By Dr. Ken Broda Bahm:
If a “hot bench” is one that involves a judge actively participating in oral argument with questions and responses, then a “cold bench” must be one in which the judge just sits silently and watches. By that standard, there is no better exemplar of the cold bench than U.S. Supreme Court Justice Clarence Thomas. It has now been eight years since Thomas has asked a question in oral arguments. He came close just last year in an attempted interruption of Justice Scalia, but all the official transcript picked up from Justice Thomas was “Well, he did not….” So, if the standard is that it has to be a complete thought, then the record stands. Over the last 40 years at least, there is no other record of a Supreme Court Justice holding their tongue for a single full term, and now Thomas has held his for the past seven terms. That has drawn a great deal of criticism from legal observers. Commentator Jeffrey Toobin, for example, notes that the Justice’s behavior has “gone from curious to bizarre to downright embarrassing.”
Within the Supreme Court’s oral arguments, of course, Thomas’s silence does not mean the bench is silent — far from it with Scalia, Alito and the other six routinely hammering advocates with question after question during oral argument. Through the extensive oral arguments for the Affordable Care Act, for example, advocates enjoyed on average only 52 seconds of uninterrupted speech time before one judge or another cut in. And that setting has some advantages. While the Supremes and many other judges might have their minds mostly made up by the time they get to oral arguments, there is still a chance to shape the verdict through oral argument, and there is no better way to argue than to know exactly what your audience is thinking. So, what does the advocate do in a Judge Thomas-like situation, where justice watches but doesn’t speak while you argue? In our view, the answer goes beyond just, “Say what you want to say and then stop.” Because we’ve written in the past on how to handle a hot bench and the Scalias of the world, this post will focus on how to handle a cold bench and the Thomas’s of the world.
A judge’s silence during oral argument is something, not to celebrate, but to adapt to. Here’s why:
The Disadvantage
At first blush, the less experienced advocate seeking to maintain control and perform well in front of a judge might think, “A silent judge? Great! Now, I will be able to cover all that I’d planned to cover without interruption.” But don’t celebrate too soon: your speech becomes smoother, but the ultimate goal of their persuasion becomes less likely simply because you can’t adapt to what you don’t know.
Judges ask questions for several reasons, and each of them presents an opportunity to the advocate:
1. Judges may ask because they don’t know the answer. “Counsel, what precedent are you citing on that point?” That gives the advocate a chance to fill in a gap, add more support, and avoid a possible misimpression.
2. Judges may ask because they are seeking to test your argument. “Counsel, would that same distinction apply if the parties’ roles were reversed?” That gives the advocate a chance to extend and refine her argument in the direction that the judge is thinking.
3. Judges may ask in order to demonstrate the strength or weakness of your argument. “Counsel, isn’t it true that your position would upend more than 60 years of precedent?” That gives the advocate a chance to argue back, potentially showing the judge that his view is wrong, or at least hard to sustain.
The questions will serve different functions for any given judge or panel of judges, but in every case, hearing what is on their minds allows you to adapt and focus your message, raising the potential that you can reason with and not just at your judge.
The Reality
The ideal situation, even as it causes some inconvenience and need for adaptation for the advocate, is for judges to be actively involved in their own persuasion. They do this by asking questions and otherwise voicing their reactions. When the judge is instead just sitting there sphinx-like as you argue, the hard reality is that oral arguments, for that judge, are simply not the key time when they are making their decision. Instead they’re basing the decision on briefing or upon their own prior attitudes. In Justice Thomas’s case, for example, it seems likely that he is crafting his verdicts based on some very firmly-held a priori principles in most cases. Because those principles are unlikely to be changed by anything the advocates might say, there is really no need to disturb the advocates with questions.
Even when the decision has been moved to other fora, the reality is that the advocate still needs to get up there and argue. If only for practice, it makes sense to still give it your best. So, let me share one good idea for how you might address the silent judge.
The Response
My recommended response is simply this: If the judge doesn’t ask questions, then you should ask your own. Pose your own questions that reflect what you believe an active and engaged judge would want to have answered, and then answer those questions. This rhetorical question strategy has much to recommend it. The Toxic Tort Litigation blog, for example, includes a recent post looking at Shakespeare’s use of the strategy in Julius Ceasar’s funeral oration delivered by Marc Anthony, and also point to other commentary (Rubinowitz & Torgan, 2014) highlighting the natural fit between rhetorical questions and the goals of argument. The approach is usually embraced when arguing to a jury (which is always silent), but it can apply just as well to a quiet judge.
If you have had any prior rulings that give you clues to your judge’s frame of mind, then you have a basis for identifying what they would be asking if they wanted to. If not, you can still identify those questions that a responsible judge should be asking in order to resolve your specific case:
Your honor, I believe there are three questions that are probably on your mind based on the way the case has been briefed up to this point. Turning to the first…
If you are able to explain each question, demonstrate its importance, and then answer it, you have the potential to make your argument much more dialogic than it would otherwise be, even with a silent judge. You cannot control whether the judge is actually at a point to change their mind or not. But you can control your own moment of advocacy and make that moment as engaging as possible.
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Other Posts on Persuading the Court:
- Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)
- When Faced With A “Hot Bench,” Keep Your Cool
- Don’t Let Your Judge Reduce You to Absurdity.
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Photo Credit: Wikipedia.org, Official SCOTUS portrait, edited.