The benchslapper has become the benchslapped. Judge Sam Sparks, of the U.S. District Court for the Western District of Texas, just got smacked around by a higher authority: Chief Judge Edith Jones, of the U.S. Court of Appeals for the Fifth Circuit.
Last month, Judge Sparks issued a sharply worded order in which he compared the counsel appearing before him to squabbling schoolchildren — and invited them to a “kindergarten party,” where they would learn such lessons as “how to telephone and communicate with a lawyer” and “how to enter into reasonable agreements about deposition dates.” In the end, Judge Sparks ended up canceling the party, after the publicly shamed lawyers worked out their issues — but not before his infamous order received national attention within the legal community.
Many observers were amused by Judge Sparks’s order — which was not the first time His Honor has gotten saucy with lawyers in recent weeks (or in his judicial career, for that matter). But a minority felt that the order was over the top and gratuitously nasty.
Among the unamused: Edith Jones, who oversees the federal courts of Texas in her capacity as Chief Judge of the Fifth Circuit. What did she have to say to Sam Sparks?
Here’s what Chief Judge Jones wrote to Judge Sparks and his fellow judges in the Western District, in an August 30 email (from the Texas Lawyer):
It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks. The order attached below is the most recent.
Frankly, this kind of rhetoric is not funny. In fact, it is so caustic, demeaning, and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel. It suggests either that the judge is simply indulging himself at the expense of counsel or that he is fighting with counsel in what, as Judge Gee used to say, is surely not a fair contest. It suggests bias against counsel.
No doubt, none of us has been consistently above reproach in our professional communications with counsel. We are all prone to human error. But no judge who writes an order should allow such rhetoric to overcome common sense.
Ultimately, this kind of excess, as I noted, reflects badly on all of us. I urge you to think before you write.
Ouch. She sure turned that around on him, like [insert metaphor of your choice here].
This is not the first time that a supervising judge has cracked down on the perceived excesses of a benchslapping colleague. After Judge Peggy Ableman of Delaware issued a harsh order that was strikingly similar to Judge Sparks’s, summoning attorneys to a “refresher course” on professionalism over Labor Day weekend, Presiding Judge James T. Vaughn Jr. took over the case from her and canceled the class.
So what did Judge Sparks and Chief Judge Jones have to say about her email reprimand?
Sparks was out of town and could not be reached for immediate comment about the email. Jones declines comment on the substance of the email but says she was “saddened” that it had been released to others, including Texas Lawyer.
“It’s an internal matter,” Jones says. “And I’m saddened that somebody breached the intended limited scope of the intended distribution.”
Welcome to the digital age, Your Honor. Guys in my high school used to breach the intended limited scope of the intended distribution all the time, it’s no big deal.
Getting scolded by Chief Judge Jones, however, is a big deal. She is a leading conservative jurist, considered so often for the Supreme Court that Slate dubbed her “Susan Lucci in judicial robes.” (And even if she hasn’t been able to get herself to One First Street, she has sent a number of her clerks there, mainly to the chambers of Justice Clarence Thomas, her fellow traveler in the Federalist Society.)
So Judge Sparks better curb his keyboard in the weeks ahead. Chief Judge Jones, a formidable figure in both Texas and national legal circles, is known for her toughness. In a 2004 post over at Underneath Their Robes, I wrote about her as follows:
[Judge Jones] is a 1985 Reagan appointee. Under President George H.W. Bush, this right-wing judicial diva almost made it to the Supreme Court. She was interviewed by President Bush for the Supreme Court seat that eventually went to the Hot. David H. Souter, but President Bush found her abrasive and chilly manner so off-putting that he ended up going with his fellow Yankee, with whom he felt more comfortable personally. (What a mistake that was! “Et tu, Souter?”)
Judge Jones is still quite young, and her name comes up regularly on Supreme Court short-lists for a Republican administration…. But it may be difficult for this “Federalist Society pin-up girl” to win Senate confirmation, given her reputation as a “horsewoman of the right-wing apocalypse.” Indeed, according to one story making the rounds, Judge Jones once complained to a defense lawyer that his client’s last-minute death penalty appeal was keeping her from attending a birthday party. Death row inmates? “Let them eat cake!”
Don’t mess with Texas — or with its judicial divas.