Sentenced to Silence

Todays marks the four year anniversary since the last time Associate Justice Clarence Thomas asked a question during oral argument.  Linda Greenhouse calls Justice Thomas’ silence “a weirdly compelling example of performance art.”

It’s unfathomable to me that he would choose to sit on the bench in silence.  The sheer monotony seems unbearable, the droning of sound from advocates where there’s no personal involvement, no exchange, no activity.  Despite the efforts of anyone arguing their cause, not every case is fascinating nor every argument compelling. 

Yesterday morning was spent judging the Wagner National Labor Law Moot Court Competition at New York Law School.  If this seems odd, it’s because I began law school with the intention of going into labor law.  Things don’t always work out as planned.

I’ve sat through maybe 50 oral arguments judging Wagner over the years.  I’ve heard student advocates who range from superb to just awful.  There are far more good ones than bad, and distinguishing between the merely good and truly excellent is a difficult task.  But I was reminded yesterday of the role that judges play in allowing advocates to shine or fail.

I sat on two panels yesterday, the first including two lawprofs.  The lawprofs found a minute nuance in a portion of one decision that was integral to the fact pattern to be particularly interesting.  They questioned the students about this highly nuanced point, asking incisive but obtuse questions, which clearly went over the student’s head.

After the argument, they spent more than a half hour arguing about the nuance. When finally it became clear that they had to bring the students back in for commentary, they continued their dispute and ignored the students’ efforts.  This was the first round of arguments in the competition, and the students learned nothing whatsoever about their strengths and weaknesses.  There was neither time (for me) nor interest (from them) to provide the feedback they deserved.

My second panel could not have been more different.  Unlike me, my fellow judges had either never seen the inside of a courtroom or had never argued before a judge.  A few lame questions were tossed out, asking for recitation of the obvious.  When I asked a tough question, they gasped.  Kids aren’t supposed to be challenged.  After that, the advocates were left to give their arguments with a silent bench. They completed them before their time to argue expired.

There is nothing worse for an appellate advocate than to face a silent bench.  Oral argument is the opportunity to hear the challenges to your cause and face your weakest point.  While some believe that no one wins a case at argument, or that judges have already decided who wins and loses before argument rolls around, I don’t buy it.  Let them try to shoot down my point, and let me have the opportunity to make my case.  Give me that chance to persuade you.  That’s what oral argument is all about.  If you don’t try to knock me down, I don’t know what issues the judges are concerned with and can’t address them.  Silence is death.

The other justices on the Supreme Court are not at all reluctant to ask questions, to challenge, even to ridicule, the arguments of advocates.  These questions are what advocates live for, to face them squarely and respond.  Without knowing what negatives lurk in the judges mind, we can’t confront them, change their minds.  We can’t win over anyone who remains silent.  We may not win them over anyway, but at least questions give us a chance.

I think the world of students who enter these national moot court competitions, who put themselves on the line to take on the challenge of suffering the possible crash and burn of the hard question, or the soaring accomplishment of a great response.  Either way, they will be better lawyers for the experience.  If only the competition judges don’t model themselves after Justice Thomas, and sentence these student advocates the cruel and unusual punishment of silence.

2 thoughts on “Sentenced to Silence

  1. Stephen

    While my experience is only from the other side of the moot court I have always appreciated a judge that asks me questions to one that doesn’t. Generally the closer it gets to a back and forth the funner it is to do.

Comments are closed.