In a recent published order, Judge Alex Kozinski rejected a complaint that a judge had engaged in misconduct by making jokes about a candidate for public office. “The mere fact that a statement takes the form of a joke,” Judge Kozinski wrote, “does not render it misconduct; humor is the pepper spray in the arsenal of persuasive literary ordnance: It is often surprising, disarming and, when delivered with precision, highly effective.” In Re Complaint of Judicial Misconduct, Order No. 10-90016, Judicial Council of the Ninth Circuit, Feb. 2. 2011.
Highly effective? Yes, sometimes. Timing and delivery certainly help. It also helps if the intended joke actually amounts to humor. As for disarming, well, perhaps, though the metaphor of pepper spray lends a connotation to “disarming” quite distinct from that of alleviating hostility with humor. (My grandmother, whose pinpoint delivery from a vast arsenal of Yiddish ordnance would have satisfied the Kozinski standard, once compared a member of our family to salt in the eyes and pepper in the nose. But the subject was not present to be disarmed.)
Humor is risky, however, especially for judges, who get to play to a captive audience. Years ago, when I had just been appointed to the bench, a friend who preceded me by a year told me two things I would quickly notice: “No one will want to have lunch with you, and everyone will laugh at your jokes.” The laughter is seductive. It leads some who are not funny to think they are. And it leads some who are sometimes funny to stretch for the laugh when they should not.
One morning, when I had been a trial judge for a year or so and had recently rotated to a family court assignment, I had taken the bench to hear a motion. Counsel were present with their clients, a middle-aged couple whose second marriage had turned to ash, and one of the lawyers had risen to pose a preliminary question, probably on a matter of scheduling. Of the exchange that followed, I remember only that he said something that suggested a play on words and I went for it, probably intending to be disarming. The lawyers had begun to reward me with the polite chuckle that is customary at such moments, when the wife said to her lawyer in a whisper I could hear 12 feet away, “Does he think this is funny!”
I didn’t want to have lunch with myself that day.