What would Jeffrey Toobin say about a liberal Justice who declined to ask questions during oral argument?
Toobin, as we've been discussing, here and here, savaged Clarence Thomas for his keeping quiet during oral argument, as if that's an outrageous failure to do the Supreme Court Justice's job.
But what about Harry Blackmun, whom liberals revered?
Throughout his career, Blackmun was not among the Court’s more prolific questioners. In fact, late in life, he noted with some disapproval the number of questions asked by Ruth Bader Ginsburg and Antonin Scalia, among others, during oral argument. “One time in a couple of related cases that were argued in tandem during a morning for two hours,” he said, “I just out of mischief, kept track of the number of questions asked, and between Justice Ginsburg and Justice Scalia there were over a hundred questions asked of counsel…the result was often that counsel never could get his case argued…it was a little disturbing at time.” When Blackmun did ask questions, moreover, they tended to be relatively random in content.I suspect Toobin would say that there's an immense difference between an occasional random question and absolutely no questions at all for years on end, but if there's a difference, which way does it cut?
Occasional random questions are not the rigorous grilling that Toobin sees as central to the development of the argument. They seem to reflect the Justice's belief that questions ought to be asked, bereft of vigorous commitment to the task.
The prolonged silence of Justice Thomas establishes his commitment to the belief that he should not ask questions (at least not until the other Justices back off from their current practice of consuming most of the advocate's time with a continual barrage of questions coming from all directions). If Thomas believed that it was a necessary part of his job to ask a question now and then and Blackmun's approach is acceptable, he could easily have a question to ask now and then.
Toobin besmirches Thomas as lazy, but the laziest Justice in the world could have his law clerks hand him a couple questions to ask at every oral argument. It would be so easy for Thomas to push back disrespectful critics like Toobin. Clearly, he's chosen not to appease them.
ADDED: Here's a description — from Woodward and Armstrong's "The Brethren" — of how the liberal hero William O. Douglas behaved during the oral argument in Roe v. Wade:
As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. “I need considerable research” on the jurisdiction question, he wrote. “Would one of you take it on?”And here's how liberal hero Thurgood Marshall acted:
When, [Marshall] inquired, does an unborn fetus come to have full constitutional rights?
“At any time, Mr. Justice; we make no distinction …” [answered Texas Assistant Attorney General Jay Floyd]. “There is life from the moment of impregnation.”
“And do you have any scientific data to support that?” Marshall asked.
“Well, we begin, Mr. Justice, in our brief, with the development of the human embryo, carrying it through to the development of the fetus, from about seven to nine days after conception,” Floyd answered.
“Well, what about six days?” Marshall asked, eliciting a mild chuckle from the audience.
“We don’t know,” Floyd acknowledged.
“But this statute goes all the way back to one hour,” Marshall said, clearly enjoying himself.
“I don’t—Mr. Justice, it—there are unanswerable questions in this field, I—” Floyd, flustered, was interrupted by laughter around him.
“I appreciate it, I appreciate it,” Marshall chanted, leaning back in exaggerated satisfaction with Floyd’s befuddlement.
“This is an artless statement on our part,” Floyd offered.
“I withdraw the question,” Marshall said, trailing off. Laughter nearly drowned out Floyd as he continued.Everybody laughed and laughed. A good time was had by all.
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