Kopf: Steven Calabresi Should Stop Pulling Imaginary Stuff From His Butt

Professor Steven G. Galabresi has an impressive resume. From the Northwestern School of Law website, consider the following:

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law.  He is also a Visiting Professor of Law at Yale Law School, Fall 2013-2016; a Visiting Professor of Political Theory at Brown University for 2016-2017; and the Chairman since 1986 of the Federalist Society’s Board of Directors. Professor Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a Special Assistant for Attorney General Edwin Meese III; and he clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals.

(Italics by Kopf.)

As SHG has written, Professor Calabresi[i] published a piece on the Social Science Research Network. It is entitled, Proposed Judgeship Bill, and it consists of a memorandum written November 7, 2017, and rather pompously addressed to the entire Senate and House of Representatives. (I refer to this article as “The Memo.[ii])

The Memo is predicated on this assertion: “Over the past twenty-five years, the caseloads of federal district and circuit courts have grown to unprecedented levels such that it is widely acknowledged that they are now experiencing a ‘crisis in volume.’”[iii] Sensing a court packing effort in the offing, liberals like Greenhouse, Milhiser, and Lithwick went batshit.

As usual, SHG, ever the realist, responded:

Sure, the notion promoted by Calabresi to expand the judiciary to load up on conservative judges is a terrible idea. But that doesn’t mean it’s not “ordinary times” when the other team tries to beef up its side when it’s in power. There is nothing so ordinary as uploading a paper to SSRN, nor nominating judges who suit your tastes.

Liberals should quit their whining. They should get off their butts and elect those who favor their team if they want to defeat Calabresi’s alleged effort to pack the courts with the spawn of literally Hitler.

As for me, I don’t care that Calabresi wants his judicial team to get bigger—his preferences are his and those of a like mind.[iv] Serious people can and should debate the proposal that he pimps.

But when Calabresi dreams up and imputes a dishonorable and unproven motive to federal judges as he does in his article, he pisses me off. This is what the professor wrote that I found both defamatory and intellectually dishonest[v]:

The Judicial Conference . . . suffers from a severe bias, which causes it not to ask for the creation of as many new judgeships as the nation needs. The prestige and power associated with being an Article III federal judge goes down if a large number of new federal court judgeships are created. This causes the Judicial Conference to continuously ask for the creation of fewer new judgeships than we really need.

The Memo at pp. 12. (Italics by Kopf)

This is utter nonsense.

Let me use an anecdote to prove my point. It is drawn from my personal experience as a Chief Judge fighting hard to maintain a judgeship and ultimately giving up, not because the initial fight for keeping the judgeship was unwarranted, but because that judgeship became unnecessary over the passage of time.

On December 1, 1990 Nebraska was awarded a fourth active judge.[vi] But that judgeship was “temporary,” meaning that after a certain date the next judge to retire would not be replaced. The temporary judgeship was authorized for five years from the date the judgeship was filled. The judgeship was not filled until November 22, 1993. In 1997 the temporary judgeship was extended by Congress for an additional five years. Authorization for the temporary judgeship ended on November 22, 2003.

I served as Chief Judge from 1999 through 2004. With the help of our other judges, and particularly Judge Joe Bataillon,[vii] who became the Chief Judge after my term, we did everything humanly possible to keep our fourth judgeship, and later to seek reauthorization of that judgeship.[viii] We had the strong support of the Administrative Office of the United States Courts. There was no thought that our “prestige” would somehow be diminished if we had more judges.

But then a funny thing happened on the way to the forum.

As the years passed, our caseload began to drop, and drop and drop. And, at about the same time, we found we could do more with less largely because of technology and much more sophisticated case management. So what did we do?

We told the Administrative Office of the U.S. Courts that we no longer needed a fourth active district judge. Nothing about that action was motivated by a concern for our prestige. It was rather simple. A fourth judgeship was unwarranted by any empirical measure. We judges have an obligation not to waste money, and we acted on that obligation.[ix]

In short, Professor Steven G. Calabresi should stop pulling imaginary stuff from his butt and impugning the integrity of federal judges in the process. He doesn’t understand what truly motivates federal judges, and the quoted passage from The Memo proves it.

Richard G. Kopf
Senior United States District Judge

[i] His paper was coauthored by a law student, Shams Hirji, Class of 2017.

[ii] By the way, he copyrighted The Memo.

[iii] You can judge this claim on your own if you like. The federal judiciary produces reams of statistics and statistical analyses and they can be found here. The claim that more judges are needed is not crazy, but it is not strongly supported by the data either. For example, using the most recent statistical publication that employs a comparative time frame of 2008 to 2017 as it pertains to the Courts of Appeal, filings in the Courts of Appeals were flat (0.99%), criminal appeals fell (-17.52%), and civil appeals fell (-6.64%). The slight increase (0.99%) was driven by miscellaneous applications (requests for certificates of appealability, for example) arising out the Welch and Johnson cases. For another example, and using the same 2008 to 2017 time frame, in the district courts civil filing rose (19.0%) but criminal filings as a percentage fell about as much as civil filings rose (-15.6%). These numbers are taken from the summaries provided in a publication entitled Federal Judicial Caseload Statistics 2017. I could go into much more detail over a much longer period of time using more sophisticated measures (such as case weights, time to disposition measures, metrics based upon civil cases more than 3 years old and so forth) but you get the picture.

[iv] However, it is bitterly ironic that the Chairman of the Federalist Society (for life?) promotes a bigger government and one built, no less, upon even more of the dreaded “unelected” federal judges that conservatives often decry.

[v] Please reread Scott’s post on “Your Honor.”

[vi] I was a Magistrate Judge then (the only one in Omaha), and each of our three Article III Judges (two in Omaha and one in Lincoln) had huge caseloads driven largely by the crack epidemic.

[vii] Judge Bataillon is an expert on all things Washington. From his pre-judge years as Chair of the Nebraska Democratic Party to his dedicated service on the judiciary’s Budget and Finance Advisory Committee (2001-2005) and the same dedicated service on the Judicial Conference Committee on the Budget (2009-present), Joe understood and understands the needs and inner workings of the federal judiciary writ large as few do.

[viii] For example, together with Chief Judges from two other districts (Hawaii and Eastern California, if I remember correctly), Joe and I met with the then-Chairman of the House Judiciary Committee (a Republican) to press our respective cases. We were told not worry. This meeting was disconcerting for a variety of reasons. Prime among the reasons for my disquiet was the fact that the Congressman sat next to a portrait of himself that was so large and so lifelike that I could not figure out whether I was speaking to the portrait or the real guy.  As it turned out, nothing I said to the portrait or the man made any difference.

[ix] As Calabresi admits, adding judges would cost a hell of a lot of money: “A CBO report from 2011 indicated that the cost of a new judgeship would be approximately $1,000,000 in startup costs and $770,000 annually in support expenses. Thus, to double the size of circuit courts would cost $179,000,000 the first year and $137,830,000 for each subsequent year.” The Memo at p. 14 (footnote omitted).

19 thoughts on “Kopf: Steven Calabresi Should Stop Pulling Imaginary Stuff From His Butt

  1. Anon

    I’ve always found it ironic that so often when a judge is appointed they are expected to fit into a neat little paradigm of either liberal or conservative. In my experience many federal judges thought to be liberals are surprisingly conservative, and many so-called conservatives are surprisingly liberal. I don’t think this phenomenon is limited to just SCOTUS appointments.

    Maybe its just that real life intervenes. We all have our own political and philosophical bents, but I think these can change in the application of law to the facts of the case. My experience in federal court as a lawyer has been positive. I have found the judges to be deeply concerned with the institution they serve (they should be), pretty smart (they should be that, too), often times very interesting people (it helps), and not very ideological.

    As a professor, I’m guessing that Stephen Calabresi (any relation to Circuit Judge Guido Calabresi?) must need to continue to publish. So I’m not surprised that his piece for the Social Science Network makes large claims. I mean, they gotta say something, right?

    Finally, not practicing in Nebraska, and hailing from the opposite end of the country, I was unaware that you were the Chief Judge for your district. Does this mean we need to address you as “Chief,” I mean, does the honorific still apply once you take leave of that office? Keeping good form is important for me as a lawyer, I don’t want to come off as too uncultured.

    1. Richard Kopf


      I think you have hit the nail on the head when you say, it is “ironic that so often when a judge is appointed they are expected to fit into a neat little paradigm of either liberal or conservative.” At least for those of us who practiced law and become federal judges, and despite the fact that we got the nod ’cause we had political connections, “honor” as written about by Scott generally prevails. That is, we try to do it straight up because the tradition of following the law (whatever that might mean) despite our personal beliefs is baked into the institution.

      As for being Chief Judge, you don’t keep the title when you are no longer Chief–thanks be to the Gods. Being a Chief Judge is the ultimate pain in the ass. Anything that would cause you to remember that pain would be a bad thing.

      I served five years into the seven-year term and happily stepped down early (1) because I knew that I sucked at the job; and (2) I wanted Judge Bataillon and now Chief Judge Smith Camp to be able to serve the entire seven year term without having to labor extra hard beyond the time they could take senior status (age (no less than 65) plus years of service must equal 80).

      Thanks for writing. All the best.


    1. Richard Kopf


      As usual, you are far too kind. Hope all is well.

      By the way, and as I have discussed with you before, the brain science of the “them” and “us” construct is fascinating and extremely important. The more we lawyers and judges can learn about such things the better off we will all be in our ongoing efforts to understand why we do what we do. Good for you for putting in the hard work that serious scholarship requires!

      All the best.


  2. Richard Kopf


    I take SJ seriously for fuck’s sake! I put in footnotes. What more proof do you need.

    All the best.


    1. Patrick Maupin

      I was looking for the footnote that explained where Calabresi should pull his imaginary stuff from, but I never found it.

      1. Richard Kopf


        I apologize for my omission. However, I have an excuse. I’m of German descent and “German folklore is uncommonly obsessed with anality.” Sheila Glaser, What Is It to Be German, New York Times (August 18, 2011).

        All the best.


        1. Patrick Maupin

          Thank you for this insight, Judge. I often do things half-assed, and now I understand that’s because I’m only half German. Does this mean that if I were full-blooded German, I’d be an ass all the time?

          Best regards,

  3. Skink

    I’m glad to see you haven’t surrendered your perfect tact, but I have a question: is it bad that I have an urge to toss everyone, everywhere, except most of those that visit the SJ Lounge, in the Everglades and watch them get mauled by gators and squeezed by pythons? I used to think that might be a bad thing, but I’m starting to have doubts.

    Your Pal, Skink

  4. Richard Kopf


    No, it is not a bad thing. That is particularly true if you continue to wear a bright flowered shower cap in public as you must and I should.


    PS Remember Skink, No Surrender.

  5. B. McLeod

    Of course, pulling real stuff from his butt would be even more socially awkward, and potentially painful.

  6. Pingback: Right-leaning judges slam push by Federalist Society co-founder to add judgeships for Trump to fill | Donald J. Trump No. 45

    1. Richard Kopf


      Thank you for the wonderful, touching and uplifting video. And, no, I don’t have a flute. I can’t read music anyway.

      All the best.


  7. Billy Bob

    Parkinson’s Law: Clutter accumulates to fill the space available for it. (Actually a corollary, but true nonetheless.) So extrapolating,… judgeships and case loads accumulate to fill–tah-dah–the s-p-a-c-e-s and p-e-r-s-o-n-n-e-l available [for them]. This is not *rocket science*, just the facts, ma’am.
    And let us not forget Murphy’s Law: Anything that can go wrong, will go wrong, and at the worst possible moment. Magna Carta at Runnymede lives!?! And the U.S. Constituition is a *Living Document*. (Or did we get it backwards?) You lawyers and judges are doomed to failure; we *feel* your pain. Oh, do we feel it, especially when on the receiving end!

  8. SPM

    From a slightly different angle:

    There is one Fundamental Law of American Politics: The other people will eventually be back in power. And soon. (OK. Maybe Alabama and Chicago are exceptions to the rule, but it certainly holds at the federal level.)

    It always amazes me that our federal politicians have not grasped this simple rule. Love Obama’s Executive Orders? Well now Trump can do the exact same thing. Use the “Nuclear Option” for a Supreme Court Nomination? You will probably soon be on the side wanting to filibuster a nominee. Pack the courts? Great… Until the Democrats are back in power and do the exact same thing.

    I think it is also worth pointing out Judge Goodwin of the Southern District of WV. He gained some attention recently by rejecting plea agreements in drug distribution cases and demanding jury trials. A significant part of his argument was that his court was not all that busy and certainly had the resources to significantly increase the number of criminal jury trials. Now southern West Virginia is not a metropolis, and his court has a full complement of judges, but he certainly doesn’t present a judiciary in crisis.

    To close with a more controversial point, if I am a conservative (and I am in many, but not all, things) I am not sure I would want a lot of federal judges around with a lot of time on their hands…

  9. Richard Kopf


    The wryest comment of recent memory: “I am not sure I would want a lot of federal judges around with a lot of time on their hands.”

    That sentiment expressed in a different way can be expressed this way: idleness is the root of all evil or something.

    Thanks for writing. All the best.


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