by JAMES TARANTO
Thursday, January 20, 2005 2:09 P.M. EST

'Embarrassment' Indeed
We just got around to watching our TiVoed copy of Sunday's "This Week With George Stephanopoulos" (no transcript available online), and there was Senate Minority Leader Harry Reid tripping over himself again to explain his comments about Justice Clarence Thomas:

Stephanopoulos: You got yourself into a little hot water last month when you said that Judge [sic] Thomas had been an embarrassment to the Supreme Court. Did you go too far there?

Reid: Well, let me say this. I voted against Judge Thomas when he was going to be confirmed as an associate justice of the Supreme Court. Why in the world would I ever vote for that man for chief justice? And probably that's all I should have said.

Stephanopoulos: Because you did go on and say that, you know, you talked about his opinions and said they were poorly written, and you talked about one case, the Hillside Dairy case, where you said his read like an eighth-grade dissertation compared to Justice Scalia's dissent, you said, which was like one from a Harvard graduate. We went back and looked at that, and Justice Thomas's dissent was a simple two sentences, pretty clear to me, and Justice Scalia didn't even have a dissent.

Reid: But here's the problem in the Hillside case. But Justice Scalia did write in that case, and--

Stephanopoulos: But in the majority. Not a dissent.

Reid: Yeah, that's right. But his reasoning was very logical. That's my whole point, and I think that when we have an activist judge like Thomas, who wants to turn precedent on its head, it's not good. And I can give you other cases. The Mitchell case on Fifth Amendment, where he and Scalia wrote differently. I mean, I know opinions. But, again, George, I acknowledge what I should have said: I voted against him the first time and I'm gonna vote against him the second time if he comes up.

Stephanopoulos: And leave it at that.

Reid: Yeah.

First off, color us unimpressed by Stephanopoulos's research. He let Reid get away with yet another falsehood regarding the Hillside Dairy case. As we noted Jan. 3, Scalia did not write an opinion in that case; he joined the majority opinion, which was written by Justice John Paul Stevens. The only other opinion in Hillside Dairy was Thomas's partial dissent.

The Mitchell case Reid cites would appear to be Mitchell v. U.S. (1999), in which indeed Scalia and Thomas both wrote dissents. Here is a portion of Thomas's:

Justice Scalia's dissenting opinion persuasively demonstrates that this Court's decision in Griffin v. California, 380 U.S. 609 (1965), lacks foundation in the Constitution's text, history, or logic. The vacuousness of Griffin supplies "cause enough to resist its extension." Ante, at 7. And, in my view, it also illustrates that Griffin and its progeny, including Carter v. Kentucky, 450 U.S. 288 (1981), should be reexamined. . . .

We have previously recognized that stare decisis is "at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Agostini v. Felton, 521 U.S. 203, 235 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. For purposes of this case, which asks only whether the principle established in Griffin should be extended, I agree that the Fifth Amendment does not prohibit a sentencer from drawing an adverse inference from a defendant's failure to testify and, therefore, join Justice Scalia's dissent.

Once again, we can't see anything wrong with the writing here. But Reid seems to be backing away from his complaint that Thomas's opinions are "poorly written," though he has yet to apologize for it. His new beef, which he also hinted at in his Dec. 26 CNN interview, is that Thomas "wants to turn precedent on its head."

Well, give credit where due: For the first time in three interviews on the subject, Reid has actually managed to come up with an example that supports his assertion. Scalia says in his Mitchell dissent, "To my mind, Griffin was a wrong turn--which is not cause enough to overrule it, but is cause enough to resist its extension." Whereas Thomas says he would be willing to overrule it "in the appropriate case" (though not in Mitchell).

Stare decisis, or respect for precedent, is in any case a fairly weak legal principle when it comes to constitutional law, and one no jurist follows all the time. To illustrate the point, consider two constitutional cases: Planned Parenthood v. Casey (1992), which upheld the right to abortion established in Roe v. Wade (1973); and Lawrence v. Texas (2003), which overturned the finding in Bowers v. Hardwick (1986) that laws against consensual homosexual sodomy were constitutional.

Every justice currently on the court voted to overturn precedent in one or the other of these cases (though Sandra Day O'Connor wrote an opinion in Lawrence that attempted implausibly to reconcile her concurrence with the Bowers decision, in which she was also in the majority). And let's not forget that perhaps the most celebrated Supreme Court case of all time was one that "stood precedent on its head." Does Harry Reid think the justices who decided Brown v. Board of Education were an "embarrassment" to the court?

Which brings us to Reid's latest rhetorical gambit: "I should have said: I voted against him the first time and I'm gonna vote against him the second time if he comes up." What was Reid saying about Thomas when the the president's father appointed him? Flash back to Sept. 25, 1991, and an article by Shaun McKinnon of the Las Vegas Review-Journal titled "Reid, Bryan OK Thomas for Top Court":

Sen. Harry Reid, D-Nev., also added his vote [for Thomas], saying he has "found no compelling reason for the Senate to reject the nomination of Judge Thomas," named by President Bush earlier this year to fill the seat of retiring Justice Thurgood Marshall. . . .

Reid said he respected the views of groups who opposed Thomas, but "after a thorough airing of opinions in the committee, no evidence emerged demonstrating a lack of capability in the president's nominee."

Thomas drew fire for his skeptical views toward affirmative action and "natural law," and for refusing to disclose his opinion on abortion. Thomas could become the swing vote to weaken or overturn the Roe vs. Wade decision legalizing abortions.

But Reid said Thomas' personal views should not be the primary issue.

"The Senate's constitutional role should be to reject a presidential nominee on the basis of qualifications, not political ideology," said Reid, who met with Thomas in the days before the confirmation hearings.

"The credentials of Judge Thomas to sit on the court passed intense scrutiny."

Did Reid lie to Stephanopoulos about his vote in 1991? No, he did not. A look at the roll call shows that Reid did in fact vote "no." In the manner of John Kerry, he supported Thomas before he voted against him.

Older readers may dimly recall what happened between Sept. 25, 1991, and Oct. 15, when the Senate confirmed Thomas. Anti-Thomas Democrats leaked word that one Anita Hill had told the FBI that a decade earlier (now almost a quarter century ago), Thomas had uttered some off-color remarks.

Hill's "sexual harassment" charges were unsubstantiated, and they were also trivial, at least by the standards Democrats subsequently propounded (cf Paula Jones, Kathleen Willey and Juanita Broaddrick). Nonetheless, there ensued something of a mass hysteria. As Thomas himself described it:

It is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.

Yet Thomas survived, because it turned out that only three senators were weak-minded enough to join the lynch mob after previously announcing their support for his confirmation. One of them was Harry Reid. (The others were fellow Nevadan Richard Bryan and Connecticut's Joe Lieberman.)

So here we have Reid going out of his way to insult the intelligence of the only black member of the Supreme Court, and citing his own vote in 1991--even though back then, he vouched for Thomas's qualifications and turned against him only when his fellow Democrats resorted to the politics of personal destruction.

This is the man Senate Democrats have chosen as their leader. What does that tell us about their character?

Four More Years and a Funeral
Blogger John Hinderaker notes that ABC News posted on its Web site yesterday the following announcement:

For a possible Inauguration Day story on ABC News, we are trying to find out if there any military funerals for Iraq war casualties scheduled for Thursday, Jan. 20. If you know of a funeral and whether the family might be willing to talk to ABC News, please fill out the form below.

As Hinderaker notes, "that only the families of Iraqi war dead need apply. If a soldier died in Afghanistan, or aiding tsunami victims in Indonesia or Sri Lanka, or in a training exercise, never mind. That isn't the 'balance' ABC is looking for."

In his Inaugural Address, meanwhile, President Bush paid tribute to the fallen: "Some have shown their devotion to our country in deaths that honored their whole lives--and we will always honor their names and their sacrifice."

ABC seems to have realized that they didn't sacrifice for the sake of the network's sneering story; the network pulled the announcement as soon as word got out on the blogosphere. (We saw it yesterday before it disappeared.) Blogger Edward Morrissey posted a copy here, though it doesn't display quite properly.

Anyway, this is the sort of thing that can be damaging to a network's reputation. ABC had better hurry up and hire Dick Thornburgh and Louis Boccardi to find no evidence of political bias.

Fighting Fire With Fire
It's funny to think that some years back a president named George Bush was quoted as scoffing at "the vision thing." Today his son began his second term with a stunningly visionary inaugural speech. George W. Bush described the seemingly placid times when he came to power four years ago: "After the shipwreck of communism came years of relative quiet, years of repose, years of sabbatical--and then there came a day of fire."

The answer to the literal fire of Sept. 11, the president said, is the metaphorical fire of freedom:

Because we have acted in the great liberating tradition of this nation, tens of millions have achieved their freedom. And as hope kindles hope, millions more will find it. By our efforts, we have lit a fire as well--a fire in the minds of men. It warms those who feel its power, it burns those who fight its progress, and one day this untamed fire of freedom will reach the darkest corners of our world.

"It is the policy of the United States," the president declared, "to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world."

This is arguably the most ambitious policy any American president has ever put forth. And it's sure to be met with cynicism in some quarters: "Some, I know, have questioned the global appeal of liberty," Bush noted--"though this time in history, four decades defined by the swiftest advance of freedom ever seen, is an odd time for doubt." Here's an answer to the doubters:

Today, as an old order passes, the new world is more free but less stable. Communism's collapse has called forth old animosities and new dangers. Clearly America must continue to lead the world we did so much to make.

While America rebuilds at home, we will not shrink from the challenges, nor fail to seize the opportunities, of this new world. Together with our friends and allies, we will work to shape change, lest it engulf us.

When our vital interests are challenged, or the will and conscience of the international community is defied, we will act--with peaceful diplomacy when ever possible, with force when necessary. The brave Americans serving our nation today in the Persian Gulf, in Somalia, and wherever else they stand are testament to our resolve.

But our greatest strength is the power of our ideas, which are still new in many lands. Across the world, we see them embraced--and we rejoice. Our hopes, our hearts, our hands, are with those on every continent who are building democracy and freedom. Their cause is America's cause.

This is a passage not from President Bush's speech today, but from Bill Clinton's 1993 inaugural.

Canadians Try Hand at 'Journalism'
"Bush Pledges 4 Years of Spreading 'Freedom' "--headline, Canadian Broadcast Corp. Web site, Jan. 20

Homelessness Rediscovery Watch

"If George W. Bush becomes president, the armies of the homeless, hundreds of thousands strong, will once again be used to illustrate the opposition's arguments about welfare, the economy, and taxation."--Mark Helprin, Oct. 31, 2000

"Homeless Mostly Invisible as Washington Celebrates"--headline, Reuters, Jan. 19, 2005

This Ought to Convince Everyone He's a Divider
"Poll: Nation Split on Bush as Uniter or Divider"--headline, CNN.com, Jan. 19

Who Did You Call 'Stingy'?
"Tsunami-struck Thailand has been told by the European Commission that it must buy six A380 Airbus aircraft if it wants to escape the tariffs against its fishing industry," reports the Scotsman:

While millions of Europeans are sending aid to Thailand to help its recovery, trade authorities in Brussels are demanding that Thai Airlines, its national carrier, pays £1.3 billion [$2.43 billion] to buy its double-decker aircraft.

Jan Egeland could not be reached for comment.

Homer Nods
The article in the Lincoln (Neb.) Journal Star about the death of seat-belt foe Derek Kieper in a car accident appeared Jan. 4, not yesterday as our item (since corrected) said. If you'd like to learn more about Kieper, read this appreciation in the Daily Nebraskan.

Terrible Unswift Shields
Here's a brilliant little post by blogger Second Lt. Lance Frizzell, a Tennessee National Guardsman serving in Iraq:

Back in January '03, you may remember a group of Western liberals who volunteered to go to Iraq as human shields in case the US enforced UN resolutions that Saddam violated. Key graf:

". . . they are willing to put themselves in the firing line should US and British forces bomb Iraq. They plan to identify potential bombing targets such as power stations and bridges and act as human shields to protect them."

Well, I think I have just the job for these globe-travelers: Iraq Election Poll Worker. They are familiar with the terrain and people, they have a self-professed desire to help and they seem very articulate. However, their biggest asset is bravery. If they are willing to hunker down between Coalition Forces and a bridge, standing between a foreign terrorist and a polling precinct should be no big deal. Any takers?

Keep us posted, Lt. Frizzell.

'Open and Liberal'
The New York Times' Hassan M. Fattah reports from Mecca, Saudi Arabia, on the hajj, the annual Muslim pilgrimage:

What really makes Mecca so open is its diversity, a product largely of the hajj, which for 1,425 years has been attracting believers from all over the world. . . .

All that has resulted in an unlikely liberalism--not quite a Berkeley-style liberalism, but still a striking oasis of open thought and discussion in a world of hardened politics and interests. Increasingly, Meccans see themselves as a bulwark against the creeping extremism that has overtaken much Islamic debate.

Similarly, a caption under a photo by Abid Katib describes Mecca as "one of the most open and liberal [cities] in the Muslim world."

Well, we love open and liberal cities; that's why we live in New York. The next chance we get, we're hopping on a plane to Mecca to check it out and see if it's as open and liberal as, say, Istanbul.

Oh wait, we forgot. We can't go to Mecca. Under Saudi law, non-Muslims aren't allowed to set foot there. The Times has an odd idea of what "open and liberal" means.

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Today on OpinionJournal:

• Review & Outlook: President Bush promises to solve problems that are optional as politics.
• Paul Gigot: Will the GOP have the courage, at last, to change the face of government?
• Thomas Weber: Holocaust survivors confront a photographic record of the horror.