February 29, 2016

"For first time in 10 years, Justice Clarence Thomas asks questions during an argument."

"The content of the Thomas inquiry was of less interest than it having happened at all," writes Robert Barnes in WaPo. The question was just:
“Can you give me — this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” He then went on to ask a number of follow-up questions....
The constitutional right in question is the right to bear arms.

ADDED: In the NYT, Adam Liptak connects the new vocalization of Justice Thomas to the loss of Justice Scalia (who talked a lot and whose black-draped chair is right next to Thomas's):
It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity.
Somehow liberated? As if Scalia's excessive talking blotted out Thomas. If we're speculating, we should also speculate that Thomas feels infused with the spirit of his departed colleague. A less mystical version of that is that Scalia's absence at oral argument leaves a big, obvious gap and Thomas is expressing great respect by stepping in to fill the vacated niche.

69 comments:

Lem said...

He is using the time that would have gone to Scalia. What a pal.

Michael K said...

Thomas used to let Scalia do it. I suspect this will be his pattern now.

eric said...

Simply put, we are about to lose our 2nd amendment rights.

Seems hard to believe, but all we need is one more justice to die in his sleep and that's that.

Limited blogger said...

I don't have a gun. But the bad guys don't know that.

Kansas City said...

Seems like smart questions showing the extreme nature of the law. I suspect he could not resist showing that to everyone after the argument had ignored it.

By the way, the racist view that Thomas is not smart is patently false. Look at his writing. I had the pleasure of meeting him years ago and, no doubt, he is smart. Also, just google any interview of him and judge for yourself.

When I did meet him, he said something with which I strongly disagree. He said it was a good thing for persons to know how Supreme Court Justices feel on particular issues. I think he want so far as to say it was a good thing to know how justices would rule on issues. I hate that perspective. I much prefer not knowing how judges will rule and, in fact, I see that as an important part of a being a good judge. While Justice Kennedy's reasoning in many cases could be reasonably questioned, I would prefer to have nine Kennedy's on the court than the four automatic liberal votes and the four (now three)automatic conservative votes (even though I most often agree with the conservatives). It is hard to see if happening, but I would for a president try to drag the country to non-partisan Supreme Court appointments.

Kansas City said...

By the way, I greatly doubt that Thomas will be a very active participant in future arguments. I heard him say that he prefers to allow the lawyers to make their points than take up the lawyer's time with a lot of questions. I disagree with that as well, but it always has sounded like a principled position. Lord knows that guys like Scalia and Breyer talk largely to hear themselves and put on a show.

MaxedOutMama said...

Well, if Scalia isn't there to ask a question Thomas feels should be asked, why not? He never said he was against questions, just that he didn't think the questions should crowd out the prepared argument, and sometimes they sort of do.

I always liked Thomas for his position on this topic.

Birkel said...

Because Adam Liptak imagines Justice Thomas was somehow kept quiet by Justice Scalia?

Racist New Yorkers just cannot imagine anything but a submissive, subservient black man.

What is wrong with New Yorkers?

Kansas City said...

I suppose I should have said the conservative justices are almost automatic votes. Roberts is not and, even Thomas and Alito (and formerly Scalia) would surprise once in a while. Liberals are pretty close to totally automatic on important issues.

Bob Boyd said...

So what is the answer to his question?

Bay Area Guy said...

This is more leftwing nonsense. The NYTimes despises Thomas, not because he asks too few questions at oral argument, but because he employs a strict interpretation of the Constitution.

I distinctly remember an interview where some brave NPR type asked Thomas why he asked so few questions at oral argument -- he gave a sensible, thoughtful response that by oral argument, much of the preliminary draft opinions have already been prepared and circulated, based on the extensive written briefing, so there's no real new ground to go over. You can't raise new arguments at oral hearing, either. Duh. He also added that, out of courtesy, he preferred to listen to the attorney at the podium, and not interrupt him/her.

Ann Althouse said...

"By the way, I greatly doubt that Thomas will be a very active participant in future arguments. I heard him say that he prefers to allow the lawyers to make their points than take up the lawyer's time with a lot of questions. I disagree with that as well, but it always has sounded like a principled position."

Yes, but that isn't going to happen. The interruptions and questions will flow just as heavily. He can't have his way with that. What's changed with Scalia's death is the balance of the kind of questions. I think there's niche that was occupied by Scalia and it was completely filled. No need to fight for it. But the absence now must feel unbalanced.

Birkel said...

And Kansas City comes along to misrepresent Scalia. Well played.

I guess the Eighth Amendment jurisprudence of Scalia escaped your attention. Funny that you call him predictable when I can predict the stupidity of Leftists so easily.

Ann Althouse said...

And Thomas knows the questions Scalia would have asked. It has to hurt to know what those questions are and that he's not here to ask them. Asking them is a way of honoring the man.

n.n said...

It's a relay race. Clarence picks up where Scalia left off.

Birkel said...

The 11:58 of Kansas City addresses my concerns, in part.

Now about the Liberals being 100% predictable?

Michael said...

Lipton looks on Justice Thomas as a jungle bunny. The disrespect is stunning.

BDNYC said...

It is socially acceptable for liberals to say almost anything about Clarence Thomas. He is an outlet for their racism. This has been true for 25 years.

traditionalguy said...

Whatever Clarenc Thomas does, it will be deemed wrong. He escaped the high tech lynching and he will never be accepted by jealous men on both sides. He took a woman's job. He took a Jew's job. He took a Catholic's job. He took a liberal's job,

Clarence has always understood that and just did his work?

Sammy Finkelman said...

It does look like he is stepping in to fill Scalia's place, in a way. Especially this close to his death.

But you notice, Thomas waited until the lawyer had finished his argument. Then he asked maybe what Scalia would have asked.

Rob said...

And he asked pretty good questions. BTW, note that Thomas asked his questions after the Assistant SG said, "If there are no further questions," so he wasn't interrupting her argument, which was his stated concern about questioning in the past.

David said...

"A less mystical version of that is that Scalia's absence at oral argument leaves a big, obvious gap and Thomas is expressing great respect by stepping in to fill the vacated niche."

That would require offering respect to Thomas, which is against NYT policy.

Jim Nicholson said...

Basically, the people who've complained for years that Clarence Thomas never asked questions during oral argument are now pissed off that he's actually asked a question during oral argument.

They also think he doesn't "count" as a black justice. They are evil racists. We shouldn't engage them. We should treat them like child molesters. We should shun them, and we should pass laws that remove them from polite society.

Kate said...

Thomas can't take a Catholic's job. He is Catholic.

Sebastian said...

"Asking them is a way of honoring the man." Yes. Came across as a little tribute.

jpk said...

So the interesting thing is, Thomas is far from silent elsewhere:

"Thomas may be well known for silence on the bench, but he is actually a frequent public speaker, if on his own terms. He appears regularly at law schools around the South, as well as in states covered by the Eighth Circuit Court of Appeals, mostly in the northern Midwest. (Each Justice represents one or two Circuits, and Thomas long supervised the Eighth, though he no longer does.) Thomas rarely uses a prepared text, and often simply takes questions from students for an hour or more." http://www.newyorker.com/magazine/2011/08/29/partners-jeffrey-toobin

He's only silent in his day job, it turns out.

holdfast said...

Scalia wasn't just one vote - he was a lot more than that. Thomas and Alito are really going to have to step up now.

HoodlumDoodlum said...

It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments, somehow liberated

Liberated? As in freed? Like a slave might be freed? Wow, what an outrageously racist thing to say about a distinguished black man. I'm super-sure Liptak will face consequences for that statement.

FullMoon said...

AA says ... If we're speculating, we should also speculate that Thomas feels infused with the spirit of his departed colleague. A less mystical version of that is that Scalia's absence at oral argument leaves a big, obvious gap and Thomas is expressing great respect by stepping in to fill the vacated niche.

I hope this is true.

TosaGuy said...

The commentary over at WAPO shows how vile and nasty the left has become.

TosaGuy said...

And the questionee didn't answer the question...just some deflecting talking point.

Real American said...

leftists sure are racist.

Birkel said...

Democrats have been racist as long as it has been a party.

From Andrew Jackson to the KKK to Woodrow Wilson to eugenicists to FDR to LBJ and on to the present treatment of Nikki Haley, Tim Scott, Miami Love, Justice Thomas, Condi Rice and Ayaan Hirsi Ali.

Democrats cannot contain their heartfelt racism.

David Begley said...

If Thomas was liberal his lack of oral argument questioning would be praised to the heavens as wise.

EDH said...

I prefer to think of it as Ensign Pulver picking-up where Mr. Roberts (Scalia) left off.

Char Char Binks said...

Jimmy crack corn an I don' care, de massa gone away!

Gabriel said...

Thomas and Scalia were frequently on the same page and probably interested in the answers to mostly the same set of questions.

And do we know that they never collaborated beforehand on what questions Scalia would ask?

Rob said...

It's not merely Liptak's speculation that Justice Thomas felt liberated. He heard Thomas singing this to himself.

Unknown said...

Kansas City, comment on knowing how a Justice feels; I would dearly like to see where a Justice "feels" one way but rules the other because the law. In order to do that, we need to know what the Justice feels.

I am under the impression that feelings are more important than the words in the law, and would love to see that impression countered.

Steve Uhr said...

People go to prison for misdemeanor violations. Isn't the loss of liberty the suspension of a constitutional right?

Rob said...

@Steve Uhr
No, because the loss of liberty is pursuant to due process of law.

Rusty said...

eric said...
Simply put, we are about to lose our 2nd amendment rights.

They can't deny an inherent right. All they can do us attempt to regulate it. In the end there are a lot more guns out there than there is agents to enforce a bad law.

n.n said...

It's all in how you frame your statement.

For example, after they disarmed the babies, they progressed to cannibalizing the fresh corpse-men for their profitable parts. The Second Amendment is a constitutional guarantee for the People and our Posterity to keep and bear Arms. Don't be a victim.

Rusty said...

traditionalguy said...
Whatever Clarenc Thomas does, it will be deemed wrong. He escaped the high tech lynching and he will never be accepted by jealous men on both sides. He took a woman's job. He took a Jew's job. He took a Catholic's job. He took a liberal's job,

Clarence has always understood that and just did his work?


He has proven himself to be an honorable man. The left has to look the word up in a dictionary and they still won't understand what it is to be a honorable man.

Steve Uhr said...

I don't think the Court is going to hold there is no personal right to bear arms. That was the old reading of the 2nd Amendment, and it changed in part because liberals like Lawrence Tribe reversed their views and concluded there is a personal constitutional right to possess firearms. Not simply a left-right issue.

Chris said...

"I prefer to think of it as Ensign Pulver picking-up where Mr. Roberts (Scalia) left off."

I had the exact same thought. With Cagney portraying the NYTimes.

Paul Snively said...

Feeling like "Damn, a community I belong to just lost a powerful, articulate voice. Every time I thought to speak, I felt he said what I would have said, but much better. Now he's gone. I guess I'll have to do" sucks, even if your community is in extremely rarified air. Maybe especially if your community is in extremely rarified air.

Birkel said...

Steve Uhr:

The meaning did not change. When the Constitution was adopted a privateer could own the most powerful weapons of the day: ships with many cannons. Nobody disputes this fact.

Liberals tried for many years to deny civil rights. That attempt continues apace. Quit lying about your fellow Liberals.

Birches said...

Slightly off topic, but wondering. IF SCOTUS is hearing oral arguments now,is there any real rush to name a new justice? Even if a confirmation hearing was held, wouldn't the new justice miss most of the cases on the docket? Does SCOTUS hear arguments in the fall too?

David Begley said...

Rusty

That high tech lynching of my law school classmate's husband was the tipping point for me in switching parties.

Birkel said...

Birches:

The Chief has a lot more power right now than he normally would. The Chief can hold over cases that are tied, if he likes. If cases are tied, he can use this power as he sees fit, I believe. However, he can just allow the decision of the Appeals Court to stand.

I would happily be corrected if I am wrong about that. Anybody with a greater depth of understanding available to help?

Dan Hossley said...

Post hoc, ergo propter hoc. That's as deep as it gets at the NYT.

Birches said...

Birkel,

I didn't know that. That's very interesting.

The reason I was wondering was because one of my fb friends shared an Obama post on how a Supreme Court Justice has always been confirmed within 125 days of their nomination. The interesting thing (and I pointed it out) was that their little infographic only showed confirmed justices.

But then I started thinking that even if the Republicans in the Senate confirmed someone 125 days from today, it would make no difference if that person had been confirmed in May or next year in February, since the oral arguments would have already happened for this year.

Skeptical Voter said...

You go Justice Thomas! You have been shamefully mistreated in the pasdt.

Steve Uhr said...

Birkel -- not sure what you think I lied about. I just wanted to point out that several liberal constitutional scholars agree with you that the second amendment guarantees a personal right to bear arms. ie, the language about militias doesn't qualify the right. That's all.

Tom said...

The GOP has named an awful lot of stuff after Reagan, as well as it should. But after Thomas' death, a lot of things need to be named after him. It matters for history to know this man who suffered much indignity with grace and intelligence.

Gahrie said...

I bet a movie about the life of Justice Thomas's would get some Oscar nominations for Black actors....

Gahrie said...

The reason I was wondering was because one of my fb friends shared an Obama post on how a Supreme Court Justice has always been confirmed within 125 days of their nomination. The interesting thing (and I pointed it out) was that their little infographic only showed confirmed justices.

11 nominations were completely ignored, and never acted on in any way.

http://gahrie.blogspot.com/2007/07/us-supreme-court-nominations.html

Bob Boyd said...

Gahrie said...
"I bet a movie about the life of Justice Thomas's would get some Oscar nominations for Black actors...."

This probably isn't exactly what you had in mind, but HBO is releasing one April 16th.

"Starring Kerry Washington, Wendell Pierce and Greg Kinnear, Confirmation takes a look behind the curtain of Washington politics, depicting the explosive 1991 Clarence Thomas Supreme Court nomination hearings where Anita Hill accused him of sexual harassment. The hearings brought the country to a standstill and became a pivotal moment in American culture forever changing how we perceive and experience workplace equality and gender politics. Rick Famuyiwa directs a script written by Susannah Grant."


http://www.slashfilm.com/confirmation-trailer/

Birkel said...
This comment has been removed by the author.
J. Farmer said...

Given that Justice Thomas would not mind eliminating oral arguments all together, I don't get this continued obsession with his approach. I think he correctly sees questioning during oral arguments as little more than grandstanding on behalf of the justices. Justice Thomas is probably my second favorite justice after Roberts.

Birkel said...

Again, with less anger:

Steve Uhr:

The lie is about Democrats attempting to deny a civil right guaranteed in the U.S. Constitution as merely a matter of interpretation. Chalking it up to interpretation is bull shit, top-to-bottom.

Democrats tried to deny self-defense to blacks, for example. The interpretative excuse is a stupid fig leaf Leftists pretend covers their fully exposed asses.

There was never any argument otherwise beyond political preference. And that is exactly what the Constitution was meant to avoid. It was a lie. Propagating a lie is itself a lie.

Steve Uhr said...
This comment has been removed by the author.
Gusty Winds said...

All these years Thomas was just Teller to Scalia's Penn.

Birkel said...

Now that's funny, Gusty Winds.

You win!!

Paul said...

When the going gets tough... the tough get going. So Justice Thomas is now rising to the occasion. Good for him!

Douglas said...

IMHO, there are only two good reasons for a judge on a multi-judge panel to ask questions. One is if the judge is undecided, and wants to push the attorneys to answer the tough questions that the judge is struggling with. The other is to make a point that might persuade another undecided judge on the panel. Anything beyond that is just showboating.

jaydub said...

I am not a lawyer (my parents were married when I was born, hence didn't qualify for law school admission,) and I cannot comment on the precise legal basis for Thomas' opinions, but I have thought him to be an exceptional man since hearing him speak at a public event and reading his autobiography. That book, "My Grandfather's Son," is a profound testament to the promise of America for those who have the strength and courage (and guidance) to rise above humble circumstance. Although my path was not nearly as difficult as his, nor my comparative professional success even worth mentioning, I was also born into poverty, but with the help and direction of my mother managed to get further in life than one has a right to expect. His description of how his grandfather guided him through tough love, but always with love, reflected my own early experience and likely colors the respect I have for him. Not being schooled in the law (again, thanks Mom and Dad!), I have to look at the character of the judge and the logic of his opinions to evaluate a justice's worth, and to me Thomas seems to be worth a great deal both to the court and to the country. While I can understand others disagreeing with Thomas' opinions or philosophy, I have always felt antipathy for those who belittle Thomas and cannot or will not appreciate the greatness of a man whose perservence and intellect allowed him to overcome his birth circumstance and rise to the pennacle of his profession. There seems to be a lot of those little minds commenting on the Post article, and maybe a few commenting here. That's unfortunate for them.

Danno said...

A less mystical version of that is that Scalia's absence at oral argument leaves a big, obvious gap and Thomas is expressing great respect by stepping in to fill the vacated niche.

I agree with Ann's conclusion above about Thomas and only Alito could otherwise fill in for Scalia. John Roberts would likely only ask focus group approved questions.