# Lawyers -- is Clarence Thomas smart? **URL:** \ **Category:** Great Debates\ **Created:** [October 2, 2002, 12:26am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467 "2002-10-02T00:26:55Z")\ **Posts on this page:** 19\ **Page:** 3
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [October 3, 2002, 12:35am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/41 "2002-10-03T00:35:35Z")
> [@](#): > > Sort of. Clearly you have demonstrated that Breyer was hugely more qualified than Thomas at the time of appointment. Great. So, like I said, ball’s in your court. Burden of proof and all that. But… > [@](#): > > However, I was more looking for an evaluation based on Thomas’s actual legal writings. Okie dokie. From the law review article referenced earlier: > [@](#): > > First, Clarence Thomas would have been more comfortable as a justice nominated in 1791 or 1891, instead of 1991. What he seems to hold most dear is the original intent of the Framers of the Constitution. He seems most comfortable quoting Alexander Hamilton and James Madison, rather than the decisions that have shaped the modern jurisprudence of the Supreme Court in the last fifty years. He seems like a man out of place in many ways who would have fit better into the doctrine of another time. > > . . . > > [T]here is little evidence that Justice Thomas is concerned about the jurisprudence of the last fifty years, which has elevated the importance of humanity and individual dignity as constitutional values. His concern for the prerogatives of the States often leaves little room to be solicitous of the rights of individuals. > > . . . > > There is another hallmark of Thomas’ tenure on the Supreme Court. He is engaging in his own brand of judicial activism. Thomas is gradually building up, in concurring and dissenting opinions, an impressive array of invitations to litigants to bring cases to the Supreme Court and raise specific Constitutional issues he would like an opportunity to decide. Typically, these invitations raise issues that would allow Thomas to advance his belief in Federalism and the power of the States. > > Thomas hardly promotes the image of a classic conservative justice who sticks to the issues raised in the cases before him and does not go roaming over the landscape of the Constitution. Of course, Thomas is not the first justice to give in to the temptation of wanderlust. However, it is somewhat surprising to see Thomas profess a form of constitutional restraint, through Federalism limitations on the power of Congress and the courts, and meanwhile, reach out beyond the issues presented to the Supreme Court for opportunities to advance his views of the Constitution. > > The Commerce Clause is a favorite target for these Thomas excursions. In the Gun-Free Schools Zone Act case, United States v. Lopez, where the Court struck down a Federal law penalizing possession of a handgun within one thousand feet of a school, Thomas wrote the lone concurring opinion. He put the Court and future litigants on notice that he is ready, given the right case, to reconsider the “substantial effects” test under the Commerce Clause because it is inconsistent with the original intent of the Framers. > > Similarly, in the Violence Against Women Act case, United States v. Morrison, Thomas concurred briefly, stating that he had no quarrel with the decision invalidating the part of the federal statute that gave victims of gender-motivated violence the right to sue for damages. This, Thomas noted, was a correct application of existing precedent. However, Thomas again invited litigants to bring forth actions to abandon the “substantial effects” test and return to the Framers’ original intent when dealing with the Commerce Clause. If he could find the right case and muster a majority, Thomas would return Commerce Clause jurisprudence to the days before the Great Depression, ignoring the Court’s opinions over the last sixty-plus years. > > Traditional notions of Federalism are not the only fare promised in Thomas’ invitations. In the “Brady Act” (Handgun Violence Protection Act) case, Printz v. United States, Thomas accepted the Court’s decision to strike down the obligation of local law enforcement officials to conduct background checks on handgun purchases, based on Federalism. In his brief concurring opinion, however, he expressed the hope that the Court will have a chance to discourse on the meaning of the Second Amendment as a separate and untapped source of limitation on the power of Congress. Thomas even used the occasion to join in the contemporary debate among legal historians and constitutional theorists over the meaning of the Second Amendment. > > Thomas has outlined an ambitious agenda for himself and the Court. It is a strange trademark for a Justice who consistently tells audiences that an important limitation on the power of the Supreme Court is that it cannot reach out to decide issues not properly presented before the Court. Bad justice. Bad justice. (This really reinforces what **Sua** was saying earlier, by the way.) More if you like–there was a whole symposium based on evaluating Thomas’s first ten years, and while it doesn’t talk specifically about whether he writes well _per se_, there’s a lot of talk about the inconsistency of many of his written opinions. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [October 3, 2002, 1:55am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/42 "2002-10-03T01:55:27Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Actually, if december saw Bush v. Gore, he’d be in a position to corroborate the Orange County cite – december, just out of curiosity, what was Thomas like in that hearing? \*\* As I recall, he asked no questions, but remained awake. I heard no snoring. **Gadarene** , as I said, I’m in no position to evaluate Thomas’s legal smarts, not being a lawyer. Your law review cite is somewhat independent of the point of the OP. Granted Thomas favors original intent and the author of the article disagrees. Still, there are very smart people on various sides of issues. In fact, the law review article makes it sound as though Thomas is doing an effective job at moving the court in his direction. So, the writer of the article seems to think Thomas is competent, but doesn’t agree with his Constitutional philosophy. I still would be interested if anyone knows anything about Thomas’s technical decisions. These would be a better guide to his intelligence and legal ability, since they wouldn’t bring up partisanship on all sides. ---
**Author:** ![The\_Ace\_of\_Swords](https://avatars.discourse-cdn.com/v4/letter/t/e495f1/32.png) [@The\_Ace\_of\_Swords](https://boards.straightdope.com/u/The_Ace_of_Swords)\ **Post date:** [October 3, 2002, 4:06am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/43 "2002-10-03T04:06:49Z")
Yep, what’s a few Supreme Court justices here or there? Forgive me if I find myself unable to take the gaming of our ulitmate court “lightly,” aka “Just get over it.” Perhaps if I was on the winning side of such gaming? Please advise, Ace. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 3, 2002, 4:56am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/44 "2002-10-03T04:56:38Z")
:rolleyes: Ace, honestly, nowhere in this thread have I stated that Thomas was the best selection or the most qualified. As I’ve said, I don’t think he’s a great justice by any stretch of the imagination (although I don’t think he’s quite the dregs, either). My quip about Fortas is an old line, and one that seemed to me to fit the discussion at hand. It was just that, a quip, nothing more. It was not a defense of Thomas’ selection. You’re reading entirely too much into it. Most people understand this intuitively. The fact that it has to be explained to you does not speak well of your judgment. So, again I say: lighten up. As Dave Barry would put it, if nothing else government exists to amuse us. ---
**Author:** ![RexDart](https://avatars.discourse-cdn.com/v4/letter/r/b77776/32.png) [@RexDart](https://boards.straightdope.com/u/RexDart)\ **Post date:** [October 3, 2002, 5:35am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/45 "2002-10-03T05:35:05Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Actually, even the “Scalia’s bitch” criticism isn’t quite right. True, Scalia and Thomas usually end up favoring the same outcome on hot-button cases, they often reach their conclusions using completely different modes of analysis. There are several opinions where they write separate dissents, or one writes the majority opinion and the other writes a concurring opinion. Scalia is the strictest of strict constructionists (a “textualist” to be precise) while Thomas approaches cases from more of a natural-law view. > \*\* Just to correct one thing…“textualism” is not the strictest form of construction. Textualism looks within the four corners of the document, considers portions of the document in reference to other portions and follows the “Golden Rule” of avoiding patently absurd meanings, and even considers author and audience. What it does not do is look to external clues to derive meaning. That’s Scalia. Thomas, on the other hand, often appears to be the more extreme sort of _sola textura_ advocate, the “literalist”. A literalist looks directly to the definition of each word, Webster’s Dictionary or Black’s depending on whether the word is lay or legal technical. I think that is precisely the approach needed to handle some of the more complex issues that come before the court, like tax. In general, I consider textualism the best interpretive scheme, as literalism seems willfully blind to other internal clues within the legislation. However, there is something to be said for just assigning each word it’s clear meaning, it makes the legislature work a little harder at defining it’s own terms more clearly so as not to have their “intent” (if there is such a thing in a 500+ member body) frustrated. Anyway, experience and sum of years changed O’Connor greatly, no telling what Thomas will be like 20 years from now. ---
**Author:** ![I\_am\_Sparticus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@I\_am\_Sparticus](https://boards.straightdope.com/u/I_am_Sparticus)\ **Post date:** [October 3, 2002, 7:26am UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/46 "2002-10-03T07:26:18Z")
Every time I see this thread title pop up on my “view new posts” I keep wanting to post this, so now that everyone has their licks in: Fredo: “I’M SCHMMMAART!” ---
**Author:** ![The\_Ace\_of\_Swords](https://avatars.discourse-cdn.com/v4/letter/t/e495f1/32.png) [@The\_Ace\_of\_Swords](https://boards.straightdope.com/u/The_Ace_of_Swords)\ **Post date:** [October 3, 2002, 1:56pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/47 "2002-10-03T13:56:06Z")
Ah, I see. Wonderfully accurate observations of Clarence Thomas, those: Not the greatest justice, not the most qualified – you should write a column for the Nation with that kind of perspicacious insight. Your first could be “Clarence Thomas, not best thing since sliced bread,” followed by “Clarence Thomas, despite rumors, still not god.” Well, forgive my truculence, DCU, I find myself unable to take this lightly; I suppose we all have our flaws. For instance, I commend your judgment in remaining unaffected by shortcomings of this administration. I assume your Sunday schedule will remain free of such fripperous concerns as the anti-war protest in Central Park. Your absence will felt by all, but we will somehow find the courage to carry on. Exceedingly Warm Regards, -Ace ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 3, 2002, 2:35pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/48 "2002-10-03T14:35:19Z")
> [@](#): > > _Originally posted by Ace0Spades_ > **Ah, I see. Wonderfully accurate observations of Clarence Thomas, those: Not the greatest justice, not the most qualified – you should write a column for the Nation with that kind of perspicacious insight.** Funny, I wasn’t going for earthshattering insight – I was just giving my view on the question proposed by the OP.\*\* > [@](#): > > Well, forgive my truculence, DCU, I find myself unable to take this lightly; I suppose we all have our flaws.\*\* Yes, I see you’re a proud graduate of the [Jesse Jackson School of Humor Appreciation](http://www.bet.com/articles/0,1048,c1sc77gb4000-4687,00.html).\*\* > [@](#): > > I assume your Sunday schedule will remain free of such fripperous concerns as the anti-war protest in Central Park. \*\* If I took the time to attend every little protest in New York, I’d have no time for things like…oh…a job. ---
**Author:** ![The\_Ace\_of\_Swords](https://avatars.discourse-cdn.com/v4/letter/t/e495f1/32.png) [@The\_Ace\_of\_Swords](https://boards.straightdope.com/u/The_Ace_of_Swords)\ **Post date:** [October 3, 2002, 4:33pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/49 "2002-10-03T16:33:23Z")
I begin to understand. Clarence Thomas is a good justice. 20,000 people is a little protest. Did you, perhaps, go for the “convex” option at LensCrafters? On a personal note, I’m glad to hear you’ve fond gainful employ once again; A man of your legal ability at must be greatly desired at any number of accounting firms in this current climate. We’ll be the poorer without our full ration of disingenuous tripe here at the SDMB – I do hope you’ve nominated an understudy. -Ace ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [October 3, 2002, 4:39pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/50 "2002-10-03T16:39:53Z")
**Ace** : Chill. **Dewey’s** been perfectly reasonable, in this and other threads. If you wanna argue with him, at least start trotting out some, y’know, facts. It’s not like there’s a dearth of those concerning Thomas. _ad hominems_ make the baby Jesus deny certiorari. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [October 3, 2002, 4:50pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/51 "2002-10-03T16:50:32Z")
> [@](#): > > On a personal note, I’m glad to hear you’ve fond gainful employ once again; A man of your legal ability at must be greatly desired at any number of accounting firms in this current climate. Damn, that was out of line. Nothing quite like insulting someone’s professional integrity without either evidence or justification. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 3, 2002, 5:01pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/52 "2002-10-03T17:01:55Z")
> [@](#): > > \*Originally posted by I am Sparticus \* > \*\*Fredo: “I’M SCHMMMAART!” \*\* Wasn’t Fredo banging cocktail waitresses two at a time, and revealed his betrayal by admitting he’d been to a live sex show with Johnny Ola – a sex show featuring a Long Dong Silver type? Gee, maybe Thomas _is_ the Fredo of the Supremes… 😃 😃 😃 And thanks, **Gads** and **Maeglin**. ---
**Author:** ![The\_Ace\_of\_Swords](https://avatars.discourse-cdn.com/v4/letter/t/e495f1/32.png) [@The\_Ace\_of\_Swords](https://boards.straightdope.com/u/The_Ace_of_Swords)\ **Post date:** [October 3, 2002, 5:36pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/53 "2002-10-03T17:36:57Z")
**Maeglin** , you misinterpreted that. **Gad** : Fine, I’ll chill, but no calling Thomas “Not the best justice,” or any other weasely way of implying he’s not bringing up the rear in terms of judicial qualifications. “Not the worst justice,” is fine. As for facts, **DCU** could bring facts to back up his implications. One can scarecely miss the connotation of his phrasing. Perhaps if I was over-the-top, I apologize thusly: **DCU** ’s posts were not the ultimate of weasely disingenuity. Nor is his phrasing the pinnacle of misdirection; I’m sure his professional work is exemplary of his posts here, qualities that make him in demand in that capacity. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [October 3, 2002, 6:17pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/54 "2002-10-03T18:17:59Z")
I utterly fail to see where I’ve been “weasely disingenuous” (even if not in the ultimate sense) or where I’ve misdirected anyone (even if not at the pinnacle of such tactics). Kindly make your case or withdraw the accusation. Look, you obviously think Thomas is among the worst to ever wear black robes. Fine. That’s your opinion, and you’re entitled to it. My view is a little different – I don’t think Thomas is particularly gifted, but he’s not an idiot either. In my view, his opinions are unlikely to be studied by future generations, but are well-written, reasonably clear, and follow from Thomas’ judicial principles. His opinions are competent if not spectacular. The fact that we have different viewpoints on this is **not** tantamount to my being disingenuous. I agree that Thomas had one of the shortest resumes of any Supreme Court nominee. That is a strike against him (though resumes aren’t decisive: if they were, Robert Bork would have been approved easily). I am certain there were other candidates with better judicial qualifications – there usually are. Certainly there were political considerations at play – there always are. But all of that is in the past. Thomas has been on the high court for over a decade now. He has a track record. He should be evaluated on that record. Complaining over his nomination at this point is crying over spilt milk. Ace, I honestly have no idea why you have such unbridled hostility towards me. It is both unwanted and uncalled for. And it’s inappropriate for this forum. If you really want to insult me, to call me disingenuous, or to suggest that my professional ethics are of an Arthur Andersen variety, I suggest you take it to the Pit. ---
**Author:** ![gobear](https://avatars.discourse-cdn.com/v4/letter/g/8dc957/32.png) [@gobear](https://boards.straightdope.com/u/gobear)\ **Post date:** [October 3, 2002, 6:33pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/55 "2002-10-03T18:33:35Z")
> [@](#): > > Fine, I’ll chill, but no calling Thomas “Not the best justice,” or any other weasely way of implying he’s not bringing up the rear in terms of judicial qualifications. “Not the worst justice,” is fine. Sheesh, why the venom? **DCU** is, after all, a lawyer, and he’s thus qualified to give a competent evaluation of Thomas’s fitness as a Supreme Court justice. For my own opinion, I think that Bush needed a conservative to fill the “black seat” on the bench after Marshall’s death, and Thomas happened to fit the bill. I don’t think, from what I’ve read, that he’s anything other than a mediocre intellect chosen for his skin color rather than his legal acuity. But I don’t think he’s the worst Supreme Court justice–consider Justice Charles Evans Whittaker, so dumb he gave an opinion on a fake case submitted as a practical joke, and Frankfurter had to explain it to him, or Alfred Moore, appointed by John Adams. In four years on the bench, Moore never wrote a single opinion. ---
**Author:** ![I\_am\_Sparticus](https://avatars.discourse-cdn.com/v4/letter/i/c68b51/32.png) [@I\_am\_Sparticus](https://boards.straightdope.com/u/I_am_Sparticus)\ **Post date:** [October 3, 2002, 7:10pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/56 "2002-10-03T19:10:17Z")
DCU, as a liberal, I loath Thomas’ jurisprudence, and normally I would join in bashing, but the man for the most part keeps his mouth shut, which I find astonishingly wise, even if not terribly quick. Scalia is a quick wit, but jeez, he never shuts up with the sarcasm. But as I mentioned the thread title forces Fredo to my mind. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [October 3, 2002, 7:21pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/57 "2002-10-03T19:21:57Z")
May I shift the viewpoint just a bit? I understand that **december** ’s original goal was to discuss Thomas’s intelligence based on legal analysis, but there’s more to being a judge than just that. Every day a Supreme Court Justice must debate legal scenarios with eight other people. For the last eight years, it’s been the same eight people, day in and day out. What does this mean? Being a member of the SCOTUS requires not just book smarts, but people smarts as well. You MUST, among all else, be a diplomat. Let’s examine Scalia for a moment. You read his opinions and you’ll find snide and condesending remarks about the opposing side. Now Scalia will quickly tell you that he’s merely attacking the weak ideas, not a weak justice. But we all know how well that sometimes works on these boards (honestly moderator, I didn’t call him an idiot, I said that thought could only come from a lobotomized baboon). Further, there’s no guarantee that the other Justices make the distinction between Scalia attacking ideas and the people who had those ideas. Also, Scalia has stated that there has NEVER been a harsh word spoken in chambers, but, really, only 9 people will ever know the answer to that one. Thomas, on the other hand, plays it safe. Too safe some might say. But he doesn’t burn bridges. He lets others ask the questions they want rather than waste time asking questions he doesn’t need to ask. He plays nice and shares with all the other kids. So when it comes to debating the case, who is likely to be more persuasive: the guy who doesn’t get on your nerves or the one who called you an ass in his last opinion? Is this as important as examining legal theories or writing intelligent briefs? No. But when you’re working with eight other humans, with both rational and irrational emotions, and a one vote could make all the difference in the world, don’t tell me diplomacy isn’t a crucial skill for a member of SCOTUS to have. ---
**Author:** ![The\_Ace\_of\_Swords](https://avatars.discourse-cdn.com/v4/letter/t/e495f1/32.png) [@The\_Ace\_of\_Swords](https://boards.straightdope.com/u/The_Ace_of_Swords)\ **Post date:** [October 3, 2002, 7:29pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/58 "2002-10-03T19:29:35Z")
**DCU** , thank you for posting how you feel about Thomas. I respect that, and I retract any insinuation that you were being weasely, or that your are of less than professional character, though I tactfully note the difference between the two characterizations. I certainly bear you no ill will, merely some of your posts seem to me, at least to be not what you mean at all. Perhaps, as you say, I am reading too much into it. Apologies. -Ace ---
**Author:** ![TeaElle](https://avatars.discourse-cdn.com/v4/letter/t/8491ac/32.png) [@TeaElle](https://boards.straightdope.com/u/TeaElle)\ **Post date:** [October 3, 2002, 8:32pm UTC](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467/59 "2002-10-03T20:32:53Z")
\< hijack \> > [@](#): > > \*Originally posted by Gadarene \* > \*\*_ad hominems_ make the baby Jesus deny certiorari. \*\* Beautiful. Potential sig material, that, applause 🙂 \< /hijack \> [Previous page](https://boards.straightdope.com/t/lawyers-is-clarence-thomas-smart/130467.md?page=2)