In my en banc “wrap-up” post, I summarize the arguments in the three cases argued today before the en banc U.S. Court of Appeals for the Fifth Circuit. Here, let me offer a few non-argument-related observations from this morning’s sitting:

•  After you walk through security in the New Orleans Fifth Circuit courthouse, you notice a great rustling, and look about to see that the great hall of the Fifth Circuit building is “under wraps,” huge swaths of plastic drop-cloths draped floor to ceiling as the Courthouse undergoes some cosmetic renovations.  It’s such a beautiful building, and well-deserving of the touch-up.
• I got there early enough that the few conversations between counsel in the courtroom were still addressing what they termed “the most important question”: where they ate last night upon arriving in town (John Besh’s Lüke), and where they had reservations to eat after arguments were concluded (Donald Link’s Cochon).  Both restaurants, of course, are fantastic, and I think it’s notable that both were opened post-Katrina, reflecting the owners’ optimism in the potential for the city’s recovery.
• Also still early in the pre-argument waiting, the court reporter handed out those great Fifth Circuit ballpoint pens to those in the gallery.  Not to complain, but they have changed their supplier to something not as nice.  The new pens have the rubber grip that the old pens did not, but they lack the heft and the smooth ink-flow of the pens they had given out for years.  That’s OK.  I still have a couple of the old pens from when I was a clerk there and from past arguments I’ve had there.
• Still in the pre-argument period, one of the trial counsel in the In re: Volkswagen case proceeded beyond the bar and beyond the podium to immediately in front of the bench and slowly moved from in front of one judge’s nameplate to the next, until he had stared down each of the seventeen nameplates, as if he were getting a read on his jury.
• About ten minutes before the argument began, all of the judges’ clerks filed in and flooded the gallery, taking up the available seats and lining the back and side walls in standing-room-only fashion.  I heard one clerk referring to the Gomez rape issue as “ridiculous.”  I also noted that the ratio of male to female clerks was skewed only slightly heavier to the male side of the ratio; less surprising was that there were only two African-American clerks amongst the group.
• In the intermission between the first and second arguments while the judges had gone back into the dressing room to reconstitute the panel, but with all of the judges’ clerks milling about in the courtroom, one of plaintiffs’ trial counsel in In re: Volkswagen commented to another, very offhand and I’m certain not intended to be derogatory, that one of the judges (I think he was referring to Judge Elrod, though it may have been Judge Haynes) seemed like she should be one of the clerks, not one of the judges, and laugh loudly at his own comment.  Like I said, I’m sure he didn’t intend this as a derogatory comment, but just a lighthearted and offhand remark about the Judge’s youthful appearance.  It could easily be construed, however, as lacking a certain amount of requisite respect and deference to one of the judges about to decide your case, and I found it shocking that any attorney would make such a comment in clear earshot of a roomful of judges’ clerks.  If you don’t know it, yet, then hear this now - judges’ clerks are their eyes and ears.  Many times when I was clerking, I would be in the gallery and hear counsel make a snide comment about one of the judges on the panel.  You can bet that, if it were my judge, he heard about it, and if it were another judge, my friend who clerked for that judge would hear about it.  That’s not out of meanness toward the attorneys or a desire to engage in courthouse gossip, but it goes with the sense of loyalty between clerks and their judges and the sense of fraternity among all judicial clerks.  Attorneys, don’t get so comfortable around clerks that you say something to (or near) them about a judge that you wouldn’t say to that judge’s face.
• This last observation is likely obvious, but I found the quality of oral advocacy this morning uniformly excellent, which is not the case on any given oral argument day during a regular, non-en banc sitting.  Excellent job by all of the appellate counsel today.