Judge Thomas Is Locked in to Laissez Faire

By James Boyle. James Boyle is a Visiting Professor of Law . | The Christian Science Monitor, September 12, 1991 | Go to article overview

Judge Thomas Is Locked in to Laissez Faire


James Boyle. James Boyle is a Visiting Professor of Law ., The Christian Science Monitor


AS Judge Clarence Thomas's confirmation hearings proceed, some senators will object to scrutiny of his beliefs. After all, they will say, this is a judge. His job is to apply the law, not make it. The Senate should be concerned with his competence, not his empathy for the powerless or his view of the world.

There is an answer to this objection. Ironically, it comes from another controversial conservative nominee to the Supreme Court, Judge Robert Bork. "It is naive to suppose that the (Supreme) Court's present ills could be cured by appointing justices determined to give the Constitution 'its true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... The question ... is not whether courts should make the law, but how and from what materials."

Judge Bork wrote these words in 1968. Then, it seemed obvious to him that the vagaries of language and history made it impossible for a judge simply to "apply" the law. Things are clearer to him now. He says he has no difficulty in "finding" the law. I think he was right in 1968 and that his words have some profound implications for Judge Thomas.

All judges have an ideology, a set of values and criteria that they use to "illuminate" the meaning of the law. For some, the intent of the framers is what counts; for others it is economic efficiency. Some judges think the words of the law alone will decide the case; others think that you must look to its purpose, or to some general set of principles underlying our social order. This issue cuts across party lines. Conservatives habitually browbeat liberals with charges of "judicial legislation," but they, too, cannot agree among themselves on the right way to interpret the law. (Judge Bork, for example, has at one time or another believed each of the above views to be "undeniably" correct.)

Judge Thomas apparently favors natural-law philosophy and laissez faire political theory as his guides to the meaning of the law. Should this disqualify him from confirmation? Not at all. But if all judges have an ideology, then the Senate should reconsider the questions it wants to ask.

One important question is whether this particular judge would ever modify his creed because of compassion or contrary evidence, or whether it shapes his perceptions so strongly that contrary evidence will be explained away, compassion preempted. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Judge Thomas Is Locked in to Laissez Faire
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.