Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Should Critics of Clarence Thomas also Criticize Thurgood Marshall?

David Bernstein suggests that criticism of Clarence Thomas as a “Scalia stooge” is unfounded and supports his argument by noting that Thurgood Marshall voted with Brennan a very high percent of the time. (Link via Volokh). He writes:

I ran into this argument a few years ago on an African American studies listserv, and pointed out that Thomas votes with Scalia far less often than Thurgood Marshall voted with William Brennan, but no one accused Marshall of being Brennan’s lap dog.

Well, let me state the obvious: Of course no one accused Thurgood Marshall — one of the greatest oral advocates and litigators of his time — of being anyone’s “lap dog.” Such an accusation would have immediately been labeled as ludicrous.

There is a vast difference between the pre-Court accomplishments — and the corollary credibility base — of Marshall and Thomas. Marshall came to the Supreme Court after winning the most important constitutional case of the century; Thomas came to the Court after running the EEOC.

This is not to say that everyone who comes to the Supreme Court must be a legendary oral advocate. Nor is it to say that Justices who come to the court with stellar credentials always turn into good Justices. A reasonable argument can be made that Marshall was a disappointment as a Justice; a similar argument can be made that Cardozo, who came to the court with stellar credentials, was also a disappointment. But in both cases, their pre-Court credentials served to inoculate them from certain kinds of attacks — accusations that they were gullible, for example, or unintelligent.

Similarly, no one accuses Posner of being an Easterbrook stooge, or vice versa — no matter how much those two agree, they have established sufficient credentials that such an accusation could not be taken seriously. If Ted Olson were appointed to the Court, or Laurence Tribe, or Ronald Dworkin, it would be similarly impossible to accuse them of being anyone’s stooge. However, Court appointees with less stellar pre-Court credentials — including Clarence Thomas — are subject to types of criticism that their more highly-touted bretheren (based on pre-Court accomplishments) are immune to.

To sum up: Perhaps, as Thomas’s critics suggest, he has had an undistinguished Court career, and perhaps, as Bernstein suggests, Marshall’s career was equally undistinguished; however, Marshall’s pre-Court credentials inoculate him from being accused of being anyone’s stooge, while Thomas lacks similar inoculation.

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July 2, 2003 - Posted by | Uncategorized

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