Neither Clarence Thomas nor Sonia Sotomayor lacks the brains to sit on America's highest court.

The law, lawyers, and the court.
May 30 2009 7:15 AM

Hands Off Thomas

Neither Clarence Thomas nor Sonia Sotomayor lacks the brains to sit on America's highest court.

Clarence Thomas. Click image to expand.
Supreme Court Justice Clarence Thomas 

Liberals incensed this week by the personal attacks on Sonia Sotomayor have two options: bite our tongues until they bleed or make wild counterclaims about the relative judicial fitness of Justice Clarence Thomas. Let's opt for the former. Attacks on Thomas aren't just unfair and unseemly; they also obscure the fact that nobody knows who might become a great justice—which is precisely why Sotomayor should be confirmed.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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I know. It's hard to keep your blood pressure down when you read E Pluribus Unum's shocking rant about how Sotomayor is "a garden-variety race-hustling bigot" with "no qualifications other than being incompetent, activist, and bigoted." Or when Rush Limbaugh calls her "an angry woman ... a bigot. She's a racist … the antithesis of a judge," you sort of want to elbow him in the eye. When Tom Tancredo accuses her of belonging to a "Latino KKK without the hoods or the nooses," the same part of you that wanted to move to Canada when Sarah Palin celebrated the "real America" mentally revisits the Toronto real estate listings.

But the worst possible tactic in the outrage wars is for Sotomayor's defenders to begrudge or belittle Clarence Thomas. It's one thing to point out—as Joe Conason does in this excellent piece—that Thomas was tapped for the high court in part for his race and his compelling life story and that Republicans who suggest otherwise are big hypocrites. It's perfectly valid to observe that, like Sotomayor's, Thomas' judicial philosophy has been informed by his own life history, as Thane Rosenbaum notes.

Actually, there's been no more passionate witness to the ways in which Thomas' life history has shaped his jurisprudence than his former clerk John Yoo, who, in his 2007 review of Thomas' memoir, My Grandfather's Son, effused that Thomas' "views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him." Yoo cautioned, "Thomas speaks from personal knowledge when he says: 'So-called "benign" discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.' "

Then again, Yoo—who so lionizes Thomas' "authentic American story" and the ways in which Thomas' "personal knowledge" enrich his jurisprudence—turned around and slammed Sotomayor this week for being "distinguished from the other members of that list only by her race" and sneered that "Obama may say he wants to put someone on the Court with a rags-to-riches background, but locking in the political support of Hispanics must sit higher in his priorities." Has it really come to this? Our rags are raggier, our riches less rich.

The temptation to smack back and argue that we deserve to seat Sotomayor because Thomas was a lousy affirmative-action pick who turned into a third-rate justice is hard to resist. But it's flat wrong. Liberals achieve nothing by suggesting that Thomas' elevation to the high court was preposterous on its face or that his tenure there has been a disgrace.

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