Tuesday, December 4, 2007

Scott Gerber review

Law professor Scott Douglas Gerber -- author of First Principles: The Jurisprudence of Clarence Thomas -- has this review of Justice Thomas's autobiography. Actually, it's more like a review of all the other book reviews out there, which Gerber condemns for being too biased:
Unfortunately, however, almost all of the reaction to Justice Thomas's opinions and votes is partisan. As I detailed in First Principles, commentators are either "for" Justice Thomas or "against" him, in the crassest possible sense. The reaction to Justice Thomas's memoir, My Grandfather's Son, continues this disturbing trend. There are exceptions--David J. Garrow's review for Legal Times stands out among them--but they are few and far between.

Of course, most of the media is liberal. Consequently, the vast majority of the reviews of Justice Thomas's memoir have been negative. Space constraints permit me to discuss only a few.

Washington Post staff writers Michael A. Fletcher and Kevin Merida, co-authors of a recent unauthorized biography about Justice Thomas, didn't even wait until Justice Thomas's memoir was released before trashing it. (They claim to have "purchased" a copy of the book from "an area bookstore" three days prior to its October 1 release.) The opening sentence of their September 29th Post article, written with Robert Barnes, reads: "Justice Thomas settles scores in an angry and vivid forthcoming memoir, scathingly condemning the media, the Democratic senators who opposed his nomination to the Supreme Court, and the 'mob' of liberal elites and activist groups that he says desecrated him."

It's downhill from there. Most troubling is their comment that Justice Thomas "indicates he wrote [the book] himself." Who else do Fletcher, Merida, and Barnes think would have written it? To the best of my knowledge, reviewers don't make observations like that about books written by other Supreme Court justices.

* * *

Meanwhile, Jeffrey Toobin, author of a recent book about the Supreme Court, describes in a review published in The New Yorker how "Thomas's career looks like a model of how affirmative action is supposed to work, but that isn't how Thomas sees it." The review, entitled "Unforgiven: Why is Clarence Thomas so angry?," is accompanied by one of The New Yorker's famous illustrations. This one: a caricature of a "seething" Thomas.

Toobin gives Thomas little credit for earning on the merits his appointments as chairman of the E.E.O.C., judge on the U.S. Court of Appeals for the D.C. Circuit, and justice of the Supreme Court. Instead, Toobin asserts that Thomas was "given" each job "because he was black." For example, Toobin writes the following in discussing Thomas's appointment to the D.C. Circuit: "Just forty-one years old, Thomas had never tried a case, or argued an appeal, in any federal court, much less in the high-powered D.C. Circuit; the last time Thomas had appeared in any courtroom was when he was a junior attorney in Missouri; he had never produced any scholarly work; his tenure at the EEOC, although respectable, did not mark him as a notable innovator in the federal bureaucracy. He was, in short, a black conservative in an Administration with very few of them. That's why he got the job."

What Toobin fails to mention is that, by 1989, Thomas already had established himself as the leading government authority in the United States on the document that articulates the political philosophy of our nation, the Declaration of Independence. Although Toobin might not characterize Thomas's speeches and articles on the relationship between the Declaration and the Constitution as "scholarly work"--assuming Toobin bothered to read them at all--the conservative legal movement certainly did. And while Toobin might try to downplay Thomas's eight-plus years of service at the EEOC --hardly a "modest federal agency," as Toobin calls it--President George H.W. Bush obviously disagreed. So, too, did the United States Senate, which confirmed, by voice vote, the President's nomination of Thomas to the D.C. Circuit Court of Appeals.

Personally, as someone who has spent a large portion of his own professional life writing about the role of the Declaration of Independence in constitutional interpretation, I consider Clarence Thomas to have been the most qualified person President Bush could have appointed to the nation's highest court. Of course, this doesn't mean that race wasn't a factor in Thomas's appointment to the D.C. Circuit, let alone to the Supreme Court. But what it does mean is that Thomas had achieved far more during his professional career by both 1989, when he was nominated to the D.C. Circuit, and 1991, the year of his Supreme Court appointment, than liberal critics such as Toobin are willing to concede. Indeed, upon a fairer examination, Thomas's credentials compare quite well with those of other jurists who likewise have served on the D.C. Circuit and/or the Supreme Court during the past twenty years.

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he list of negative reviews from the Left goes on--and some on the list make the reviews by Fletcher, Merida, and Barnes; Merida alone; and Toobin look judicious by comparison. For example, Jon Weiner writes in The Nation that Justice Thomas's memoir is a "howl of rage and pain"; Eugene Robinson opines in The Washington Post that "the presence of Justice Clarence Thomas on the U.S. Supreme Court" is a powerful argument against affirmative action; and The New York Times, which has a history of editorializing against Justice Thomas, maintains that the "rage he harbors raises questions about whether he can sit as an impartial judge in many of the cases the Supreme Court hears."

* * *

I have devoted a surprising amount of time since the publication of my book about Justice Thomas's jurisprudence to trying to persuade people that it's possible to be neither "for" Justice Thomas nor "against" him. My objective is simply to read what he writes and do my best to assess it objectively. Sometimes this means I agree with him, and sometimes it means I disagree. Justice Thomas once paid me the highest compliment a scholar can receive when he stated publicly that he understands what I'm attempting to do.

This said, I must say that, to me, much of the reaction from the Left to Justice Thomas's memoir crosses the line of common decency. It's certainly permissible to disagree with Justice Thomas's judicial opinions. As I mentioned above, I sometimes do. However, it's not appropriate to express that disagreement through ad hominem attacks.

My Grandfather's Son is a moving portrait of a man who has overcome more obstacles than all of his critics combined. Of course, I reserve the right to continue to disagree with some of the opinions Justice Thomas issues on the Supreme Court. What I refuse to do, however, is to try to trivialize the remarkable life he has led.

Justice Thomas is not perfect, and he acknowledges as much in his book. His defenders need to stop suggesting he is beyond fault. His critics need to stop pretending they aren't.

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