The Lichfield Group

This column appeared in the January 31, 2005 edition of Roll Call. (subscription required)

Senator Harry Reid (D. Nev.) should apologize for his ill-informed denigration of Associate Justice Clarence Thomas, a potential successor to Chief Justice William H. Rehnquist. His counterfactual and polemical indictments stain the Founding Father’s vision of the Senate as a cool and statesmanlike body as elaborated in Federalist 63.

Unwritten customs are as pivotal as textual declarations to making the Constitution flourish. As Saint Paul sermonized, the letter killeth, but the spirit givith life.

Article II, section 2, clause 2 of the Constitution (Appointments Clause), subjects Supreme Court nominees to the “advice and consent” of the Senate. A floor of intellectual honesty in debating indispensable to enlightened confirmation votes. The Founding Fathers intended the Senate to vet nominees for competence. Outlandish misrepresentations of credentials sabotage that task. Senator Reid’s chronic false and sneering criticisms of Justice Thomas in comparison to Associate Justice Antonin Scalia are emblematic.

During a “Meet the Press” interview with Tim Russert on December 5, 2004, he voiced opposition to Thomas as Chief Justice, and amplified: “I think he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don’t—I just don’t think that he’s done a good job as a Supreme Court Justice.” Reid adduced nothing to substantiate his characterization of Thomas as incompetent. Scalia, on the other hand, elicited rhapsodic praise from the Senator, but still no supporting cases: “I cannot dispute the fact, as I have said, that this is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute.” Do you think Reid had immersed himself in the innumerable opinions of Thomas and Scalia, or was sallying forth with prejudices to mollify the black power elite dismissive of Thomas as a “genuine” black? Consider the Senator’s sequel performances.

In Hillside Dairy v. Lyons (2003), the Supreme Court voted 8-1 to hold California’s milk pricing and pooling regulations vulnerable to constitutional attack under the Commerce Clause. Writing for the majority, Justice John Paul Stevens adhered to the longstanding “Dormant Commerce Clause” doctrine that preempts state laws obstructing national economic markets even when Congress has been mute. Justice Thomas penned a short dissent which would reject the doctrine as applied to non-discriminatory state burdens on interstate commerce. The one-paragraph opinion rested on his previous exhaustive dissent, joined by Scalia, in Camps Newfound/Owatonna Inc. v. Town of Harrison (1997).

Scalia, himself, had trailblazed an assault on the Dormant Commerce Clause in a pair of cases before Thomas’ appointment in 1991: Tyler Pipe Industries Inc. v. Washington State Department of Revenue (1987); and, Bendix Autolite Corp. v. Midwesco Enterprises Inc. (1988).

To deride and to discredit Justice Thomas, Senator Reid told a fable on CNN’s December 26, 2004 “Inside Edition” worthy of Senator Joseph McCarthy’s imaginary 205 Communists in the State Department featured during his February 9, 1950 address in Wheeling, West Virginia. The Senator insisted that Scalia had authored a dazzling Hillside Dairy dissent bristling with the erudition of a Harvard graduate and respecting stare decisis, whereas Thomas’ dissent was “poorly written” and recklessly challenged established precedents. But Scalia joined the majority opinion of Stevens. He did not author a single syllable, in dissent or otherwise. Thomas’ brief opinion satisfied customary professional standards free of literary gaucheries or clumsiness. Both Scalia and Thomas concur in repudiating stare decisis as regards the Dormant Commerce Clause. The discrepancy asserted by Reid is fictitious.

On January 16, 2005, Reid played fabulist again in an interview on ABC’s “This Week With George Stephanopolous.” He falsely maintained that Scalia had written in the majority in Hillside Dairy. The Senator similarly erred in denying that Thomas and Scalia display comparable attitudes towards reversing precedents: “…I think that when we have an activist judge like Thomas, who wants to turn precedent on its head, it’s not good. And I can give you other cases. The Mitchell case on the Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions.” But does the Senator?

In Mitchell v. United States (1999), both Scalia and Thomas dissented from the majority’s holding that the privilege against self-incrimination prohibits the drawing of adverse inferences from a defendant’s silence at sentencing. The majority extended the rule of Griffin v. California (1965) that imposed that Fifth Amendment prohibition during the trial phase of a criminal prosecution. As regards Griffen, Scalia declared: “To my mind, [it] was a wrong turn—which is not cause to override it, but is cause enough to resist its extension.” Thomas’ attitude toward Griffin was virtually identical. He also believed it was wrongly conceived, but declared a willingness to “reconsider” the precedent “in he appropriate case.” Thomas remained neutral on whether he would vote to overrule Griffith.

Reid has not marshaled evidence showing that Thomas votes more frequently to overrule precedents than Scalia. (Hundreds have been overruled in the history of the High Court). The two both voted to overrule the landmark abortion decree of Roe v. Wade (1973) in Planned Parenthood v. Casey (1992) and the notorious police interrogation directive of Miranda v. Arizona (1966) in Dickerson v. United States (2000). Moreover, the Senator studiously eschews chiding any of the six Justices in Lawrence v. Texas (2003) for voting to overrule Bowers v. Hardwick (1986) in recognizing a constitutional right to homosexual sodomy. And the eagerness of Thomas, Scalia, and Rehnquist to follow the Bowers precedent has earned them no salute from Senator Reid. Isn’t his chastisement of Thomas over stare decisis contrived?

The Senate’s advice and consent role in the confirmation of Justice is too important to be left to fables as opposed to facts.

Bruce Fein was associate deputy attorney general under President Ronald Reagan ans is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.