Notice & Comment

Judicial exceptionalism and its corrosive effects

I almost never read the comments on these posts–that’s rule number 1 for anyone active in internet life–but saw an alert to approve/disapprove a comment on my last post. It was from an anonymous litigator in the 9th Circuit, but it’s very good and worthy of considering what we do when we fetishize and worship at these judicial altars.

Our commenter writes:

Peter, as a lawyer who practices in the 9th Circuit I am dismayed over another aspect of Judge Kozinski’s career that is being overlooked: his behavior on panels during oral arguments. Admittedly, this is less important than the dozens of careers of brilliant young, female lawyers who he negatively impacted because of his apparent inability to refrain from abusing his immense power over female law clerks. Still, it seems like we are ready to move on from the Kozinski era without even commenting on what is and is not appropriate judicial behavior during oral arguments, in a time period when these proceedings are literally on full display on YouTube (the 9th Circuit has published all of its OAs there for a few years now). Judge Kozinski is widely described in the national media right now as “one of the nation’s most influential judges.” Why shouldn’t this matter?

If one goes through the hours of video footage available on YouTube, they will notice numerous instances of Judge Kozinski berating appellate lawyers, insulting them, mocking them, and frankly wasting the panel’s time with what is affectionally called his “irreverent” style of questioning. In such instances, the judge is doing nothing to promote the rule of law, much less civility in the legal profession. And no one calls him out on it. Lawyers (like myself) are too fearful of consequences for their clients and cases to say anything, either during such an oral argument or afterward. (I do not wish to use my real name on your blog for that reason.) Not once did I ever hear a fellow panelist judge during such an oral argument speak up to shut Kozinski down during his rampage.

Is it appropriate for appellate judges to behave disrespectfully toward lawyers during oral arguments? I don’t think it was a hundred years ago or fifty years ago, but I definitely don’t think it is in 2017 when oral arguments are on display to the public at large.

My answer to the question that ends this eloquent critique is a resounding no. It’s not appropriate. Here’s what’s at stake when we give permission for judges to behave badly because they occupy vaunted spaces in our democracy. The rules of decorum change. First, and arguably less important, when a rude or sarcastic or demeaning judge is left to run free, then what constitutes fair argument starts to change. In my two years as a law clerk, I’m pleased that I saw very little of this. Indeed, I can remember only one exchange between a judge (not mine) and a lawyer that I thought crossed a line. But we all know judges who are extremes. And perhaps not coincidentally, they are judges of enormous reputation. Why would the courts, lawyers, clerks, and everyone else not seek to enforce norms of decorum here as we would nearly anywhere?

Much more important, I think, is that giving judges a pass–writing them off as charmingly off-beat or rakish cads–gives a pass for a Kozinski-type figure to set his targets on those beneath him in the hierarchy for sexual assault and harassment. Dahlia Lithwick has written that Kozinski made many his accomplices. This was my argument about David Lat’s book, though I shouldn’t and don’t single out Lat for special opprobrium. The question is really why we give judges such a pass. Perhaps it’s because the study of law has been so long (and so inappropriately) anchored on the study of courts, and judges run courts. Perhaps it’s because the judicial clerkship industrial complex depends on judges to run.

Who knows? But I hope the Kozinski moment gives courage to those–especially those who won’t face such stiff professional penalties for standing up–to call out this behavior for what it is. It’s not irreverent for Kozinski to sexualize law clerks. It’s not the same level of trauma or violation, but it’s also not charmingly off-beat for him to abuse lawyers. It’s malicious and worthy of harsh condemnation. I appreciate our anonymous commenter’s thoughts here.

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