I have often lamented the misconduct of Supreme Court Justices Clarence Thomas, Antonin Scalia and Samuel Alito who utterly ignore the rules of judicial conduct that apply to the rest of the federal judiciary. If lower court judges engaged in the outrageous political partisanship that we have seen from these three justices or their open bias before hearing cases, they would be likely removed from office. But in the case of Clarence Thomas, the misconduct goes even further. The man is a dullard in my view and he doesn't even pay attention during oral arguments. The man harms the very credibility of the United States Supreme Court. A piece in The New Yorker looks at Thomas' embarrassing and disgraceful conduct. Here are excerpts:
As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.
This point was especially apparent on January 13th, when the Court considered the case of National Labor Relations Board v. Noel Canning, which raises important questions about the President’s ability to fill vacancies when the Senate is in recess. It was a superb argument—highly skilled lawyers engaging with eight inquisitive judges. The case also offered a kind of primer on the state of the Court in action, with Thomas’s colleagues best viewed in pairs.
As for Thomas, he is physically transformed from his infamous confirmation hearings, in 1991—a great deal grayer and heavier today, at the age of sixty-five. He also projects a different kind of silence than he did earlier in his tenure. In his first years on the Court, Thomas would rock forward, whisper comments about the lawyers to his neighbors Breyer and Kennedy, and generally look like he was acknowledging where he was. These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called “not paying attention.”
Thomas has a part to play, if he wants to take it. The Noel Canning case, for example, raises a profound issue in constitutional law. Noel Canning, a bottling company, is challenging a ruling of the National Labor Relations Board on the ground that some of its members were appointed illegitimately. All Presidents have used recess appointments, often without much controversy; Obama did so in this case because Congress had refused to act on his nominations, to the point that the N.L.R.B. didn’t have a quorum.
No one, however, has been more outspoken about this conflict, at least on paper, than Thomas, the most extreme originalist on the Court. Scalia believes that the Court owes some deference to its own precedents, even if they differ from the original meaning of the text. Thomas is happy to lay waste to decades, even centuries, of constitutional law. Clearly, then, Thomas could have contributed to this spirited, important debate. Instead, on this day he was, as usual, checked out.
Still, there is more to the job of Supreme Court Justice than writing opinions. . . . .
But the process works only if the Justices engage. The current Supreme Court is almost too ready to do so, and sometimes lawyers have a hard time getting a word in edgewise. In question-and-answer sessions at law schools, Thomas has said that his colleagues talk too much, that he wants to let the lawyers say their piece, and that the briefs tell him all he needs to know. But this—as his colleagues’ ability to provoke revealing exchanges demonstrates—is nonsense. Thomas is simply not doing his job.
By refusing to acknowledge the advocates or his fellow-Justices, Thomas treats them all with disrespect. It would be one thing if Thomas’s petulance reflected badly only on himself, which it did for the first few years of his ludicrous behavior. But at this point, eight years on, Thomas is demeaning the Court.
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