Clarence Thomas: Let’s face it, Q&A during oral arguments isn’t helpful

posted at 8:46 pm on April 6, 2012 by Allahpundit

I don’t agree, but I’d never fault a judge for being eager to listen.

“I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”…

He said the lawyers presenting their cases are capable and don’t need guidance from the justices: “I don’t need to hold your hand, help you cross the street to argue a case. I don’t need to badger you.”…

“We have a lifetime to go back in chambers and to argue with each other,” he said. “They have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process.

“I don’t like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.”

He hasn’t asked a question from the bench since 2006. Here’s my problem: Wouldn’t oral arguments be nothing more than a regurgitation of the briefs if the Court didn’t ask questions? He’s right about some of the justices using Q&A to help the lawyers “cross the street” — go look at how the liberals bailed out Verrilli early on last week when he was struggling — and the pace of the questioning is frequently ridiculous. According to an NYT piece published last year, from 1988-2008, the Court averaged 133 questions per one-hour argument. No doubt part of the badgering is simply the Supremes having fun toying with the lawyers, but I’ve got to believe Q&A is a more productive use of their time than sitting there while people read from prepared remarks that the justices themselves could read in one-fifth the time. Turning oral arguments into a speech-making spectacle would reduce the process to something almost ceremonial, where the Court shows up and gives the parties a thrill by letting their lawyers have an hour in front of SCOTUS to blather. Although, as I think about it, maybe oral arguments are already largely ceremonial. With all the briefs they have to sift through and all the backdoor politicking that goes on during deliberations, it’s hard to believe that anything said during Q&A ever amounts to a gamechanger. I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court. After all, if everything was done on paper, with the justices issuing momentous opinions without ever showing their faces publicly, it’d make their job as a check on democratic majorities even harder.

Speaking of bad ideas about the Supreme Court, here’s one that TNR is kicking around:

I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement. But term limits for judges—not just Supreme Court justices—make a certain amount of sense when those judges are appointed. For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments…

Another problem is that longevity has made the Supreme Court confirmation process extremely partisan and contentious—the stakes are just too absurdly high. The era of bitter Supreme Court confirmation fights—some say the era of bitter partisan politics in general—began in 1987, when Democrats defeated Reagan’s nomination of Robert Bork. That was a quarter-century ago, and if Sen. Ted Kennedy, D.-Mass., hadn’t played it pretty rough (“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” etc.) then Bork, who turned 85 last month, would probably still be sitting on the Court.

Arguably the reason Bork never sat on the Court at all is precisely because the Senate knew he was looking at a lifetime appointment if confirmed. You might roll the dice on someone whom you know is limited to 15 years; if you’re worried that he might have, say, 35, the calculus is different. But never mind that. Imagine how much more of an unholy clusterfark presidential elections would be if we knew for a fact that a certain number of vacancies would open up on the Court in the next term. Imagine further that the judges whose terms were ending were part of the Court’s majority and that the election would therefore determine SCOTUS’s balance of the power going forward. Court appointments would become an enormous factor in the campaign, as much a proxy vote for two Supreme shortlists than for two visions of the presidency. And needless to say, any justice appointed by the winner would face tremendous political pressure to vote as expected. They already do, of course, but the uncertainty of vacancies opening up means no president is elected with any guarantee that he’ll get to remake the Court. Term limits would change that. If an appointee ended up voting differently than expected, it’d be a betrayal of a specific campaign promise on which millions of votes may have turned. If you think the Court’s politicized now, go ahead and give it an even bigger role in elections by tossing term limits in there. The countermajoritarian difficulty will be more difficult than ever.

Exit fun fact from Rasmussen: Just 15 percent of likely voters think the Court puts too many limits on the federal government compared to 30 percent who think it doesn’t put enough.


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