Judicial Rhetoric, Artful and Clumsy

A controversy instantly broke out about the following passage from a dissent by Judge VanDyke of the 9th Circuit, after the full court denied en banc rehearing of a case concerning transgender access to a traditional Korean spa for women only:

A (large) group of judges of the Ninth Circuit then complained that Judge VanDyke’s rhetoric was not “dignified and civil,” to which the judge responded: “Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging dicks is the very reason the shocking language is necessary.”

Unlike Judge VanDyke’s colleagues, I don’t think the real objection to his language is that it is “uncivil.” Sometimes the demand for “civility” is just an attempt to make certain subjects undiscussable that very much ought to be discussed; and the skillful rhetorician, on the bench or elsewhere, knows when to follow the politesse of society and when to break from it for effect.

The better objection is that Judge VanDyke’s rhetoric is clumsy, even self-defeating. Rather than causing the audience to empathize with the party opposed to transgender access requirements — the Judge’s stated goal — the controversy this language provoked itself became the topic. Skillful rhetoric first establishes the credibility of the rhetor and then conceals its own art, fading into the background, so that the attention of the audience is focused not on the rhetor’s art, or his motives, but only on whatever it is that the rhetor wants the audience to think and feel.

One might wonder, cynically, whether the Judge’s stated goal is not his real goal. One might wonder, in other words, whether Judge VanDyke is “auditioning” for a Supreme Court appointment, and thinks that a display of willingness to break from judicial norms is just the way to recommend himself to a norm-breaking President. Far be it from me to cast aspersions of that sort; the reader must decide what he or she thinks.

I will only add that even if that was the real goal, indeed especially if that was the goal, the attempt was still clumsily done. The skillful auditioner for the Court must send the right signals on two margins, not just one — must show not merely that he is ideologically aligned with the appointing President, but also that he is more persuasive, intelligent, and compelling than the competing candidates. The resort to vulgarity may help on the first margin, but hurt on the second, for it always raises a suspicion that the rhetor cannot think of any more subtle and clever way to make his point. Vulgarity is the recourse of dull minds. Whatever the Judge’s motivations may have been, his opinion is worse than an incivility; it is a blunder.