There has been much written in legal circles lately about the silence that has lasted for years from Justice Clarence Thomas on the United States Supreme Court.It concerns his practice of remaining silent during oral arguments before the court. Oral argument is the part of the appellate practice in which the lawyers appear before the appellate court and present their cases orally and respond to questions from the judges.

There has been much written in legal circles lately about the silence that has lasted for years from Justice Clarence Thomas on the United States Supreme Court.It concerns his practice of remaining silent during oral arguments before the court. Oral argument is the part of the appellate practice in which the lawyers appear before the appellate court and present their cases orally and respond to questions from the judges.

I always liked oral argument, especially when there is a “hot panel,” which means that the judges ask a lot of questions.

The very first case I argued as a young lawyer in the court of appeals in Kansas City involved a doctor whose license to practice medicine had been suspended by the Board of Registration for the Healing Arts because she had allegedly been convicted of felony for unlawfully prescribing narcotics to her patients. She had been charged with unlawfully using her narcotics license, and she did not plead guilty to the charge, instead entering an Alford plea, which is a plea in which the defendant admits that there is sufficient evidence to convict him or her of the crime but does not admit to the crime. At the time, the law indicated the doctor could have her license suspended if she was convicted of a crime. We argued an Alford Plea was not a conviction.

At the oral argument, a judge asked me an unfair question that I could not answer. He asked why my partner did not handle the criminal case differently so she did not have this problem now with the licensing authority. Today, I would bark back, but back then I remained silent. I think he knew I did not know how to handle the question. I think he was expecting me to criticize my partner, which was not going to happen, and so I did not answer the question well. I think I indicated that I did not know why my partner did what he did and that the judge would have to ask him. Now, I would have probably suggested to him it was an unfair question and I would never criticize my partner.

The last case I argued was a very important case in which we were asking the court of appeals to change the well-established law of Missouri. The case involved false answers given in interrogatories, which are written questions propounded in the discovery process of a lawsuit. The contention in the lawsuit was that the defendant had falsely stated that the limits of coverage were much lower than they were to induce our client to settle the case. The law until our case was that the client had to tender the money from the settlement back to the defendant and start the case all over. In other words, the law before our case was that the defendant could lie about the amount of insurance coverage and could not be sued for defrauding the injured party. It was bad law and did not punish fraudulent conduct.

It was by far the most important case I had ever argued, and I confess I was nervous when I appeared before the court, though the presiding judge was my best friend from law school and one of the other judges I had known since I was a child. I recall walking into the courtroom, where there were several lawyers in attendance for the other side of the case. They put on a show for the court and even brought our old civil procedure professor, who had taught procedure to the presiding judge and me, thinking he might have some influence on his student. It didn’t work.

It was a good argument, and I remember at one point that my good friend from law school was grilling me on a point of law. I was trying to answer the question when the judge I had known for years jumped into the fray and actually answered the question better than I could. After the case was decided, I ran into my friend at a class reunion for our law school class and asked him about the argument. He told me that he liked to question lawyers and act like he was on the other side of the case to test both sides of the argument. He told me that he never sent a signal to either party what he was thinking and that he thought oral argument was important to fully understand the issues.

Justice Thomas has not asked any questions or engaged in oral arguments for years and has come under some criticism for remaining silent. Justice Samuel Alito recently came to Justice Thomas’ defense and reminded everyone that Justice John Marshall, considered by many to be the greatest judge ever on the United States Supreme Court, had a similar practice of never asking questions during oral arguments. Justice Alito said that the judges are primed for argument when they take the bench and that an average of 120 questions are asked during a typical Supreme Court argument. Justice Alito indicated that if Justice Thomas asked many questions, the rest of the justices “couldn’t get a word in edgewise.”

Some have implied that Justice Thomas is not a very good judge because he does not ask questions. Abraham Lincoln said it was better to remain silent and be thought a fool than to speak out and remove all doubt.

Justice Thomas is no fool, but oral argument is an important part of a case, and it would be nice if he would ask some questions from time to time. But it is unfair to draw any conclusions from his silence. If the best Supreme Court judge ever could remain silent, I suppose Clarence Thomas can do likewise.