Perhaps it’s time for a new ABA ranking of judicial nominees. The time-honored evaluation of judicial experience and temperament serves a valuable role, but what about some sort of snowflake index to figure out if a nominee is going to approach the new role with the requisite maturity? Because more and more judges seem to be falling short on that score.
The latest example highlighted by Slate’s Mark Joseph Stern, involves Fifth Circuit judge Andy Oldham, who found himself outvoted by Judges Higginbotham and Higginson. The crux of the dispute is whether the NLRB withdrawing a complaint is a prosecutorial or adversarial decision.
Among the arguments that the majority parsed through, one tangled theory that 29 U.S.C. § 160(b) required the NLRB to follow FRCP 41 and that this might prevent the agency from withdrawing the complaint. To this, the majority pointed out, inter alia, that the parties hadn’t even raised this issue. “UNFI did not ask us to base our holding in § 160(b), and it would be improper for us to cross the bench to counsel’s table and litigate the case for it.”
And this royally cheesed off Judge Oldham:
The majority offers several responses. The first is unfortunate and meritless. The others are just meritless…. The majority first accuses of me of acting “improper[ly]” by “cross[ing] the bench to counsel’s table and litigat[ing] the case.” Ante, at 15. Such rhetoric is unfortunate. It’s also misplaced.
“Such rhetoric” would be unfortunate. Good thing the majority didn’t use any of it. In fact, the only one wallowing in that rhetoric is Judge Oldham. I could say which president nominated Oldham, but you can probably tell from the behavior described which president nominated Oldham.
On the one hand, the majority writes that they think granting the petition on the 160(b) house of cards that Oldham’s dissent enthusiastically endorses would be improper. On the other hand, that’s how decisions work.
They don’t get to issue an opinion that says, “we’re denying this because even though it’s a really super fun argument and you’re all very special and uncommonly attractive lawyers, we just felt the other way today, but keep at it because you were so close!” Judges rule the way they rule because, in their opinion, to do the opposite would be improper. They may or may not be right, but if they thought any less, it would be a much bigger problem for the law.
Unless the majority played one hell of a prank and subbed out the opinion at the last second, Judge Oldham’s dissent is just whipping up on imagined quotes. In addition to reading an accusation into the opinion, he also complains that “the majority contends that I am ‘confused’ about Rule 41.” Which does excessive violence to the humble quotation mark. In reality, the majority noted that one of the dissent’s case citations actually involved a different application of the rule — Rule 41(a)(2) instead of 41(a)(1)(A)(i) for the procedure nerds — and wrote that “The dissent’s confusion on this point belies how poor of a fit Rule 41 is for unfair labor practice proceedings.”
Which brings us back around to rhetoric. Because the majority could’ve personally accused Oldham of trying to invent new argument or called him out for being confused, but instead wrote that it would be improper to consider the argument and that there is some technical confusion on a point. Meanwhile, the dissent could’ve asserted “disagreement” or that the majority “overlooked” something but instead jumps all in branding the majority “unfortunate” and “meritless.” Its arguments a “strawman” and “odd.” And chastises them that “We’re not 1L moot court judges.” As rhetoric goes, that seems way worse.
But then again, the people crying the loudest about the need for more “civil discourse” tend to be least civil voices out there.
It’s also troublingly routine these days. Another Trump judge, Lawrence VanDyke of the Ninth Circuit, spent so much time and effort blasting his colleagues as “possessed” and comparing them to criminals that another judge felt the need to publish a concurrence attempting to explain how a mature adult writes dissents. Judge Ho wrote an opinion that even conservative legal scholars called out as inappropriate for a judge. Justice Alito… exists.
The members of the federal judiciary are supposed to be the adults in the constitutional room. Too many have revealed themselves to be children on a constitutional playground.
And, yes, that is an accusation.
Earlier: Ninth Circuit Judge Has Had It With Trump Judge’s Insulting Dissents
Paul Clement Joins White Law Professor Who Uses The N-Word In Class… To Call For ‘Civil Discourse’
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.