Before you read that which I write next, listen to Judy Collins as she sings “Turn, Turn, Turn! / To Everything There Is A Season.” If nothing else, you will enjoy her magnificent voice.
As I watched Robert Mueller testify before Congress regarding his findings on the Trump investigation, the voice of Collins haunted me. Accurate or not, my impression was that Mueller was far past his “sell by” date. His fumbling, at times incoherent or inaudible responses, coupled with his apparent lack of knowledge of the written report to which he signed his name, reminded me of that which I fear most.
Growing old is, of course, a fact of life. But federal judges are incentivized to hang around by taking senior status.[i] I have had colleagues, dear friends, march on in senior status toward their ninth decade while still sitting on the bench and trying cases. I will be unable to follow in their footsteps.
Let me tell you a secret that I have confessed only to my wife. Within the last year, I was confronted with a jury trial of great complexity. In the years since 1992 when I became a district judge I had never encountered the fear that I felt and revealed to my wife. I feared that I was not up to the task.
I know that I am not as a sharp as I once was. I am beginning to fade away. Points of law that I once could recite chapter and verse from memory elude me. My stamina declines as the surgeons cut and the radiation fried during the last year. Like Mr. Mueller, who is only slightly older than me, sharp lawyers can push me around if I don’t slow down, think hard, and then, given time, resort to the sure-footed retort of years gone by.
To be clear, the physician trained in such things who tested me recently said my cognition was just fine and I had no disease of the brain. Yet, the fear persists. It grips me as nothing I have ever felt before. I know, in my heart of hearts, that I am fading away. That terrifies me.
I have always lived in my head. That has been the one place where I felt comfortable. But that place has become a mine field requiring me to step gingerly where I once strode confidently.
I am relieved that Brian Buescher has now been confirmed as a district judge, bringing us back to equilibrium. With his confirmation, I will begin to reduce my caseload and handle mostly habeas corpus cases and prison litigation that require no or very little time on the bench. I will have all the time I need to think through the issues and write with clarity and surety. The important thing is that in several years I will not need a robe because I will work solely in chambers.[ii] That promise gives me great comfort.
If this seems self-indulgent, it probably is, but only partly, Why, then, do I write this?
I write this because doing so allows me to state my fears aloud and with that acknowledgment I strive to make myself a better senior judge by admitting to the public and forcing myself to internalize that for everything there is a season. For me, the oak leaves of fall have arrived, and the biting wind of Nebraska winter approaches.
All the best.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] I am provided with a staff, an office and, at least in my court, as much work as I want. My salary continues whether I work or retire.
[ii] Of course, I could retire, and I would still be paid. But my staff, whom I love, would all be out of their jobs. I need to hang around until 80, if I can, so that they can maximize their retirement benefits. I have a judicial assistant and two career law clerks who have been with me a very long time. I owe them more than I can ever repay. Staying around, assuming I am not slobbering, is my way of trying to partly compensate them for their brilliance, their hard work and their patience with my profane ranting and raving.