”? Thomas had a good background in the executive branch and a few years on the bench. He was as qualified – or more qualified – than many justices that have served. As for being a Scalia clone, anyone who has read Thomas’s pre-Supreme Court writings can see that his view on the law (a natural law theory) is much different than Scalia’s views (who rejects natural law). Yes, they often come to the same conclusion, but to call Thomas a Scalia clone is simply inaccurate (especially given the current research on the SC which proves that Thomas has influenced Scalia’s decisions far more than Scalia has influenced Thomas).
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Good point. Also, in a lot of ways, Thomas is just plain more conservative than Scalia - a lot more, actually. This is a guy who genuinely, truly wants to roll back our “commerce clause” jurisprudence back to the 19th century - no child welfare laws, no labor law, nothing of that sort. Not that he’s opposed to these things in principal - Thomas isn’t some sort of monster. But he genuinely believes that the Constitution doesn’t give congress - as opposed to state legislatures - the power to enact these laws.

If you read his opinion in Morse v. Tinker, you also know he wants to reverse Tinker, the premier student-speech case. Not just modify - outright reverse. Even Scalia didn’t join Thomas on this. Renob’s got it right - Thomas reaches his decisions in a very different way from Scalia, and sometimes only agrees with Scalia because it’s the “least-bad” opinion he can see getting any support.

28

[QUOTE=Mr. Moto]
Not necessarily. These theories may not necessarily conflict in certain case areas, which would mean they would reach the same conclusion by honest deliberation anyway. Besides, they are constrained by case law much of the time.

Indeed, many Supreme Court decisions are unanimous or nearly so, and we know that Scalia and Ginsburg have very different theories on the law.
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well, they wouold be constrained by case law and stare decisis if they chose to believe in it. as you can see from today’s decision, they don’t.

29

But neither man claims that he’s just presented his own legal opinion - they say they followed established legal principles to an inevitable conclusion. The idea is that they might theoretically issue a “liberal” opinion like declaring gay marriage is protected by the Constitution if that happened to be where their trail of principles led them. So the fact that they consistently issue conservative decisions is simply a coincidence (or more likely they would say that it’s reflective of conservative opinions being based on sound legal principles).

However this argument breaks down on the fact that they don’t follow the same principles. Even if they reach the same conclusion the fact that they arrived there by two different routes indicates that there was a choice of which principles could be followed. And if there were two valid sets of principles that could be used to reach a conclusion, then how can anyone say that there might not be some third or fourth or fifth set of principles that neither justice explored? And these different principles might have led to a different, although equally well supported, decision. So their conclusion was not inevitable - it was just the outcome of the principles they chose to follow in that case.

30

[QUOTE=Little Nemo]
But neither man claims that he’s just presented his own legal opinion - they say they followed established legal principles to an inevitable conclusion. The idea is that they might theoretically issue a “liberal” opinion like declaring gay marriage is protected by the Constitution if that happened to be where their trail of principles led them. So the fact that they consistently issue conservative decisions is simply a coincidence (or more likely they would say that it’s reflective of conservative opinions being based on sound legal principles).

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Scalia sided with Stevens, hardly a conservative, in Hamdi v. Rumsfeld, ruling that the government’s detention of a U.S. citizen as an enemy combatant without charge was unconstitutional because Congress had not suspended the writ of habeas corpus. Did his pen just slip that day?

31

[QUOTE=dennis gallagher]
It is not clear what you want a cite for - Thomas benefitting from affirmative action?
[/quote]

You specified “during his academic career”. As you concede, the issue of his appointments to the bench is simply your unsubstantiated opinion.

These are the statements that you should cite. For example, I can’t find the Wikipedia reference you allude to.

32

[QUOTE=Little Nemo]
But neither man claims that he’s just presented his own legal opinion - they say they followed established legal principles to an inevitable conclusion. The idea is that they might theoretically issue a “liberal” opinion like declaring gay marriage is protected by the Constitution if that happened to be where their trail of principles led them. So the fact that they consistently issue conservative decisions is simply a coincidence (or more likely they would say that it’s reflective of conservative opinions being based on sound legal principles).

However this argument breaks down on the fact that they don’t follow the same principles. Even if they reach the same conclusion the fact that they arrived there by two different routes indicates that there was a choice of which principles could be followed. And if there were two valid sets of principles that could be used to reach a conclusion, then how can anyone say that there might not be some third or fourth or fifth set of principles that neither justice explored? And these different principles might have led to a different, although equally well supported, decision. So their conclusion was not inevitable - it was just the outcome of the principles they chose to follow in that case.
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I hate to disagree (lol) but I think that every justice expresses his “legal” opinion in every case (actually i don’t think that but i hope the justices do.) His legal opinion is arrived at by interpreting case law, statutory law and the constitution where appropriate. reecently some justices have taken to referencing the laws of other countries. the point is they all consider the law and arrive at a conclusion which is, in fact, their legal opinion. it might not be the way they would hope the case would turn out. they might all wish the law were different, but they must make their decision in accordance with existing law.

the problem in reconciling the conservative and liberal opinions is that many of today’s issues, homosexuality, civil rights, segregated schools, abortion, immigration and so forth did not exist or were not problems when the constitution was written and therefore there is often no specific mention of them. The textualist, such as Scalia, always refers to the plain language of the constitution, in making his decisions, the originalist like Thomas apparently performs some other type of analysis in arriving at his conclusions (although i have no idea what), but since I am repeatedly told they are not clones, they are performing different analyses of the same issue and then arrive, by very different means at the same conclusion.
The liberal justice, who once existed believe it or not, would attempt to extrapolate from the written words of the constitution, the manner in which the founding fathers intended for a particular situation not specifically addressed to be settled, thus we have penumbras and rights to privacy, and no child labor.

I do see where you are heading with the multiple routes theory, but i think each justice is committed to his own interpretation and would challenge any other and s/he would be particularly aggressive in challenging alternative conclusions that were made based on some other method of interpretation other than his/her own. Additionally one has to be careful in discovering alternative methods of interpretation to make sure they don’t conflict with the decisions one has already made. You can’t be going around changing your method of interpretation in various cases just to make sure you reach the conclusion you want, why that would make you nothing more than a … chief justice.

33

[QUOTE=Bricker]
You specified “during his academic career”. As you concede, the issue of his appointments to the bench is simply your unsubstantiated opinion.

These are the statements that you should cite. For example, I can’t find the Wikipedia reference you allude to.
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You are corect. sorry. it was not cited in wikipedia but it is cited at oyez.org. see below for address.

34

I seem to remember that there was a clause in the deed to his property that it could not be sold to a certain racial minority: Clarence Thomas, for example.

Which of the issues that you listed did not exist or was not a problem when the Constitution was written?

35

[QUOTE=Zoe]
I seem to remember that there was a clause in the deed to his property that it could not be sold to a certain racial minority: Clarence Thomas, for example.

Which of the issues that you listed did not exist or was not a problem when the Constitution was written?
[/QUOTE]

civil rights

36

[QUOTE=dennis gallagher]
You are corect. sorry. it was not cited in wikipedia but it is cited at oyez.org. see below for address.

[/QUOTE]

Your cite says:

Post hoc, ergo propter hoc. Where’s the showing that Thomas would have been unable to gain admission to the school absent the “black recruitment” program – that is, on his own merits as a scholar? By your reasoning, every single black student admitted to the school subsequent to the program’s inception would be the beneficiary of affirmative action.

Parenthetically, I would note that your assumption is a classic problem of affirmative action: lowered expectations. Every single black student of Holy Cross is unable to compete on a level playing field, if we adopt your reasoning.

37

[QUOTE=Zoe]
I seem to remember that there was a clause in the deed to his property that it could not be sold to a certain racial minority: Clarence Thomas, for example.
[/quote]

And?

Did Bork place it there?

Are you aware that such restrictive deeds follow the land, unremovable by action of the owner alone, in hundreds of thousands of properties? That Bork, as a lawyer himself, would be well aware that such a covenent was unenforceable and legally meaningless as the result of a 1948 Supreme Court decision and the 1964 Civil Rights Act? That similar covenants run with the property bought and sold by African-American families every week?

They are certainly a reminder of our shameful racially discriminatory past. But they are not an indictment against a particular owner, because a particular owner cannot usually act on his own to remove it. It’s a covenant, the same variety of regulation that can force you to belong to a homeowners’ association.

38

[QUOTE=Bricker]
Your cite says:

Post hoc, ergo propter hoc. Where’s the showing that Thomas would have been unable to gain admission to the school absent the “black recruitment” program – that is, on his own merits as a scholar? By your reasoning, every single black student admitted to the school subsequent to the program’s inception would be the beneficiary of affirmative action.

Parenthetically, I would note that your assumption is a classic problem of affirmative action: lowered expectations. Every single black student of Holy Cross is unable to compete on a level playing field, if we adopt your reasoning.
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I think the cite speaks for itself, you are correct it does not say Thomas would not have been abole to gain admission on his own had he tried. What it does say is what I said, Thaomas benefitted from affirmative action because he was able to go there and graduate and succeed BECAUSE THEY RECRUITED HIM UNDER A NEW PROGRAM IN ORDER TO ACHIEVE DIVERSITY.

39

[QUOTE=dennis gallagher]
I think the cite speaks for itself, you are correct it does not say Thomas would not have been abole to gain admission on his own had he tried. What it does say is what I said, Thaomas benefitted from affirmative action because he was able to go there and graduate and succeed BECAUSE THEY RECRUITED HIM UNDER A NEW PROGRAM IN ORDER TO ACHIEVE DIVERSITY.
[/QUOTE]
No, a simple reading of the cite provided does not say that. Sorry, it doesn’t.

40

[QUOTE=Bricker]
Your cite says:

Post hoc, ergo propter hoc. Where’s the showing that Thomas would have been unable to gain admission to the school absent the “black recruitment” program – that is, on his own merits as a scholar? By your reasoning, every single black student admitted to the school subsequent to the program’s inception would be the beneficiary of affirmative action.
[/QUOTE]

I’d also question the assertion that Thomas opposes that type of Affirmative Action-- ie, outreach programs, as opposed to quota-type programs or programs that offer reduced acceptance criteria for minorities. So, it’s unclear that he was a beneficiary of that program or that he opposes that type of program (especially given that we’re talking about private, not a public institution).