07 July 2015

Judging the Judge

In reaction to King v. Burwell (SCOTUScare previously known as Obamacare) and Obergefell v. Hodges (which imposed Same Sex Marriage through out the US) by the US Supreme Court, Senator Ted Cruz offered a modest proposal to remedy judicial activism without recourse--judicial retention elections.


Richard Kopf, a US District Court Judge for the District of Nebraska and publisher of the blog Hercules and the Umpire: The Role of the Federal Trial Judge, wrote a piece which scathed Senator Cruz and his "modest proposal".

Judge Richard Kopf reacts to Senator Cruz on Judicial Elections

Kopf's piece was provocative and engaging for a policy wonk.  However, an article which Judge Kopft titled:"Senator Ted Cruz is not fit to be President" seems to go beyond responding to a policy proposal and directly into the political field.

One does not have to slog through sometime like Judge Kopf's 474 page opinion in Carhart  et ali. v. Ashcroft (2004) which struck down Partial Birth Abortion bans to read Canon 5(A)(2) of the Code of Conduct for United States Judges which states: "A judge should not . . . make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office."  Even the hoi polloi without law degrees can understand that a article like "Senator Ted Cruz is not fit to be President" falls under Canon 5(A)(2).

This illustrates Senator Cruz's point about checks on the judiciary.  In a Congress which can not muster 60 votes to block an Attorney General like Loretta Lynch who vowed not to follow certain lawbreaking by the Obama Administration (such as on immigration), impeachment is unlikely.  So there are black robed politicians who can participate in the political process and even legislate from the bench without recourse by "We the People". 

It could be argued that  some slack can be cut for  Kopf as the 68 year old Judge  assumed Senior Status in December, 2011.  However, Kopf's public opposition of a candidate for public office seems to be a clear violation of the Code of Conduct for United States Judges.  As a senior status judge, Kopf receives full salary with a reduced case load.  Hence, a senior status is not an honorific emeritus title. So a compromised jurist is still sitting on the bench, unless Judge Kopf does the honorable thing and resigns.

As people become more frustrated with judicial tyranny, reformers may find ways to remedy usurpations of the Constitution.  While it is dubious if judicial retention elections would work on a federal level, Judge Kopf's case epitomizes that the system is broken and the rule of law is unreliable as things stand.

UPDATE 07/09/2015

 Judge Kopf offered a half hearted apology for his "Ted Cruz is unfit to be President" piece.  In a letter to Professor Orin Kerr (also published on Judge Kopf's blog)  Judge Kopf acknowledged the analysis by The The Volokh Conspiracy on the  Code of Judicial Ethics Canon (5)(A)(2). However, Kopf insisted that a Second Circuit ruling in Calabresi was not strictly speaking  precedent in in the District of Nebraska. Still Kopf anticipated that the same standard might be applied in his Eighth Circuit.  So, Kopf wrote:  " Consequently, apologize to you, Senator Cruz and everyone else for my error."

Yet rather than have to good grace to admit an error and be gone, Judge Kopf pressed his point about judicial elections of Supreme Court Justices, insisting that such commentary fell under Code of Judicial Ethics (4)(A)(1).   Some apology. I was wrong for going too far but I'll still stand by my political pontifications.

Violators of civil infractions do not get to just say "My bad" and be done.  While an apology is appreciated, it is insufficient. Judge Kopf demonstrated that he does not (or no longer) exercises judicial temperament to have violated such a basic tenant of the profession.  If there were any justice, Judge Kopf would resign his senior status and no longer preside from the bench.  He seems to enjoy publishing.  May he continue to opine on Hercules and the Umpire and enjoy his retirement since he has trouble operating under judicial ethics.

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