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 →
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 →
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 →
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.)
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 →
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 →
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.
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.
On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the Committee) considered the petition filed by United States District Judge John R. Adams seeking a review of an Order of the Judicial Council of the Sixth Circuit (Judicial Council) finding Judge Adams committed misconduct as understood within the meaning of the Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351-64, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) (amended Sept. 17, 2015). See here for a well-written and thorough news article summarizing the matter and here for the rulings of the Committee and the Judicial Council.
The Committee made a decision of first impression that is both extremely important and yet chilling:
In this matter of first impression under the Judicial Conduct and Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings, we reject Judge Adams’s constitutional and statutory challenges to the Judicial Council’s finding that he committed misconduct and directing him to undergo a mental health examination. For the reasons discussed, the Act and the Rules authorized the Special Committee’s request that Judge Adams submit to such an examination, the Special Committee was justified in making the request based on its findings concerning Judge Adams’s behavior, and Judge Adams’s objections to the examination do not justify his failure to cooperate in the investigation.
Committee Opinion, at pages 38-39.
However, the Committee reversed the Judicial Council’s decision stripping the judge of his cases for two years. The Committee wrote: Continue reading →
I just returned from the Peoples Republic of Portland. The experience was jarring.
In Portland, there are no homeless people. There are, however, houseless. What that means is that homeowners cannot complain if the houseless shit on your front yard as your children skip off to the gender fluid schools. After all, where else would you expect these folks to leave their droppings?
The people of Portland are wildly woke. The City recently banned investment in evil corporations. Caterpillar is particularly evil because the Israeli defense force has armored bulldozers purchased from Caterpillar. Damn Jews.
Joan and I attended the drop dead gorgeous wedding of her nephew. It was held in a vineyard with an amazing view of Mount Hood. I especially liked the Subaru driven by the Chef. I have even photographed it for you. If you are a millennial, then you are likely attracted to the photo. In that same vein, and for the bride and groom, I extend my best wishes to them and my fervent hopes for a world protected by a really fat guy by the name ALGORE whose primary accomplishment is proving that a breakfast of biscuits and gravy is an inconvenient truth.
Anyway, with a sense of extreme relief, I got back to Nebraska. Nebraska is nice. In fact:
For several days this January, the state flag outside Nebraska’s Capitol fluttered upside-down in the frigid sky. And for several days, as lawmakers and lobbyists shuffled past, no one noticed.. . .
John M. Hartvigsen, president of the North American Vexillological Association, said the state seal on a solid background is a product of a different era when state flags had a more limited role.. . .
Mr. Hartvigsen’s organization suggests principles for successful flag design: simple concepts, a distinct look, bold colors and no words. Nebraska’s banner violates nearly all of them.
“It’s a flag that would be easy to fly upside down with nobody noticing,” Mr. Hartvigsen said.[i]
I now call upon Admiral Greenfield to take action. Like Admiral Nelson at the battle of Trafalgar, his Excellency Greenfield is now charged with defeating the armada of those who would sully the flag of his adopted kinsmen (and women, of course). Even though Nelson was shot through the spine by a sniper high atop the rigging of an enemy vessel, he lived long enough to know of his victory. It is not too much to ask the same sacrifice of Admiral Greenfield.
By the way, if you take a crap on my lawn, you may find yourself wrapped in the flag of Nebraska and hoisted aloft upside down.
Richard G. Kopf Senior United States District Judge (Nebraska)
[i] I pause only to note that Oregon has a beaver on the reverse of the state flag.
That caused one wag to write and illustrate the following:
Even though it was written in the dark ages (1955-56), if you have not read “Howl” by the poet Allen Ginsberg, it is way past time you do so. You can read the poem here or listen to Ginsberg read it here.[i]
The poem starts like this: “I saw the best minds of my generation destroyed by madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for an angry fix . . ..”
I recently heard twin echoes of “Howl” at a sentencing of a Native American who accidentally killed his African-American friend. And it is about that profound experience that I now write. Continue reading →