Impeach Clarance Thomas for either fraud or incompetance (your pick)

[schoolboy]

Impeach Clarence Thomas for either fraud or incompetence

For entertainment and to kill some time, I decided to read Thomas' dissenting opinion in ARIZONA v. THE INTER TRIBAL COUNCIL OF ARIZONA. I found this:

The history of the Voter Qualifications Clause’s enactment confirms this conclusion. The Framers did not intend to leave voter qualifications to Congress. Indeed, James Madison explicitly rejected that possibility:

“The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper.” The Federalist No. 52, at 323 (emphasis added).

Congressional legislation of voter qualifications was not part of the Framers’ design.

So I looked up that Federalist paper and found this context:

The first view to be taken of this part of the government relates to the qualifications of the electors and the elected. Those of the former are to be the same with those of the electors of the most numerous branch of the State legislatures. The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone.

The guy is an embarrassment. The very language Thomas quotes to 'prove' it is not up to Congress is identically applied in the next sentence to the States. Thus by Thomas' logic, neither the Congress nor the States are permitted to determine who is allowed to vote!

Fraud or incompetence?

[wfb]

Fraud or incompetance: do we have to pick?

[aaron]

Clarence Thomas is an ideologue, who appears to take pains to avoid opinions, history or legal precedent that challenges his own views of the way things should be:

As a group, the Justices lobby one another less than many suppose, but
Thomas expresses himself in writing or not at all. He talks to his
colleagues about sports or his travels, but he will go months, or even
years, without discussing the substance of cases with some of them. He
discusses these issues almost exclusively with his law clerks, whom he
chooses for their ideological compatibility. At Stetson, he described
his relationships with his law clerks this way: “Zero tolerance for
mistakes, zero tolerance for excuses, zero tolerance for tardiness. I
want my stuff done. I want it done my way. I also make it clear that
if you don’t like my opinion, or you have a different opinion, all
you’ve got to do is get nominated and confirmed.”

A thoughtful judge would want to hear different views - and would want his clerks to research and report their perspectives on the law and precedent. Such a judge would follow precedent, distinguish precedent, or overrule precedent. A man confident in his opinions is not afraid to encounter challenges, and may in fact relish the opportunity to wrestle with conflicting ideas. Thomas at best appears to make clear to his clerks that, to the extent that they present any authority that contradicts his existing opinions, they had better also provide him with an explanation of why that authority is wrong or irrelevant.

His biography suggests that the predominant influence on his thinking is not the law or even a particular philosophy, but many years of burning resentment.

“Too many show timidity today precisely when courage is demanded,”
Thomas asserted. He told the group that he had suffered the
consequences for speaking out on “a number of sacred policies, such as
affirmative action, welfare, school busing.” Those “who challenge
accepted wisdom should expect to be treated badly. Nonetheless, they
must stand undaunted,” he said, before concluding, “Today, as in the
past, we will need a brave ‘civic virtue,’ not a timid civility, to
keep our republic. So, this evening, I leave you with the simple
exhortation: ‘Be not afraid.’ ”

On this night, in other words, Thomas, while celebrating the courage
to speak unpopular truths, was telling some of the most powerful
people in the worlds of government, business, and finance precisely
what they wanted to hear—that affirmative action was bad, that black
people didn’t want or need their help, that government did more harm
than good. Be not afraid. Indeed, throughout his judicial career
Thomas has, in the name of anti-élitism, shown a distinct solicitude
for certain kinds of élites—say, for employers over employees, for
government over individuals, for corporations over regulators, and for
executioners over the condemned. Thomas’s tender concern for the
problems of the powerful reveals itself, in the end, as a form of
self-pity.

[aaron]

So I looked up that Federalist paper and found this context:

There exist a number of well-funded right-wing 'think tanks' who will happily provide a politician with a brief of issues, along with various arguments and historical references the politician can recite in support of a favored position. The purpose of the brief is not to provide an objective or balanced perspective on the issue, or to present a full history of the issue and past debate. It's to help the politician advocate a position, even if that means reciting arguments that have been repeatedly refuted or presenting a cherry-picked, distorted history that has little to do with reality.

On top of that, history as presented in judicial decisions is rarely complete or balanced. When I hear a commentator, usually somebody who knows little about either law or history, gush over the detailed history in a Supreme Court opinion, it's hard not to roll my eyes. The history presented in Heller, for example, appeared to come straight out of a partisan think tank or partisan scholarship, not an effort to actually review history and present a balanced account of the actual history of the Second Amendment or the actual philosophies underlying that Amendment.

I have little doubt that Thomas trains his clerks well - "Cherry pick the history, don't include anything that challenges me" - and I would not be surprised if they at times reach out to right-wing think tanks for a partisan summary of historical events and quotes that can be used to support a specific agenda. Recall also, he's married to a hyper-partisan right-wing lobbyist, who emerged from the Heritage Foundation.

Here's some commentary on Thomas's use of history:

Thomas concurred, in an opinion that reads like a treatment for a
slasher movie. As always, Thomas began by asserting that the relevant
constitutional provision must be “understood in light of the
historical practices that led the Framers to include it in the Bill of
Rights.” To that end, Thomas surveyed eighteenth-century execution
methods that were, apparently, cruel and unusual even in those days.
There was burning at the stake, “ ‘gibbeting,’ or hanging the
condemned in an iron cage so that his body would decompose in public
view, and ‘public dissection.’ ” Thomas went on, “But none of these
was the worst fate a criminal could meet. That was reserved for the
most dangerous and reprobate offenders—traitors.” Their punishments
involved “embowelling alive, beheading, and quartering.” One death
sentence in England called for the condemned to be “drawn on a hurdle
to the place of execution, where you shall be hanged by the necks, not
till you are dead; that you be severally taken down, while yet alive,
and your bowels be taken out and burnt before your faces—that your
heads be then cut off, and your bodies cut in four quarters.”

The point of this grotesque catalogue was to assert that the Eighth
Amendment prohibited methods of execution that were also forms of
torture—nothing more. Such a standard meant that Thomas was implicitly
writing out of existence decades of precedent on the Eighth Amendment.
Over the years, the Court had vetoed the imposition of “hard and
painful labor”; rejected disproportionate sentences for minor crimes;
abolished the death penalty for rape; and outlawed life sentences for
juveniles convicted of crimes other than murder. Under Thomas’s narrow
reading of the Eighth Amendment, all these cases would be wrong; under
his approach to stare decisis, all would be overturned.

[dean_surkin]

The proximity of the phrases "stare decisis" and "Justice Thomas" strikes me as amusing.
--Dean L. Surkin