Richard Posner

Judges of the Day: Wilbur Mathesius and James Brooks

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foot in mouth.gifToday we have TWO judges of the day. Both win the prize for their honesty and fearlessness. These jurists aren’t afraid to speak their minds, and for that we salute them.
First, there’s Judge James Brooks, of “the O.C.” — Orange County, California.

An Orange County judge with a sharp tongue and a history of making insensitive comments about ethnic minorities was publicly admonished by the Commission on Judicial Performance.

The commission cited [a] contempt hearing where litigant Arnold McMahon told Brooks that he didn’t attend a scheduled Oct. 15 deposition because he had gone to the hospital with chest pains.

“Gee,” Brooks responded. “I wonder what’s going to happen when we put you in jail, Mr. McMahon. Your little ticker might stop, you think?”

Come now — that’s a bit tepid. We’ve heard harsher words from federal appellate judges at oral argument. This was more compelling:

[T]he commission noted that Brooks had been privately chastised three times since 1996 for similar conduct. The commission-cited punishments include: a 1996 advisory letter for referring to Hispanic defendants as “Pedro,” and issuing a bench warrant for an Asian defendant for “ten thousand dollars or twenty thousand yen”…

Second, there’s Judge Wilbur Mathesius, a Superior Court judge in Mercer County, New Jersey.

New Jersey’s Supreme Court on Thursday handed Judge Wilbur Mathesius a one-month suspension without pay for making shoot-from-the hip comments that undermined the judicial system….

[Judge Mathesius allegedly] berated a jury for acquitting a defendant of illegal handgun possession. According to the complaint, Mathesius went to the jury room and said, “What the hell were you thinking?” He then told the jurors the defendant had a prior criminal record and chose to not testify because of that record; that another witness would have testified for the prosecution had he not been threatened; and that the prosecution’s principal witness was the most credible he had ever seen.

This was only one of several incidents for which Judge Mathesius was disciplined. He also made some over-the-top comments about the death penalty. When criticized for these comments before the New Jersey Supreme Court, he responded as follows:

Mathesius observ[ed] that Seventh U.S. Circuit Court of Appeals Judge Richard Posner “has written on many of the same subjects,” [and Mathesius] suggested that members of the New Jersey judiciary do the same.

Judge Mathesius, we know Judge Richard Posner. We have corresponded with Richard Posner. And you, sir, are no Richard Posner.
You are a state court judge. In the trial court. In New Jersey. In a word: ICKY.
(We mean no disrespect to the Garden State, from which we hail. But the “state court” and “trial court” aspects are proper subjects of disdain.)
Vociferous Judge Is Suspended a Month Without Pay [New Jersey Law Journal]
Judge Scolded for Insensitive Remarks [NYLawyer.com]

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Wherein We Receive An Email from Celebrity Law Prof Tim Wu

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Tim Wu Timothy Wu Above the Law.jpgAlthough we mentioned it in passing, we didn’t give adequate attention to Anna Schneider-Mayerson’s delightful profile of Tim Wu when it appeared earlier this month in the New York Observer. (It was discussed on several other prominent blogs.)
Now we have an excuse to double back and correct the error: We’ve received an email from the good professor! Here it is (reprinted with permission):

Hi this isn’t exactly a tip — I just read your entry for above the law and the FedSoc conference, and wanted to say sorry I couldn’t meet you at the Net Neutrality panel…. It turned out I had the wrong date and it conflicted with my Thursday copyright class, so I couldn’t come….

I hope to run into you in person one of these days.

Best,
Tim

Wow! When we received this email, we giggled girlishly with excitement. First, Professor Wu is brilliant. As noted in the profile, he was nicknamed “the Genius Wu” by no less an authority than Judge Richard Posner, who knows genius when he sees it (e.g., when he looks in the mirror).
Second, Professor Wu is quite handsome (see photo). How many other Columbia Law School professors have earned themselves a music video tribute (“Ain’t No Other Man But Wu”) from their students?
(Our only grooming suggestion to Professor Wu: Have those eyebrows thinned. We go to someone very good for ours, but she’s probably not convenient for you given that you’re in New York.)
Finally, we were glad to learn why Professor Wu missed the Federalist Society panel: he misread his calendar. It’s nice to know that a member of the Elect — and not just any old Supreme Court clerk, but one who has been called “indefatigable” and “a valuable man in chambers” by his former boss, Justice Breyer — makes scheduling mistakes. How utterly charming!
Wu-Hoo! Nutty Professor Is Voice of a Generation [New York Observer]
Tim Wu, Voice of a Generation [Volokh Conspiracy]
George Clooney’s Got Nothing On Tim Wu [WSJ Law Blog]
“I Heart Wu” [YouTube]

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ATL Week in Review: November 20-24

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Borat Borat Borat lawsuit law litigation legal Borat Borat Borat.JPG* Another week, another Borat lawsuit.
* Wow — it doesn’t take much to get lawyers all hot and bothered. But ATL readers were evidently untroubled.
* Merry Christmas. There will be no O.J. Simpson book.
* But no Britney sex tape, either.
* Wesley Snipes has some harsh words for the IRS. And Judge Posner does, too.
* We hung out a lot with the Federalist Society. We watched the social conservatives and the libertarians slug it out over cultural issues. And we learned that Judge Edith Jones isn’t the woman we thought she was.

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Benchslapped: Judge Posner Gets Medieval on the IRS

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Richard Posner Richard A Posner Above the Law Legal Blog.jpgFew things make us happier than when judges administer benchslaps to either colleagues or litigants. When the judicial power of the United States is deployed to diss, the result is fun for the whole family.
Heck, bench-slaps can even make tax law enjoyable! If you doubt this proposition, check out Judge Posner’s recent opinion in Kohler Co. v. United States (PDF).
Here are a few excerpts. We’ve pulled them out of context, and we won’t bother to get into the complex facts of the case; but the benchslappery is still evident:

“How to choose between adversaries’ valuations when both are manifestly erroneous?”

“[The IRS's effort] to prove that the pesos were indeed worth $19.5 million fell pathetically short of the mark….”

“[C]linging stubbornly to its untenable valuation, [the IRS] suggested no alternative to $19.5 million. It played all or nothing, lost all, so gets nothing.”

Way harsh — but at the same time, direct and matter-of-fact. The straightforward nature of Posnerian benchslaps is what makes them so elegant, effortless, and enjoyable.
This latest benchslap from Judge Posner calls to mind our prior observations about his writing style:

The Posnerian prose style is wonderfully dry, and Judge Posner’s amazing writerly feat is his generation of delight from desiccation. The Giant Hedgehog doesn’t laugh at his own jokes, which just makes them funnier. And when he cuts you down, with a clean slice of his linguistic lightsaber, his face bears no expression. It’s all done with a clinical elegance; disdain is a dish best served cold. Magnificent!

With most judges, you can see the benchslap coming a mile away. They take forever to wind up that slapping arm, and when they make contact with their target, you can hear the “whack” for miles. With Judge Posner, in contrast, you’re benchslapped before you even REALIZE you’ve been benchslapped.
This makes perfect sense. Why? Judge Posner’s hand is too good for your face. And the national treasure known as the Posnerian Brain shouldn’t be wasted on benchslappery, since it really could be put to more productive use.
Like having electrodes hooked up to it, so we can finally end America’s dependence upon foreign oil.
Kohler Co. v. United States [Seventh Circuit (PDF) via How Appealing]
Posner Slams IRS’s “Pathetic” Position in Mexican Debt-Equity Swap Case [TaxProf Blog]
The Hilarious Hedgehog: Judge Richard Posner [Underneath Their Robes]

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Non-Sequiturs: 10.16.06

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may it please the court women's tank top.JPG* So it’s official. I’m not going to get into my spiel about western paternalism, but celebrities, please note: there are countless children in THIS country who need a family. [Associated Press]
* Can you say “Oh no he didn’t!”, when he doesn’t even know that he did? Note to anonymous Australian professional — colonial chic is passé. [Opinionistas]
* Mayor Gavin Newsom, ex-husband of ex-San Francisco assistant DA and Court TV hottie Kimberly Guilfoyle-Villency, has some real young arm candy. Yes, she’s legal — just not of legal drinking age. [San Francisco Chronicle]
* I keep forgetting we need a license to do this job. [New York Magazine]
* You may read that a Columbia Law professor has created a searchable site of Posner opinions. They’re funny, apparently, but probably not as useful as his 1996 book. [Project Posner]
* I love to celebrate the adventurous, entrepreneurial spirit of the common lawyer. But, um….maybe not. [Illegal Briefs]

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A Bit More On Justice Breyer, and Judicial ‘Rock Stars’

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stephen breyer contemplative.jpgIt’s another amazingly beautiful day here in New York, and we’re blogging from Bryant Park. The temperature is in the low 70′s, there’s not a cloud in the sky, and a slight breeze is blowing. Life is good.

We don’t have much time — we’re about to run off to another New Yorker Festival event — but after sleeping on it, and reviewing our notes (’cause that’s what they’re for), we’d like to revise our earlier assessment of Justice Breyer’s interview with Jeffrey Toobin yesterday.

Although it could have been more fun, if Justice Breyer had been more forthcoming, there were actually quite a number of interesting stories and humorous moments — more than we remembered. Yesterday’s take may have been influenced by the fact that the interview’s highlights were clustered toward the beginning of the talk, and more of the bland civics-lecture material was near the end. So immediately after leaving the talk, it was the dry stuff that stuck in our mind. We’ll have more to say later about the best parts of the interview.

In the meantime, check out Ann Althouse’s great question:

David Lat gets antsy when an interview with Justice Breyer is insufficiently confessional. Why can’t he be more like Justice Scalia (or Judge Posner or Judge Kozinski)? Is there some reason the conservative judicial stars are more fun? Do liberals always have to demonstrate their circumspection?

It’s a fascinating inquiry, and one that we’ve entertained often ourselves. Do you have thoughts on why today’s leading judicial “rock stars” tend to be conservative? If so, please place them in the comments. (We’d like to see more robust debates in the comments here at ATL, like at other blogs.)

Three thoughts that we’d like to offer, before you accuse us (and Professor Althouse) of being biased in favor of conservatives:

1. There are a number of charismatic, colorful, outspoken federal judges who are quite liberal. Four examples, off the top of our head: Judge Stephen Reinhardt (9th Cir.), Judge Guido Calabresi (2d Cir.), Judge Jack Weinstein (E.D.N.Y.), and Judge Nancy Gertner (D. Mass.). So, in fairness to the left wing, let’s admit that they too have their icons.

2. Today the top judicial celebrities tend to be conservative. Is this just because the Republicans have been in power for quite some time — and because the most recent Supreme Court nominees, as well as any SCOTUS nominees in the near future, will probably be conservatives?

(Or maybe not. Judge Kozinski or Judge Posner are both brilliant, but they are unlikely Supreme Court nominees, perhaps because they are so outspoken and larger-than-life.)

3. It wasn’t always like this. Two of the most enjoyable and entertaining Supreme Court justices of the twentieth century were Justice Douglas and Justice Brennan — and they don’t come more liberal than that. (So don’t accuse us of refusing to recognize fascinating figures of the judicial left. We just feel that the best ones aren’t around today.)

Okay, gotta run. Apologies for typos or sloppy (or sloppier than usual) writing; we haven’t proofread this. Hasta luego.

“If you’ve sat through one of Justice Breyer’s civics lectures on C-SPAN… you’ve heard this all before.” [Althouse]

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A Rather Random Meditation on Techne

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dress form.jpgGee, we sure wandered off the reservation. We started off intending to write about this interesting Wall Street Journal article, discussing the lawsuit filed by high-end handbag maker Coach against big-box retailer Target (pronounced by some “tar-ZHAY”).
Sure, the news is a few days old. But we couldn’t resist writing about it, since it combines two of our great interests: law and fashion. As we mentioned earlier, lately we’ve grown quite interested in handbags, after reading Andrea Lee’s fascinating article about them in the New Yorker’s recent fall style issue.
From the WSJ article about the case:

Coach alleged that Target was a counterfeiter by selling a Coach-style purse, complete with a hang tag that says “Coach,” according to Coach Chief Financial Officer Mike Devine. The allegedly fake bag has Coach’s signature C-pattern and a touch of snakeskin-like fabric in the center of the bag, according to a photo of it included in the lawsuit. The bag, purchased from a Target store in Largo, Fla., is an “exact replica of a genuine Coach handbag” bearing at least one Coach trademark, the suit says.

This reminded us of the famous Coco Chanel quote: “Imitation is the sincerest form of flattery.” Of course, Coach seems more incensed than flattered by what Target has allegedly done.
That in turn made us think about this great piece in the Times magazine, which we just finished reading, about the late Madeleine Vionnet. Vionnet, who passed back away in 1975, is widely regarded as the twentieth century’s queen of cut and drape. Here’s how the Times describes her:

White-haired and unglamorous, [Vionnet] shunned the limelight sought by her archrival, Coco Chanel, who got her start making hats and whom Vionnet often derided as just a milliner. Late in life, Vionnet conceded that Chanel had taste, but she forever felt superior to the popularizer of quilted handbags and black-toed slippers.

While we adore Chanel (who doesn’t), we must profess special admiration for Vionnet. Many professionals, once they reach the top of their field, become “big picture” people, refusing to sully their hands with little details. Chanel and many other designers, for example, reach a point where they don’t make clothes themselves, but just give the “thumbs’ up” or “thumbs’ down” to what their junior designers have come up with.
But we deeply admire people at the top who haven’t lost the skills they honed while climbing the ladder to success — and who can still exercise those skills when called upon to do so. This type of knowledge is what the Greek philosophers referred to as techne, i.e., “art, craft or skill.”
Here are some categories of people we admire on these grounds:

– Biglaw partners who still draft their own briefs, like many of the ones we worked with at Wachtell Lipton;

– celebrity chefs who still prepare meals with their own two hands, like Thomas Keller and Mario Batali; and

– contemporary artists who, instead of having workshop minions execute their abstract concepts, still paint their own paintings (extra points if the work is figurative).

And, of course, judges who still draft their own opinions, like Seventh Circuit judicial deities Richard Posner and Frank Easterbrook. They aren’t just Article III machines dispensing outcomes, and issuing marching orders to their clerks; they are legal craftsmen. They are the federal bench’s answer to Cristobal Balenciaga, about whom Judith Thurman wrote the following (in the July 3, 2006 New Yorker):

Arbiters of fashion generally agree that Balenciaga, the son of a Basque fisherman and a seamstress, was the greatest couturier of the last century. Dior considered him the primus inter pares, and Chanel conceded that Balenciaga alone could construct a perfect garment from start to finish with his own hands, whereas everyone else was merely “a designer.”

Actually, maybe our Balenciaga comparison goes too far. Here’s what we need to know about Judge Posner and Judge Easterbrook before we dub them the Balenciagas of the federal judiciary: Do they do their own Westlaw and LEXIS research? If so — if they can locate, Keycite, print out, and highlight the cases, statutes, and other authorities they rely upon — then they truly can “construct a perfect [opinion] from start to finish with [their] own hands.”
(This was quite a digression. We thank you for your indulgence.)
Not Our Bag, Coach Says [Wall Street Journal via WSJ Law Blog]

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Non-Sequiturs: 09.23.06

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Some random reading recommendations, which don’t have much to do with law. But that’s what weekends are for, right?
* Suffering from Entourage withdrawal? Read about a real-life agent dumping (by Jim Carrey). [Defamer]
* Suffering from Project Runway withdrawal, since there was no new episode this week? Get your hands on the New Yorker’s fantastic fashion issue. The profile of Diane von Furstenberg — by Larissa MacFarquhar, who once profiled Judge Richard Posner — is especially worthwhile. So is Andrea Lee’s article about high-end handbags (“The Bag Lady”). [New Yorker (table of contents; most articles not online)]
* Suffering from Harriet Miers withdrawal? Head over to the blog of Cardinal Sean P. O’Malley, Archbishop of Boston. Then run a search (ctrl-F) for “LOL.” [Cardinal Seán’s Blog via New York Times]

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Paris Hilton: When the Polls Will Close

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paris hilton.jpgVoter turnout in our ATL reader poll, Who Is the Paris Hilton of the Federal Judiciary?, has been surprisingly good. Not as good as turnout in our ERISA Hotties Contest; but certainly stronger than the anemic response to the August 2006 Couple of the Month survey.
If you haven’t already voted, you can review the field and cast your ballot by clicking here. Please note that the poll is being administered by Pollhost. As a result, we have no control over any technological glitches (e.g., being told you already voted when you didn’t — this is probably because someone else in your office already did, and Pollhost treated that IP address as yours).
At the current time, Judge Alex Kozinski of the Ninth Circuit — the reigning male Superhottie of the Federal Judiciary — has a strong lead. But his colleague on the Ninth Circuit, Judge Kim McLane Wardlaw — the federal judiciary’s #2 Female Superhottie, as well as its #1 Gay Icon — is running right behind him (her Manolos be damned).
Here’s what one reader had to say about the results thus far:

I am astounded by the vote tally. Judge Kozinski is no Paris Hilton. He’s more like Sean Puffy Combs.

We see this reader’s point. First, Paris Hilton is a woman — and oh what a woman! So the three female judges may have a better claim to her bejeweled mantle than the two men.
Second, the Kozinski-Combs comparison is strong: both men are international superstars, with devoted fans, who are believed to enjoy tequila and fabulous parties.
(But, with all due respect to Judge Kozinski, Sean Combs is a better dresser. The black velvet tux that he wore to the Oscars two years ago is way more stylish than any black robe.)
With the voting well underway, it’s time to declare when the contest will end. The polls will close on Tuesday, September 26, at 1 PM (Eastern time). This will allow the candidates to campaign over the weekend (e.g., by spamming all their former clerks). It will also allow West Coast readers — and contestants — to vote one last time when they get into work that morning.
We wish these five distinguished jurists the best of luck in their quest for this distinction. If they have any campaign messages to disseminate, we invite them to email us.
Think about it, Your Honors. Wouldn’t “The Paris Hilton of the Federal Judiciary” look great in the “Miscellany” section of your Almanac of the Federal Judiciary write-up? Fun stuff!
Earlier: ATL Reader Poll: The Paris Hilton of the Federal Bench

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ATL Reader Poll: The Paris Hilton of the Federal Bench

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paris hilton.jpgToday is the first day for judicial clerkship interviews under the official Law Clerk Hiring Plan (which some judges follow, and some judges don’t). We’re going to celebrate the occasion with a judge-related poll.
Here at Above the Law, we love ourselves some Paris Hilton. She’s beautiful, blonde, and rich. She’s fabulous and glamorous. She’s a gifted model, actress, singer, dancer, and businesswoman. (And yes, she’s good at that, too.)
Here are some quotes from a recent New York Sun article about Paris that capture some of our feelings about her:

Says Camille Paglia: “She feels the Zeitgeist. She has that dancer’s feel for the camera, for the observing eye, and she produces fantastic still pictures.” Ashley Barrett, global PR director for Coty Prestige, has added, “She is very clever about giving the press what they want — provocative fashion, an ever-increasing list of projects, scandal. She gives great paparazzi.”

Some people deride Paris Hilton as being “famous for nothing” or “famous for being famous.” We disagree; but if this were true, it would only make Paris more fantastic. It would make the purest incarnation of fame possible: fame undiluted by the distracting presence of accomplishment.
And, as everyone knows, we also love ourselves some federal judges. So here’s today’s poll:

Who is the Paris Hilton of the federal judiciary?

Here are the contenders and what they share in common with Paris:

Judge Maryanne Trump Barry (Third Circuit): ’cause she’s a filthy rich heiress (daughter of the late real estate magnate Fred Trump, and big sister of The Donald).

Judge Alex Kozinski (Ninth Circuit): ’cause he’s a genius at self-promotion.

Judge Richard Posner (Seventh Circuit): ’cause he’s a multitalented public intellectual.

Judge Shira Scheindlin (Southern District of new York): ’cause she’s a Gotham-based biatch difficult woman.

Judge Kim McLane Wardlaw (Ninth Circuit): ’cause she’s a blonde diva — and HOTT!!!

Who is the Paris Hilton of the federal judiciary?
Judge Maryanne Trump Barry (3d Cir.)
Judge Alex Kozinski (9th Cir.)
Judge Richard Posner (7th Cir.)
Judge Shira Scheindlin (S.D.N.Y.)
Judge Kim McLane Wardlaw (9th Cir.)
  
Free polls from Pollhost.com


HAPPY VOTING!!!
Update: Paris Hilton: When the Polls Will Close
Paris Hilton: She’s With the Brand [New York Sun]

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