If Jefferson’s celestial watchmaker would, playing against type, deign to bestow upon me the ability to write only 10 percent as well as Towles, I would pledge my troth to Roxane Gay.[i] If the omnipotent maker preferred, I would prostrate myself before the insipid youngsters who attacked Scott for being a misogynist or a sexist,[ii] and therefore unworthy of a legal writing award. But I digress.
A Gentleman in Moscow centers on the witty and observant Count Alexander Ilyich Rostov who was already ensconced in luxury in Suite 317 of the Hotel Metropol when he was sentenced to house arrest at the very same hotel by earnest Russian revolutionaries. (Think of a certain strain of Appellate Twitters!) This banishment took place after a 1922 trial, where Rostov was condemned for writing an insufficiently proletarian poem. (Think of our host!) It is from this hotel in Moscow that the story unfolds.
No more, now, about the book, except to recount one of the Count’s trenchant observations. The reader is informed that “pomp is a tenacious force. And a wily one too.” And it is about judicial pomp that I write.
The opening statement of a legal advocate standing before a judge often begins with, “May it please the court.” Look, everyone knows that the lawyer is there to suck up—why demand that he or she grovel?
But I must be missing something. The ABA thought the question was significant enough to publish Bryan Garner’s well-researched essay about the practice. See here.[iii] You say, and Garner may agree, that the reason is “tradition.” I respond that I have heard the lyrics to Fiddler on the Roof quite enough, thank you!
And then there are the countless other mindless judicial demands or “encouragement” for pomp. Here is just a short list that comes to my aged mind:
- Some functionary opening court with, “All rise, the Honorable Mucky Muck, judge of the Super Neat Court of Nirvana, Presiding” or some such similar nonsense. It is very unlikely that anyone is lost and the judge already feels special enough inasmuch as he or she undoubtedly has his or her own (glitzy) toilet (except for me). Moreover, telling everyone “to rise” is unvarnished ableism.
- Lawyers being required to obtain permission from a judge to “approach the witness.” I prefer lawyers to ask permission “to stalk the witness!”
- Lawyers being required to ask for “permission to approach the bench” instead of saying, “Judge, can we talk?”
- “Tendering” the witness. For what, cooking?
- The lawyers from the Solicitor General’s Office appearing at the Supreme Court in “morning coats.” For Christ’s sake, here in ‘Merica, it is a fashion faux pas and a rejection of our egalitarian ideals to wear morning coats at funerals. Why won’t the Supremes give these lawyers some modern fashion advice instead of tacitly approving this antiquarian silliness? And don’t get me started on the late Chief Justice Rehnquist’s gold-striped robe or RBG’s dainty doily. Unadorned black robes are weird enough.[iv]
- A judge calling an Attorney General of a state or the Solicitor General of the United States “General.” Next time SHG appears in court he should demand to be called “Admiral.”
- Calling me “judge” when we cross paths at the Hi-Way Diner at 2:00 A.M.
I set out to write something relatively short and the word counter is now about where I want it. So, I will end with a question to readers of SJ.
If you had the power to do away with one aspect of mindless judicial pomp, what would it be?
Richard G. Kopf
Senior United States District Judge (Nebraska)
[ii] They actually and fervently debated whether Scott was one or the other.
[iii] Among other tidbits, Garner’s research unearthed this: “In the mid-1990s, the clerk of the Supreme Court, William K. Suter, established the exceedingly useful Guide for Counsel, available on the court’s website. It directs counsel to use the invariable phrasing Mr. Chief Justice, and may it please the Court.”
[iv] Sitting at counsel table in my shirtsleeves, I once took a plea from Ray who, limited to a wheel chair, was so creeped out by my black robe that his AFPD asked me to ditch the robe and come down from the bench. So far as I am able to determine, justice was done despite the absence of the robe that made me appear to poor Ray as the black crow of death.