Another Fine Mess, Judge Kopf

When Senior District Court Judge Richard Kopf wrote the “dirty old man” post at his blog, Hercules and the umpire, I cringed. Not because I didn’t get his point, but because I knew, with absolute certainty, that most people wouldn’t, and would instead hang on the words of an old joke* in an effort to hang Judge Kopf. And so I leapt into the fray, not because I agreed with his choice of words, but because the castigation he would (and did) receive was misguided.

Here, I do so again.

Oh boy. And on twitter, Judge, where depth of thought and nuance always prevails? This would not have been the way I would have advised Judge Kopf (no, he didn’t ask for my advice) to say so, and certainly wouldn’t have been the platform to do so. But there it was.

Following Judge Alex Kozinski’s spectacular fall from grace, Chief Justice John Roberts created a working group to address the problem of sexual misconduct in the federal judiciary. It was the right thing to do, and he did it. But a small, very discrete, group was dissatisfied, not because the group was formed, but because they were left out of the group. This small cadre believed themselves entitled to be involved in the formation of policy for the federal judiciary.

No, they had never been confirmed by the Senate. No, they were of little experience in the law and possessed of no notable accomplishments. They had but two attributes, they were hired to be a federal law clerk and they felt themselves sufficiently woke to dictate to the federal judiciary how they should behave.

Now they’ve formed a group to promote their cause. This, alone, wouldn’t have been sufficiently noteworthy to mention as far as I am concerned, but Judge Kopf, who follows Howard Bashman’s How Appealing** more closely than I do, picked up on it. And his twit followed.

There was no question, none, that Judge Kopf’s twit would be immediately viewed as promoting and apologizing for sexual harassment by the federal judiciary. And indeed, that’s exactly what happened.

Are you saying that although they have endured sexual harassment & sexism at work, they haven’t worked there long enough to demand that sexism and harassment in the workplace stop?

Of course, that wasn’t at all what he was saying, and as is twitter’s wont, the assumption that these are women who have “endured sexual harassment & sexism at work” is exactly why Judge Kopf raised the issue.

This group of undistinguished lawyers who are demanding the right to have a significant say in federal judicial policy aren’t claiming to have “endured sexual harassment & sexism at work.” Not one of them, as far as I’m aware, has as yet come forward to allege they were the victim of sexual impropriety. But they have established themselves as sexual vigilantes, tone and language policing in the name of the most woke and sensitive feminist righteousness.

Consider the “solutions” to the as-yet undefined cries about sexual “harassment.”

A mechanism for anonymous complaints about judges

  • A duty for judges to snitch on other judges who might utter words the law clerks deem “sexist”***
  • The authority of one judge’s clerks to anonymously complain about another judge’s work choice
  • Protection of law clerks from “retaliation” no matter whether their complaints are real and legitimate or infantile crap
  • Assurance of punishment of judges if a law clerk’s feelings are hurt by the use of words she feels are offensive

The obvious defense of these demands is Judge Kozinski’s conduct. The similarly obvious problem is that this will create a campus Title IX climate within the federal courthouse, where clerks a year or two out of law school are capable of conducting the Spanish Inquisition against federal judges to shame them for such outrages as using the word “hysterical.”

There is nothing in Judge Kopf’s “message” questioning the Chief Justice’s working group creating a mechanism to address sexual misconduct in the federal judiciary. What he challenges is the demand of these law clerks to take it from the allegations of Judge Kozinski to the anonymous shaming by the feminist tone and word police with the hours of legal experience.

And the reactions to Judge Kopf’s twit prove his point:

His day and time have passed him by. This is a new era when sexual harassment is no longer accepted anywhere no matter how long someone has been on the job! And yes, those who have been harassed have a stake in the policies set.

There was no suggestion that sexual harassment would, or should, be tolerated, even if no one has a clue what constitutes sexual harassment anymore. But the baby SJWs desperately want to recreate the Spanish Inquisition for the federal judiciary so they can impose their righteousness on the judges.

Because this bunch of clerks have 1 to 2 years experience with the federal judiciary. That know and understand very little.

And yet, these are the scolds demanding the authority to tell federal judges how they should be allowed to speak? Then again, knowledge and experience are no longer the virtues they once were. Now, they’re more often viewed as weapons to silence the brilliance of the woke. And the woke won’t be silenced, at least not on twitter, no matter how little they grasp about what’s being said.

Did Judge Kopf expect anything better would come from his twit? His point may be valid, but far too nuanced and dangerous in this atmosphere of infantile righteousness and roaming bands of simplistic tone vigilantes to say aloud. This wasn’t a battle that needed to be fought, and even if it was, twitter wasn’t the battleground for it. And yet, here we go again.

You’re killing me, Judge.

*Every old joke is now officially offensive. Ladies lingerie, anyone?

**On a humorous note, Judge Kopf was taken to task for prefacing his twit with “How Appealing,” which some genius took to imply “women are meant to be seen and not heard” rather than the name of Howard Bashman’s blog.

***For the hard-of-thinking, the significance of this idea is that the judge who hears another judge utter words that some law clerk within earshot finds “sexist,” but the listening judge, who’s inadequately woke to take umbrage, will be subject to anonymous complaint and discipline for not ratting out the speaking judge.

43 comments on “Another Fine Mess, Judge Kopf

  1. Richard Kopf

    SHG,

    “This wasn’t a battle that needed to be fought, and even if it was, twitter wasn’t the battleground for it. And yet, here we go again.” Probably so on both counts.

    All the best.

    RGK

    1. SHG Post author

      After trying to come up with either a pithy or illuminating reply and failing miserably, I’ve decided to punt.

    2. REvers

      Well, Judge, it looks like you’re dealing with people who are still young enough to know absolutely everything there is to know. That’s not a recipe for rational discussion.

    3. Appellate Squawk

      What’s wrong with the Spanish Inquisition? This is a new era where witchcraft and heresy are no longer tolerated. Well, not heresy, anyway.
      All the best – A. Squawk

  2. B. McLeod

    Surprising they aren’t demanding impeachment yet, on the grounds that nonconforming thoughts are not “good behavior.”

    1. SHG Post author

      How do you know the articles of impeachment aren’t being drawn as we type? Remember, the believe with every ounce of their being that they are the angels of righteousness and so they’re not merely entitled to impose their brand of social justice, but will ultimately create a judicial Nirvana by making all federal judges bend to their will. I mean, good behavior.

  3. Sad Suzi

    What doesn’t quite gel with me is why a federal judge felt it necessary to take these law clerks to task publicly. They’re kids, and like most kids these days, they believe they’re right and are entitled to have the grown ups take them seriously. So you pat them on the head, tell them they’re adorable and do whatever needs to be done.

    But why attack them? As someone on twitter said, it felt like Judge Kopf was “punching down,” and that struck me as unbecoming.

    1. SHG Post author

      Not that I can speak for Judge Kopf, but there is a concern given the current mob atmosphere that there will be some effort at appeasing this mob that may include acquiescing to some of their demands. So while it may appear punching down now, it won’t if they end up exerting any influence that results in shifting the attention of the judiciary from doing their job to worrying that they might use a word that offends some baby law clerk and become the target of anonymous grievances.

      1. Richard Kopf

        SHG,

        Scott, in short form, you have captured my concerns exactly.

        Susie, as for punching down, I hate those that do so. If I punched down, that was wrong. But I truly don’t think I was punching down.

        These bright female lawyers have sought to engage critically with the report of the Chief Justice’s working group as was totally and completely their right. They have now come together to create a website to promulgate their views including publishing their “Memorandum” to the Judicial Conference.

        To me, these activities meant that they were fair game. The Koz fallout is a very important matter. I disagree with many of the views expressed in the Memorandum and I do not wish to see them implemented. Hence, my tweet.

        I have now offered to provide this group of young lawyers with a detailed critique of their Memorandum if they promise to publish it on their site. If they agree, I will write a respectful exegesis.

        All the best.

        RGK

          1. Scott Jacobs

            A pity the people bitching about his honor’s words make it a point of pride that they don’t read that other possible source.

            1. SHG Post author

              They don’t want to know, so they won’t. That much was apparent from the way they took his twit.

    2. B. McLeod

      But they’re dangerous kids. The judicial system version of “Children of the Corn.”

    3. Skink

      “What doesn’t quite gel with me is why a federal judge felt it necessary to take these law clerks to task publicly.”

      If not him, who should? Who will? Who does? I think you meant to say, “thanks, judge.”

      “They’re kids, and like most kids these days, they believe they’re right and are entitled to have the grown ups take them seriously.”

      Graduating law school removes them from kiddom permanently.

  4. B. McLeod

    In chambers where the clerks are sad,
    We must away with all things bad,
    Offensive words that sting their ears,
    ‘Til they can’t read through flowing tears,
    Male judges speaking without permission,
    Now all expect the Inquisition.

  5. Mario Machado

    Under this new mechanism, innocent conduct would still be frowned upon. If a Judge pulled into the valet at a conference, blasting & singing along to the purportedly prurient “Hot for Teacher,” and if a fellow Judge or baby clerk heard it, that’s grounds for snitching.

    We’re going wrong:

    Please open your eyes.
    Try to realize.
    I found out today we’re going wrong,
    We’re going wrong.

    1. SHG Post author

      And there will be certain clerks seeking out the evil judges who harass them with their violent singing.

  6. Ryan

    In developing a policy about how to address sexual harassment, it is quite reasonable to give the people in the office who are most likely to be victims of that harassment a seat at the table. After all, just reread this post. Your disdain for junior lawyers – particularly women – is palpable. Could someone like yourself be trusted to develop a policy that is fair to junior lawyers? Of course not. The women who formed this group see and hear self-important doddering male lawyers like yourself speak like this all the time. So of course they want to be heard.

    1. SHG Post author

      It’s curious when someone takes the inductive view of a problem and tries to rationalize their way past its flagrant flaws. Those “self-important doddering male (and female, don’t be so sexist) lawyers” are called judges. They are nominated by presidents, confirmed by the Senate, to fulfill a constitutional duty under Article III. You see, the judicial branch of government doesn’t exist to “junior lawyers,” “particularly women,” something to put on their resume and a place to go to work for a year. I know, it’s unfathomable that this isn’t all about baby lawyers, the ones with no experience whatsoever and even less competence in any aspect of the law, despite the typical unwarranted self-esteem of the young.

      So as much as it’s obvious why they would want a seat at the table, because like you, they too believe it’s all about them and their feelings, and the right thing to do is let the new kids, fresh out of law school, reinvent the federal judiciary to suit their needs above all else. Judge Kopf makes no suggestion that either sexual assault or harassment is acceptable, a detail that seems to elude those arguing against him who are either too intellectually dishonest or challenged to grasp the nuance involved here. But the policy-making to address it must primarily focus on the mission of the judiciary rather than the foremost concern of the children, themselves.

      And please note that this isn’t about “disdain” for “junior (that’s wonderfully euphemistic) lawyers,” but the reality that kids a year out of law school may not yet be as brilliant as they are certain they are. Maybe some of the “doddering” old lawyers, who’ve managed to be “junior lawyers” once and rack up some degree of worthwhile accomplishments despite their dodderingness, have some clue what they’re doing, even if insipid children like you find it impossible to believe. Experience doesn’t make people stupid. Lack of experience doesn’t make people brilliant. And trying to bullshit your way past that doesn’t change reality. It merely reveals the vacuousness of your argument.

      1. Ryan

        I find it curious that you honestly seem to believe that decades of experience in the judiciary necessarily qualify someone to effectively make policy on sexual harassment. It really doesn’t, no more so than decades of judiciary experience qualifies someone to play second base for the New York Yankees.

        And speaking of failing to note fairly basic distinctions: your reply very lazily blurs the line between “a seat at the table” and “new kids, fresh out of law school, reinvent[ing] the federal judiciary to suit their needs above all else.” You can pretend all you want that Article III judges will adopt rules that actually will protect their employees, but the reality is that to ensure that this will happen, the employees absolutely should have a seat at the table when the rules are adopted.

        Anyway, that’ s why this is happening, and it’s why your opinion is an exceedingly unpopular one outside the comments section of your blog!

        Cheers.

        1. SHG Post author

          Exceedingly unpopular? Some day, you’ll grow up and realize that the legal profession doesn’t consist of a handful of children in a tiny bubble of self-congratulatory fools and scolds on twitter.

          Edit: As was just pointed out to me, you’ve conflated Judge Kopf’s opinion and mine. I’m substantively agnostic, as I lack the experience to know what policy is right or wrong here. I realize that doesn’t make sense to SJWs, who would never defend someone’s speech with whom they didn’t absolutely agree, but then I’m not an SJW, so different rules apply in my world.

          1. Miles

            SHG,

            The more I think about this, the more concerned I am that these baby lawyers not only can’t reason their way out of a paper bag, but are in a cocoon on social media where they are protected from learning that there is a real world out there that not only doesn’t agree with their SJW nonsense, but reinforces their most childish ideas.

            I presume he thinks the dozen SJWs at Appellate Twitter constitute his “legal world,” as the rest of the profession think he (and they) are dolts. That they can live in this echo chamber means they will never grow up, never realize they’re just dumb kids and never realize mature into real lawyers. They’re lost in a bubble of their own making.

            1. SHG Post author

              There are two separate problems baked in here. The first is that they don’t value experience, as if doing this for decades means we just got stupider along the way (or were always stupid, whereas they are brilliant). They sincerely believe they know better. Under ordinary circumstances, someone would either smack this idoicy out of their heads, or they will grow up on their own until they realize why the same “brilliance” plus experience is better than their “brilliance” without experience.

              But the second is they are no longer confronted by criticism, and instead hide in the tiny bubble, so clueless that they think it’s the big world rather than a dozen other kids who share their entitlement and naivete. But since they receive the validation children so desperately need, that’s where they remain, believing that the entire legal world exists within their tiny bubble.

              Ironically, if Judge Kopf’s and my opinions were so “unpopular,” then why would they care what we thought? Why would they bother to come here to argue about it, albeit poorly? Somewhere, deep inside, they apparently realize they’re a tiny fringe group of lawyers and that the vast majority of lawyers doesn’t share their social justice zeal. Then again, the spectacular failure of the ABA might also reinforce that reality.

        2. Miles

          You can pretend all you want that Article III judges will adopt rules that actually will protect their employees, but the reality is that to ensure that this will happen, the employees absolutely should have a seat at the table when the rules are adopted.

          This is a stunningly bad argument. You simply assume the first part and beg the second. Assuming you’re a lawyer, you’re exceptionally incompetent at making your case, and blind to what constitutes cogent argument from facile assumption and baseless conclusion.

        3. Skink

          I know you won’t get why, but you went seriously astray at, “I find it curious that you honestly seem to believe. . . .”

          “Anyway, that’ s why this is happening, and it’s why your opinion is an exceedingly unpopular one outside the comments section of your blog!”

          You need to get around more, and I mean by talking to actual humans. That’s why this statement is exceedingly wrong.

    2. Ron

      There’s another gap in the underlying discussion that has yet to be explored. Is there some epidemic of sexual harassment (whatever that word is supposed to mean at this hour) by federal judges? Not one of the law clerks have come forward with a name, an example, of an instance of impropriety other than Koz. One judge? Is that it? How are they “most likely to be victims” when there is only one bad judge and he’s no longer there?

      This is all bullshit, an invented problem that doesn’t exist except in the rhetoric of people like you and the heroes of political correctness. This has nothing to do with sexual harassment and everything to do with a bunch of women trying desperately to impose their feminist flavor of political correctness on the judiciary. So cut the crap. You’re not fooling anyone.

  7. Truck

    Judge Kopf should know an ad hominem—or actually this was an ad feminem—when he sees one.

    By the way, these are not “kids”—they are to my knowledge all practicing lawyers or law faculty.

    More importantly, the idea that someone needs experience in the judiciary or more than X years of time on earth to make valid criticisms or suggestions about judicial (mis)conduct is just wrong. We already allow voters (in some states) and voters+presidents+senators at the federal level to decide who can even be a judge, so there’s no reason why the conversation can’t be joined by anyone. The Judge and SHG both know that it’s the ideas’ validity (or lack thereof) that counts. Not the identity of the speaker.

    We can and should expect judges to be above reproach in their personal conduct and workplace conduct. That is not too much to ask in return for a lifetime appointment. It’s time for the judiciary self(non-)policing to end, because the bad actors (of which there are likely few but more than there should be) promote contempt and disrespect for the rule of law.

    What’s so hard to understand about that??!

    1. SHG Post author

      As you show no serious grasp of what either Judge Kopf or I have said, your shallow effort to mischaracterize it isn’t worth discussing. As I’ve already had my say in the post, here’s your spin for what it’s worth.

      1. David

        Trunk’s comment is one strawman after another. This crap might play among SJWs, but do they not realize that it just makes them look foolish to lawyers?

    2. Miles

      That they are kids reflects their lack of experience and facial narcissistic self interest. There’s nothing narcissistic about it. The kids are “law clerks and former recent clerks,” who may have a few years of practice experience since. You might believe that to be significant, but that suggests you, “Truck,” are a baby lawyer like they are. To those of us with decades in the law, they are still in diapers.

      But then, kids believe they’re brilliant. And experienced people (like judges) are all incompetent morons.

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