On February 29th, 2016, exactly ten years since last time Supreme Court Justice Clarence Thomas said a thing during oral arguments, he broke his silence. It had been some 45 years since any other justice went even a single term without asking a question, so it seems pretty certain that Thomas has set a reticence record that will never be approached.
He didn’t offer any explanations about why he broke his silence or why he maintained it for ten years. In the past, he’s given a variety of excuses for not speaking, but in recent years seems to have settled on “it’s just rude”, something the other justices are apparently unaware of.
Although he has been silent in session, he has been a prolific opinion writer and has frequently dissented with the other justices. But one should not confuse this dissent with open-mindedness. Thomas has been the most reliably conservative voice on the court and has consistently expressed a more “conservative” (“right-wing” or even “reactionary” actually describes it better) view than even the other conservatives on the court.
This has been particularly noteworthy in cases where racism was part of the issue – the other justices have often agreed it had been a factor when Thomas did not. Here is just one example. Do I need to mention here that Thomas is our only black justice?
When George H. W. Bush appointed Thomas in 1991, he was hoping to add a conservative voice to the bench, score some points “on race”, and avoid a bitter confirmation process. He got the first two but not the third (remember Anita Hill?). The end result is we have in Thomas a justice whose vote can always be relied on, and is always a forgone conclusion.
This is the Republican dream. In the Republican worldview, there is no such thing as “unbiased”. In their view, everyone is biased, especially journalists. They may not know it or admit it, but they’re biased. Judges, too. The Republican project is to identify the “right” bias and find a way to promote it.
The real reason that the Republicans, led by Mitch McConnell, disgracefully refused to even meet with Merrick Garland, Obama’s March 2016 Supreme Court nominee, was exactly that they thought his bias had to be wrong, since Obama was appointing him.
In fact it was the Republican worldview that was wrong – a judge can and indeed must be unbiased, and Garland almost certainly was. But the very fact that he didn’t have (their) bias, meant that he might decide an issue the way they wanted but he might not. This uncertainty was what they objected to. They want another Thomas, someone whose vote is known and in the bag, even while he considers all sides of every issue “fairly”.
When McConnell opposed Garland, he was rolling the dice, assuming that a Republican would be elected and would appoint the “right” kind of judge. There was a chance the whole gamble could backfire. His stated argument was that the American people should have a voice in the decision, meaning that since an election was on the horizon, the new president would have their mandate. Ridiculous, as the American people had already stated their preference when electing Obama, who had their mandate to appoint judges for all four years of his term. Anyway, McConnell gambled and won, but in the process really pissed a lot of people off.
So now they’ve got their man in Neil Gorsuch, who, on paper, has unimpeachable credentials. No one can argue about whether he’s “qualified”. Columbia, Harvard Law, Oxford. What’s not to like? Especially if your name is Coors.
The Democrats would be well within their rights to block Gorsuch, just to make a point. But they probably won’t because, at the end of the day, they’re just not as mean, small-minded, and vindictive as the Republicans. As William Butler Yeats put it so well, the worst are full of passionate intensity. And there’s always the chance that McConnell will have the rules changed if the Democrats resist, so that the 52 Republican senators can approve the appointment by themselves (as it stands, 60 votes are needed). Would anyone put that past him?
Also, Trump would unleash his Twitter-wrath upon the Democrats if they blocked Gorsuch, and, let’s face it, at this point no one needs that.
But during the hearings, they can make their points. While the Republicans lob their softballs, like “What’s the largest trout you’ve ever caught?”, the Democrats are hammering on Gorsuch to swear he’ll defy Trump if necessary, retain independence, etc.
Lindsey Graham tried to put a lid on all that by asking Gorsuch how he would have responded had Mr. Trump asked him to vote to overrule Roe during his interview at Trump Tower.
Ready and prepped for his Gary Cooper/John Wayne/Charles Bronson moment, Gorsuch leaned forward, silver hair flashing, steely eyes narrowed, Colorado square jaw jutted, and intoned in his signature vocal fry,
“Senator, I would have walked out the door.”
Applause! Music! Curtain! Let’s all just approve him right this second! Such integrity! What a guy! What a hero!
What a bullshitter.
For Gorsuch to convince us that he is independent at this point is meaningless. Who cares if he is “independent” or “unbiased” when it is known in advance exactly how he’ll vote on any issue?
Roe is in jeopardy. Citizens United is not. Ivanka Trump and Jared Kushner will not be subject to our nepotism laws. Trump’s “travel ban” will be upheld. Like Thomas, Gorsuch’s vote is already counted before the case is heard. It’s in the bag.
He is a Republican dream.