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Old Lady Lawyer: What Justice Scalia's Death Tells Us About Civility

Whether you and he were kindred spirits or polar opposites, there will be more than enough time to use Justice Scalia's death for political reasons.

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old lady lawyer elderly woman grandmother grandma laptop computer Whoa… I had absolutely no idea that last week’s column discussing Christopher Buckley’s satirical novel on the Supreme Court would have such immediacy. Sadly, it has with the untimely passing of Associate Justice Antonin Scalia.

Untimely, you say, but he was 79. 79 may be ancient in some eyes, but for mine, and for many other dinosaur lawyers, Justice Scalia was still in the prime of his judicial career. Whether you agreed with his judicial philosophy or not, he was a towering figure in Supreme Court jurisprudence for three decades.

My intention for this week’s column was to rant (it’s my column, I can write what I want to… cue Lesley Gore’s song, “It’s My Party,” an oldie from the 1960s) about respect or lack thereof that seems to run rampant in the profession today. Justice Scalia’s death has provided a sad segue into the topic, not only of respect but of common decency.

Good grief, people, there’s been no service, no funeral, no burial for Justice Scalia, and yet Presidential candidates are all over the issue (and were within a few hours after notification of his death) about who will be his replacement. Really? This tacky behavior reminds me of the Army-McCarthy hearings way back in the mid-1950s (I was breathing then) when attorney Joseph Welch, Special Counsel for the United States Army, chastised Wisconsin Senator Joseph McCarthy during the Army-McCarthy hearings in the United States Senate.

Welch asked McCarthy if he had no decency, decrying McCarthy’s character assassination tactics in his hunt for a red (e.g. communist) under every bed. (You can find a number of excerpts of that confrontation on You Tube.) If you’re not familiar with the Red Scare, HUAC, and the Blacklist, to name just a few features of the post World War II era and you should be, then watch the movie Trumbo and/or the 2005 movie of a few years back called Good Night and Good Luck.

The decent thing to do right now would be for all candidates to stuff socks in their mouths until a respectable interval has passed before staking out extreme positions, or any position for that matter, on the next nominee to the Court, whoever it may be. Candidate proclamations of whatever kind are inappropriate right now. The President said that he will nominate someone in due course.

As John Oliver has said, “Simmer down, simmer down.” Appropriate words at this juncture. What must Justice Scalia’s family, friends, and colleagues be thinking about this unseemly, disrespectful display while suffering through the grievous and unexpected loss of a loved one who was in the public spotlight? Anyone who has ever experienced the sudden death of a loved one without the chance to say goodbye will understand the depth of grief. Decency, respect, whatever happened to those concepts? Whether it be a case management conference, hearing on a dispositive motion, or whatever, we all know that whenever a lawyer tells the court “with all due respect,” that is essentially code for “your honor, you’re an idiot [fill in your adjective of choice].” I would imagine that most judicial officers, when they hear those words, think that the attorney is the [fill in the blank] and rule to that counsel’s detriment. Whatever happened to saying simply and respectfully, “Your Honor, I disagree and here’s why?”

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In a case I mentioned some columns back where the court granted terminating sanctions due to the bad behavior of a plaintiff’s lawyer toward defense counsel, that plaintiff’s lawyer claimed in his opposition to the defense motion that the judge was “a former D.A. currently masquerading as a Superior Court judge” and was defense counsel’s “pet dog.” Not exactly terms of respect, were they?

Given the current election cycle, when derogatory terms (such as “pussy” and words to the effect of “liar, liar, pants on fire”) are tossed around like those stupid beach balls at a boring baseball game [at least that happens at Dodger games here in Los Angeles], that lack of common decency and respect for one another as human beings is now considered acceptable behavior for the rest of us.

If members of the Supreme Court can be collegial, cordial, and even “besties” as Justices Scalia and Ginsburg were, especially given their very different judicial perspectives, why can’t members of the bar follow their example? Granted, that collegiality did not spill over into their opinions, based on their different legal philosophies and life experiences. What do we, as lawyers, do to model collegial behavior? We can talk about “civility” and “professionalism” ad nauseam, but unless we practice what we preach, those terms are just words, and we’re very good with words.

I’m a dinosaur who was raised (and I think most dinosaur lawyers will agree) with certain immutable concepts: respect your elders, work hard, don’t expect anything to be given to you, and so on. Manners were critical to a civil society. We were taught to say “please,” “thank you” and “you’re welcome,” which has now having been replaced by “no problem.” Where did THAT phrase come from? And wherever it’s come from, I wish it would go back from whence it came.

Why is it so hard to be civil? No one denies that lawyering is hard and difficult, especially at 3 a.m. when you wake up in a cold sweat wondering if you’ve blown a statute of limitations. Would it kill us to be decent, civil, and respectful to each other or is the profession adapting the larger incivility that seems to be abroad in the land?

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Just as on the campaign trail these days, it seems like we have forgotten our manners. Where has our sense of decency gone? Shame on all those who are in such a hurry to make political the deeply personal. Justice Scalia was a lawyer who devoted almost all of this life to public service. Whether you and he were kindred spirits or polar opposites, there will be more than enough time, since it’s only February, folks, to use his death for political reasons.

Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at [email protected].

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