"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.

Life and How to Live It

My favorite band broke up. The preceding sentence is true but also a woefully inadequate description of the importance of R.E.M. in my life. It sounds like hyperbole, but my life would be completely different if I had never heard R.E.M.

"I think it's got to be a mistake somehow."

That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the 

defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

A Gillette-Torvik Conversation™: End employment discrimination against the unemployed?

TORVIK: Mr. Gillette, what is your take on this aspect of Obama's new jobs bill proposal:

Ending Discrimination Against the Unemployed:   Recent reports have highlighted companies that are increasingly expressing preferences for applicants who already have a job. Specifically, some companies are posting job listings that include language such as “unemployed candidates will not be considered” or “must be currently employed” or “must be employed within the last 6 months.”  The exclusion of unemployed applicants is a troubling and arbitrary screen that is bad for the economy, bad for the unemployed, and ultimately bad for firms trying to find the best candidates. This is particularly true at a time when so many Americans have found themselves out of work through no fault of their own. New Jersey has passed legislation to address this practice, and members of Congress have also introduced legislation. The President’s plan calls for legislation that would make it unlawful to refuse to hire applicants solely because they are unemployed or to include in a job posting a provision that unemployed persons will not be considered.'

I understand the sentiment, but it seems like a bit of a hornet's nest to me. Currently firms work hard not to ask questions about "suspect classifications" to prevent any claim that someone wasn't hired on such a basis. But an employer has to ask about employment history!

GILLETTE:  Are you saying that the proposed claim is problematic because one can eliminate potential liability on a failure-to-hire racial discrimination claim by not asking about race (setting aside that some things, like zip codes, correlate strongly to race) but that an employer cannot similarly eliminate potential liability on a failure-to-hire- the-unemployed claim because they need to know job history?  If so, I don’t really see that as a problem with the bill.

"Let's Roll"

The passenger takeover of United Flight 93 is the most moving act of heroism in American history. Having discovered that their hijackers’ plan was to use the plane as a missile, the passengers resolved to risk life and limb to retake control of the plane. As a result, they forced the plane to crash into an empty field in Shanksville, Pennsylvania, rather than its presumed target, the United States Capitol.

As inspiring as their self-sacrifice was, and remains, it seems to me we are ignoring its true lesson: this kind of hijacking will never work again.  We know this because it stopped working that morning.  Recall that because of then-existing airport security measures, the 9/11 hijackers had to hijack the planes with meager weapons such as box cutters and mace. The reason this worked was: (1) the crew and passengers believed that the hijackers were returning to the airport to seek some kind of ransom; and (2) the hijackers were able to gain access to the cockpits, which were not secured.

Never again will American passengers and crew accept a hostile takeover of an airplane with box cutters and mace. In fact, it's unlikely that any American airplane will ever be hijacked again, even with a bomb, unless the hijackers can succeed in killing or subduing the vast majority of crew and passengers and find some way to get through the now-reinforced cockpit doors.  The worst thing that can happen now, if airport security were to fail, is that terrorists could blow up a plane.  That would be a tragedy, but not a disaster.

But isn’t it better to be safe than sorry? Absolutely not. If it were, we would never leave the house. We certainly wouldn’t drive. And it would be absolutely crazy to imprison ourselves for hours in steel flying contraptions.

There is a safe-versus-sorry balance to make.  And when it comes to airport security, we are so far over the line into “safe” that it’s sorry.  As just one example, our airport security professionals are now searching vaginas – perhaps looking for liquids?

We should honor the heroism of the passengers of Flight 93 by using our heads and being smart about the tradeoffs we must make between security and liberty.  By failing to learn the lesson that they taught us, we make a mockery of their sacrifice.

Extreme Stealth Marketing?

I was reading a post at Minnesota Litigator this morning and clicked on one of the links in the post. The particular link was for the Wikipedia biography of Raymond Gruender, a judge on the United States Court of Appeals for the Eighth Circuit. Judge Gruender's biography includes the names, law school, and, apparently, the current employer of all of his former law clerks.

It occurred to me that I had never noticed a former law clerks section as part of a judge's Wikipedia page before. I wondered whether this was a new feature on Wikipedia. So, I decided to see whether the biographies for the other judges on the Eighth Circuit identified law clerks. Not counting judges on senior status, there are ten other judges on the Eighth Circuit. In no particular order, they are: Kermit Bye, William Riley, Diana Murphy, Roger Wollman, James Loken, Michael Melloy, Levanski Smith, Steven Colloton, William Benton, and Bobby Shepherd. You may be interested to learn that none of the biographies for these judges identifies their former law clerks. Listing former law clerks does not seem like a new feature.

Looking at Wikipedia's revision page for Judge Gruender, it looks like someone started adding Judge Gruender's former clerks in August 2007. Before August 7, 2007, Judge Gruender's biography looked a lot like the biographies of his fellow Eigthth Circuit judges. It appears to me that 15 different users made a whopping 52 entries regarding Judge Gruender's former clerks.

Given that no other Eighth Circuit judge has this information on their Wikipedia page, it seems to me that the former law clerks section of Judge Gruender's page was created by someone on the judge's staff or by a former law clerk. I wonder why someone would include this information. Does knowing the former law clerk give new insight into the judge's opinions? Is it some sort of thank you for a job well done? Is it some sort of odd marketing campaign? I guess I can imagine a situation where someone says "I want to hire a former law clerk of Judge Gruender. I'm going to look on Wikipedia to see if there is a list of his former law clerks." However, I don't think that situation is very likely. Is there another reason to list a judge's former law clerks? Finally, do you think the Wikipedia page for this former federal judge should list his former law clerks?

Iowa Corn Growers Association felled by the Gillette Torvik Blog?

Last Saturday, August 20, the Gillette-Torvik blog pointed out that the new Cy-Hawk Trophy was, to put it mildly, not a very good trophy. Three days later, Craig Floss, CEO of the Iowa Corn Growers Association, announced that the trophy would be changed. If the name Craig Floss seems familiar to our readers it is because we reported that the same Mr. Floss said that trophy that the Iowa Corn Growers Association wanted to use was "literally a work of art" when he was trying to get people excited about statute of a baseball-hat-wearing man kneeling next to a basket of corn in front of a woman and two children.

Rather than admit total defeat by using the old trophy, the Iowa Corn Growers Association is going to design several new trophies and let people vote as to which one should be new Cy-Hawk Trophy. I assume this voting will be done via the Internet. I am sure that will work out great. After all, it is little-known fact that Michelangelo and Leonardo Da Vinci both used social media to determine what their works of art should look like. Moreover, it was online voting that led to such totally reasonable results like the time internet voters said that a bridge in Hungary be named for Stephen Colbert or when Ataturk was voted to be Time Magazine's most influential person of the 20th Century.

In any event, while so-called "Mainstream Media" has yet to acknowledge our role in causing the change of trophy, the timing of the decision makes it pretty obvious that our post is the reason that the new trophy was withdrawn. No need to thank us.

No charges in Prosser v. Bradley; Abrahamson proposes to make court conferences public

UPDATE: Mr. Gillette scooped me on this.  See the next post below for his remarks.

The special prosecutor appointed to investigate the Bradley v. Prosser fracas has decided not to press any charges.  (Amusingly, this story appears in the "Crime & Courts" section of the madison.com website. It is hard to think of a more appropriate section name.)

The Wisconsin State Journal has received and posted all the police reports and interview summaries (including accounts from all six of the justices who were present for the incident).

Unsurprisingly, the accounts differ.  I haven't yet read them in detail, but summaries are available here and here.  One interesting fact: the accounts appear to be anonymous unanimous that the incident did not take place in Bradley's inner office.  Instead, Prosser was standing in the office of Bradley's secretary, and the incident occurred when Bradley came out of her office to confront Prosser there.

Another tidbit.  Justice Gableman says that Bradley is taller than Prosser, that she rushed him and supposedly punched the air around his face, and that the scene reminded him of this famous photo, with Justice Bradley in the role of LBJ and Prosser in the role of Senator Green:



This reminds me of something my brother overhead someone say at a restaurant once:  "LBJ would have just killed that guy."

In other but related news, Chief Justice Abrahamson has proposed to respond to the justified crisis of confidence in her court by making court conferences open to the public.  These are the meetings where the justices argue about how to vote on individual cases.  Abrahamson's notion is apparently that making the conferences public would force the justices to be on better behavior.

Mr. Gillette, I'm curious what you think about this idea.  The first word that comes to my mind is: "ridiculous."

Special prosector attempts to save Wisconsin Supreme Court from itself.

As reported by Bloomberg, the special prosecutor assigned to determine whether criminal charges should be filed as a result of the incident between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley, has decided that no criminal charges will be filed. One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself.

However, I think that hope is forlorn. While Justice Prosser didn't respond to press inquiries regarding the decision, Justice Bradley did. Her response to the press was that her focus was on "workplace safety" and that "criminal charges alone would not have addressed our safety in the workplace and the special prosecutor’s decision not to file charges does not resolve the safety issue, either.”

My translation of Justice Bradley's response is that this isn't over. My prediction is that the Wisconsin Supreme Court is going to continue to embarrass itself for the foreseeable future.

Should Prosser have recused?

The New York Times editorial board has weighed in on the dysfunction at the Wisconsin Supreme Court.  The only interesting aspect of the editorial, to me, was the Times' assertion that Justice Prosser should have recused himself from the collective bargaining case because "his vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending."

I think this is quite wrong. Prosser's reelection became a focal point for "left-leaning" folks around the country because it was the only thing going after Wisconsin's new Republican majority pushed through the anti-public-union measures earlier this year.  In other words, people wanted to send a message to Republicans that they'd overreached, and Prosser was their sacrificial lamb. "Right-leaning" folks responded in kind, which is why "anti-union" forces contributed to his campaign.

Prosser won. But everybody knew how he was going to vote on that particular case the moment it was filed. (Leave aside for the moment that the case was pretty clear on the merits, ideology aside.)  The fact that pro-union groups turned Prosser's reelection into a proxy war over the collective bargaining bill does not make any reasonable person question his impartiality (at least not any more than they would had the proxy war never occurred).

Moreover, the idea that Prosser is somehow beholden, or even seemingly beholden, to those campaign contributors is absurd. This is not the House of Representatives, where another election is right around the corner, and raising campaign cash is a full time job. Prosser is 68-years old and was just reelected to a ten-year term. The chances of him ever needing to raise or spend another dollar of campaign funds are nil -- even if his term isn't cut short for supposedly choking Justice Bradley.

Indeed, if it were the law that Prosser had to recuse in that case, it would only increase the partisanship and gamesmanship involved in judicial elections. It would give some issue advocates a no-lose opportunity: make an issue out of an upcoming case and (assuming the other side responds) at the very least you get rid of Justice you don't like for that particular case. The other side would have a no-win.  For example, it would have presented the anti-union forces with an impossible choice -- by seeking to participate in democracy (by influencing the likelihood of Prosser's election), they would undermine the democratic result they sought to achieve (Prosser's ability to decide the question at issue).

In short, there was an election. Deal with it.