Federal district judges frequently get no respect at the Supreme Court.  Or at least that was true prior to the arrival of Justice Sotomayor who served for many years as a federal district judge before her elevation to the Supreme Court.

With great pleasure, I read the oral argument transcript in Sekhar v. United States, 12-357, where the distinguished advocate Paul Clement gets smacked around for being a smart ass when referring to a federal district judge who sat by designation on the Second Circuit.  I enjoyed the refined ass whipping Clement received as well as his fawning response.  Perhaps you will too.

MR. CLEMENT:  Well, a couple of things, Justice Sotomayor.  I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things.

One, I noticed it was written by a district [judge] sitting by designation.  So, I mean, I – I don’t mean anything by that other than this is not Marbury.

Second, I would say that the second thing I noticed is that the debt –

JUSTICE SOTOMAYOR:  Oh, I think when I sat as a district court judge, I would have been insulted by that.

MR. CLEMENT:  Well, it’s not – it’s a good thing you’re no longer sitting in that capacity, Your Honor –

JUSTICE SOTOMAYOR:  Okay.  It’s really –

MR. CLEMENT:  — because I – I certainly mean you no offense.  You could write Marbury here.

Arguments Transcript, Supreme Court of the United States, 2012 Term Cases, #12-357, Sekhar v. United States, argued April 23, 2013, p. 60-61.

4 responses

  1. JUSTICE SOTOMAYOR: ” Oh, I think when I sat as a district court judge, I would have been insulted by that.”

    That’s an ass whipping and being smacked around? Maybe in the Supreme Court, I guess; I’ve seen such brutal dressing-downs by state court trial judges that Sotomayor’s response seems downright courteous in comparison. She didn’t even say she WAS offended by the remark, just that she thinks that she would have been when she sat as a district court judge. Anyway, when I read the transcript yesterday, I actually was surprised that Clement DIDN”T take back his remark (which I agree was–uncharacteristically–insulting), and that no other justice chimed in with a subtle jab or tsk-tsk.. And Lyle Denniston’s interesting account of the oral argument on SCOTUSblog–written after he attended the argument–certainly makes it seem as if Clement didn’t miss a beat after the exchange: Regardless, Clement seems like the consummate professional, and by all accounts is affable and humble, so I imagine he regrets what he said.

  2. Judge, anyone who has been in this business for any length of time know that s!@# flows downhill. Those on top (in the judicial system and elsewhere) think they are better (smarter, more deserving, etc.) than those on the bottom.

    After 30 years of dealing with judges and attorneys at all levels, I have come to the clear realization that there is no correlation between a person’s title and position and their competence. Some at the top (and some at the bottom) of the professional pecking order deserve to be there. But, in many instances, those at the bottom (and middle) are far more deserving of title, prestige and power than those at the top. However, they do not have that good fortune because they are unwilling (or unable) to “play the game.”

    As for Clement. Yes he is brilliant. And yes, he can run legal circles around 99.9% of the bench and bar. But, IMHO, when you have those gifts, you should shroud them in humility.

  3. I just noticed that comments are listed as being posted in GMT. Is the judge vacationing in Iceland, by chance?

  4. Tim,

    Three thoughts:

    1. After today, perhaps I will have to move to Iceland.

    2. Since foreign law is all the rage, maybe I thought that GMT was the “in thing.”

    3. Truthfully, I haven’t a clue why this platform uses GMT.

    All the best.


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