But the Conquered, or their Children, have no Court, no Arbitrator on Earth to appeal to. Then they may appeal, as Jephtha did, to Heaven, and repeat their Appeal, till they have recovered the native Right of their Ancestors, which was to have such a Legislative over them, as the Majority should approve, and freely acquiesce in.
-John Locke

Sunday, June 26, 2011

The Dishonest Treatment of Clarence Thomas

Think Progress's Ian Millhiser is making it his mission to discredit Justice Thomas.  Sadly, but unsurprisingly, he is misstating the truth.  Millhiser follows the NYT's article highlighting Thomas' friendship with Mr. Crow, and suggests that Thomas has been bought for the price of one bust of Lincoln.  Millhiser points to three cases in which the American Enterprise Institute  - the group that gave the bust to Thomas - has filed amicus briefs with the Supreme Court, and Thomas has not recused himself.

Millhiser claims that AFTER Thomas received the bust of Lincoln, AEI filed an amicus brief in Whitman v. American Trucking Associates.  This is not true.  Millhiser himself links to the brief here.  Note that is was filed in July of 2000.  Millhiser notes that the bust was given to Thomas in 2001 (This case was also argued in 2000, with the decision issued in February 2001), so he's wrong right there.  But further, looking at the case, the decision was written by Scalia, and every justice joined in the judgment.  But wait, there's more: the position that AEI (which was one of 43 who signed the brief, including PAUL KRUGMAN!!!) was advancing was unanimously shot down by the Supreme Court.  Thomas' concurring opinion merely states that he is of the opinion that "there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."...[o]n a future day I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers."  I defy Millhiser to show how that line of thinking is in any way different from Thomas' understood view of the Constitution, and the subject of outside influence.

In Riley v. Kennedy, the Court's opinion was written by Justice Ginsburg.  Souter and Stevens dissented.  It was a 7-2 decision.

You get the point.  There has been no evidence that Thomas has in any way abused his position, or sold his influence.  No one can point to a case where Thomas' vote went in a direction opposite to his usual and long-held views as the result of undue influence.  This is a lame witch-hunt built on lies and innuendo.

In another article, Millhiser claims that Thomas is akin to Abe Fortas, in that Fortas once took $15,000 as a speaking fee - the same amount that the Lincoln bust is valued at.  Millhiser's point is that Fortas ultimately had to resign from the US Supreme Court over such an issue.  There is a world of difference here.  Fortas' speaking fee was about 7 times more than a normal and usual speaking fee at the time.  Further, Fortas, as a Supreme Court justice, accepted a $20,000 retainer to give legal advice to a man who was subsequently convicted of securities fraud.  Generally, judges shouldn't dispense legal advice or advisory opinions.  Supreme Court justices should not be retained or be available for retainer.  Fortas crossed a line so clearly and repugnantly that he should have resigned.  The burden is still on Millhiser and co. to show that Thomas has done anything untoward.

Think Progress continues its campaign of misinformation.  It's tragic that they choose to fabricate scandal and dishonesty in government, especially when there is so much true material in Washington to work with.  That they will undermine our system and the confidence we have in the system to advance their misguided agenda is beyond troubling.  These people are liars and do no good.

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