Author Archives: Hon. Richard G. Kopf

Kopf: Murdering Judicial Collegiality

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

Kopf: Two Questions About Crying

This short and narrow post is about the tears that Lawrence VanDyke, Donald Trump’s nominee for a seat on the 9th U.S. Circuit Court of Appeals, shed when confronted with a letter he had received the evening before his confirmation hearing. In essence, the letter from the American Bar Association’s Standing Committee on the Federal Judiciary said he was a nasty and mean-spirited bigot when it came to gay (“LGBTQ”) people.

Before the Senate Judiciary Committee, this man, who stands six-foot-seven or so tall and who is an avid hunter and gun enthusiast, cried in front of the cameras, the Senators, the press and his family when asked about the letter and the assertion of bigotry. As a reminder, here is a video clip: Continue reading

Kopf: The Milk of Human Kindness and a CDL Named David Tarrell

I am not proud of the fact that all or most of the empathy that I once had has been burned out of me. That is not true for a local criminal defense lawyer by the name of David Tarrell.[i]

So, here is the story.

I recently had a supervised release violation matter involving a woman I had sentenced to a long prison stretch plus five years of supervised release for a meth crime. The woman, now in her late 50s, had been a meth addict.

She was arrested at the hospital after surviving a car wreck. We picked her up because she failed to keep her experienced and patient probation officer (who had gone the extra mile) informed of her whereabout. Turns out, her house had burned down, she got hurt in a car wreck, and blah, blah, blah. David was appointed from our Criminal Justice Act panel to represent her. I think I had met David once before, but this case was the first time he had appeared before me. Continue reading

Kopf: Oliver Wendell Holmes, As Real As It Gets

“I can’t help preferring champagne to ditch water — I doubt if the universe does.”[i]

After all these years, I still have my treasured dog-eared paperback copy of Saul K. Padover’s[ii] magnificent essays about those who helped make the American experiment so fascinating. In that wonderful book, Professor Padover first brought to my attention Oliver Wendell Holmes, Jr.[iii] I read it in the 1960s. I was captivated by his essay on Holmes.

For me, Holmes endeavored, in a brilliant way, to answer the question that had been nagging me then and still nags me now: What is the difference between politics and law?

Holmes, it seemed to me, had a rough but imperfect answer that was nevertheless honest, and quite a bit better than the platitudes we swallowed during the Warren Court of my youth and the cant we genuflect to nowadays. In Holmes’ own words, “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”[iv] Or to put it another way, a judge’s preferences do not matter much. Nor does a judge’s sense of morality, commonly understood, have much to do with law except to the extent that one version of morality or the other is reflected in the legal reasoning which has gone before. He gave us legal realism in all its savage honesty.[v] Continue reading

Kopf: A Short Take on Overruling the Chief Justice

Obviously, I take no position on whether President Trump should or should not be impeached. Even if I had a position, I would not reveal it. But I am intrigued by the fact that the Chief Justice of the United States becomes the Presiding officer in such a trial pursuant to Article I, Section 3, Clause 6 of the Constitution. That is:

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.

(Emphasis added.)

But, what does “preside” mean? Continue reading

Kopf: Federal District Judges Should Keep the Hell Away From “Originalism”

Modern day “originalism” is a method (in my view, a narrow tool and not an expansive religion) of understanding the Constitution. No longer pursuing the fool’s errand of attempting to ascertain “original intent,” the modern-day originalist judge looks to the ordinary public meaning of the words of the Constitution at or about the time of the Founding to make decisions about the lives of litigants. This notion has within it an effort to understand the structure of our Constitution with reference to the writings of the Founders and the ordinary public meaning of the words they used. OK, the table has now been set.

While I am not a legal historian, I know something about legal history. I have long served as Chairman of the Board of the Historical Society of the United States Courts in the Eighth Circuit. In that capacity I have come to know and deeply appreciate distinguished (and always humble) legal historians such as Jeffrey Morris, John Wunder and Mark Scherer. These fellows have law degrees and PhD degrees in history. One of their history books has even been dedicated to me. Forgive the self-promotion, but it has a point beyond merely massaging my massive ego.

Now I turn to the essay that caught my eye and prompted this response. See How Originalism Changes Legal Analysis by law professor John O. McGinnis, in Law and Liberty. Frankly, it shocked me because it is nothing short of revolutionary when comes to federal district judges. Continue reading

Kopf: Magic Mirror On The Wall, Who Is the Fairest One Of All?

An amusing thing recently happened at the Fifth Circuit.[i] It all started with a  qualified immunity (QI) case. Cole v. Carson, No. 14-10228, No. 15-10045 (5th Cir., August 20, 2019) On a petition for rehearing en banc following remand from the Supreme Court, the Fifth Circuit once again affirmed the denial of summary judgment on an excessive force claim. Plaintiff and his parents had filed suit against police officers under 42 U.S.C. § 1983, alleging that the officers violated the Fourth and Fourteenth Amendment during an incident in which the officers shot the kid who was holding a gun near his head as he suddenly emerged from a tree line.

Although the majority decision is patently wrong and, given the remand, appeared to thumb its nose at the Supreme Court, the result of that opinion is not what I care about. Instead, I write about two dissents. Those dissents remind me of an iconic Disney movie and the pertinent question it recalls, “Magic mirror on the wall, who is the fairest one of all?”

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Kopf: A “Second Look” Option Might Lessen Federal Sentencing Disparity

It is no secret that I am Guidelines-centric. Why then do I strongly support a “second look” option similar, if not identical, to the one proposed by Professor Shon Hopwood? See Shon Hopwood, Second Looks & Second Chances, Cardozo Law Review (forthcoming), available at the Social Science Research Network (last revised June 30, 2019) at SSRN pp. 21-22 (Part III) (proposing, at a minimum, that Congress enact legislation allowing federal judges to take a “second look” at sentences after the offender has served 10 years in prison and every 5 years thereafter without the offender having to show extraordinary and compelling circumstances).[i]

The following courtroom sketches are of Tom Brady during “DeflateGate.” The artist, Jane Rosenberg, a 35-year veteran of courtroom sketching, received condemnation for the first one and much better reviews for the second one.[ii]  See where I’m going?

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Kopf: To Everything There is a Season

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. Continue reading

Kopf: A Short Take on Evil

In the rush to empty prisons nicely evidenced by the passage and implementation of the federal First Step Act, I fear that the policy wonks and the judges who follow them disregard a patent truth.[i] There is evil lurking among those who are elderly, yet seek release.

By using the word “evil,” I mean an existential threat to a civilized society. I do not intend the foregoing to be provocative. I mean it literally.

Before Harry Potter’s train leaves, transporting us magically to a world where good consistently triumphs, we need to remember that the journey would not be worth taking without Voldemort showing us that we are risk. We would do well to remember him. Continue reading