When bloggers irritate judges

One of the best things about legal blogs is that they can irritate judges when the judges need to be irritated.  In my view, we judges (and that especially includes me) are far too sensitive to fair-minded criticism from lawyers who have an obvious interest in the business of the courts.

What follows is an example. But, you have to dig for it.

In June of this year, Howard Bashman, a distinguished appellate practitioner and blogger from Philadelphia, wrote a pointed but fair piece in a daily newspaper for lawyers (The Legal Intelligencer, The Oldest Law Journal in the United States) that was critical of the Pennsylvania Supreme Court because of that court’s slowness, particularly with respect to argued cases. The highly regarded Chief Justice responded. With a glaring exception that I shall next describe, the response was a spirited and fair defense.

Bashman dutifully reported and republished his initial piece and the response in his blog How Appealing in a posted dated July  19, 2013, at 3:48 P.M. Bashman was careful to link to the response of the Chief Justice so the reader could digest that response in full. In so doing, Bashman noted that he had “great admiration and respect” for the Chief Justice.

As it turns out, the Chief Justice was not satisfied with responding to the substance of Bashman’s criticism. He got nasty (just like I am prone to do). For example, at the end of his response, the Chief, addressing Bashman by name, wrote the following:

Bashman apparently has a feeling arising from a misapprehension of the business of the court and its currency, and then makes the mistake of extrapolating from his prejudgment erroneous universal conclusions. The opinion piece was useful to the extent it was a reminder that practitioners may be unaware of the breadth of the court’s responsibilities; I have attempted to fill that void. What is less helpful is the expression of a mistaken and subjective opinion that the court does not work hard and lacks a culture of efficiency and accountability. I realize that this sort of  sloppiness has become common in an age of standardless “blogging,” where viewpoint displaces facts. But, I am disheartened to see such a piece in a respected journal like The Legal.

Explaining the High Court’s Work Product and Efficiency, at pp. 4-5 (emphasis added).

About three months have passed, but, as you might predict, Bashman got the last laugh. Yesterday, he wryly wrote,

Speaking of appellate oral arguments, one of my cases is just days away from becoming an oral argument toddler, as this Friday will mark exactly two years from the date of my appellate oral argument in the case, without any ruling having issued thus far. Fortunately, as the links in this earlier post demonstrate, the court before which this appeal is pending claims to be very efficient, and its leader is not particularly amenable to criticism on that subject, so I shall not identify that court by name.

How Appealing, September 11, 2013 at 5:58 P.M.

I have no doubt that the Chief Justice of the Pennsylvania Supreme Court is a fine person and a capable and hard-working judge. But it is apparent that his problems have nothing to do with Bashman’s alleged “sloppiness” and “standardless ‘blogging.'” It seems that the Chief should swear off attacking the messenger and get back to work to prove that he, not Bashman, has the better of the argument. But, what do I know?


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