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How Far Should Advice and Consent Go?

Senate Minority Leader Harry Reid (D-Nev.) should apologize for his ill-informed denigration of Supreme Court Associate Justice Clarence Thomas, a potential successor to Chief Justice William Rehnquist. His counterfactual and polemical indictments stain the Founding Father’s vision of the Senate as a cool and statesmanlike body as elaborated in Federalist Paper No. 63.

Unwritten customs are as pivotal as textual declarations in making the Constitution flourish. As Saint Paul sermonized, the letter killeth, but the spirit givith life.

Article II, section 2, clause 2 of the Constitution — the Appointments Clause — authorizes the enactment of presidential appointments, including appointees to the Supreme Court, only on the “advice and consent” of the Senate. A floor of intellectual honesty in debating is indispensable to enlightened confirmation votes.

The Founding Fathers intended the Senate to vet nominees for competence. Outlandish misrepresentations of credentials sabotage that task. Reid’s chronic false and sneering criticisms of Thomas in comparison to Associate Justice Antonin Scalia are emblematic.

During a “Meet the Press” interview with Tim Russert on Dec. 5, 2004, Reid voiced opposition to Thomas as Chief Justice, amplifying, “I think he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don’t — I just don’t think that he’s done a good job as a Supreme Court Justice.”

Reid adduced nothing to substantiate his characterization of Thomas as incompetent. Scalia, on the other hand, elicited rhapsodic praise from the Senator, though still no supporting cases: “I cannot dispute the fact, as I have said, that this is one smart guy. And I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute.”

Do you think Reid had immersed himself in the innumerable opinions of Thomas and Scalia, or was he aping the prejudices of the black power elite’s dismissiveness of Thomas as a “genuine” black? Consider the Senator’s sequel performances.

In Hillside Dairy v. Lyons (2003), the Supreme Court voted 8-1 to hold California’s milk pricing and pooling regulations vulnerable to constitutional attack under the Commerce Clause. Writing for the majority, Justice John Paul Stevens adhered to the longstanding “Dormant Commerce Clause” doctrine that preempts state laws that obstruct national economic markets even when Congress has been mute.

In that case, Thomas penned a short dissent that rejected the doctrine as applied to non-discriminatory state burdens on interstate commerce. The two-sentence opinion rested on his previous exhaustive dissent, joined by Scalia, in Camps Newfound/Owatonna Inc. v. Town of Harrison (1997).

Scalia, himself, had trailblazed an assault on the Dormant Commerce Clause in a pair of cases prior to Thomas’ appointment in 1991: Tyler Pipe Industries Inc. v. Washington State Department of Revenue (1987); and, Bendix Autolite Corp. v. Midwesco Enterprises Inc. (1988).

Reid, apparently to deride and to discredit Thomas, told a fable on CNN’s Dec. 26, 2004, “Inside Politics.” The Senator insisted that Scalia had authored a dazzling Hillside Dairy dissent bristling with the erudition of a Harvard graduate and respecting stare decisis, whereas Thomas’ dissent was “poorly written” and recklessly challenged established precedents.

In fact, Scalia joined the majority opinion of Stevens and did not author a single syllable, in dissent or otherwise, in that decision. Thomas’ brief dissenting opinion satisfied customary professional standards and was free of literary gaucheries or clumsiness. Both Scalia and Thomas concur in repudiating stare decisis as regards the Dormant Commerce Clause. The discrepancy asserted by Reid is fictitious.

On January 16, 2005, Reid played fabulist again in an interview on ABC’s “This Week With George Stephanopolous.” He falsely maintained that Scalia had written in the majority in Hillside Dairy. The Senator similarly erred in denying that Thomas and Scalia display comparable attitudes towards reversing precedents: “… I think that when we have an activist judge like Thomas who wants to turn precedent on its head, it’s not good. And I can give you other cases. The Mitchell case on the Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions.” But does he?

In Mitchell v. United States (1999), both Scalia and Thomas dissented from the majority’s holding that the privilege against self-incrimination prohibits the drawing of adverse inferences from a defendant’s silence at sentencing. The majority extended the rule of Griffin v. California (1965) that imposed that Fifth Amendment prohibition during the trial phase of a criminal prosecution.

On Griffin, Scalia declared: “To my mind, [it] was a wrong turn — which is not cause to override it, but is cause enough to resist its extension.” Thomas’ attitude toward Griffin was virtually identical. He also believed it was wrongly conceived, but declared a willingness to “reconsider” the precedent “in the appropriate case.” Thomas remained neutral on whether he would vote to overrule Griffin.

Reid has not marshaled evidence showing that Thomas votes more frequently to overrule precedents than Scalia. (Hundreds of precedents have been overruled in the history of the High Court).

The two both voted to overrule the landmark abortion decree of Roe v. Wade (1973) in Planned Parenthood v. Casey (1992), and both voted to overturn the notorious police interrogation directive of Miranda v. Arizona (1966) in Dickerson v. United States (2000).

Moreover, the Senator studiously eschews chiding any of the six Justices in Lawrence v. Texas (2003) for voting to overrule Bowers v. Hardwick (1986) in recognizing a constitutional right to homosexual sodomy. And the eagerness of Thomas, Scalia, and Rehnquist to follow the Bowers precedent has earned them no salute from Reid. Isn’t his chastisement of Thomas over stare decisis contrived?

There may be arguments for rating Scalia’s tenure as a Supreme Court Justice more highly than Thomas’, but if there are, Reid has not made them. The Senate’s advice and consent role in the confirmation of justices is too important to be left to fables as opposed to facts.

Bruce Fein was associate deputy attorney general under President Ronald Reagan and is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.

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