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Thomas: no questions in 2 years (and 144 cases, Justice Thomas has refrained from oral argument)
AP on Yahoo ^ | 2/25/08 | Mark Sherman - ap

Posted on 02/25/2008 2:27:59 PM PST by NormsRevenge

WASHINGTON - Two years and 144 cases have passed since Supreme Court Justice Clarence Thomas last spoke up at oral arguments. It is a period of unbroken silence that contrasts with the rest of the court's unceasing inquiries.

Hardly a case goes by, including two appeals that were argued Monday, without eight justices peppering lawyers with questions. Oral arguments offer justices the chance to resolve nagging doubts about a case, probe its weaknesses or make a point to their colleagues.

Left, right and center, the justices ask and they ask and they ask. Sometimes they debate each other, leaving the lawyer at the podium helpless to jump in. "I think you're handling these questions very well," Chief Justice John Roberts quipped to a lawyer recently in the midst of one such exchange.

Leaning back in his leather chair, often looking up at the ceiling, Thomas takes it all in, but he never joins in.

Monday was no different. Thomas said nothing.

He occasionally leans to his right to share a comment or a laugh with Justice Stephen Breyer. Less often, he talks to Justice Anthony Kennedy, to his immediate left.

Thomas, characteristically, declined to comment for this article. But in the course of his publicity tour for his autobiography, "My Grandfather's Son," the 59-year-old justice discussed his reticence on the bench on several occasions.

The questions may be helpful to the others, Thomas said, but not to him.

"One thing I've demonstrated often in 16 years is you can do this job without asking a single question," he told an adoring crowd at the Federalist Society, a conservative legal group.

The book tour showed that the topic comes up even among friendly audiences.

Indeed, Thomas' comment was provoked by this question: Why do your colleagues ask so many questions?

His response: "I did not plant that question. That's a fine question. When you figure out the answer, you let me know," he said.

The typical hourlong argument session can sometimes be difficult, even for a practiced questioner.

"I really would like to hear what those reasons are without interruption from all of my colleagues," Justice John Paul Stevens said at an argument in the fall.

The newest justice, Samuel Alito, has said he initially found it hard to get a question in sometimes amid all the former law professors on the court.

The last time Thomas asked a question in court was Feb. 22, 2006, in a death penalty case out of South Carolina. A unanimous court eventually broadened the ability of death-penalty defendants to blame someone else for the crime.

In the past, the Georgia-born Thomas has chalked up his silence to his struggle as a teenager to master standard English after having grown up speaking Geechee, a kind of dialect that thrived among former slaves on the islands off the South Carolina, Georgia and Florida coasts.

He also has said he will ask a pertinent question if his colleagues don't but sees no need to engage in the back-and-forth just to hear his own voice.

Lately, he has focused on the latter reason.

"If I think a question will help me decide a case, then I'll ask that question," he told C-SPAN's Brian Lamb in October. "Otherwise, it's not worth asking because it detracts from my job."

He talked in that same interview about descriptions of him as the silent justice.

"I can't really say that it's unfair to say that I'm silent in that context. I would like to, though, be referred to as the 'listening justice,' you know," Thomas said. "I still believe that, if somebody else is talking, somebody should be listening."

The following month, however, at an event sponsored by Hillsdale College in Michigan, Thomas was more combative when asked about oral arguments.

Suppose surgeons started discussing the merits of removing a gallbladder while in the operating room, Thomas said, as quoted by U.S. News & World Report. "You really didn't go in there to have a debate about gallbladder surgery," he said. Similarly, "we are there to decide cases, not to engage in seminar discussions."

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