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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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Saturday
Dec092006

203. Bully vs. brainiac

Some years ago I said about an appellate judge, "At least he/she is smart."  (Well, I didn't actually say "he/she", but I don't want to make my specific meaning too plain.)  I was talking to a friend who once worked at ("clerked on") that judge's court.  My friend said, "I used to think that, too, but then I realized he/she is just a bully."   The intimidating effects of a great intellect can be achieved by techniques that are simple to learn.  In just seven days ...

I've long wondered to what extent Justice Scalia's reputation as a brainiac depends on his storied domination of oral argument, his way of badgering attorneys who appear before his court.  As it happened, I was present in Washington last Tuesday and got to hear Scalia pose a rhetorically-loaded question to an assistant solicitor general. 

The attorney waited for Scalia to pause, then started to answer.  But he hadn't gotten two words out of his mouth before Scalia interrupted, posing the same question again, but this time even more belligerently.  Again Scalia paused, leaning forward as if in anticipation.  And as soon as the lawyer started to answer - as soon as the first sound was out of his mouth - Scalia interrupted again, asking the same question yet a third time, more aggressively yet.  (A reporter for the Rocky Mountain News told readers how "Scalia asked repeated questions", which is one way of putting it.)

It's easy to earn a reputation as a debating master when lawyers before your court are formally instructed - as advocates before the Supreme Court are formally instructed (see page 5 of this official guide to attorneys) - to cease talking as soon as a justice begins.  Scalia counts on that, knowing that his rhetorical points will seem unanswerable so long as he can prevent the attorney from actually answering them. 

AuthorJoel Jacobsen | Comment1 Comment | | |
DateSaturday, December 9, 2006 at 12:49AM in

Reader Comments (1)

Ineresting post. They give you a short time and want some of it back? How long will the Bar put up with the relative secrecy of such proceedings?
December 9, 2006 | Unregistered Commenterjack love

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