Eminent Domain

How Appealing linked to this Law.com article about Justice Clarence Thomas and his recent visit to Atlanta, home of the Eleventh Circuit. The article focuses on Thomas' criticisms of overly aggressive appeals court judges who barely let lawyers speak during oral argument. While that is interesting, other parts of the article caught my eye...

On threats to an independent judiciary: Thomas said he believes that an independent judiciary is more at risk today. "Some of it is our own doing," he said. "We're drifting into areas people have strong feelings about ... We're getting into social issues where I don't think we should be making decisions." The abortion issue, Thomas suggested, "has changed the confirmation process and not for the better."

"I don't think we're better off," he said of what have become protracted confirmation hearings. "We don't have a better court. ... We are getting to be political footballs."

This is a very different view about the causes of threats to the judiciary than we have heard lately from people like Justice O'Connor. Justice Thomas places some blame on judges treading into areas that they should leave alone. I agree with him. I think that the courts in general and the Court in particular have done nothing but hurt their credibility by diving into social issues. It makes the Court much, much more political than it should be. It also, as Thomas points out, reeks havoc on the confirmation process.

This last comment is also interesting...

On cameras in the courtroom: "I'm not all that enthralled with that idea. I don't see how it helps us do our job. I think it may distract from us doing our job." And, he added, if 80 percent of the appellate process is wrapped up in the briefs, "How many of the people watching will know what the case is about if they haven't read the briefs?" The level of understanding, he suggested, would be "very shallow."

This is a good point that I don't recall seeing before in the discussion of cameras in the Court. It reminded me of an incident at the beginning of the 2005 term of the Court. I read the transcript from one of the first cases argued before the new Chief Justice. I, like many others, was eager to see how he handled himself in oral arguments. I knew nothing about the case that I picked before starting to read the transcript. I hadn't read any of the briefs or even any blog posts about the case. I was totally lost, and I like to think that I have at least some grasp on legal issues. Without the proper background, it's pretty hard to follow some (maybe most) of the Court's cases. Try to follow an ERISA case. Your eyes will probably melt.