Redstate

"The Dullest, Cruelest New York Times Op-Ed Writer"

By Pejman Yousefzadeh Posted in Featured Stories | Law — Comments (6) / Email this page » / Leave a comment »

When it comes to discussing Clarence Thomas, Orlando Patterson has the talking points down pat. Too bad they make no sense whatsoever:

After all the twisted racial history of the United States Supreme Court, Clarence Thomas was confirmed by the Senate with the smallest margin of victory in more than 100 years, with little professional scrutiny and with a level of manipulative political rancor that diminished everyone directly involved. The effect on Thomas, we learn from this impeccably researched and probing biography, was to reinforce the chronic contradictions with which he has long lived.

Thus, although he seriously believes that his extremely conservative legal opinions are in the best interests of African-Americans, and yearns to be respected by them, he is arguably one of the most viscerally despised people in black America. It is incontestable that he has benefited from affirmative action at critical moments in his life, yet he denounces the policy and has persuaded himself that it played little part in his success. He berates disadvantaged people who view themselves as victims of racism and preaches an austere individualism, yet harbors self-pitying feelings of resentment and anger at his own experiences of racism. His ardent defense of states' rights would have required him to uphold Virginia's anti-miscegenation law, not to mention segregated education, yet he lives with a white wife in Virginia. He is said to dislike light-skinned blacks, yet he is the legal guardian of a biracial child, the son of one of his numerous poor relatives. He frequently preaches the virtues of honesty and truthfulness, yet there is now little doubt that he lied repeatedly during his confirmation hearings -- not only about his pornophilia and bawdy humor but, more important, about his legal views and familiarity with cases like Roe v. Wade.

A few points follow.

Read on . . .

1. Saying that Justice Thomas is "viscerally despised" by "black America" is hardly a trenchant critique. Merely because a certain group of people dislike a person does not mean that they should dislike that person. Patterson, of course, does not ask why it is that a black conservative should be subjected to such dislike or why fitting into a certain ethnic group requires the adoption of a particular jurisprudence or political ideology. One can only assume that he does not have the answers to such questions or that he is intellectually lazy enough to believe that a smear will speak for itself.

2. I don't know how much Justice Thomas has "persuaded himself" that affirmative action plays no role in his success. In part, that is because Patterson does not say. But the main point is that Patterson does not engage in any kind of serious defense whatsoever regarding affirmative action. He is content to snark that someone who supposedly was a beneficiary of affirmative action should not denounce the policy as being bad for the long term interests of the country and its various ethnic groupings. We are supposed to believe that Justice Thomas is a hypocrite without being asked to consider that even if Justice Thomas believes that affirmative action benefited him, he might hold the simultaneous belief that affirmative action is, in the long run, a dead-end policy. I realize that it may be difficult for Orlando Patterson to hold such distinct thoughts simultaneously in his head, but perhaps the difference between him and Clarence Thomas can be explained by pointing out that Justice Thomas is smarter than Patterson. By a lot.

3. One can preach "an austere individualism" while at the same time recognizing the existence of racism in society. One can distinguish between cases and find that in certain situations, racism played a part while in other cases, it did not. Of course, it is left to the imagination whether Justice Thomas really engaged in "self-pitying feelings of resentment and anger at his own experiences of racism." I have no doubt that Justice Thomas experienced racism and I have no doubt that it must have enraged him. Was it "self-pitying"? That probably depends on the viewpoint of the beholder. But let it be noted that Orlando Patterson is "berating" Clarence Thomas for viewing himself as a "victim of racism," while at the same time . . . berating Clarence Thomas for berating other people for viewing themselves as "victims of racism." The mind reels.

4. Regarding Justice Thomas's supposed duty to defend Virginia's former anti-miscegenation law, Patterson clearly does not understand the role of judges as spelled out in Federalist No. 78:

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Translation (and one is clearly required for the likes of Orlando Patterson): Just because a judge thinks that a law is morally repugnant does not mean that the judge can strike down the law. There must be a Constitutional or statutory reason behind the judge's actions. Therefore, merely because Justice Thomas believes--as a general principle and through the conduct of his own personal life--that the law that gave rise to Loving v. Virginia was an appalling one (and it most certainly was), he may have come to the entirely intellectually defensible conclusion that the best way to overturn that law would have been through democratic action that would have led the government of the Commonwealth of Virginia to see reason and to repeal the law.

Of course, this approach would require canvassing. This approach would require politicking. This approach would require going door-to-door and recruiting the support and the votes of the citizenry. This approach would require either recruiting candidates who will reflect an alternative viewpoint or having individuals take the initiative and running on a platform representing an alternative viewpoint. In short, this approach would require citizens in a democratic republic acting like . . . well . . . acting like citizens in a democratic republic.

This is not for Orlando Patterson, however. He is, at best, a lazy democratic republican. The hard work and sweat necessary to maintain our system of government is not for his soft hands. Unaccustomed to the heavy labor required of a responsible citizenry, he is content to surrender his rights and responsibilities to unelected judges, judges who in Orlando Patterson's world, are supposed to rule on cases not only based on their reading of the Constitution and the attendant statutes, but on a vague conception of what Orlando Patterson considers to be "right and wrong." Never mind that this latter job is one for a legislator. Never mind that there are close questions of morality that one would be especially reluctant to trust to an unelected judge. Never mind any of that. Orlando Patterson cannot be bothered to be a responsible citizen. Therefore, judges will have to be responsible for him.

This is ludicrous, of course. But it will not stop the meme from being repeated anew. In any event, for an illustration of Justice Thomas's eminently more responsible viewpoint regarding such questions, one need only examine his dissent in Lawrence v. Texas. In Lawrence, the Court held that a Texas anti-sodomy statute violated the Due Process Clause. Doubtless, upon hearing that Justice Thomas dissented, someone like Orlando Patterson would simply conclude that Justice Thomas was being a meanie. Thomas's dissent, however, is quite a lot more nuanced than that:

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.

The principle is clear. Justice Thomas believes the anti-sodomy statute is a laughingstock . . . but he also believes that it is not the job of a United States Supreme Court Justice to overturn it. That does not imply a lack of compassion. Nor does it point to a flaw in the doctrine affording rights and a certain level of autonomy to states. Rather, it is part and parcel of our federalist system. Clarence Thomas didn't invent that system, of course. But he is defending it and as Orlando Patterson goes to show, no good deed of citizenship ever goes unpunished in today's America.

5. I have no idea whether Justice Thomas actually dislikes "light-skinned blacks." There is no support for this allegation. Why Patterson chose to include it in his bill of particulars is a complete mystery.

6. There is absolutely no evidence whatsoever that Justice Thomas lied in his confirmation hearings. Patterson provides no evidence beyond his blanket assertion. This is a smear. And it is despicable.

Defending Clarence Thomas is, to be sure, a tiring job. But that is only because his critics are so many, so venomous and so evidently immune to the facts. When it comes to issues of personal liberty, Justice Thomas has shown uncommon courage. It is quite the pity that when it comes to the lesser art of editorial writing, Orlando Patterson has shown himself to be utterly and completely incapable of the same.