Talking Thom

The publication of Justice Thomas' memoirs, and his round of promotional interview, revived talk of his confirmation and career of course.  He seems to have done well for himself during interview, judging by the notices.  And this morning Anita Hill wrote a short response to Thomas' remarks about her.  The general consensus seems to be that, outside a few obvious topics, he is genial man, of considerable charm.  I have no reason to doubt that. (My own view is that Thomas committed perjury during the hearings, and that is not a good justice either in terms of his analytic approach or the substance of his opinions.  But that is not the topic. But this is not about those topics.)  I find it interesting that comments about Thomas elicit such intense reactions.  Look at the comments to posts at Volokh on Thomas -- almost immediately the commentary not only polarizes along political lines but becomes vituperative, and full of useless and irrelevant spiteful remarks. Many people seem to think that their political opponents do not only hold erroneous views on political and social issues, but are vile, dishonest, despicable even for rats.  Lots of people seem to think that those in the wrong on moral or political questions also are mean, rank, and socially detestable.  It is true that on television and in the movies the bad guys are usually bad in every way (except dressing well), but it should not be asking much for people to look around a bit.  Kissinger is and was a figure I think political vile, but I see no reason to think he would not make a good dinner guest.  Cheyney surely loves his family and treats them well.  Trotsky had good taste in art and literature.  By all accounts, Justice Thomas would be a fine guest and a pretty decent traveling companion.  But what does that have to do with his jurisprudence or whether he should have been confirmed?  I suppose I am in a small minority here, but I think whether he should have been confirmed tells us very little about whether he is a good justice.  A local example -- I think Paul Cassell should not have been confirmed to the Federal District Court here.  I thought that he was too polemical and too deeply committed to political positions inconsistent with the duties of a judge, and too committed to views which denigrated established principles and rules in the criminal law.  But that concerned his nomination and confirmation.  Once on the bench, he did a very good job.  His performance should be judged apart from whether he should have been confirmed.  The same with Thomas.  Whether he should have been confirmed does not say anything much about how he has performed subsequently.  I do not think he has done well on the bench, but for reasons having to do with his performance there.  And distaste for him on the bench does not mean I think he is to be shunned everywhere.  These are pretty simple distinctions and pretty obvious I think.  Yet, when discussions start there is an almost immediate turn to unrestrained warfare -- look at Volokh.