Tuesday, March 4, 2008

Ask me no questions, I'll tell you no lies - Talking about Clarence Thomas

Clarence Thomas is a Supreme Court Justice with whom I probably have very little in common and with whom I agree very little. There is much to criticise in his opinions.

One thing I will give him credit for, though, is consistency. I'm not talking about the sort of consistency shown by Scalia, who invariably votes pro-right wing, pro-GOP, regardless of how much he has to twist the law (and even his own prior holdings) to do so. I'm talking about actual intellectually honest consistency - in that he seems to stick to his line of reasoning, no matter where it may take him, even if it puts him at adds with Scalia and his pro-GOP, pro-right-wing holdings. I still think most of those decisions are wrong (if not all) but at least he's consistent about it, at least he has an intellecutal framework he tries to consistently apply. That I actually respect. That tells you what you need to do to convince him. That also shows that he is far more intellectually honest than Scalia, who pretends like he has some framework (which he misnames "textualism" or "strict constructionism") but then just makes the side win that he wants to win and tries to shoehorn it into the text afterwards, often with cute rhetorical tricks like stating an obviously broad issue very narrowly (or vice versa). So if the issue is consenting adults wishing to have whatever sex they want behind closed doors, for Scalia, the issue isn't whether the Constitution respects privacy, it is whether the Constitution specifically says the right to own a battery operated dildo is protected (which of course such a general document would never say even if it was clearly meant to be protected). But if the issue is instead whether or not the federal government has the power to, say, ban medical marijuana, then suddenly it is about the government's general power to regulate commerce and he doesn't seem to have a problem with the fact that nowhere in the Constitution (one for a limited government with all powers specifically outlined) does it say that the federal government has the power to ban medicinal marijuana. See how that game works?

In any case, I am writing this mostly in response to this article, which points out another point of criticism of Thomas - his failure to ask questions from the bench. This article doesn't do it, but many others have. And I just want to say that this is a load of bullshit. Asking questions from the bench is generally not about deciding the case, it is about other things. Hell, most appellate cases are probably already decided by the judges sitting on a panel before oral argument even begins. Maybe this is less true with the Supreme Court, which supposendly only takes the less-clear cases, but it is probably true that most cases are won (or lost) on the briefs, long before oral argument. The briefs are what matter. Most of what is in oral argument is probably for show, or between individual justices. Unless there's something really unusual or unclear, there should be no need to ask questions much of the time. Any question that would be really important ought to have already been answered in the briefs. Not only that, but with 9 justices, odds are, even if there is a good question left to be asked, a justice need only sit and wait and one of the other 8 justices will ask it.

I don't think the number of questions matters, just the legal reasoning in the opinions matters. So Thomas's failure to ask questions is irrelevant and means nothing, except that he's less long-winded than his colleagues. Which is probably a good thing.

As a practioner, I like to see questions on appellate panels, but usually only to get a clue where the panel is going with a case, not because I think they really are necessary or add anything most of the time. One could probably file most appeals without oral argument (saving time and money) - only the briefs really matter.

So if one is to critisize Thomas, please, do it for substantial reasons. Not for bullshit like how many questions he asks at oral argument. That simply doesn't matter. Take it from someone who knows.

1 comment:

Sweating Through fog said...

I find justice Thomas fascinating. Not from a legal perspective, since I don't know the law. He strikes me as a man who has been through the most scurrilous villification of any politician I've seen, and I can't tell whether it has given him complete freedom to go his own way, or whether it has left him blinded by bitterness.

I've just read a few books on the court. The first presents him as an ignorant, bitter guy who has risen far beyond his level of competence. Despite this, the book says he is personally liked by the other judges and clerks. he is gregarious and approachable in contrast to many other justices. The seond book emphasizes his independence. He made it very clear early on he had no problem being the lone dissenter - something Scalia was usually unwilling to do. His willingness to go alone in several cases motivated Scalia to join his dissent.

Just a fascinating guy. Reviled by many of his own people. Someone who liberals are terrified of, because they know what they did to him, and they know he will never "grow on the court' to seek their favor.