From the Above the Law mailbag: “Is ATL ever going to call out Judge Posner for being so needlessly nasty to litigants?”
Ummm, no. I’m a big fan of Judge Richard Posner, who is brilliant and hilarious. (Yes, hilarious — if you doubt that, check out the awesome podcast that he and I did together, which you can download and listen to during your commute or at the gym.)
But in the interest of fairness, I will make this reader’s case. This correspondent cited the recent oral argument in Notre Dame v. Sebelius, which we alluded to yesterday, in which Judge Posner dispensed some benchslaps to Matthew Kairis, head of litigation in the Columbus office of Jones Day. The reader also mentioned the argument on remand in the Conrad Black case, alleging that Posner “was particularly nasty to Miguel Estrada, seemingly piqued that Estrada got him reversed by SCOTUS.”
Let’s focus on the Notre Dame v. Sebelius argument, since it just happened. How bad was it?
I’ll let readers judge for themselves. Was Judge Posner being rude to Matthew Kairis? Or was Judge Posner just getting frustrated at Kairis not answering questions directly and trying to talk over the panel? Was Kairis, who appears to be a trial rather than an appellate lawyer, out of his depth? Or was Judge Posner just being gratuitously unpleasant and peremptory?
Writing over at How Appealing, Howard Bashman, a veteran appellate litigator, seems to side with Posner:
Putting it mildly, Judge Posner was at his cantankerous best during the oral argument, at one point yelling at Kairis “You answer my question!” ….
Several times during the oral argument, Judge Posner told Kairis “Please don’t interrupt me.” Some of those times, however, it was Judge Posner who was interrupting Kairis, who then failed to stop talking. Instead of trying to prove the point “You don’t interrupt me; rather, I interrupt you,” maybe Judge Posner could have better communicated his message by telling the advocate, “When I start talking, you must stop talking.”
But one could argue that of course Bashman would side with Judge Posner, considering that Bashman might someday appear before Judge Posner. Over at the Volokh Conspiracy, there’s additional commentary from Will Baude (although more focused on the legal issues and less focused on what Professor Baude describes as the “quite unproductive and testy exchanges” between Posner and Kairis).
Listen to the oral argument and decide for yourself. I’ve pulled out some of the juiciest parts (times are approximate):
- 12:10 – Posner to Kairis: “Don’t interrupt me, please — let me finish.”
- 13:10 – Posner to Kairis: “Answer my question. Don’t fence with me.”
- 15:27 – Posner to Kairis: “Stop fencing with me. I gave you a very simple example….”
- 16:17 – Posner to Kairis: “You. Answer. My. Question!” Kairis to Posner: “I am!”
- 16:25 – Posner to Kairis: “If you don’t cooperate with me, I’m not going to let you continue your argument.”
- 18:00 – The very reasonable-sounding Judge David Hamilton tries to play peacemaker, telling Kairis that the court has heard a great deal from him and his client over the past few weeks and now has “a lot of questions” of its own.
- 20:11 – Posner to Kairis: “Would you stop babbling…. You must have argued cases before. You’re not supposed to interrupt judges. If they ask questions that can be answered ‘yes’ or ‘no,’ then you answer ‘yes’ or ‘no.'”
- 22:55 – Posner to Kairis: “That’s ‘yes’ or ‘no.’ I don’t want a big speech. I want you to say ‘yes’ or ‘no.'”
- 35:25 – Posner asks Kairis if using contraception is a mortal or venial sin in Catholic theology — and chastises Kairis for not knowing the answer.
Play the recording and decide for yourself. Readers, what do you think?
So you thought your appellate oral argument was contentious? [How Appealing]
Thoughts on oral argument in Notre Dame v. Sebelius [Volokh Conspiracy / Washington Post]
Notre Dame v. Sebelius [U.S. Court of Appeals for the Seventh Circuit]
Judge, Notre Dame attorneys spar in school’s health care law appeal [Chicago Tribune]
Richard Posner and David Lat: “Judges as Public Figures” [University of Chicago Law School]