In Brief Defense of Justice Thomas

I don't know how it is that I so often end up defending Justice Clarence Thomas, but I think Senator Harry Reid's latest comments are way out of line:

Incoming Senate Minority Leader Harry Reid on Sunday had harsh words for Supreme Court Justice Clarence Thomas.

When asked to comment on Thomas as a possible replacement for Chief Justice William Rehnquist, Reid told NBC's "Meet the Press": "I think that he has been an embarrassment to the Supreme Court.

"I think that his opinions are poorly written. I just don't think that he's done a good job as a Supreme Court justice."

The first thing that ought to be clear to anyone is that Reid's attacks have little to do with the intellectual or literary quality of Thomas' opinions. Even if Reid took the time to read and understand the issues underlying the cases in which Thomas has written opinions, a doubtful prospect, they are of course largely drafted by clerks drawn from the same pool of genius law students as all the other justices. Sure, Thomas' opinions often lack the rhetorical flourish of a Scalia or a Brennan, but there is no way to throw that label at Thomas yet exclude Kennedy or Breyer. Likewise, Thomas brings just as much principled jurisprudence to the bench as any other current justice. Of course, I still think it is not enough, but that is a brush with which to paint the whole Court.

I don't think it much of a stretch to say that Reid is just grasping at reasons to attack Thomas, and lay the groundwork for an opposition to Thomas as chief justice. Yet at the same time he leaves the door open for Scalia:

"I cannot dispute the fact, as I have said, that this is one smart guy," Reid said of Scalia. "And I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute."

So why attack Thomas so much more harshly? I suppose Reid might really distinguish between Thomas and Scalia's performance and jurisprudence, and favor the latter. But I doubt it. Here's what I think is going on. First, there are a whole bunch of Senate Democrats who voted against Thomas in the first place. So a lot of this rhetoric has more to do with his qualifications for being on the Supreme Court at all, rather that how he's done since he got there. Moreover, Clarence Thomas is 56, and Antonin Scalia is 68. To a Democrat like Harry Reid, that's a likelihood that Bush's chief justice would reign for an additional 12 years.

Let's also not forget to mention how convenient it is that Thomas usually gets criticized from the left for being TOO much like Scalia... now he's being criticized for being an insufficient clone of his elder conservative. There are, in fact, plenty of ways to distinguish the two of them, but I don't see any way to both praise Scalia AND call Justice Thomas an "embarrassment to the Supreme Court."

That's awfully harsh rhetoric, beyond the bounds of normal partisan banter, and I don't think anything Justice Thomas has done on the bench merits anything like that sort of condemnation.