No Comment — June 4, 2007, 8:09 am

Mr. Tulkinghorn on the Bench

In reviewing Bleak House on Sunday, I noted that the Tulkinghorns walk among us today – referring to the solicitor in whom Dickens embodied all the worst human failings of the legal profession. The key among those failings, of course, is obsession with the accumulation of wealth and power, and blindness to justice and its requirements. There are many Tulkinghorns about today, and one of them is named Clarence Thomas. Adam Cohen does a superlative job of reviewing Thomas’s cold-hearted jurisprudence in an op-ed in the Sunday New York Times.

It reminds us of a number of things. For instance, we are taken back to those dramatic confirmation hearings at which Anita Hill, a law professor, appeared and presented a tale of crude abuse and harassment by Thomas. He salvaged himself with an explosion of mock indignation. But later investigations bore out Hill’s claims and made clear that Thomas secured, and now holds, his seat on the High Court on the basis of lying to Congress. Obviously, it furnishes grounds for his impeachment. And that’s something that Congress should take seriously, because we have to stretch back a long ways to find another Supreme Court justice who has better deserved impeachment.

Consider these acts of judicial malice:

In his first year on the court, he dissented from a decision holding that the ban on cruel and unusual punishment may have been violated when guards kicked a prisoner and punched him in the stomach, eye, and mouth. The prisoner had a split lip, bruises and loosened teeth, but Justice Thomas insisted that the Constitution did not prohibit such “insignificant harm.” He dissented from a ruling in favor of a prisoner who was handcuffed to a hitching post in the hot sun for seven hours while a guard taunted him about his thirst.

Justice Thomas also dissented from rulings that the mentally retarded and juveniles could not be executed. He can be counted on to reflexively oppose discrimination claims of minorities and women, as he did last week, when he joined the majority in rejecting the claim of a woman who was underpaid for years because of her sex, on the dubious ground that she complained too late.

Justice Thomas claims he is simply faithful to the “original intent” of the founders. But when the founders’ intent is not involved — as in the pay discrimination case, which was based on a modern statute — he is just as quick to reach a harsh result.

This is a man with no heart and no conscience. His presence on the High Court degrades it as an institution.

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