Mr. Justice Whoop-dee-damn-doo

We're working our way backward through the '90s. With OJ Simpson again on the national stage, it was inevitable that Clarence Thomas would follow. The Thomas confirmation hearings were a milestone in real-time mass-mediated American psychodrama. Before the Juice, there was Long Dong Silver. Before the bloody glove, there was the pubic-hairy Coke can. Before the suicidal white Bronco driver, there was the victimized black conservative martyr. Before there was OJ's jury nullification, there was Thomas' "high-tech lynching," which acquitted him right onto the Supreme Court.

I still recall being so obsessed by the Judiciary Committee hearings that I listened to them through an earphone while pushing a baby stroller through the mall. I remember watching Arlen Specter and Orrin Hatch hard at work, attempting to destroy Anita Hill, and finally understanding what the Salem Witch Trials must have been like. I remember being torn between awe at Chairman Joe Biden's pomposity and amazement at the goings-on in his scalp. I remember calling my friend Jack Rosenthal, then the editor of the editorial page of the New York Times, nearly every day, haranguing him to stiffen the Senate's opposition. To this day, I recall my revulsion at George H.W. Bush's cynically gleeful, preposterous attempt to frame the Thomas nomination as a filling of the Thurgood Marshall seat.

It turns out, of course, that the alarming character traits Anita Hill observed in her boss Clarence Thomas were nothing compared to the nutcase judicial temperament he has since revealed. At his confirmation hearing, Thomas -- like Marshall before him, and Roberts and Alito after him -- paid tribute to stare decisis, the importance of precedent in guiding Supreme Court decisions. But no less an authority than arch-conservative fellow Associate Justice Antonin Scalia told Thomas' biographer, Ken Foskett, that Thomas "doesn't believe in stare decisis, period." If you think nutcase is too strong a word to summarize that view, listen again to Scalia, as quoted in this Terry Gross interview with Jeff Toobin about his new Supreme Court book, The Nine:

Mr. TOOBIN: Clarence Thomas is not just the most conservative member of the Rehnquist court or the Roberts court. He's the most conservative justice to serve on the court since the 1930s. If you take what Thomas says seriously, if you read his opinions, particularly about issues like the scope of the federal government, he basically thinks that the entire work of the New Deal is unconstitutional. He really believes in a conception of the federal government that hasn't been supported by the justices since Franklin Roosevelt made his appointments to the court. You know, I went to a speech that Justice Scalia gave at a synagogue here in New York a couple of years ago, and someone asked him, `What's the difference between your judicial philosophy and Justice Thomas?' I thought a very good question. And Scalia talked for a while and he said, `Look, I'm a conservative. I'm a texturalist. I'm an originalist. But I'm not a nut.' And I thought that...
GROSS: Meaning that he thinks Thomas is one.
Mr. TOOBIN: Well, that was certainly the implication.
GROSS: Mm-hmm.
Mr. TOOBIN: It was pretty amazing. I mean, Thomas is well outside the mainstream, even of the conservatives on the court.

The Roberts-Scalia-Thomas-Alito-and-sometimes-Kennedy fivesome on the Court today is the closest the country has come to the domination of the third branch of government by the same ideology that gave us the Bush administration and its Congressional and Fourth Estate enablers. If Justice Stevens can hang on, and if Democrats can nominate and confirm his successor, there is a chance that the Constitution can continue to rely on the better angels of Justice Kennedy's nature. But even so, I fear that the first Monday in October has lost an essential element of its grandeur for years to come. When Justice Souter wept after the Bush v. Gore decision, he was not only mourning the naked politicization of justice; he was anticipating the tragic abrogation of the Constitution that we have experienced in the seven years since. No reaction to that silent coup is more appallingly prescient than what Justice Thomas now tells us in his memoir was his reaction when his wife came to him in his bath to say that the Senate had confirmed him 52 to 48: "Whoop-dee-damn-doo."

Follow Marty Kaplan on Twitter: www.twitter.com/martykaplan

Comments

[LightningJoe]

Marty, nice segue to black comedy, and I DON'T mean that racially. Tragedy is just another sort of comedy. It takes longer to develop the premise, and the payoff isn't as much fun, but its essence is the same: self reflection though analysing the ironies of payback.

The payback in this case is not Thomas's. It's ours, for creating and tolerating a culture where an ideological fundamentalist committed to dismantling all government protections can be called to judge the functions of that government. The inmates are in charge for thirty years to come. It's hard to be optimistic about the outcome. The tragedy is that by the time we really get this joke, the punchline will be the death of any freedom worth calling by that name.

Freedom is not free, in more senses than one. The first sense of course, is that it must be fought for, and that leads us to a second sense. The forces we must battle for the privilege of freedom are arrayed against our freedom because they define our LACK of freedom as their freedom. They do this every day, when they say that limitations on the impulse to piracy are against liberty. As fundamentalists, they conveniently separate the universe into friendly and not-friendly (to their greed-is-good ethic, that is), and define the not-friendly portion as valueless. Thence, any effort to limit greed is by definition bad. They may prefer the term "self interest," but when self interest rules out consideration of the welfare of others, it's just greed.

A fundamentalist ethic that hamstrings efforts to protect human rights from bandits is the neocon legacy. They are not shy about it. We ARE the enemies of their freedom, because their freedom sells us and our world down the river, and will use the proceeds to destroy life as we know it.

Darth Vader and Emperor Palpatine were just excercizing their freedom to kill, dominate, and supress. OJ was just expressing his freedom to slash (OJ: sue me).

There is no reason to respect such freedom.

Have a nice day.

[Thorn]

The fact that you reflexively connect Thomas and O.J. Simpson is awkward at best.

[cowboyneok]

No its not. I see ABSOLUTELY nothing wrong with it in its present context.

[davidly]

At best. He probably doesn't even know.

[insanityfollows]

Ohhhhhh Caaaanada!

[Grandpa27]

I knew we were in trouble when Biden didn't respond to the negitive answer Thomas gave when asked if he had seen the latest Hill testamony. After all this was why Thomas was at the meeting. He should have been sent back to review it or he should not have been confirmed. If he was going to form his opinions without review he would make a poor Justice - and time has shown the result.

[SkippyJones]

Well, call me starry-eye­d...but assuming the democrats can dodge the boulders ahead over the next year, including that of Bush bombing Iran and starting WWIII (which is not hyperbole), and then win in decisive majorities in 08 - can they impeach Thomas? I'm quite serious. If he is demonstrably nutty, and has stated publicly that he does not believe in court precedent in guiding decisions, and has essentially abdicted participation in the Court, evidenced by the two-three questions PER TERM that he has asked over 16 years while on the bench, then is it possible were the democrats to amass stunning majorities to impeach him?

[Misanthrope2]

As a lawyer and member of the bar of the US Supreme Court, what troubles me is that Thomas will not ask questions.

I have argued appellate cases where the justices sit, stare and ask no questions. You feel like the decision was made before argument. In one case, the decision was postmarked a couple of hours after I argued.

Lawyers rejoice when a judge asks questions. It means the judge is interested. The thrust of the question can tell you what the judge is thinking and how you may be able to persuade him or her. It can also reveal the quality of their thinking.

A judge who never asks questions has probably already made up his or her mind, has little curiosity or intelligence, and has no interest in your case.

I sure wish Thomas would ask some questions.

[Misanthrope2]

Clarification: The case in which I argued then received the opinion postmarked a couple of hours later was not before the US Supreme Court. It was before the California Court of Appeal.

[BMSstudy]

I saw Roberts on a panel discussion show a month or two back and he agreed with one of the panel (I think Lanny Davis?) that questioning on the SC is typically for one justice to try to persaude another justice. Do you truly believe that the Q&A segment is where previously unknown or non-understood issues are discovered?

[MAGLATINA]

MISAN... WHAT YOU SAY DISAPPOINTS AND SCARE ME... DECISIONS POSTMARKED AFTER BARELY HOURS OF ARGUMENTS?

[Misanthrope2]

Yes before the California Court of Appeal, Fourth District. I was pretty surprised, too.

I should add that my clients won the decision.

[oldpotsmuggler]

Clarence Thomas is even younger than I am, and I wake up most mornings feeling like I've got a lot of life left in me. There's a scary thought for the future of the U.S. in regards to the potential impact of the Supreme Court on all of us. He has a real potential to be the longest sitting Justice in history, as well as having been the embodiment of turning the seat of a thinking liberal into one held by a knee jerk conservative. I'm not aware of any S.C.J. that has voted more consistently out of ideology, and virtually never as an exercise in informed reason. There is a well known story (and if I were better I could tell which Justice was involved) where the question was "does being on the Court change people", and the answer "if your any good it does". Well, Thomas hasn't modified a thing since going there, and there is every sign that he can maintain this record through his dieing breath.

I wrote a manuscript in 1983 (that I was never able to get published) and one of my major objectives at the time was to try to point out how absolutely devastating to this country it would be if we ever made the mistake of letting Geroge Bush occupy the Whitehouse. And maybe the reason why it didn't go any place is because I didn't really know what I was talking about. I would be the first to admit that with subsequent things like Thomas and the administration of Junior even I completely underestimted the danger that BUSHCO posed to this country.

[Uselessboy]

Well go read the Onion from Jan 2001, "Our Long National Nightmare of Peace and Prosperity Is Over."

The sole item in the entire piece that was not outdone by Bush was the prediction of a devastating recession. So maybe you knew enough about what you were talking about to have saved the world, had we all listened.

The KRATS majority will probably run the Constitution for 25 years to come.

[conservativeoriginalist]

"I'm not aware of any S.C.J. that has voted more consistently out of ideology"

Ginsberg just doesn't cross your mind? She's a screaming example of predisposition. Hell, she goes so far as to cite foreign laws, unratified treaties, and even foreign customs as the basis of her rulings, while ignoring the Constitution.

[cassius]

If George H. W. Bush suddenly finds a cure for cancer, I will still despise him for his nomination of Clarence Thomas. It has to be the dirtiest political trick ever played.

While I'm at it, a pox on the Democrats who folded under the onslaught of the race baiting flamethrowers. Shame on you.

[mommadona]

And they wonder why banana republic "resisters" kill off their high court judges first.