Comity Among the Decision Makers
By Abner J. Mikva
"Civility" has become the buzz word of our times. Especially in legal circles, its absence is bemoaned so often that one wonders whether our profession and the legal system ever had any problems before we became aware of incivility in our midst. The problem is not newthe "warm zeal" that our canons of ethics remind us that we owe to our clients easily grows into incivility, and it always has. And since most judges previously practiced law (except those that come from academia, an even more uncivil place) they frequently bring their zealous ways with them to the bench.
I could point out to you that over 100 years ago, then Chief Justice Alvey of the brand new Court of Appeals for the District of Columbia dissented in very strong language against his two colleagues in the very first case decided by the predecessor to the current U.S. Court of Appeals for the D.C. circuit. So the clashes that I had with one of my former colleagues on that court (he once suggested a physical disposition of our dispute) were in a continuum on a court in which vigorous public controversies were decided by vigorous players. The Bazelon-Burger tension that dominated the court during the 50’s and 60’s ended only when Warren Burger left the court to become Chief Justice, where his voice and vote obviously trumped the puny power of the chief judge of the circuit. The decision making power was no longer among equals, and the less than civil feelings the two men had toward each other were no longer reflected in court opinions, but only in the tension that filled any room the two were in together. David Bazelon was so discouraged by the turn of events that he tried to leave active service early.
Of course, the intra-court tension was never limited to the Court of Appeals for this circuit. Justice Scalia, a great wordsmith, has been known to throw some strong barbs at his colleagues when he disagrees. "Before evaluating the Court’s handiwork, it is no small task simply to comprehend it," he wrote in one notable dissent. In the most celebrated verbal knock, Webster v. Reproductive Health Services [492 US 490 (US Sup Ct 1989)], Justice Scalia, while concurring in the same judgment as Justice O’Connor, proceeded to trash her separate opinion. He said it "cannot be taken seriously," that it was "perverse," that her basic position was "hardly worth a footnote." He then proceeded with a page-long footnote to demonstrate how incorrect her views were; indeed they were "irrational." Imagine how feistily he would have written if he had disagreed with her vote!
Appellate judges seem to save some of their worst incivility for trial court judges who don’t perform as the reviewing court thinks they should. Just recently, one of the judges on this circuit’s Court of Appeals said that remanding a case to the trial judge was akin to "dropping the case into a well." Admittedly, the case had not been handled with alacrity. Some 23 years had elapsed since the complaint was first filed. Another judge on the Court of Appeals accused a trial judge of "wreaking havoc in the administration of justice." In an opinion in the Seventh Circuit Court of Appeals, the writing judge suggested that the trial judge under review "ought not to lord it over persons in the dock who have a different kind of recidivism problem." Not surprisingly, the trial judge took umbrage at being called a recidivist.
The cheapest shots are taken in the review of the decision makers at administrative agencies. In one Federal Labor Relations Authority case reviewed by my court, the FLRA was ordered to write "in a manner that persons affected can comprehend." In another, the administrative law judge was told that he had to learn how to read a record if he was to continue in that line of work.
Shortly after I came on the court, I was visited by the late Judge Edward Tamm, holding a draft of an opinion that I had asked him to concur in. I had used the term "lower court" in my draft. He reminded me that he had been a District Court judge, and that trial judges understood the hierarchy of the federal courts. "But no one likes to be told that he is ’lower’ than somebody else," he told me. I don’t think I ever used the term "lower court" again, even though the Constitution describes all federal judges as "inferior" to the Supremes.
So I won’t use the word "civility." It has been overworked. Ten years ago, I justified the strong language of one year’s opinions on my court by saying that "the greatness of the disagreements affects the manner in which the judges approach their tasks and their solutions." If the case generates passions, they will be reflected in the opinions. The snippets I used did indeed come from strong disagreement among decision makers. But there is another concept that is in play and should be reckoned with by the judges and other decision makers. And the concern ought to be about "comity." Comity is defined in the dictionary as "mutual consideration between or as if between equals."
I never paid much attention to the notion of comity until I was elected to Congress. Comity dictates that the Senate does not try to amend bills dealing with appropriations for the functions of House committees, and vice versa. Comity suggests that you refer to your colleague as the "learned Member from Wherever" even though you wonder whether "Wherever" has a high school, and whether he ever finished it. Comity becomes common sense. Given the size of each body, and the complexity of getting anything passed by both houses of Congress, it is common sense not to get "in your face" with your colleagues. Don’t get me wrong. There have been plenty of shovings, and tie-pullings, and canings, to make it clear that passions also run high in the Congress. Then Majority Leader John McCormick once parodied a common platitude of floor debate by saying he had a "minimum of high regard for his distinguished colleague." But when Congress is running well, and that is definitely not currently, comity is the order of the day.
Perhaps because there are so many decisions to be made among so many decision makers, the need for comity is more apparent than it is in the courts. Judges, like lawyers, tend to forget that they will need the good will and attention of some of the colleagues that they whack so nonchalantly. But I wonder how many times Justices, on the cusp of a decision, consciously or subconsciously, remember one of Nino Scalia’s not so subtle barbs, and tilt the other way. I wonder how many times colleagues on my former court, consciously or subconsciously, allow a previous insult to affect a current result.
As for trial judges, and agencies who have been subjected to a caustic review, I wonder how often the caustic reviewer is remembered not for the rule of law imparted but for the grievance. Reviewing judges are also reviewed, by academia, for promotion, for their place in history. The zest for a witty barb can sometimes type-cast a judge way beyond what was intended.
When I was in the state legislature in Illinois, I once called one of my colleagues a "pusillanimous recreant." I was so proud of my epexegetic, sesquipedalian prowess that I never stopped to reckon the number of times that I would pay for it. I was reminded more than once that I had engaged in name-calling. And I am sure that I would have obtained more lasting satisfaction out of having won a few more legislative fights than out of having bested the recreant in name-calling.
There are commissions, official and unofficial, to study the general problem of the behavior of the legal professions. And there are many judges active in the arena. But I wonder whether the physicians should first heal themselves. As an exercise in preparation for this occasion, I went through some of my opinions while I was on the Court of Appeals for the D.C. Circuit. I never thought of myself as the worst of the Rambos. But I was uncomfortable with some of the language that I used. I didn’t call anybody a recidivist, and I didn’t classify any of my colleague’s opinions as jokes, but I did use some robust language. And none of it improved the legal landscape. I think that the judging process would be improved if every judge, before turning loose an opinion, gets a good night’s sleep and then vets the opinion for its pejoratives. It wouldn’t necessarily make for better reading, but it would make for better decision-making. And it might restore some faith in the judicial process among the body politic.