Jeffrey Toobin: Clarence Thomas’s silence is contemptuous

Toobin writes that Clarence Thomas is the most petulant colleague in the world:

Thomas. . . is physically transformed from his infamous confirmation hearings, in 1991—a great deal grayer and heavier today, at the age of sixty-five. He also projects a different kind of silence than he did earlier in his tenure. In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”

.       .       .       .       .       .

By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas.

Why doesn’t the big baby just resign and have done with it if he’s so miserably bored?  OTOH, he could try coffee after lunch and attempt to wake up and act like he has a job.  (Let’s face it:  appearing at oral arguments is the only part of his job he can’t hand off to clerks.)  His performance over the past two decades confirms that his critics were right twenty-three years ago when they compared him witheringly to the man he replaced, Thurgood Marshall.

Unless he ends up as the victim of a spectacular assassination or a suicide attempt, historians can write their two sentences about Clarence Thomas for their twentieth- and twenty-first century American history textbooks already.  For example:  “After a contentious confirmation hearing before the Senate Judiciary Committee in the fall of 1991 in which he was accused of former employee Anita Hill of sexual harassment, Thomas was confirmed by the U.S. Senate by a vote of 52 to 48.  For the entirety of Thomas’s [fill in the blank upon resignation or death] years on the court, he remained nearly silent, refusing to engage either his fellow justices or counsel about the ideological battles that embroiled the turn-of-the-century court.”

What a stupid way to get into the history books.

16 thoughts on “Jeffrey Toobin: Clarence Thomas’s silence is contemptuous

  1. So there appears to be this thing going on among lefty men, for whom “liberal” is the worst possible curse word. They are making a case that oral arguments are completely outdated, and that Thomas’s opinions are the most scholarly opinions being issued by the Roberts court. When I read this today, it went on the long lost of reasons why I should probably no longer be on Facebook.


  2. Thomas seems a disgrace to the court in many ways. Your two sentence scenario is a best-case possibility, given the cloud that hangs over him courtesy of his own bad behaviour and the stories that come out about his wife’s advocacy which some consider placing him in a conflict of interest.


  3. It might be significant if the best insight in any of Justice Thomas’s opinions ends up being a quotation from someone else, Potter Stewart: “the law before the court today ‘is . . . uncommonly silly’” (Lawrence v. Texas 539 US 558, 604 (2003) (Thomas, J., dissenting), citing Griswold v. Connecticut, 381 US 479, 527 (1965) (Stewart, J., dissenting)). Still, Toobin’s argument might be articulated better. I wish he had said more about the relation between the claim that Thomas is a shallow ideologue (a claim with which a lot of constitutional law experts would agree!) and the claim that Thomas sends the wrong message by declining to ask questions. I was also surprised to read that Thomas is somehow “an intellectual godfather” of one of Scalia’s decisions.


  4. We have Biden plus a few other then-Senate gasbags to thank for this less-than-useless chairwarmer.

    And if we had it to do over again, our current Bidens still wouldn’t listen when he told them who he was.


  5. My issue with Thomas isn’t his behavior during oral argument–which mostly is Kabuki theater without any real relevance to the decision process–but rather the fact that he is a retrograde far-right-wing extremist fucken asshole.


  6. I wonder if any of it is that he knows how screwed he is. He has not recused himself when a more conscientious person would have, nor when an ethical person should have, and continues to refuse to recuse himself. At this point, he can’t start — well, he could, but I think there are an awful lot of weird dynamics of race, masculinity, and privilege surrounding anything Thomas does, and there is a legitimate argument that recusing himself at this point would be even more damaging than looking like the uncollegial prick that Toobin describes. For similar reasons, he can’t resign.

    Don’t get me wrong: almost everything the man has said and done that is on public record since his confirmation hearings makes me think he’s a complete pig who is swayed entirely by his own political opinions and interests. But he’s still the only black guy on the SC. I think that would be a huge amount of pressure anyway, but for Thomas, there’s virtually nothing he can do at this point that can make him look better, and pretty much anything he does makes him look worse.

    Don’t forget that at least part of his confirmation was down to the triumph of straight male privilege and a good many senators’ fear that they might be accused of being racist. Thomas was able to present himself as a righteously angry black man. That shit won’t fly with a POTUS who has far more right to be angry, and is far more wary of showing it.


  7. “uncollegial prick” Maybe this is why this commentary interested me–it seemed like a rant a number of us could say we’ve heard from a friend or colleague about someone she works with.

    Although I ordinarily defend my senior colleagues against charges that they are “dead wood” and should get out of the way so that energetic young things can take over those jobs, in the case of Thomas, it seems appropriate. I think there are loads of cases in which we can see that oral arguments fundamentally shape the opinions that are issues (majority & minority), and that they’re not just “kabuki theater.”


  8. If we want to compare oral argument to a department meeting, I acknowledge that there is a big difference between remaining silent (sometimes a virtue) and acting as if you would rather be elsewhere. And Clarence Thomas may not be the worst role model when it comes to faculty deportment: a colleague of mine who retired a few years ago I have often described as having all the warmth of Justice Scalia with none of the brains.


  9. I wouldn’t say oral argument is a waste of time. Having done it and watched a lot of it, I have seen the effect it sometimes has on a judge’s decision-making process. Humans are social animals, and having a face-to-face component to your interaction really does change the nature of the interaction. I think Thomas finds it all tedious, however, because his decisions are already pre-made on ideological lines before the arguments start. He’s not interested in the human component, so to him it’s a boring waste of time.

    It’s a big deal in an attorney’s life to do oral argument at the Supreme Court. He could at least pay the basic courtesy of pretending to be interested.


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