Judge Kopf and the Appearance of Impropriety (Update)

In response to the Supreme Court’s Hobby Lobby decision, Nebraska Senior District Judge Richard Kopf did something that caused some heads to explode.  He told the Supreme to STFU.  Ironically, the volatility of the decision, which was the reason Judge Kopf thought the Supreme Court’s insertion into such a controversial political issue was destructive, gave rise to calls for Judge Kopf to STFU by some, including some academics.

Lawprof Stephen Bainbridge, who made the specious assumption that Judge Kopf’s post was fueled by ‘thinly veiled” anti-Catholic animus, and later seized upon a joke written by the judge that he never cared enough about in the first place to know happened and still doesn’t grasp (and if Bainbridge doesn’t get it, it can’t be a joke), offered his deep thoughts:

Dude, you really need to STFU.

At Election Law Blog, lawprof Rick Hasen writes:

A judge who blogs should not say “STFU” to the Supreme Court.

Look: this is about respect for the rule of law. Lower court judges should not use profanities to criticize the Supreme Court. Even if you disagree vehemently with the Court (as I do quite often), respect for the institution requires some level of decorum. This is especially true for judges who sit in an inferior position to the Court. Just like a member of Congress should not yell out “You lie” to the President during the state of the union regardless of how much that member disagrees with the President, our social fabric depends upon expressing disagreement in a constructive and respectful way.

Hasen too brings up the “dirty old man” post, calling Judge Kopf “way out of line,” concluding that Judge Kopf should either stop blogging or retire from the bench. Then there’s Jonathan Adler at Volokh, who offers no actual thoughts of his own, but passive-aggressively repeats the thoughts of Bainbridge and Hasen.

The response to Judge Kopf’s most recent post has not been kind. Even some of his regular readers are not amused. For a representative sample, spanning the political spectrum, see these posts from Professor Bainbridge and UC Irvine’s Rick Hasen.  Concludes the latter:

Look, blogging is not for everyone, and I respectfully suggest that Judge Kopf either stop blogging or retire from the bench. 

That is a polite way of suggesting that perhaps it’s time for Judge Kopf to heed his own advice.

Judge Kopf, being as transparent as he is, posted an email from a Nebraska lawyer urging him to stop blogging, contending that his frankness, his bluntness and his use of words that federal judges rarely utter publicly, was doing more harm than good.

Adler wrote that “some of his regular readers are not amused.”  A more accurate statement, based on the more than 120 comments currently left on the post, is that there is overwhelming support for Judge Kopf.  And as some of those commenting are fellow United States District Court judges, it appears that he’s hardly in the doghouse even amongst those who might be most concerned about lack of decorum, as is Hasan.  There are a handful of people who think Judge Kopf crossed the line, but they are miniscule in comparison to his supporters.

Unlike Jonathan, I have some of my own thoughts on the subject, and I feel uniquely well-positioned to offer them, both to Judge Kopf as well as the academics, the readers, the non-lawyers who have taken his STFU post viral, and anyone else who thinks they are in a position to opine on the continued existence of Hercules and the Umpire.

Anyone who has anything of substance to say about any subject of consequence is going to have people disagree. Often, vehemently.  Few, however, will have such an exposed flank as a person who holds a position of consequence as an Article III judge.  Historically, none of us outsiders would ever be capable of engaging a federal judge in ordinary dialogue. Judges can hide behind their robes, their benches, and we will address them as “your honor,” never able to question or challenge their real thoughts. Indeed, we would never know their real thoughts, as their only public utterances would be hidden in the mitigated language of rulings and the occasional official platitude.

While Justice Scalia and Judge Posner, for better or worse, occasionally let loose a controversial comment, no judge has offered as much insight into the mysterious world of the judiciary as Judge Kopf.  It hasn’t been easy, as he’s come to realize that jokes of his generation sail right over the heads of the children and lawprofs.  Worse yet, they not only fail to recognize jokes as such, but mistake them for serious assertions, and get irate. Even when explained, they still fail to grasp that a joke, regardless of whether you agree it’s funny, remains a joke.

He curses a bit too much for my taste, and his plain writing and lapses into vulgar language makes the pompous, prissy academics cry for decorum.  He tries to make his writing accessible to everyone, which violates the prime directive of scholars, for whom needlessly murdering thousands of words to mask any cognizable meaning in their writing is a condition of being invited to faculty teas.

Finding the perfect level of thoughtfulness and accessibility, especially on an internet where anyone and everyone can read, is impossible if your purpose is to say anything meaningful. Sure, it’s easy if you’re only giving hugs and smiles, or only playing to one-minute slices of the world who come to confirm their bias.  But Judge Kopf isn’t looking to pick up marketing clients, or become a stand out in the Academy by staking a claim in some political turf that will get him invited to symposiums.  He’s a judge. The president appointed him. The senate confirmed him. Nobody confirmed you. Or me.

In the process, Judge Kopf has single-handedly done more to restore faith in the humanity of the judiciary than any other judge in the nation.  I’ve regularly disagreed with him, but at the same time, he’s given me more insight in the federal judiciary than anyone else in more than 30 years.

To many non-lawyers, especially those who harbor strong antagonism toward judges who they see as one-dimensional demons wantonly destroying lives, Judge Kopf is the first living, breathing judge who offers proof of humanity on the bench.

A great many people have lost faith, lost hope, that our fundamentally flawed system can be salvaged.  Judge Kopf, for all he may do “wrong,” has given them hope that there are some real, thinking, caring human beings in robes who maybe, just maybe, can be persuaded to care a little more about what the law does to real people and little less in decorum.

Is it perfect? No, but nothing is.  Are we all better for having Judge Kopf expressing his thoughts, even if they occasionally come out in a cringeworthy, awkward way.  You bet your ass we are.  So to Bainbridge, Hasan, Adler, the Nebraska lawyer, and anyone else who thinks they are in a position to tell Judge Kopf to hang it up, I’ll take Rich Kopf over any and all of you. And fuck you.

36 thoughts on “Judge Kopf and the Appearance of Impropriety (Update)

  1. Lee Roach

    Many don’t want to see the judiciary wizards that exist behind the curtain. They would rather exist without that enlightenment than to admit that the wizards are mere mortals. When one such wizard invites us all in for a chat behind the curtain (regularly and frequently, thankfully), we have no business listening to or even acknowledging those that gleefully choose their own ignorance over the group’s enlightenment (or the wizard’s rightfully earned robe).

  2. Ted H.

    I’ve thought Hasen to be a smug asshole for a long time ever since he wrote so vehemently against Citizens United. And the hypocrisy from all the academics here is startling: “no you shut up.”

    1. SHG Post author

      Hasan’s final line, a pseudo-parenthetical,

      (If Judge Kopf is reading, this is much more polite than me telling you to STFU. I hope you can appreciate that.)

      is one of the more narcissistic, hypocritical, yet revealing, lines I’ve ever seen. Even if Judge Kopf was to read Hasan’s post, why would Hasan presume that his opinion, polite or otherwise, matters? More importantly, being “polite” is an affect of the faux-refined sensibilities of academics. Lawyers don’t whine about “disrespectful” language. To lawprofs, nothing matters more than toxic tone. To real people, substance matters and idiocy couched in refined language remains idiocy.

      1. Ted H.

        Kopf acknowledged that he was making a juvenile response. After getting through and out of law school, I’ve realized how ridiculously self-important, prissy, and sensitive some academics can be. I had some great professors too, don’t get me wrong. But to say that STFU is profane and unbecoming of a lower judge to direct toward the institution of his superior court is inane. Honestly, I think a lot of this is stirring up controversy for clicks and CNN airtime when they’re not feeling relevant enough. Also, prepping for bar and doing some part time legal work has lessened the value of some of the work of academics in my eye.

  3. DHMCarver

    I have read a fair bit of commentary that Judge Kopf should show more respect to the institution of the Supreme Court. I was relatively old when I went to law school, and had been around the block a few times, so the fawning over legal institutions that was part of the indoctrination process I was able to set to the side with an eye roll pretty easily. It amazes me, given how much we know, that people still roll out that canard.

    Additionally, in my thinking, the Supreme Court, whether it should have “respect” (whatever that means) merely for what it is, or stands for, jettisoned any respect due when certain of its members decided that they could give speeches and have people removed from the auditorium who tried to record those speeches, or could attend private, secret conclaves with major political donors funding cases before them, gatherings where no record is allowed of who attended or what was discussed. We are, after all, still nominally a republic. If you start acting like an aristocracy, don’t be surprised if some people start sharpening their verbal guillotines.

    1. SHG Post author

      I feel a certain institutional need for the respect shown the office. As much as I may disagree, or find the Supreme Court’s performance less than satisfactory, the respect for office is needed to maintain perspective.

      Until we’re ready to tear down the institutions, we need them. We just need them to do better, but we need them. If we fail to respect the institution, then the institution ceases to matter. We need the institutions to matter, as bad as they may be, as they’re all that stands between us and brute force.

      But I also believe that the Nine can take a punch, whether from me, you or Judge Kopf. Indeed, I think it’s part of their duty to take a punch. You don’t get to be one Ninth of a branch of government while being so shallow and sensitive that you can’t handle some criticism, no matter how it vulgar or refined it may be.

      1. Bouldergeist

        Maybe we have a duty as citizens to start tearing them down. Judges are completely without any accountability, even though the Framers’ Constitution had ways to keep them accountable which they interpreted out of existence.

        Absolute power corrupts absolutely, and our courts are absolutely corrupt.

        1. SHG Post author

          Yeah, that’s a problem either way. We need a system, as lack of a system is worse, and yet the part of the system that exists to oversee the judiciary is more judiciary, which doesn’t always serve very well. There is the political branches, which can undo some of the problem, but that doesn’t work too well either. But the biggest problem with “tearing them down” is the likelihood that whatever comes next will be worse.

          1. Bouldergeist

            What about using the good behavior clause? My understanding is that good behavior was used to hold the King’s subordinates accountable for centuries prior to our Revolution. A subject could go into court, demanding a jury trial, and plead his case that the official failed to do his job, and had forfeited his office. It has the added advantage of already being in the Constitution. (One poster brought this up on Judge Kopf’s blog.)

            Since you won’t allow hyperlinks, google Saikrishna Prakash Yale Law Review for historical discussion of the practice.

            1. SHG Post author

              Lawyers are familiar with the good behavior clause. We don’t need to google it. So what about it? You don’t like their decisions so they should be impeached for bad behavior? Would you care to consider how that went for recently deceased SDNY Judge Harold Baer?

            2. Bouldergeist

              Do lawyers actually know what “good behavior” means? It isn’t a topic covered in standard treatises like Tribe. There is no case law on the subject, so you won’t cover it in ConLaw. My surmise is that most probably don’t.

              Judges ought to be removed from the bench for cause, and if you took the time to read Prakash’s Yale Law Review article, you know that there is a discrete list of offenses. Mere bad judgment is not among them (the example of Judge Baer is not pertinent; I would agree that that was an abuse of the impeachment process).

              Remember that impeachment is a political process, depriving the target of the rudiments of due process. Removal for cause would be in a regular trial, with witnesses, evidence, and due process. A clear standard was an established part of English law more than 250 years ago. The Framers obviously intended that the existing standard be applied to Article III judges, as it has no other raison d’etre.

              Whether it is wise or not is irrelevant. The Constitution provides for it. Shouldn’t that be our litmus test?

            3. SHG Post author

              As fascinating as you find your tangent, I’m afraid that it’s unlikely that lawyers across the nation will cease whatever they’re doing to focus on your surmise and read your suggested law review article, or perhaps conduct an empirical study on whether “lawyers actually know what ‘good behavior’ means.” Given that you are deeply fascinated by your thoughts, I urge you to start a blog, write about this in great depth, and become internet famous.

              This is my nice way of telling you that you’re done.

  4. Wheeze the People™

    Yes, all that you said, only adding this is why we can’t have nice things because, you know, lions and tigers and bears, oh my . . .

  5. John Barleycorn

    I personally enjoyed the Instigator from Nebraska not capitalizing stfu in his post as well linking the acronym to its definition.

    Perhaps, he is more the sneaky devil than the “awkward” the esteemed one has tagged him with in the past and here, indirectly, once again.

    I like to pretend the Instigator from Nebraska is going to take up pheasant hunting with peaceful anarchists Quaker farmers after church on Sundays this fall as a hobby.

    If he does perhaps his life reflection posts will take on a whole new dimension and his strolling about current affairs posts will awaken a few more of his peers…

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  7. bill

    From what I understand, lawyers are pretty apt to parse words carefully and generally scorn sloppy language. “It’s time to STFU” sounds like advice, not a command, hence it’s much more respectful. I read the criticism and it sounds a lot more like boott licking and jealousy than valid criticism. So I guess if he said “Maybe they should think long and hard about not hearing issues” that would be fine but ‘maybe it’s time to STFU” is over the line? Even if it was egregiously wrong or bad form, he should get a pass for how he made his point with LULZY awesomeness.

  8. Stan

    Judge Kopf appears to speak with the freedom of one who has accepted his own mortality. I don’t always agree with him, but his writing is always worth the time to read.

    1. SHG Post author

      That’s a very interesting way to put it, “accepted his own mortality,” given that he suffers from Hodgkins Lymphoma. There seems to be a thing with senior judges, seen with Judge John Kane in Colorado, Judge Weinstein in EDNY, and Judge Kopf, where a judge comes to grips with the fact that he’s never going to make it to the Supremes, has a future limited by the good years and stamina he has left, and no longer feels the need to court anyone’s approval.

      This frees the life-tenured judge to spend his remaining time on the bench doing what he believes is right, no matter who he pisses off in the process.

      1. Sgt. Schultz

        Not sure if you’re aware, but Judge Kopf posted about this exchange on his blog (link omitted, per rules). A comment there from a guy named Fine (whose name I spelled from responding) made this into your baseless hypothesis and diagnosis. I took issue with his creating a strawman of your comment and knocking it down. Hope you don’t mind.

        1. SHG Post author

          Yes, I saw Judge Kopf’s post, David Fine’s comment, and your reply.

          While you are right that Fine’s “analysis” reflected his misinterpretation of what I wrote, I’m not particularly concerned. Anyone who matters will immediately recognize the flaws. What he fails to realize is that Judge Kopf didn’t post his questions because they were easily dismissed, but because they weren’t.

          All in all, Fine comes off poorly, not for his opinion (which he’s allowed) but his (as you said) facile handling of the question. And his making a big deal of your misspelling his name was just poor form.

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  11. David D. Begley

    Richard Kopf is an Article III judge; not a Title III judge.
    Article III as in the constitution. Not Title III as in a statute.

    I learned the above at Creighton Law School, Omaha, Nebraska.

    1. SHG Post author

      Typos happen. Pointing them out is appreciated so they can be fixed. You can tell the difference between a typo and ignorance by the thousands times Article III was properly used before. You can also tell the difference between someone who graciously points out a typo and someone who is an assumptive douche trying to make a typo into a substantive error by how much of an asshole they are when doing so. Ironically, none of the lawyers, lawprofs or judges who read this post noted the typo, likely because they realized it was just an inconsequential typos. Still, it’s wrong and should be corrected.

      Thank you for pointing out the error. It’s now fixed.

  12. David D. Begley

    Why did you assume I wasn’t being gracious? Pure gloss on your part.

    I really appreciate your find command and use of the English language.

    Might consider the following that was written in 1647, “Be vulgar in nothing.”

    1. SHG Post author

      Try using the “reply” button when you’re replying, so it makes sense to someone reading the comments. And you might consider that you’re a guest here. I don’t mind being corrected or criticized, but no need for you to be an asshole about it. The beauty of this being my blog is that I can be as vulgar as I want to be, and you still can’t be an asshole. This is not a debate point. Got it?

      1. David D. Begley

        You, sir, are a piece of work.

        I was being a smarty pants, wit and tease.

        Not only do you assume the worst of people, you just went off on me.

        I won’t be wasting any more time on here.

        1. SHG Post author

          I assume nothing. Your self-assessment of wittiness could stand some significant adjustment. In any event, your thoughtful contributions will be deeply missed. Bye.

        2. Sgt. Schultz

          Well, if SHG hurt your delicate feelings and you won’t be wasting your time here, neither will I.

          Oh wait, I have no clue who you are, why you think anybody cares what you think or whether you exist, or why you think you haven’t behaved like a total douche here. You’re no Oscar Wilde.

          1. SHG Post author

            From what I can tell, he was a day tripper, and these were his first comments at SJ. That, of course, is no reason for me not to appreciate his wit and wisdom, obtuse though it may have been. On the other hand, I am always amazed at the delusional self-importance some folks place on their graciousness in wasting their time at my humble blawg. I need to get better at giving assholes tummy rubs so they don’t tell me how they will leave me, all alone in my room, and make me cry.

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