"I want you to shut up."

That was what Judge Edith Jones, the Chief Judge on the United States Court of Appeals for the Fifth Circuit, told Judge James Dennis, one of her colleagues on the 5th Circuit. I have no idea whether it is normal for appellate judge to tell each other to shut up when they are not in court. Judge Jones, however was in court. In fact, Judge Jones told Judge Dennis to shut up at an en banc hearing. That is, she told him to shut up in front of all of their fellow judges on the 5th Circuit.

While the story has also been mentioned by the ABA Law Journal and Texas Lawyer, Above the Law does a nice job of setting the scene. In January, a panel of the 5th Circuit reversed a conviction on involving a conspiracy to sell marijuana. The case is called United States v. Delgado. One judge on the panel dissented. The Fifth Circuit voted to rehear the case en banc and the hearing was held on September 21.

At the hearing, the government's lawyer apparently spent the first seven minutes of the oral argument asking questions from Judge Dennis (who wrote the opinion that was being reheard). Chief Judge Jones seems to have found this exasperating. As Judge Dennis was starting to ask another question the following interlude took place (italics mine):

JUDGE DENNIS: Well, we’ve said over and over that the amount…. this court, no court has said that you can infer….

CHIEF JUDGE JONES: Judge Dennis….

JUDGE DENNIS: … just on the basis of the amount of drugs …

CHIEF JUDGE JONES: Judge Dennis!

JUDGE DENNIS: Can I, can I, can I ask a question?

CHIEF JUDGE JONES: You have monopolized, uh, uh, seven minutes….

JUDGE DENNIS: Well, I’m way behind on asking questions in this court. I have been quiet a lot of times, and I am involved in this case….

CHIEF JUDGE JONES slams her hand down on the table (loudly), stands halfway up out of her chair, and points toward the door.

CHIEF JUDGE JONES: Would you like to leave?

JUDGE DENNIS: Pardon? What did you say?

CHIEF JUDGE JONES: I want you to shut up long enough for me to suggest that perhaps….

JUDGE DENNIS: Don’t tell me to shut up….

CHIEF JUDGE JONES: … you should give some other judge a chance to ask a question …

JUDGE DENNIS: Listen, I have been in this courtroom many times and gotten closed out and not able to ask a question. I don’t think I’m being overbearing….

CHIEF JUDGE JONES: You’ve been asking questions for the entire seven minutes….

JUDGE DENNIS: Well, I happen to be through. I have no more questions.

CHIEF JUDGE JONES: I just want to offer any other judge an opportunity to ask a question. Some may support your position. If nobody else chooses to ask a question, then please go forward.

RANDOM FEMALE JUDGE WHO IS NOT EDITH JONES (timidly): I would like to ask a question about the necessity for a Sears instruction….

Although I have been at appellate arguments where I wished this would have happened, I have never heard of anything like this happening before. As such, just the fact that it happened would probably be noteworthy. However, Chief Judge Jones made the news about a week ago for emailing a United States district court judge that he was being rude and uncivil to counsel appearing before him by inviting them to a "kindergarten party." Viewed in light of the email, Chief Judge Jones's remarks become some sort of weird ironic karma.

My first thought in reading about this was "why does she care how many questions one judge asks?" After all, the Court can make the government's lawyer answer questions for as long as it wants. While there may be an allotted time for the argument, its not like the argument ends when the allotted time ends. The only conclusion I can reach is that Chief Judge Jones is telling Judge Dennis to shut up not because she wants others to ask questions but because she just wants him to shut his yap.

My second thought is that by telling Judge Dennis to shut up, Chief Judge Jones was providing a great example of why one uses incivility in polite company. One uses it because it works. Judge Dennis was clearly asking a question when he was told to shut up. His response, after briefly arguing about whether he had to shut up, was to shut up. I suspect that Judge Dennis shut up because the use of incivility in that situation was so abnormal as to convince him that he had been talking too much and so he clammed up.

I couldn't help but compare Judge Dennis's response to that of my coworkers back when I used to work a production line in a factory. The factory environment is not widely known for its civility. There, if one of my coworkers had told me to shut up, I would have interpreted the request as one to talk more, and probably talk more loudly at that. I feel safe in saying that everyone of my coworkers at the factory felt the same way.

According to the reports on the matter Chief Judge Jones apologized by the end of the session. That was magnanimous of her. Of course, it is easy to be magnanimous when one gets what one wants.