Wednesday, June 08, 2011
Beldar on Katyal's quip to the Eleventh Circuit
Ann Althouse posted today about a first-hand report by Volokh Conspirator Sasha Volokh about a quip made at today's oral argument of the Eleventh Circuit case on Obamacare. The quip was from Acting Solicitor General Neal Katyal, who said, on behalf of the government in defending the constitutionality of the statute, that the individual mandate provisions of Obamacare “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."
Prof. Volohk caught Prof. Althouse's eye with Prof. Volohk's own counter-quip about Katyal's quip — a pretty obscure one about Lockner v. New York from long ago. I approve of legal humor, obscure or ribald, on blogs.
But I'll share here (slightly edited but not blockquoted) the comment I left on Prof. Althouse's blog:
As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:
- If one of the judges makes a joke, it's always funny.
- If one of the lawyers makes a joke, it's always wrong.
As an appellate advocate, you're trying to project the image of an earnest scholar of the law who's trying to help the court do its duty and write good precedent. (Precedent which will also — Quel miracle! — help your client.) You aren't trying to be Jon Stewart.
Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion.
This goes for smart-assedness in court in general, and it's a lesson I was taught in my first big first-chair jury trial, long, long ago.
UPDATE (Thu Jun 9 @ wee-smalls): I just found out that Katyal is Jeffrey Rosen's brother-in-law. (Excuse me, that would be "The Jeffrey Rosen.") The universe is sometimes surprisingly orderly that way, I guess. But believe it or not, I'm actually planning (and have long procrastinated actually writing) something fairly complimentary of The Jeffrey, and so perhaps seeing his name again will remind me to do so.
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Editing note: Changed "lawyers who do this are servicing" to "lawyers who crack wise in oral arguments are servicing" to cure an ambiguity.
(2) Gregory Koster made the following comment | Jun 9, 2011 3:36:32 AM | Permalink
Dear Mr. Dyer: "Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion." Sure. This is good common sense: judges have to listen to lots of arguments, and you don't have all dam day, so stick to business and get on with it.
But look at ol' Neal's bio. This is not someone bred for common sense, let alone humility. This is another candidate for the Leopold Amery "I'm the Cleverest Bloody Fool Alive" award. He made his rep treating the opposition like dirt, and sees no reason to change his ways now. Besides why should he care what the Eleventh thinks? This is going all the way to the top, and all that has to happen is for Scalia who is, or will be, 75 this year, to kick the bucket and all will be well. You may accuse me of excessive facetiousness again, but what else would explain Katyal's unnecessary crack?
Mr. Koster, I'm certain that Katyal would rather go to the SCOTUS as respondent rather than petitioner — i.e., as the winner from the Eleventh Circuit. But you're right that that's where it will be decided.
You and I seem to value common sense more than the average Democratic president, though. Look for Katyal to collect with a nomination to the federal bench before Obama leaves office.
Doesn't your advice depend on the premise that appellate judges haven't already made up their minds, long before oral arguments? (can you possibly think every Supreme Court justice hasn't already made up their mind on Obamacare?)
Second, why would it matter if an attorney cracked a joke? Are you suggesting that a judge will change his opinion based on whether he likes or dislikes something the attorney did during oral arguments? Isn't the judge supposed to base his opinion on his reading of the law? And not on how funny or unfunny one of the attorneys might have been? If not, then they're not doing their jobs, are they?
Steve (#4), you might be interested in this comment I've left about oral arguments over on Patterico's blog.
Most judges mostly have their minds made up before oral argument. Good judges ought not "take points off" for bad jokes. Yup.
But advocates live in the real world, where we owe a duty to our clients to try our bests to mitigate even the small and unfair risks, and to eliminate all risks that can be avoided at no substantial costs.
No one ever lost even any style points with any appellate judge for failing to crack a joke. The opposite is not true. What should the ethical advocate therefore do? The answer seems obvious to me, but obviously isn't obvious to the Acting Solicitor General of the United States.
As for the SCOTUS, I don't know how many of them, if any of them, have already reached an unshakable conclusion on Obamacare. I do believe, however, that every single one of them believes he or she hasn't, and will try not to. I believe Scalia and even Kagan would look you in the eye and tell you that each thinks the other is trying as hard to reserve judgment as he or she possibly could, and they'd be giving you their truthful impressions of each other. Being human, they'll succeed at that imperfectly at best, and I'm pretty sure I can predict today where 8 of the 9 will end up (albeit I'm not confident there will be a single majority opinion joined by all 5 whose votes decide the outcome).
I'm not suggesting that this kind of crack could cost the Obama Administration any votes at any level of the appellate courts on any case. I just disapprove.
This is about speaking for history, not auditioning for a panelist slot on Bill Maher's show. Speaking for history is certainly how the judges will be viewing it.
And someone tell Dahlia Lithwick to get off my lawn.
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