My father once sent me to a neighbor to borrow a left-handed monkey wrench. I was five or so, and believed my father needed this strange device. The neighbor, understanding the ruse, gently told me that all monkey wrenches worked whether the user employed his right or left hand. I returned and promptly told my Dad. He smiled and thanked me for my effort. He added that perhaps next time it might be good to question a request from others. Did a request make sense? I can still feel the warm blush of shame that covered my face.
During her 2010 Supreme Court confirmation hearings, Elena Kagan, Barack Obama’s solicitor general and former Dean of the Harvard Law School, created a stir in legal circles by stating, “We are all originalists.” Of course, she was correct but not as commonly understood. She was being honest, but not in the way the true believers—whether liberal or conservative—feared or wished. Continue reading →
Justice Ruth Bader Ginsburg is a heroine of the first order. She has suffered multiple bouts of cancer. Chemotherapy and radiation treatments beat the living hell out of you. I know in a very personal way.
There is no doubt that today’s announcement (quoted below) sent chills down the spine of all Democrats and even some Republicans. Yet, more than a few on the Right I suspect silently welcomed the news with grim glee. Below is what she said (through the Court’s public affairs officer).
Let me say a few things by way of an introduction.
At the outset, and what many of you know to be true, I have written a lot of really stupid stuff–prompting more than few to question, “That guy’s a judge?” Let me also make clear that the mad rush to take down statues of historical significance (or rename military bases for that matter[i]), whether we like the history or not, is silly. SeeKopf: Shall We Demolish the Monument to Chief Justice John Marshall?Simple Justice (August 30, 2017) (noting that greatest Chief Justice in our nation’s history owned slaves). Thirdly, Judge Silberman, a Senior Judge on the D.C. Circuit, is far too conservative for my tastes.
OK, so what do I write about?
Well, it seems that Judge Silberman was going to be interviewed by his colleague on the D.C. Circuit, Judge Robert L Wilkins, who happens to be black. In particular, Wilkins was set to interview Silberman last Monday as part of a summer series for law clerks and interns.[ii] Prior to the interview, Judge Silberman sent out an e-mail to everyone, staff and judges alike on the D.C. Circuit and the D.C. District Court.
He was annoyed at Senator Elizabeth Warren. She had proposed legislation that apparently suggested to Silberman that Confederate graves were at risk.[iii] This really concerned him as his ancestors had fought on opposite sides of the Civil War, one for the Union and another for the Confederacy.
In his email, he wrote, “Since I am about to be interviewed, I thought it appropriate to unburden myself in opposition to the madness proposed by Senator Warren: the desecration of Confederate graves.” “It’s important to remember that Lincoln did not fight the war to free the Slaves.” “Indeed[,] he was willing to put up with slavery in the South if the Confederate States Returned.”
Silberman explained that his great-grandfather had fought for the Union as part of Ulysses S. Grant’s army and was badly wounded at Shiloh, Tennessee. His great-grandfather’s brother, meanwhile, joined the Confederate States Army and was captured at Gettysburg, Pennsylvania.
Silberman’s email prompted a response from a black law clerk for Judge Sullivan, a district judge now much in the headlines for the Flynn case. Sullivan is black too. The law clerk identified himself as one of a small number of black law clerks at the courthouse and a former history teacher in Louisiana whose maternal ancestors were enslaved in Mississippi.
Mr. Petit, the clerk, wrote to Judge Silberman, “Hi Judge Silberman. Since no one in the court’s leadership has responded to your message, I thought I would give it a try.” He continued, “As people considered to be property, my ancestors would not have been involved in the philosophical and political debates about Lincoln’s true intentions, or his view on racial equality.”
For them, and myself, race is not an abstract topic to be debated, . . . so in my view anything that was built to represent white racial superiority, or named after someone that fought to maintain white supremacy (or the Southern economy of slavery) . . . should be removed from high trafficked areas of prominence and placed in museums where they can be part of lessons that put them in context.
The email went on to suggest that military installations that bore Confederate names were sore subjects. The missive was well researched and written and far longer than my brief synopsis. Like Silberman’s email, the clerk’s email went to everyone at the two courts.
What followed was (1) a clarification by Silberman that he was only concerned with cemeteries as Judge Wilkins had earlier suggested in a response to Mr. Petit; (2) a response to Mr. Petit from Judge Silberman that reads, “Thank you for your thoughtful message” and “Judge Wilkins is absolutely correct; my concern was limited only to cemeteries.”; and (3) a flurry of other emails from other judges noting the clerk’s courage and insights.[iv]
Here is my short take:
Judges who are as old as me, or older like Silberman, would be advised to write less and think more.
At best, Silberman’s view of Civil War history is distorted. This from a guy who has a bust of Lincoln in his office and served for many years as President and then Chair of the Historical Society for the United States Courts in the Eighth Circuit.
It is nuts to rename military bases and remove statues from public venues suggesting, as such activities do, that we can remake history in our own modern notion of justice. It is far better to be reminded than it is to deny.
Petit should be lauded for his response to Silberman. And, he was.
The kerfuffle says far more about the outside world than it does about the innards of the federal judiciary.
All the best,
Richard G. Kopf Senior United State District Judge (Nebraska)
[i] Should we rename Ft. Robinson in Nebraska? It was named in honor of Lt. Levi H. Robinson, who had been killed by Indians while on a wood detail. And yet in1879, Chief Morning Star (also known as Dull Knife) led the Northern Cheyenne in an outbreak. Because the Cheyenne had refused to return to Indian Territory, where they believed conditions were too adverse for them to survive, the army had been holding them without adequate food, water or heat during the severe winter to try to force them into submission. And, soldiers hunted down the escapees, killing men, women, and children in the “Fort Robinson massacre.” The Supreme Court described it as a “shocking story” and “one of the most melancholy of Indian tragedies.” Conners v. United States, 180 U.S. 271 (1901) (Justice Henry Billings Brown finding no federal liability). Perhaps not ironically, the Justice had written the majority opinion in Plessy v. Ferguson.
[ii] More broadly, the interview of a Senior Judge is frequently done to make oral and video histories of the judge’s life and times. Indeed, I interviewed the former Chief Judge of the Eighth Circuit, Bill Riley, for precisely that reason.
[iii] I understand that during the debate over the amendment, which took place behind closed doors, Sen. Tom Cotton, R-Ark., offered an amendment that would exempt graves and monuments. Warren pushed back, arguing that an exception for monuments would be far too broad and could become a loophole that undermined the requirement, but she agreed that there was no need to rename gravesites themselves.
[iv] The Intercept received a leaked copy of these emails from an anonymous source who was not Mr. Petit and, wrongly in my view, suggested that Silberman was against renaming military bases. The Washington Post followed up with a story of its own.
I don’t salute the flag when called upon to do so. I don’t pray when called upon to do so. I have not voted since I became a judge. In short, I detest public displays of orthodoxy and that is also particularly true when acting in my capacity as judge.
And this brings to me to the children. Take Aisha Harris, an Op-Ed staff editor and writer for the New York Time, for example.[i]
On Friday last, Joan and I watched the debut of “Trolls World Tour” with our three refugee grandchildren from China.[i] Ages five, eight and ten (going on 20). Their mom had gone out to celebrate her birthday, and their dad, a Canadian, was still stuck in Windsor unable to cross the tunnel into Detroit.
It is possible to watch “Trolls World Tour” without removing your eye balls with a spoon. I know because I did it. It is funny, the illustrations are wonderful, the music is great, and the theme is, well, terrifying in a good way. The hard rock queen, Queen Barb, tries to ban all music (including especially funk, country, techno, classical, and pop) except for hard rock. Oh, the horror. In the end, we learn that all genres of music are worthy of preservation. Continue reading →
Scott asked that I give you my point of view of how the pandemic has impacted the federal court in Nebraska. I will be short and only as transparent as I feel comfortable. Some things I am holding very close to my vest. And, of course, this post is personal and cannot be taken as an overview of the entire federal judiciary or my particular court.
First, our court is essentially shut down with most everyone working from home. My CRD who is a young woman, with no children, has volunteered to staff the Lincoln Clerk’s office every day. (She’s the best.) She will have one additional person help her each day with that second person serving on a rotating basis. A similar rotation system, I believe, is operating in Omaha. CM/ECF (electronic filing) is up and running as usual. Continue reading →
Last week, after more than 48 years, I resigned my membership in the American Bar Association, after very carefully reading the exposure draft of Advisory Opinion No. 117 of the Committee on Codes of Conduct of the Judicial Conference of the United States. I encourage you to read it carefully.
Essentially, the Codes of Conduct Committee suggests that judges should no longer remain members of the American Constitution Society or the Federalist Society. However, the proposed opinion suggests that judges may continue to be members of the American Bar Association. I strongly agree with the opinion insofar as the American Constitution Society and the Federalist Society are concerned. With regret and respect, I strongly disagree with the exception for the American Bar Association. Continue reading →
As the year draws to the end, I have been thinking about 2019. I give you, the readers of Simple Justice, the discerning bunch that you are, my take on the top ten things that made me laugh, made me happy, made me crazy or made me sad during 2019. It is up to you to determine which category applies. Without further ado, here is my top ten.
Ten: The Senate Majority Leader pushed through a lot of smart new judges, albeit slaves to the Federalist Society’s schizophrenic program of promoting judicial restraint and judicial activism at the same time. Thus proving, I suppose, that one ought to buy stock in whatever big pharma manufacturers long-lasting Haldol. Continue reading →
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article I, Section 3, Clauses 6 and 7 of the Constitution
I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on. Continue reading →
I have been a Magistrate Judge, a Chief District Judge and now a Senior District Judge. I have clerked at the Eighth Circuit and sat as a judge at that court by designation. I have had the pleasure of handling cases in several other district courts in the Eighth Circuit. I have appreciated more than I can explain the judicial collegiality that I have always experienced in the District of Nebraska and in the Eighth Circuit more generally. Sadly, however, I have now seen a Chief District Judge in the Southern District of Florida murder judicial collegiality. It makes me want to vomit.
Consider, please, footnote 2 to an opinion of Chief District Judge K. Michael Moore of the Southern District of Florida adopting in part and rejecting in part a report and recommendation submitted by Magistrate Judge Lisette M. Reid in a pro se case.[i] Here is the footnote: Continue reading →