by Justice William W. Bedsworth
My father was a casketmaker. He taught me not to judge the carpenter if you don’t know his tools. It was just a homey tradesman’s adjuration not to be judgmental, and I remember as a boy being unimpressed by it as a mantra. But I sure appreciate it now. It has helped keep my blood pressure in check for many years.
I think of it often when I encounter an opinion I do not think is the author or panel’s best work. I remind myself that I don’t know how good the briefing was, I don’t know what the record was like, and—perhaps most important—I haven’t sat down and struggled with the cases cited.
Every lawyer has had the experience of thinking he or she knew what a case said and then going back and finding the wording was slightly different than we remembered. And sometimes those slight differences can be crucial. So when I find that my colleagues have arrived at an opinion that is . . . well, let’s say counterintuitive . . . I try to remember my dad, urging me not to judge the carpenter.
But Dad didn’t say anything about carpenters who disdain tools and choose to work without them. I dunno, I think Dad would have made an exception for judging somebody who turned his back on chisel and plane and just beat on the wood with a rock.
So I’m not sure what to do about Tony Mauro’s eye-opening story in The National Law Journal, in which he notes it has been four years since Supreme Court Justice Clarence Thomas asked a question at oral argument. FOUR YEARS!
The guy is deciding the most important and difficult questions in all of American jurisprudence. He’s untangling knots lesser lights like myself didn’t even know had been tied. He’s wending his way through labyrinthine arguments so complex I could barely diagram the sentences, much less select the right path. And through all that, he has never felt the need to ask a single question?
I’ll leave it up to you whether that is a reflection of true brilliance or a badge of arrogant lunacy. All I gotta say is he better be using magic hammers and enchanted nails, or even my dad would have to question his technique.
Oral argument is a critical part of appellate advocacy. If you’re an appellate judge do not read the rest of this paragraph because the next sentence will ruin your lunch. Here it is: I think no one should ever waive oral argument without a really good reason.
Really good reasons might include:
If you can’t finish the sentence “I waived oral argument because,” with something at least as convincing as those four clauses, don’t do it. Find another analogy that fits your case or a new way of making the arguments you raised in your brief(1), suit up and go to court ready to help out.
I get a lot of help from good oral arguments. And as some of you know(2) I need all the help I can get.
So unlike Justice Thomas, I ask a lot of questions. These generally break down into five categories.
The first reason I ask questions is that I really don’t understand something counsel has said in the brief. I am clearly light years slower than Justice Thomas because there are often things I don’t understand.
I find oral argument is a good place to clarify these things, at least now that the Commission on Judicial Performance has explained to me that calling appellant’s counsel at home at 3 am is not considered appropriate behavior.
They also didn’t like me throwing pebbles against the window of counsel’s condo and asking him to come down and explain pages 26-31 of his brief to me. Maybe if I had federal marshals I could send out to interrogate counsel, I wouldn’t need to ask questions at oral argument, but I don’t, so I do.
Closely related to the “I’m afraid I don’t understand this” question is the “I’m afraid I DO understand this” question. This exchange usually goes something like this:
“Mr. Roberts(3), your argument, as I understand it, is that the evidence was insufficient to establish your client’s membership in the street gang because he is from Uzbekistan. If I read your brief correctly, you conducted an exhaustive computer search of all California cases ever decided (including Worker’s Comp and bankruptcy cases—which I thought showed admirable thoroughness), and there has never previously, in the entire history of California, been a street gang member of Uzbeki dissent. Is that correct?”
“Yes, your Honor, not a single one.”(4)“And therefore your client could not have been guilty.”
“Precisely, your Honor!”(5)
“Alright . . . um . . . well, the Attorney General suggested in his respondent’s brief that we should not only reject this argument but also publish the decision, so no one would ever be stupid enough to make it again. And while I feel that’s a little harsh, I must say it’s important to note that I only think it’s a LITTLE harsh. Do you want to take another crack at expressing this point so as to maybe phrase it in such a way that you have a snowball’s chance in hell of picking up my vote?”
The third category is the “Oh, come now” question. When I was an appellate lawyer, I used to insist that some day I would get up the nerve to respond to an opponent’s brief with one that set out the facts, set out the issue raised by my opponent, and then, under “Discussion,” said simply, “Oh, come now.”
I never did it, so perhaps I wasn’t as cocky as I was accused of being, but every now and again, someone will say something in court that is so outrageous, I can’t ignore it. I don’t actually say, “Oh, come now,” but I think that thought might creep into my tone of voice when I ask the question.
These questions are almost always involuntary. That’s why it amazes me that Justice Thomas hasn’t even slipped into an “Oh, come now” question in four years.
I mean, I can be sitting there, absolutely determined that there is nothing this attorney can possibly say that will make me open my mouth. I’ve read the brief, I’ve scoured the record, I know his position, and I am thoroughly convinced there is nothing he can say that is going to make the case easier for me to decide so there is no reason to ask him a question. And then he will say, “Glockenspiels were grown hydroponically by the ancient Egyptians to enable them to ward off scurvy on their twice-monthly trips to West Palm Beach,”—or the legal equivalent thereof—and I just can’t help myself.
“Mr. Roberts,” I’ll say, “This is a new courtroom and we’re still getting used to the acoustics. Could you please repeat what you just said? Because it sounded like you were talking about hydroponic glockenspiels, and I know that can’t be the case.”
How is it that Justice Thomas has not once blurted out an “Oh, come now” question? I mean, I know he doesn’t have Cliff Roberts(6) appearing in front of him, but my own reading of Supreme Court jurisprudence convinces me lots of goofy things must get said there. How is it Justice Thomas has never challenged any of them?
And how is it he hasn’t thrown any batting practice fastballs up to the plate? This is my fourth category of appellate questions. It’s something appellate justices do all the time.
It goes like this: You know there’s at least one vote on the panel contrary to yours. So during argument you throw the side you’re on a nice, soft 80 mph fastball to hit, a question so easy you expect them to whack it out of the park and help convince your contrarian colleague of the error of her ways.
This can be frustrating because attorneys asked questions at oral argument invariably assume the question is unfriendly. Even if it sounds easy, they wonder if there’s a pit they’re about to fall into. A friendly question is often so disconcerting they’re confused by it and bungle the answer. In the parlance of our court, they foul it off.
We tease Justice Fybel about being the worst batting practice pitcher in the history of appellate law. God bless him, he’s a brilliant jurist and a perennial nominee for World’s Nicest Man, but every time he tosses up a soft one, counsel pops it into the seats behind home plate.
Why Justice Thomas doesn’t use this device, I don’t know. Maybe he was once hit by a foul ball.
He says he employs no questions because he already knows how he’s going to vote, but that’s not really the issue, is it? The issue is how the Court’s going to vote, and I can’t understand passing on the chance to affect that by steering counsel in a direction you think might affect how other members of the court will vote.
I would have thought he would at least have employed a pity question once in the last four years. That’s Category Five.
No one goes to the Supreme Court to argue alone. They all take their mom and dad and their spouse and kids and their sixth grade teacher and their Little League coach to share the moment. You would think that after one of these poor souls has been publicly eviscerated in front of most of his family and the entire Chamber of Commerce of his home town, someone might ask him an easy question to allow him to get out of Dodge without bleeding to death right there in the courtroom.
I do that. I try to have a nice comment or an easy question for the guy who brought his client with him or the woman whose law school advocacy class is sitting behind her. If they take a beating(7), I try really hard to find some verbal analgesic to spread on the wounds.
But not Justice Thomas. Four years and no questions.
Hey, he’s on the Supreme For Crying Out Loud Court. As the old adage goes, “They may not always be right, but they’re always the Supreme Court.” So if he asks no questions, it is, de facto(8), the right way to go.
I just wish we could get Cliff Roberts in front of him. Then we’d see how tight-lipped he really is.
(1) Don’t try finding a new way to raise a new argument unless you own stock in an asbestos mine and have new products to try out because the court’s response will be the appellate equivalent of Greek fire.
(2) And the rest suspect.
(3) I’ll ascribe this argument to Cliff Roberts. He didn’t actually make it. Cliff has never, to my knowledge, made a bad argument in his life, but he has taken the position that since we’re such great friends, he should be in the column more often. I don’t have any friends better than Cliff, so I promised him I’d put him in the next column. Here you are, Cliff.
(4) Cliff’s smile is now bright enough to make the electric lighting in the courtroom superfluous. He’s hugely proud of this argument.
(5) People in the courtroom are putting on sunglasses to protect their eyes from the glare of Cliff’s smile.
(6) You’re all over this one, Cliff.
(7) And let’s face it, we’ve all been there. The casketmaker aphorism for this experience is, “Ya gotta play the cards you’re dealt.” And when you play those cards at a table where there are three, seven, or nine other players and they’re wearing black robes, your pair of treys can put a serious hurt on you.
(8) And when you’re dealing with the Supreme Court, the difference between de facto and de jure is largely academic.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org.