February 23, 2014

What would Jeffrey Toobin say about a liberal Justice who declined to ask questions during oral argument?

Toobin, as we've been discussing, here and here, savaged Clarence Thomas for his keeping quiet during oral argument, as if that's an outrageous failure to do the Supreme Court Justice's job.

But what about Harry Blackmun, whom liberals revered?
Throughout his career, Blackmun was not among the Court’s more prolific questioners. In fact, late in life, he noted with some disapproval the number of questions asked by Ruth Bader Ginsburg and Antonin Scalia, among others, during oral argument. “One time in a couple of related cases that were argued in tandem during a morning for two hours,” he said, “I just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel…the result was often that counsel never could get his case argued…it was a little disturbing at time.” When Blackmun did ask questions, moreover, they tended to be relatively random in content.
I suspect Toobin would say that there's an immense difference between an occasional random question and absolutely no questions at all for years on end, but if there's a difference, which way does it cut?

Occasional random questions are not the rigorous grilling that Toobin sees as central to the development of the argument. They seem to reflect the Justice's belief that questions ought to be asked, bereft of vigorous commitment to the task.

The prolonged silence of Justice Thomas establishes his commitment to the belief that he should not ask questions (at least not until the other Justices back off from their current practice of consuming most of the advocate's time with a continual barrage of questions coming from all directions). If Thomas believed that it was a necessary part of his job to ask a question now and then and Blackmun's approach is acceptable, he could easily have a question to ask now and then.

Toobin besmirches Thomas as lazy, but the laziest Justice in the world could have his law clerks hand him a couple questions to ask at every oral argument. It would be so easy for Thomas to push back disrespectful critics like Toobin. Clearly, he's chosen not to appease them.

ADDED: Here's a description — from Woodward and Armstrong's "The Brethren" — of how the liberal hero William O. Douglas behaved during the oral argument in Roe v. Wade:

As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. “I need considerable research” on the jurisdiction question, he wrote. “Would one of you take it on?”
And here's how liberal hero Thurgood Marshall acted:
When, [Marshall] inquired, does an unborn fetus come to have full constitutional rights?

“At any time, Mr. Justice; we make no distinction …” [answered Texas Assistant Attorney General Jay Floyd]. “There is life from the moment of impregnation.”

“And do you have any scientific data to support that?” Marshall asked.

“Well, we begin, Mr. Justice, in our brief, with the development of the human embryo, carrying it through to the development of the fetus, from about seven to nine days after conception,” Floyd answered.

“Well, what about six days?” Marshall asked, eliciting a mild chuckle from the audience.

“We don’t know,” Floyd acknowledged.

“But this statute goes all the way back to one hour,” Marshall said, clearly enjoying himself.

“I don’t—Mr. Justice, it—there are unanswerable questions in this field, I—” Floyd, flustered, was interrupted by laughter around him.

“I appreciate it, I appreciate it,” Marshall chanted, leaning back in exaggerated satisfaction with Floyd’s befuddlement.

“This is an artless statement on our part,” Floyd offered.

“I withdraw the question,” Marshall said, trailing off. Laughter nearly drowned out Floyd as he continued.
Everybody laughed and laughed. A good time was had by all.

43 comments:

The Crack Emcee said...

I'm of the mind Thomas is like Stanley on The Office, just there to do his job and not prone to joining white folks' foolishness, any more than he has to.

furious_a said...

It is because Justice Thomas is a conservative black man, or a Catholic. Or because he was nominated by a Republican President. Or married a white woman. Or something.

The Crack Emcee said...

As long as he's black - lib or not - he's a target.

furious_a said...

It would be so easy for Thomas to push back disrespectful critics like Toobin. Clearly, he's chosen not to appease them.

Clearly, he's ceded the battlespace to them.

Gary Rosen said...

Wrong question. s/b "What would Jeffrey Toobin say about a white justice who declined to as questions during oral argument". Probably not "lazy", even if the justice were conservative.

Gary Rosen said...

Wrong question. s/b "What would Jeffrey Toobin say about a white justice who declined to as questions during oral argument". Probably not "lazy", even if the justice were conservative.

Hagar said...

Can a titmouse "savage?"?

SteveR said...

Blackmum ruled properly so there's that

Ann Althouse said...

"Clearly, he's ceded the battlespace to them."

Appeasement is the only way to fight?!

cubanbob said...

Who is Toobin and why would anyone care what he thinks especially Judge Thomas? Thomas is on the court for life, he has absolute job security he has zero interest in caring what the hysterical left media has to say. Frankly how many probative questions are asked during the oral arguments that aren't addressed in the briefs? Especially in briefs produced by Supreme Court expirienced litigators?

Freeman Hunt said...

Thomas wins by default. They can attack him unfairly all day, but he's still on the Supreme Court while they're writing disposable columns everyone will forget in a few years time.

Hagar said...

My understanding is that Thurgood Marshall's reputation was that of being one hell of a lawyer, but not much of a justice.

And the sample quoted by AA seems to bear that out.

Chase said...

What Freeman said.Everything Freeman said.

Kansas City said...

Ann makes a good point that Justice Thomas does not typically suggest. With all his frequently talking colleagues on the court, there is more motivation for him to not interrupt and take up time with his questions.

Justice Thomas has explained that the reason he does not ask questions is because he wants to provide counsel with the opportunity to make their arguments without him interrupting them. My guess is that the explanation is only part of the reason, and there must be some personal reasons for it -- although not that Justice Thomas is not smart enough to participate. I have met him and listened to him. He is plenty smart. I would be curious about whether Justice Thomas similarly refrained from asking questions/making comments during his brief tenure on the court of appeals.

Regardless of Justice Thomas' reason, I think it reflects a misunderstanding of the appellate argument process/function. The lawyers already have had their say in the briefs. It is an opportunity for the lawyers to make sure further points and emphasis p...ost briefs, but more importantly, it is an opportunity for judges to test arguments and secure more information through questions. Also, lawyers prefer judges who actively participate in oral argument (assuming they are fair and do not go overboard). It is an oppotunity to address what at least one judge considers to be important and, if the questioning judge is against you, it provides an opportunity for you to debate the judge and, in the process, persuade the other judges that you are correct. The sad truth is that with the politicalization of the Supreme Court, in virtually all cases, all justices or perhaps all but Justice Kennedy and occasionally Chief Justice Robers have their mind made up prior to oral argement. Justice Thomas likely is as guilty of this as the far left justices, and it may be part of the reason he sees no need to particpate in oral argument.

The Cracker Emcee said...

As cubanbob notes, I doubt Thomas gives a shit what Toobin thinks. It's a mark of confident maturity, especially among men, to decide if or when you're going to respond to hecklers. Most aren't worth the candle. For someone like Thomas I imagine there's just a handful of people he feels he needs to explain himself to.

furious_a said...

"lazy" = "code word".

ddh said...

Freeman Hunt, Toobin's article will disappear from the collective consciousness within weeks, not years. Otherwise, spot on.

furious_a said...

...while they're writing disposable columns everyone will forget in a few years time.

...except the NYT and WAPO will gestate "analysis pieces" based on articles like Toobin's and then afterwards gestate further pieces where "some say" this-or-that about the "controversial" Justice Thomas. And that will get picked up by the 1/2-hour nightly newscast repeater stations and NPR deep-dive pieces and broadcast further.

So that, true, the moderates and LIVs will forget the disposable pieces and their forgettable writers...but still remember that "some said" Justice Thomas was "controversial". And *that*, instead of his jurisprudence, will be his legacy.

jr565 said...

Toobins criticism only has merit if Thomas is the only judge who sits silently and doesn't ask questions. But if that is the norm for a lot of justices throughout our history, and the anomaly is the justice who asks a lot of questions then Toobin either doesn't know his history, or is expressing his opinion about how judges should act that may not be accurate.

Freeman Hunt said...

Perhaps there is a local White Privilege Conference that Toobin could attend.

cyrus83 said...

Perhaps Toobin is just outraged that for someone like him whose living is spewing out opinion columns, Thomas gives him little or no material to work with other than legal opinions he'd rather ignore.

Paul Mac said...

Can Al Sharpton, the NAACP, and similar be expected to show their support for Justice Thomas by remaining silent about Toobin's attack?

Simon said...

I happened to listen to the argument in Jurek v. Texas yesterday, and it would be incomprehensible to those who fall for Toobin's schtick. Amsterdam speaks virtually uninterrupted for a full twelve minutes before the first real question. Oral argument has changed. It wasn't ever thus.

tds said...

Liberal thought has just given birth to a new racial slur: bench-monkey

Zach said...

The Posner thread illustrates the dangers of the other extreme. How are the Little Sisters of the Poor supposed to believe that Posner judged the "signing the form is a minimal intrusion" argument fairly. It's his own argument! It's his own pet theory that he argued in front of himself, and he found himself wonderfully receptive.

There's no lawyer more brilliant than a judge arguing before himself.

n.n said...
This comment has been removed by the author.
n.n said...

Some judges will enter the field, while others will stand back and observe the outcome. Each will have a different vantage to form their opinion. We need judges with tactical and strategic perspectives.

Saint Croix said...

Interesting to compare this to law school classrooms. The class asshole is almost never the top grade in the class. (I know because I've been the class asshole, I wear that T-shirt with pride). Our #1 and #2 students never asked questions in class. In fact they would not speak at all if the professors did not call on them.

Saint Croix said...

Just think of all those silent Althousians who never say anything! Jeffrey Toobin just insulted you, you lazy shiftless non-participants.

Saint Croix said...

Unless you're white, of course.

Mark O said...

I doubt Thomas, J., thinks he is in any battle or that the idiot Toobin is a legitimate challenger.

Thomas is one of nine in a Constitutional branch of government. Toobin is a man who impregnates women and attempts to avoid child support---all while married.

gk1 said...

Who is Jeffrey Toobin and why would anyone notice his transparently partisan hit piece? It will be soon forgotten like all the other agitprop that is spewed toward conservative justices. Can't they give their hate a rest?

Chuck said...

The Crack Emcee said...
"As long as he's black - lib or not - he's a target."

Of all of the crap recently written by The Crack Emcee, this one seems to be one of the most obviously laughable contentions.

Crack, name a black judge who has been "targeted" by the mainstream media. Any one. They are mostly liberal; and so they are mostly lauded. Detroit's Wayne State Univesity has created a modern academic shrine to Sixth Circuit Judge Damon J. Keith. Justice Marshall was worshipped. LBJ kicked Justice Tom Clark off the Supreme Court with a promise to make Clark's son Ramsey the U.S. Attorney General; just to make room for Marshall.

I can't think of a judge who's ever been unfairly targeted because he or she is black. I can think of many judges and judicial nominees, however, who have been targeted because they are conservatives. Justice Clarence Thomas; Judge Janice Rogers Brown; Miguel Estrada. Etc., etc.

Kirk Parker said...

"As long as he's black - lib or not - he's a target."

What utter foolishness. Thomas is not a target for me--except, I suppose, for my appreciation.

Then again, that appreciation has nothing to do with his ancestry, and everything to do with my liking and agreeing with his general approach.

Carl Pham said...

It's the kind of profoundly stupid position only an intellectual, certain by his pedigree that he is incapable of gross idiocy, could take.

Consider: would you want a Supreme Court justice whose vote could be readily swayed by what is said in an hour of talk? What the hell?! Don't you want someone who pores over the case for hours, reads the briefings (over which the advocates have pored hours) with a microscope and fine calipers, whose carefully thought-out conclusions reached over weeks are more or less proof against a random clumsy comment or clever analogy?

Hopefully, not. And I doubt Toobin, stupid as he is, really wants that either. What he really wants (aside from the black man to slot himself into the niche New York Times society has decreed for him), is entertainment, which is what SCOTUS oral argument provides. So Mr. Bojangles won't dance for you? Better send him back to the field, Jeff, where he can learn some manners.

harrogate said...

"The sad truth is that with the politicalization of the Supreme Court, in virtually all cases, all justices or perhaps all but Justice Kennedy and occasionally Chief Justice Robers have their mind made up prior to oral argement. Justice Thomas likely is as guilty of this as the far left justices, and it may be part of the reason he sees no need to particpate in oral argument."

Exactly.

From Inwood said...

Zach

Having clerked on an appellate court, I would say that your comment is a gem.

BTW, one of the reasons I slog through the comments on Prof A's threads is that there's always someone who has something more thoughtful to say or who expresses something better than moi, which, some might say would not be hard, but, nevertheless....

Unfortunately I also comment instead of just reading :-)

From Inwood said...

C Pham

Your comment is also a gem. I believe that an appellate judge is not a tabula rasa.

I don't know what oral arguments add to anything other than let some lawyers & judges preen. Or entertain as you would have it.

BTW, some, obviously unaware, reporters seem interested when a "liberal" judge asks "conservative" questions & vice versa, but I suspect the questioning judge has been asked those questions in conference by one of his/her fellow judges & wants to see if the lawyer has an answer that was better than the questioner's.

(If I had time, I would reconstruct that rather long sentence, but so be it.)

cubanbob said...

As cubanbob notes, I doubt Thomas gives a shit what Toobin thinks. It's a mark of confident maturity, especially among men, to decide if or when you're going to respond to hecklers. Most aren't worth the candle. For someone like Thomas I imagine there's just a handful of people he feels he needs to explain himself to."

Spot on Crack. That's why Iike and respect him so much. He just doesn't give a crap about pleasing this one or that one. All he cares about is doing his job which is not to make policy but whether or not a law good or bad is constitutional.

EDH said...

“I appreciate it, I appreciate it,” Marshall chanted, leaning back in exaggerated satisfaction with Floyd’s befuddlement....

“I withdraw the question,” Marshall said, trailing off. Laughter nearly drowned out Floyd as he continued.


More black babies killed by abortion than born in New York City

In 2012, there were more black babies killed by abortion (31,328) in New York City than were born there (24,758), and the black children killed comprised 42.4% of the total number of abortions in the Big Apple, according to a report by the New York City Department of Health and Mental Hygiene.

SteveR said...

Justice Thomas likely is as guilty of this as the far left justices, and it may be part of the reason he sees no need to particpate in oral argument.

"Likely" and "may be" sealed with harrogate's "exactly"

That's some good analyses.

Douglas said...

I clerked on the Court in the early 80s and my recollection is that Blackmun was verbose compared to Marshall, who said practically nothing.

Saint Croix said...

The sad truth is that with the politicalization of the Supreme Court, in virtually all cases, all justices or perhaps all but Justice Kennedy and occasionally Chief Justice Roberts have their mind made up prior to oral argument.

You might be confusing "politicalization" with "having a jurisprudence."

Hugo Black, for instance, had a jurisprudence. He didn't have to watch Debbie Does Dallas. He already knew what the free speech clause meant, so that was an easy case for him.

Somebody like Potter Stewart, on the other hand, had no jurisprudence. "I know it when I see it," he said, describing pornography. That's utterly lawless. We have no idea what the rule is! He refuses to tell us.

This anti-jurisprudence is not only lawless (unable to describe or delineate the law so the rest of us know what it is) but it is also authoritarian. Potter Stewart is giving himself absolute authority to rule over all art and speech. You have to run your art by Potter Stewart, and he will tell you if it's acceptable.

That is not a rule of law at all. Instead it is a nation of men, of rulers without rules, of authoritarians who refuse to say what the law is so they can accumulate more and more power. Potter Stewart is following no law. He's just punishing people whose art pisses him off, and he's doing so on an ad hoc basis.

I find it incredibly bizarre to characterize Anthony Kennedy--by far the most political Justice on the Court today--as the least political. The man has no jurisprudence. And that's intentional.