July 8, 2014

Having blogged that the Supreme Court should "stfu," federal district judge Richard Kopf blogs a letter from a trusted colleague telling him to shut the blog up.

Kopf says he's "going to give this letter serious consideration," and: "Blogging will be light while I figure this out."

From the letter he received:
I think blogging by judges harms our system significantly. I thought that you had decided some time ago to stop posting to Hercules and the Umpire. It is my sincere belief that you should.

As you know... the delivery of justice is a complicated, mysterious undertaking... But... it is my inescapable conclusion that an important element, perhaps the most indispensible [sic] one... is public trust in judges... [Y]our “the SCOTUS should STFU” post seems to agree with this premise with the words “…all of us know from experience that appearances matter to the public’s acceptance of the law.”)

After painstaking and sincere thought... I am unable to understand how judicial thinking out loud can ever be a net plus on the scales of public trust and confidence in judges and, by extension, the law....

There is little surprise in the level of attention drawn by, or the inevitable public reaction to, a federal trial judge, in a public forum, repeatedly using vulgarity including serial exercise of the f-word, apparently disclosing a fondness for looking up the skirts and down the blouses of female attorneys who appear before him, telling Congress to “go to hell”, and urging the SCOTUS to “stfu”. 
Does "stfu" count as using "the f-word"?  Regardless, he has used "fuck," spelled out, a number of times.

Back to the letter. Or, no, not back to the letter. First, I want to exclaim: This is why I never wanted to be a judge. You're expected to be sober, sane, boringly normal. There's far more freedom of expression for a law professor, even though — I well know — there are plenty of people who would like to say that you can't blog — and by blog, I mean blog — if you're a law professor. You can post miniature law review articles in blog form, but leave all the cool stuff to others who haven't taken on the ponderous role of professor. But it's worse for a judge. And it kind of should be worse. He's picking the winners and losers and people have to believe that he's doing it on legitimately legal grounds. And yet, people don't trust judges to decide their cases in pure accordance with the law. Which is why the unnamed letter writer's worry about "judicial thinking out loud" has some resonance.

Back to the letter excerpts:
As I understand it, part of your motivation for continuing with your blog is your passion that “federal trial judges be seen as individuals with all the strengths and weaknesses (baggage) that everyone else carries around.”... What difference does it make whether federal trial judges’ strengths and weaknesses and baggage are properly understood?...

It is not that a judge, any more or less than anyone else, does or does not have thoughts like the more controversial ones you write about in your blog; it is that a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions....
I guess I should help the judge out with some advice. I'll just say that there is the option of quitting judging. Once you've reached the point where you can retire — and Kopf is 66 and has already taken senior status — it's not such a sacrifice to put your personal, daring, expressive writing first. If you can't judge and blog, you can still blog. Really blog. Even more.

Or less, if the real point of your blog is that you are a blogging judge. If that's true, then the letter writer's position is far stronger. You are using your position to give prominence to your writing in a way that you only have because others in your position restrain themselves.

Something similar can be said about a blogging law professor.

36 comments:

tim maguire said...

Should he resign to blog? Does a guy whose deep thought is to tell the Supreme Court to "stfu" have any thoughts worth that sacrifice?

I know nothing about his reputation as a judge, but as a blogger, I agree with his friend.

Nonapod said...

The more you say the more you reveal how little you really know. It gets scary when you realize that judges are just regular human beings... people of the land, the common clay of the new West, you know... morons.

Michael K said...

Judges who don't want to be judges should STFU and quit.

YoungHegelian said...

The notion that educated & worldly individuals have any respect for the law, lawyers, & especially for judges is, at best, a relic of a bygone age, and at worst, just one more piece of self-delusion by the legal industry.

Anyone who has dealt with judges either by appearing before one or by providing professional services to them & their courts, knows that judges put their pants on one leg at a time like the rest of us. Some of them are decent human beings; some are utter fucking bastards that need to burn in Hell. And most are, like the rest of us, in between.

The legal profession has a job to do, and someone's got to do it. But don't ask the rest of us to hand you a halo with our payment checks for "professional services rendered".

Fritz said...

How do you look up the skirts of the lady lawyers from the bench? Highly polished floors?

James Pawlak said...

"Delivering justice" would be simpler if judges would give first priority to the intent of the authors of the various parts of our Constitution and not use its provisions as a perverted means of "making law from the bench".

Lacking any such constitutional guidance, in any particular case, they should look first to the intent of the writers of the law(s) in question before any court.

The Drill SGT said...

The Judge should take his own advice. Like sausage making, exposing the bias and politics inside court rulings, does not, in the long run improve the process.

I know that Justice Sotomeyer is biased in favor of (liberal causes, women, Latinos, Democrats, etc). Laying that all out means that we must consider all judges to just be politicians in black robes. If they are, then one need not consider their ruling as just, but rather as politics by other means.

The end result is to demand justices based on demographics rather than the adherence to the law.

Freeman Hunt said...

How do you look up the skirts of the lady lawyers from the bench? Highly polished floors?

I wondered the same thing. What are they doing back there in chambers?

Chance said...

If you are worried about your judges being "regular human beings," just think of that the next time you are at the doctor's office; especially how your breast exam or prostate exam may be the talk of the doctor's next social engagement.

jimbino said...

We need such outspoken whistleblowers in judgeships. Kopf is crying out that the emperor has no clothes. Yes, "an important element ... is public trust in judges"--all the more reason that we need insiders to point out when public trust is blind and unjustified.

It's an open secret that judges are biased; all lawyers take that for granted and numerous comments on legal blogs spill a lot of digital ink guessing the outcome of SCOTUS and other cases based upon the biases of the justices.

Our SCOTUS is, if anything, not representative of the Amerikan people: they are all either Roman Catholic or Jewish; they have all trained in the law; they have all taken undergraduate degrees in humanities like history, poly sci and English; they are all relatively unschooled in STEM and economics; none has ever declared himself a non-believer like some 20% of the Amerikan people.

B said...

He's picking the winners and losers and people have to believe that he's doing it on legitimately legal grounds.

No, I believe all judges are biased. And I'd rather have my fate decided by twelve of my idiot peers.

This reminds me of old-school journalists that say their profession should maintain an impartial facade. We know you're not. Stop bullshitting us.

StoughtonSconnie said...

Wait. If my German is holding up, this guys last name translates to head.

So Judge Dick Head is in trouble for using a profanity? Who says the law is boring!

Mark O said...

Were a lawyer to tell this Federal Judge to STFU, the bar would likely come down on him or her under RPC 8.2.

Only soccer officials have more discretion than Federal judges.

Will said...

His "reasoning" shows all the ironclad justifications that I am sure Lena Dunham uses to justify why we want to look at her tats and breasts.

Some things are better kept private or left to the imagination. Judicial exhibitionism is one of them.

He needs to put a restraining order on himself.

Fernandinande said...

I bet John Roberts could take 'im in a trial by combat.

Anonymous said...

It doesn't matter anymore.

Jurisprudence in the United States is on life support and will soon be dead. Its all politics now, all the time. The two new additions to the supreme court have shown that. Plus the internet has really highlighted the twisted reasoning that goes into trying to put the politics legitimately into the constitution. But fewer and fewer people are fooled.

Which will lead to the inevitable. If there side does it, our side is going to have to do it also. Fight fire with fire and all that.

So go ahead and blog. You do us all a favor when you do. Maybe more judges will blog and eventually expose completely the fact that you're no longer judging anything. Instead you're an activist with robes on.

sean said...

It is certainly possible that judges are intellectually indistinguishable from loudmouths spouting off in a bar. That appears to be the impression that Kopf is trying to give. If that is true, then there is no reason that some particular set of unelected loudmouths should be given lifetime dictatorial power, and the judicial system needs to be significantly reformed to very much reduce the power of judges.

Lawprofs don't really have any power except as gatekeepers, so the same considerations don't apply. Anyway, they usually had better grades than judges, so biglaw snobs like me respect them more, no matter what they do.

David said...

Once you've reached the point where you can retire — and Kopf is 66 and has already taken senior status — it's not such a sacrifice to put your personal, daring, expressive writing first.

If you like the power (and the title), which he seems to, it's quite a sacrifice. He already took senior status, leaving the heavier work to his less bloggy colleagues.

JOB said...

The way it ought to be vs the way it always has been, except that the way it ought to be, some pretend, is the way it always has been, and the way it has been, some assert, is the way it ought to be.

The Catholic Church has been dealing with this sticky wicket at least since it left the book on the Second Vatican Council open and allowed the intellectual descendants of Father George Tyrrell, SJ, to write it.

But whereas the Catholic Church ultimately avoids the problem by teaching papal infallibility in matters of faith and morals - the American judicial system can offer only a slow blink in which all sorts of penumbra can be found even if no one is really sure of the light source providing the penumbra.



Lance said...

Does "stfu" count as using "the f-word"?

Maybe I'm weird, but my mind automatically expands every abbreviation. So yes, I think it counts.

Jason said...

He must like to get reversed a lot.

The Elder said...

". . . I am unable to understand how judicial thinking out loud can ever be a net plus on the scales of public trust and confidence in judges and, by extension, the law."

VERY. WISE. WORDS.

Lem said...

Sonia the blogger.

Wilbur said...

His actions illustrate a perfect example why lifetime tenure - for anyone - is a bad idea.

No one in government is so indispensable that they cannot and should not be replaced, whether in the judicial, executive or legislative branch. And especially in the agency branch.

CWJ said...

StoughtonSconnie FTW,

Sometimes you can't make this stuff up. I noticed that as well and thought it the highlight of Althouse's post.

His name sounds like a Joseph Heller character.

Krumhorn said...

You are using your position to give prominence to your writing in a way that you only have because others in your position restrain themselves.

Something similar can be said about a blogging law professor


While I'm certain that you have some thoughtful reasons for your point, I can't think of any serious reason why a law professor shouldn't blog to her heart's content. It's just not the same. To the contrary, it's manifestly useful to the students.

While you are scrupulously rigorous and fair-minded, if I were your ConLaw student, I would be somewhat ginger in writing about equal protection and due process in any bluebook. You've made your views quite clear, and I wouldn't find much upside in charting a different path on vexing subjects.

Moreover, I know that you aren't devoting much attention to my skirts.

The judge is way out of line giving instructions to his senior Article III judges or expressing any public views on their opinions.

- Krumhorn

Larry J said...

Nonapod said...
The more you say the more you reveal how little you really know. It gets scary when you realize that judges are just regular human beings... people of the land, the common clay of the new West, you know... morons


I remain convinced that many judges are nothing more than failed lawyers with sufficient political connections to get appointed/elected to the bench.

Opfor311 said...

He is an embarrassment to the people of Nebraska, in which circuit he is serving. He is entitled to his opinion, but the Supreme Court's opinion is binding, while his is not.

Smilin' Jack said...

I think blogging by judges harms our system significantly...As you know... the delivery of justice is a complicated, mysterious undertaking...all of us know from experience that appearances matter to the public’s acceptance of the law.

The danger to the "system" is that people might realize that law has nothing to do with justice; it's merely whatever a bunch of self-serving, conniving politicians think will get them reelected/reappointed. It's easy to understand Kopf's concern with "appearances"--remember what happened to the Wizard when the curtain was knocked down.

Ann Althouse said...

"While you are scrupulously rigorous and fair-minded, if I were your ConLaw student, I would be somewhat ginger in writing about equal protection and due process in any bluebook. You've made your views quite clear, and I wouldn't find much upside in charting a different path on vexing subjects."

My views are clear, eh? I'm genuinely curious which way they are clear!

Joe said...

As near as I can tell, the judge here is arguing that the court should avoid involving themselves in highly controversial cases. Of course, he's being extremely disingenuous. Beyond the fact a key purpose of the Supreme Court is to design highly controversial cases, what he really wants is for the court to decide cases the way he wants them decided.

I found his comments rather vile and unbecoming his office. He sounds Harry Reid crazy and should be impeached.

Mike said...

You've stepped in it now, Krumhorn.

Steve said...

Surely the decisions supporting same-sex marriage show the prejudices of judges. This judge is simply lifting his skirts to reveal those prejudices. This makes us better prepared for unsupported judgments.

Chuck said...

I like the letter to the judge, mostly. It is sincere, and well-written.

I think it was a deserved rebuke, too, since the District Judge's "stfu" comment was such a dumb and lowbrow choice of expression.

But are we going to question federal judges' other non-blog writing? Must they stop writing books? Breyer, Sotomayor and Scalia are all going to be unhappy about that.

And are all federal judicial blogs suspect? Seventh Circuit Judge Richard Posner has been blogging about all manner of contentious public affairs for a very long time. I don't recall Posner getting this sort of criticism. However I also have never known Posner to write something so grossly insulting as "stfu."

I have mixed feelings about Posner. He is the author of my all-time favorite U.S. Appeals decision, Austin v. American Association of Neurosurgeons. But he has more recently made a habit of issuing commentary that I reject, including comments about same-sex marriage.

It is interesting to me that I find myself agreeing with the informal rebuke of Judge Kopf (who as a District Court Judge faces far fewer contentious societal matters than does Judge Posner), and yet I've never thought of Posner as deserving of the same rebuke.

richard mcenroe said...

"Should he resign to blog? Does a guy whose deep thought is to tell the Supreme Court to "stfu" have any thoughts worth that sacrifice?"

Hell, didn't he already write at least one State of the Union Address?

Gandydancer said...

"...To the average person, the result looks stupid and smells worse. To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception."

By "the average person" Kopf clearly means Dick Kopf. These opinions, which to me look stupid and smell worse, are obviously his. So the argument that he shouldn't blog "lest the system be harmed" is simply an argument that the populace should be kept ignorant lest too much knowledge make them restless.

There's also a question here of how "systems get harmed" might conflict with the thought (if any) behind "corporations are not persons", but I'll leave that for another time, except to quote the best short reply to Kopf's blog: "It is curious to see a sitting federal judge describe 1 USC §1[[The Dictionary Act]] as ‘legal mumbo jumbo’."