Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 29, 2006
LAW: Justice Thomas on Oral Argument

Very interesting piece here on a Q&A with Clarence Thomas, via Bashman. I met Justice Thomas in 1992, and accounts of his public appearances are consistent with my impression: he was witty and engaging and very unpretentious, but the wounds he carries from his confirmation hearings are never far from the surface.

But this may be the first article I have seen in which he explicitly defends why he doesn't say much at oral argument, and implicitly criticizes some of his colleagues, most notably Justice Scalia:

Thomas said he disapproves of what he calls increasingly aggressive questioning of attorneys by appellate judges from the bench. Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who "actually allowed me to make my argument. They listened to what I had to say. ... Nor did I ever feel I had not been heard or did not have my day in court."

But Thomas said that kind of old-fashioned court etiquette has virtually disappeared. "It seems fashionable now for judges to be more aggressive in oral arguments," he said. "I find it unnecessary and distracting. ... I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. ... I think the judges need to listen if the arguments are to be effective."

On his own work habits: "Never do anything unnecessarily to decide a case," he said. "Do not ask questions that are unnecessary."

That means Thomas is more likely to sit and listen to an oral argument than attempt to question the lawyers who present them.

"My job is not to rape your argument, not to make your argument, not to hurt your feelings," the associate justice said.

Read the whole thing, including unexpected praise for the ACLU.

Posted by Baseball Crank at 11:36 PM | Law 2006-08 | Comments (4) | TrackBack (0)
Comments

Yeah, I agree with this...judges definitely have "robe-itis"...happened to me a lot when I was in Houston NOT representing insurance companies...judges were extremely disrespectful to lawyers, in particular guys like Scott Brister. He was appointed by Rick Perry to the Texas Supreme Court, which ended any thought I had of supporting Rick Perry on that day. Brister was known for "mocking" non-insurance defense lawyers, even in cases where the lawyers were getting along.

It is not unlike umpires that want to get in player's faces...seems to me that they fail to realize they are supposed to not be a player in the game, they are supposed to umpire it. But the cameras combined with power are tough for them to pass up, unfortunately...

Posted by: AstroFan at October 30, 2006 8:40 AM

Strong words from Thomas. I remember saying this during the Miers-Roberts-Alito brouhahas last fall, but I respect Thomas as a jurist.

To the degree that all judges have ideology and opinions, Thomas and I certainly don't agree. But I think he honestly tries to reason his way to the "correct" outcome. I can't say the same for all 8 of his brethren & sistren, whether left- or right- leaning.

Posted by: Mike at October 30, 2006 9:05 AM

What I agree with about Thomas is the lack of need for oral arguments to discuss EVERYTHING. If it's already been written down, and (I hope) the Justices know what those issues are, the oral arguments should be simply to bring up points that perhaps were lost in writing, not to belabor points already there.

What I dislike about Thomas, is what I dislike about Scalia, which is what I also disliked about Douglas and Brennan. Why bother bringing something up to any of the far right or left justices. You already know how they will vote. If a case is brought before the Court, it should be because it involves something that is either new, or subject to confusing previous judgments. So it should never be that cut or dried.

Posted by: Daryl Rosenblatt at October 30, 2006 9:30 AM

Interesting interview with Thomas. I think the process is well-served by oral argument and the Court can really get to the bottom of things if the judges ask the right questions. Having argued dozens of appeals, I do sometimes detect a sadistic streak in the judicial questioning. Why do they do this?

As for ACLU, it's not surprising that Thomas would praise them. They are one of the few advocacy groups that will represent people they dislike politically. That gives them a tremendous amount of credibility. I also suspect that their briefs are intellectually honest and their case and record citations match up.

Posted by: steve at October 30, 2006 10:02 AM
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