Presswatch/Doubting Thomas Again

...As though to drive the point home for slow readers (Raspberry, McGrory...

...and "When will we see more...

...Instead they characterized his writing as"bizarre" (Raspberry), "mind-boggling" (the Post), and "disgusting" (McGrory...

...Dawson was sentenced to death...

...court of appeals by issuing an opinion holding unconstitutional a government policy that favored woman applicants for broadcast licenses...

...Thomas specifically noted that Keith Hudson could have sought but did not seek redress for his injuries under state law, and that there might be a Fourteenth Amendment due process violation if Louisiana's available remedies were inadequate...

...A month down the road, a couple of months down the road...

...ball himself, in the form of an opinion of major importance...

...Escaped from a Delaware prison, David Dawson stole a car, committed burglary, and brutally killed a woman...

...Ignoring his nuanced argument, Thomas's critics suggested that a judge should decide cases on some basis other 62 The American Spectator May 1992 than what the judge conscientiously believes is correct law...

...That of course is a preposterous view of the judge's task, but here were McGrory et al...

...In her opinion for the 7-2 majority, Justice Sandra Day O'Connor wrote that excessive force against a prisoner may constitute "cruel and unusual punishment" in violation of the Eighth Amendment, even though the inmate does not suffer serious injury...

...The editorialists were just warming up...

...Scalia puppet" is the latest term of scorn preferred by Thomas's foes, even though the newest Justice stood all by himself in Dawson, not a posture novice Justices normally adopt...

...Raspberry harrumphed, "I was prepared to see you put a compassionate face on conservatism...

...I looked in vain for pundits who disagreed with Thomas yet who were fair-minded enough to acknowledge his stated view of such beatings as Hudson received and the legal recourse the inmate had...

...reasoning...

...Instead, press pundits have been hyperventilating over what Thomas has actually been doing on the bench...

...Thomas has provedcourageous, willing to stick to his reading of the law in Hudson despite the uproar he surely knew it would provoke, and willing even to stand alone, as witness his solitary dissent in Dawson...

...Thomas, joined in his dissent by Justice Antonin Scalia, disagreed...

...Disagreeing, Thomas wrote: "A jury reasonably could conclude from Dawson's membership in a prison gang that he had engaged in some sort of forbiddenactivities while in prison," adding that the evidence "tended to establish future dangerousness" and "to rebut Dawson's attempt to show that he was kind to others...

...At sentencing, the state introduced evidence of Dawson's membership in the Aryan Brotherhood, a violent, white supremacist prison gang...

...0 The American Spectator May 1992 63...

...His latest book, Energy in the Executive: The Case for the Strong Presidency, will be published this summer by the Free Press...

...Not one acknowledged that his opinion was well within the realm of legitimate argument...

...Thomas had yet, however, to throw a wrecking Terry Eastland is resident fellow at the Ethics and Public Policy Center in Washington, D.C...

...The newest Justice sided with large majorities in interpreting the Voting Rights Act and the Immigration and Naturalization Act in ways that Nat Hentoff, for example, did not like...

...This is an interview...

...Here is the hardball question Zahn should have asked: Just why is it not in the public interest for us to know who leaked the Hill allegations...

...What, after all, is a results-oriented pundit to do when a white racist sentenced to death invokes the First Amendment...

...B y mid-March Thomas had written four opinions, one concurring opinion, and three dissents for the Court—eight essays on the law—despite having missed the first twenty arguments of the term, thanks to Anita Hill...

...But as I write in mid-March, there is nothing on Thomas, although there is plenty on Hill, as readers of this journal well know...

...Thomas was "born an underdog and has forgotten all about what it was like," wrote McGrory...

...Following an argument with prison guards, inmate Keith Hudson had been handcuffed and shackled, and then beaten, suffering bruises, swelling, and loosened teeth (none of which required medical attention...

...We had hoped that Thomas "would bring to the Court the understanding bred of hardship," intoned the New York Times...

...She's on the air with National Public Radio's Nina Totenberg, one of the two reporters who, drinking deeply of a most poisonous leak, first spread the Anita Hill stuff...

...essentially urging Thomas to decide cases by remembering his roots...

...his membership in the Aryan Brotherhood was irrelevant to the murder, since the victim was white, and to his character, since the evidence did not prove that the Aryan Brotherhood had committed or endorsed unlawful or violent acts...

...A use of force that causes only insignificant harm to a prisoner," Thomas wrote near the top of his opinion, "may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the federal Constitution, but it is not 'cruel and unusual punishment.' " In a similar vein, at the end of his opinion, Thomas stated that abusive behavior by prison guards is "deplorable conduct that properly evokes outrage and contempt," but does not necessarily deserve the stamp of Eighth Amendment unconstitutionality...

...Soon, I suppose, Thomas will be savaged for not being a team player...

...The jury was thus able to consider it along with Dawson's mitigating evidence—that he had been kind to family members and had earned good-time credits in prison for enrolling in drug and alcohol programs...

...Zahn's anti-Thomas posturing reflects a widely held presumption within the Fourth Estate: There must be more dirt out there on Judge Thomas...

...The thought of another Scalia enrages Thomas's pundit-critics, for Scalia is dedicated to reading the law, not deciding cases according to whatever one thinks is the politically sympathetic party...

...The current Supreme Court term will not close until the end of June, but if Thomas continues in the fashion in which he has begun, he can expect more ad hominem attacks from the likes of McGrory, Raspberry, and the New York Times editorial page...

...Thomas's votes are almost the same as Scalia's, as is his approach to the law...

...Thomas's reading of the case law and the Constitution was hardly idiosyncratic, and the conclusion he drew was by no means far-fetched...

...This, of course, is the implicit view of so many in the press, which may explain why Thomas's opinion in Dawson v. Delaware two weeks later was received mostly in silence by his critics...

...Justice Thomas's Late Hit," opined the New York Times...

...Thomas added that "to reject the notion that the infliction of concededly 'minor' injuries can be considered either 'cruel' or 'unusual' `punishment' . . . is not to say that it amounts to acceptable conduct...

...Thomas has already proved more prolific than most rookie Justices—David Souter, who missed no arguments during his first year, had written only one opinion at this stage of his first year...

...But to read Thomas's critics, you would have thought he'd gone off the deep end...

...Thomas thus sided against a white racist—an outcome that should have made Raspberry and company happy...

...As has been his wont of late, Raspberry stumbled past the essence of the matter: For if the Constitution is something you read into, as opposed to something you try to read on its own terms, then law is politics and politics law, and never the twain shall part...

...But he also had sided against a convicted felon who, like Keith Hudson, was petitioning for his constitutional rights—a fact that took the tongue away from any critics inclined to toss him a word of praise...

...Zahn says there are reports that Totenberg is "still investigating" Justice Clarence Thomas...

...Hudson would have been "an easy chance to show that you could read into the Constitution and prior court decrees at least as much compassion as the white conservatives on the court...

...Writing for the eight-member majority, Chief Justice William Rehnquist overturned the death penalty...

...David Brock's piece in the March TAS should have been followed up by the networks, even by Paula Zahn, but Brock's enterprising reporting has not been matched by any major media...

...Delaware, he said, violated Dawson's First Amendment rights...

...Nor did most critics even attempt to rebut his...

...Judging by what Thomas showed when Anita Hill attacked, I'd say he'll survive just fine...

...Worse, Thomas himself was made out to be a man who just might condone prison beatings such as Keith Hudson endured so long as the victim did not suffer serious injury...

...She asks: "What can you tell us about that...

...That happened in February, when the Justice completed unfinished business at the D.C...

...Clarence Thomas Joins the Wrecking Crew," his column in the Washington Post was headlined...

...Two days later, the Times hit Thomas again, in a lead editorial, no less, entitled "The Youngest, Cruelest Justice...

...All three judges on the appeals court below, in fact, had seen the issues in much the same light...

...He was convicted of first-degree murder and other crimes...

...What outraged the Times, and also the Washington Post, along with William Raspberry, Mary McGrory, Clarence Page, and other syndicated columnists, was Thomas's dissent in a case from Louisiana, Hudson v. McMillian...

...Rather it is to recognize that primary responsibility for preventing and punishing such conduct rests not with the federal Constitution but with the laws and regulations of the various states...