October 3, 2007

"What is my role in this case — as a judge?"

That's the question D.C. Circuit Judge Larry Silberman told Clarence Thomas he should ask himself in every case he had to decide. Thomas considered this to be "the best piece of advice I received, one that became central to my approach to judging." In 10 words, Justice Thomas writes, Silberman "did more to give me a judicial philosophy than any of the futile academic debates about which I'd heard far too much while preparing for my confirmation hearings." (Page 204 of "My Grandfather's Son.")

I think Silberman's advice is great, but I'm really interested in the phrase "any of the futile academic debates." I don't think that implies that there were some non-futile academic debates. I think Thomas has let slip that he regards all the academic debates as futile.

ADDED: This is related, from page 238. Thomas asserts that at the time of his confirmation he had no opinion about whether Roe v. Wade was correctly decided:
Until he's gone through that deliberative process on a case-by-case basis, an open-minded judge can't predict how he will rule in any given situation. As for the matter of my judicial philosophy, I didn't have one — and I didn't want one. A philosophy that is imposed from without instead of arising organically from day-to-day engagement with the law isn't worth having. Such a philosophy runs the risk of becoming an ideology, and I'd spent much of my adult life shying away from abstract ideological theories that served only to obscure the reality of life as it's lived.
By the way, I believe him when he says that he never discussed Roe v. Wade. He says he was never "especially interested in the subject of abortion." (Page 223.) He never even read Roe until he was preparing for the Supreme Court confirmation hearings. "In law school I'd been a self-styled 'lazy-libertarian' who saw abortion as a purely personal matter." After law school, he "remained agnostic on the matter." It was only when he actually had to decide an abortion case as a Supreme Court Justice that he ascertained that Roe was wrongly decided and should be overruled — he says.

37 comments:

Richard Dolan said...

"Futile" was probably a poor word choice. I assume he means that the academic debates had no practical utility for him as a judge. I doubt that any of the academics who wrote the contending articles in those unnamed "debates" would be surprised; "practical utility" was probably pretty low on whatever list of targets they were aiming at.

Roger said...

Based on some of the discussions I have seen on Volokh, many of the debates there involve hypotheticals--perhaps what Thomas is referring to is that every case is unique irrespective of how many hypotheticals you may have discussed.

paul a'barge said...

You have to admit, academia is not winning any awards these days for demonstrating practical utility.

In fact, based on what we're reading these days about academia, I'd say the academy is playing a game of chicken with the American people, running up as close to the line of acceptability as possible and screaming neener neener neener at the average American.

Every one of us is affected directly every day by the law. Those who peddle it in academia are not being very helpful.

Maxine Weiss said...

"failure to say something personal about myself makes something I have chosen to explore hard to understand."----Althouse

(The lack of personal revelation on your part means you lack purchase, and lack perspective, when commenting on others' personal lives.)

"I am not trying to present a psychological profile of myself for your enlightenment"---Althouse

(That's ok, because others will come along and interpret, and extrapolate, a psychological profile for you, with or without your consent...from everything you write.)

"I choose not to write about my family."---Althouse

(Others have made a different choice, and your family has been written about quite extensively on the AOL Chat Boards. Are you angry?)

Love, Maxine

Trooper York said...

(Catwoman has Robin trapped)
Robin: Catwoman, you are not a nice person!
(Batman TV Show)

Smilin' Jack said...

"What is my role in this case — as a judge?"
That's the question D.C. Circuit Judge Larry Silberman told Clarence Thomas he should ask himself in every case he had to decide...I think Silberman's advice is great....


Maybe you could expand on why it's so great, because it sounds completely clueless to me. If I go to a doctor, I really don't want to hear him say, "What is my role in this case — as a doctor?"

hdhouse said...

How long is this book and how long will this go on?

Trooper York said...

Narrator: Horrors! One lemon!
(Batman TV Show)

blogenfreude said...

How long is this book and how long will this go on?

Does she realize she's liveblogging a book?

Gary Carson said...

I think most academic debates in law are teaching devices.

I think he may have meant that attempts to attach meaning to legal debates beyond that is futile.

He might be a little wrong if that's what he meant, but not a lot wrong.

Carl said...

Shhhhh, Blogenfreude, it may her a bit to realize that fact...

Nothing to see here, folks, move along, move along...

Modern Otter said...
This comment has been removed by the author.
Larry said...

One of the earliest dismissals of the trivial I learned was "now is it just academic...".

I used to think that was a terrible thing to say. Then I got a job at an University. Now I know better.

Modern Otter said...

You have to admit, academia is not winning any awards these days for demonstrating practical utility.
...


I would argue that legal academia (or at least law school) has, in the last couple decades or so, become much more practice-oriented than it's been in some time (perhaps ever), what with lawyering skills programs, clinics, etc. That's why this advice given to Dean Chemerinsky seems so provocative.

Revenant said...

If I go to a doctor, I really don't want to hear him say, "What is my role in this case — as a doctor?"

One fairly obvious difference is that many judges bring their own opinions on how things OUGHT to be into the courtroom with them. To use your medical metaphor, a lot of judges are like the pharmacists who refuse to fill birth control prescriptions for religious reasons.

The judge's job is to apply the law. The pharmacist's job is to fill prescriptions. If the law mandates a result which strikes you as unfair or overly lenient, your job as a judge is to issue that unfair or overly lenient ruling. And if doing that bothers you, you go to the polls and vote for change just like any other citizen.

Life of Betty said...

It would be futile for Thomas to try to follow an academic argument. The man is a dummy. And his book reveals that he is a small-minded, mean-spirited dummy. The 48 senators who voted against him go down in history for their good judgment.

Joe said...

If I go to a doctor, I really don't want to hear him say, "What is my role in this case — as a doctor?"

I do.

Seriously. I hate doctors who try to be chummy or anything but a doctor. That's why I've stuck with my doctor of sixteen years. Very competent and all business, no bullshit.

Luckyoldson said...

Considering the fact that Thomas refers to them as "futile academic debates," I have the feeling the last thing he wants is a debate of any kind.

Which, must be rather disconcerting to those who appear before him...and remember, this is the same Yale law school student who says he never discussed Roe v. Wade.

Talk about an inquisitive mind...

rcocean said...

Judge not, that ye be not judged.
2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. Mk. 4.24

Trooper York said...

Commissioner Gordon: By the way, Batman, have you seen millionaire Bruce Wayne? He doesn't answer the phone at his stately manor!
(Batman TV Show)

Where is Doyle? I guess the Met loss hit him really hard. Come over to the Dark Side and ease your mind. You know the Empire will triumph.

Trumpit said...

I'm sick of Revenant and Simon telling us what a judge is. "Call it as I see 'em" baseball horseshit. "Apply the law, let the voter go to the ballot box and change the law if it stinks." I vote you two horrible guys out from now on. You've already "struck out" as perpetual losers.

Getting a civics lesson from the right-wing rigids here is more than I can take, and I'm going to call you reactionaries out on it each time you try to give us a putrid, festering, hypocritical lesson in proper governance. I ain't eatin' your American as apple pie shit either, at least not whilst corrupt Bush & Cheney are in office. Clarence Thomas makes Harriet Meyers look like Mary Poppins, yet goofy Papa Bush foisted that "I'll deign to think for myself, I ain't your slave boy" nitwit on the country. It's plain as the nose on his ugly face that he doesn't know what it means to think for himself or how to do it. Same goes for Revenant, Simon, and the sorry rest of you.

Trooper York said...

Batman: Let's go, Robin. We've set another youth on the road to a brighter tomorrow.
(Batman TV Show)

Luckyoldson said...

rcocean said..."Judge not, that ye be not judged.
2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. Mk. 4.24

Are you people for real?

Luckyoldson said...

Joe said, in response to: If I go to a doctor, I really don't to hear him say, "What is my role in this case — as a doctor?"

"I do."

Joe...it's nice that you have a doctor you like, but if your doctor is still wondering what his role is...well, GFL.

Life is long and things can change.

Trooper York said...

Robin: Under this garb, we're perfectly ordinary Americans
(Batman TV Show)

Luckyoldson said...

"If somebody told me I only had an hour to live, I'd spend it choking a white man. I'd do it nice and slow."
Miles Davis

rcocean said...

"Getting a civics lesson from the right-wing rigids... reactionaries ... putrid, festering, hypocritical lesson... American as apple pie shit... corrupt Bush & Cheney...Harriet Meyers...goofy Papa Bush...he doesn't know what it means to think for himself..."

Again, Trumpet. Hilarious. Do you read "IowaHawk"? He's funny too.

Great Satire on the usual mindless lefty post. Love the "putrid festering" part. Only a loony or a satirist of the Left-wing could come with that.

Luckyoldson said...

"If somebody told me I only had an hour to live, I'd spend it whining about LOS...and we'd do it nice and slow."
Sloan, Fen, Pogo, Roger, Seven, Joe & Jane

Luckyoldson said...

rcocean,
If "lefty's" are so mindless...what does that tell you about Americans in general?

You, know, based on Bush's approval rating and the last elections?

Mindless...??

Luckyoldson said...

rcocean,
I know.

Words just don't come to mind.

I'd think you'd be used to that by now.

P. D. "Bo" Steele said...

One should not read too much into the words of a bad writer. He probably thought he was saying something profound.

I am now convinced that Justice Thomas has subcontracted his better opinions out to his law clerks.

jeff said...

Or you could try reading the opinions of various cases. Remove the names of who wrote them and read the opinions. See what you think. Or you could continue to assume that a conservative black man must be stupid and have others do his work for him.

Life of Betty, I look forward to to hearing what it is you do and your qualifications to call anyone else a "dummy".

jeff said...

"If "lefty's" are so mindless...what does that tell you about Americans in general?

You, know, based on Bush's approval rating and the last elections?"

That's pretty funny. Are trying to provide examples of shallow thinking? If so, good job.

The intellectual dishonesty in almost all of your arguments is breathtaking. I congratulate you on finding a medium in which you can get away with that.

Luckyoldson said...

jeff,
You think most Americans are mindless lefties?

Trooper York said...

Lucky, perfect set up with Miles Davis quote and payoff down the thread. Good Show.

The Exalted said...

not reading or ever thinking about roe vs wade is possible, if not particularly plausible

but that intellectual incuriousity is certainly not a desired trait for a supreme court justice

Revenant said...

that intellectual incuriousity is certainly not a desired trait for a supreme court justice

If you view the job of a Justice as deciding cases -- rather than figuring out how the law needs to be changed -- then "incuriousity" is a desirable trait.