February 21, 2014

"By refusing to acknowledge the advocates or his fellow-Justices, [Clarence] Thomas treats them all with disrespect."

"It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court. Imagine, for a moment, if all nine Justices behaved as Thomas does on the bench. The public would rightly, and immediately, lose all faith in the Supreme Court. Instead, the public has lost, and should lose, any confidence it might have in Clarence Thomas."

Writes The New Yorker's Jeffrey Toobin, who probably never had any confidence in Thomas to lose. What Toobin calls "ludicrous," "petulan[t]," and "demeaning" behavior is simply Thomas's silence at oral argument. Toobin invites us to imagine all 9 Justices adopting Thomas's approach to oral argument and dictates how we'd all feel: We'd rightly, and immediately, lose all faith in the Supreme Court.

But that's absurd. If all 9 Justices decided they didn't want to ask questions of the lawyers in person, that would be the end of oral argument. The argument would be complete in its written form, in the briefs. What would be outrageous about that? Personally, I love the theater of oral argument, and I enjoy the early clues about what the Justices are thinking and what they might write in their opinions. And Justices showing up in public and speaking might give us some sense of security that these life-tenured characters are at least somewhat alive and lucid. But switching to putting it all in writing could be a perfectly rational and acceptable approach to accomplishing the work of an appellate court.

I assume Toobin knows the reason why Thomas says he refrains from speaking:
[H]e has said that he is silent out of simple courtesy. He has also complained about the difficulty of getting a word in edgewise on an exceptionally voluble bench.

“We look like ‘Family Feud,’ ” he told a bar group in 2000 in Richmond, Va.
If Toobin's hypothetical were to begin to come true — that is, if the other 8 Justices were to radically cut back on their continual talking, overtalking, and interrupting — we'd get a chance to find out whether Thomas's own explanation is what Toobin must think it is: a lie.

Let me make one last observation. Toobin all but calls Thomas lazy: "Thomas is simply not doing his job." If the politics were reversed — and Thomas were liberal and Toobin conservative — I doubt if Toobin would have exposed himself to the risk of accusations of racism.

ADDED: More here

75 comments:

Carl Pham said...

There's got to be some aphorism about fisking a fool by now. Surely an aptly ascerbic tweet from a modern Mencken?

Michael K said...

Toobin's complaints about Thomas resemble Reid's comments. Thomas responded appropriately .

“Give me a break. I mean this is part of the — you know, the black guy is supposed to follow somebody white. We know that,” Thomas told me. “Come on, we know the story behind that. I mean there’s no need to sort of tip-toe around that … The story line was that, well I couldn’t be doing this myself, he must be doing it for me because I’m black. That’s obvious. Again, I go back to my point. Who were the real bigots? It’s obvious.”

But why no uproar, I asked. Why no outcry?

“People feel free to say about me what they think about lots of blacks,” Thomas told me. “Because of the heterodox views I’ve taken, they have license to say it about me with impunity.”

Or put another way: In Harry Reid’s worldview, Clarence Thomas isn’t the “right” kind of black guy.


That's enough to explain it all.

Mike Roark said...

The left has carefully indoctrinated our culture with the fear of being called a racist. It is one of their most powerful weapons. We allow it to happen by buying in to misguided guilt. This is one reason I like the Jews. They don't buy into the guilt and fight back.

Michelle Dulak Thomson said...

Seriously, I always assumed this was just Thomas' style, possibly tempered by having grown up speaking Gullah. Since when is the job of any Justice to offer lively, journalist-accesible dialogue in oral argument?

rhhardin said...

Thomas is the whitest guy on the court.

Chef Mojo said...

Well played, Althouse. Well played.

Wonderful Crack chum. Because racism. Looking forward to Crack passing down the racism verdict ion this one

Birkel said...

Toobin's comments put the lie to the charge of racism. We don't imagine it's racism on Toobin's part because we know it's political disagreement.

And the next time a conservative is accused of racism they should concede disagreement based on other-than-race. Conservatives must push back more diligently against the absurdity of Squirrel! Racism! War on Women! Squirrel!

Because Liberals have given themselves air superiority and Conservatives must reclaim the battlefield of ideas. (Caution: metaphors!)

Fen said...

Something about the name Toobin is still on my radar. Checked his wiki - amoung many dishonorable actions there's this:

In March 2009, Politico revealed that Toobin was a member of the private discussion group JournoList

Fuck Toobin. If the walls ever come down, he's one of the Winston Smiths we'll be shoving in front of a firing squad.

(or shoving through a plate glass window, since that seems to be JouroList's preferred violence)

duntov283 said...

Toobin in the white journalist is calling the black man Thomas lazy? This is a thing only the liberals get away with.

traditionalguy said...

Who made the petulant and creepy Toobin judge of anything.

I can't remember anything he has ever said that was near the truth about issues he touts that he to bringing legal reasoning to.

YoungHegelian said...

Perhaps Mr. Toobin would be pleased if Clarence graced us with a song & a dance?

Oh, you can just pull one out of the cotton fields, and they can all do oral argumentation....

Chef Mojo said...

Careful, everyone! Althouse is playing a game of "Gotcha!"

She'll draw you into accusing Toobin of racism, and then...

SNAP!

It's a trap!

Lucien said...

Egad! A "dead" panel. Who knew such a thing could exist?

Revenant said...

f the politics were reversed — and Thomas were liberal and Toobin conservative — I doubt if Toobin would have exposed himself to the risk of accusations of racism.

Please, Toobin's a Democrat in good standing. He could call Thomas a shiftless watermelon-eatin' porch monkey and not risk accusations of racism.

Henry said...

It takes tremendous strength to live a life in writing.

Chef Mojo said...

Fen has the right of it at 6:19.

Concentrate on Toobin being the morally vacuous douchebag he is. Leave racism out of it.

That's Crack's job. Or not. Don't know how he feels about Justice Thomas, to be fair.

Mutaman said...

On pausing, staring, and thinking about Thomas staring at the ceiling,, I believe he is thinking about the words "good night". but the letters "NIG" are set apart by a fold in the fabric of his robes.

RecChief said...

"he all but called Thomas lazy."

Toobin must be racist.

Where is Crack when there is evidence of actual racism?

chuck said...

Thomas were liberal

He'd probably be considered black. As it is, he is one of those white blacks.

Matt said...

Toobin is wrong. Oral argument on appellate matters is not an "indispensable part of the legal system." Many courts, including federal courts of appeals, allow the parties to waive oral argument. Amazingly, we have not yet descended into tyranny. In fact, waiving oral argument easily saves clients (remember them? They're the ones who have actual disputes in the courts) tens of thousands of dollars. Luckily, judges and justices at all levels are literate. Also, luckily, if you think a court of appeals is wrong, you can always request a rehearing or seek review by a higher court so your briefs can be read by other (literate) justices.

Mike said...

Whoa! Another liberal journalist pens an ignorant screed knocking Clarence Thomas?! Heaven to Betsy, I haven't seen that in at least a few days.

Bill, Republic of Texas said...

Where are all the libs who were just lecturing republicans they must rend their clothes and pull their hair when some conservative said something stupid?

I want to see some serious condemnation of this racist. where's the twit from Obama?

Hmmm. Nothing but silence? I guess Rand Paul is the better man because he called out one of his own.

rcocean said...

Toobin is the problem with today's politics. Who is Toobin? Why do we care what Toobin thinks? Who is Toobin to pass judgement and insult Justice Thomas?

Did Toobin get elected? Did he win a competition? Is he a great Lawyer of renown? No. He's just some asshole that some Left-wing editor/producer likes. So, we have to respond.

rcocean said...

Give PeeWee Herman a NYT column and suddenly we'd all be discussing the latest thoughts/opinions of PeeWee.

EMD said...

Give PeeWee Herman a NYT column and suddenly we'd all be discussing the latest thoughts/opinions of PeeWee.

At least it would be interesting.

NotquiteunBuckley said...

Very different than Toobin's August 29th 2011 piece in the New Yorker worrying Justice Thomas might derail Obamacare.

This must be making up for the fact he gave some credit to Thomas all the while having a tone of low respect for the man.

From now on less credit and more venom. Sells.

Big Mike said...

My take is that Toobin starts with the assumption that Thomas is just a dumb n****r and then looks for confirmation of his hypothesis.

Brando said...

As if Toobin would be happy with whatever Thomas might say during oral argument....

The left just plain doesn't like the guy because he's a living rejection of all they stand for--namely the idea that blacks ought to be on the left and any who aren't are stupid or corrupt. So Thomas must be made stupid or corrupt, and held to standards they'd never demand of Thurgood Marshall, or Charlie Rangel. He's too great a threat to them.

rcocean said...

Scalia talks a lot, so that must mean Toobin really likes Scalia - A LOT.

I mean, am I right?

Birches said...

They hate Thomas because he never speaks, but hate Scalia because during oral arguments he treats the lawyers as beneath him.

Damned if you do, damned if you don't.

Birches said...

The real problem is that Thomas's influence has grown a lot since he was the junior justice and that kind of thinking must be stopped.

JimB said...

As a retired lawyer, I have lost respect for the SCOTUS long ago. It has acted more as a political body rather than a law court. The recent Affordable Care Act decision was just one of many.

The Supreme Court is a failed institution.

Birches said...

The comments on that Toobin piece are enlightening, especially because it appears the New Yorker uses it's own commenting system, which means those comments aren't coming from Disqus mobies.

Freeman Hunt said...

The white man demands that the black man entertain him?

Patrick O said...

I think Thomas should pick two random pages from the briefs and have the lawyer explain how those pages are connected. That'd really spark discussion!

Bud Norton said...

No mystery here. Thomas is a self-described introvert. Extroverts think by talking; introverts think by thinking. Thomas listens carefully, waits for the extroverts on the bench to stop flapping their gums and showing off how smart they are, and then collects his thoughts.

Freeman Hunt said...

"Why don't that lazy black man put on a show for me? You git to performin' now, ya hear!"

And this in The New Yorker!

Freeman Hunt said...

Somebody send Toobin a white suit, a cane, and a hankie.

If he doesn't have them already.

Ambrose said...

Oral argument is dumb. Write the brief, let the judges read it and if they have any questions, they should send the lawyers an email. And then they can decide. What is the point of allowing 30 minutes of theater decide crucial issues.

Tyrone Slothrop said...

EMD said...

Give PeeWee Herman a NYT column and suddenly we'd all be discussing the latest thoughts/opinions of PeeWee.

At least it would be interesting.


OK, I confess. I follow Pee-wee on Facebook. He's hilarious.

Sam L. said...

Toobster, another NuYawk progressive who just hates one black man in particular who just gets under his skin and resides rent-free in his brain. Probably in the compartment next to Sarah Palin.

readering said...

To be fairer to Toobin, he himself summarized the reasons Thomas has given for not asking questions. It's not like there are any long silences without him.

It would be interesting to know if Thomas asked questions when he sat on the 3-judge court of appeals. I assume he did, at least when he was likely the judge writing the opinion. Less reason to ask questions when you are only going to be writing 10 per cent of the opinions.

I have always viewed Thomas as engaging in his own silent protest against the other justices for being way too garrulous. I don't see it as being lazy. It's not that hard to think up questions. And he has to discuss the case and cast his vote soon after in conference.

It could be though that the longer his silence persists the harder it becomes to break the silence, since he has to know that any questions he asks at this point will be subjected to crazy levels of analysis.

Beldar said...

Non-lawyers routinely overestimate the importance of appellate oral arguments. The accurate and conventional wisdom — imparted to me when I was a law clerk for a Fifth Circuit judge — was threefold: (1) It's very rare for oral argument to change or even much affect the disposition of a case. (2) Many judges primarily use oral argument as an opportunity to solicit concessions and admissions that they can use to fortify and immunize the rulings those judges have already decided upon, based on the issues and the briefing. And (3) it is therefore much easier, and more common, for a litigant to lose an appeal based upon something that happens at oral argument than it is to win an appeal that would otherwise have been lost.

The entire job of the Supreme Court is to render written judgments and opinions. Justice Thomas has a long and distinguished history of doing exactly that. Even at its best (which is rare), oral argument is only of secondary importance to the process: It's the written briefs that establish the issues and effectively channel the appeal, because you can't raise arguments for the first time at oral argument. If you don't make an argument in your brief, you've waived it. And even those courts that allow generous oral argument time limits only permit the litigants time to hit a few high points; one hopes perhaps to emphasize one's best arguments, but those arguments have to have been made persuasively in the written briefs.

So even if Justice Thomas didn't bother to attend oral arguments, it would be entirely possible for him to nevertheless be "doing his job." But he does attend. He simply doesn't participate in the verbal Q&A — that's it, that's the entire sum and substance of Toobin's "point," such as it is. Toobin hasn't, and can't, point to any single example of a case whose results were even remotely affected by Justice Thomas' preference of listening instead of talking. Talk about your "nothing-burgers" of an argument! Toobin should be glad he's not having to undergo oral argument questioning himself on this article! Certainly Prof. Althouse has demonstrated how a fair and knowledgeable, but skeptical, judge could rapidly embarrass Toobin about all of this.

Toobin has obviously missed out on the wisdom of Proverbs 17:28:

Even a fool is thought wise if he keeps silent, and discerning if he holds his tongue.

And by his own ignorant and partisan comments about Justice Thomas, Toobin proved true the similar observation of Abraham Lincoln:

Better to remain silent and be thought a fool than to speak and to remove all doubt.

Beldar said...

To state clearly, too, something implied in my comment a moment ago:

Very nice work on this post, Professor Althouse. Bravo.

Freeman Hunt said...

"A-leanin' back in a fancy chair like he's somethin'! You tell that boy to sit up straight and look them white men in they eyes."

Is that what his editor had to craft into what is now the piece we read here?

EDH said...

Hasn't Toobin been on FoxNews at least a couple times in recent days decrying Obama's abuse of presidential powers in pretty strident terms?

Maybe this is what Toobin believes to be "fair and balanced" pounding on the conservative black guy that'll also keep him in the good graces of the left?

Bob Ellison said...

Jeffrey Toobin is a ass.

EDH said...

Woops, I was wrong. It was Jonathan Turley.

Liberal Attorney Jonathan Turley: Expansion of Obama's Presidential Powers Threatens Liberty

You know, they all look alike. ;-)

Douglas said...

1) Judge Lumbard must be rolling in his grave. Toobin clerked for Judge Lumbard on the Second Circuit and Judge Lumbard in those days very rarely asked questions of counsel at oral argument. Somehow, though, I don't think Toobin thinks there was anything amiss about that, Judge Lumbard being a pillar of the New York establishment.

2) Toobin surely knows that Justice Marshall, too, hardly ever asked questions at oral argument. Somehow, though, that's not a problem for Toobin.

Why am I lead to the conclusion that Toobin's only problem with Justice Thomas is that Justice Thomas is conservative? The only other conclusion is that Toobin is simply stupid and uninformed and as tempting as it would be to come to that conclusion, I don't think it's entirely true. Toobin lives in a bubble and is unreflective, but he is not stupid.

Donald Gooch said...

Oral argument is Kabuki Theater. Everyone knows it. I guess Jeffery Toobin didn't get the memo. I never thought anyone would trump Greenhouse in shilling for the Left under the auspicies of Court commentary...but Toobin is getting there.

Archilochus said...

Thomas is just a throwback to the Supreme Court's quieter era (c. 1970-1985). Paul Clement credits his old boss Scalia for encouraging the present repartee. And like Professor Althouse, Nino loves the theatrics of the tribunal.

SteveR said...

Here's the story. Thomas is an idiot and unqualified to be on SCOTUS. His written record is what Scalia wrote for him. Saying anything in oral arguments would expose him. Toobin wants that proof though, because he's not happy just toeing the line. /sarc

David said...

Disrespect? Jeff Toobin is lecturing on disrespect?

How about demanding that if your impregnated lover does not get an abortion, you won't pay a cent for support of the kid?

Now that's disrespect.

Fen said...

I like following the oral arguments, esp when a lawyer steps in it and gets mauled.

Also for the philosphical points and questions that follow.

But its never been useful to see which way the court is going to rule. I'm 0-4 re SCOTUS predictions.

elkh1 said...

Toobin is a racist. Thomas refuses to stay in the liberal plantation and behaves the way liberals expect a black man to behave.

Thomas said in his autobiography that he didn't speak up much because he was very conscious of his thick Southern accent and keeping quiet became a habit.

Btw, did Toobin actually describe someone we all know: someone who closed outdoor monuments, some one who took million dollars taxpayers funded vacations, someone who went to sleep when he was told a consulate was attacked, someone who partied with the rich and famous when an ambassador was murdered. Toobin's typical "ludicrous," "petulant," "demeaning" and lazy black man.

NotquiteunBuckley said...

"These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph. In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication." - Toobin August 29th 2011 New Yorker

NotquiteunBuckley said...

"The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.'" - Toobin again same article.

sean said...

I don't see why oral argument would end if no Justice asked questions. No one asks questions during the minister's sermon, but sermons haven't ended or been replaced by written expositions.

William said...

By all the standard markers Thomas has lived an honest and honorable life. The derision with which he has been treated is a scandal. Look at how Kwame Kilpatrick, Judge Hastings, Sharpe James have passed through life unscathed by negative reporting or late night comedians until the indictments are unsealed-- and even then it's minimal.

Iapetus said...

"We'd rightly, and immediately, lose all faith in the Supreme Court."

"emanations" and "penumbras" caused me to lose all faith in the Court a long time ago. JohnRobertsCare was just more of the same.

Smilin' Jack said...

[H]e has said that he is silent out of simple courtesy. He has also complained about the difficulty of getting a word in edgewise on an exceptionally voluble bench.

So...which is it?

Zeb Quinn said...

Seems to me the best strategy at oral argument is to use it to not only state your case, but also rebut your opponent's case, as they've stated it in their brief. This seems like the best shot one has at influencing votes. Tell them something new.

It also seems that the lawyer making his case really doesn't want to be interrupted and thrown off track with spurious questions, and probably believes that when that happens it detracts from the quality of the delivered argument.

Gahrie said...


So...which is it?


Why not both?

SOJO said...

Honestly, it has always worried me. I see it as a sign of incompetence. Or perhaps some kind of disability. What if Obama pulled that? What would you suspect was the real reason?

And yes, I am glad the other justices are not so burdened. Maybe it's nothing, but it is very special and precious.

Edward Lunny said...

Justice Thomas has stated his reasons for his behaviors during oral arguments. Understandable, practical, and, out here in the real world, entirely polite and normal behaviors. Too, re " Blogger Beldar said..." it becomes more understandable. Mr' Toobin should realize that the Justice's job isn't to satisfy Mr.Toobin, but ,to render an opinion and ruling based upon the law and his understanding thereof.

The Crack Emcee said...

My goodness, you guys are pathetic:

Why Clarence Thomas Can't Fight Being "Uncle Tom"

Is there any race issue you're still not on the wrong side of?

And then you wonder why anybody calls you racists,…you earn it.

Humperdink said...

"you guys"?

Please elaborate who "you guys" are. Am I? Is my spouse? My neighbors? The people in my church? The people who voted for Romney? The people who now regret they voted for Obama? All white people? Hispanics? Asians?

Help me here, I am genuinely curious.

Rusty said...


Is there any race issue you're still not on the wrong side of?



It's not our fault your stupid.

Bob R said...

Isn't there an earlier comment from Thomas that he prefers to work solely from the briefs and doesn't find the oral arguments helpful? I think that is a more fundamental reason for his silence than his other explanations (which are probably all contributing factors.)

As an aside, Thomas has a distinctive writing style. It has stayed consistent through multiple clerks. People who question Thomas' independence are ignoring the obvious evidence of his opinions. They are giving evidence of extreme confirmation bias. I'll leave it to other to decide whether this bias is a form of racism, but the bias is clear.

iowan2 said...

After reading the article and comments here, and the New Yorker, the only conclusions is Toobin is practicing the leftist protocol. Marginalizing conservative authority.
Toobin does not go after Thomas' constitutional reasoning. because, well, its supported by the written constitution. So he is forced to attack a conservative and feed the believers this weak gruel, in his assigned duties (he is a journo-lister, not bright enough to think for himself) to marginalize conservative thought.

Reading reviews by legal academics, the consensus is that Thomas' constitutional reasoning is very good and ground breaking. Even those that disagree with his conclusions can't challenge his constitutional basis for reaching them.

Phil 3:14 said...
This comment has been removed by the author.
Phil 3:14 said...

Is there any race issue you're still not on the wrong side of?

"No."

Can we move on now?

Steve Uhr said...

Oral arguments would still have a purpose if there were no questions because the lawyers could and would (and do) respond to each other.

damikesc said...

People, we need to stop feeding the troll.

It isn't amusing. It doesn't write terribly well. It is a bore.

Just ignore it.

Hyphenated American said...

Crack,the guy who complained that Jewish comedians worked together is now discussing racism. Does it make sense?