Thursday, April 07, 2005

United States v. Grunning (9th Cir. - March 31, 2005)

In a previous post, I took Judge Fernandez to task (playfully, of course) for struggling to use a plethora of twenty-cent words. To which one reader responded (playfully, of course) by sending me an insightful e-mail that said that he thought that Judge Fernandez might have been deliberately obfuscatory in order to mock (playfully, of course) the holding of the Supreme Court that remanded he case back to the panel. Which I thought was an interesting point, and I reread the opinion to see if I agreed. Ultimately, I didn't, but the e-mail nonetheless left a tiny bit of doubt in my mind.

At least until I read this case, which put those doubts to rest. Here, Judge Fernandez again (in the penultimate paragraph) uses one of the same twenty-cent words that he used in McNeil: "recrudescent". Well, I thought, maybe the dude is so subtle that he's totally mocking the Supreme Court by issuing two opinions in two days with fancy-pants words. What a joker! Hilarious! But if it was a joke, apparently it's a longstanding one, as Judge Fernandez used this word not only in Gunning and McNeil, but also the (unpublished!) opinions in Arc of Washington State (2005 WL 705372) and Boyle (2005 WL 703397) as well as in his opinions in David (307 F.3d 1143, 1148), Smith (233 F.3d 1188, 1194), Knight (219 F.3d 1138, 1144), Hinduja (102 F.3d 987, 991), Springer (51 F.3d 861, 868), and Phillips (1992 WL 231124, *7).

Admittedly, maybe everyone is just more erudite than I am, and what I call twenty-cent words are really the equivalent of "dude" amongst the intelligentsia. Though if that were the case, one would still have to explain how, in the last twenty years, the remainder of the Ninth Circuit has somehow managed to write tens of thousands of published and unpublished opinions during this period without ever resorting to the word "recrudescent," whereas Judge Fernandez felt compelled to use it ten different times (and four times -- in Gunning, McNeil, Arc of Washington State, and Boyle -- in three days!). (Admittedly, once, almost exactly 20 years ago, Judge Beezer used the word in a quote he inserted from another case. But that was a quote, and it was 20 years ago. This hardly gets Judge Fernandez off the hook.)

Never let it be said that I'm not willing to reexamine my conclusions. But on this one, I think I've got Judge Fernandez pegged about right. (Random statistic: Whereas Judge Fernandez uses the word "recrudescent" ten times, he only uses the word "dude" once. And that's in Landrigan, when he's simply quoting the testimony of the defendant as he rejected the suggestion "that I was supposedly fucking this dude." Not exactly the type of language that I'd expect to be penned by Judge Fernandez himself.)