Kopf: A Short Take On A Coincidence

Albert Einstein (just call him “Al”[i]) is reputed to have said a lot of catchy things. One of them is this:

Keeping in mind what Al said, I write about Senator Chuck Grassley and Judge Alex Kozinski. Because it tickles me, I refer to them as Chuck and Alex.

On December 6, 2017 (keep this date in mind), Chuck introduced Senate bill S. 2195 that would compel the Chief Justice to appoint an Inspector General for the federal judiciary after consultation with the leaders in the House and Senate. See here. Chuck wants an unrepentant Inspector Javert to “conduct investigations of alleged misconduct in the judicial branch . . . .” This is so despite that fact that Chuck’s branch does not have an Inspector General.

In part, Chuck wrote:

[F]ormer Judge Samuel B. Kent, although charged with multiple counts of sexual assault, pled guilty to obstruction of justice. It took a criminal investigation by the Department of Justice to uncover his false statements made to his colleagues who were assembled to investigated him as well as substantiate the horrendous claims made against him.[ii]

Chuck’s proposal is both horrible as a policy and constitutional matter, and it is manifestly unnecessary as well. If you want the specifics of why I so say, read Anthony J. Scirica, Madison Lecture, Judicial Governance and Judicial Independence, 90 N.Y.U. L. Rev. 779 (June 2015). Scirica, who sits on the Third Circuit, is one of the most respected judges in the federal judiciary. He currently serves as chair of the Committee on Judicial Conduct and Disability.[iii]

On December 8, 2017, news broke (at the Washington Post) that Alex was accused of unnecessarily[iv] showing porn to a female law clerk and other unseemly behaviors of a sexual nature with other female clerks or externs. For Scott’s take on this recent matter, as well as Alex’s troubles in the past regarding racy material, read Judge Alex Kozinski and The Mad Cow.[v]

The coincidence between Chuck’s proposed legislation and the accusations against Alex, only two days apart, makes me think that Al’s anonymous God has a sick sense of humor. I fear that the #MeToo folks (who have already latched on to the accusations against Alex) and Senators like Ms. Gillibrand will reflexively push Chuck’s legislation. In addition to being ironic, that would be very bad for the federal judiciary and the country.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i]

[ii] Chuck’s description was incomplete. For a detailed history including the work of a judicial investigating committee into Kent’s conduct that ultimately lead to his plea of guilty for lying to that committee and the Fifth Circuit’s handling of this matter, read the Statement of Arthur D. Hellman to the House Committee on the Judiciary, pp. 6-10 (June 3, 2009).

[iii] The orders of the Committee are fascinating reading. You can access them here.

[iv] If you deal with child porn cases, sometimes you have to view the images yourself and have a clerk or extern help you. See United States v. Campbell, 738 F.Supp.2d 960 (D. Neb. 2010) (varying downward to probation and relying upon an analysis prepared by an extern that “chartered” the relatively tame nature of what was technically child porn).

[v] Because I lack sufficient information, I remain agnostic about the claims predicated on sexual misconduct that have been asserted against Alex. That said, the statement of the primary accuser is heart wrenching for reasons other than her specific claims. It is not much of a secret that term (as opposed to career) law clerks, who normally serve only a year or two, are worked nearly to death by a few federal judges and ridiculed if those kids fail to live up to unreasonable expectations. For those few federal judges, their chambers become modern day sweat shops. But we sure as hell don’t need an Inspector General to address work/life balance.

24 comments on “Kopf: A Short Take On A Coincidence

  1. B. McLeod

    I feel slighted. We should have an Inspector General for every American citizen if judges are going to have them.

  2. Skink

    Some reverse extrapolation seems in order. A war was fought over federalism.* The anti-federalists lost. The federal government went on a grabbing spree for a century, methodically covering the field on all sorts of playgrounds to which the states laid claim. It really fed frenziedly over the last 40 years-or-so, and it’s running out of acreage to conquer. So, it eats its own, the carefully-drawn lines created by the Articles blur. The federal branches make rules for how the playgrounds belonging to each other are operated. Administrations make rules affecting Congress and the courts; Congress wants to tell everyone how to do their thing. If people don’t pay attention, they might get away with it, and they aren’t paying attention.

    So, is it a surprise a senator proposes an IG of manners for the courts? Sure there’s a constitutional problem, but so what?

    *For the sake of sanity, I 100% refuse to get into a discussion of this.

    1. Richard Kopf

      Skink,

      “So, is it a surprise a senator proposes an IG of manners for the courts? Sure there’s a constitutional problem, but so what?” Spoken like the nihilist that we both sometimes play.

      All the best.

      Rich

  3. Lex

    “law clerks, who normally serve only a year or two, are worked nearly to death by a few federal judges”

    *Ahem* From AK’s “additional comments” on 9th Cir. hiring page once upon a time:

    “I don’t really mean top 10%. I mean top 10, as in people.”
    “This isn’t really a one-year clerkship; it’s more like a life sentence, but only the first year is hard labor. Or maybe a two-year clerkship, completed in 12 months. I used to describe this job as ‘[slaving] like a dog for an unreasonably demanding boss who will tear your work to shreds’ – and I haven’t mellowed with age. But you’re a hot-shot Supreme Court wannabe. You can take it….Geeks welcome.”

    ” I remain agnostic about the claims predicated on sexual misconduct that have been asserted against Alex.”

    Similarly, there’s a difference between “it wouldn’t surprise me, if true” and something being an “open secret.”

    Incidentally, I know of one federal judge who hung prints of well-know floral metaphors, and has assorted art books (including Balthus: Cats and Girls), in her chambers. Another judge and her female clerks will gab about Harlequin romances over lunch. And another who invites his clerks to his daughter’s (Jaroslav Wieczorkiewicz-like) art exhibitions. I’m honestly nonplussed as to what point — between, say, Light of Iris, and photos of naked women painted like cows — something becomes clearly too NSFW to share. Or do we know it when we see it? For that matter, was it inappropriate for a judge A to suggest his clerk might wear something less revealing in court? When Judge B shared (public) pictures of his clerk at her first figure comp? Or, for judge “D” to have her clerks walk her dogs?

  4. Richard Kopf

    Lex,

    For the record, I need to make something clear. I have nothing vaguely resembling art in my chambers except for an IV pole with IV bag attached to an empty gin bottle that my clerks gave me after a stint in the hospital. Further your affiant sayeth naught.

    All the best.

    RGK

  5. Morgan O.

    There’s a regular commenter who goes by Pedantic Grammar Police, and this post has been up for almost 12 hours now? (I am not sure, not in your time zone and bad at math) Clearly, the standards for pedantry and policing in the field of grammar need work! I demand a refund!

      1. Morgan O.

        A poor jest on my part, good host. It’s the quotation picture at the top. Should read “Coincidence is God’s Way”. Apostrophe is missing. Hence grammatical and pedantic.

        1. Richard Kopf

          Morgan O,

          OK, I saw it too. Are you saying Al was a moron? Obviously, not. He was German.

          All the best.

          RGK

  6. j a higginbotham

    I see the ‘reputed’ but what’s the point of starting a column with an apocryphal quote? Is Al just a hook to grab the reader? If it is a worthwhile statement, does it matter who said it? [I am not a writer.]

    A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. Tweet, D. Trump, 12/3/17

    Et tu: this page was just refreshed and no similar comment appears.

  7. Richard Kopf

    JAH,

    You write: “I am not a writer.” If I read your comment correctly, neither am I.

    All the best.

    RGK

      1. Richard Kopf

        SHG,

        Indeed, JAH may have a point.

        Elliptical references, particularly when used in an introductory paragraph, may confuse the reader. There are two answers to such a critique.

        First, the reader may be a dolt. Second, and more likely in my case, the writer may have a dissociative personality disorder and the beginning paragraph may have been written when the writer was floridly so.

        I am currently unable to pick which alternative applies in this case. (On reflection, I suppose both could be true.)

        All the best.

        RGK

        1. SHG

          Allow me to offer a third possibility: elliptical references to interesting people beguile the reader to seek the connections they would otherwise miss. Things written for mass audiences generally demand a lede that captures the heart and eyeballs quickly before the x-out and find a listicle more suited to their intellectual capacities and attention span.

          The elliptical reference vets the readers so those preferring cute cat pix are put off by the reference to Al, while those beguiled by it feel compelled to find out why. You are a master of the rhetorical capture of thinkers.

  8. Billy Bob

    Is there anything Einstein said that was not *intelligent*? Just sayin’. Would Einstein have been so brilliant if his name was not Einstein? The quotation, yes, is most probobaly apocryphal. It’s a little too cute for a real Einstein.

Comments are closed.