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."

Last 5 posts by Ken White


  1. Peter H says

    So Ken, what happened during your first appearance? A rant about how DOJ wasn't paying enough attention to how baseball is a national treasure?

  2. Eddie says

    Ken – Before writing about Judge and Brigadier General Mark Martins you may want to look at a speech he gave when awarded the Harvard Law School Medal of Freedom. While it doesn't change the fact that he shouldn't use the bench as his bully pulpit it does give you some perspective on his background. I highly doubt he wants to bring Sharia Law to US Courts. Here is his speech from the Army Lawyer. https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/c82df279f9445da185256e5b005244ee/b52e34e02e675c63852579a4005cccb4/$FILE/By%20Mark%20Martins.pdf

  3. says

    I will read it before I write further, Eddie. I don't think he wants to bring Sharia Law to U.S. Courts. However, I think he is flat wrong about fundamental First Amendment values in a scary way, and he doesn't get any more right the more he defends himself.

    Not to tip my hand on my eventual post, but I see him as more symptomatic of the increasing muddle-headedness about free speech that you see in anti-bullying laws and the like, not so much a Sharia advocate.

  4. Eddie says

    I agree with you 100% about the Judge's absurd position about the First Amendment. At the end of the day if the other guy was offended by the Mohammed costume I say too damn bad. I can't imagine what would happen in today's US of A were the skinheads to try and march on Skokie, Illinois today.

  5. Caleb says

    This is dead-on, Ken.

    An unfortunate aspect of this whole debacle is how the involvement of a particular religion ("Moos-lums!! Sharia law!!1!") has distracted public attention from the far more weighty issues of: 1. The rapidly evolving misconception of the First Amendment in our society, and 2. The abuse of power and lack of discretion emanating from judicial benches across the nation. On the latter I have little to say, since my study of American jurisprudence indicates that this phenomena dates back at least to the signing of the Constitution, if not before. But the former is quite disturbing.

    From what I gather, Judge Martins thought the victim had (and the victim most likely did have) a fundamentally flawed conception of what Muslims actually believe. Martins used his superior knowledge on this point as a launch pad for his Sermon on the Bench. As if holding correct views on a subject is a prerequisite to gaining licence to mock that subject.

    This is a dangerous and pernicious idea. I think it is near the core of "tolerance" and "anti-bullying" and other such movements. It starts from an admirable premise: more knowledge and understanding are never bad things. But it progresses from there, and asserts that the only valid criticism of an ideology, or culture, or other social group comes from those who have as much knowledge of the group as the members of the group themselves. This has the effect of almost completely undermining any criticism that originates from outside of the social group, since almost nobody knows about the tenants of a group more than its members. The result is the (far too common) heuristic that only members of a group can engage in criticism of that group. All other criticism is ignorant, and thus deserves not only social shunning, but legal sanction.

  6. C. S. P. Schofield says

    The problem with the First Amendment and with modern conceptions of Censorship is that so few people really THINK about either. They don't see that telling some vile bigot that he can't say something is EXACTLY what the First Amendment prohibits. They don't see that refusing to PAY for something you find objectionable ISN'T. So they chatter about how de-funding the National Endowment For The Arts would be Censorship, or how "hate speech" is a legitimate exception to the Amendment. And they feel all smug, and usually react badly when you indicate they they are so full of dung that their eyes are brown.

    One of my pet hates is the inevitable "Censored Books" display that the local public library is sure to put up at least once a year. Somehow it is always chock-full of books that everybody agrees shouldn't be Censored, like HUCKLEBERRY FINN. And somehow it never includes anything really difficult to tolerate; say, THE PROTOCOLS OF THE ELDERS OF ZION or MEIN KAMPF. If they included those two, then people would really have to THINK about censorship, and about why it might be wrong to censor something really hateful. I've suggested it a time or two, and the Librarians have made polite noises, and still been willing to talk to me afterward, but so far nobody has been willing to DO it.

  7. says

    It's amusing that the judge believes anyone would swear, as a believer to whom the gesture held the terror of the gods, on a copy of the Analects, or "the book of Confucius" as he calls it.

  8. Jag says

    One of my first court appearances was before Judge Judy when she was still sitting on the bench. She yelled at me for quite a long time (it may have only been a few minutes though). Apparently the entire courtroom thought it was hilarious (minus myself and my unfortunate client I was covering for a friend).

  9. bw1 says

    So, Ken, from this post may we reasonably conclude that you blog because no one has appointed you to the bench yet? :)