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Clarence Thomas: no questions in 2 years

Old 02-25-08, 06:04 PM
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Clarence Thomas: no questions in 2 years

Yahoo Story

Thomas: no questions in 2 years

By MARK SHERMAN, Associated Press Writer Mon Feb 25, 12:10 PM ET

WASHINGTON - Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries.

Hardly a case goes by, including two appeals that were argued Monday, without eight justices peppering lawyers with questions. Oral arguments offer justices the chance to resolve nagging doubts about a case, probe its weaknesses or make a point to their colleagues.

Left, right and center, the justices ask and they ask and they ask. Sometimes they debate each other, leaving the lawyer at the podium helpless to jump in. "I think you're handling these questions very well," Chief Justice John Roberts quipped to a lawyer recently in the midst of one such exchange.

Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.

Monday was no different. Thomas said nothing.

He occasionally leans to his right to share a comment or a laugh with Justice Stephen Breyer. Less often, he talks to Justice Anthony Kennedy, to his immediate left.

Thomas, characteristically, declined to comment for this article. But in the course of his publicity tour for his autobiography, "My Grandfather's Son," the 59-year-old justice discussed his reticence on the bench on several occasions.

The questions may be helpful to the others, Thomas said, but not to him.

"One thing I've demonstrated often in 16 years is you can do this job without asking a single question," he told an adoring crowd at the Federalist Society, a conservative legal group.

The book tour showed that the topic comes up even among friendly audiences.

Indeed, Thomas' comment was provoked by this question: Why do your colleagues ask so many questions?

His response: "I did not plant that question. That's a fine question. When you figure out the answer, you let me know," he said.

The typical hourlong argument session can sometimes be difficult, even for a practiced questioner.

"I really would like to hear what those reasons are without interruption from all of my colleagues," Justice John Paul Stevens said at an argument in the fall.

The newest justice, Samuel Alito, has said he initially found it hard to get a question in sometimes amid all the former law professors on the court.

The last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous court eventually broadened the ability of death-penalty defendants to blame someone else for the crime.

In the past, the Georgia-born Thomas has chalked up his silence to his struggle as a teenager to master standard English after having grown up speaking Geechee, a kind of dialect that thrived among former slaves on the islands off the South Carolina, Georgia and Florida coasts.

He also has said he will ask a pertinent question if his colleagues don't but sees no need to engage in the back-and-forth just to hear his own voice.

Lately, he has focused on the latter reason.

"If I think a question will help me decide a case, then I'll ask that question," he told C-SPAN's Brian Lamb in October. "Otherwise, it's not worth asking because it detracts from my job."

He talked in that same interview about descriptions of him as the silent justice.

"I can't really say that it's unfair to say that I'm silent in that context. I would like to, though, be referred to as the 'listening justice,' you know," Thomas said. "I still believe that, if somebody else is talking, somebody should be listening."

The following month, however, at an event sponsored by Hillsdale College in Michigan, Thomas was more combative when asked about oral arguments.

Suppose surgeons started discussing the merits of removing a gallbladder while in the operating room, Thomas said, as quoted by U.S. News & World Report. "You really didn't go in there to have a debate about gallbladder surgery," he said. Similarly, "we are there to decide cases, not to engage in seminar discussions."
Interesting article. I'm really not a Supreme Court follower, so I don't know how out of the ordinary this is. Most of the Justices I'm sure like to hear themselves talk, but I would think there would be at least SOME questions one might ask that would help a Justice to make a decision one way or another. What do you think? Are all the questions they ask just fluff?
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Old 02-25-08, 06:07 PM
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The man's just shy.
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Old 02-25-08, 06:11 PM
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Obviously he's mastered that whole sleep with your eyes open thing..
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Old 02-25-08, 06:23 PM
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Maybe the people around him are asking all the questions he would have any way.
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Old 02-25-08, 06:24 PM
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Most (but by no means all) appellate judges (not just on the Supreme Court but on lower federal appeals courts and on state courts) ask questions -- there's no doubt that Justice Thomas's silence is the exception. But I don't think there's anything wrong with not asking questions. The issues are thoroughly briefed in written submissions that lay out the relevant legal issues, there are amicus briefs, clerks within chambers can do independent research. There's a lot of information available to Justice Thomas (or anyone else in his position), and if he feels that questions during oral argument are not particularly useful, it's good that he doesn't waste everyone's time with them.
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Old 02-25-08, 08:21 PM
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He explains the reason for his 'silence' in his book - I've only read excerpts of it.

He explained it also on an extended interview with CSPAN - 2 hours I believe.
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Old 02-25-08, 08:37 PM
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so he is a bad judge because he doesn't like to make fools of the lawyers arguing the cases?
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Old 02-25-08, 08:40 PM
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I don't think anyone's arguing that he's a bad judge in this thread.
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Old 02-25-08, 11:07 PM
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He seems to write some of the best opinions I have read. I could see where one could get to the point where all the questions have been asked and answered when a case has been appealed so much that it actually reaches the Supreme Court. He sure isn't silent outside the SCOTUS when there is a camera around.
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Old 02-26-08, 07:31 AM
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Yawn. This is old news, and doesn't speak to his skills as a jurist whatsoever.

Oral arguments are basically a show, which is one reason why I think this push for cameras in the SCt is a joke. The Justices almost always have their minds made up going into an oral argument and generally use questions to bolster their side of the argument.

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Old 02-26-08, 07:49 AM
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That's what I gathered from his book and his interview - he thinks oral questions are merely a show.

I don't think (at least he believes) that he is the best liked justice on the Court.

The other criticism of him is that he doesn't appear at 'functions.'

He said in the interview that Justice Breyer was the only justice who had made more 'public' appearances that he had.
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Old 02-26-08, 08:22 AM
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Originally Posted by NCMojo
I don't think anyone's arguing that he's a bad judge in this thread.

then what is the point of this article that also mentions that all the other justices seem to ask a lot of questions and debate each other during oral arguments except for him.

each case that SCOTUS decides comes with hundreds of pages of briefs and decisions from lower courts that need to be read making oral arguments useless
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Old 02-26-08, 08:52 AM
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Originally Posted by Red Dog
Yawn. This is old news, and doesn't speak to his skills as a jurist whatsoever.
I don't think that's the point. I think it talks to his preparedness, and exactly what he is basing his opinions on.

Frankly, I wonder if he actually knows the facts and law of a case before hearing it at oral arguments, and whether he's really even paying attention at all.
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Old 02-26-08, 09:02 AM
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Originally Posted by DVD Josh
Frankly, I wonder if he actually knows the facts and law of a case before hearing it at oral arguments, and whether he's really even paying attention at all.

You must be kidding me.
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Old 02-26-08, 09:08 AM
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Thomas may not be my favorite justice, but at least he's consistent in his interpretation of The Constitution.

You can't say that about all of them.

Obviously DVD Josh doesn't particularly like his interpretation of The Constitution.
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Old 02-26-08, 10:24 AM
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Originally Posted by DVD Josh
I don't think that's the point. I think it talks to his preparedness, and exactly what he is basing his opinions on.

Frankly, I wonder if he actually knows the facts and law of a case before hearing it at oral arguments, and whether he's really even paying attention at all.
If one actually wondered this, you could simply read his opinions on the cases to check it out, couldn't you? That seems like a far better way to evaluate him as a judge than if he asks questions that have been asked many times before doesn't it?
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Old 02-27-08, 08:45 AM
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I appreciate Professor Kerr's response to this lame 'article' on volokh.com.

So Is It Just Me, or is the Associated Press's article, "Justice Thomas Silent Through More Than Two Years of Supreme Court Arguments," really rather lame? The "story" here, as reported by Mark Sherman, is that Justice Thomas hasn't asked a question at oral argument in two years. That's right, two years. So the old story that the press has reported on often is that Justice Thomas almost never speaks at oral arguments. The new story is that the silence has reached a two-year mark. What's next another story at the three-year mark? Or maybe a story when Thomas next asks a question?

What makes these sorts of stories unfortunate, I think, is that they tend to misrepresent the significance of Thomas's silence. Most readers assume that the Justices use oral argument to learn about the lawyers' arguments. If you make that assumption, then not asking questions suggests a lack of interest in learning about the Court's work, which is obviously pretty bad. In her commentary on the AP story, Dahlia Lithwick helps this misimpression along by suggesting that Justice Thomas not only doesn't ask questions, but acts like he's not interesting in being there.

But my sense is that much of the questioning at the Supreme Court is about persuasion by the Justices, not of them. Supreme Court arguments can be kind of like jury trials in which the Justices with strong views act as the lawyers; the lawyers before the Court act as the witnesses; and the swing vote Justices play the role of the jury. In these cases, the Justices with strong views often ask questions like a trial lawyer might examine a witness. Friendly witnesses tend to get softballs and open questions designed to elicit favorable testimony, while hostile witnesses often get leading questions designed to expose the weakness of the opponent's case.

Viewed from this perspective, oral argument can become sort of like a chaotic combined direct and cross examination, with much of the questioning designed to persuade the "jury" of the swing votes formerly O'Connor, now Kennedy. It doesn't happen this way in every case, I should emphasize, but the dynamic is often present. (The questions of the swing-vote Justices don't fit into this framework, as they are usually focused on figuring out their own votes rather than trying to use questions to persuade other Justices.)

If you have this understanding of oral argument, the meaning of Thomas's silence is pretty different than what the public might think from reading the news reports about it. Justice Thomas has strong views of his own, and yet he is not interested in "playing the game" at oral argument of trying to use questions to persuade swing votes. Maybe that's a good thing, and maybe it's a bad thing. But it's quite different from suggesting a lack of interest in the Court's work.
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Old 02-27-08, 09:07 AM
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Is there a rule that a justice even has to be in attendance when oral arguments are presented, or is it simply custom?

Are there absentees (like congressional committee hearings) when oral arguments are presented?
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Old 02-27-08, 09:19 AM
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I don't believe so - Rehnquist missed a lot of arguments in his final term.
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Old 02-27-08, 12:06 PM
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Originally Posted by kvrdave
He seems to write some of the best opinions I have read.
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Old 02-27-08, 06:00 PM
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I'm just wondering what the response to this thread would have been if David Souter had been silent for the last two years.
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Old 02-27-08, 06:08 PM
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Originally Posted by Jason
I'm just wondering what the response to this thread would have been if David Souter had been silent for the last two years.
If if and buts were candy and nuts.....
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Old 02-27-08, 06:47 PM
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Originally Posted by Jason
I'm just wondering what the response to this thread would have been if David Souter had been silent for the last two years.
I wonder if the media would report such a record? The media has a love affair reporting on Justice Thomas - in a negative fashion.

Believe me - my reaction would be the same. I can simply read Souter's opinions and punch enough holes in those.

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Old 03-02-08, 07:14 AM
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http://news.yahoo.com/s/ap/20080302/...breyer_what_if


Breyer, court master of the 'what if?'

By MARK SHERMAN, Associated Press Writer

WASHINGTON - The nine justices in black robes file into the Supreme Court consumed with thoughts about the great legal issues of the day. Only one of them is likely to ask questions involving raccoons, an unruly son, pet oysters or even the dreaded "tomato children."

When Justice Stephen Breyer leans toward his microphone at the end of the bench, lawyers can expect to be asked almost anything. The 69-year-old Breyer is the court's most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and occasionally bizarre.

"The last time I was up there arguing, it was easier for him to wrap his mind around bicycle pedals," said Carter Phillips. The experienced Supreme Court lawyer recalled an exchange with Breyer during arguments over patents for computer chips.

"He kept shifting the focus over to bicycle pedals and I was trying to live with him in that world," Phillips said. "I was taking the bicycle pedals and putting them on my Stair Master."

The hypothetical is a mainstay of Supreme Court arguments. At their best, such questions help justices address what is bothering them after they have pored over hundreds of pages of dense, often dry legal briefs.

"The point is to try to focus on a matter that is worrying me," Breyer said in an interview with The Associated Press. "Sometimes it's easier to do that with an example."

One recent case involved punishment for repeat criminals under a difficult-to-decipher provision of federal law. The image Breyer called to mind was one to which any parent or sibling could relate.

"Suppose with your own children: 'I told you half an hour ago not to interrupt your sister when she is doing her homework. This is the second time you've done it.' Wouldn't you, with your own child I would with mine think that the second time he did it was worse behavior than the first time?" Breyer said. "I just told him not to."

The point was succinct and sweet. "It's a familiar example, your honor," conceded Charles Rothfeld, the lawyer for the recidivist whose case was before the court.
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I thought this might be of some interest to those that seem to be rather critical of Justice Thomas.
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Old 03-02-08, 10:59 AM
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I have no problem with Justice Breyer's approach to questioning or to Justice Thomas's. In either case, the Justices should ask the questions that better help them decide the case. For Justice Thomas, obviously questions don't help him as a general rule. For Justice Breyer, questions that project the facts of the case onto more mundane analogies help him figure out how the case should be decided. There's nothing wrong with either approach.
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