As every regular reader knows, the past year has given the blawgosphere an actual, honest-to-god, Article III judge with whom to engage. It’s been, at least to me, a somewhat tricky, somewhat awkward, somewhat illuminating experience, and one that I found enormously valuable. And now it’s done.
On the first of January, 2014, District of Nebraska Senior Judge Richard G. Kopf retired his blawg, Hercules and the Umpire, from active duty.
In short, Hercules and the umpire has exceeded my wildest expectations. And so–it is time to kill it. In this forum, I have written all that I want to write and then some. It is that simple. My decision is final.
Judge Kopf gives a laundry list of answers to anticipated questions about his choice, foremost of which is that it’s not because of his health. He’s had a tough year, health-wise, and for those of us who’ve woken up older than we’d ever thought we would be, it’s good to hear that he remains tough enough to type. You kids won’t really understand this, but every day brings a new and unanticipated adventure in painful body parts. Eventually, they will win, but not without a fight.
To the extent a WSJ article critical of judges speaking publicly, and potentially exposing themselves to ethical challenges, might have influenced his decision, Judge Kopf disclaims any concern (which he calls “vastly overblown”) and asserts it played no role in his decision. I believe him.
Judge Kopf’s experiment has been remarkable to watch. For those who still look at judges in awe, it’s brought them down to earth. Yes, they’re regular people when they take the robe off, which means they suffer the foibles of humanity just like the rest of us. But they also carry a burden that the rest of us don’t; they make decisions that have impacts far beyond the reach of most of us. Some wield that power like a club. Some wield it with humility.
By giving us a peek under the robe, and more importantly, but doing it in a way that allowed if not invited us to see the bad with the good, Judge Kopf demystified much of the bench. Whether that’s a good thing isn’t always clear. Sometimes it’s best not to know how the sausage is made.
For better or worse, my view is that Judge Kopf has been sincere toward us within the paradigm of his position. He’s been unerringly civil, to a fault. He’s demonstrated the temperament one aspires to as a judge, and the restraint from giving a damn good kick in the ass when no one would have questioned him for doing so.
Some of you have smacked me around a bit for walking as gingerly as I have around Judge Kopf. For the most part, the comments to his post have been decidedly sycophantic, as one might expect of people inclined to curry favor from power. But that wasn’t Judge Kopf’s fault. He never stuck his butt out to be kissed, and made it plain that it was exposed for kicking as well as kissing.
So why, some of you yelled at me, didn’t I go for the kick when I had the chance? After all, we had our differences, some huge, about what the federal judiciary can and should do to safeguard the Constitution. And I’ve never been reluctant to question or challenge before. Was I just another sycophant, hoping for some crumb of largesse at a federal judge’s knee?
The fact that Judge Kopf wrote his thoughts on the internet, invited readers to react honestly and, on occasion, took the time to address those reactions substantively was an opportunity. A big opportunity. Perhaps in the future, things will change, but in my 30+ years, no federal judge I didn’t already know from puppyhood spoke so plainly and engaged so willingly with the likes of us. Nor would a curmudgeon like me be so bold as to think I was owed a fair and open discussion. Maybe I’m just old-school, or a slave to the system, but lawyers don’t get to make demands of judges outside of our roles as advocates, and then within the confines of propriety.
So Judge Kopf, a guy I don’t know who wears a robe and decides whether people will ever see their spouse and children again, gave us (me) that chance, and I was not going to scare him away, offend him, piss him off or shut him down. I tried to push the envelope a bit, but not so far as to have him hold me in internet contempt. And Judge Kopf dealt with me, even if not always the way I hoped.
Judge Kopf didn’t have to engage with me. I couldn’t make him. That he did so at all is a credit to his openness and willingness to take on a challenge. That he went as far as he did is a credit to his toughness. It was far more illuminating for me (and I hope for you) to keep these lines of communication open then it was to fight to the death over some particular issue. We learn far more from listening than speaking, and this may have been one of the most valuable learning opportunities the internet has ever offered.
But now it’s done. And in typical Judge Kopf fashion, he signed off with a picture of many meanings:
Judge Kopf explained that he was the lucky dog in the image. I see it as the good Judge saying that if we don’t like what he had to say, we can kiss his ass. And I’m good with it either way.
I thank Judge Kopf for the opportunity he gave me. But he stopped too soon. We have so much more to learn and discuss.