Kopf: On Making Good And Real People Stupid

Let us stipulate that lawyers, judges, law professors and legal pundits are not real people and many are not good either. By “good” and “real,” I mean the salt of the earth types that comprise the vast majority of the American public.

With the foregoing agreed, I next address a question Scott put to me recently:

What impact does the partisan handling of Judge Neil Gorsuch have on the federal judiciary?

The answer is as plain as the very large nose on my very old face. That is, the partisan handling of Judge Neil Gorsuch has made good and real people stupid and that, as a consequence, has irreparably harmed the federal judiciary. There are two aspects to this post.

The Confirmation Hearings

The confirmation hearings were a complete embarrassment.  With two non-lawyers running the show (Senator Grassley and Senator Feinstein), political theatre was the order of the day.

The Gorsuch hearings were typified by softball (and goofball) questions from the Republicans. Consider, for example, Senator Jeff Flake’s too cute by far inquiry about ducks.

The Democrats for their part played the role of solemn interlocutors making plain their views that Gorsuch was merely a marionette. Consider, for example, Senator (and former comedian) Al Franken seriously asking Gorsuch to become a mind reader:

The Nuclear Option

But it is not solely the stupid questions and political posturing at Gorsuch’s confirmation hearing that will deal the death blow to the federal judiciary in the minds of the general public. When the Senate goes nuclear, a clear and unmistakable statement will have been made to the American public. The Senators will be declaring once and forever that federal judges are just like them. One’s political party is all and everything that matters, be you a United States Senator or a United States Judge or Justice.

The Funeral Pyre

The partisan treatment of Gorsuch is a disaster for the American people and the federal judiciary. With the use of the nuclear option, baked into the mind of ordinary people will be the notion that judging is based upon personal political predilection. The Gorsuch debacle will have cemented—with steel rebar—that untrue but unshakeable belief.

The politicization of the federal judiciary in the minds of our citizens will be complete when the roll is called and a simple majority of the United States Senate carries the day after staging the worst Kabuki dance drama of modern times. At that point, a mortal blow will have been inflicted on the federal judiciary.[i] I wish I was exaggerating.

[i] It is absolutely true that Judge Garland got screwed, Justice Thomas was nearly drowned in a cesspool, and Judge Bork was defamed. But we have reached the nadir with Gorsuch and the nuclear option.

37 thoughts on “Kopf: On Making Good And Real People Stupid

  1. Krish

    Dear Judge, what do you think was our way out of this mess? That this political stage show was going to play out exactly like this was clear over a year ago. What do you think could have been done to forestall it? All I can think of is that maybe Gorsuch, as one of the few adults in the room, could have refused to be considered until his colleague was at given a hearing.

  2. Keith

    Judge Kopf,

    The framers created a third branch of government that wasn’t partisan and they chose to have a partisan pick the people to fill it. They chose to have other partisans advise & consent as to whether that pick was worthy.

    That being the case, I wonder why this hasn’t happened sooner. Do you have any insight from your side as to why it’s taken so long for partisan discord to infect your branch?

    1. Richard G. Kopf

      Keith,

      I reread my previous reply. It was not responsive.

      You asked: “Do you have any insight from your side as to why it’s taken so long for partisan discord to infect your branch?”

      Even now, I don’t think the federal judiciary is infected with partisan discord. I fear that the public will perceive us to be political partisans and the trust in the third branch, to the extent it ever existed, will be lost.

      All the best.

      RGK

  3. ExiledV2

    The Senators will be declaring once and forever that federal judges are just like them. One’s political party is all and everything that matters, be you a United States Senator or a United States Judge or Justice.

    I thought that was already made clear by the treatment of Garland last year. Wasn’t he given a screw-job simply because he was the Democrat nominee? Good for the goose is good for the gander; if it’s good for Garland, it’s good for Gorsuch.

    I believe that to be fair and even-handed.

  4. John Barleycorn

    To insinuate that the remaining  “salt of the earth” types left on Planet USA, haven’t been “aware” (in one form or another) of the shenanigans afoot at the orchestrated margins and main controls of the helm and the axillary branches of Planet USA’s flag ship for more than a few generations now is ridiculously insulated bullshit Judge.

    Especially, coming from a person who self describes himself as “not a real person” in order to cover for having been directly  granted extra-real district power and responsibilities from Planet USA.

    Let’s face it judge, all this whining about how the third branch will suddenly and forever lose its lily white virgin scent as of Friday, if the gypsies fuck with their gypsies rule book is laughable.

    Relax Judge, don’t you get your boxers in a bunch.  All that salt has come in handy for cleaning the cast iron for some time now. Ever since the wheels fell of the wagon out on the trail a while back, and everyone just said, “Fuck it!” and put up camp.

    Havent you noticed? Or has all that salt you speak of obscured all the blood, sweat and tears that the “real people” are saturated in? Don’t you worry just yet though because, for some reason or another, all the salt people, are still buying into to the illusion being feed to them by the gypsies that they will one day be able to retire on the salt itself. Well that and a few bootstraps soaked in vitiam c.

    Everything will run its course in due time.

    Afterall, there is only so much salt to go around. No matter how many love letters  “real” people won’t send to Janet and her Board of Governor’s down in the engine room nor the lack of fan mail you Judges, get.

    Besides, and not to be trite here, but is it not true, that on more that a few occasions you have gone out of your way to highlight the importance and sanctity of the ever convluted and tireless scribbling of the gypsies that, from what I am told, spring forth from the lamp otherwise known as a ballot box?*

    What the heck was it Benjiman said?
    “Get busy or kick back and enjoy the ride?” No that wasn’t it… “A republic, if you can keep it.” Yeah that’s it! Simple really.

    But seeing as how you seem to be wanting to have your cake and eat it too with this post. I am guessing what you’re really roosting your uneasiness on here has something or another to do with what that Thomas character once spouting off about with eh? 

    The whole, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” thing.  I don’t know, but I suspose no one really knows if the shit stink is emanating from the gypsies running amock or those rubbing the lamp.

    Well, I guess on this fine spring day of April 2017 only one thing is for certain. And that is the fact that the number of lawyers amongst the ranks in congress is on the decline. Plus or minus  40% percent these days.

    That might be a bad thing but then again, when their numbers get down to about one or two percent the probability of the gypsies not being able to get away with their uncanny ability to not only polish the shit, but with a straight face pretend it doesn’t smell, exponentially increase.

    Cheers!

    *I still don’t belive it. Even though the  people who get paid to know, tell me it’s all about how you rub the lamp. But I still don’t belive it, but what the hell do I know?

    1. SHG

      I just wanted Judge Kopf to have to suffer through reading your comment the way I do. And not even a video. Jeez. That is all.

          1. John Barleycorn

            Fuck ‘um, if all they wanna do is sit around and roast smores over wagon wagon wheel spokes and sing camp fire songs when they are not busy mucking about with updating the tent owners associations bylaws.

            You know you are gonna have to saddle up sonner or latter esteemed one.

            It’s wild and crazy out here these days.

            Hell, you don’t even have to go to the telegraph office or catch the mail train anymore when you want to write a love letter back home to your sweetheart when you are out ridding free in the untamed frontiers of the new wilderness.

            Yee-haw!

            See you and the Robed Rider out on the trail…

      1. LocoYokel

        Am I the only one who has no idea what point he is trying to make (if any)? I know I am far from the smartest person in this forum, but this is completely incomprehensible to me.

        Ya, ya, off topic, all about me, etc…. feel free to trash this. but still, my head hurts trying to read that comment.

        1. Billy Bob

          Yea, you just marked yourself as a newbie here, but no nevermind. JB is an acquired taste, irregardless of his comprehensibility, or lack thereof. We hope you are catching our drift? He is a true antidote to the, ahem,… quaffed, manicured, white-shod edumicated elite corps of impudent snobs who populate the legal enterprise which by-laws re-presented, aforementioned in the preamble, is the Bar-A$$ociation, You, Es, Ay. Sign up today in order to avoid late fees!

          We feel your pain, Loco Yokel,… Take two aspirin and call us in the morning. We know it’s painful, but it could get worse, a whole lot worse. (And probably will.) Thanks for tunin’ in, keep the faith, but above all: keep tryin’. Nice handle, bye the way. Did you mean Local Yokel? Or are you playin’ us? (It’s okay to make mistakes here, as long as they are not deliberately fabricated with aforesight.) Hindsight is NG as well, reserved for prawfs and their ilk in the journalist sphere.

          1. LocoYokel

            Actually, been a lurker for quite a while, but only have made a couple of posts (only one of which got published, IIRC). I’ve just never been exposed to Barleycorn unfiltered before.

            I say it again, Ouch.

            1. Patrick Maupin

              I think Barleycorn Unfiltered is a late-night PG-47 HBO thing. Either that, or his next album. I forget which.

          2. LocoYokel

            Sorry, just read the second paragraph (really should read entire thing before commenting, I know).

            No it’s LocoYokel, been using this handle for a while. If you go through the Groklaw archives you will find me.

            Loco – TexMex for crazy
            Yokel – well google it

            1. Billy Bob

              You’re in! We luv TexMex, the loneliest, stariest part of the country. That’s why Bush#43 relocated there and,… the rest is history. (He was lonely, terribly lonely.)
              Read the entire thing? Hey I never read War and Peace, the whole things;
              nor The Brothers Karamazov, etc. I did read Catcher in the Rye, Catch-22 and The Art of Motorcycle Repair, but I’m older than you. We were “well-read” back then. These days, everybody is well-bred, well-fed, well-endowed but poorly read, if you catch our drift?
              I meant TexMex food, not too hot! Groklaw Archives, I don’t like the sounds of that. Are they from the Eurozone? Just askin’. Why?

            2. LocoYokel

              Groklaw was a legal blog started by a para-legal named Pamela Jones back in 2003 that she stopped in 2013 (wow! has it been that long?) when the lavabit revelations came out. It originally covered the SCO (Caldera) vs World + Dog lawsuits over the “ownership” of Linux and expanded to cover many suits involving trademark and copyright as they impacted the computer industry. It is where I got my addiction to legal blogs. PJ was a champ at explaining things in a way that a IANAL type like me could understand. Very good at not making the world stupider.

              SJ has a post discussing the shutdown here.

              Hope I remembered the HTML coding correctly, it’s been basically since the Groklaw days that I have used it.

              Let’s see how long SHG lets this off-topic thread continue.

  5. Ricky

    The politicization of the Supreme Court happened last year, when the Republican leadership of the Senate refused to hold hearings on Mr. Garland. At that point, they demonstrated that they valued their party more than they valued their oath to uphold the US Constitution. (They didn’t need to vote to confirm, but they should have had a vote.) I believe that the date when they made the decision to not even bother with hearings on Mr. Garland will eventually go down as the end of American democracy.

  6. Richard G. Kopf

    John Barleycorn,

    By definition, I am a specialist in “ridiculously insulated bullshit.” All the best.

    RGK

    1. John Barleycorn

      Cheers Judge!

      Well, its looking like y’alls kind is in for a dewlaping of one kind or another with a dull knife during your conformation hearings going forward, until the next supermoon coincides with a lunar eclipse sometime in 2033.

      But rest assured, we will do our best out here in the wilds, under the stars, to make sure we have your kind’s six if them gypsies in congress get around to figuring out that they might as well just break out the running irons and start having y’all branded in acordence with tribe that nominates you.

  7. Dave Calder

    This layperson was prepared to state the court had been long politized/polarized. Then I ran across this chart from the NYT (last updated 3 Jun 2014): https://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreement-rates.html?_r=0

    It shows an extraordinary agreement among the Justices. The two most out of sync with each other still agreed 66% of the time. The average percentage of agreement for each justice with his/her peers ranged from 78% to 82%. The article also mentioned that at the end of that term more than half of the decisions were unanimous.

    1. Richard G. Kopf

      Dave,

      Thank you. I appreciate your research, and the numbers don’t surprise me.

      The thrust of my post was not that the judiciary is partisan but, rather, that the confirmation process will make folks such as yourself think we are partisans. The federal courts can only function effectively if there is a fairly wide agreement that we aren’t politicians in black robes.

      All the best.

      RGK

  8. Sparky

    Judge Kopf,

    Has there been a Supreme Court nomination where the President did not believe the judge would more often that not bolster the President’s party? Is this just the abandonment of decorum on the part of Congress? Unless their actions impact the federal judiciary’s behavior or Gorsuch is, indeed, objectionable, I’m not convinced there has been irreparable damage. Congress? That’s another story.

    — a so-called member of the American public

    1. Richard G. Kopf

      Sparky,

      You write: “I’m not convinced there has been irreparable damage.” Truly, I hope you are right and I am proven wrong. All the best.

      RGK

  9. John Neff

    The confirmation process appears to me to be similar to using risk assessment tools to predict future criminal behavior. The main difference is that much if the data used in the confirmation process is imaginary.

    1. Richard Kopf

      John,

      You make an Interesting point about data being corrupted (or non-existent) in the confirmation process. By the way, the corruption of data to which you refer is on both sides. All the best.

      RGK

  10. John Neff

    It seems to me that the 60% rule is an example of the Chesterton Fence Parable. They make their own rules the framers gave no instructions to congress about how they should conduct their business and some of the rules are so old they don’t know why they were made. My guess is if they trash the rule they will restore later.

  11. Ed Darrell

    Bork was defamed?

    Democrats printed out his writings, and asked him about them. Some of the writings made people wince. But his defenses worsened the situation.

    They were his writings, and his defenses.

    He defamed himself?

    1. Richard Kopf

      Ed,

      Consider Senator Kennedy’s statement about Bork that follows and then reconsider my use of the word “defamation:”

      Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

      Now, Ed, also consider what Ethan Bronner, who covered the hearings for The Boston Globe said about Kennedy’s:

      Kennedy’s was an altogether startling statement. He had shamelessly twisted Bork’s world view — “rogue police could break down citizens’ doors in midnight raids” was an Orwellian reference to Bork’s criticism of the exclusionary rule, through which judges exclude illegally obtained evidence, and Bork had never suggested he opposed the teaching of evolution…

      My friend, now that I think about it, “defamed” was too gentle. I should have used “slimed.”

      All the best.

      RGK

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