Justice Kathy Posner

Last week, Supreme Court Justice Clarence Thomas reached a milestone five-year mark of not asking a single question during the Court’s oral hearings. According to a story filed by the Tribune’s Washington Bureau, “When asked to explain his silence, Thomas has said the oral arguments are unnecessary to deciding the cases, and perhaps even a sideshow. The justices rely on the written briefs and the lower-court opinions in making their decisions, he says. He has also suggested that more of his colleagues should follow his example, rather than interrupt the lawyers who are making their arguments.” A bit contrary to what the Court procedures are. (For those who like getting their news from less substantial sources than the Tribune, Stephen Colbert had his own take on the anniversary.

According to the Supreme Court web site, during the proceedings, “An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices.” Sort of sounds like questions are expected from the Justices or it would not be part of the Court’s procedures!

Other justices have said that the answers they hear during oral arguments help them make a decision on the case while Thomas, on the other hand, has made his voting decision BEFORE the question and answer period takes place. The Tribune story also said, “On her first full day on the bench in October 2009, Justice Sonia Sotomayor asked more than 30 questions in a pair of cases, thereby eclipsing Thomas's career total in just one day.”

But think of how Thomas will have to bite his tongue when on Tuesday,March 29, the Court will be hearing oral arguments on Dukes v. Wal-Mart, Inc., the largest civil rights class action suit in the country’s history which deals with sexual discrimination! The irony!

The Supreme Court has a blog describing every case to come before the Justices for hearing. The Dukes case, “charges Wal-Mart with discriminating against women in promotions, pay, and job assignments in violation of Title VII of the Civil Rights Act of 1964. The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.”

While Thomas’ nomination hearings are best remembered for his alleged sexual harassment of Anita Hill when they worked together at the Department of Justice, and Dukes is a sexual discrimination case, “you say tomato and I say tomahto,” there is not that much difference when it comes to discrimination.

So will Thomas be able to give a fair ruling without asking any questions? Will he recluse himself because of unresolved venom he might still harbor from his confirmation hearing? Or, as the George and Ira Gershwin song concluded, will he just “Call the whole thing off!”

Read more from Planet Posner Here....