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: Begging the Question

Better to keep one's mouth shut and be thought a fool than to open it and remove all doubt

By "Milbarge" and "Fitz-Hume"

This week marks the opening of another Supreme Court Term, and Court-watchers have been eager to see how new Justice Sonia Sotomayor settles into her role. I've read a few of the early transcripts, and have noticed (as have others here and here; links via How Appealing) that Justice Sotomayor had no problem asking plenty of questions during the arguments. That's fine and all, and I'm glad she's willing to be herself and hold her own with some of the more vigorous questioners, even if I don't think every one of her questions was really necessary. However, it's a long Term, and they have life tenure -- this will cease to be remarkable very soon. So on the whole, I didn't draw any major conclusions from it.

Amanda Terkel at Think Progress wasn't so reluctant to find meaning in this. She quotes news articles noting that Justice Sotomayor asked more questions in her first hour on the bench than Justice Clarence Thomas has in years. She appends a photo of a bored-looking Justice Thomas, although he's not wearing a robe, and they don't allow photography at the Court, so it's not necessarily an accurate representation of how he is on the bench. (For the record, I have seen Justices, including Thomas, looking bored during arguments; it's usually because the cases were boring.)

The comments at TP jump to the conclusion Terkel refrains from making explicitly: that Justice Thomas is incompetent, and his decision not to ask questions very often during arguments is proof of it. Well, to be fair, I could only stand to read about fifty of the comments, but I feel safe in calling them a representative sample. Lest there be any doubt, the maxim in the subject line of this post refers not to Justice Thomas, but to the commenters.

I'm not going to re-hash my defense of Justice Thomas's practice of keeping his own counsel during arguments. I laid it out here over four years ago. As was the case then, I don't agree with much of Justice Thomas's jurisprudence (the notable exceptions being free speech and sentencing), but I have no problem at all with one fewer questioner on what is probably, on average, the nation's hottest bench.

I have heard many, many lawyers complain that judges asked so many questions raising so many tangents and distractions that they weren't able to make their case during an argument. No one likes a completely cold bench, but they appreciate some opportunity to do the job they came to do. If Justice Thomas asked questions at the rate Justices Sotomayor, Scalia, or Breyer do, the lawyers would barely be able to eek out a "May it please the Court..." and probably couldn't finish a whole sentence interrupted. Hell, sometimes it's that bad now, and that's with only eight of them asking questions!

Read my original post for the longer defense, but I'll mention two things briefly. First, I cited a couple of cases where Justice Thomas did ask a question, and they were the most perceptive, incisive, and important questions in the cases. The second point is related: people who think Justice Thomas is a dummy are themselves dumb, because they pay no attention to the vast evidence to the contrary.

As Steve "Feddie" Dillard has noted a million times, Justice Thomas is the Justice most willing to re-consider Supreme Court precedent, so any litigant would be wise to engage his views on the merits, especially if one wants to overturn a long string of cases (or wants to avoid that result). The opposite approach -- the intellectual laziness displayed in the TP comments -- is at best unwise and at worst flat-out embarrassing. It certainly does no favors to those who find honest disagreement with his views and raise those disagreements head-on before the Court.

As for Justice Sotomayor, I don't think she'll turn out to be "Obama's Souter," but I doubt her penchant for asking questions will save her from obloquy at TP the first time she votes against their preferred outcome.

Full post as published by Begging the Question on October 07, 2009 (boomark / email).