by: Andrew K Jacobson

On February 1st, the New York Times published “It’s Been 10 Years. Would Clarence Thomas Like to Add Anything?”, about the impending anniversary of Supreme Court Justice Clarence Thomas’ last question to a lawyer appearing before the highest court in the land. Justice Thomas says that he wants to give counsel the chance to argue the case. I haven’t argued a case in front of the Supreme Court – yet – but I have argued lots of cases in front of lots of judges over the last 25 years. As an advocate, I want, I need feedback from the judge about her concerns, ideas, and objections. Arguing at a chair may have seemed like a good idea to Clint Eastwood, but it is useless when advocating for a client.

[caption id="attachment_2300" align="alignright" width="227"] Even the Big Guy gives feedback[/caption]

Justice Thomas’ rationale for his silence is pure poppycock. My goal as an advocate isn’t to argue, it is to convince the decisionmaker to see that the just thing to do is to rule in favor of my client. If a judge needs clarification about an issue, or has doubts, I need the chance to know what it is so that I can respond to it.

Even the justices’ cross-questioning (when justices “ask’ questions that are really attempts to argue the case for the other justices) helps the advocate, as it give the advocate a chance to know what is going in the collective minds of the court. Any advocate with a little experience can tell you about a case when a judge or jury focuses on an issue neither of the parties thought about. While juries have very limited abilities to ask questions, judges don’t have such constraints. We advocates need that feedback to both do our jobs and improve the justice process. If the judge focuses on an issue favorable to me, I can provide evidence to back her up; if it is the opposite, at least I have a chance to convince the judge otherwise.

This is not a matter of ideology – I rarely see things the same as either Justices Scalia or Thomas, but I know that Justice Scalia would tell me his objections, and we could try to hash out our differences. Justice Thomas gives no opportunity. To improve the law, Justice Thomas needs to dive into the fray, not observe from a distant hilltop.