A Word Regarding Judicial Bloviation
I made my first appearance in court as a full-fledged lawyer in October 1995. It was terrifying.
Oh, I had appeared before in court as a student. But that was as a student prosecutor in a municipal court back East. It was very informal. People wore duck boots in court and said "hiya, judge" and things like that, and asked the judge to end court early if the Red Sox were playing. Plus, because I was a student prosecutor conditionally approved to appear on limited misdemeanors, and because of my school of origin, it was widely understood by judges, defense lawyers, police witnesses, and most likely the defendants that it would be uncouth to expect me to have any practical skills or judgment whatsoever. Plus, at the time, even if I managed to blunder my way into getting a guilty verdict on the misdemeanor bench trials I was trying, the defendant was entitled to a second trial before a jury. It was wiffle court.
So: what I'm saying is that my prior court experience did not fill me with confidence that day in late October when I showed up, a newly minted Assistant United States Attorney for the Central District of California, in a certain courtroom high up in the old federal courthouse on Spring Street.
I was there for a first appearance on some small-potatoes case. I don't even remember exactly what it was now, 17 years later, but it was probably a prosecution of an alien returning after deportation, or some sad-sack mule caught with a key or two of cocaine, or maybe a petty bank robbery. Those were the sorts of cases rookie federal prosecutors pulled.
I do remember the case called just before mine, though. My friend was prosecuting that one. Watching what happened next made me far, far more terrified about my first appearance, banal though it was.
My friend — let's call him Eric to protect the innocent — was making his first appearance as an attorney in the Criminal Division as well. He was there for a simple post-arraignment status conference and trial setting in a low-level bank robbery case. Nothing of substance or challenge was anticipated. He announced his appearance and confidently waited for the judge to set dates.
That's when the judge launched into a ten-to-fifteen-minute inquisition about why the U.S. Attorney's Office no longer prosecuted enough obscenity cases.
There was no logical call for this. The accused robber in Eric's case did not threaten the bank teller with a butt-plug. The defendant was not a porn star. And Eric was not in charge of prosecutorial policy or resource allocation for the Department of Justice, or the U.S. Attorney's Office for the Central District of California, or even for rookie row. Eric had as much influence over the office's obscenity prosecution policy as the average Burger King teen wage-slave behind the counter has over Burger King's national advertising campaigns. The judge — who used to be the U.S. Attorney for the Central District of California decades ago, and who (if rumor is correct) seriously considered indicting Coppertone for those advertisements where the dog is pulling the little girl's bathing suit bottom down — knew that Eric had no influence whatsoever over obscenity prosecution policy. Moreover, to be blunt, it was none of the judge's damn business whether the executive branch was prosecuting enough obscenity cases — the executive, not the judiciary, determines prosecutorial resource allocation.
So, if Eric was a trembling rookie with no power whatsoever over the office's policy formulation, and if the office's resource allocation was none of the judge's damn business, and if the case before him had nothing whatsoever to do with obscenity (throughout the rant, the bank robbery defendant — a hype who netted a few hundred bucks from a fruitless note-job — stood there stupefied, wondering if he was in the wrong court), why did the judge engage in a rant about the lack of obscenity prosecutions at this hearing?
Because he was wearing a black robe.
This is obscure and mysterious to people who aren't litigators, and obvious and familiar to people who are. Many — perhaps even most — judges are decorous and professional, at least on their good days, and don't indulge themselves in rants. But there are plenty of judges (including good judges having bad days) who use the bench as a bully pulpit. They are Ayn Rand, and the attorneys and parties are the readers subjected to 50-page monologues. They are the hideous bore at the cocktail party, only with the power to jail you for contempt if you try to find a polite excuse to escape to the kitchen or the bathroom. They have the power to indulge themselves, and so they do. They mistake power — symbolized by their robes and gavel and high seat — for being right, for being apt, for having actual insight.
I bring this up because of news of Judge Mark Martin of Pennsylvania, who — in the course of acquitting a Muslim of harassment charges arising from a dispute with an atheist dressed up as "zombie Mohammed" — indulged in an insulting, self-righteous rant against the alleged victim, in which he misstated and did violence to various basic First Amendment concepts. The story has been portrayed widely as representing the encroachment of Sharia Law upon U.S. courts, and the judge's comments have been held up as representing the natural consequence of a particular mindset about Islam. Though I think the judge was wrong to indulge in the rant (whether the acquittal was wrong is a different and more complicated topic), I think that much of the criticism reveals an unduly rosy picture of how judges act. When a judge displays intemperance, high-handedness, and even lawlessness about Topic X, it's tempting to say "Topic X makes judges rude and lawless" or "judges who feel Y about X are rude and lawless." But most litigators will tell you that doesn't follow. The judge might be deranged by his or her views of topic X. But the equally or more likely explanation is that the judge has black robe fever — either chronic, or a mild and transitory case on a bad day. Today the judge might be indulging himself in a demeaning and censorious rant about people who offend Muslims; tomorrow the judge might be indulging in a condescending and legally misguided rant about the way drivers act at traffic stops, or about the terms in lease agreements, or about how attorneys frame their retainer agreements, or about why consumers don't read contracts, or about immigration law, or about recording device technology. I've had judges rant at me about each of those things; they were all obnoxious, and they were all wrong, and they all indulged themselves before a captive audience that lacked the power to treat them as they deserved — like a bloviating commenter on YouTube, rather than like an authority figure.
This is not a defense of Judge Mark Martin, or the views he expressed. I plan to write more about him later. This is a legal realist point about judges and judging. When judges erupt into an ass-damp rant, it's dangerous to identify the driving force as the topic rather than the judge. The lesson of Judge Mark Martin is not "certain feelings about Muslims make for bad judges," any more than the lesson of my friend Eric's first appearance was "certain feelings about obscenity make for bad judges." The lesson of both is "power corrupts."
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