[At the Utah State Bar’s 2010 summer convention yesterday, Thomas said], oral argument was an opportunity for attorneys to tease out their case.Here's another analogy: "I would equate trying to get the members of the court to do what you want them to do with herding gnats in a hurricane." That's especially interesting in light of the way some people imagine that Elena Kagan will somehow coax or cajole the others — or Anthony Kennedy — to go her way. Here's what Dahlia Lithwick said about that, back in May:
When he first arrived on the court, members “actually listened to lawyers,” Thomas said. “We have ceased doing that. Now it’s become a debate or seminar. I don’t find that particularly helpful. It may be entertaining, but I am not there to entertain anybody.”
“There can be some questions to clarify things, to challenge it, but you don’t need 50 questions per case,” Thomas said. “That becomes more like “Family Feud” than oral argument.”
Obama—who could announce his pick as soon as this week, and the heavy betting is on Solicitor General Elena Kagan—is looking for a diplomat who will forge consensus, build bridges, and bring together a polarized court....So the liberal Lithwick wanted more of prickly hothead. Instead, she and we got the supposedly charming Kagan, who, for some reason, is the least popular Supreme Court nominee — successful nominee — since Gallup started polling people, at the time of the Bork nomination. (Bork and Harriet Miers, unsuccessful nominees, were less popular than Kagan.) Why is that? Could it possibly be that Americans don't like the idea of a Supreme Court Justice who is best known for social skills?
[J]ust because Kagan hired several conservative scholars when she was dean at Harvard Law School doesn't mean she'll have some kind of stunning intellectual influence over the Roberts Court's conservatives....
[R]educing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision....
Perhaps President Obama shouldn't be so quick to denigrate a nominee whose greatest impact on the court will be writing passionate dissents. Once upon a time that passionate dissenter was Justice Antonin Scalia. And if the sometimes-prickly justice has proved anything in recent years, it's that decades of bitter and brilliant dissenting opinions can be more influential over the long haul than all the negotiation skills in the world.