Who spends their time carping about a book review, particularly about a book that the complainant has not and will not read? That would be me.
It seems that Joan Biskupic has written a book about Chief Justice John Roberts, entitled The Chief—The Life and Turbulent Times of Chief Justice John Roberts. Adam Cohen, a former editorial page editor of the New York Times, with legal credentials to match[i] his writing chops, published a review of the book. It is entitled The ‘Enigma’ Who Is the Chief Justice of the United States.
Allow me to digress. Speaking to Planned Parenthood in July,2007, President Obama famously brought forth from the heavens the word “empathy.” He preached the criticality of that word when it comes to judging.
He said:
[W]hat you’ve got to look at is, what is in the justice’s heart? What’s their broader vision of what America should be? Justice Roberts said he saw himself just as an umpire, but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart–the empathy–to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old–and that’s the criteria by which I’ll be selecting my judges. Alright?
Those words could have been written by a former speech writer for New York City Mayor Bill de Blasio, like Cohen. If he had written those words, Mr. Cohen would surely be harkening back to his days at the Southern Poverty Law Center and the American Civil Liberties Union. With this digression elucidated, we now return to our regularly scheduled programming.
It is hard to tell whether Biskupic will like Cohen’s book review. He describes her book as “assiduously reported and briskly written.” But then he guts her like a fish.
Biskupic all but throws up her hands toward the end of her narrative, calling Roberts an “enigma,” but she suggests that he is pulled by two often-conflicting instincts. One is ideological: a desire to move the court rightward on race, religion and other issues. The other is institutional: an interest in the court being respected and seen as nonpolitical.
So you see, Biskupic doesn’t get it. Cohen knows the real answer. “That dichotomy is true as far as it goes, but there is another defining theme running through Roberts’ “jurisprudence” that eluded the poor woman. Roberts has “a deep-seated bias against the weak.” Simple enough. Roberts hates the less fortunate and that is what animates his jurisprudence.
What I found amusing is that someone at the Times illustrated Cohen’s ugly piece with a photo. It is a picture of Chief Justice Roberts and his son, Jack, on October 3, 2005, the day the Chief took his judicial oath.
In the photo we can see Roberts’ “deep seated bias” against the weak. By the way, Jack and his sister were adopted.[ii]
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] Cohen obtained his undergraduate degree from Harvard College and later received his law degree from Harvard Law School, where he was the president of the Harvard Law Review.
[ii] Ironically, the Times got itself into hot water when it inquired into the adoptions during the confirmation process. See here (adoption records and footnote 9).
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Still waiting to hear what his credentials are. *winky face*
Rich–I find commonality between your post and Scott’s. Since Cohen can’t do the easy work of confirming that he is right before announcing that he is right, is it possible he attended Harvard on the Stuyvesant Plan?
Skink,
Cohen is a brilliant guy and a great writer. But as a judge, I am sick to death with those who promote “empathy” as a gauge to judge a judge’s performance or her character.
Pathos–emotion–is an absurd criterion when it comes to evaluating judges. The judiciary is founded upon the explicit rejection of making decisions–indeed sometimes life and death decisions–by luxuriating in one’s own tears.
This is very personal to me. For all anyone knows, I might have privately wept when consigning a man to death as I recently did in soundly rejecting a last minute attempt to stop an execution using a first-ever lethal injection cocktail. No one will ever know my emotional state when I signed the fateful order and that is because it makes no damn difference when it comes to applying the law without fear or favor.
All the best.
Rich
Your honour,
I fear in this case, those of us who understand “reason” to be a product of intellect and not emotion ceded the ground to devious infiltrators years ago. We didn’t realize what they were doing, and now we are faced with a society that considers “feeling” to be equal to (or often greater than) actually reasoning. False but accurate, fake news, call it what you will. In the end, we will have crumbling infrastructure watched over by people who are so confident, yet so very wrong. And to think, being called “discriminating” used to be a compliment.
Cheers,
Morgan
“A deep-seated bias against the weak.” That goes double for some CDLs. The bias tends to show during cross. All reason, no emotion. Where’s the empathy?
So was it Chief Justice Roberts’ “deep seated bias” against the weak which led him to reject President Trump’s asylum ban? Because clearly a group of desperately poor refugees fleeing from war-like levels of violence are much stronger than the President of the United States.
When I frame my argument, I include as much as I can to humanize my client and provide reasons for the judge to be empathetic toward him. If it’s all I’ve got, then what else can I do? If I’ve got other arguments, including strong legal argument, then what I hope to achieve isn’t an appeal to emotion as much as a blunting of the natural bias against the “criminal.” After all, my client walks into court accused, which tends not to make him particularly endearing to the court.
That said, there are areas of discretion where it serves a deft well to be a flawed human rather than just a drug dealer or bank robber. To the extent the law permits no exercise of discretion, no empathy, I have nothing to lose. To the extent it does, and I’m able to reduce the judge’s antagonism against the bad dude, or if I do my job really well, perhaps get the court to mist up a bit, I’ve done my job.
SHG,
I agree entirely with you. As you know better than most there are three forms of persuasion that the Greeks taught us long ago:
Ethos is an appeal to ethics, and it is a means of convincing someone of the character or credibility of the persuader. Pathos is an appeal to emotion, and is a way of convincing an audience of an argument by creating an emotional response. Logos is an appeal to logic, and is a way of persuading an audience by reason.
As an advocate you are obligated to use the form or forms of persuasion that best fits the interests of your client. I hope nothing in my post suggests that CDLs, or trial lawyers more generally, should refrain from the emotional appeal when it is called for by the nature of the case. If anyone takes my post to suggest otherwise, then I have not been clear and apologize for my error.
All the best.
RGK
You suggested nothing of the sort, so I apologize if my comment suggested otherwise.
“… Emotional appeal when it is called for by the nature of the case.” That came out of Left Field, I’m afraid, Your Honor. Is that taught in law school as well? Or perhaps “extracurricular”? Possibly “on the job training”?!?
Your profrssion is maddening to those of us on the outside. You tell him, Barleycorn. The Greek tripartite vision of the world, which you so deftly conjure up in times of need, is certainly appealing to simple minds. But do not forget that all of Gaul is also divided into three parts. And none of the French are the worse for wear–whatever,…
There was this governor in CONnecticut a few decades ago who, when asked by the young lady reporter, if he thought such and such an action or activity might be unethical? The governor replied, of course not!
Why not.asked the young lady? “Because I am an ethical person,” he replied without missing a beat. The governor was Independent Republican Lowell P. Weicker from Greenwich.
It’s a good thing he never became a judge. Fast forward: Now John “Row Yer Boat” Rowland becomes governor. A few “ethical” lapses forces him to resign and lands him in federal prison for a year.
That should teach him! Don’t get me wrong. Although we didn’t care much for John, we do not think a year in prison did anybody any good. But it did make for busy work for plenty of “correctional” people. Did it deter anybody from making the same mistakes? Probably not!
Finally, subsequent to his release, we ran into John and the blonde wife, quite accidentally. He did not want to know us. I could be a hit man, forgodsake. Our current president,… Oh nevermind. Hope I was not “off-topic” or irrelevant.
Oh Bill. If you weren’t off topic or irrelevant, you wouldn’t be you.
(Completely off-topic, but I really would like to know.)
Judge Kopf, are you and yours safe and dry? From what I hear, the flooding is so bad that soon the Nebraska Admirals may be conscripted into duty.
Jim,
Thanks for asking. Lincoln remains free of flooding but our water supply, derived from well fields on the Platte river, has been damaged. We have been asked (mandated) to cut consumption in half.
All the best.
RGK
PS I hope certain Nebraska Admirals did not read the fine print on their commissions!
Spent the morning polishing my epaulets. I will be ready when the governor calls.
I have probably mentioned this before, but I visited the Harvard campus once. I couldn’t get in to see the library their law students use, which was not accessible to the public, but I did visit their main library, which had very ornate restrooms, with marble and brass everywhere. Finer than a lot of folks’ homes, they were. I can only imagine the restrooms for the law students must be even finer. Anyway, I couldn’t afford to go there, but, somehow, over the years, I have managed to get by with just the “standard” sort of toilet facilities. Of course, I have never written anything for the New York Times (probably because they know I have never had the opportunity to take a truly quality crap since that one visit to Harvard).
If anyone believes judges do not have empathy or compassion for the parties who appear before them, then they misunderstand what it means to be human.
And, for a judge to claim he or she decides entirely without empathy when making a tough decision, such judge would do well to consider judges have the most intractable bias of all: the bias of believing they are without bias.
It’s a shame you have so fundamentally failed to grasp this post.
Not to put too much weight on it, but Irish law forbids adoption by non-resident foreigners, yet Roberts’ adopted children were born in Ireland. Adopting Irish-born children via a South American country definitely raises questions of provenance, particularly given the recent history of Irish religious figures snatching, and selling, children from single, unmarried mothers against their will. I cannot condemn too strongly the NYT at least attempting to follow that rabbit hole.
Feeling the need to Gertrude, here, I am certain that Roberts’ is a fine, impartial judge with empathy to spare.
Rendall,
I was aware of the rumors and such that you cite when I wrote the post. I thought them irrelevant to my point and irrelvant more generally. Apparently, you think I was wrong to omit a reference to the children’s “provenance.”
Do me a favor, please. Explain what relevance the “provenance” of the Chief Justice’s children has to my post. Please also tell me whether you believe the Chief and his wife did something illegal (or immoral) by adopting these children in the manner you think they did.
All the best.
RGK
Hi Judge.
I haven’t had the opportunity to tell you yet, but I truly appreciate your writing and your perspective. I feel lucky, that you write, and I can read it.
Of the two possibilities behind the review, that of “villainous Supreme Court Chief who hates the weak” or “ideologically driven NYT book review” I’m going with the latter as more likely. So, I do think your main point about the review being skewed came across clearly, to me, anyway.
No, I don’t think you were wrong to omit the rumor about the adoption. It was all peripheral to your main point. Including the children at all was almost a throwaway at the end of your article. I promise my comment wasn’t intended as a gotcha, point scoring, or whatever. I was responding less to your main point than to your 2nd footnote, about the NYT getting into hot water.
I am biased to believe any story of the NYT unethically digging up dirt on ideological opponents like Roberts. My discovery that there is a legitimate bit of controversy about the adoption came as a surprise, since I had known nothing about it until I followed your link. And, I was even more surprised to discover that the NYT may have, in my opinion, been right to dig on this. It was in that spirit that I wrote my comment, as a kind of surprised “Oh! Hey now, they may have been correct in this situation! How about that. Even a stopped clock is right twice a day!”
As to the judge and his adoption: I do not know if there was impropriety, and I sincerely hope not. If there was, that would bother me. Not because I have an ax to grind, but because that would mean something awful. And, if there was impropriety, I would rather know than not know, even though it would be awful.
All the best, back at you, sir
Rendall
Rendall,
Thanks for the very nice and very complete reply. I truly appreciate it. I take your “back at you, sir” as a friendly opportunity to add a few things.
This is what the Times said it did and found regarding the investigation into the adoption of the children by the paper:
“‘Our reporters made initial inquiries about the adoptions, as they did about many other aspects of his background. They did so with great care, understanding the sensitivity of the issue,’ said Times spokesman Toby Usnik. ‘We have not pursued the issue after the initial inquiries, which detected nothing irregular about the adoptions.”
Todd J. Gillman, The Dallas Morning News, Sen. Hutchison: Roberts line crossed (Fri, Aug. 05, 2005) [“Columbia, SC Breaking News, Sports, Weather & More – TheState.com & The State”. thestate.com. Archived from the original on 2005-08-08.]
I have two things that particularly bother me about the Times investigation.
First, someone at the Times either leaked the investigation or the Times did not bother to be discreet. In short, the paper did not, as it claimed, take “great care, understanding the sensitivity of the issue.”
Second, and even giving credence to your point about “Irish child” stealing writ large, why would anyone think that Roberts and his wife would be involved in such nefarious activity. By that time, Roberts had been subjected to two FBI full field background checks–once as a Circuit judge and once as a nominee to the Supreme Court.*
Additionally, as a nominee to the Court of Appeals and then the Supreme Court, the vetting Roberts underwent from DOJ lawyers and the White House would have been extreme. (Remember that from 1981 to 1982, Roberts served in the Reagan administration as a special assistant to U.S. Attorney General William French Smith. From 1982 to 1986, Roberts served as associate counsel to the president under White House counsel Fred Fielding where he no doubt helped pick a lot of judges).
In short, I have sincere doubts about the motivation of the Times regarding the investigation into the adoption of the Roberts’ children. Under the foregoing circumstances, there was no good reason for the Times to question the legality of the adoptions.
Again, thanks for your reply. All the best.
RGK
* By the way, if you want to know what it is like to undergo two FBI full field investigations, you might want to read Richard G. Kopf, The question, Hercules and the umpire (November 24, 2013). Notice particularly the part about one of my children.