Kopf: On Mindless Judicial Pomp

If you have not read A Gentleman in Moscow by Amor Towles, you must do so. It is writing at its very best. I suppose that is why it was on the New York Times bestseller list for over 40 weeks.

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)

[i] This is a shameless “Homer” reference. Ms. Gay received her undergraduate degree and her M.A. in English with an emphasis in Creative Writing from the University of Nebraska—Lincoln.

[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.

 

31 comments on “Kopf: On Mindless Judicial Pomp

  1. CLS

    Judge (and you will still have me calling you that even at a diner at 2 am):

    If I had my druthers, I would get rid of calling any DA, Solicitor General, Attorney General, or any State actor sitting across the table from me as prosecution “General.” That’s a military title, and one that has to be earned. In my opinion, you don’t get to use that title because you got elected into office or managed to have the right credentials to get hired. Calling a lawyer for the prosecution “General” insults our military and the individuals who laid down their lives for the freedoms we have left.

    Of course, my father in law is retired military, so I’m kind of biased on this point.

    1. Kathryn Kase

      In Texas, we do not tender the witness; we pass the witness.

      Which always puts me in mind of Darrell Royal: “When you throw a pass three things can happen to it, and two of them are bad.”

  2. wilbur

    Judge, I can’t believe you would plight your troth to Roxanne Gay even to be as good a writer as Amor Towles, or anyone else. That’s worth something infinitely greater, like El Jefe de Mundo.

    I like the traditions of the courtroom, and of the profession generally. I can see why others wouldn’t.

  3. Noel Erinjeri

    To pay devil’s advocate: this is a scene from The Mote In God’s Eye, a 1974 science fiction novel. It’s stuck with me

    ****
    The major-domo took a pose and struck the stage three times with his staff. “HIS MOST EXCELLENT HIGHNESS STEFAN YURI ALEXANDROVITCH MERRILL, VICEROY TO HIS IMPERIAL MAJESTY FOR THE REALM BEYOND THE COAL SACK. MAY GOD GRANT WISDOM TO HIS MAJESTY AND HIS HIGHNESS.”

    Everyone scrambled to his feet. As Rod stood he thought of what was happening. It would be easy to be cynical. After all, Merrill was only a man; His Imperial Majesty was only a man, they put their trousers on one leg at a time. But they held responsibility for the destiny of the human race. The Council could advise them. The Senate could debate. The Assembly could shout and demand. Yet when all the conflicting demands were heard, when all the advice was pondered, someone had to act in the name of mankind… No, the ceremonial entrance wasn’t exaggerated. Men who had that kind of power should be reminded of it.” (emphasis added)
    ****

    It’s stuck with me.

  4. Skink

    Rich (as always):
    Pomp sucks, but the effect of it can be worse. An example:

    I was once at motion calendar in state court. As always, it was a wool convention–probably 50 lawyers. Mine was way down the docket, so I sat. A case was called, and a lawyer I knew approached. He was not wearing a jacket. His first words were explanation–he thought his jacket was in his car, but it was in his office. He couldn’t retrieve it without being late.

    The judge nearly screamed that the lawyer couldn’t appear in his court without a jacket and he wasn’t going to hear argument from him. Naturally, I took mine off and handed it to my pal. After all, there isn’t a rule about sitting without a jacket. Then again, there isn’t a rule about wearing a jacket.

    The judge addressed me by name, and told me to “mind my business.”

    I’m old. I’ve always been old. I get cranky. I didn’t leave in handcuffs, but it was close.

    1. Richard Kopf

      Skink,

      As far as I am concerned, I prefer that male lawyers wear Hawaiian shirts. In truth, I don’t care what lawyers wear.

      All the best.

      RGK

    2. John A. Bourgeois

      Having been summoned to an emergency Peace Order hearing from a day of leisure — and appearing in shorts, a tee, a flip-flops — my judge wryly asked if I was counsel or respondent.

  5. Richard Kopf

    Noel,

    What an excellent and fascinating point That said, if a judge needs reminding that a judge impacts the lives of real people perhaps he or she should not be a judge. All the best.

    RGK

    1. Nemo

      Judge Kopf,

      Perhaps so, but those amongst your peers who need such reminders the most are likely to be those who would tolerate such reminders the least, at least IMNSHO. Now what?

      Best regards,

      Nemo

    2. Noel Erinjeri

      Judge,

      I’m sure that sometimes even the most conscientious of your brethren can become bored with the daily routine…like morning cattle-call dockets where there are 50 sentences to hand out and 25 of them are run of the mill possession cases…and there were 50 the day before yesterday, and 50 more the day after tomorrow. A bit of pomp of circumstance might be bracing.

      NE

  6. DHMCarver

    One aspect of pomp that was not mentioned was having judges enthroned above the rest of the courtroom — that plus the robes and the all rise, etc. reinforces the pseudo-Olympian/pseudo-noble role that judges play. I have no problem with requests to approach the bench or the witness, as those terms act much as Roberts Rules of Order to keep some structure to what could devolve into chaos. But I would advocate for dethroning judges.

  7. SPM

    I don’t mind the relatively harmless, odd-ball, bit of tradition. However, the Solicitor-General’s morning coat reminds me of something my college roommate said and did:

    He made the cogent observation that college students are not like regular people. In the real world, as the time to do the laundry passes by, you end up wearing less formal attire; as an example, you are forced to wear the white athletic socks and hope no one notices. For a college student, the opposite was true: As the laundry pile gets bigger, you are forced to wear more formal clothes. As he said that, my friend was wearing a long-sleeved shirt with his suit pants and said that if he didn’t do laundry that evening he would be forced to wear “black-tie” for the next day’s classes.

    Perhaps the Solicitor General’s office just needs a reference for a really good laundry service?

  8. Richard Kopf

    DHMCarver,

    Out west where I used to practice, in many of the small counties, benches–often little more than desks–were not elevated. Justice seemed to get done just fine.

    As for “dethroning,” that word reminds me too much of the French revolution and that sharp object that severed so many heads from so many bodies. So, in principle, I am against dethroning. However, doing away with elevated perches is fine with me.

    All the best.

    RGK

    1. SHG

      I’ve always thought I looked pretty darn suave leaning up against the front of the bench, arm casually draped over the front, right leg cavalierly crossing the left at mid-calf, half-glasses in one hand pointed toward center mass. Having developed that stance with the jury looking on, I would hate to lose it so late in my career.

    1. Richard Kopf

      Yes, David I did and still do. I never once used the gavel. I have screamed, but not bonked.

      All the best.

      RGK

  9. Ben

    As Professor Judith Martin noted, one of the purposes of etiquette is to oil the wheels of human interaction by removing unnecessary decisions. If there is only one way to behave properly then it is practical for everyone to behave properly. It is because everyone needs to know what that way is that it is traditional.

    Rigid etiquette also removes an opportunity for caprice and abuse of power by the judge. Lawyers don’t have to wonder if they can get away with “can we have a chat, judge”, nor worry about whether they will be sneered at for saying “may I approach the bench” (so formal!). There is simply no decision to be made and he can spend his mental effort on his argument.

    We are all human, but perhaps a judge who is too subject to human imperfections, is not, as you suggest above, fit to be a judge. Yet if we cannot find sufficient people fit to be judges, that doesn’t mean we can do without.

    1. Ben

      Correction: I incorrectly called Mrs Martin “professor”. I had it in my head that she was a professor at Harvard, but I misremembered the fact that she gave a speech at Harvard.

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