For one thing, evidence seems to suggest otherwise, at least Ilya Somin's observations during an argument earlier this week:
For what it is worth, I saw nothing to support Toobin’s claim that Thomas is disengaged and “not paying attention” during oral arguments. During the course of the argument (which was on a relatively prosaic statutory interpretation case), I saw Thomas confer with liberal justice Stephen Breyer some three or four times, and with Justice Scalia once. I believe I also saw him look up some points in what seemed to be the joint appendix filed by the parties (or perhaps one of their briefs). Obviously, I could not overhear what Breyer and Thomas were saying. Perhaps they were discussing the weather or making plans for lunch. But the timing of their interactions make it likely that they were talking about issues raised in questions asked or about to be asked by Breyer, or one of the other justices.As Somin points out, Thomas regularly talks with Breyer during arguments, so this doesn't seem to be out of the ordinary.
For another, Thomas has long had a consistent and reasoned, if flawed, explanation for his silence during oral arguments. That is, he prefers to listen to what the advocates have to say, rather than interrupt them constantly. As Somin points out, this is how oral arguments were in the good ole' days, much more a rhetorical event than a back and forth between the bench and the attorneys.
Where I disagree with some folks who have criticized Toobin, like Ed over at Dispatches from the Culture Wars, is in their claim that Thomas's approach is probably better:
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.As a somewhat experienced appellate advocate (not before Thomas and his brethren, alas), I do not want to return to the days of Daniel Webster and lawyer speechifying for oral arguments, largely because of the factors Ed points out. By the time a case gets to oral argument, all that's really left is for the judges to ask questions of counsel. Everybody's read the briefs, everbody's reviewed the record. Briefs get filed in a particular order for a reason. First whoever is taking the appeal files a brief, then the other party responds, then the first party gets to file a reply. In other words, everything the parties can bring up should have been asked and answered before anybody steps into court.
Personally, I don't want an oral argument that's just 20 minutes of me waffling to the court. I want judges to ask questions. I want to know what's troubling them about my arguments and what they think is perhaps a winning point for the other side. Questions at oral argument focus in on the meat of the case in a way that written submissions just can't. If nothing else, judges can pin down lawyers who are trying to be slippery with the law, the facts, or both.
All of which is to say while I don't find Thomas's reasons for remaining silent compelling, I don't think they're a sign that he's unqualified to sit on the bench.
Besides, sometimes when you open your mouth all you do is put yourself in a world of hurt. Ask some of my clients.
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