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.

At the Huffington Post, Daniel Cubias smartly explains how the GOP's attacks on Sotomayor will backfire. But he undercuts his argument when he writes of Thomas, "[T]wo decades later, we're still waiting for the guy to ask a question, author a memorable opinion, or be anything other than Antonin Scalia's sidekick." Claims that Thomas is too stupid to ask questions and in constant peril of embarrassing himself at the court are just not that different than claims that Sotomayor is mediocre. Nobody who has followed Thomas' 18-year career at the Supreme Court believes him to be a dunce or a Scalia clone. Whether you accept Jan Crawford Greenburg's claim that Thomas' constitutional theories are so forceful that they have shaped Scalia's or you believe the more common view that Thomas has a deeply reasoned and consistent judicial philosophy that differs dramatically from those of the court's other conservatives, accusations that he's been a dim bulb are just false. They also reveal that the name-calling that originates now, during the confirmation process, engenders a mythology that can never be erased.

Calling someone a moron because you don't like their views is the easy way out, and both sides should avoid it. As Philip Klein observes, "I don't think questioning Sonia Sotomayor's intelligence is a productive way for conservatives to oppose her nomination, because it's a rather subjective and arbitrary standard that can easily be refuted by her defenders. ... Even with affirmative action, she could not have achieved what she has in her life if she weren't a smart person."

It was once fashionable to deride Sandra Day O'Connor's intelligence—until folks figured out she was the most powerful woman in the country. Get Americans talking about what it takes to be "smart enough" for the Supreme Court and you quickly realize that the most effective justices haven't necessarily been the most brilliant and that the brilliant have sometimes been raging idiots. Sherrilyn Ifill writes that despite professor Alan Dershowitz's call for Obama to pick a justice from among the "greatest legal minds in the country," many of the 108 white men who have served on the court would probably have failed that test:

[T]he history of our Supreme Court is not an unbroken account of brilliant white men making brilliant decisions. Instead, Supreme Court nominees have often become justices over time and in response to the exigencies of court life and the cases that come before them, sometimes finding deep wells of intellectual and moral force in their decision making. In other instances, otherwise brilliant justices were unable to translate their intellect into the kind of visionary and humane decision making that marks a truly great Supreme Court justice.

Sonia Sotomayor is plenty smart enough to serve on the high court. As Tom Goldstein concludes at SCOTUSblog: "The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices." And nobody should say that Clarence Thomas is less so. Conservatives who believe that Thomas has done credit to the bench shouldn't argue that Sotomayor cannot do the same. And by the same token, liberals who believe Sotomayor is amply qualified to be there should concede that Thomas earned it, too.

Update, June 1: The dek of this article was changed to better reflect the piece's content.

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