Questions for Obama about Justice Thomas

Obama says he disagrees with Justice Clarence Thomas's "interpretation of a lot of the Constitution." Perhaps it is time for Obama clarify what he does believe about the Constitution and how it should be interpreted.
Henry-holzer

Spouting yet another shopworn liberal (and racist) cliché recently, presidential candidate Barack Obama said of Associate Justice of the Supreme Court Clarence Thomas that “I would not have nominated Clarence Thomas.

“I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation [from the United States Court of Appeals for the District of Columbia Circuit to the Supreme Court of the United States].

“Setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.”

Speaking of “setting aside,” let’s set aside a few things about Obama-as-critic of Clarence Thomas: that Obama has never published a scholarly article, even though head of the Harvard Law Review nearly twenty years ago; that he is barely a lawyer, having a degree but hardly ever practiced law (let alone constitutional or appellate law); that his vaunted teaching at the University of Chicago was as an outside “lecturer,” not a regular tenure-track faculty member.

In short, let’s put aside that candidate Obama’s credentials as legal scholar, legal practitioner, and law teacher are as virtually non-existent as his other credentials, especially those from his time in the Illinois and United States Senates.

Instead, let’s focus on what this pompous, pretentious wannabe said about Justice Thomas: that when appointed to the Supreme Court he wasn’t “a smart enough jurist or legal thinker, and that Obama disagrees with Thomas’s “interpretation of a lot of the Constitution.”

As to “not smart enough,” prior to his appointment to the Supreme Court, Clarence Thomas, a Yale Law School graduate, was an assistant attorney general in Missouri, Assistant Secretary of Education in Washington, head of the EEOC, and a judge of the United States Court of Appeals for the District of Columbia Circuit.

He wrote briefs, policy statements, and legal opinions. He published articles and made speeches. He produced hundreds, probably thousands, of pages of legal work.

One wonders how much of this legal output Obama has actually read — especially since all of it was produced in the years before Obama even graduated from law school.

How, then, to explain Obama’s demonstrably ignorant demeaning of Clarence Thomas’s intellect?

Simple. Regurgitation of the now-tired smear that the Left has used to attack Thomas since his confirmation hearing. (By the way, Harvard, Obama’s law school alma mater, was at the center of that “high-tech lynching”.)

As to Obama’s crack about Thomas’s “interpretation of a lot of the Constitution,” it is here that the McCain campaign can make mince meat of the Democrat candidate.

Obama disagrees with much of Thomas’s constitutional jurisprudence because it is Originalist in nature.

Without an exegesis here of what is contained in my book The Supreme Court Opinions of Clarence Thomas, 1991-2006, a Conservative’s Perspective, suffice to say that Justice Thomas “interprets” the Constitution on the basis of what it says and what those words meant to the Founders who wrote it and their contemporaries.

Originalism is anathema to acolytes like Obama who worship in the Church of the Living Constitution, which holds that the Document is a virtual blank slate upon which all-knowing judges and justices can write their own version of social policy when politically accountable legislatures lack the brains to see what needs to be done.

In making this loose-lipped comment about Justice Thomas, Obama has handed the McCain campaign a weapon of incalculable power because it will either smoke out Obama’s positions on important issues, or force him to dodge them.

McCain needs to ask Obama if he disagrees with some of these positions taken by Justice Thomas in Supreme Court opinions:

That under Article II the President, not the judiciary, has the power to manage America’s foreign affairs and conduct wars.

That the federal government’s powers are limited and enumerated.

That the Tenth Amendment reserves to the states all powers not expressly delegated to the federal government, nor expressly denied to them.

That whatever other limitations on speech may exist, political speech should be absolutely protected (notwithstanding McCain-Feingold).

That racial quotas are unconstitutional.

That the “Cruel and Unusual Punishments” Clause should bar only cruel and unusual punishments, not be stretched to require vegetarian meals as prison fare.

That statutes are to be interpreted on the basis of what they say, not twisted to mean what judges want them to say.

There are many more of these general constitutional principles, and scores of specific questions that Obama must be confronted with.

For example, whether he would appoint a Supreme Court justice who believed that enemy combatants held by the American military are entitled to seek habeas corpus relief in any federal court of their choosing, a surreal decision the Court recently rendered but which Thomas opposed.

The McCain people, and the American electorate, must understand that at stake in this election is not some vague principle like “strict construction,” but rather the distinct possibility that if Obama is elected with a Democrat Senate (let alone a filibuster-proof one), his Supreme Court appointees will not only control domestic policy, but national security as well.

It is in McCain’s interest to force questions like these on Obama, who can then choose whether to answer them and expose himself for the Living Constitution acolyte that he is, or duck them, as is his habit, and thus reinforce his image as a lightweight unfit for the presidency.


Henry Mark Holzer is a professor emeritus at Brooklyn Law School and a constitutional and appellate lawyer. He provided legal representation to Ayn Rand on a variety of matters in the 1960s. His latest book is Keeper of the Flame: The Supreme Court Jurisprudence of Justice Clarence Thomas.

10 comments from readers  

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Small
Sound advice for Mr. McCain. More importantly, it's great to see Henry Mark Holzer is still with us and kicking butt!
Small
Mr. Holtzer is absolutely right on. The Constitution isn't some document that is to be blowing in the wind. It is a carefully constructed document based on the eternal nature of man - i.e., reality. And it is the only agreement I have with our government.

I have to say that given Obama's record, claims and way of being it's all I can do to control myself. I'm always on the edge of a cathartic, high-decibel, old-fashioned cussing fit. The contempt I feel is beyond description.
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At last a voice of reason, in a world of empty minded intellectuals.
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I agree that Obama's attack on Thomas was hollow political pandering. But I don't think that they question "what do you really believe about the Constitution" should only be posed to him. McCain's just as guilty of pandering to those on the right who want to judge Supreme Court appointees on what policy outcomes they deliver regardless of what the Constitution says or means.

So how do you think McCain would answer the following question:

1. Do you beleive the Constitution establishes a government of limited and enumerated powers?

2. If yes, what do you think of the majority votes of Roberts and Scalia the medical marijuana case? As Justice Thomas said in his dissent, if the Feds can regulate behaviour that is neither commerce not interstate under the Commerce Clause, then a government of limited and enumerated powers is meaningless

As far as I'm concerned Liberty is already dead and both sides of politics are equally responsible for killing it.
Small
Mr. Holzer: good stuff. I am by no stretch of the imagination a constitutionalist, so I will defer to Rt. Hon. William Gladstone, PM of England who said, if you are looking for a rational constitution, just take the American one, it is the best document of its kind ever hammered out by man.
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All I can say is "Wow!" Not knowing enough to comment other than to say"Wow!" and hope Mc Cain will bring the subject up. Sincerely, Arlene Pennington
Small
Astonishingly good analysis of the vapidity of the blustering empty shell that is Obama. Clarence Thomas has been a breath of fresh, strict-constructionist air since he came on the court. To have a Red pinhead deign to even comment on the great man is contemptible.
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Good article. I hope the American electorate can see beyond a good speech and charismatic personality. Barack Obama has accomplished very little with this life. The liberal doctrine which he promotes is what has placed this country in extreme economic danger. If his economic policies are implemented it will result in the final collapse of the current monetary system. Whether this is a good thing or bad, the adjustment is coming. My question is whether the blame will be assessed the perpetrators of this liberal economic policy or its victims.
Small
too much name-calling for my taste, Mr Holzer, and it suggest a personal grudge against the parties concerned.

Sorry, an overly emotinal appeal does not warm this heart!!
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I knew I didn't like Obama, but couldn't put my finger on it. Thank you.
To post comments, please log in first. The Atlasphere is a social networking site for admirers of Ayn Rand's novels, most notably The Fountainhead and Atlas Shrugged. In addition to our online magazine, we offer a member directory and a dating service. If you share our enjoyment of Ayn Rand's novels, please sign up or log in to post comments.