Three of our readers take issue with my earlier post.
The first reader, sympathetic to conservative jurisprudence, says I am overreaching in interpreting Justice Thomas’s discussion of how hard his job is and how easy law professors think it is as an admission that the job is particularly hard for him. By this reader’s lights, Thomas does what he is paid to do — deciding cases and explaining his decisions one by one. This reader says Thomas is as good a lawyer and a justice as Kennedy and Souter and Ginsburg are. I am quite possibly wrong in believing that Thomas has admitted that he is not up to par, but I believe the NYT article suggests that he must feel this at some level. In any event, few commentators speak of Thomas as exercising any sort of leadership within the judicial branch. This reader suggest that presidents nominate Justices for many reasons, and suggests the average quality isn’t all that high.
A second reader, a self-described liberal, nevertheless thinks Thomas is superior in the quality and clarity of his judicial opinions to several other current and former Justices. I don’t think that other Presidents may have done worse excuses George H.W. Bush’s choice. Moreover, while it may not be fair to Clarence Thomas, and certainly others may disagree, I believe that in choosing Thurgood Marshall’s successor as the only African-American on the court, President Bush ought to have made certain that his choice would in some way advance the cause of racial equality and civil rights, hopefully on as well as off the court. While the Thomas appointment clearly failed this test, the reader suggests I am being unrealistic in positing it for President Bush, given his political orientation and base. The reader points to Thomas’s reaching out to nontraditional sources for his Supreme Court clerks as of some value in this respect. The combination of Thomas’s own reticence, the circumstances of his confirmation, his lack of a natural constituency, and perhaps some racism likely bias the public’s, and my, perception of Thomas’s jurisprudence. The NYT report itself may have been influenced by these factors.
A third reader reminds us that the other Supreme Court appointment by the first President Bush — Justice Souter — is widely regarded among conservatives as demonstrating Bush’s disregard for the political complexion of the court. Souter, a New Hampshire resident, the commonly accepted story goes, was promoted by New Hampshire moderate Sen Warren Rudman to Bush’s chief of staff, John Sununu (also from New Hampshire) as a closet conservative who could win confirmation. Bush did not look deeply into the matter, choosing Souter over the extremely “conservative” Edith Jones who was the candidate of some at the Justice Department. Conservatives have complained about Souter’s “liberal” tendencies ever since, and this is evidence of Bush’s domestic irresponsibility from their point of view. Perhaps the two appointments average out to where George H. W. Bush himself was, but the process by which he arrived at their nominations suggested a lack of seriousness–but, again, this may not be unique to Bush.
Though I have followed accounts of Thomas’s decisions in the press, my view of Thomas is indeed tainted by the circumstances of his appointment and confirmation. This was a race-conscious appointment by a president who denied that it was. Perhaps someone with a different personality might have risen above these circumstances in his public profile, but Clarence Thomas has not. His situation, and ours, is a sad legacy of George H.W. Bush even if I may have been too glib about Thomas’s legal competence in my quick reaction to the NYT report.