Legalities

Your blog posts have confirmed a right-wing bias in your reporting that has long been evident. I have long been critical of Nina Totenberg for shading things a bit favorably to the moderates and liberals on the court, but any bias she may have pales by comparison. Reading your posts about Olson (and his late wife the "noted commentator"), Thomas, Roberts is like reading a right-wing version of Pravda.

Wow, JCG must have played softball in college. What a hard-hitting set of questions.

Not sure for whom this 'fascinating' interview should be more embarrassing --the interviewer or the subject.
Most moderately experienced litigators and jurists (with prior experience as a litigator) would acknowledge that oral argument constitutes a critical opportunity for litigants and judges alike to participate in a process that may help our legal system reach the right result in particular cases based on the facts and the law. Lawyers and judges alike talk about the value of a "hot bench" -- i.e., one where the judge (or panel) actively questions lawyers, revealing themselves to be familiar with the facts and wrestling with the arguments and counter-arguments.
To be philosphically opposed to the concept of vigorous oral argument as a general rule reveals Justice Thomas to be closed-minded to debate and concerned about not being able to justify the outcome that he has already arrived at before argument.
In both oral argument and in journalism, revelations and insight often arise from the follow-up questions. By essentially not participating in oral argument, Justice Thomas chooses not to place himself in potentially uncertain legal waters where a new idea or an explanation may reveal him to be wrong about something. By failing to ask Justice Thomas whether he might actually find himself to be mistaken about something if he asked more question and by failing to ask why an overwhelming percentage of judges and litigators across the political spectrum see intrinsic value in vigorous oral argument, Ms. Crawford Greenburg does not jeopardize her status as a favored reporter among the conservative wing of the court.
Both Justice Thomas and Ms. Crawford Greenburg, in their own ways, seem to have chosen paths that support the old adage that one should not let facts get in the way of a "good" story!

I think Ms. Greenburg has done a great service to the community (legal, political, academic, etc.) in informing us about Justice Thomas' thinking. He may not have been as open with other members of the main stream media.

While I believe Justice Thomas has been and continutes to be unjustly treated by many members of the community, I am troubled by his position on participation in oral argument. Experienced litigators debate the effectiveness of orgal argument but uniformly believe it is an important part of the process. It is not always clear to me that the questions of all of the justices during orgal argument are primarily designed to clarify the issues or positions of the litigants or whether there is a good dose of intra court debating and, to put it mildly, posturing. Nevertheless, orgal argument is a traditonal part of the appellate process, and justices who do not partiicipate in that process fully, may diminish the workings of the court on which they sit. I think Justice Thomas would be a more effective member of the Court if he joined the fray, even if he has to elbow his way past the Chief Justice and Justices Scalia and Breyer.

Again, kudos to Jan Greenburg and also to Justice Thomas for going public.

Al Barton

I have to disagree strongly with Wilson about how most judges view the value of oral argument. I clerked for a federal judge and have argued cases in federal and state courts for over fifteen years, and I have yet to find more than a handful of judges who thought that oral argument, except on rare occasions, adds much to assist the judge in deciding a fully briefed motion or case. Of course, in some cases (such as in some state trial courts and some federal bankruptcy courts), judges either do not have time to read brief or by practice rely more heavily on oral argument. But in most cases, lawyers rarely say anything significant that isn't already in their briefs. This is especially true in appellate courts, since the parties have already thoroughly argued their positions in the lower courts and have significantly honed those arguments by the time they challenge a lower court on appeal. Supreme Court justices sometimes think of something significant that the parties have not addressed, and then the answer a party gives to a question in oral argument can affect the outcome of the case. On other occassions inept or unprepared counsel have made significant blunders in their oral argument that can cause them to lose a case they might otherwise have won. But with those two exceptions, the main function of oral argument is to expose what the judges think about the case and give the parties (and reporters) some clue as to how the case will be decided. Sorry, Wilson, but "vigorous oral argument" just doesn't affect the outcome or change many judge's minds in most cases.

Response to Joe:

I don't know that we actually disagree. I did not say that oral argument often changes the outcome. Indeed, it genderally does not. But the point is this: Oral argument can and does -- some of the time -- change minds, outcomes or the contours of opinions. This only happens, though, if a judge (or justice) meaningfully participates, and Justice Thomas admittedly does not. In contrast, most of his "brethren" on both sides of the philosophical spectrum do participate.
(By the way, I, too, clerked for a federal judge and have argued in federal and state courts for decades, and I stand by my position that most judges believe in the value of having oral argument -- and, more to the point, judges participating in oral argument if a court chooses to have it.)

I too have clerked for a federal appellate judge, and my judge certainly said & demonstrated that oral argument was an integral aspect of the decision-making process. Frequently it illuminated points obscured in the briefings and clarified the path that the panel would take.

That Thomas does not participate is outrageous. The comment that it stems more from cowardice, self-consciousness of the risibility of his positions (oh, manufacturing is different than commerce!), and his closed mind seems an accurate guess to me.

Of course, the really outrageous thing is that he does often doze through them. I have attended several arguments at the Supreme Court and observed him dozing in over half of them. Or at least, leaning back with his eyes closed and occasionally starting up. Sure looked like sleeping to me, but even if he was in "deep thought," it sure looked disrespectful.

Which is what you'd expect from somebody who put pubic hair on a soda can...

Wilson wrote: "This only happens, though, if a judge (or justice) meaningfully participates, and Justice Thomas admittedly does not." Where was that admitted, unless you assume that the only valid form of participation is to pepper the lawyer with questions? It seems to me that Thomas not only doesn't "admit[]" to not meaningfully participating, he epxressly disputes the only premise under which your statement makes sense.

Right on, "Responding to Joe"!

It's too bad Thomas can't be as "respectful" of the Court as you are.

I'm not a lawyer, never worked for one or a judge, but it seems to me that if the "attitude" used by some of you above is any indication, it wouldn't make any difference to you if Thomas had his eyes open 24/7 and was the only one to ask questions!! Wow, talk about adversarial! Seems to this old lady that were I to take up a case at the Supreme Level, I would know how much was intimately known by the court and if I just wanted to hear myself talk, I'd talk. If there was something in the body of law work not proper, then I would pitch my side. And BEN, I see that even tinfoil hatted leftist loons post here. All I truly know is that lawyers do what they do and, generally, we the taxpayers end up footing the enormous bill you guys cause.

Did nobody but me find the following comments in pretty stark contradiction.

"So by the time I go on the bench, we have an outline of our thinking on the case. So I know what I think without having heard argument or anything else. Argument is really not a critical part of the process, the oral argument."

"You know, I think it's wonderful, what a great country. You can have a case, you can come all the way to the Supreme Court, and you can say your piece."

What a great country. You can come all the way to the court, but of course when you get there, you'll find me with my mind already decided, so it being a great country, I won't have to listen.

Mike Rappeport -

You seem to be deliberately ignoring the fact that Thomas (and other Justices) make their minds up based on the WRITTEN arguments that are submitted. Most everyone would agree that debates over law are far more effective in a written medium, rather than oral argumements. Thomas recognizes that.

Besides, are you suggesting that the other Justices (both left and right) actually come to oral arguments with an "open mind" after they have read the written briefs? Please...If you want to simply hate Thomas for being a conservite Justice, just say so.

It is interesting that my comment should be taken as evidence I hate Justice Thomas. Says more I would assume about the nature of how most people blog than it does about what I actually said.

Actually I think what you said is correct. Most if not all of the justices, most if not all the time, have their minds made up before the oral pleadings. The problem is Justice Thomas went on to say,

"There are times I've gone across the country, and I'll meet a small town lawyer who says, 'You know, I was up at your Court and they never let me say what I wanted to say.'

That isn't what I want to hear. I prefer to hear, 'I made it all the way to Court and I got to tell you what I really thought.'

Now, it may not change my mind, it may not change my colleagues' minds, but you have the satisfaction of having come and said your piece, and I think we should listen."

Now the operative word here is surely listen, when Justice Thomas could have used read. What I am actually criticizing is the sham that oral arguments matter, coupled with Justice Thomas' politeness/hypocrisy (take your choice depending on how you feel about Justice Thomas).

The rule of thumb for any litigation is: If the written papers are strong enough, then oral argument should not matter. Most litigators should know that the only thing they can do at oral argument is screw up their case. THe overwhelming majority of of the legal/factual persusasion should be in the written papers. Their is nothing more pleasing to any judge to hear a litigant say the following: "Your honor, subject to any questions from the court, I submit."

The discussion taught me more than reading the interview.
Thanks,
Jimmy

That's absolutely not true Former Federal Clerk. What a waste of the Judges' time -- why did the party request oral argument then? Or why did the Judges request it? Somebody is making the request, and clearly finds it useful.

And if you really feel orals have such little impact, I'd be surprised if you really were a federal clerk.

Informative interview, Jan. Ignore those who criticize you for not asking Justice Thomas to apologize and resign.