U.S. Supreme Court building April 23, 2019. Photo: Diego M. Radzinschi/ALM

New York attorney Todd C. Bank, who was thrown out of the U.S. Court of Appeals for the Second Circuit last year for what he admits was a "sarcastic" remark to one of the judges, is asking the U.S. Supreme Court to review the argument he was trying to make that day.

Bank represents Robert Doyle, who is challenging the constitutionality of a local bar rule for the Eastern District of New York that requires applicants to provide sponsoring affidavits from other attorneys vouching for character and legal experience.

Bank, a Kew Gardens, Queens, solo, filed a 31-page certiorari petition on behalf of Doyle with the Supreme Court on Monday. The petition contends that, "in order for [Doyle] to enable a member of the bar" to provide "a reasonably accurate assessment" of his character, he would be required to "disclose beliefs regarding philosophical, religious, political, social, moral, and ethical matters."

The argument is that the requirement violates the First Amendment.

"The right not to speak is equally protected as the right to speak, and the right not to engage in speech related association is equally protected as the right to engage in such association," Bank argued on Doyle's behalf in the petition.

Bank, reached by phone, said Tuesday he doesn't believe his dust-up with the Second Circuit should figure into whether the Supreme Court decides to review the case.

"It could only affect it if the Supreme Court is aware of it," Bank said.

He didn't mention the episode in his petition, nor did the Second Circuit panel mention it in denying his appeal in December.

The New York Law Journal reported on the drama—which was also discussed on social media. The December 2019 hearing started with Bank telling the appellate panel he had nothing new to add beyond what he wrote in his briefs. Bank said he assumed the judges were familiar with the record, and asked if anyone had questions for him.

Circuit Judge Denny Chin asked about the affidavit rule's alleged harm to Doyle, then pressed Bank to articulate what the alleged injury was—essentially, why he's in court in the first place.

"Are you serious, judge? With all due respect, I don't know what to say," Bank said at the time.

Chin responded: "You know what, I withdraw my question. You can sit down."

"OK, well, thank you. Thank you very much, judge. I see that you read the briefs thoroughly," Bank said.

Chin replied: "Well, well, you are acting in a disrespectful and discourteous manner, and that's not appropriate."

Assistant U.S. Attorney Matthew Modafferi then rested on the arguments in the briefs, prompting Bank to ask for rebuttal time. Chin and a second judge told Bank he had "waived" rebuttal and was excused. Judge Barrington Parker then asked that Bank be removed from the courtroom.

Bank said in Tuesday's phone interview that although he had never been escorted out of a courtroom before, it was not his first time to feel frustrated with what seems like a lack of attention to his hard work writing briefs.

"I think oral argument is largely a charade," Bank said. "The judges pretend to be intellectual, but often they don't care."

Asked how he feels about the prospect of oral arguments before the Supreme Court, he said that would require the justices to grant certiorari—which he acknowledged is "statistically improbable" anyway.

On the other side of the case is U.S. Solicitor General Noel J. Francisco. His office did not respond immediately to a request for comment Tuesday.