The fact that this is the first (or maybe second?) time in his tenure that good old Clarence decided to read his dissent aloud is just classic. This? THIS is the opinion you're proudest of?? Really???

He's a fucking clown, M/tch. He's one of the biggest jokes in the history of the Supreme Court—possibly the biggest—but it stopped being funny the minute his confirmation hearings ended. He isn't qualified to lick Thurgood Marshall's dead ass.

One more thing we can blame on the Bush family.

Oh my f&*king god.

Um, just to be clear, the commentary at Sadly, No! is what's funny. The MM thing isn't worth watching.

And yeah Thomas is a fucking clown. Speaking of which, this:

As far as the opinion goes, I think, as is often the case, Justice Thomas's position is much more defensible that Justice Stevens's position.

just totally blows my mind.

Sorta reminds me of the Jim Lehrer news hour a couple of weeks ago on the Shields and Brooks segment. They were talking about the Haditha massacre and David Brooks was talking about how "this sort of thing happens when you're fighting a guerilla insurgency, these guys are stressed out, blah de blah blah". Then Mark Shields told him that Marines are trained not to do this stuff and it's inexcusable, etc. Lehrer was on Shields' side. At the end of the segment, Lehrer noted that both himself and Shields were former marines.

Brooks, OTOH - I'm pretty sure he was never in the service.

At least we now have evidence that Thomas writes his own opinions. No clerk would do anything so stupid.

From the Thomas dissent:

"...As an initial matter, the plurality relies upon the date of the AUMF's enactment to determine the beginning point for the "period of the war," Winthrop 836, thereby suggesting that petitioner's commission does not have jurisdiction to try him for offenses committed prior to the AUMF's enactment. Ante, at 34 36, 48. But this suggestion betrays the plurality's unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities..."

Thomas in fact makes no direct mention of Stevens, as the distorted quote would lead you to believe. He is referring, obviously, to the collective legal wisdom of Stevens, Ginsberg, Souter et al with regard to this example of military law.

Good catch, Mike2

But hey, why allow mere reality to interfere with an opportunity to take up the "chickenhawk" refrain, eh?

Whether he called out Stevens by name is irrelevant. It's arrogant and stupid of Thomasto call out "the plurality's unfamiliarity with the realities of warfare" when a member of that plurality has direct experience of the realities of warfare while Thomas has none.

If he were to assert that the plurality was wrong or misguided, that would be fine, but he's accusing a veteran of being unfamiliar with something he himself has no experience whatsoever with. STFU is the appropriate response.

Indulge me in a thought experiment, if you will.

Assume Thomas had seen combat in the Navy, over 6 decades ago (and assume he's the right age for that, etc.) Now, in 2006, he writes an opinion in support of the gov't position, citing his own familiarity with the realities of warfare.

Somehow, I don't see the leftosphere deferring to his Navy experience. More likely, they'd be dishing up snide comments about how being on a boat in the 1940's has no relation at all to being on the ground in Iraq today.

"It's arrogant and stupid of Thomasto call out "the plurality's unfamiliarity with the realities of warfare" when a member of that plurality has direct experience of the realities of warfare while Thomas has none."

Exactly what "realities of warfare" are germane to the Hamdan case?

If they were the realities of warfare circa 1942, with uniformed combatants and signatories to the Geneva Convention, then okay, based on his three year hitch, Stevens could be said to have a measure of first-hand knowledge. More, at any rate, than Thomas or Souter or even Ruthie "Storm the Beaches" Ginsburg.

But with regard to a war that features IED's and videotaped beheadings, where the enemy combatants serve not a state but a militant-religious ideology, that tour of dubya-dubya-two duty is about as relevant as time served during the Peloponnesian War.

Less, probably...

(And by the way, where was this enthusiasm for genuflecting to war veterans back when Bush I was president? Seems to have escaped my notice completely.)

GB,
This isn't about how well the experience applies to the opinions. It's about the stupidity of someone with no experience at all snarking about the unfamiliarity of someone with extensive experience.

If Thomas had attacked the majority's legal reasoning or understanding of the facts, there could be legitimate disagreement. But he attacked them for being "unfamiliar" with something he has less knowledge of than they do. That's just dumb.

Mike2,
Thomas didn't claim that Stevens' experiences with warfare weren't relevant to this particular conflict, he claimed that he was "unfamiliar with the realities of warfare", which is factually false. But however irrelevant Stevens' experience may be, it is certainly more relevant than sitting around in a law office watching porn.

(And by the way, where was this enthusiasm for genuflecting to war veterans back when Bush I was president? Seems to have escaped my notice completely.)
Just not paying attention, I guess, because I heard plenty of it. "Genuflecting to war veterans" has been a constant staple of American politics since the nation's founding.

"Thomas didn't claim that Stevens' experiences with warfare weren't relevant to this particular conflict..."

Dude, "this particular conflict" is very much a part of, is in fact central to, the Hamdan case. But you're right, of course. Thomas made no claims whatsoever about Stevens' experiences.

" 'Genuflecting to war veterans' has been a constant staple of American politics since the nation's founding."

Sorry, should have been more clear: Where was this enthusiasm on the part of the left for genuflecting to war veterans..?

Thomas made no claims whatsoever about Stevens' experiences.
Bzzt. Try again.
In English, "unfamiliar" is a claim about experience.

Where was this enthusiasm on the part of the left for genuflecting to war veterans..?
Probably the same place the right misplaced theirs when Kerry was running. Dems praise Dem vets, Repubs praise Repub vets—it's called politics, and it's not that hard to understand.

"Bzzt. Try again".

Oh, snap! You done went all game-show on my ass... How can I possibly compete with someone who can take it to that elevated level of discourse? Best I can do is just play along at this point...

" In English, 'unfamiliar' is a claim about experience."

Really? That's all there is to it? I'd have thought that "familiarity" might also have something to do with knowledge gained from study of a particular subject. But I suppose I must defer to your unassailable game-show authority on this matter.

(By the way, why is the "in English" part of your statement necessary? Does "unfamiliar" have some alternate meaning in other languages? Swahili perhaps? Maybe Tagalog? I merely seek enlightenment here...)

Sorry for underestimating your intellect like that, Mike. I was just trying to make it easier for you to understand, since you still seem unable to get the basic point of the post: If A has experience in a given area, and B has none, it is silly for B to complain of A's "unfamiliarity" with that area.

If Stevens wrote a concurring opinion complaining about the dissent's unfamiliarity with sexual harassment allegations, neither the fact that Thomas is not the only dissenter nor any recent research Stevens may have made into the matter would make that statement anything but arrogantly ignorant.

on the part of the left

How is this blog and its comments section "the left"? Norbizness hardly ever comments here. Everyone I see posting here that I have a sense of their politics, seems pretty centrist, possibly except TokyoTom.

If Stevens wrote a concurring opinion complaining about the dissent's unfamiliarity with sexual harassment allegations

Or, for example, Stevens dissented with a Thomas-written opinion on the Civil Rights Act and accused the majority of being unfamiliar with the realities of growing up black.

"Sorry for underestimating your intellect like that, Mike."

No offence taken old man; I appreciate all your efforts here.

"I was just trying to make it easier for you to understand, since you still seem unable to get the basic point of the post: If A has experience in a given area, and B has none, it is silly for B to complain of A's "unfamiliarity" with that area.'

Got the basic point. Really, I have. Lookee: "If A has experience in a given area, and B has none... et cetera" Got it. Clear as crystal bells.

But having got it as I have, the sticking point (as it were) is the fact that I do not in fact agree with the point you're making. A subtle distinction, I'll admit, but significant , and one I have every reason to hope that you'll eventually get your head around (given ample time, of course). In the mean time please by all means carry on with your little vulgar slurs regarding Justice Thomas. After all, they bother him not a bit, yet afford you and your ilk such delicious self-satisfaction...

Cheers!

I just assumed you weren't getting the main point because all of your objections have been pedantic nitpicking about irrelevant peripheral points rather than arguments against the main point.

I really am having a hard time getting my head around this. You are actually disagreeing with the idea that it's silly for the inexperienced to accuse the experienced of unfamiliarity with the object of their experience? It wouldn't be at all silly or arrogant of me to lecture Rush on his unfamiliarity with prescription drug abuse?

I suppose this just betrays my unfamiliarity with this new brand of logic you're using.

Mike2 is being a little bit hostile, but I actually agree with what I take to be his central point — that Stevens's WWII Navy experience doesn't confer upon him a familiarity with the realities of current military operations in Iraq.

Sure, it's easy 'n' fun to cast this episode as "Chickenhawk insults war hero", but that's a shallow reading of it. Thomas had a valid point. Granted, he could have saved himself some trouble by expressing it more precisely. For example, he could have expressed the plurality's "unfamiliarity with the realities of the ground war in Iraq", which would have fairly described Thomas as well as the other four justices in the plurality. But to blast Thomas over a matter of phrasing when he was right on the substance, is to elevate rhetoric over truth.

GB,
For one thing, it's not like this post was trying to make a sophisticated point about jurisprudence. It was just "look, Clarence said something stupid."

If you want to discuss what Thomas meant to say, that's a different discussion. Maybe he acutally meant to say "betrays [most members of] the plurality's [relative] unfamiliarity[but not in the sense of actual experience] with the [particular] realities of [recent] warfare [that happen to be relevant in this case, but of course I didn't mean Stevens]."
(Although even there I think you're wrong. What possible claim could Thomas have to being more familiar with the realities of warfare than the other Justices?) As written, his words are silly and arrogant, and deserve to be mocked.

I don't think it was stupid, because Clarence was right on the facts, assuming "warfare" refers to "warfare in the war we're actually fighting now." Tactless, perhaps, but not stupid.

Yes, Thomas' statement was not technically correct because of Stevens' WWII experience, but it was correct in that Justice Stevens, if plunked down in the middle of the Sunni Triangle with a platoon at his command, would probably have no idea what to do. Nor would any of the other justices.

Thomas' statement was not technically correct... but...

But the whole point of saying your opponent is insufficiently familiar with the realities of the situation, is to position yourself as more closely acquainted with those realities; else why say it?

Right, the statement is drawing a contrast between the unfamilarity of the plurality with the realities of warfare and Thomas' presumed greater familiarity. While Stevens's familiarity with the 'realities of warfare' isn't recent or relevant, it's greater than Thomas's.

Actually, Thomas is almost certainly not positioning himself as having greater military experience than Stevens.

He seems to be saying that since the plurality lacks (modern) military experience, it should defer, as Thomas himself is doing, to those who do — our current military commanders and the government officials who make policies that serve their needs.

The conservative position in many cases is to not presume that the judiciary has greater knowledge of the realities of the situation than the government officials who designed the policy in question. I'm surprised you didn't catch this one, LB.

An analogy: You and a friend are on a 747, when turbulence strikes.

Your friend says "Hey, this pilot is flying all wrong. I'm going to tell him what to do."

You say, "Um, I'm not sure that's a good idea. You don't know anything about flying planes."

Clearly you're not claiming that you yourself do know how to fly planes. You're just saying that you and your friend would be better off leaving things to the pilot.

And to extend the analogy, the Thomas attackers are like people telling you off because your friend actually did fly a completely different, less complex plane back in the 1940's, although he hasn't flown at all since then.

I didn't fail to 'catch it', it's untrue in context. If you read what Thomas writes, he doesn't refer to the plurality's unfamiliarity with the realities of warfare as a reason for deference to the executive, he refers to it as a reason that the plurality is wrong, which is entirely different.

Jeez, do you mean I'm going to have to actually read the opinion to continue this discussion? Damn.

Meh, I never did.

Apostropher comment threads: tougher than law school. Anyway, the decision is here (pdf link). The relevant bit:

As an initial matter, the plurality relies upon the date of the AUMF’s enactment to determine the beginning point for the “period of the war,” thereby suggesting that petitioner’s commission does not have jurisdiction to try him for offenses committed prior to the AUMF’s enactment. But this suggestion betrays the plurality’s unfamiliarity with the realities of warfare and its willful blindness to our precedents. The starting point of the present conflict (or indeed any conflict) is not determined by congressional enactment, but rather by the initiation of hostilities. See Prize Cases, supra, at 668 (recognizing that war may be initiated by “invasion of a foreign nation,” and that such initiation, and the President’s response, usually precedes congressional action). Thus, Congress’ enactment of the AUMF did notmark the beginning of this Nation’s conflict with al Qaeda, but instead authorized the President to use force in the midst of an ongoing conflict.

Ironically, the question of personal military experience is completely irrelevant to the point Thomas is making. He's talking about how the Court's own precedents determine the starting point of a war for legal purposes, not about how combat experience lets you understand what the troops and their commanders are going through.

Quite obviously, mere service in the military does not equip one to answer the legal question of when a particular conflict "officially" began. Hence, Thomas' central observation appears sound, but he should have phrased it in a way such that he wasn't appearing to belittle the military experience of a WWII veteran.

"For one thing, it's not like this post was trying to make a sophisticated point about jurisprudence."

Now here I agree with you 100%!

"It was just 'look, Clarence said something stupid.'"

Here, eh, not so much...

Look, I've already cited the actual phrase in its proper context for you, from which it should be plain to the meanest understanding that Thomas was referring to the collective understanding of the plurality's understanding of the realities of war as they exist today. And I still have yet to see any serious argument that one Justice's three year hitch at a desk-job in Navy Intelligence (oxymoron alert!) 60 years ago somehow confers on him (and those with zero military background who merely happen to agree with him on a particular point of law) some kind of unchallengeable authority on any matters martial. It seems plain to me that those who continue to insist that the dissenting opinion in question shows Justice Thomas' arrogance or stupidity do so merely out of a pre-existing prejudice against the man and/or his political point of view.

"Mike2 is being a little bit hostile..."

Well... My apologies to one and all if this is how it appears. Wasn't my intent really; I just tried to play along in the same spirit as other commenters. But let it be known that were it not for the side-bar links at "Riding Sun," a blog I read regularly (and one I recommend to anyone here), I'd never have stumbled across this homely little circle of progressivistas. So blame Gaijin Biker. It's all his fault...

No problem, Mike. In fact, your comments were quite mild in comparison to those found on true flame-war sites, but they stood out in comparison to the mellowness of the Apostropher scene.

More from Thomas' dissent:

...it is appropriate to respond to the Court’s resolution of the merits of petitioner’s claims because its opinion openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity” of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered.

So he was arguing for deference to the executive, just not at that particular point.

Mike2: I should clarify my comments about the "mellow" scene here. While you'll see commenters making hostile or snarky remarks about public figures like Thomas, such as calling him "a fucking clown", we're generally nice 'n' friendly to each other. Except when M/tch is calling me a tool.

Also, please note that I make no claim to be the official arbiter of Apostropher's comment standards; I'm just describing what I've noticed in the time I've been reading and commenting here.

I still have yet to see any serious argument that one Justice's three year hitch [...]

Of course not. Because nobody is arguing that Stevens has some special insight. Just that Thomas has nothing in his background that gives him the ability to sagely discern the "realities of warfare" either, and particularly not to be able to look down his nose and point them out to others.

As for the tone here, I don't have any sort of comment policy, aside from don't hawk bargain pharmaceuticals or porn. However, we are a fairly mellow bunch that tends toward civility and friendly needling. If you rummage through the archives, you'll find that politics probably make up fewer than half of the posts and that the politics are actually pretty centrist. Deep opposition to the war, indeed, but that's not a left/right divide, except in the minds of the folks on either extreme.

As for "homely," my mother says I'm very handsome, so there.

Which reminds, me, can I interest anyone in my new line of high-priced luxury pharmaceuticals?

See, now that's fine, because we're a classy joint and have standards to uphold. Do you have any of these? I had to ban the guy that was selling those cut-rate ones made from Hershey Kisses wrappers.

..."nobody is arguing that Stevens has some special insight. Just that Thomas has nothing in his background that gives him the ability to sagely discern the "realities of warfare" either, and particularly not to be able to look down his nose and point them out to others..."

This is the part of this whole kerfluffle that baffles me. You've just acknowledged that Stevens has no special insight into "the realities of war" as a consequence of his tour of duty. Logically it follows that Thomas then has no special lack of insight as a consequence of his not having had a tour of duty. He's simply saying "look, you lot have got it wrong," and in a 45 page opinion tries to explain the basis for his dissent. This is, in fact, the very essence of the dissenting opinion, and a feature of every non-unanimous decision.

In spite of this though, I read comments (from persons who make no claim of actually having read it) that describe the opinion as "calling out" Stevens, "attacking" the plurality, "complaining" about unfamiliarity, and now "look[ing] down his nose." This sort of thing simply reeks of prejudice, and is hardly the stuff of open and honest dialogue.

Yeah sure, in theory I can dig the whole mellow scene; it just seems that (on this thread at any rate) the word "mellow" here is code for "stupid."

(Just my two cents worth of friendly needling...)

I don't think you've really gotten the hang of it yet. But points awarded for trying.

I think the bottom line here is that even though Thomas was correct, he opened himself up to this line of superficial attack by phrasing his remarks the way he did to someone who served in the military. It just doesn't look right.

He might have said something like, "Even though one of its members has actual military experience, the plurality ignores fundamental realities of warfare that are obvious even to civilians like myself." Or something like that.

Judicious (no pun intended) self-deprecation can be a quite effective rhetorical weapon.

You were doing fine until the "stupid" part, Mike2.

Wait, actually, I don't need quotation marks for that.

(Now that is friendly needling.)

Now we'll all join hands and sing.

I was just in the middle of writing a long rebuttal but GB basically summed it up. You're still arguing about what Thomas meant to say, and about the dissent as a whole, while we're talking about the actual wording of that particular statement. We're talking about a textual gaffe, not his underlying reasoning.

"No special insight"≠"unfamiliarity", and taking someone's words at face value is not prejudice. If you're writing a disdainful dissent, you should make sure your wording doesn't make you look dumb. Calling an experienced colleague unfamiliar with something you have no claim to familiarity with is just sloppy.

I think the bottom line here is that even though Thomas was correct, he opened himself up to this line of superficial attack by phrasing his remarks the way he did to someone who served in the military. It just doesn't look right.

This is exactly it (well, aside from the 'correct' bit. I think Thomas's substantive point was wrong, but there's nothing offensive about his making the substantive point). I've been mulling a long post on this, and I've been too busy to write it: what it boils down to is that the 'chickenhawk' jibe (when it's used in a way I can support) is an essentially responsive one.

I perceive a lot of people on the right making a habitual rhetorical insinuation that advocating the most belligerent or ruthless possible policy is in some way related to military knowledge, or competence, or personal courage -- that the difference between those advocating belligerence and those not doing so is that the former are soldierly, and militarily realistic, and brave. That's what I saw Thomas doing -- it wasn't enough to say that the plurality was wrong on the law, he had to make the 'completely irrelevant' jibe that the reason for the plurality's error was their unfamiliarity with the realities of warfare.

That's rhetoric, not substance, and so the proper reply is a rhetorical rather than a substantive one: a civilian looks like an asshole lecturing a war veteran about the realities of warfare. It has nothing to do with who's right or wrong -- it's about making the point that you can't claim that everyone who knows anything about war thinks the most ruthless possible policy is either necessary or well advised.

Actually, I suppose that works as the post I was thinking of. I'm going to put it up at Unfogged.

Too often, it's used in a way I presume you cannot support: as a knee-jerk insult directed at anyone who supports a war he's (and less often, she's) not fighting in.

Sure. In that context it's silly. Not much worse than silly, but I wouldn't use it like that, and I'd agree that anyone doing so was being unjust.

Too often, it's used in a way I presume you cannot support: as a knee-jerk insult directed at anyone who supports a war he's (and less often, she's) not fighting in.

I certainly don't support its use in that way.

But while we're on the subject, I presume you cannot support the frequent charge that someone who doesn't support the way this administration has responded to 9/11 (by, for example, invading Iraq) must be unpatriotic, naïve, wimpy, or some combination of the three.

"...he had to make the 'completely irrelevant' jibe that the reason for the plurality's error was their unfamiliarity with the realities of warfare..."

"...a civilian looks like an asshole lecturing a war veteran about the realities of warfare... "

This phrase seems to be the sticking point in this whole affray, and as such invites the question:

Are the "realities of warfare" entirely the same in 2006 as they were in 1945(*)?

(*1945 being the last year of Justice Stevens' service; regrettably I don't have the service records of Justices Souter and Ginsburg.)