Clarence Thomas has broken his vow of silence and asked a question for the first time in over 10 years on the bench. For years he has justified his silence in many ways. As reported in the New York Times (3.1.16):
When he was asked about the issue in interviews, Justice Thomas’s explanation was always a variation on a theme: We already speak too much, and our questions aren’t that important anyway.Until Thomas explains why he has chosen to speak in oral questioning, one can only speculate. He may feel that in the absence of Scalia he has an obligation to take up the slack; or he may be finally fed up with the challenges to the Second Amendment which he has always firmly defended; or it may be because of his disdain for American institutions, the Supreme Court being one of them.
In a 2013 talk at Harvard Law School, he said of the questioning, “I don’t think it’s helpful.” He added that “we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”
In any case, regardless of how voluble he might become, Thomas will always be remembered for his silence. ; and given the Court’s oral argument circus sideshow, one has to lament his entry into the fray. The questioning of lawyers during a Supreme Court hearing is more abusive, contentious, and argumentative than anything a Congressional committee can manage. The Supreme Court takes itself as a collective Oracle at Delphi which barely tolerates supplicants, dismissing their arguments with arrogance and impatience. Only the justices can interrupt, come about, tack towards a different shore, or jibe when they please.
Each of the justices has a personal agenda. Few observers conclude that the Court is an apolitical, objective, and consummately fair institution. It is no coincidence that conservative and liberal appointments vote accordingly and in lockstep.
Justice Scalia was a deeply religious man (as is Clarence Thomas), and of course his profound Catholic faith influences his jurisprudence. No matter how much a civil servant, judge, or politician may dismiss the idea of religious or political philosophical influence on public decisions, everyone else sees disingenuousness.
In his Second Epilogue to War and Peace and in the text of the novel itself, Tolstoy repeatedly dismisses individual, independent decisions. Napoleon may have been a military and political genius to some, but to Tolstoy he was no more than a product of the millions of previous random events that conditioned his responses.
The Grand Inquisitor in Dostoevsky’s The Brothers Karamazov challenges the returned Christ and condemns him for consigning mankind to misery, want, penury and solicitude when all men want instead of free will are miracles, mystery, and authority.
Common sense alone leads inevitably to the conclusion that we are all conditioned by the past – genes, family history, environment, and pure chance. Tolstoy tells the story of The Emperor’s Cold – how Napoleon’s judgment at the Battle of Borodino had been so clouded by a bad cold. The cold was the result of a negligent valet who forgot to bring the Emperor’s gum boots, and as a result on the day of the battle he was rheumy, unclear, and stopped up. The valet had forgotten the boots because he was preoccupied with the infidelity of his wife who in turn had become angry and disillusioned at her distant and absent husband.
The Justices and their questions are then completely predictable. Of course each case is different, and Scalia was a master of disassembling each one and matching it with its Constitutional reference if any; and yet there was never a doubt how he or any other of the justices would vote. Scalia was a man of particular conscience, honed by Catholicism among a thousand other influences. Ginsberg, his polar opposite is no different, voting not in a dispassionate, objective way but according to her inbuilt personal preferences.
Thomas’ silence, then, made no difference at all to his voting. No matter how the oral questioning turned out; no matter how much advocates were skewered and pilloried, and put on the rack to extract the essence of their arguments; and no matter how much they conceded to their inquisitors, Thomas, Scalia, Ginsberg and the rest of the justices would always vote predictably.
Thomas also said that he preferred to listen. After all that was what the purpose of the judicial hearings were all about. The advocates, both pro and con, were in court to present their arguments as carefully, thoughtfully, and as persuasively as possible. The justices had had months to consult the reams of legal material relating to the case. The arguments of the advocates were known well in advance, if not for the particular configuration of them, at least the essential Constitutional argument.
Thomas has been no less prolific than any other justice in his written opinions, and no legal scholar has had any brief with his obscurity. He simply felt that adding to the din made no point whatsoever.
In other words, his silence was eloquent. Given the grandstanding of the rest of the Court, it is clear that no one paid Thomas any mind. The Justices were intent on getting their points across, and let Clarence do what he wants.
There has been consistent pressure on the Court to allow C-Span cameras film proceedings. Not surprisingly the Court has refused. Whatever reasons they may give – nonsense about decorum, tradition, privacy, sanctity – the real reason is they do not want the general public to see what goes on. Even in an era of smash-mouth politics, Fox News, smarmy personal attacks, Oprah, and reality TV, few citizens would like to see the august members of the Supreme Court acting the same way. If cameras were allowed, Thomas would be a hero for his calm, reticence, patience, and dignity.
At the opposite end of the spectrum is Donald Trump who never misses an opportunity to speak – and speak he does. In fact no matter what he says and how he says it, his poll numbers keep rising. The Left, and even GOP moderates have been totally bamboozled by Trump and his phenomenon. How can anyone confess allegiance to what they consider a racist, homophobic, arrogant, xenophobe? How can anyone who has never discussed any issue in depth nor even shown a glancing familiarity with the facts have so fooled the American electorate?
The answer is that Trump knows after years in real estate and television, words are images, often iconic; and if spoken with passion and fury, they are worth far more than the measured argument. The on-the-one-hand-on-the-other ‘rationalism’ of progressives has no salience among an angry, disaffected, marginalized middle class. Trump has touched and then mobilized a deep-seated resentment against Washington, entrenched elites, bought-and-sold politicians, left and right Coast PC liberalism, and arrogant media.
“I’m mad as hell, and I’m not going to take it any more”, said Paddy Chayefsky's character in Network. Howard Beal, like Trump supporters today, was angry. He was angry at everyone. His anger was displaced, but had something to do with truth, honesty, and forthrightness. He might not have been very articulate about his dissent, but his angry words mobilized millions.
The world is too dangerous and precarious a place to have Donald Trump – a vaudevillian, huckster, charlatan, son of Las Vegas and Hollywood – as President, say flummoxed liberals. Yet they miss the point. Tens of millions of Americans don’t care. Their anger, resentment, and outright hostility is so deep that they are willing to take the risk. Many politicians claim that they will sweep Washington clean with a new broom. Trump supporters trust him not to sweep but to dismantle.
Thousands of supporters flock to Trump’s political rallies. People from states surrounding New Hampshire who had no direct stake in its primary, crossed state lines just to hear him – not to get clarity on his proposals, more details about the issues, or a deeper understanding of his stands on foreign policy. They went to see him. They wanted to hear his words, see him perform, watch him humiliate the opposition.
All candidates for office have a slogan. “Happy Days Are Here Again” symbolized FDR’s promise to raise the nation from the Depression. “I Like Ike’ captured the regular guy, down home, aw shucks charm of Eisenhower. “It’s Morning Again In America” was Ronald Reagan’s farewell to Carter malaise, post-Vietnam angst, and economic worries. “Yes We Can!” was Obama’s reference to black struggle, civil rights, and a strong America. Donald Trump says “Make America Great Again”.
Yet Trump’s rhetorical oratory goes far beyond that of any former presidential candidate. Every stump speech, every hoopla, megatron, sound-and-light show are dynamic slogans. In the evangelical world of Donald Trump nothing matters but ecstasy. No Southern preacher needs any reference to Augustine, Tertullian, Aquinas, Constantine, or Luther. There are no issues to discuss, no levels of spiritual variance, no textual analysis of the Gospels, no logic, rational, or justification. Just the invocation of Jesus Christ and the promise of his kingdom to come.
It is time for liberals to stop their hand-wringing and for the Republican establishment to wise up. Trump is unlike any politician either party has ever seen; and Americans are angrier and more resentful than ever before. Hillary and Trump run even in the latest (3.1.16) national polls; and that alone is indicative of a very divided sentiment. Half of America want what Donald Trump is selling and want no part of Hillary’s stale, shopworn, outdated ideas. She, with all her evasiveness, lack of transparency, backroom deals, and cagey fundraising, are exactly what is wrong with America.
Super Tuesday is today. Let’s see what happens.