Author Archives: Hon. Richard G. Kopf

Kopf: How The ABA Standing Committee On The Federal Judiciary Might Regain its Credibility

I write about the Standing Committee on the Federal Judiciary of the ABA.[i] The Standing Committee’s recent “not qualified” rating given by a unanimous vote of the members who voted (one abstained) regarding the nomination of Steve Grasz[ii] to serve as a judge on the United States Court of Appeals for the Eighth Circuit has created a firestorm of criticism.[iii]

According to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, members of the Standing Committee will appear before the Senate Judiciary Committee on November 15, 2017. I predict a nasty hearing as the Chair and maybe other members from the Standing Committee are grilled about the handling of the Grasz nomination and, perhaps, other nominations.

As a preview, watch this detailed, and maybe even devastating, criticism (nearly 20 minutes) of the Standing Committee by Senator Sasse on the floor of the Senate on November 2, 2017, following the confirmation hearing of Mr. Grasz on November 1, 2017: Continue reading

Kopf: A Short Take on a Pithy Comment by an Aging Trench Lawyer

On October 18, 2017, the CATO Institute held a day-long program on “Criminal Justice at a Crossroads.” The program consisted of various panels discussing a variety of issues regarding the criminal law.

Our host, Scott Greenfield, sat on one of the CATO panels with Judge Jed Rakoff, the eminent Senior Judge from the U.S. District Court for the Southern District of New York. The third panelist was Suja Thomas, Professor of Law at the University of Illinois at Urbana-Champaign and a scholar devoted to studying the American jury system. The panel discussion was entitled, “The Defendant in Court.”

The primary discussion that ensued dealt with the dearth of criminal jury trials and the large number of plea bargains. Everyone seemed to agree that more criminal jury trials would be a good thing.[i] But then the discussion turned to plea bargains. Continue reading

Kopf: On Mindless Judicial Pomp

If you have not read A Gentleman in Moscow by Amor Towles, you must do so. It is writing at its very best. I suppose that is why it was on the New York Times bestseller list for over 40 weeks.

If Jefferson’s celestial watchmaker would, playing against type, deign to bestow upon me the ability to write only 10 percent as well as Towles, I would pledge my troth to Roxane Gay.[i] If the omnipotent maker preferred, I would prostrate myself before the insipid youngsters who attacked Scott for being a misogynist or a sexist,[ii] and therefore unworthy of a legal writing award. But I digress.

A Gentleman in Moscow centers on the witty and observant Count Alexander Ilyich Rostov who was already ensconced in luxury in Suite 317 of the Hotel Metropol when he was sentenced to house arrest at the very same hotel by earnest Russian revolutionaries. (Think of a certain strain of Appellate Twitters!) This banishment took place after a 1922 trial, where Rostov was condemned for writing an insufficiently proletarian poem. (Think of our host!) It is from this hotel in Moscow that the story unfolds.

No more, now, about the book, except to recount one of the Count’s trenchant observations. The reader is informed that “pomp is a tenacious force. And a wily one too.” And it is about judicial pomp that I write. Continue reading

Kopf: The Unexploded Landmine Buried Deep In The Codes of Conduct Committee’s Otherwise Excellent Opinion On Posner

There are two Codes of Conduct applicable to those who work in the federal judiciary. One is for employees and the other for judges. The Judicial Conference (the administrative governing body of the federal courts) has authorized its Committee on Codes of Conduct (the Committee[i]) to render advisory opinions about the judges’ Code, but only when requested by a judge to whom the Code applies.[ii]

I have enormous respect for the Committee, the members of the Committee, and the truly excellent work of the Committee. The Committee is comprised of 15 members appointed by the authority of the Chief Justice.[iii] The primary responsibility of the Committee is to issue confidential advisory opinions to judges regarding compliance with the judges’ Code. It toils in anonymity (most of the time), turning out thoughtful and confidential opinions very rapidly on a whole host of questions regarding the Code and related matters (like the issuance of certificates of divestiture[iv]).

There are two things one must understand about the Committee’s work. First, the Committee does not serve as the “ethics police.” Complaints against judges are handled through an entirely different and unrelated mechanism. See, for example, here. Second, the opinions of the Committee are advisory. While the judges’ Code is binding, the opinions of the Committee are advisory. Thus, every opinion of the Committee (of which I am aware) begins with this language: Continue reading

Kopf: A Short Take On Life As A Series Of Disappointments (or payback’s a bitch)

This is whimsical but true. If I mightily stretched things, I could even say this is about legal realism.

Long ago—when I was 12—I lived in Florida. I took to water skiing. One day while racing along on two skis I decided to drop one and ski on the other.[i] The remaining one was not a slalom ski. But, I made it work until it didn’t.

As I fell forward into the onrushing water the ski submerged tip first. Then, the butt end popped back up and hit me in the mouth. My teeth, and particularly my lowers, were never the same.

My parents evidently had an aversion to dentists (as I do now) and, eventually, I came to like my new look anyway. Think of actor Bill McKinney in Deliverance.[ii] Continue reading

Kopf: Nobody Likes A Bootlicker

A bootlicker is an obsequious or servile person, so says the Oxford Living Dictionary.  It is an “Americanism dating back to 1835-45” according to another dictionary. “Foot-licker” in the same sense dates back to around 1610. Douglas Harper, Online Etymology Dictionary (2017).

There are others words like “butt-kisser” that may be substituted if you lack my slavish devotion to taste and decorum. But you need to be careful about substituting “butt-kisser” for “bootlicker.”  As I shall next show pictorially, there are subtle differences.

Thus, for this post, I will use the term “bootlicker” because it fits better for those who have studied law and are thus trained to understand nuance.[i] Having solved, I hope to your satisfaction, the definitional issue, I now turn to substance. Continue reading

Kopf: What If Seventh Circuit Nominee Professor Amy Coney Barrett Was An Ardent Atheist?

Professor Amy Coney Barrett, a most certainly qualified nominee[i] to the United States Court of Appeals for the Seventh Circuit and a law professor at Notre Dame, recently had her confirmation hearing.  The hearing resulted in quite a controversy.

The Professor, who clerked for Justice Scalia, was grilled by the ranking member of the Judiciary Committee (Senator Feinstein) and other Democrats about whether the nominee’s deeply held religious beliefs (Catholicism) might interfere with her job as a judge. It is fair to say that this inquiry (but perhaps not the tenor of it[ii]) was brought about by Barrett herself. See, for example, Amy Coney Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1998).

Here is the conclusion of the article cited above taken from the current Notre Dame Law School website:

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect. (Italics by Kopf.)

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Kopf: Several Unrelated Observations About Stuff

My mind wanders.[i] So, I will inflict my affliction on you, the noble readers of SJ.


*On my own, I write about 40 percent of the non-death penalty habeas corpus cases on the pro se docket of our court. I am responsible for all pro se cases save for death penalty pro se cases in the District of Nebraska. That docket includes almost all of the habeas cases because habeas petitioners seldom have counsel. The pro se law clerk, whom I supervise, writes the rest. Continue reading

Kopf: Tin Soldiers and a Black Manservant

Last week, I wrote about the statue of Chief Justice John Marshall. I provided some history about Chief Justice Marshall, noting his association with slavery.[i] That resulted in a number of interesting comments that expanded the discussion to, among other things, statues of confederate soldiers. I write next about those statues.

Imagine, if you will, a tin soldier in confederate garb. I am taking about an object a history buff might use in his or her basement to reenact a battle during the civil war. The little figure might be someone like Confederate General Thomas “Stonewall” Jackson.[ii]

This tiny tin soldier in the hands of a history buff would not be offensive to most people, whether they be white or black. But now let’s expand the thought a bit. Assume the tin soldier has been blown up and plunked down in front of a courthouse where blacks and whites go to get justice (whatever the hell “justice” means). Does that change things? Continue reading

Kopf: Shall We Demolish The Monument To Chief Justice John Marshall?

In 1901, James Bradley Thayer wrote a short biography of Chief Justice John Marshall. (You can download the book here for free.) At the end of this little book, Thayer, a legal giant in his own right, beautifully describes a monument to the greatest Chief Justice in our nation’s history.

Thayer writes:

On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend, —placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of life long habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.

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