A bench slap portends trouble in paradise

This post is about politics within the federal judiciary. It also about pecking order within the hierarchy of the federal judiciary. While I don’t care a bit about the substantive issue, the dispute I am about describe is fascinating because it has the potential of setting up a battle of judicial titans and I am a voyeur. While not in so many words, one power within the federal judiciary has publicly called out another power within the federal judiciary by essentially asking, “Who in the hell do you think you are?”

Judge John Bates is a district judge who sat in the District of Columbia. Judge Bates is highly respected by Chief Justice Roberts. The Chief put Judge Bates on the foreign surveillance court (FISA) and later selected him as the Director of the Administrative Office of the United States Courts. Judge Alex Kozinski is the Chief Judge of the Ninth Circuit, which has far more judges than any other Circuit, and as such is a member of the Judicial Conference of the United States. Under the direction of the Chief Justice, the Judicial Conference of the United States is the policy making arm of the judiciary. A district judge and the chief judge from each Circuit comprise the voting membership of the Judicial Conference. Judge Bates is the secretary to the Judicial Conference. “The Judicial Conference also supervises the Director of the Administrative Office of the U.S. Courts in the performance of his duties as the administrative officer of the courts of the United States under 28 U.S.C. § 604.” Id.

Thanks to Howard Bashman, my source for everything, I learned yesterday that:

“Chief Judge Kozinski’s ‘Serious Doubts’ About Judge Bates’s FISA Reform Letters”: Steve Vladeck has this post today at the “Just Security” blog. You can view the letter from the Ninth Circuit‘s chief judge at this link.
Posted at 09:33 AM by Howard Bashman

Here’s a brief summary of the dispute:

  • Bates sent the Chairman of the Senate Judiciary committee a letter about the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create a more adversarial process within the FISA Court.  A fair reading of the letter indicates that Bates was speaking for the federal judiciary.
  • Kozinski sent the Chairman of the Senate Judiciary Committee a letter. A fair reading of the letter indicates that Kozinski does not think that Bates can speak for the federal judiciary and Kozinski makes absolutely clear that Bates does not speak for him. According to Kozinski, the Judicial Conference of the United States had not considered the issues addressed in Bates’ letter. Kozinski notes that Bates did not provide Kozinski (and presumably other members of the Judicial Conference) with copies of correspondence on this issue.
  • Bates had earlier written to Senator Diane Feinstein, Chair of the Select Committee on Intelligence, the following explaining why the Judicial Conference had not been consulted:

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

One thing is clear. Bates has been “bench slapped” by Kozinski, and there is “trouble in paradise.”  Of course, feel free to select and mix your own metaphors. No matter how one expresses it, this dispute is extraordinary (and perhaps unsettling) for those who “are inside baseball.”


20 responses

  1. Why is this unsettling, Your Majesty? Federal district court judges have gotten used to being kings.

    And Kozinski thinks he’s Emperor.

    Just another cat fight.

  2. Judge,

    You really need to work on your sensationalist tone. This article was a missed opportunity. Perhaps something like this would have spiced things up:

    “Ladies and gentlemen and kids of all ages; Today we present to you a spectacle like no other seen recently in the public arena. A death match between two titans of the Federal Courts. In this corner: the challenger; a spunky eastern trial judge, who believes he has been anointed to carry the banner of all the Federal Courts: Judge John — “The Usurper” — Bates [the crowd goes wild] … And, in this corner, the darling of west coast jurisprudential circles, the shepherd of a wayward band of judicial divas and champion of … well … everything, The Chief Judge of the Ninth Circuit, Alex “Don’t Mess With Me Or I Will Write A Stern Letter” Kozinski [the crowd goes wild again] … This is to be a fight to the death or three rounds, whichever comes first ….”

    Just a suggestion…..

  3. CWH,

    I want to hire you to write this blog. It pays nothing. Most women trial lawyers will hate you. Both liberals and conservatives have a deep mistrust of you. The local bar is quite sure you have gone off the deep end. And, you have cancer. It is a great gig. What say you?

    All the best.


  4. Judge Kopf —

    I would not presume to write either about the substance of the exchange between Judges Bates and Kozinski or its tone. But what I find unsettling about the whole thing is that the Ninth Circuit’s letterhead apparently uses a font not seen in polite circles since “The Mary Tyler Moore Show” went off the air nearly four decades ago (think back to the opening credits of TMTMS). Can’t imagine there’s much budgetary savings in using a 1970s font…


  5. DRF,

    According Wiki,

    “Peignot is constructed sans-serif display typeface, designed by A. M. Cassandre in 1937. It was commissioned by the French foundry Deberny & Peignot. The typeface is notable for not having a traditional lowercase, but in its place a “multi-case” combining traditional lowercase and small capital characters. The typeface achieved some popularity in poster and advertising publishing from its release through the late 1940s. …

    Peignot experienced a revival in the 1970s as the typeface used on The Mary Tyler Moore Show and the second season of That’s My Mama. While often classified as “decorative”, the face is a serious exploration of typographic form and legibility. It is now owned by Linotype Corp. and is distributed both by Linotype and by Adobe.”

    All the best.


  6. Judge —

    I’ve learned something new today. Of course, I don’t see any suggestion in the Wiki article that Peignot has had a revival since TMTMS or “That’s My Mama,” a show I’d managed to forget until now. And, while Peignot may be “a serious exploration of typographic form and legibility” (whatever that means), I still think an Article III court should use something that does not cause the reader to start daydreaming about that great Chuckles the Clown episode. Perhaps Copperplate Gothic.


  7. DRF,

    As funeral orations go, you just can’t beat the one Mary delivered for Chuck:

    “Chuckles the Clown brought pleasure to millions. The characters he created will be remembered by children and adults alike: Peter Peanut; Mr. Fee-Fi-Fo; Billy Banana; and my particular favorite, Aunt Yoo-Hoo. And not just for the laughter they provided—-there was always some deeper meaning to whatever Chuckles did. Do you remember Mr. Fee-Fi-Fo’s little catchphrase? Remember how, when his arch-rival Señor Kaboom hit him with a giant cucumber and knocked him down, Mr. Fee-Fi-Fo would always pick himself up, dust himself off, and say, ‘I hurt my foo-foo’? Life’s a lot like that. From time to time we all fall down and hurt our foo-foos. If only we could deal with it as simply and bravely and honestly as Mr. Fee-Fi-Fo. And what did Chuckles ask in return? Not much. In his own words, ‘A little song, a little dance, a little seltzer down your pants.'”

    All the best.


  8. Judge:
    OK, I’ll play along. Given the allusion, above, to the ‘The Mary Tyler Moore Show’, I have endeavored to change the words to its iconic theme song to (hopefully) fit the tenor of today’s blog entry and comments:
    “Who can turn the world on with his bile?
    Who can take a nothing day, and suddenly make it all seem worthwhile?
    Federal judges, and they should know it
    With each missive and every little spat they will show it

    Egos all around, no need to waste it
    You can have a cow, why don’t you take it
    You’re earned a bench slap after all
    You’re gonna get bench slapped after all!”

    (Cue Judges Bates and Kosinski throwing their gavels in the air like MTM…)

  9. You’re testing my memory here, but I think it was the minister who gave that oration. Poor Mary had to control her laughter.


  10. Temptation’s page flies out the door
    You follow, find yourself at war
    Watch waterfalls of pity roar
    You feel to moan but unlike before
    You discover
    That you’d just be
    One more person crying.

    So don’t fear if you hear
    A foreign sound to you ear
    It’s alright, Ma, I’m only sighing.

  11. Extraordinary indeed.

    Unsettling perhaps for some outside the court depending on their seat.

    Unsettling for those inside the court. Priceless!

    Our nation could learn a lot and have a few laughs along the way if these two Titians of the federal court ever decide to follow in your footsteps Judge and start their own blogs [1] to fill us all in with a bit of the color, nuances, and thinking that makes them human while they not wearing their robes and drafting letters to the Senate Judiciary Committee.

    Kozinski should have taken his personal website public after all of the hullabaloo over some of its content a few years back and started a blog after all the brew-ha-ha settled down and Bates a guy who some have given the moniker the “Bates Stamp” via FISC’s seemingly uncritical handling of FISA applications already has a title handed to him on a silver platter by his critics for his blog. He could run with Bates Stamp and spin that with a smile any which way he wanted to.

    Needless to say I would love to overhear these two having a drunken chat beside a campfire. Perhaps if theses two ever start blogging they could start out with a post describing what they pack in their overnight bag when flying into a Judicial Conference of the United States meeting and where they are going to have dinner after the meeting and why.

    How “unsettling” can things really get Judge? Curious voyeuristic minds want to know.

    [1]. I would imagine most of your audience here at Hercules and the Umpire is already aware (but some may not be) that Kozinski, although he doesn’t have a blog, is actually to his credit a prolific essayist and commentator whose musings and thoughts have been published in a wide variety of publications. Not blogging but he lets his hair down and grabs the pen while out of his robe now and then. Bates not so much in any public format other than his rulings as of yet.

  12. John Barleycorn,

    Thanks so much, and I agree with everything you wrote.

    As for Judge Kozinski, I have previously written about him, my appearance before him when he was an Article I judge, his brilliance, and my reference to him as a “Polack.” As for Judge Bates, I ran across him when he was with the Independent Counsel. Sitting with the Circuit, I dissented from a decision allowing the IC to get the notes of one of Mrs Clinton’s lawyers. Bates is a real smart guy too.

    Here’s why I used the word “unsettling” (in parentheticals): The last thing the federal judiciary needs is internecine warfare at the highest level that looks exactly like what we see in Congress.

    I, too, would love to overhear a drunken conversation between them. It might start this way:

    Scene: The swank, but dimly lit Rye Bar, in Georgetown.

    Bates: If you ever call me out again you rotund little commie, I’ll get your green card. Remember I was Chief of the FISA court! I have reels and reels of your whispered telephone conversations.

    Kozinski: STFU, you, you, you, you apparatchik. How you say it in English? Oh, yes, you squeakpip!

    At that point, Bates slowly pours a glass of cheap scotch on Kozinski’s head and Kozinski responds by upending a plate of hot horderves in Bates lap perfectly ruining a cheap suit. Kozinski assumes a strange fighting stance with his thumbs tucked in his fists. Bates stands up next, takes off his suit coat revealing a 32 inch chest and 34 inch waist. Something resembling a pillow fight ensues. It is broken up by the Chief Justice, wearing his umpire suit. He promptly ejects both from the contest.

    Finally, I heartily agree with you that Kozinski is a fantastic writer. I would love to see him blog. The rest of us would learn a lot. I don’t know about Bates and blogging. I suppose if you have a penchant for dense legal stuff, a Bates’ blog might be just the thing. But, he may be a wonderful essayist too. Who knows? I don’t.

    Thanks for your engagement. All the best.


  13. Judge
    I ask your forgiveness for my late reply to your reply to my reply to your post for I had to perform surgery on an Aureus Femoris Os and could not extrapolate until now. It seems after checking letters patent you are indeed correct that a Bob Dylan( apparently an auter of some renown and/ or the Patron Saint of Pipers) is the originator of the poem I cited for reasons I shall explain presently. In the comments to this post I noticed the mention of my mentor Chuckles the Clown with gracious regard and wanted to let you know that the aforementioned poem was what Chuckles said to me when I asked him what the secret to our business is. So again forgive my omission. Now as to the subject of this post I first reserve the right to comment at a later date as to the subject of FSC and a more adversarial well, but I would like to evidence my appreciation of both Judge Kozinski and Bates as two of the finest Jurists in this land and ask you what are your thoughts- if you can comment- on Judge Kozinski’s opinion in Garcia vs Google linked here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/26/12-57302%20web%20revised.pdf
    as to Judge Kozinski’s thunderdome with Master Bates(forgive my pugnacious pun Chuckles for I could not help myself and in my defense blame General Buster Keaton) I,if to be so bold would advise temperance and quote another of Meister Dylan’s words
    You’re right from your side
    I’m right from mine
    We’re both just too many mornings
    An’ a thousand miles behind.
    Anyways I thank you for your allowing me my asiatic ramblings as it seems to happen when the attic is closed but I must be going now for I am late for a game I have been invited to play with El and Karl Popper where I stand in the middle and they throw an apeiron to each other while I try to grab it. I asked them when do I know when I have won and they both said to me at the same time
    ‘silly monkey”

  14. Dear Doctor,

    I respectfully decline your invitation to express myself on Judge K., Cindy and Google (and not because putting their names together sounds like a horrible menge a trois), but I love your wit and writing. All the best.


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