Thursday, May 29, 2008

Gerber, S.C. First Principles: the Jurisprudence of Clarence Thomas. NYU 1999).

At last, a book on Clarence Thomas' thinking! The author seems to be about 30. (The dedication gives the impression that he has three parents). He is of the half-educated tribe which feels and believes and has unbiased opinions, expressed in cliches garnered in survey courses. He is unable to restrain himself from giving an opinion, as though it mattered to us what he - whom we not know from Adam - believes.
Thus, he feels it necessary to express an opinion about the Anita Hill charges. With it he destroys the whole purpose of our elaborate judicial machinery (as Judge Thomas pointed out at the time) which involves oaths, cross examination, rules of evidence, juries, and the like. The proceedings did indeed turn into "a high-tech lynching". Mr. Gerber is said to have a Ph.D. and a J.D. I continue to offer odds that he never had a course in logic. Nor one in the meaning of words. Writers "author" books and articles. There are "undeniable facts". (And most likely "unnegotiable demands").
Nor in history ("burning at the stake was a common punishment in colonial America"). He is surprised to learn that the Pilgrims were intolerant. He notes that Locke was tolerant of everyone except atheists and Roman Catholics. He cannot see that such notions as "the people of the nation as voiced in their respective electoral districts" emphasize the species over the specimens: Blacks over a black; das Volk over folks.
He "believes" that thinking consists in moving around survey course phrases ("liberal", "conservative"). And that scholars' opinions, as distinct from their proper work of collecting and editing ("gathering & sorting") are more than academic. It is not an evaluation shared by the populace, nor I hear-tell by judges themselves who tire of reading treatises by Inexperienced Experts.
Clarence Thomas foxes him because his jurisprudence is aimed at the individual primarily as individual and not as a specimen of a species. This may reflect the judge's time in a seminary, preparing for the priesthood, (which he left because of foul-mouthed racist remarks), during which he had to study the process of thinking, especially logic. Logic is as dull, and as necessary, as geometry.
There are some interesting bits. Harry Blackburn's comment (Hudson v. Macmillan 1992) about "whipping with leather straps, beating, shocking with electricty ..." display a mildly morbid imagination. Anglophiliacs do have a taste for such things. Leo Spitzer has taught us to listen to the music of such phrases. And the ease with which Judge Souter will accuse Judge Thomas of being "disingenuous" (50 cent word for "lying"). He would be more honest to say "he is disagreeable: he disagrees with me" and burst into tears.
Still: ho hay libro sin algo bueno. The quotations from Judge Thomas' opinions and writings are a beginning of a presentation of his thought.

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