"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, January 05, 2005

Harry Reid Must Go . . .

Senate Minority Leader Harry Reid opened up a can of worms when he targeted Justice Clarence Thomas as an incompetent member of the court during his interview with Tim Russert. Many bemoaned the fact that Russert failed to ask a follow-up offering Reid the chance to give specific opinions. In a new interview, he has done so and the result is not impressive. Here's James Taranto's take on it (worth quoting at length):

An alert reader points out that on the Dec. 26 episode of "Inside Politics," a little-watched CNN show, Reid actually did name such an opinion, at the request of host Ed Henry (we've corrected several obvious transcription errors here):

Henry: When you were asked on NBC's "Meet the Press" whether or not you could support Justice Thomas to be chief justice you said quote, "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written." Could you name one of those opinions that you think is poorly written?

Reid: Oh sure, that's easy to do. You take the Hillside Dairy case. In that case you had a dissent written by Scalia and a dissent written by Thomas. There--it's like looking at an eighth-grade dissertation compared to somebody who just graduated from Harvard. Scalia's is well reasoned. He doesn't want to turn stare decisis precedent on its head. That's what Thomas wants to do. So yes, I think he has written a very poor opinion there and he's written other opinions that are not very good.

It's interesting to learn that in Nevada eighth-graders write dissertations; we guess that explains how Harry Reid got to be as erudite as he is. He must immerse himself deeply in legal scholarship to be familiar with a case like Hillside Dairy v. Lyons, which doesn't exactly rank up there with Marbury v. Madison, Brown v. Board of Education and Roe v. Wade among famous Supreme court rulings.

To be honest, we'd never even heard of Hillside Dairy until we read the CNN transcript, so we went and looked it up. It turns out to be a 2003 case about California milk regulation. Here is Thomas's opinion in full:

I join Parts I and III of the Court's opinion and respectfully dissent from Part II, which holds that §144 of the Federal Agriculture Improvement and Reform Act of 1996, 7 U.S.C. §7254, "does not clearly express an intent to insulate California's pricing and pooling laws from a Commerce Clause challenge." Ante, at 6-7. Although I agree that the Court of Appeals erred in its statutory analysis, I nevertheless would affirm its judgment on this claim because "[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 610 (1997) (Thomas, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute.

Is that written at an eighth-grade level? We report, you decide.

What about that Scalia dissent Reid found so impressive that he thought it worthy of a recent Harvard undergrad (rather a backhanded compliment, since Scalia actually graduated from Harvard Law School 45 years ago)? Here it is, quoted also in its entirety: ""

That's right, there was no Scalia dissent. Scalia joined the court's majority opinion, written by Justice John Paul Stevens, as did every other justice except Thomas, and he dissented only from Part II.

Reid's substantive criticism of Thomas--if it can be dignified with such a description--turns out to be equally empty. According to Reid, Scalia "doesn't want to turn stare decisis precedent on its head," while Thomas does. Presumably this refers to Thomas's rejection of the court's "negative Commerce Clause" jurisprudence. In his Hillside Dairy opinion, as we've seen, Thomas does not elaborate on this, instead pointing the reader to his lengthy dissent in the earlier Newfound/Owatonna case--a dissent Scalia joined. In other words, Thomas and Scalia both would overturn Supreme Court precedent in this area; the only point of disagreement in Hillside Dairy was whether to address the question in this particular case.

We suppose Reid will find some staff knucklehead to take the fall for this appallingly shoddy research, but the question remains: Why is the Democratic leader of the U.S. Senate so intent on insulting the intelligence of Clarence Thomas, the only black member of the Supreme Court?

Newsmax.com reports that "the Congressional Black Caucus has told Senate Minority Leader Harry Reid, D-Nev., that he crossed the line earlier this month when he called Justice Clarence Thomas 'an embarrassment to the Supreme Court' ":

"We wrote a letter to Sen. Reid cautioning him about his comments," incoming CBC Chairman Mel Watt, D-N.C., told radio host Steve Malzberg, who was filling in Wednesday on Bill Bennett's "Morning in America" show.

"I think all of us ought to focus more on substance and less on stereotypes and caricatures," Watt said.

When Trent Lott crossed the line two years ago, Republicans, after some hesitation, did the right thing and ousted him as their leader. If the Democrats retain Reid, it will tell us something about the party's commitment to racial equality.

3 comments:

Greg said...

At the very least, I expect the story of "Harry Reid(er) and Half-Baked Paradigm" to be on the front page of the New York Times.

Oh wait, I'm living in fantasyland again.

Greg said...

Sorry... meant to write, Harry Reid(er) and the Half-Baked Paradigm.Still won't be front page of the NYT :(

Jay D. Homnick said...

If we have identified Harry Reid as the Hillside Dairy Strangler, shouldn't we alert the FBI?