I followed Larry Solum to Eugene Volokh who is sitting in at Instapuddle. There he takes issue with Maureen Dowd and her anger at Clarence Thomas' self righteous opposition to affirmative action. In a sense I responded to this a few days ago and today Bill Keller makes a similar point.

Volokh: "...if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn't a proper basis for constitutional decision making."

This is true, but is only relevant in response to someone prone to oversimplification. The point, contra MoDo, is not that Thomas owes his allegiance to one side or another, but that self awareness dictates that he should be willing to admit the irony of his situation. Similarly in Volokh's references to gender discrimination cases in the 70's, the justices' awareness of their own history was precisely the point. Thomas, as Keller says: "would be mortified to have himself held up as evidence in the case for diversity." Would Justice's Brennan and Marshall be similarly mortified to be told that they had enjoyed the benefits of gender bias?

..."Thomas’ critics aren't really faulting him for opposing policies from which he himself benefited. They're really faulting him for opposing policies that they like."
No. The serious ones are criticizing him for the appearance of hypocrisy. The issues are complex and his arguments should reflect it.


I have a proposal: No one doing graduate level work in economics should be allowed a degree without taking a number of advanced courses in literature. This NY Times article on the new study of irrationality in economic decision making is absolutely absurd. That the behavioral psychologists should be referred to as "hardcore empiricists," as so to separate them from "rationalist" economists is something I just can not fathom, though I know the division is taken for granted. One semester of Shakespeare should cure the economists of their silliness.