Lawyers -- is Clarence Thomas smart?

[december]

…and rmove all doubt.

*Originally posted by Gadarene *
**If anyone cares to hear it, by the way, I could make a pretty easy argument that Breyer’s shown himself to be five times the thinker Clarence Thomas is. **

I’d sure like to hear it. That’s why I started this thread.

BTW I saw the oral argument from Bush v. Gore. No doubt Ginsburg was following the Democratic talking points, but I was underwhelmed. She had one point – that SCOTUS shouldn’t have jurisdiction. But, she had no real explanation or support for her point as it applied to this case. She sounded dumb, although I’m sure she isn’t dumb.

[Dewey_Cheatem_Undhow]

No, Gads, that’s fine. I won’t contest your first-hand observation (though just to be snarky, I’ll observe that the Orange County cite is just a simile – just because Thomas is “like” a sleeping college student doesn’t mean he’s literally asleep – it could easily describe obvious disinterest).

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?

[SuaSponte]

*Originally posted by december *
** In fact, lawyer Stuart Buck says that Thomas is one of the sharper pencils in the box. The point of this debate is whether Buck is right, based on the quality of Thomas’s legal reasoning as demonstrated in his actual writings. **

When you see an opinion that is so technical and difficult that it would take an Master’s degree in tax law just to understand the summary, chances are it was written by Thomas.

That is emphatically not an indication that Thomas is a smart guy. A Supreme Court opinion, even on tax law issues, affects people who do not possess a master’s degree in tax law. IMO, a truly smart person writes so that the affected people understands what is being written.
I call this one a wash - neither an indication of high intelligence nor a lack thereof.

2. He is certainly “smarter” as a legal theorist than as a judge. Intelligent judges have heard of and apply stare decisis.

In fact, that’s the better question here. Not whether Thomas is smart - to make it to where he is, he very likely has above-average intelligence - but whether he is a good judge.

And the fact that Thomas is repeatedly on the losing end of 7-2 or 8-1 decisions demonstrates in my mind that he is not a good judge. As I’ve noted before, a key factor in the law is predictability - if I do X, I can determine ahead of time that I am acting legally or illegally. When the Supremes come down 7-2, 8-1, or 9-0 on an issue, it means that the result was pretty predictable, as it usually followed from prior precedent and legal trends.

Thomas’ lone dissents demonstrates that, given his druthers, he would cast aside the good of predictability in order to impose his own theories and beliefs on the law. And that is not the hallmark of a good judge.

Sua

[Dewey_Cheatem_Undhow]

(N.B.: Believe it or not, I’m not a huge Thomas fan. I would make the following points in defense of any current justice)

Sua, that’s hardly a good measure.

First of all, it’s entirely possible that a judge who sees his personal view of things contravened by both stare decisis and an overwhelming majority of his colleagues might well just be taking an opportunity to criticize the law as written. Since he’s in the extreme minority, he can write his dissent without fear of upsetting the current interpretation of the law – he can, in essense, have his stare decisis cake and eat it too. Such a judge would change his vote if the case was closer precisely on stare decisis grounds.

Second, lots of dissents = bad judge? One wonders what you think of Oliver Wendall Holmes, Jr., who dissented so much he earned a nickname for it: The Great Dissenter.

[The_Ace_of_Swords]

Ah, so you’re a minor Thomas fan. That’s appropriate as it puts you in quite the distinct minority.

I think we’ve already established that Thomas is a terminally lousy judge.

What I’d like to know is: Was he even a smart lawyer?

[Gadarene]

Me:

If anyone cares to hear it, by the way, I could make a pretty easy argument that Breyer’s shown himself to be five times the thinker Clarence Thomas is.

december:

I’d sure like to hear it. That’s why I started this thread.

No problem. The key phrase, by the way, is shown himself to be. Breyer’s simply done far more in the field of law, and his work is rigorous, far-ranging, and respected.

From the introduction to a symposium entitled Justice Stephen Breyer’s Contribution to Administrative Law, 8 Admin. L. J. Am. U. 713 (1995):

The richness of the symposium essays is a direct reflection of the breadth of Stephen Breyer’s involvement in administrative law. As a law professor, casebook editor, prolific author, counsel to the Senate Judiciary Committee, court of appeals judge, and member of the Administrative Conference of the United States, Justice Breyer has made a major mark on administrative doctrine, theory, and reform. The symposium focuses on three particular areas of Justice Breyer’s involvement: his contribution to debates about regulatory policymaking, controversies about judicial review of agency decisionmaking, and concrete efforts to improve the processes of government.

Here’s Breyer’s biography. Here’s Thomas’s. Compare and contrast.

Breyer’s pre-SCOTUS posts held:
[ul]
[li]Articles editor of Harvard Law Review[/li][li]Clerk to Justice Goldberg[/li][li]Special assistant to Assistant Attorney General Donald Turner (two years)[/li][li]Harvard Law professor[/li][li]Assistant special prosecutor in Watergate investigation[/li][li]Special counsel to Senate Judiciary Committee (Administrative Practices Subcommittee)[/li][li]Chief counsel of Senate Judiciary Committee[/li][li]Judge for First Circuit Court of Appeals (fourteen years, while continuing to teach at Harvard)[/li][li]Member of U.S. Sentencing Commission[/li][li]Author of many influential books on regulation, risk assessment, and administrative law [/li][/ul]

Here’s a description of Breyer’s tenure on the First Circuit bench:

Though tremendously demanding, Breyer’s many roles seemed only to energize him and to inform his activities on the bench. He became renowned as a coalition builder on the First Circuit who ranked achieving a unified opinion more highly than articulating his own opinion in detail. He became known as well for his incisive and thorough knowledge of the cases–and their frequently bulky records. His intelligence and dedication established his reputation as one of the leading jurists of his generation.

Thomas’s pre-SCOTUS posts held:
[li]Staff of Missouri Attorney General John Danforth[/li][li]“Shepherding pesticides through government registration” at Monsanto (two and a half years)[/li][li]Legislative assistant to Senator Danforth[/li][li]Assistant secretary for civil rights in Department of Education (ten months)[/li][li]Director of EEOC (eight years)[/li][li]Judge for D.C. Circuit Court of Appeals (eighteen months)[/li][/list]

Here’s a description of Thomas’s tenure on the D.C. Circuit bench:

In his brief eighteen months as an appeals judge, Thomas did not develop a comprehensive judicial philosophy.

Given the disparity in past experience, I think it’s fair to say that the burden is on Thomas to show that he’s anywhere near the intellectual equal of Breyer. I don’t think he’s yet done so.

And so, Ace, to answer your question: Thomas wasn’t ever a practicing lawyer. Nice how that works, huh?

[I_am_Sparticus]

I’ve read a bunch of opinions from the Supreme Court dating from CJ Marshall (heck, Jay) to the present. Thomas is hardly the dimmest bulb we have had, but on the other hand, is clearly not in the Scalia or Rhenquist category. And I disagree with the general opinion out there that Scalia is “brilliant”. Scalia certaily has an amusingly poison pen, but I have never thought it to be anywhere near as funny or caustic as Rhenquist. Many praise Scalia for his “original intent” school of thought, which to me is just slightly better than daft. The original intent of one faction of the founders shouldn’t be elevated to contitutional standard any more than the current intent of any particular current faction.

In order to really judge the stature of the supremes, you must read Bush v. Gore, the most important decision of the past twenty years or so (IMHO) and examine the depth of legal analysis that they used under pressure. I was unimpressed with any of them, even though I had sympathy in the result the minority would have taken. The majority view was no better reasoned than if the task had been assigned to a small city council to write the opinions.

[Polycarp]

Well, what I’ve seen seems to confirm Dewey’s points.

My sole comment, and it probably isn’t just, is that as a layman, I look to the Supreme Court not as the ultimate disentangler of corporate or tax law issues but as the arbiter of the Constitutional rights of Americans. And on that standard I feel that Thomas, despite his skills at complex procedural issues, falls far short of one-of-the-top-nine-jurisprudents-in-America. That’s JMHO, though.

[Gadarene]

From Clarence Thomas After Ten Years: Some Reflections, 10 Am. U. J. Gender Soc. Pol’y & L. 315, 323-24 (2002):

There are more curious aspects of Justice Thomas’ tenure that stand out. It has long occupied the attention of lawyers and journalists watching the Supreme Court that Thomas almost never asks questions during oral argument, even though he sits among colleagues who are very active questioners. This is not, in itself, remarkable. Justice Brennan rarely asked questions in his later years on the bench, and he was never criticized or ridiculed for it.

What is curious is that after saying little about the matter for years, Thomas gave a rather strange explanation to a group of high school students in December 2000. He explained that when he was growing up, he spoke a dialect called “Geechee,” or “Gullah,” which comes from the area of southeast Georgia where he was born. He said he developed the habit of listening in school, rather than asking questions, because he had a hard time mixing standard English with the dialect.

Though this is a moving story, it is an odd explanation for a person who has been in public life almost continuously since 1974, including: giving many public speeches, some broadcast live on C-SPAN; testifying on live television and radio for days before the Senate Judiciary Committee; presiding over public meetings of government agencies; and engaging in a variety of public speaking opportunities. Indeed, it is hard to imagine a more commanding voice than the deep baritone of Thomas. Perhaps it would have been better to leave his reasoning a mystery, rather than to explain it.

[december]

Gadarene, I remember having had much the same thought when I heard Thomas’s “Gullah” explanation. I seemed like an odd explanation.

Of course, he may not see himself as others see him. I know a number of brilliant people who feel insecure about speaking in public. Given Thomas’s background as a poor Southern Black and as a convervative, it would be easy to understand his being gun-shy.

[SuaSponte]

*Originally posted by Dewey Cheatem Undhow *
Sua, that’s hardly a good measure.

First of all, it’s entirely possible that a judge who sees his personal view of things contravened by both stare decisis and an overwhelming majority of his colleagues might well just be taking an opportunity to criticize the law as written. Since he’s in the extreme minority, he can write his dissent without fear of upsetting the current interpretation of the law – he can, in essense, have his stare decisis cake and eat it too. Such a judge would change his vote if the case was closer precisely on stare decisis grounds.

And that, you think, is conduct in which a judge should engage?

1. Judges are not supposed to “criticize the law as written.” They are supposed to interpret the law as written and, in limited cases, determine whether the law is constitutional.
   The bench of the Supreme Court is not a bully pulpit. If a judge wants to criticize laws, they can resign from the bench and run for office;

2. As for the idea that “oh, if his vote meant something, he’d change it,” I find the concept despicable. I judge is supposed to interpret and apply the law, not score points.

Sua

[The_Ace_of_Swords]

No way. I fucking refuse to believe that a sitting Supreme Court’s major qualification was working for the Equal Employment Opportunity Commission and sherpeding pesticides through for fucking Monsterato.

There’s no way he could have been qualified; no offense, Gadarene, but you must have got something wrong.

[Dewey_Cheatem_Undhow]

Forgive me, Sua, by “law” I didn’t mean statutory law, I meant case law…I meant he could criticize the way case law has developed over time. You’re absolutely right that judges should refrain from non-Constitution-based criticisms of coordinate branches of government. I wasn’t clear on that.

That criticism can serve a useful purpose. It might well be good to be reminded from time to time that, though a desire for stability dictates adherence to stare decisis, the foundations those prior decisions were built on were less than solid ground.

[Dewey_Cheatem_Undhow]

Heh. Wasn’t Abe Fortas’s chief qualification his assisting LBJ in getting away with ballot stuffing in 1948?

[The_Ace_of_Swords]

Well, I guess that makes it OK, then.

Its’ a funny thing though, I seem remember you going on and on about how “two wrongs don’t make a right” in another thread.

Must have been someone else, huh?

[Dewey_Cheatem_Undhow]

Ace: the smiley is included in that post for a reason.

[Foghorn Leghorn]
It’s a joke, son, a joke I say…
[/Foghorn Leghorn]

[Gadarene]

There’s no way he could have been qualified; no offense, Gadarene, but you must have got something wrong.

I completely agree, Ace. Clearly I missed the years Thomas spent clerking for a Supreme Court Justice teaching at a top law school. And writing books chock full o’ impeccable legal scholarship. Bad, bad me.

No comment on the Breyer-Thomas comparison, december? Is that the kind of thing you were looking for?

[The_Ace_of_Swords]

Oh, I’m sure there was a reason for the smilie, DCU, and I assumed there was some humour there.

I just didn’t find any, unless it was “Look at my humorously weak defense of Mr. Thomas’s selection,” to which I say: Ha, ha.

-Ace.

[december]

*Originally posted by Gadarene *
**No comment on the Breyer-Thomas comparison, december? Is that the kind of thing you were looking for? **

Sort of. Clearly you have demonstrated that Breyer was hugely more qualified than
Thomas at the time of appointment.

However, I was more looking for an evaluation based on Thomas’s actual legal writings. As I said, I can judge the quality of actuarial writings. (In fact, I’ve been on prize committees charged with that very duty.) Some things I would look at include: * Is the article logical? Is it clear? Is it easy to understand? Are there errors? Does it deal with the important items and aspects? Does it demonstrate an understanding of the magnitude of various assumptions? Does it solve an important problem? Does it have real-world value?*

I couldn’t evaluate the quality of Thomas’s legal decisions even if I had read them, and I haven’t. No doubt it’s somewhat difficult to fairly evaluate the quality of a decision one disagrees with politically. But, how about the technical decisions referred to in the OP – the ones on tax law, corporate law, ERISA, etc.? Has anyone read any of those? If so, how do they stack up?

[Dewey_Cheatem_Undhow]

:rolleyes:

Ace, lighten up. You’ll live longer.