• SUN-TIMES PRINT COLLECTION
  • Judge Richard Posner in 2011.

When issues as serious as national security and government secrecy are at stake, a little levity can be a tonic. The Seventh Circuit Court of Appeals provided it on Monday.

Last week, Judge Richard Posner and his colleagues, Ilana Rovner and Michael Kanne, heard oral arguments in the case of Adel Daoud, a 20-year-old Hillside resident. Daoud is charged with accepting a phony car bomb from FBI agents in 2012, and trying to detonate it outside a downtown bar. In January, a federal district judge granted Daoud’s lawyers access to classified documents related to the investigation of their client. The government quickly appealed, maintaining that the judge had abused her discretion in granting the access.

The Seventh Circuit hears arguments in a large courtroom on the 27th floor of the Dirksen Federal Building, at Dearborn and Adams. It tapes the arguments and publishes them on its website. Courtroom staff, however, inadvertently failed to record last week’s session—so the court decided to try to redo the proceedings Monday.

This would have been a tough task under any circumstances, because oral arguments consist not simply of a lawyer stating his or her case, but also of the judges interjecting questions and comments. The idea that arguments before a Posner panel could be recreated was especially fanciful, because it’s hard to imagine even a genius like Posner being able to recall all of his interruptions.

Posner is renowned for his brilliance and notorious for his impatience. He graduated first in his class at Harvard Law in 1962. Now 75, he’s been on the Seventh Circuit for 33 years. He’s been cited in the opinions of other federal circuit judges more often than any circuit judge in the nation. He favors cold, mathematical logic, and cringes when the lawyers before him veer off subject, something he detects them doing constantly. He derails them before they can gather an ounce of a head of steam.

I interviewed him ten years ago for a story I was writing about his courtroom manner. He answered my questions graciously, and I did not often interrupt him. Before we talked, I had watched him in action in the courtroom. In one two-hour session his panel heard arguments in six cases, and Posner interrupted the lawyers 149 times.

“Interruptions are rude, there’s no question about it,” he told me. But “If you see where the lawyer is going you don’t want to wait, because that’s a waste of time.”

During the arguments I watched back then, he was often disparaging and disdainful. He told me he thought lawyers were too touchy, and that criticism was often a sign of respect. “If you have excessive politeness you live in a kind of fool’s paradise,” he said. He added that he thought he was “less impatient and aggressive” than he used to be.

I wasn’t able to make it to Monday’s redo, but I’ve listened to the transcript. One of Posner’s colleagues on the panel, Judge Rovner, pledged early in the session that she’d “try my very best to recreate whatever it was I said the last time.” But she chuckled at the idea.

  • Richard A. Chapman/Sun-Times
  • Thomas Durkin, who argued on behalf of Adel Daoud.

All attempts at recreation ended soon after Daoud’s lawyer, Thomas Durkin, began his argument. Like Posner, Durkin is a veteran of the federal courthouse; he’s been trying cases in the building for nearly 40 years.

Durkin’s co-counsel had given the oral argument last week, but for scheduling reasons, Durkin had to step up this time. He warned the judges that his approach would be less academic than his co-counsel’s had been. The redo charade was already ending.

There were no signs that Posner has mellowed in the last decade. He broke in soon after Durkin began his argument, and things quickly devolved into what often seemed like a quarrel between an old couple. Posner was the partner insisting on rationality, Durkin the one wishing for a more emotional experience. Rovner and the third judge on the panel, Kanne, mostly just listened.

“I understand the law,” Durkin told the panel. “What I think you need to understand is that there is a lot of people in this country who are questioning the integrity of the whole system.”

“That has no relevance to your appeal,” Posner said. “A lot of people are questioning a lot of things, right?”

“I believe—”

“We don’t hear arguments where people say, ‘Oh, you know, people are disturbed about the political system, education, foreign policy’—no.”

“I believe, with all due re—”

“Do you wanna argue that the statute really means that anytime it would be helpful to the defense to have access to classified materials, they should have access?”

“Of course not,” Durkin said.

“Is that what you wanna argue?”

“Of course not.”

“Well, what is your argument?”

“What I wanna argue is that this order was not an abuse of discretion in this instance, in light of the serious questions that have been called into play—”

“No, no, forget that,” Posner said.

Durkin tried a different approach. Or began trying one. “I’m normally here fighting for—”

“You keep wandering off the case.”

“I’m not wandering off the case at all—”

“Look, we’re not interested in why you’re normally here. Why don’t you talk about this case.”

“I don’t understand why you’re being hostile.”

You’d have thought Durkin was new to the building. I assume he said this for the benefit of the reporters in the gallery. Why Posner is hostile is not exactly classified information: because he’s Posner. And, in this case, maybe also because Durkin was indeed wandering.

The judge asked Durkin what was “the most serious question” the court had to consider.

“The most serious question here is, ‘What’s wrong with giving cleared defense counsel access to these materials?'” Durkin replied.

“Oh, no, no, no, no, no, that’s a terrible answer.”

This wounded Durkin again. “What I don’t understand is why you’re hostile to me in this. Why your tone of voice is hostile.”

“Look, if you don’t answer my questions, I get irritated, alright?”

“And I understand that, and I’m doing my best to answer your questions.”

“No you’re not. My question is a very simple one…”

“I’m trying to answer your question, and you’re interrupting me.”

“OK, tell me about this case, will you please?”

“I’m trying to tell you.”

“What is it about this case that’s special?”

“If you’ll let me finish, and I don’t mean that respectfully—”

“I’m glad you don’t mean it respectfully—at least you’re being candid,” Posner said with delight. His tone signaled permission to laugh, and so the spectators in the courtroom did.

Durkin was momentarily flummoxed. “I said I meant—did I say I didn’t mean it respectfully?”

“Yes, that’s what you said,” Posner assured him. “It’s what’s known as a Freudian slip.”

“Maybe it was a Freudian slip,” Durkin conceded.

“It’s where a person reveals what he really thinks, which is fine, right?” Posner said. “I wanna know what you think.”

“Well, you may be right about that,” Durkin said, to more laughter. The merriment in the courtroom swelled when he added, “But I actually like you, believe it or not.”

And then the silent Rovner suddenly chimed in. “What about me?”