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.
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.