Can Reid read?

Despite the tweaking of the previous post, I think James Taranto does great work on Best of the Web. In fact, the real reason I looked over there today was at the behest of an emailer who was interested in what he wrote here about Senator Reid's continuing idiocy about Justice Thomas. On "Inside Politics" on December 26th, it turns out, Reid was asked to back up his earlier statement that Justice Thomas's opinons are "poorly written." Can he name one opinion?

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.

As Taranto notes, the case Reid cites doesn't even have a Scalia dissent, so Reid's answer says something about Reid's poor reading, but nothing about Thomas's writing compared to Scalia's. Maybe he meant to compare Thomas's dissent to Stevens's long majority opinion. Well, "Scalia" and "Stevens" do both start with an "S," and maybe someone who reids reads on a first grade level might get confused. But it's not as if the two Justices were asked to write essays of a particular length and Thomas couldn't do it. Thomas wrote the sort of brief dissent that cites an earlier dissent that already explains the reason for dissenting. This is absolutely standard and much appreciated by readers of court opinions. In the case Thomas cites, Camps Newfound/Owatonna, Justice Thomas writes a very long, scholarly opinion about the negative commerce clause (and, as Taranto notes, Justice Scalia, joins that opinion!).



It's certainly true that Thomas's position on the negative (or "dormant") commerce clause would overturn a lot of precedent. Reid and other Thomas opponents really are worried that a reconfigured Court might change too many things that people have come to rely on. In fact, as I blogged here, Justice Scalia has been critical of Justice Thomas for not having enough respect for precedent. Of course, if this is the distinction between Thomas and Scalia that Reid is hoping to highlight, he's doing a pathetic job of it by citing an opinion in an area where Scalia has agreed with Thomas.



There is good reason to worry about the changes Thomas would make in this and other areas of constitutional law if he had enough votes, but it doesn't have anything to do with poor writing. Is Reid a racist for impugning Thomas's intelligence? He's an idiot for saying things that make him look like a racist, but I doubt that he is. I think he is resorting to the Thomas-is-too-dumb message because he thinks he can't openly say what he really thinks: that he doesn't like the outcomes in Thomas's opinions. As I've said before, the Senators think they need to oppose a judicial nominee with something other than the will to make the cases come out the way they want. That makes it a lot harder for them to talk about how they are handling nominations, and Senator Reid does not really seem to be up to the delicate maneuvering that will be needed if the Democrats are going to have some measure of power in the coming confirmation processes.