Category Archives: Uncategorized

When Berman Won’t Go

The New York Times writes that Attorney General Bill Barr “tried to fire” Southern District of New York United States Attorney Geoffrey Berman, but that’s not quite right.

Attorney General William P. Barr on Friday night abruptly tried to fire the top federal prosecutor in Manhattan, Geoffrey S. Berman, who has investigated several of President Trump’s closest associates, but Mr. Berman said he would not leave.

Barr issued a press release stating that Berman was “stepping down,” which was news to Berman, who wasn’t stepping anywhere. Continue reading

Seaton: Nation Tells Fauci to Pound Sand

In a stunning moment of American unity, citizens turned on renowned physician Dr. Anthony Fauci Thursday with a loud “fuck that guy” when the director of the National Institute of Allergy and Infectious Diseases said football might not resume in the fall over coronavirus concerns.

“Screw that miserable asshole,” said Q.T. Marshall of Boston, Massachusetts. “He’s never seen a Pats game. I’m ready to see our boys take that miserable cheat Tom Brady down!” Continue reading

Short Take: When The Punch Doesn’t Fit

A 73-year-old woman was punched on a subway platform in the Bronx. This didn’t catch much interest for lack of a video, but assuming it happened, it doesn’t fit the narrative.

A 73-year-old woman was punched in the face by a stranger on Wednesday night while standing on a subway platform in the Bronx, sources said.

The Queens woman was on the platform of the D line at the 174 street station at about 7:20 p.m. when a man attacked her before fleeing the scene, according to law enforcement sources.

The victim was taken to Bronx care hospital with pain to her face. The suspect was described as a man in his 20s.

Continue reading

Wendy’s Burned, But Will Rolfe Walk?

In the heat of Atlanta, Fulton County District Attorney Paul Howard announced that fired Police Officer Garrest Rolfe would be prosecuted for felony murder in the killing of Rayshard Brooks. As with charges against fired Minneapolis cop Derek Chauvin a few weeks earlier, people cheered the charges, and again the upped charges, notwithstanding their dubious nature and, as reflected by the final results of the Medical Examiner’s autopsy, the serious doubt that Chauvin’s knee was the cause of death.

But surely Rolfe, who shot Brooks in the back three times. will be convicted? Don’t be too sure. Continue reading

Kopf: A Short Take on Judge Silberman and The Law Clerk

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. See Kopf: 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.

Judge Silberman

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.”

He added:

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.

Creating A Cop’s Duty To Intervene

There’s a joke: What do you call 1000 good cops and ten bad cops? 1010 bad cops, because those ten couldn’t be bad, couldn’t persist, but for the acquiescence of the good cops. There is a well-known phrase, “the blue wall of silence,” referring to the police historically protecting their worst and themselves from outside scrutiny. If you’re a cop, ignore the wall at your peril. Ask Frank Serpico how that works.

But these are cops, not criminals, and rather than characterize what they do, and don’t do, as a pejorative like “snitching,” it should be viewed as a positive duty to maintain the law, their integrity and the virtue within their own ranks. Continue reading

Is Being A Lawyer A Reason To Deny Bond?

Since no one seems to care much about the presumption of innocence these days, it’s unsurprising that the brief mentions only the presumption of detention for people the government deems too dangerous to let out. But two lawyers accused of throwing a Molotov cocktail into an empty police car rather than use their license to accomplish whatever it is they believe to be justice?

After being released on bond by the district court, the accused went back into the can after the Second Circuit said “nope.

Colinford Mattis and Urooj Rahman, both lawyers, had been freed on home detention, on $250,000 bonds, collateralized by family and friends, until the U.S. Court of Appeals for the 2nd Circuit revoked their bond on June 5 pending a decision on whether bail should be reinstated following a strong push by the government on the basis that the defendants were a continual danger to society. They were taken back into custody that day.

Continue reading

Marketing The Least Dangerous Branch

Have you ever wondered why a sneaker named after Michael Jordan costs between $150 and $500? Is there platinum in the sole? While they’re worn by people of all colors, they’re particularly prized by black kids, for whom sneakers have long held special status, and so Nike has milked them for all it could for a pair of sneakers that do not guarantee you’ll be drafted for the NBA or suddenly become inexplicably attractive to others.

Yet, at this moment of racial obsession, Nike stands with its customers, even if it hasn’t reduced the price of its sneakers. That’s what it means to fight “systemic racism,” which is great since people keep saying that phrase without any clue what it means, whether it’s real or what to do about it. Continue reading

Tuesday Talk*: Has The Battle Been Joined?

New York Police Commissioner Dermot Shea announced that the plain clothes “anti-crime”** units of 600 officers will be disbanded.

The New York police commissioner announced on Monday that he was disbanding the Police Department’s anti-crime units: plainclothes teams that target violent crime and have been involved in some of the city’s most notorious police shootings.

On the one hand, the nature of the assignment tended to explain why its members were involved in most police shootings. On the other hand, it was absolutely notorious, bordering on a rogue squad of armed people, indistinguishable from the criminals they were supposed to police, usually unnecessarily violent in their dealings and utterly callous in their actions. Continue reading

Bostock Changes Everything

It’s hard to fault Justice Neil Gorsuch’s textualist logic, even if he felt compelled to repeat himself a few times for clarity. The holding of Bostock v. Clayton County* is clear: firing gay and transgender employees, where “but for” being gay or transgender they would not have been fired, is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964. As outcomes go, it’s a policy that should have been done a generation ago, had Congress ever had the guts to do its job.

And while many are in shock that this 6-3 decision included the hated Justice Gorsuch, usurper of the seat from Merrick Garland, and Umpire C.J. John Roberts, it’s a lesson to all that justices rarely fit into anyone’s political paradigm, whether thrilled by the decision or outraged.

When Congress enacted Title VII, it used the word “sex” as a shorthand, a word intended and universally understood to mean “male and female.” The notion that this would someday prove to be inadequate to express its scope would have been absurd at the time, as the law routinely still criminalized gay sex and transgender people didn’t exist in the popular mind. The Court dispensed with this argument. Continue reading