Over yonder at Southern Appeal, Steve Dillard has a post on an NPR interview he heard with new Senate minority leader Harry Reid of Nevada in which the latter expressed more openness to having Antonin Scalia as chief justice rather than Clarence Thomas. He said:
"If they [Republicans], for example, gave us Clarence Thomas as chief
justice, I personally feel that would be wrong. If they give us Antonin
Scalia, that’s a little different question. I may not agree with some
of his opinions, but I agree with the brilliance of his mind."
Setting aside the obvious, if implicit, insult that Thomas is a dumb-dumb, I think Reid is being disingenuous. It isn’t the brilliance of Scalia’s mind that he admires (Thomas is brilliant, too). It isn’t that he thinks Scalia would be a lot more palatable to a Dem point of view, for the two share the same general judicial philosophy and usually vote the same way. The reason is this:
Scalia is older.
A while back I did some calculations on the future of the Supreme Court based on when justices are likely to retire. While there is no guarantee that particular justices will retire in particular years, based on recent trends, Scalia would most likely retire about 2014, while Thomas isn’t expected to retire until about 2026.
(Here’s the math: Of late the average justice has retired at age 78, Scalia was born in 1936, Thomas in 1948. Would need more medical/family data to provide a more refined estimate of retirement.)
Reid is trying to keep an originalist from occupying the chief justice’s seat for longer than he has to.
The hypocrite.
I hope Bush nominates Thomas–one among several reasons being precisely the one Reid is afraid of.
I never expected to read “Thomas is brilliant, too.”
The reason isn’t necessarily that Justice Scalia is older, it’s also that he is more of a legal positivist than Justice Thomas (Thomas actually believes in the natural law).
Could it also be that they don’t want Thomas because he’s black and they don’t want to be embarrassed by the fact that Republican administrations have done a way better job of promoting minorities to positions of real power and importance?
Could it be also that they don’t want the media spotlight to come down on these minority Republicans like Thomas and Rice because they are about a billion times more intelligent than the hacks, buffoons, clowns, race-baiters and stooges like the Reverend Jesse Jackson and the Reverend Al Sharpton in the Democratic Party.
The Democratic Party depends so heavily on the monolithic black vote that even a small 5%-10% shift in their voting patterns would make it very difficult for them to ever obtain power again.
I’m not a lawyer or too familiar with the way the court system works down there.
Could someone please explain to me briefly what privileges and powers the Chief Justice has in your system?
Before you call someone a “hypocrite,” Jimmy, you might want to have some more evidence than what you’ve presented here–or any evidence, for that matter, because you haven’t presented any. Otherwise, you’re engaged in detraction.
Either way is fine with me. Even having such a choice is something that I, who came of political age in 60s and 70s, cannot have imagined as possible.
Scott:
I take the sin of detraction seriously, and folks who read my writings regularly know that I don’t toss around such accusations lightly. In fact, before including that line in the post I thought carefully about whether it was justified.
I think that I have presented evidence of hypocrisy here. I find Reid’s openness to Scalia on the ostensible grounds of his brilliance to be disingenous on its face.
I thus first used the adjective “disingenous” and then flipped this around into the noun “hypocrite.” If the first can be acknowledged, so can the second. It’s more dramatic to use the noun, but the content is shared by the two due to the overlap of their semantic ranges.
This is not to say that Reid is a hypocrite in all matters. (Nobody is.) But it is to say that he was being hypocritical in this matter in the sense of feigning to believe something he does not (i.e., that the real reason he wants Scalia over Thomas is one thing when it is another.)
The fact is that there is a common assumption that Clarence Thomas is a bit of a lightweight compared to Scalia, so the fact that Reid claimed that he preferred Scalia to Thomas due to Scalia’s mind is an entirely reasonable assumption. I take it that calling Reid ‘disingenuous’ and a ‘hypocrite’ is purely conjecture?
Actually, Jimmy, I don’t think you’ve come close to making your case when you write that “I think that I have presented evidence of hypocrisy here. I find Reid’s openness to Scalia on the ostensible grounds of his brilliance to be disingenous on its face.”
With the question of “homosexual marriage” already working its way up through the federal courts, Democrats might well welcome Scalia as Chief Justice. Why? Because a strict constructionist of Scalia’s stripe will have to acknowledge that the Full Faith and Credit Clause requires states to recognize “homosexual marriages” contracted in other states.
On the other hand, to the extent that Thomas actually believes in natural-law theory (and I won’t go into the reasons to believe that he does not–what’s important is that he’s perceived as believing in it), he might actually find some tortured legal reasoning to ignore the Full Faith and Credit Clause.
The Chief Justice really has little authority, but in a case like this, he might be able to sway the outcome. It’s not at all unreasonable–indeed, quite the opposite–to believe that Reid might be looking at actual cases that are going to make their way up to the Supreme Court and deciding that he would prefer Scalia over Thomas.
If you want to see some tortured legal reasoning check this out:
http://www.lifesite.net/ldn/2004/nov/04111505.html
Scott:
I see.
Well, if you don’t feel that I’ve come close to making a case (a case being judged, at times, by what is obvious rather than what is lengthily argued) then you’re certainly welcome to make one for me.
In fact, you seem to have done so, for in arguing that Reid wants Scalia over Thomas because he thinks that he will provide specific judicial outcomes with which Reid would agree then it would again seem that he is dissembling, for he expressly accented disagreement with Scalia’s opinions, while offering as a reason for his oppenness to Scalia the idea that Scalia is brilliant while Thomas (by implication) is not.
Nothing in his reply hinted at natural law or homosexual marriage or any other legal philosophies or specific legal outcomes. He expressed openness to Scalia over Thomas based on the intellectual character of the men. If it was the former that were governing his openness rather than the latter then it would again seem he was dissembling.
“Could someone please explain to me briefly what privileges and powers the Chief Justice has in your system?”
This probably bears some explanation so people will understand what is at stake. Other than some ceremonial powers, may of which are rarely used (e.g., presiding over the trial of an impeached public official, swearing in the President), the “First among equals” title is pretty much true. The only significant power that he has is to assign a particular Justice to write the opinion when he is voting for the same outcome, which normally goes by seniority. Thus, for example, if there are 5 votes for reversing a lower court’s decision and 4 votes for affirming it, the Chief chooses who will write the majority opinion (this authority goes to the most senior Justice in other cases).
There are cases when that power actually makes a difference. For example, Chief Justice Burger used this to great effect when Justice Brennan (the senior liberal Justice during most of Burger’s tenure) was likely to write a liberal opinion that would be significantly precedential. In those instances, Burger would vote along with Brennan and write an extremely narrow and fact-specific opinion that would be limit the likelihood that the case he was writing would influence other cases. Individual Justices who agree with the outcome but not the opinion can choose to write a concurring opinion instead, but when a majority is divided among multiple opinions, the most narrow opinion controls (since it represents the minimum necessary consensus for the outcome). Thus, the concurring opinions will likely lack a precedential force should the Chief choose to write a narrow opinion.
Re: the thread topic, Reid may be viewing the “brilliance of his mind” in a different way than the vernacular usage. By all accounts, Thomas is an extremely intelligent man, but he almost never asks questions during oral argument, rarely writes any opinions that have controlling precedential value, and frequently writes concurrences entirely on his own. Consequently, assuming he sincerely believes in his philosophy, he hasn’t been particularly brilliant at influencing the actual legal contours of cases according to that philosophy. Scalia, on the other hand, seems to be nearly as influential in dissent as he is in the majority, and most people would call his abilities in that regard nothing short of judicial brilliance. In the position of Chief Justice, which allows one to selectively assign the writer of an opinion, that kind of brilliance is invaluable.
Nothing in his reply hinted at natural law or homosexual marriage or any other legal philosophies or specific legal outcomes.
Jimmy, I was the poster who raised the specter of natural law and Scalia’s positivism. Scalia is not a positivist in that he believes all current legislation must be good but in that he believes that laws must only be interpreted through the lens of written law. Thomas, on the other hand, believes in the natural law (though what he believes are “natural rights” might differ from what many other conservatives believe) and believes that laws may be interpreted in accordance with both written and unwritten natural law. One can see, I think, how the former position would be more acceptable to liberals than the latter.
I think ginsberg would make a great chief, Scalia legislates to the right too much, bush v gore i mean come on…