The New Yorker's Embarrassing Attack on Clarence Thomas

It’s no surprise to find the liberal pundit Jeffrey Toobin
criticizing a conservative Supreme Court justice. But would it kill
him to adopt a reality-based approach when doing so? Here’s how
Toobin sets the scene in his latest
piece for The New Yorker, where he attacks Justice
Clarence Thomas for keeping quiet during oral arguments. Toobin
writes:

Thomas…is physically transformed from his infamous
confirmation hearings, in 1991—a great deal grayer and heavier
today, at the age of sixty-five. He also projects a different kind
of silence than he did earlier in his tenure. In his first years on
the Court, Thomas would rock forward, whisper comments about the
lawyers to his neighbors Breyer and Kennedy, and generally look
like he was acknowledging where he was. These days, Thomas only
reclines; his leather chair is pitched so that he can stare at the
ceiling, which he does at length. He strokes his chin. His eyelids
look heavy. Every schoolteacher knows this look. It’s called “not
paying attention.”

This is nonsense. I’ve attended a number of oral arguments in
the past two years and I’ve always seen Thomas leaning forward,
watching the lawyers (and his colleagues), and even conferring
quite enthusiastically with both Justice Stephen Breyer (to his
right) and Justice Antonin Scalia (to his left). In fact, during
the first day of the March 2012 Obamacare oral arguments, which
centered on whether an 1867 tax law barred the legal challenge to
the health care law from going forward, I watched Thomas and Breyer
together poring over a massive book that appeared to be a volume of
the U.S. tax code. What were they up to? It’s possible Thomas was
suggesting a line of questioning for Breyer to use. After all, as
Thomas
told an audience at Harvard law school, he sometimes helps
generate Breyer’s material. “I’ll say, ‘What about this, Steve,’
and he’ll pop up and ask a question,” Thomas said. “So you can
blame some of those [Breyer questions] on me.”

Toobin is either himself guilty of not paying attention, or he
is perhaps too eager to bend the facts in order to paint his
opponents in an unflattering light.