Judge Carnes Becomes Chief Judge Carnes, 1113 ALBJ, 74 The Alabama Lawyer 373 (2013)

• Author: Emily J. Tidmore.

Judge Carnes Becomes Chief Judge Carnes

Vol. 74 No. 6 Pg. 373

Alabama Bar Lawyer

November, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Emily J. Tidmore.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An Architect, Not a Mere Bricklayer

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Scottish author Sir Walter Scott observed that "[a] lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect."¹ If Scott's observation is true, we can say with certainty that as he takes on new job responsibilities, Judge Ed Carnes will not merely be stacking bricks; instead, he will continue to do his architectural work constructing opinions with a flair for style as well as content. On August 1, 2013, Judge Carnes, who has served on the Court of Appeals for the Eleventh Circuit for 21 years, became the chief judge.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To the task of leadership, he brings a treasure trove of knowledge, not just of the law but also of history, literature and popular culture, and drawing from that cache, he has scattered little gems in the engaging opinions he is renowned for writing. Veteran legal reporter Alyson M. Palmer described Judge Carnes's opinions as "crackl[ing] with personality" and as characterized by some "biting zingers" along with a tone that is "[conversational, and often blunt."²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Irony, Wit, Allusions

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To take just one example, in an appeal about whether a magazine and one of its writers could be compelled to reveal a confidential source, Judge Carnes addressed some events that were likely familiar to many Alabamians, beginning his opinion with this jewel of an introduction:

"In the Spring of 2003 Mike Price was head coach of the University of Alabama's Crimson Tide football team. Given the near-fanatical following that college football h as in the South, the head coach at a major university is a powerful figure. However, as Archbishop Tillotson observed three centuries ago, 'they, who are in highest places, and have the most power ... have the least liberty, because they are most observed.' If Price was unaware of that paradox when he became the Crimson Tides coach, he learned it the hard way a few months later in the aftermath of a trip he took to Pensacola, Florida.³ "

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0That passage is probably the only time Archbishop Tillotson has shared a page with a football coach, and the points that passage makes are all the richer for the unexpected but apt connection. This kind of writing calls to mind what Justice Holmes once described as his own "chief interest" in showing "the universal in the particular."⁴ A Carnesian judicial opinion often contains engagingly written particulars that offer a glimpse of the universal.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Irony and wit are no strangers to his opinions either. For example, the next paragraph of that same opinion continues: "While in Pensacola to participate in a pro-am golf tournament, Price, a married man, visited an establishment known as Artey's Angels' The name is more than a little ironic because the women who dance there are not angels in the religious sense and, when he went, Price was not following the better angels of his nature in any sense. Scandal ensued, and as often happens in our society, litigation followed closely on the heels of scandal.32 "^[5]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the first two of those three sentences about the coach's trip to the strip club, Judge Carnes crafted a fitting allusion to a line from one of Shakespeare's sonnets ("The better angel is a man right fair"), ^[6] and to a line from Lincoln's First Inaugural Address ("The mystic chords of memory... will yet swell the chorus of the union, when again touched, as surely they will be, by the better angels of our nature.").^[7] In the third sentence, he linked the facts to another broader truth: in our society, litigation often "follow[s] closely on the heels of a scandal" (emphasis added).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0More than Just Politically Correct

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As for the particulars, Ed Carnes's Alabama roots run deep. He was born in Albertville, Alabama and graduated at the top of his class from the school of commerce and business at the University of Alabama before heading north for his legal education at Harvard Law School, where he graduated with honors in 1975.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0He went to work in the Alabama Attorney General's Office and his duties there included prosecuting cases across the state, ranging from bootlegging to burglary and manslaughter to murder. Early in his career as an assistant attorney general, he worked to ban the importation into Alabama of South African coal, which, at that time, was mined by indentured black laborers under penal sanction.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the famous Sixteenth Street Baptist Church bombing case prosecuted by Attorney General Bill Baxley in 1977, Carnes was chief appellate and habeas counsel for the state in the case involving the first of the Ku Klux Klansmen killers to be prosecuted.^[8] He convinced the Alabama appellate courts to affirm the conviction of the...