February 14, 2014

"Look, if you don't cooperate with me, I'm not going to let you continue your argument... Would you stop babbling?" said the judge to the lawyer.

"When you're asked a question ... you're not supposed to interrupt judges and, if they ask questions which can be answered yes or no, you answer yes or no. Don’t you understand that?"

It was Judge Richard Posner, schooling Jones Day partner Matthew Kairis, in the oral argument about Obamacare, contraceptives, and the burden on religion.

51 comments:

rhhardin said...

Shut up, he explained.

MadisonMan said...

When you're asked a question ... you're not supposed to interrupt judges and, if they ask questions which [sic] can be answered yes or no, you answer yes or no. Don’t you understand that?

How'd he answer?

Fernandinande said...

"Would you stop babbling?"

That's the judge's job.

Lucien said...

The reference to "babbling" was an abuse of power, because everyone knows that counsel cannot reply in kind ("Sorry to interrupt your bloviating, Your Excellency"). This makes Posner come off as a bully.

A simple "Counsel you're not going to persuade me by interrupting and dodging my questions" would be enough to chasten any advocate, since the whole purpose of oral argument is to persuade, and to answer what questions remain after presumably competent briefing.

$9,000,000,000 Write Off said...

Couldn't have worse luck in getting Posner. Economics places zero value on private conscience and are deaf-mutes before theological imperatives (failing to recognize their own secular versions, natch).

Roughcoat said...

Posner sounds like Althouse.

Insufficiently Sensitive said...

The reference to "babbling" was an abuse of power, because everyone knows that counsel cannot reply in kind ("Sorry to interrupt your bloviating, Your Excellency"). This makes Posner come off as a bully.

Wrong. The judge presides over the courtroom, and has much power in setting the rules. Your contempt of his court counts for nothing, and the judge has every reason for putting the stops on a lawyer who's being too clever and not playing by those rules.

Naked Surfer said...
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Mark said...

No need to waste the taxpayer dollar with his babbling.

Naked Surfer said...
This comment has been removed by the author.
Naked Surfer said...

Love Posner. Would be an honor to be silenced by Posner. Good reason for a long courtroom pause, then the respectful reply, “Yes sir. I’ll resume my argument right after I read Law and Literature: A Misunderstood Relation.”

Mattman26 said...

I just listened to the argument. The lawyer did a very fine and very respectful job of trying to make his argument and to answer the judges' questions. The court made this very, very difficult.

The Godfather said...

I haven't listened to the argument, but from the description it sounds as though Posner was looking for a "yes" or "no" answer that confirmed the Judge's opinion that the case was without merit. An advocate can't be faulted for refusing to give such an answer. Most advocates can handle such a question by saying, "Yes [if that's the answer the judge DOESN'T want to hear], and let me explain why." If Posner wouldn't accept such a response, he was being a bully. If Kairis didn't give that kind of answer, or at least try to do so, then he was at fault.

duntov283 said...

Judge Posner already knows the outcome, does he not?

He is saying "Shut up, you defender of Catholic dogma. Shut up; our government will trump your beliefs of 2000 years with our enlightened secular authority."

The progressives, all they think the women are good for is the fucking, and the earlier age the better, without any recourse for bad events. Fuck, take pills, abort if you forget the pills, vote Democrat; that is the mantra.

Progressives value women only for their vaginas. And for working in Democrat offices and campaigns for less wages than men.

BDNYC said...

Posner is an okay judge but he's way too enamored with himself. He acts like he's a special kind of Circuit judge, a first among equals, when in fact he's just mediocre because of his arrogance and his routine failure to approach cases with a sufficiently open mind.

Wayworn Wanderer said...

There's always a government pig to cram government shit down your throat. This one happens to be a judge.

Peter said...

He's saying, "These are the rules here!" and, "Don't mess with this judge!"

A judge has a lot of power in a courtroom. Unless the judge is acting in a clearly lawless manner, it seems like very good advice.

Why would a lawyer want to aggravate a judge?

Ann Althouse said...

It's one thing to resist giving the yes-or-no answer the judge demands. Quite another to interrupt the judge. The convention is to shut up instantly when the judge begins to speak, so there is no overtalking. The judge has the audio right-of-way. That's the etiquette. To violate it, then violate it again and again, even when chided. Who does that?!

The Crack Emcee said...

That is the most succinct summation of how a constructive conversation is conducted I have ever seen.

It should be posted everywhere and there should be a penalty for anyone who doesn't adhere to it.

Preferably banishment.

Who needs you if you don't know how to talk,...

The Crack Emcee said...

The fact people don't stick to that format is one HUGE reason why so little good seems to get done,...

Bob Ellison said...

So did Kairis dis the office of the judge, or Posner, the person?

In normal affairs, Posner's words would come across as arrogant and unwarranted.

great Unknown said...

Althouse @ 12:29PM
"The convention is to shut up instantly when the judge begins to speak, so there is no overtalking."

And when the judge abuses this "right-of-way" to prevent the counsel's ability to make his argument? Tough. He's the judge.

In any case, Easterbrook recently got married for the first time, and is probably being shut up by his spouse constantly. So, he's taking it out on the poor counsel.

Naked Surfer said...
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Naked Surfer said...

Posner ... sought to get Kairis to tell him whether Notre Dame objected simply to sending a letter to the feds stating something along the lines of "we're a religious organization, and so we’re just not going to pay.”

“Yes (or no),” is what Kairis should have said. Probably, “yes” from the context. Then waited for more questions. Then gone on to say why, “yes” or “no” was the answer. I fail to see why a “yes” or “no” answer would be difficult. Answer and move on to explanation

Hyphenated American said...

Some judges think they are god.

Will said...

I listened to the tape.

Ann says the judge always has the verbal right-of-way, but the tape functions like a Russian dashcam to show this judge continuously leaping into heavy verbal traffic then complaining he got hit. Like any whiplash insurance scammer, the judge is exposed as close-minded.

Whether the judge likes it or not Notre Dame has a case. The judge continuously says "the law says" but isn't the whole point of the hearing to allow Notre Dame to make its case to prove why this law is wrong and then to judge on its merits? I see the lawyer more than willing to pick up that burden of proof and a bullying judge who keeps knocking it out of his hand.

Michael K said...

Posner an asshole. And, from here,

Judge Posner and his colleagues laid aside Black's Sixth Amendment right to have a jury try the facts regarding whether he had committed pecuniary fraud, as opposed to the now-discredited honest-services fraud. Instead, the circuit judges assumed for themselves duties normally exercised by a jury, ruling that the government's evidence on the last count was so credible that no reasonable jury would refuse to convict Black of pecuniary fraud.

Posner reinstated an accusation that had been rejected.

The Godfather said...

OK, you shamed me into listening to the tape. Will is right. Kairis behaved very well, and gave an excellent argument. Posner behaved like a bully pretending to be a fool. He pretended not to understand Kairis's argument, and then shut Kairis up when he tried to explain. @Althouse, you could use this argument to teach young would-be lawyers how to stand up and represent their clients under difficult circumstances. Also, note, Kairis was ready with citations and specific facts wherever they were needed, and without any hesitation and delay.

Mattman26 said...

Ann, have you actually listened to it? Every time he tried to answer Posner cut him off. And then Posner would pose a question, seemingly be finished asking it, and when the guy would start to answer, Posner would continue with the seemingly-finished question, and criticize the guy for interrupting him.

It's painful to listen to (and long, too), but you should hear it for yourself before criticizing the lawyer.

gregq said...

Posner is a bully, and an ass.

Let me explain it for you, judge, in terms even an imbecilic political hack like you can understand:

Notre Dame is not willing to supply abortificants to people. It is a violation of their religious beliefs.

The Obama Administration wishes to force Notre Dame to provide abortificants to people, because they are thugs and bullies (like you).

The way the Obama Administration goes about trying to force Notre Dame to supply abortificants to people is to insist Notre Dame signs this for telling a "third party" to pay for other people to get abortificants.

Therefore Notre Dame will not sign this form.

gregq said...

Ann Althouse said...

It's one thing to resist giving the yes-or-no answer the judge demands. Quite another to interrupt the judge. The convention is to shut up instantly when the judge begins to speak, so there is no overtalking. The judge has the audio right-of-way. That's the etiquette. To violate it, then violate it again and again, even when chided. Who does that?!

Who does that? A lawyer who knows that the judge is an opinionated thug who is going to rule against him, no matter what the law says.

Original Mike said...

"'Look, if you don't cooperate with me, I'm not going to let you continue your argument... Would you stop babbling?' said the judge to the lawyer."


Judge Poop: If you don’t answer the question, young man, I’m afraid we’re going to have to gag you.

Mudhead: What question?

Judge Poop: Gag him.

hombre said...

Over and above the judge's "right-of-way" it is likely that a Jones Day partner is a better lawyer than Posner.

It sounded like Posner was unwilling to let Kairis make the argument that would reflect poorly on the decision his honor had already decided to make.

Has any appellate lawyer not had that experience with an overbearing judge about to make a questionable ruling?

Lord Ben said...

Just answer my question with yes or no and quit babbling... Have you stopped beating your wife?

viator said...

A selection, but not all, of Posner's books and writings.

1973 Economic Analysis of Law, 1st ed.
1981 The Economics of Justice, ISBN 978-0-674-23526-7
1988 Law and Literature: A Misunderstood Relation, ISBN 978-0-674-51468-3
1990 The Problems of Jurisprudence, ISBN 978-0-674-70876-1
1990 Cardozo: A Study in Reputation, ISBN 978-0-226-67556-5
1992 Sex and Reason, ISBN 978-0-674-80280-3
1995 Overcoming Law, ISBN 978-0-674-64926-2, Among the topics is a critique of Robert Bork's constitutional theories, review of books about the legal system in the Third Reich, and a discussion of the legal culture reflected in the works of Tom Wolfe and E.M. Forster.
1995 Aging and Old Age, ISBN 978-0-226-67568-8
1996 The Federal Courts: Challenge and Reform (2d ed.), ISBN 978-0-674-29627-5
1996 Law and Legal Theory in England and America, ISBN 978-0-19-826471-2
1998 Law and Literature (revised and enlarged ed.), ISBN 978-0-674-51471-3
1999 The Problematics of Moral and Legal Theory, ISBN 978-0-674-00799-4
2001 Frontiers of Legal Theory, ISBN 978-0-674-01360-5
2001 Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3
2001 Breaking the Deadlock: The 2000 Presidential Election and the Courts, ISBN 978-0-691-09073-3
2002 Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
2003 Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
2003 The Economic Structure of Intellectual Property Law (Harvard Univ. Press) (with William Landes), ISBN 978-0-674-01204-2
2004 Catastrophe: Risk and Response, ISBN 978-0-19-530647-7
2005 Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, ISBN 978-0-7425-4947-0
2006 Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, ISBN 978-0-7425-5127-5
2006 Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 978-0-19-530427-5
2007 The Little Book of Plagiarism, ISBN 978-0-375-42475-5
2007 Economic Analysis of Law, 7th ed., ISBN 978-0-7355-6354-4
2007 Countering Terrorism: Blurred Focus, Halting Steps, ISBN 978-0-7425-5883-0
2008 How Judges Think, ISBN 978-0-674-02820-3
2009 Law and Literature, 3rd. ed., ISBN 978-0-674-03246-0
2009 A Failure of Capitalism: The Crisis of '08 and the Descent into Depression, ISBN 978-0-674-03514-0
2010 The Crisis of Capitalist Democracy, ISBN 978-0-674-00574-2
2010 Economic Analysis of Law, 8th ed., ISBN 978-0-7355-9442-5

I wonder how many the counsel wrote?
Posner, the most cited legal scholar of the 20th century.

Hyphenated American said...

Viator, any of these books is good? Cause he surely sound overwhelmed in this video.

Basil said...

To be the most cited legal scholar in this day and age is analogous to being Chief Justice Taney, who I am sure was often cited, in spite of his racism and resulting bias as a judge. We are in the process of determining if we will be a society of law or one that is post law, defined by judicial power rather than law. Judge Posner prefers the latter. He is tragically wrong.

readering said...

I listened to the tape. The lawyer was pretty terrible. When Posner tried to interrupt him he just spoke faster. What could that hope to accomplish? As another judge, Hamilton, pointed out to him, the judges already have all the parties' arguments to this very high profile case in written form, so the hearing only adds value if the lawyer is being helpful in answering the judges' questions. Posner is old and cranky but a Jones Day partner should know that going in and should have googled Posner in advance and listened to some examples of Posner in high dudgeon. All his arguments are available on the court web site.

viator said...

"Viator, any of these books is good? Cause he surely sound overwhelmed in this video."

Is that supposed to be a serious question?

viator said...

"To be the most cited legal scholar in this day and age is analogous to being Chief Justice Taney, who I am sure was often cited, in spite of his racism and resulting bias as a judge. We are in the process of determining if we will be a society of law or one that is post law, defined by judicial power rather than law. Judge Posner prefers the latter. He is tragically wrong."

In other words that law is an ass. But not a bigger ass than you.

hombre said...

viator: "A selection, but not all, of Posner's books and writings.... I wonder how many the counsel wrote?"

Gee, did I say the counsel was a more prolific writer? I thought I said it was "likely" that he was a better lawyer?

Remind me again. When did Posner actually practice law? How long has he been on the bench? He is not the man or the judge he once was.

Theranter said...

If you didn't listen and are just pontificating from AA's post, ignore this. I listened from another link earlier today and just saw this post. I'm still fuming. The atty handled himself as well as could be expected under the circumstances. This pretentious, repugnant, progressive, paternalistic prick of a judge made me sick. "The vomen, what about the women" -- how disgusting and degrading. This entire mandate is repugnant. Ladies, look in the mirror-under Obama gas has doubled. If you have 1/2 a brain you'd understand it follows that the cost of everything else thus increases. You are going to spend more driving to and fro to get your free fucking pills than the pills would have cost you, and you are willing to divide this country over this? Really?

And stop and give it a ton of thought, what is the real reason behind the "compelling government interest" in providing free BC, abortifacients and abortions? (Besides getting the clueless one's votes). We are headed towards govt-mandated "birth spacing" -- for your own good you see. The research has been manipulated (using (exploiting) women in 3rd world countries) to come up with the soon to be phased in by IPAB restrictions on spacing for "maternal and child health" of 3 yrs. from end of last pregnancy (whether an abortion or live (and keep it) birth. And you have no excuse, the "preventatives" were fucking free. Violate the spacing that is "best for you and your child" and you will face some serious tax penalty consequences.

Women have been at the heart of the fight for equality in this country. (Think Abagail Adams "and don't forget the ladies"; and oh crap chemo brain I can't remember her name, Lincoln said to her "so your the little lady that started this great big war"; think Rosa Parks, Sojourner Truth etc. string independent women.

And we have it all now and we whine like ducking spoiled prima donnas that we "need" free BC and abortifacients from big daddy government. I'm so ashamed.

And as for the ho at Norre Dame that has "limited income" and "needs" her free BC because she is "sexually active" -- I bet you spend more on fucking mascara than BC would cost you. And why can't we see what else she spends her "limited income" on? Alcohol? Taxis? Hotels? Trips abroad? Trips home?

The entire idea of this mandate is just demeaning.

Saint Croix said...

1973 Economic Analysis of Law, 1st ed.
1981 The Economics of Justice, ISBN 978-0-674-23526-7
1988 Law and Literature: A Misunderstood Relation, ISBN 978-0-674-51468-3
1990 The Problems of Jurisprudence, ISBN 978-0-674-70876-1
1990 Cardozo: A Study in Reputation, ISBN 978-0-226-67556-5
1992 Sex and Reason, ISBN 978-0-674-80280-3
1995 Overcoming Law, ISBN 978-0-674-64926-2, Among the topics is a critique of Robert Bork's constitutional theories, review of books about the legal system in the Third Reich, and a discussion of the legal culture reflected in the works of Tom Wolfe and E.M. Forster.
1995 Aging and Old Age, ISBN 978-0-226-67568-8
1996 The Federal Courts: Challenge and Reform (2d ed.), ISBN 978-0-674-29627-5
1996 Law and Legal Theory in England and America, ISBN 978-0-19-826471-2
1998 Law and Literature (revised and enlarged ed.), ISBN 978-0-674-51471-3
1999 The Problematics of Moral and Legal Theory, ISBN 978-0-674-00799-4
2001 Frontiers of Legal Theory, ISBN 978-0-674-01360-5
2001 Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3
2001 Breaking the Deadlock: The 2000 Presidential Election and the Courts, ISBN 978-0-691-09073-3
2002 Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
2003 Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
2003 The Economic Structure of Intellectual Property Law (Harvard Univ. Press) (with William Landes), ISBN 978-0-674-01204-2
2004 Catastrophe: Risk and Response, ISBN 978-0-19-530647-7
2005 Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, ISBN 978-0-7425-4947-0
2006 Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, ISBN 978-0-7425-5127-5
2006 Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 978-0-19-530427-5
2007 The Little Book of Plagiarism, ISBN 978-0-375-42475-5
2007 Economic Analysis of Law, 7th ed., ISBN 978-0-7355-6354-4
2007 Countering Terrorism: Blurred Focus, Halting Steps, ISBN 978-0-7425-5883-0
2008 How Judges Think, ISBN 978-0-674-02820-3
2009 Law and Literature, 3rd. ed., ISBN 978-0-674-03246-0
2009 A Failure of Capitalism: The Crisis of '08 and the Descent into Depression, ISBN 978-0-674-03514-0
2010 The Crisis of Capitalist Democracy, ISBN 978-0-674-00574-2
2010 Economic Analysis of Law, 8th ed., ISBN 978-0-7355-9442-5


That is somebody who likes to hear himself talk.

Saint Croix said...

Judge Posner, by the way, doomed whatever chance he had to be nominated to the Supreme Court when he said there was a constitutional right to kill babies outside the birth canal.

His only hope now is if some liberal nominates him. And his economic theories pretty much doom that.

A: "Republicans Who Hate Pro-Lifers for $100, Alex."

Q: "Who is Richard Posner?"

The Godfather said...

Posner is 75 years old, so no president is going to waste a Supreme Court nomination on him.

Yes, he's a scholar. You would think a scholar would be able to understand what the issues are as presented in the briefs. But his questions were based on the premise that he did NOT understand what the plaintiffs' case was about. Judges do take that approach sometimes to draw out the positions of the parties. But in my experience, when that's the objective, the judge asks intelligent questions and then listens for the answer, before challenging it. That wasn't Posner's approach.

James said...

That judicial temper. Temperament? Whatever. Douche.

Bob Ellison said...

I'm listening to the recording of the argument now. Posner comes across as an asshole.

Imagine reversed roles: Kairis is explaining the situation to Posner, and keeps telling Posner to shut up and follow Kairis's line of reasoning, and only Kairis's line of reasoning. And Kairis says Posner is "fencing" and "babbling" and refusing to answer questions that Kairis gets to declare are very "simple", and Posner isn't allowed to assert that the questions aren't simple.

The problem is that Posner is drunk on power. He sounds a bit drunk in the audio, though he slowly makes sense nonetheless.

Bob Ellison said...

The other judge, about 25 minutes in, has more wit than Posner, and he doesn't act like a brat the way Posner does. Who is that guy?

Bob Ellison said...

How many times must Posner say "I don't understand" before we must conclude that he is incapable of understanding or is too old, too high, too stupid, or too much of a jerk to even try to understand?

Zeb Quinn said...

Theoretically, he could suffer from bipolar disorder. It's a template that fits the facts. Periodic stretches of hypomania characterized by energized productivity. Such as prodigious prolific writing, over and above a full-time gig most people would find challenging and sufficiently engaging all by itself. And the narcissism. In the hypomanic state people commonly see themselves as smarter, more insightful, more creative, and quicker than those around them. And, when challenged, they get testy and agitated, sometimes extremely so.

Like I say, one possible template that fits.

mtrobertsattorney said...

All you need to know about Posner is that he is a devoted follower of Nietzsche and his teaching that all "truth" is determined by power.