August 11, 2003
We got to hear a speech by Clint Bolick today, he's one of the higher-ups in the Institute for Justice. You might not have think that anybody could make your skin tingle by talking about African hair-braiding and low-income taxicabs, but, well, Clint Bolick can. The experience was magical.
The Institute for Justice is to the Libertarians what the ACLU is to the Liberals. They fight for economic liberty (an issue on which they admit they've pretty much had to make up precedent as they go along), and also defend the constitutionality of school vouchers, and fight unconstitutional abuses of eminent domain.
Mr. Bolick allowed as how this was the first (and probably would be the last) time he delivered a speech at a Pizza Hut (it's a long story), which seems particularly amusing to me because the Nathan Hale Foreign Policy Group (Patrick/Rachel Belton's brainchild foreign policy conspiracy) was also born in Pizza Hut, though it has sense moved up in the world to Bertucci's. Is there some strange rule that Pizza Hut is the birthing place of vaguely-conservative conspiracies?
Incidental plug: If you're in college or graduate school, vaguely Libertarian or with libertarian leanings, and interested in having a summer as fun as mine has been, apply next year to be a Koch Fellow. Basically they give you housing, money, an internship, and a whole bunch of awesome speakers (and a few boring ones) and the chance to fraternize with a bunch of Libertarian folks (The Koch Program also works pretty well in later years as a source of contacts, job opportunities, and the like). It's a strange experience to sit down at dinner and be broadsided by those far more Libertarian than myself.
In the course of a single evening, the following propositions had (nearly) unanimous support-- Literature has no secrets that economics cannot reveal; legalizing pot is the first step towards moving the drinking age down to 16; econometrics is not nonsense; any policy restricting immigration is immoral; and so on. It's going to be a strange adjustment returning to the real world. Even if I were returning to the U of C, Libertarian blood does not run so thick.
They don't usually mention it in the Koch propaganda, but I may was well say so myself. The Koch fellows have a reputation for being the hardiest partiers around.
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Eugene Volokh responds to his critics, and darn is he good at it. But then, people who accuse Professor Volokh of unfairness usually deserve what comes to them. He may have a bent, but Instapundit he's not.
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A Chicago-Blog to keep an eye on is David Kaiser's. Check out, for example, this post on Atticus Finch. He's still got a little bit of work to do in terms of providing regular content, but there's a lot of potential there.
Also, I've neglected some great developments on The Vast Right Wing Conspiracy. He's got some fascinating coverage of the Mississippi judicial scandal. Start here and work your way forward. This stuff is pretty unbelievable. Apparently a Supreme Court Justice, his ex-wife, some other judges, and some lawyers have all been indicted, and there are plenty more people who he shows should have been. And I thought Washington D.C. was a jungle.
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B's Mania graciously backs me up on the Did Clarence Thomas Lie? matter (sorta) but then takes me to task on "Redux," suggesting that it's bad to use the word in a blog post. Why? I have to differ with Balasubramani on this score. Though if some usage rule forbids it, then I'm a prime offender. My blog-posts feature "redux" in the title five times last month, and five the month before that. Maybe it's bad blog-etiquette to repeat post-topics so often without the use of "UPDATE"s, but having done so, isn't it best to admit it?
Thanks to B for the link.
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Some time ago I suggested that it is perfectly fair to ask Nominee William Pryor, "Given your view that abortion is murder, and given that you will be required to hold that over one million murders a year in America are not murders, but Constitutional Rights, why do you want to have this job? Why doesn't the thought of it revolt you?"
Well I just want to note that in fact this question has been asked before, of Justice Thomas, for example. I think it's a good question and a trend we should continue:
KHOL: All right. Judge Thomas, I would like to ask you why you want this job.
JUDGE THOMAS: Senator, being nominated to the Supreme Court of the United States is one of the highest callings in our country. It is an opportunity. It is an entrustment, an entrusting of responsibility by the people of this country, by this body, to make some of the most difficult and important decisions in our country.
It is an opportunity to serve, to give back. That has been something that has been important to me. And I believe Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does.
You know, on my current court, I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, busload after busload. And you look out, and you say to yourself, and I say to myself almost every day, But for the grace of God there go I.
So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes, and I can bring something different to the Court. And I think it is a tremendous responsibility, and it is a humbling responsibility; and it is one that, if confirmed, I will carry out to the best of my ability.
KHOL: All right. That is good.
Judge Thomas, if I understand you correctly, you are going to leave behind most all of your views about what type of society we ought to be and what type of policies we ought to apply. And two questions. First, why after 20 years in the forefront of these battles do you want to leave all of this behind? And the second question is: If you do leave so much of this behind, what is left?
JUDGE THOMAS: Though it may sound rather strange to some individuals, the kind of fighting and the in-fighting and certainly the difficulties of battles, those kinds of battles in the political process I think are wearing. So it is not the confrontation that I ever relished or enjoyed. In fact, that is the opposite of my personality. I like to try to find consensus. So I don't miss and have not missed on this court having those kinds of battles. We have reasoned, constructive debate on the court.
But with respect to the underlying concerns and feelings about people being left out, about our society not addressing all the problems of people, I have those concerns. I will take those to the grave with me. I am concerned about the kids on those buses I told you. I am concerned about the kids who didn't have the strong grandfather and strong grandparents to help them out of what I would consider a terrible, terrible fate. But you carry that feeling with you. You carry that strength with you. You carry those experiences with you. I don't think you have to carry the battles with you. It is a difficult weight.
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Last week we launched a new feature-- 20 questions to a distinguished member of the blogosphere. Well it is now my pleasure to bring you the second installment-- 20 questions for Feddie, everybody's favorite Southern Federalist, and the proprietor of the blog Southern Appeal. [UPDATE: Feddie has now upgraded us to his highest blogroll honor-- "My Huckleberry". I'm, well, honored.]
1: Why did you originally start your blog?
There are several reasons I suppose. The catalyst was without question Howard Bashman's blawg "How Appealing." Howard started "How Appealing" toward the tail end of my first year of clerking and I was really impressed with it (being the law geek that I am). I thought "Hey, maybe I should start one of those." The one hesitancy I had was my status as a federal appellate law clerk. I wasn't sure whether the canons of ethics that apply to judicial clerks permitted such activity, but after reading the canons with Clintonesque precision, and discussing the matter with my co-clerks, I concluded that it was indeed permissible. Out of an abundance of caution, however, I decided to blog anonymously. And once my blog started getting a significant amount of traffic (i.e., people other than my co-clerks and mother), I disclosed what I was doing to my judge. He had no problem with me blogging anonymously, but I did have to give him some background information on what a blog was and what blogging entailed. But I've gotten away from the original topic, haven't I? You want to know why I started Southern Appeal. Well, I am sure that some of my motivation had to do with ego (i.e., that I had unique insight to provide on various and sundry topics that, by God, needed to be shared with the unwashed masses and other enlightened folks such as myself). The other reason is fairly simple: I love the subject matter I write about (i.e., law, history, politics, and faith). To be honest, I am a little taken aback by the modicum of success enjoyed by Southern Appeal. If you had told me at the outset that SA would eventually be linked to by people like Jonah Goldberg, Eugene Volokh, or Howard Bashman (on a consistent basis), I would have thought you were pollyannish to say the least.
2: How much time do you spend blogging, and where do you find the time to blog?
Oh, it varies. I generally blog in the morning before I shower, for thirty minutes or so after my quiet time but before I start work, during my lunch hour, and occasionally during the day when I am at a stopping point in my writing or there is something particularly interesting going on. I also do a good bit of blogging at night when my wife and children are asleep. I am not sure how much time I spend blogging, but I know that it is nowhere near the amount of time Bashman spends blogging over at How Appealing. That guy isn't human, I tell ya.
3: Are there any blogs or publications you find particularly indispensable?
How Appealing and The Corner would be at the top of my list. They are particularly good. I also enjoy Stuart Buck's blog, "The Buck Stops Here," and what the youngsters over at Ex Parte have to say (Justice Joseph Story would have liked them). There are others as well, and most of them are listed under the category "My Huckleberry" over at SA. As for publications, I subscribe to National Review and First Things.
4: How should a Southern gentleman properly dress?
Well, it is, of course, more important to act like a gentleman than to dress like one, but if one has the means, I would recommend:
(a) at least two 100% worsted wool suits (navy and banker's gray, single vent in the coat, subtle pleat or plain front pants with cuffs). I like Hart, Schaffner & Marx and Brooks Brothers suits.
(b) a navy blazer (single vent);
(c) a seersucker suit (blue stripe rather than gray-one shouldn't try to emulate Matlock) and white bucks (shoes). These are must have items for those practicing law in the deep South. I would also purchase a tan or olive poplin suit for the summer (or get both).;
(d) Allen Edmonds dress shoes (Alden and Johnson and Murphy are popular in Dixie as well). I like the black and tan captoes and brown/white spectators (which my friend P. over at Sub Judice has called "paleolicious");
(e) plenty of regimental stripe ties (regular or bow tie-I prefer the latter);
(f) "freedom" cuff dress shirts and cuff links (a more formal look for a more formal region);
(g) a TAG watch;
(h) a lot of Ralph Lauren casual dress shirts and knit polos (traditional solid colors or plaids). Izod Lacoste is also fairly big with the blue bloods;
(j) several pairs of khaki pants (I prefer Bill's Khakis);
(k) lapel pins for your suit jacket or blazer (American flag or Federalist Society);
(l) White cotton pocketsquare for your summer suit jacket;
(m) Bass Weejun pennyloafers; and
(n) a nice cane or walking stick to pummel loud mouth Yankee tourists with (just kidding)
5: A lot of law students have negative experiences with law school, though few of them perpetuate the experience by going on to clerk. Was your law school experience a positive one, and what would you change about it?
Oh yes, I loved law school. I had some great professors (many of whom I still keep in touch with), and I made some great friends during that time period of my life. The only thing that I regret is not going out for law review. I was invited to write on, but I declined to do so because I was worried that my grades might suffer. I was married, getting ready to start an internship with the DOJ, and I planned on going out for Moot Court in the fall (which I ended up doing and enjoyed immensely). I just did not see how I would have time to do it. I should have made time.
6: How did you grow to be an Originalist/Federalist in the first place? What sort of intellectual and other influences brought you there?
My love for history and tradition unquestionably laid the foundation for me to become an originalist, but it was Robert Bork that sealed the deal. I went to hear him speak while I was in college, and I was so impressed with what he had to say that I purchased his book, Tempting of America, immediately after his speech. TOA is a masterpiece and serves as the cornerstone of my judicial philosophy. My other intellectual influences in this area are Antonin Scalia, Clarence Thomas, Joseph Story, Alexander Stephens, St. George Tucker, and John Taylor of Caroline (to name just a few).
7: You recently had both Jonathan Adler and Quin Hillyer guest-blog for you during the birth of your daughter, prompting Howard Bashman to remark, "with such big-name celebrities filling in, some may begin to wish that 'Feddie' were absent more often." While of course we are glad to have you back at Southern Appeal, how did you come to have Mr. Adler and Mr. Hillyer to fill in for you?
I e-mailed each of them and asked whether they might be interested in guest blogging the week Attorney General Pryor's vote was scheduled to go before the SJC. I knew that people would be coming over to Southern Appeal for the details, but I also knew that I would have little to no time to cover the matter due to the birth of my daughter (which was obviously far more important than blogging). Nevertheless, I didn't want to let SA's readers down, so I decided to contact the two people I thought had done the best job--other than yours truly :) --of covering and defending Attorney General Pryor. Thankfully, they were both gracious enough to help me out, and now Quin is a permanent part-time blogger at SA.
8: As a Federalist, you must think issues are generally best left to the states rather than the Federal government. Yet you have endorsed Constitutional amendments banning abortion or gay marriage. What other Constitutional amendments would you like to see passed even if they do delimit states' rights?
It is not that I prefer state government over federal government (both are rather inept). What I favor is the dual sovereignty model established by our founders via the ratification of the federal Constitution. There are certain matters that clearly should be dealt with at the federal level (e.g.,, regulation of interstate commerce and provision for the "common defense"). There are other issues, however, that the states are better suited to handle (e.g., most individual liberty and moral matters). There are some moral issues, however, that define us as nation-who we are as a people. Abortion and marriage are two such issues. Abortion is an evil that must be eradicated in the same manner as slavery, and preserving the institution of marriage is essential to keeping the United States from going the way of the Roman Empire. These are issues of national importance, and they must be dealt with at the federal level vis-a-vis constitutional amendments. I would also be in favor of a constitutional amendment that had the effect of demolishing the fictional "Wall of Separation" read into the First Amendment by the Supreme Court in Everson (a truly horrendous decision). I might also favor tweaking (if necessary) the Second Amendment to make its original meaning even clearer: that individuals have a constitutional right to bear arms.
9: On your blog you describe yourself as a "Southern Federalist." Do you feel that there is a different sort of Federalism among Southern Federalists than among, say, Western Federalists or Northern Federalists?
Not really. The "Southern" in "Southern Federalist" is simply there to describe my cultural background.
10: Aside from Justices Scalia, Thomas, and Rehnquist, are there any Justices on the current Supreme Court you particularly admire?
No. And you can remove the Chief from that list. He has been quite a disappointment to me of late.
11: Some members of the House have proposed foregoing enforcement of the Court Rulings on the Pledge of Allegiance and the Ten Commandments with which they disagree. What do you think of this tactic?
Well, as I have noted over at SA, lawlessness begets lawlessness. That having been said, there is some precedent for this course of action. Remember Andrew Jackson's famous line? "Mr. Marshall has made his decision. Now let him enforce it." Moreover, members of congress and the president are also charged with protecting our republic's constitutional integrity. One could argue that the refusal to enforce the Ninth Circuit's ruling in the POA case and the Eleventh Circuit's decision in the Ten Commandments case serves as a check and balance on a runaway federal judicial system. On the other hand, as much as I disagree with the jurisprudential underpinnings that resulted in both of these decisions, I think it is more than a tad disingenuous to suggest that either the Ninth Circuit or Eleventh Circuit ruled in a manner inconsistent with the Supreme Court's current Establishment Clause jurisprudence (which almost every legal scholar and judge will admit is a complete mess). I am also deeply troubled by Chief Justice Moore's actions in the Ten Commandments case. Although I share his view that the Supreme Court's Establishment Clause jurisprudence (i.e., Everson and its progeny) is an extraconstitutional fraud, his conduct leading up to and throughout the case has been shameful. Justice Moore has disgraced the title he holds and seriously undermined the rule of law. For that, he should be run out of office the next time he is up for election. Thus, while I have some sympathy for those inclined not to enforce the POA ruling (I mean it's not like anyone takes the Ninth Circuit seriously anyway), I would probably bring down the hammer on Justice Moore. In sum, I think issues like these should be evaluated on a case by case basis, and that Congress and the president should use such tactics sparingly.
12: Several conservatives have called Roe v. Wade and its successor, Planned Parenthood v. Casey, the worst Supreme Court decisions since Dred Scott v. Sanford. Do you think there have been any decisions worse than Roe v. Wade? Do you think Dred Scott was worse than Roe v. Wade?
Well, we must first define the parameters. When most people assert that Roe v. Wade is one of the worst Supreme Court decisions ever what they really mean is that the result in that case was morally wrong. I share this sentiment, but Roe is equally bad for reasons having nothing to do with morality. As an original matter, there is no question that the federal constitution does not address the issue of abortion (explicitly or implicitly), and thus it is clearly a matter for state regulation. The Roe Court, however, expanded on a bastardized line of jurisprudence created out of whole cloth and held, with no constitutional basis whatsoever, that women have a fundamental constitutional right to murder their children (although most of them have been duped into believing otherwise by either their doctors or the witches over at NARAL and Planned Parenthood). So yes, Roe is one of the worst constitutional decisions ever. But there are certainly others: Dred Scott, Plessy v. Ferguson (separate but equal); Lawrence v. Texas (right to engage in sodomy); Everson (Wall of Separation); and Gitlow v. New York (origin of the incorporation doctrine), to name just a few.
13: What role should Stare Decisis play in judicial decision-making? For example, under what circumstances (if any) would you decide that Roe v. Wade was "better settled than right"?
For precedent to be entitled to respect it must have a respectable basis. Stare decisis means nothing to me unless the constitutional basis of the decision (or line of jurisprudence in question) is sound. Thus, were I on the Supreme Court (a scary thought to most, I know), I would vote to overrule Roe no matter how much time had passed. I find it rather interesting that liberals only wave the flag of stare decisis when the decision in question enshrines their value preference into constitutional law (e.g., Roe). I don't remember hearing any one in the liberal media babbling on about stare decisis when it came to Lawrence. And I am quite sure that if another justice joins the gang 'o four (Stevens, Souter, Ginsburg, and Breyer), they will not hesitate to sweep the Supreme Court's recent federalism cases into the dustbin of jurisprudential history. Although the doctrine of stare decisis has its place in constitutional interpretation, it is not as important as it was to the common law method of judging.
14: You have suggested that opposition to William Pryor's nomination to the court of appeals may partially be linked to anti-Catholic bias on the right. Do you think that this anti-Catholic bias is really just against Catholics, or is it part of a broader bias-- against devout Christians, or even against deeply religious people generally?
Probably not. I think the dems would be against any conservative Christian judicial nominee, Catholic or otherwise. There is no question in my mind, however, that many dems (including those who call themselves Catholic) are hostile to many of the Church's teachings and thus hostile to those who accept and abide by them.
15: You blog anonymously, presumably because of your clerkship. Do you think that it is unethical for a law clerk to blog under his or her real name?
I don't think it would be unethical, but as a prudential matter I would advise any clerk thinking about blogging to do so anonymously during his/her clerkship. And I will disclose my identity at the conclusion of my clerkship.
16: Richard Posner, among others, has suggested that Law School now functions as a sort of "brain drain." Bright young people, the argument goes, no longer enter graduate schools in economics, political science, or philosophy but turn instead to Law School where the monetary returns are far greater. This in turn contributes to a dearth of serious philosophers and economists, and a glut of lawyers running around suing each other. Do you think there is any truth to this?
I think so. There are a lot of people who go to law school simply because they have no idea what they want to do. On the other hand, many law grads never practice law and end up going into an entirely different field. The nice thing about law school is that it cultivates one's critical thinking skills (something that is rarely done at the collegiate level).
17: Practically speaking, is there any real hope for Originalism?
Absolutely. Although originalists have had some high profile losses, there are many other cases where originalism has won the day. The flag burning decisions have been essential to preserving the First Amendment right of political speech. The Court's decision in Kyllo (i.e., the thermal imaging case) was a great example of how the original meaning of the Fourth Amendment should and can be applied in the modern day. The Court's recent federalism decisions have been wonderful victories for originalists. And there are several other issues looming on the horizon where originalism will play a key role-e.g., the Second Amendment, the P&I Clause, and the Ninth and Tenth Amendments. There is much work to be done in reversing the judicial tyranny of the last seventy five years or so, and I truly believe that originalism will be the (legitimate) means by which that restoration will take place.
18: If he hadn't been shot, how would Abraham Lincoln have handled Reconstruction?
The short answer is that it probably would have gone a lot better for the South had Lincoln not been shot (at least that is what most historians seem to believe). But who knows. Reconstruction was an unfortunate period in this nation's history, and I am not sure that the South has ever fully recovered from the losses its sustained from the War Between the States and Reconstruction. But payback is a bitch when you lose a war, I suppose.
19: The Institute for Justice has attacked laws like Texas's now defunct sodomy law not on "substantive due process" grounds, but on the grounds that such regulations exceed the traditional police power of the state. They write: "The problem . . . with the fundamental rights inquiry, is that there are countless private activities that are protected by no tradition or express constitutional provision. It would be unimaginable that they could be prohibited in a free society, even if some objection could be raised to them cooking unhealthy meals, staying up too late, spending a slothful day drinking coffee and doing puzzles instead of accomplishing something productive.... such private activities, in the aggregate, are the essence of ordered liberty. In your view, would it be Constitutionally permissible for a state to outlaw gardening, or crossword puzzles?
Yes, where states are sovereign they are sovereign. States are free to, and often do, enact stupid laws. The fact that a state law is stupid does not mean that the federal judiciary has the authority to strike it down. And who gets to define which laws are stupid? Some people may like to live under stupid and oppressive laws. Just look at California and Massachusetts. If the citizens of a certain state don't care for a particular law, they have two choices: (1) participate in the legislative process in that state and try to get the law repealed; or (2) move. That's the beauty of federalism. Federalism may not be perfect in all instances, but it's a hell of lot better than being ruled by five unelected justices from Washington, D.C.
20: According to your blog you enjoy Jefferson's Reserve bourbon. Why do you prefer this to, say, Bookers or Maker's Mark
It is not something that I can articulate in words. Bookers and Maker's Mark are fine bourbons, but Jefferson's Reserve is better IMHO.
Bonus Question: [Editor's Note: I thought of this question later and Feddie graciously agreed to answer it.] Do you have thoughts on the constitutionality of Federal drug legislation, particularly as it pertains to intrastate commerce? I'm thinking here of California's failed attempt to permit medicinal marijuana grown within its borders to be sold and used within its borders.
As an original matter, I do not think that the federal government has the power to prevent a state from allowing its citizens to grow and use marijuana for personal use (medicinal or otherwise). Things become more complicated, however, if a state permits or fails to prohibit the sale of such marijuana. I suppose a state could regulate the sales to such a degree that they could properly be classified as intrastate rather than interstate activity, and thus fall outside the ambit of the Commerce Clause (as originally understood); but that analysis would be fact intensive to say the least. In any event, while all of this is a nice distraction from constitutional reality, the truth is that the California statute is a dead letter under the Supreme Court's decision in Wickard. I, of course, am for overruling Wickard with impunity--stare decisis be damned.
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Oh, I'm not done after all. Following up on my post a little below here, here are some more gems from Clarence Thomas's hearing. My personal favorite is the following question from Senator Metzenbaum who is upset that Justice Souter espoused a belief in a right to privacy and then voted with the majority in Rust v. Sullivan. Rust was a free speech case holding that when Congress gave funds to federal clinics it was entitled to keep federally funded clinics from engaging in abortion advice or activity. It's a very controversial and troubling case in the free-speech context, but it has nothing to do with the right to have an abortion at all. Indeed, Souter went on to defend that right heartily in Planned Parenthood v. Casey. But I guess there's no pleasing some people. (Note also that Justice Kennedy, who Metzenbaum calls Judge Kennedy, also helped write the Casey opinion defending an abortion right. And note further, of course, that just because somebody believes that there is a right to privacy, he needn't believe such a right extends to the right to abort one's fetus.)
SENATOR METZENBAUM: In all of your 150-plus speeches and dozens of articles, your only reference to a right to privacy was to criticize a constitutional argument in support of that right. Yesterday you said there is a right to privacy...
For example, yesterday, in response to a question from Senator Biden, you said that you support a right to privacy. Frankly, I was surprised to hear you say that. I have not been able to find anything in your many speeches or articles to suggest that you support a right to privacy.
Unfortunately, the committee has learned the hard way that a Supreme Court nominee's support for the right to privacy doesn't automatically mean that he or she supports that fundamental right when it involves a woman's right to abortion. At his confirmation hearing, Judge Kennedy told us he supported the right to privacy. Since he joined the Court, Justice Kennedy has twice voted with Chief Justice Rehnquist in cases that have restricted the right to abortion.
Likewise, Justice Souter told us that he supported the right to privacy, and then when he joined the Court, Justice Souter voted with the majority in Rust v. Sullivan.
JUDGE THOMAS: Senator, as I noted yesterday, and I think we all feel strongly in this country about our privacy--I do--I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.
SENATOR METZENBAUM: I am not asking you to prejudge it. Just as you can respond--and I will get into some of the questions to which you responded yesterday, both from Senators Thurmond, Hatch, and Biden about matters that might come before the Court. You certainly can express an opinion as to whether or not you believe that a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case. And I am asking you to do that.
JUDGE THOMAS: Senator, I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue.
SENATOR METZENBAUM: Let us proceed. Judge Thomas, in 1990, I chaired a committee hearing on the Freedom of Choice Act, where we heard from women who were maimed by back-alley abortionists. Prior to the Roe decision, only wealthy women could be sure of having access to safe abortions. Poor, middle-class women were forced to unsafe back alleys, if they needed an abortion. It was a very heart- rending hearing.
Frankly, I am terrified that if we turn the clock back on legal abortion services, women will once again be forced to resort to brutal and illegal abortions, the kinds of abortions where coat- hangers are substitutes for surgical instruments.
The consequence of Roe's demise are so horrifying to me and to millions of American women and men, that I want to ask you once again, of appealing to your sense of compassion, whether or not you believe the Constitution protects a woman's right to an abortion.
JUDGE THOMAS: Senator, the prospect--and I guess as a kid we heard the hushed whispers about illegal abortions and individuals performing them in less than safe environments, but they were whispers. It would, of course, if a woman is subjected to the agony of an environment like that, on a personal level, certainly, I am very, very pained by that. I think any of us would be. I would not want to see people subjected to torture of that nature.
I think it is important to me, though, on the issue, the question that you asked me, as difficult as it is for me to anticipate or to want to see that kind of illegal activity, I think it would undermine my ability to sit in an impartial way on an important case like that.
Taking strong positions on issues that are of some controversy in our society when there are viewpoints on both sides undermines your ability.
My Dallas Cowboys, for example, played the Redskins on Monday night, and I am totally convinced that every referee in those games is a Redskins fan. But none would admit to it.
I think that in something as simple as that, even though we have strong views about who should win, something as simple as that, we would want to feel that the referees--and judges are, to a large extent, referees--are fair and impartial, even when we don't agree with the calls.
SENATOR BIDEN: Judge, are you for the Dallas Cowboys or the Redskins?
JUDGE THOMAS: I am a lifetime- -I have been a Dallas Cowboys fan for 25 years.
SENATOR BIDEN: Thank you very much.
SENATOR SIMPSON: That didn't come off of my time, did it?
SENATOR BIDEN: No. It doesn't come off your time. I am just curious.
JUDGE THOMAS: I am certain that that will probably have someone else express his concern about me.
SENATOR SIMPSON: I think that will create more concern than anything thus far. To have you in this nest of Redskin fans, to be a Dallas Cowboy fan certainly discloses a degree of independence which will serve you very well on the Court.
SENATOR GRASSLEY: Judge Thomas, again I want to welcome you, and particularly welcome you and your family, and I admired how patient they have been sitting through all of this. They are to be complimented, and particularly complimented for their support of you during this time of trial, although you tend to be handling the trial very well. I do not know what your son's career is going to be, but I am sure it is not going to be in law, after he observes what you go through.
Judge Thomas: My wife said to me that to the extent that Justice Souter was a "stealth nominee," I am "Bigfoot."
Oh, and finally, for those who are sure that Justice Thomas's Yale Law degree was rooted in racial preferences:
SENATOR BROWN: Judge Thomas, I bring this subject up not to cause you personal concern, but because it has become part of the debate over your nomination. I preface it that way, because it is not normally the type of thing that I guess I would bring up at a hearing of this kind.
But one of the charges that has been brought against you in this nominating process is that you benefited by quotas or affirmative action, but do not support them. I guess the question is directly in entry to Yale, were you part of an affirmative action quota, were you part of a racial quota in terms of entering that law school.
JUDGE THOMAS: Senator, I have not during my adult life or during my academic career been a part of any quota. The effort on the part of Yale during my years there was to reach out and open its doors to minorities whom it felt were qualified, and I took them at their word on that, and I have advocated that very kind of affirmative action and I have done the exact same thing during my tenure at EEOC, and I would continue to advocate that throughout my life.
SENATOR BROWN: Mr. Chairman, my time is up. I would merely note for the record that the Judge was an honors graduate of Holy Cross Undergraduate School, and ask that we make a part of the record an article on this subject from the Daily Journal.
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Those of you still amused by our parody-blog's antics will be relieved to see that Assprat Pretentia is back (and with a vengeance, I might add). But insulting my brother is pretty darn low-- and silly. Everybody knows that he's the brains of this operation, on the rare occasions he deigns us with his wit.
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(via Yglesias/Delong): Matthew Yglesias agrees with Al Kamen that Clarence Thomas lied about his beliefs on a right to privacy. Neither of them offers up a whole lot of evidence for this claim however. What they do show is that Thomas expressed one opinion in his confirmation hearing-- that the 14th Amendment protected a right to privacy-- and another in Lawrence v. Texas (where he wrote that he could find no right to privacy in the Constitution).
I find this particular ironic because one of Jack Balkin's complaints against Scalia is that Scalia has never started out with one view of the Constitution and then changed his view in light of evidence on text and history. But that seems to be precisely what happened to Justice Thomas. Isn't it a good thing that in ten years of service as a Supreme Court Justice he has accepted an originalist argument that probably cuts against what he personally would like to be the outcome in a given case? If Scalia's refusal to change his mind when he's wrong indicts him, shouldn't Thomas's willing to accept an originalist argument acquit him?
Incidentally, this particular idea isn't new to Kamen. You'll find it here on Media Gap over a month ago, the same day on Sarafem, and several bloggers credit Atrios for it. The rigorous will find the actual transcript of the hearing (an interesting read) here.
And you'll notice then-Judge Thomas tiptoeing around the privacy issue sufficiently gingerly that I think it's very very unfair and hasty to accuse him of lying.
For that matter, consider this testimony by Judge Thomas a few days later in his confirmation hearing, which covers both Substantive Due Process and the issue of pre-judgment:
JUDGE THOMAS: Senator, there is a lesson that I think we all learn when we become judges, and I think it happens to you after you have had your first case; that you walk in sometimes, even after you have read the briefs and you think you might have an answer. And you go to oral argument, and after oral arguments you think you might have an answer.
SENATOR HATCH: That is right.
JUDGE THOMAS: And after you sit down and you attempt to write the opinion, you thought you had an answer, and you change your mind.
I think it is inappropriate for any judge who is worth his or her salt to prejudge any issue or to sit on a case in which he or she has such strong views that he or she cannot be impartial. And to think that as a judge that you are infallible I think totally undermines the process. You have to sit. You have to listen. You have to hear the arguments. You have to allow the adversarial process to think. You have to be open. And you have to be willing to work through the problem.
I don't sit on any issues, on any cases that I have prejudged. I think that it would totally undermine and compromise my capacity as a judge.
SENATOR HATCH: I think that says it all. But let me just say this: I have been interested in some of these questions about substantive due process issues. As you know, the first substantive due process case was the Dred Scott case in 1857. That is where the Supreme Court held that the "Liberty Clause" of the Due Process Clause prevented Congress from forbidding slavery in the territories.
Now, later in the 19th century and earlier 20th century, the Supreme Court employed substantive due process in Lockner v. New York--that is the case that came up earlier--to strike down the law that limited the numbers of hours that bakery workers could work in a week. The Federal Government passed the law, and Lockner struck it down.
There were other substantive due process cases up until the 1930's, and all of those struck down efforts by the States to regulate the workplace and the economy. And substantive due process was basically dormant from that time until the early 1960's when the Court, of course, began to use substantive due process to achieve liberal results, or should I say liberal social policy results.
Now, that was all right. The other was wrong. I am telling you both of them are wrong. The fact of the matter is that nobody in his right mind believes that you are going to go strike down all of the social policy results that the Congress has passed, including OSHA, food safety laws, child care legislation, welfare laws, fair housing laws, low-income housing and so forth.
Is there even any shred of evidence or any shred of thought that you would be the type of judge that would be a substantive due process judicial activist that would take us back to the Lockner days?
JUDGE THOMAS: To my way of thinking, Senator, there isn't.
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