Toobin Embarrasses Himself on Thomas


One of the most absurd arguments used often to criticize Clarence Thomas is that he very rarely asks a question during oral argument, unlike his more loquacious colleagues. Jeffrey Toobin goes further than most, calling Thomas’ silence “disgraceful” and “embarrassing.”

Still, there is more to the job of Supreme Court Justice than writing opinions. The Court’s arguments are not televised (though they should be), but they are public. They are, in fact, the public’s only windows onto the Justices’ thought processes, and they offer the litigants and their lawyers their only chance to look these arbiters in the eye and make their case. There’s a reason the phrase “your day in court” resonates. It is an indispensable part of the legal system.

But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.

By refusing to acknowledge the advocates or his fellow-Justices, 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.

Oh stop it. Just stop it. Yes, let’s imagine if all nine justices behaved as Thomas does on the bench. The attorneys, who only get 30 minutes, might actually get to present their case without interruption. As it is, they often don’t get the first sentence out before someone, usually Scalia, is badgering them like a high school debater during cross-examination. Thomas is right about this. By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.

This is very much like what Republicans do with President Obama. There are so many very good reasons to criticize Clarence Thomas but far too many liberals ignore the actual substantive issues for these shallow, irrelevant arguments. They repeat tired old cliches about him being “Scalia’s lapdog” when the reality is quite the opposite (Thomas has influenced Scalia considerably and pulled him further to the right throughout his time on the bench). Thomas is the most reactionary justice on the court by a mile, probably the most reactionary justice we’ve had on the court in the last century. Criticize that. It actually matters.

Comments

  1. cjcolucci says

    People probably make so much of Thomas’s silence because they don’t know what to make of it. That may be why Toobin is so over the top about it, because he has no clue what’s going on and why, and it’s frustrating.
    It’s true that some justices overdo the oral argument questioning, and if Thomas were simply a good bit more quiet than most it wouldn’t mean anything. But with all the complicated cases the Court hears, it is simply inconceivable that he wouldn’t have any questions at all and could say absolutely nothing for years on end. That is just so weird from the standpoint of normal human interaction that one can’t help feeling that something is off. But I have no idea what it is.

  2. says

    Clarabelle Thomas’ failure to speak might be explained by the fact that he’s not sitting right next to Scalia, so Tony Ducks has a hard time getting his hand up the clown’s ass.

    Regardless, if only he’d stop being an stupid, hypocritical asshole, instead of just talking like one…

  3. eric says

    By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici. They already know how they’re going to vote and nothing said at oral argument is likely to change that.

    For me, more reading often results in more questions, not less. And at least in science, Q&A can be an important part of research presentations. Getting no questions at all from an audience is not generally a sign of universal acceptance or a job well done, it’s a sign of boredom and a desire (by the audience) to move on to the next presentation.

    So, my opinion is very similar to cjcolucci’s: I’d be fine if the justices as a group let the lawyers speak more, but if a justice never has a question, I see that as a sign they may not be doing their job.

  4. Chiroptera says

    They already know how they’re going to vote and nothing said at oral argument is likely to change that.

    Surely that can’t be right, at least not in all cases. Otherwise, why have oral arguments at all? I would hope that the purpose of oral arguments isn’t just to give the justices a chance of badgering the side they don’t like.

  5. pacal says

    I can’t take Clarence Thomas in any sense seriously. Isn’t he the person who says that the 1st Amendment doesn’t apply to states!? A sentiment so – well stupid that it should provoke contempt and laughter.

  6. A Masked Avenger says

    Isn’t he the person who says that the 1st Amendment doesn’t apply to states!?

    I dunno–but originally, the Constitution was regarded as a document defining the powers and limitations of the federal government only. It did not define rights, authorities or limitations of states or individuals, except insofar as that was a byproduct of a power or limitation of the federal government.

    The first amendment, specifically, forbade the federal government from abridging free speech or freedom of religion. It did not forbid the states from doing those things, and in fact several states had official religions until long after the Constitution was adopted. The last one to be disestablished was the Congregational church in Connecticut, in 1818. In any case, in Barron v. Baltimore in 1833, the supreme court ruled unanimously that the bill of rights applies to the federal government, not to the states.

    The fourteenth amendment is interpreted as imposing the bill of rights on the states. It’s debated whether incorporation was intended by the writers of the 14th amendment, but it has been used that way in SC rulings. This is a 20th century phenomenon: the first incorporation decision (that I know of) was in 1916.

    It’s pretty crazy to flatly state that the first amendment doesn’t apply to the states, in light of specific precedent that it does. However, as a historical statement about the Constitution, it’s accurate enough.

  7. regexp says

    a justice never has a question, I see that as a sign they may not be doing their job.

    Where exactly is it stated that a justice must ask a question during oral arguments?

  8. matty1 says

    Ed

    They repeat tired old cliches about him being “Scalia’s lapdog” when the reality is quite the opposite (Thomas has influenced Scalia considerably and pulled him further to the right throughout his time on the bench).

    Democommie @4

    Clarabelle Thomas’ failure to speak might be explained by the fact that he’s not sitting right next to Scalia, so Tony Ducks has a hard time getting his hand up the clown’s ass.

    I know this is risking starting a fight but it might be interesting if you addressed why you think Ed’s claim is wrong rather than simply repeating the very argument he criticised.

  9. Michael Heath says

    cjcolucci writes:

    People probably make so much of Thomas’s silence because they don’t know what to make of it. That may be why Toobin is so over the top about it, because he has no clue what’s going on and why, and it’s frustrating.

    This is exactly wrong. Mr. Toobin’s argument is within the context of watching J. Thomas not ask questions at SCOTUS hearings, where Toobin is present in the courtroom.

    I don’t agree with Toobin either, but his argument doesn’t come from ignorance but instead direct observation. Toobin is failing by criticizing J. Thomas for a defective process that isn’t Thomas’ fault.

    I happen to think the court needs to re-vamp their process. They should hear each side’s un-interuppted arguments. The justices then have a certain amount of allotted time to ask questions, with an option to yield back the CJ, and then have more time after that round is over for follow-up; similar to how the Senate Judiciary committee administrates nomination hearings.

  10. D. C. Sessions says

    Isn’t he the person who says that the 1st Amendment doesn’t apply to states!?

    I might be slightly more inclined to take him seriously on that front if he weren’t so adamant that the Second does — which is especially interesting given the Second’s first clause.

  11. cjcolucci says

    Michael:
    Maybe I was unclear. When I said Toobin “has no clue what’s going on and why, and it’s frustrating,” I didn’t mean that he wasn’t perfectly well aware from direct observation what Thomas was doing — or, more precisely, not doing — in the courtroom. What I meant was that Toobin, like the rest of us who are familar with Thomas’s odd behavior, can’t figure out the causes of Thomas’s odd behavior. I have my armchair psychoanalysis, and I’m sure that over a few drinks Toobin has his own, but really neither of us has a clue. It makes no damn sense that he would say absolutely nothing in all this time without it meaning something. But what?

  12. says

    “By the time oral argument is heard, the justices have already read the entire trial record, the appeals court record, every brief filed in the case (sometimes dozens of them) by both parties and amici.”

    I doubt that’s the case for this SCotUS. They have clerks and the clerks are there to save them the trouble of wading through a lot turgid legal prose. That the clerks might be less bright than supposed OR have their own agendas is a possibility.

    @Matty1:

    Sorry, I didn’t read that far in his OP.

    Thomas is a liar, a sexual harrasser and a dolt, in my book. Scalia is a bully, a liar and a Christian exceptiionalist. What Ed thinks of him, Scalia and the rest of the SCotUS is certainly his privilege.

    Justices Thomas, Scalia, Roberts and Alito are idelogues who frequently rule against their stated principles because of their rigid conservatism.

  13. Ichthyic says

    However, as a historical statement about the Constitution, it’s accurate enough.

    and do you think that was really the way it was being applied in this case?

    I’m betting not.

  14. maddog1129 says

    I disagree slightly. The questions presented in the Supreme Court are issues of great public significance. It can’t be easy to solve these issues. I don’t think it’s realistic to assume that nothing anyone has said in oral argument has ever raised a question in Thomas’s mind.

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