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Shorter Adam Cohen on Clarence Thomas:

NY Times: Liberals are good people. Conservatives are bad people. Clarence Thomas, who is black and grew up under modest circumstances, and once was liberal himself, should be the first one to realize this. Instead, not only is he conservative, but he hangs around with bad people like Rush Limbaugh. This is an enigma, and an especially troubling one now that the Court is moving in Thomas's direction.

Anonymous11111:
The funniest line may be a description of Marshall "push[ing the Supreme Court] in a humane direction" as if a jurisprudence that allows killers to live, which terrorizes the productive class with lawsuits, which upholds affirmative action, which strikes down anti-abortion laws, can be "humane".

Liberalism may be many things, but humane is not one of them.
6.3.2007 11:58am
bigchris1313 (mail):
Nothing like a hit-job complete with opinions on which he dissented without a scrap of context.
6.3.2007 12:01pm
Hans Bader (mail):
If Adam Cohen did not exist, the Onion would have to invent him, as an absurd self-parody of political correctness.
6.3.2007 12:06pm
PersonFromPorlock:
Amusing. "Demonic possession" would have been more succinct, though.
6.3.2007 12:07pm
Cornellian (mail):
The irony is that Thomas is probably the Justice least vulnerable to the accusation of making decisions based on political preferences, certainly less so than Ginsburg on the one hand, or Scalia on the other.
6.3.2007 12:08pm
Eli Rabett (www):
How about the last line:

America will be a much less just place if Justice Thomas's life experiences and moral truth start to shape the court's agenda — and the nation's.
6.3.2007 12:09pm
Jim FSU 1L (mail):
Yeah, imagine how terrible a place America would be if the founding fathers had tried things Thomas' way.
6.3.2007 12:11pm
Recovering Law Grad:
I agree that the piece was largely absurd and, as one commenter put it, essentially a hit-piece. However, Clarence Thomas's friendship with Rush Limbaugh is sort of a joke. I find it stunning that someone who is at the apex of the nation's intellectual world could take seriously someone like Limbaugh.
6.3.2007 12:24pm
The Florida Masochist (mail) (www):
Law Grad,

Some people enjoy what are known as guilty pleasures. It can be Rush Limbaugh, Disco music, Japanese monster movies, or a wide variety of things.

Cheers,

Bill
6.3.2007 12:41pm
Charlie (Colorado) (mail):
Yeah, imagine someone at the pinnacle of intellectual life being friendly with a conservative commentator. Why, next you'll tell us that Thomas is friendly and cordial with mere tradesmen.

I'm glad I'm not Adam Cohen's dry cleaner.
6.3.2007 12:46pm
Thussprach:
Excerpt from Mr. Cohen's bio (http://www.nytimes.com/ref/opinion/editorial-board.html):

"Prior to entering journalism, he was an education-reform lawyer, and a lawyer for the Southern Poverty Law Center in Montgomery, Ala."

I think this explains a lot.
6.3.2007 12:56pm
Rick Wilcox (www):
Charlie:
I heard Justice Thomas speaks civilly to children - even when they speak up unasked!

You know, part of me thinks that I'd actually rather that the Onion created Cohen. He'd be funnier.
6.3.2007 12:58pm
Recovering Law Grad:
Florida - Very true. You're right. As long as you recognize it for what it is, it's more palatable. (I watch Hannity &Colmes every night and definitely recognize it for what it is.)
6.3.2007 1:03pm
Truth Seeker:
I find it stunning that someone who is at the apex of the nation's intellectual world could take seriously someone like Limbaugh.

Maybe you still have a lot to learn, from both of them. It takes a long time to be washed of the poisons they teach in univiersities these days. Keep watching and you'll eventually get it all. Hopefully.
6.3.2007 1:19pm
Dave N (mail):
Not only did Cohen write a hit piece, but the implication of his first sentence (Justice Thomas never speaks at oral argument) is inaccurate.

Justice Thomas does not speak very much at oral argument but he does on rare occassions

I was in attendance on one such occassion when Justice Thomas asked both a question and a follow-up during the oral argument in Rice v. Collins (page 46).

But, of course, implying that Justice Thomas never says anything at all feeds both the cliche that he is a rigid ideologue too stupid to put two sentences together. Of course, that is a cliche about other conservative politicians too, so I guess it is just a conveninent liberal template.
6.3.2007 1:20pm
e:
Thomas has said that he prefers to hear what the advocates have to say rather than the often political "questions" of the justices. He thinks the questions often unnecessarily interrupt the flow of an argument, but I suppose that can be taken as "contempt for the process" even if polite society might agree in some ways. At least his critics have gotten past the can't think for himself so he follows Scalia bull. Funny that contempt for the system is what drives many (Cohen?) to think that statutes and constitutions should be modified by judges.
6.3.2007 1:42pm
Markusha:
I've read a lot of silly posts by David, but this one comes close to being the silliest one. It's nothing but a stupid (and I don't use the word often) caricature of the Cohen's piece. Instead of seriously engaging Cohen, David creates a strawman (all conservatives are bad, all liberals are good).
6.3.2007 2:04pm
byomtov (mail):
Actually, I do think Limbaugh is a bad person. He's a dishonest blowhard who has had a negative effect on American political discourse.
6.3.2007 2:17pm
williamandmaryalum (mail):
As a law student, I am greatly disturbed that the NY Times could publish such a clear hit-piece and try to represent it as journalism. Justice Thomas is an originalist pure and simple. He rarely, if ever, deviates from this philosophy, and it is unfair to assume he must rule based on some emotional standard set by the "great" Justice Marshall.
6.3.2007 2:18pm
Tek Jansen:
David Bernstein: liberals are stupid and think they are better than everyone else. Conservatives are smart and are better than everyone else.
6.3.2007 2:19pm
Grackel (mail):
As a law student, I am greatly disturbed that the NY Times could publish such a clear hit-piece and try to represent it as journalism.
Possibly you missed the large header centered at the top of the page that says 'Opinion' in bold font.
6.3.2007 2:26pm
Dave Hardy (mail) (www):
Possibly you missed the large header centered at the top of the page that says 'Opinion' in bold font.

Dang! I thought that was "Onion." You mean this piece is for real?
6.3.2007 2:47pm
John Herbison (mail):
Clarence Uncle Thomas and Rush Bimbo have each spent a career toadying to powerful Republicans, whose political philosophy can be summarized in a single, vulgar hand gesture. If Thomas's antipathy toward affirmative action were genuine, why the hell did he accept what was plainly an affirmative action appointment to his present position?
6.3.2007 2:49pm
Bruce Hayden (mail) (www):
Maybe should have titled this former education-reform lawyer, and a lawyer for the Southern Poverty Law Center upset that Clarence Thomas knows Rush Limbaugh, and then see if it shows up in Taranto's Best of the Web Bottom Stories of the Day.
6.3.2007 2:58pm
PersonFromPorlock:
<blockquote>
<i>Clarence Uncle Thomas and Rush Bimbo have each spent a career toadying to powerful Republicans....</i>
</blockquote>
On the other hand, 'powerful' Republicans spend <i>their</i> careers toadying to powerful Democrats, so what's your gripe?
6.3.2007 3:04pm
PersonFromPorlock:
Sorry 'bout that:


Clarence Uncle Thomas and Rush Bimbo have each spent a career toadying to powerful Republicans....

On the other hand, 'powerful' Republicans spend their careers toadying to powerful Democrats, so what's your gripe?
6.3.2007 3:05pm
elChato (mail):
Brennan, Blackmun, and Marshall were known for asking relatively few questions at oral argument.

I will scour the Times archives for pieces citing this phenomenon as evidence of their stupidity and disengagement.
6.3.2007 3:06pm
JunkYardLawDog (mail):
Tek,

That was funny and an accurate description of liberals and conservatives both at the same time.

Although to be fair I would substitute delusional for stupid because their are many very smart liberals who are either liars seeking power or who were liars but became delusional when they started believing their own lies.

So I would improve you saying with "liberals are delusional" and "conservatives are not delusional".

Says the "Dog"
6.3.2007 3:12pm
Nathan_M (mail):
Tek Jansen, your charicater of Professor Bernstein is completely out of line after his many thoughtful posts. He has clearly demonstrated liberals and stupid AND anti-semitic.
6.3.2007 3:35pm
Henri Le Compte (mail):
Wow.... If you want to bring out the latent racism in a "leftie," just get them to talk about Clarence Thomas.

Have you read anything recently more ugly than the first paragraph of this piece? Perhaps Clarence Thomas doesn't speak up during oral arguments because he doesn't enjoy seeing his words twisted by the condescending racists at the NY Times?
6.3.2007 4:01pm
Montie (mail):

I've read a lot of silly posts by David, but this one comes close to being the silliest one. It's nothing but a stupid (and I don't use the word often) caricature of the Cohen's piece. Instead of seriously engaging Cohen, David creates a strawman (all conservatives are bad, all liberals are good).


Caricature? What would you call this statement by Cohen: "[Thomas] appears poised in the next few weeks to achieve his longstanding goal: dismantling the integrationist vision of his predecessor Thurgood Marshall."? Moreover, what would you call Cohen's representation* of Thomas's dissents?

Presenting a caricature of a caricature does seem inherently wrong to me.
6.3.2007 4:10pm
Montie (mail):
Oops make that:

Presenting a caricature of a caricature does not seem inherently wrong to me.
6.3.2007 4:15pm
Constantin:
What a deplorable post, John Herbison. But if I was to engage you on what I think is your point, lost as it is in the overt racism, I'd note that I just can't figure out why every white male affirmative-action supporting university president in America hasn't resigned yet, the better to clear the way for a woman or minority to break the glass ceiling.
6.3.2007 4:39pm
JunkYardLawDog (mail):
Constantin, the answer to your question is easy. Liberals only believe in screwing with other people's lives and other peoples money.

Says the "Dog"
6.3.2007 4:44pm
JGR (mail):
"Clarence Thomas's friendship with Rush Limbaugh is sort of a joke. I find it stunning that someone who is at the apex of the nation's intellectual world could take seriously someone like Limbaugh."

I am an intellectual whose best friend since high school is a non-intellectual who has never read a book for pleasure in his life. The qualities I look for in a friend - integrity,loyalty,principle - are qualities that I find sadly lacking in many intellectual circles. I am sure that the friendship between Thomas and Limbaugh is different than what I am describing - friendship carries many connotations, ranging from Aristotelian friendship to "a pal that you hang around with for a good time" - My only point is that at either end of the continuum, one ought not to regard this as stunning. Numerous writers have pointed out that many of the worst pathologies of modern intellecuals can be traced to their insular seclusion from the rest of society (Hence the pejorative term "ivory tower"). This point has been raised in a number of different contexts, by thinkers as diverse as Charles Murray and Camille Paglia. The world would probably be a better place if many intellectuals did not lead social lives that were functionally similar to a religious cult, where people married and made friends with people who already shared their biases and frequently warped view of reality.
6.3.2007 4:57pm
Richard Nieporent (mail):
he is afraid that if he speaks he will reveal his ignorance about the case

So once again we see who the real racists are in America.
6.3.2007 5:12pm
Brian K (mail):
This post is a stunning example of political hackery on all sides.
6.3.2007 5:15pm
MGoBlue (mail):
The headline to this post made me think a diminutive Adam Cohen doppleganger was riding a Supreme Court justice.
6.3.2007 5:20pm
Guest101:

So once again we see who the real racists are in America.

You mean the ones who cry "racism!" whenever it's suggested that an individual who happens to be a member of a racial minority might actually be as ill-qualified to be a Supreme Court Justice as he appears to be?
6.3.2007 5:26pm
Hewart:
Agreed, BrianK.
6.3.2007 5:26pm
Ricardo (mail):
JGR wrote:

The world would probably be a better place if many intellectuals did not lead social lives that were functionally similar to a religious cult, where people married and made friends with people who already shared their biases and frequently warped view of reality.

Yes, this is a little far afield of the original topic but we are not talking about Clarence Thomas befriending his neighborhood auto mechanic or, say, a gay, vegan artist living in the West Village. Limbaugh is not as smart as Clarence Thomas but he is still a prominent and wealthy member of society who happens to be conservative as well. I can't think of any place that more closely resembles your comment about people "lead[ing] social lives that were functionally similar to a religious cult" than the Washington, D.C. metro area.
6.3.2007 5:52pm
Apollo (mail):
I can't think of any place that more closely resembles your comment about people "lead[ing] social lives that were functionally similar to a religious cult" than the Washington, D.C. metro area.

...where, notably, Rush Limbaugh does not live and has never lived. I don't see what your point is.
6.3.2007 6:05pm
Kazinski:
Guest101,
No one that has read a sampling Thomas' opinions or dissents can seriously think that he is not qualified to be on the Supreme Court. Now that is a pretty big club, I would say there is probably at least a thousand people in the country that are qualified to be on the court. But Thomas has proved himself as one of them.
6.3.2007 6:08pm
David M. Nieporent (www):
Florida - Very true. You're right. As long as you recognize it for what it is, it's more palatable. (I watch Hannity &Colmes every night and definitely recognize it for what it is.)
I don't understand your argument here at all. It doesn't say he listens to the Limbaugh show; it says that he's friends with Limbaugh.

Just because the show is shallow doesn't mean that Limbaugh is IRL.
6.3.2007 6:19pm
Guest101:
Kazinski,

I've never been particularly impressed by the quality of Thomas's writing, nor fully persuaded that he's at the intellectual level one would expect of a Supreme Court Justice. Maybe I'm just biased by my political leanings, but on the other hand, I'm frequently blown away by Justice Scalia's intelligence and writing style despite disagreeing with much of what he says. Reasonable minds could certainly differ on the issue of Thomas's qualifications, but the point of my comment above was to challenge the ludicrous notion that any criticism of Thomas's intellect thereby exposes the critic as "racist."
6.3.2007 6:29pm
Cornellian (mail):
Yes, this is a little far afield of the original topic but we are not talking about Clarence Thomas befriending his neighborhood auto mechanic or, say, a gay, vegan artist living in the West Village.

Did anyone notice the article by Larry Flynt (publisher of Hustler magazine) a few days ago upon the occasion of Jerry Falwell's death? You may recall Falwell sued Flynt for libel and the case went all the way to the Supreme Court on the issue of whether parodies were protected speech. According to the article, after that case was over they both went on Larry King to talk about it, kept talking afterwards and eventually became friends, even though they agreed on hardly anything.

It's an unfortunate aspect of the level of political discourse in this country that some people think that one cannot be friends except with a person who shares one's political views or, to use the current term, a person who "shares my values."
6.3.2007 6:42pm
Dave N (mail):
Guest101,
You mean the ones who cry "racism!" whenever it's suggested that an individual who happens to be a member of a racial minority might actually be as ill-qualified to be a Supreme Court Justice as he appears to be?

Heavens no, it is only racist to suggest a member of a racial minority is ill-qualified to be President of the United States.
6.3.2007 6:54pm
Ron Hardin (mail) (www):
Limbaugh isn't very well understood by the sort of people who like to understand things.

He's successful because he mocks himself. His larger-than-life on-air persona is self-deprecating.

It functions in the show because it's the single thing that the left cannot do.

He's often top-notch in taking apart the left ; his show only fails in those periods that he goes into social moralism, and that's because he loses the self-mockery at those points. Such periods can go on for weeks, which is not good. But most of the time the show is entertaining.

Thomas is attracted to Limbaugh because of that ability to parody himself while making a point.

I should add that Limbaugh is on the right side in economics but doesn't understand how economics works, and so doesn't articulate economics very well.
6.3.2007 7:02pm
Recovering Law Grad:
David M. N. - I don't disagree. I took Florida's point to be in regards to Limbaugh's show. I don't suppose that Jusitce Thomas views his friendship as a "guilty pleasure.

Truth Seeker - If you're looking for truth on Limbaugh's show, well, nevermind...

JGR - Don't disagree. I guess I am assuming more than I actually know about their friendship.
6.3.2007 7:02pm
Guest101:
Dave N,

Touche-- but I'll happily stipulate that both accusations of racism are equally meritless distractions from a discussion about the genuine validity of the expressed concerns.
6.3.2007 7:04pm
JosephSlater (mail):
Glad to see DB is insisting on high standards of fairness for critiques of public figures here and, um, in his post comparing the Unabomber to Al Gore.
6.3.2007 7:27pm
Brian G (mail) (www):
I couldn't agree more with the commenter who said that if you want to bring out the latent racism in a liberal, bring up Clarence Thomas. In law school, I heard him call every racial term you could think of except the "N' word, and you could just feel they wanted to call him that too. I heard him called Uncle Tom, Sambo, and his massa's Scalia's boy, and he was called an affirmative action hire many times. (Of coursem by the same people who support affirmative action "today, tomorrow, and forever" by "any means necessary").

Justice Thomas is the finest Justice on the Court. That is because he is a Justice, and not a Super-Legislator. And, I wish the other justices, especially Breyer, would emulate him and stay quiet. (Someone tell Breyer it is pronounced "amicus," not "a-mike-us" brief).

Between this joke of an article and Dowd's hit piece a few years ago, I am surprised the NY Times hasn't resorted to calling him an "uppity negro" yet.
6.3.2007 8:15pm
r78:

Justice Thomas is the finest Justice on the Court.

Oh yes, and when Bush appointed him, he was the best qualified person in America for the job.

(Someone tell Breyer it is pronounced "amicus," not "a-mike-us" brief).

Maybe you could do that the next time you argue before the Court.
6.3.2007 8:26pm
plunge (mail):
The charge of him being a dupe for Scalia is especially unfair in light of his opinions castigating Scalia on things like flip-flopping on the commerce clause. I think there is a very fair case to be made that Thomas is a far more consistent and reasonable jurist than Scalia.
6.3.2007 8:36pm
ReaderY:
Language like this ill fits a major newspaper:


[H]e joined the majority in rejecting the claim of a woman who was underpaid for years because of her sex, on the dubious ground that she complained too late.

Justice Thomas claims he is simply faithful to the "original intent" of the founders. But when the founders' intent is not involved — as in the pay discrimination case, which was based on a modern statute — he is just as quick to reach a harsh result.


The difficulty with this passage is that a 180-day period to file claims is built right into the statute. Yet these statements not only flatly ignore that, they tend to give the reader an impression that the idea that complaining too late is a problem comes from Thomas' psyche, not the statute's plain text.
6.3.2007 8:41pm
Richard Nieporent (mail):
You mean the ones who cry "racism!" whenever it's suggested that an individual who happens to be a member of a racial minority might actually be as ill-qualified to be a Supreme Court Justice as he appears to be?

Guest101, what a comeback. I am vanquished. I should have realized that every black conservative is by definition stupid. Otherwise they would be liberals. By the way just how many of those minorities have their been?

I've never been particularly impressed by the quality of Thomas's writing, nor fully persuaded that he's at the intellectual level one would expect of a Supreme Court Justice. Maybe I'm just biased by my political leanings, but on the other hand, I'm frequently blown away by Justice Scalia's intelligence and writing style despite disagreeing with much of what he says. Reasonable minds could certainly differ on the issue of Thomas's qualifications, but the point of my comment above was to challenge the ludicrous notion that any criticism of Thomas's intellect thereby exposes the critic as "racist."

Well I guess you and Harry Reed think alike. If Adam Cohen had said that he disagreed with Justice Thomas's opinions nobody would have raised an eyebrow. However denigrating the intelligence of a minority who is conservative seems to be par for the course for all of those liberals who claim to be against racism.
6.3.2007 8:48pm
JosephSlater (mail):
ReaderY:

While I don't want to make this thread a rehashing of Ledbetter, Ginsburg and the other three dissenters didn't deny that Title VII (in this and most cases) had a 180 day SoL. The question was whether a woman who had been paid less than a man because of her sex for a long time could claim that each paycheck constituted a fresh act of discrimination. Reasonable minds may differ as to the correct answer on that question, but the "plain text" of the statute doesn't answer it.
6.3.2007 8:50pm
DCP:
Exactly Reader Y.

I hate reading pieces on the law from non-trade sources because they condense years of complex litigation, numerous threads of legal issues and statutes and a lengthy, professionally reasoned legal opinion into a one sentence soundbite that, at best, gives the layman reader no context of the case whatsoever, and worse, is frequently outright misleading.

This piece is particularly offensive. Why not just say he enjoys killing dogs on the grounds he had to put the family pet asleep?
6.3.2007 9:08pm
PersonFromPorlock:

I find it stunning that someone who is at the apex of the nation's intellectual world could take seriously someone like Limbaugh.

I've been waiting for somebody else to jump on this, but I guess nobody's going to: I would hope that the members of the USSC are reasonably bright, but "the apex of the nation's intellectual world?" C'mon!
6.3.2007 9:11pm
A. Zarkov (mail):
r78:

"Oh yes, and when Bush appointed him, he was the best qualified person in America for the job."

Was Ginsburg the best-qualified person in America for the job when she was appointed? Let's face it; she, like Thomas was appointed as much for political reasons as any other. The US Supreme Court now operates as a kind of American Politburo. This is exactly why Adam Cohen is so upset with Thomas. Cohen clearly regards SCOTUS as a policy making body when he uses terms like "harsh jurisprudence." He wants Thomas to champion issues as Marshall did. He never stops to think that perhaps there was a problem with Marshall's jurisprudence.
6.3.2007 9:27pm
Elliot123 (mail):
Can someone tell us the rules of personal association that must be followed by those at the apex of the nation's intellectual world? Who else is at the apex? How many are there? Do any of them belong to bowlng leagues? Is that allowed at the apex?
6.3.2007 9:47pm
Guest101:

Well I guess you and Harry Reed [sic] think alike. If Adam Cohen had said that he disagreed with Justice Thomas's opinions nobody would have raised an eyebrow. However denigrating the intelligence of a minority who is conservative seems to be par for the course for all of those liberals who claim to be against racism.

Are you suggesting that Cohen should refrain from denigrating the intelligence of someone whom he (rightly or not) believes to be unqualified for his lofty government position simply because that person is black? I would think it clear from my prior posts, but to reiterate-- that view would seem to be more racist than Cohen's, to the extent you're arguing that minorities should be held to a more forgiving standard than non-minorities. The question whether any government official is intelligent enough to adequately discharge the duties of his or her office is, I would submit, a perfectly legitimate inquiry. Whether you agree or disagree with Cohen's suggestion that Thomas isn't smart enough to be a Supreme Court Justice, there's nothing inappropriate in asking the question.
6.3.2007 10:21pm
Dave N (mail):
Guest101--

I agree, though I noticed at least one poster HERE has referred to Clarence Thomas as "Uncle Thomas"--which clearly was a racist (and not particualrly witty) insult.
6.3.2007 11:12pm
Charlie (Colorado) (mail):

Maybe I'm just biased by my political leanings,....


Ya think?
6.3.2007 11:33pm
vidkunquisling:
When an insolent colored person like Clarence Thomas strays from the liberal plantation, he clearly needs a whipping. Well done, Mr. Cohen.
6.3.2007 11:48pm
A. Zarkov (mail):
Cohen says:
They [Kevin Merida and Michael Fletcher] offer a wealth of insight, but they have no answer to the central enigma he poses: why the justice who has faced the greatest hardships regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering.
Cohen really worries more about Thomas' jurisprudence than his intellect. If only Thomas would vote the way Cohen wants him to vote, he wouldn't have a problem with his Harpo imitations. His intellect would surely be up to the job. His real sin is not being another Marshall who "… persuaded the court to champion racial integration." But as a lawyer Cohen should know that SCOTUS is supposed to hear cases, and not champion causes. Either Cohen was asleep during his constitutional law classes, or he is so blinded by his ideological agenda, (right out the Frankfurt School*) he can't see straight.

*For a discussion of the Frankfurt School and it's relation to "Critical Theory" see Kolakowski , Main Currents of Marxism: The Breakdown, Chapter 10.
6.4.2007 12:09am
Mark H.:

However denigrating the intelligence of a minority who is conservative seems to be par for the course for all of those liberals who claim to be against racism.



RN, I'm not sure I'd want to go so far as to say it "seems to be par for the course," but that mindset is certainly out there in some camps.

Same camps that would likely be beside themselves if they knew that Thomas attends NASCAR races, and in an RV at that!
6.4.2007 12:44am
JerryW (mail):
r78:

Oh yes, and when Bush appointed him, he was the best qualified person in America for the job.


Whenever I get into a discussion concerning affirmative action I am told the successful candidate was "qualified". President Clinton used that exact word many times defending appointments. By definition a student who gets a 75 passing grade is "qualified". Justice Marshall was qualified. Justice Ginsburg was qualified. Justice Thomas was qualified. Were they the most qualified? That is immaterial. They filled a slot and were not white males.
6.4.2007 12:47am
Kovarsky (mail):
Rush Limbaugh sucks worse than anybody else sucks in the whole wide world, and I'll scream that while standing on Ann Coulter's coffee table.
6.4.2007 12:51am
David M. Nieporent (www):
While I don't want to make this thread a rehashing of Ledbetter, Ginsburg and the other three dissenters didn't deny that Title VII (in this and most cases) had a 180 day SoL. The question was whether a woman who had been paid less than a man because of her sex for a long time could claim that each paycheck constituted a fresh act of discrimination. Reasonable minds may differ as to the correct answer on that question, but the "plain text" of the statute doesn't answer it.
The dissenters didn't deny this, but if one read Adam Cohen's piece, one would think the very concept of a statute of limitations was invented by Clarence Thomas from whole cloth.

One can apply Title VII differently to the particular facts of the Ledbetter case, yes, but the statute certainly contains a 180 degree statute of limitations in most circumstances, and five justices felt the best interpretation was that it barred this suit also. And the dissenters were, to a significant extent, making policy arguments why it shouldn't be interpreted that way (rather than, say, claiming that it's impossible to interpret the words that way). And yet Cohen simply handwaves away the majority decision as "Clarence Thomas made a dubious ruling."
6.4.2007 12:57am
ATRGeek:
Brian K is, of course, correct. And I feel stupider just for having read this exchange.
6.4.2007 12:59am
Kovarsky (mail):
Cohen's assessment is self-explanatorily awful. David's summary is barely better. But without fail the lamest people on the thread are the ones trotting out the "see who the real racists are" cliche. Thomas is a brilliant, articulate judge and lawyer, who happens to be black. I also happen to think that he's the most consistent jurist on the court (although it's hard to measure roberts and alito).

I also happen to disagree strongly with some elements of his jurisprudence and, for that disagreement, I have sustained the ugliest of ugly name calling from the sophomoric "liberal racist" cliche peddlers. You people who add nothing to the conversation by reflexively invoking this nonsense should be punished by being forced to watch an interminable reel of footage by Michael Moore, who is actually your closest intellectual relative.
6.4.2007 1:16am
Kovarsky (mail):
Shorter David Bernstein Post(s):

Liberals in America are ironically the intolerant ones.

The end.
6.4.2007 1:20am
volokh watcher (mail):
Before 11/07/06, the prevailing tone in threads like this one was typically much more triumphant. Now it seems scornful. Why would that be?
6.4.2007 1:21am
Truth Seeker:
Rush Limbaugh sucks worse than anybody else sucks in the whole wide world, and I'll scream that while standing on Ann Coulter's coffee table.

#1 you obviously wouldn't be allowed near Ann Coulter's coffee table

#2 there are pills for your condition, or at least electric shock treatments

How does the old saying go, if you're not a leftist at 20 you don't have a heart, if you are still a leftist at 60 you don't have a brain?
6.4.2007 1:21am
ATRGeek:
For what it is worth, I disagree with much of Thomas's jurisprudence, but he strikes me as quite capable.

Incidentally, I amused that anyone still thinks Rush Limbaugh is a conservative.
6.4.2007 2:06am
ATRGeek:
I AM amused. I really should use that preview function.
6.4.2007 2:08am
Cornellian (mail):
Oh yes, and when Bush appointed him, he was the best qualified person in America for the job.

There are probably two or three dozen people qualified to fill a Supreme Court vacancy and it's pointless to argue which of them is the "best" qualified - to some extent it's a subjective assessment.

In fact, I think John Roberts (especially after his nomination hearing) is the first nomination I can recall where nearly everyone had a hard time thinking of anyone who could possibly be better qualified.
6.4.2007 2:22am
Kovarsky (mail):
#1 you obviously wouldn't be allowed near Ann Coulter's coffee table

#2 there are pills for your condition, or at least electric shock treatments

How does the old saying go, if you're not a leftist at 20 you don't have a heart, if you are still a leftist at 60 you don't have a brain?


there is quite a famous quote from steve earle, where he says that townes van zandt is the best songwriter in the world, and that he'll scream that from bob dylan's coffee table. i was riffing on that quote, not expressing some impulse that needs to be medicated. by the way, the "they have medication for that" joke is hackneyed and not clever. you might want to consider ditching it.
6.4.2007 2:42am
GTT (mail):
I would appreciate no more posts like this. This kind of polemic bullshit is beneath the usual quality of stories here.
6.4.2007 9:55am
DiverDan (mail):
I really liked Cohen's line about Thomas joining the majority in last week's decision rejecting the sex discrimination claim of the woman who had been (allegedly) underpaid for years "on the dubious ground that she complained too late." Does Mr. Cohen believe that all statutory limitations periods are "dubious"? Or only those that would limit the ability of his favored victims to obtain what he believes to be "justice"? Or, perhaps what Mr. Cohen finds "dubious" is a judge's unwillingness to ignore the law when it doesn't compel the "right" result?
6.4.2007 9:59am
uh clem (mail):
Some people enjoy what are known as guilty pleasures. It can be Rush Limbaugh, Disco music, Japanese monster movies, or a wide variety of things.


You forgot watching pornography and sexually harrassing your female assistants.

(Since the original post is just purile over-the-top strawman hyperbole, I feel no compunction to treat any of this seriously. If Prof Bernstein instigates a food-fight, he's going to get a food-fight.)
6.4.2007 10:16am
occidental tourist (mail):
Markusha


I've read a lot of silly posts by David, but this one comes close to being the silliest one....Instead of seriously engaging Cohen, David creates a strawman (all conservatives are bad, all liberals are good).



substitute 'sarcastic' for 'silly' and you might be onto something. you can't possibly imagine that anyone would "seriously engage" Cohen's tripe. The citation I would imagine was not to enlighten us as to a credible argument regarding Thomas's jurisprudence, IQ, or the Ledbetter decision. Rather it was a blog post appropriately, if snidely, criticizing the Times choice of commentary.

There are writers who would disagree with Thomas's jurisprudence but do so without unattributed quips like: "he is afraid that if he speaks he will reveal his ignorance about the case". What a brave bit of writing, to try to duck the notion that he thinks that himself and yet to say it. That is the kind of stuff one might expect to see if not celebrate in a heated thread (and I agree with those who implicitly bemoan the hackery that attends both sides of the barricades in this argument). But obviously, the real point is that the NY Times is no better than your average blog. (which is not to say blogs are bad, but there is no more or less legitimacy).

I can't blame Cohen for this although you might think he would resort to a higher level of discourse if seeking the purpoted top of the journalistic heap as an outlet. Maybe he thought it was going to run in the Onion and sent it to the Times by accident.

Blame here belongs to the editorial page editors of the Times for crediting Cohen's synthesis of events as a legitimate and useful prism through which to debate the court's direction. I think David was correct to demur and it was quite reasonable for him to do so offhandedly.

It was an opinion piece, but it reads like a mini-biopic. While it is clear that there is opinion being expressed it also employs a biographical technique as counterpoint to explicit opinion. The piece appears to make factual assertions on which the opinions are based, thus implanting the biased context even if one remains open on the question of interpretation. The treatment of Ledbetter is a good example but take also this ditty:


As chairman of the Equal Employment Opportunity Commission, his phlegmatic advocacy for victims of discrimination disappointed civil rights activists, while impressing conservatives looking for a replacement for Justice Marshall.



So the idea is to side up for or against equal opportunity as a government prerogative. The notion that his tenure at the EEOC was apathetic is the background that tends to slide by unchallenged as the reader tries rather to see whether they share the value of "civil rights activists" or "conservative". This is a clever technique but the Times editors should know better. Or maybe the point is that they do know better.

Brian
6.4.2007 10:42am
LGVV:
"Justice Thomas claims he is simply faithful to the 'original intent' of the founders. But when the founders' intent is not involved — as in the pay discrimination case, which was based on a modern statute —he is just as quick to reach a harsh result."

Um, legislative intent? Text? Is Cohen just trying to prove to everyone that he's an idiot?

"In the last 100 Supreme Court arguments, Clarence Thomas has not uttered a word. Court watchers have suggested a variety of explanations. Among the least flattering: he is afraid that if he speaks he will reveal his ignorance about the case; he is so ideologically driven that he invariably comes with his mind made up; or he has contempt for the process."

In this New York Times opinion piece, Adam Cohen has written an ill-informed, idiotically simplistic slime job against a Supreme Court justice. Readers of the New York times have suggested a variety of explanations. Among the least flattering: that he wasn't hugged enough as a child, that he scored a 122 on his fifth crack at LSAT and viscerally detests lawyers, and that the DNC possesses compromising pictures of him committing double-homicide at a strip club during his birthday party, which was jointly hosted by the KKK and NAMBLA.
6.4.2007 10:49am
ATRGeek:
So was Bernstein's blog post parodying Cohen's bloggy opinion piece, or was Cohen's bloggy opinion piece parodying blog posts like Bernstein's? And after how many repeats of this cycle does it become clear that the participants actually just are the sort of hacks they were supposedly parodying?
6.4.2007 11:22am
JosephSlater (mail):
GTT writes: I would appreciate no more posts like this. This kind of polemic bullshit is beneath the usual quality of stories here.

I'll warn you now to avoid the, "gosh, we can't tell the difference between Al Gore and the Unabomber!" thread.
6.4.2007 12:32pm
Henri Le Compte (mail):
I'm sorry, but the "racist" crack is not just a cheap shot. If you can't see that Adam Cohen is re-cycling racist cliches, well... you're not very observant. Blacks are stupid. Blacks in prominent positions are "affirmative action" hires. He all but calls Thomas "Scalia and Alito's Step-n-fetchit." I don't doubt for a moment that that is precisely what he thinks.

Adam Cohen isn't racist; he just happens to think like a racist. That's all. Blacks are all the same. They aren't individuals. They're all interchangable. You've seen one, you've seen them all. Isn't that the thinking behind his constant harping on Marshall? The thinking behind all racism is that you know everything you need to know about someone when you know their race.
6.4.2007 12:43pm
Roy Haddad (mail):
More generally, the thinking behind all bigotry in general...
6.4.2007 1:23pm
Observer (mail):
I wonder why it is that so-called "journalists" like Cohen cite Justice Thomas's disinclination to ask questions at oral argument as a sign of stupidity when they never made the same point about Justice Marshall. If you recall (and I do), Justice Marshall only rarely asked questions of counsel.

Or why is it that Cohen never mentions that Justice Marshall wrote hardly a word of his opinions? I don't know about his early years on the Court, but by the early 1980s, Marshall's clerks were writing everything and Justice Marshall rarely even changed a comma. Does that mean that Justice Marshall was a dope? I guess it does it you want to apply the standards that Cohen uses to evalute Justice Thomas (who apparently writes far more of his own opinions than Marshall ever did).

All of Cohen's complaints boil down to exactly what Prof. Bernstein said: "Conservative bad, liberal good." And for this Cohen is paid a salary by the NYT?
6.4.2007 1:31pm
Jeremy Pierce (mail) (www):
My favorite part is his caricature of originalism as taking the original intent of the founders to be the only governing consideration for interpreting legislation and parts of the Constitution that were added by later generations. So what exactly did the founders intend by the 180-day period if they didn't mean 180 days? The answer is, of course, nothing, since the founders had nothing to do with that piece of legislation. How this is an argument against originalism or a complaint that Thomas isn't a consistent originalist is beyond me.
6.4.2007 2:11pm
Crust (mail):
Shorter David Bernstein: How dare the New York Times publish an opinion piece that presents a liberal point of view.
6.4.2007 2:13pm
Steve:
You would have expected a post like this to bring out the very best in the VC commentariat, and you would have been right. I wonder how often the other posters to this blog are embarassed by Prof. Bernstein's contributions.

I, too, must confess my surprise that Clarence Thomas would be friends with a flat-out racist like Rush Limbaugh. (Oh, wait, I forgot, liberals are the real racists, not people who tell black callers to "take that bone out of your nose.") But it's pretty hard to be a movement conservative if you have a rule against associating with racists. I feel bad for Justice Thomas; he's a very smart man whose views are obviously sincerely held, and he can't be thrilled with the company those views have forced him to keep over the years.
6.4.2007 2:34pm
LGVV:
"Shorter David Bernstein: How dare the New York Times publish an opinion piece that presents a liberal point of view."

...supported not by any substantive argumentation but instead innuendo, subtle racist insults, a disturbing misunderstanding or disregard of all relevant judicial theory, and a positively Bush-esque black-and-white moral judgment of people who are not by profession moral philosophers or moral agents of our society.

That would be a slightly-longer Bernstein, but a more accurate one.
6.4.2007 2:41pm
Eli Rabett (www):
Black Law Professor has something very on point
6.4.2007 2:43pm
ATRGeek:
LGVV,

That is rather the point. Your "slightly-longer Bernstein" is apparently offering a concise but meaningful critique of the flaws in the Cohen piece. Unfortunately, the actual Bernstein did not do what your hypothetical Bernstein did.

So, if your claim is that your "slightly-longer Bernstein" would have been accurately critiquing the Cohen piece, I agree. But if your claim is that your "slightly-longer Bernstein" was an accurate summary of what the real Bernstein did, I disagree.
6.4.2007 2:52pm
David M. Nieporent (www):
ATRGeek, DB's point is that the Cohen piece was substance-free. As such, a "meaningful critique" makes no sense. One can criticize something that's wrong; one can't criticize something that's empty, except to say that it's empty. And DB did that.

In fact, LGVV's "slightly-longer Bernstein" said exactly the same thing that DB did, except much more wordy than necessary.
6.4.2007 5:21pm
ATRGeek:
David M. Nieporent,

Frankly, I am in no mood to dignify the Cohen-Bernstein any further by explaining why I think you are wrong (in that I believe LGVV's "slightly-longer Bernstein" gave an accurate and effective critique of Cohen, and the real Bernstein did not). I'll just note again, as I noted above, that at some point one has to suspect that rather than a parody of people like Cohen, Bernstein is in fact just giving us the real Bernstein.
6.4.2007 6:43pm
ATRGeek:
That should have been "Cohen-Bernstein EXCHANGE", although "exchange" is indeed probably too dignified a term (I think "Cohen-Bernstein hissy fit" is about right).
6.4.2007 6:47pm
Elais:
Conservatives are big meanies who throw people to the curb.

Liberals are SO much nicer.
6.4.2007 7:53pm
TyWebb:
Shorter David Bernstein: I am a genius. And funny. And not at all inconsistent in any of my legal theories, not to mention the lucid threads of coherent world philosophy that run through my blog posts. Did I mention how funny I am? It's too bad most people attend liberal echo chambers like any school not called George Mason, and associate themselves with irrelevant partisan groups like the ABA. Otherwise, they would not only see the genius of my highly advanced and prestigious legal scholarship, they would get my jokes. And maybe, just maybe, if everything happened the way I've just described...

A 3BR Tudor in Northern Virginia would sell at around 300,000.
6.4.2007 9:15pm
Moneyrunner43 (www):
Ty,

Jealous much? If you don't like it, get your own blog.
6.4.2007 9:26pm
Truth Seeker:
hissy fit

That's a term that someone somewhere must find offensive and derogatory. But it's been 2-1/2 hours and no one complained!
6.4.2007 9:28pm
Randy R. (mail):
Truth Seeker: "hissy fit

That's a term that someone somewhere must find offensive and derogatory. But it's been 2-1/2 hours and no one complained!"

Well, I for one found it offensive and derogatory, since I'm gay, but I didn't want to get into this cat fight.
6.5.2007 1:25am
LGVV:
"Frankly, I am in no mood to dignify the Cohen-Bernstein any further by explaining why I think you are wrong (in that I believe LGVV's "slightly-longer Bernstein" gave an accurate and effective critique of Cohen, and the real Bernstein did not). I'll just note again, as I noted above, that at some point one has to suspect that rather than a parody of people like Cohen, Bernstein is in fact just giving us the real Bernstein."

I don't get it. I guess some people--Ty, ATRGreek--are bringing in objections to other things Bernstein has said, but this post seems rather clear:

1) Bernstein made fun of Adam Cohen's piece.

2) Adam Cohen's piece is really, really bad by any relevant measure.

3) Points #1 and #2 are not a coincidence. Bernstein probably knows why Cohen's piece is really, really bad and assumes we'll pick up on those reasons.

I understand #3 does not logically follow in the strict sense, but many realistic judgments do not. You may certainly be justified in disagreeing with Bernstein on other matters, but here his humor seems entirely called for.
6.5.2007 4:47pm
hoystory (mail):
Observer,


All of Cohen's complaints boil down to exactly what Prof. Bernstein said: "Conservative bad, liberal good." And for this Cohen is paid a salary by the NYT?


Do you honestly think they'd pay him a salary for "Conservative good, liberal bad?"
6.6.2007 1:08am