The Who, the Why and the Title of this Blog

The Who

Kopf, Richard George

E-Mail:  Hercfriends@gmail.com

Born 1946 in Toledo, OH

Federal Judicial Service:
Judge, U.S. District Court, District of Nebraska
Nominated by George H.W. Bush on April 7, 1992, to a seat vacated by Warren K. Urbom. Confirmed by the Senate on May 21, 1992, and received commission on May 26, 1992. Served as chief judge, 1999-2004. Assumed senior status on December 1, 2011.

U.S. Magistrate, U.S. District Court, District of Nebraska, 1987-1992

Education:
Kearney State College (now University of Nebraska at Kearney), B.A., 1969
University of Nebraska College of Law, J.D., 1972

Professional Career:
Law clerk, Hon. Donald Ross, U.S. Court of Appeals for the Eighth Circuit, 1972-1974
Private practice, Lexington, Nebraska, 1974-1986
Counsel, State of Nebraska, impeachment of Attorney General Paul Douglas, 1984

The Why

About seven years ago, a bright law student asked me about blogging and that exchange became part of a blog. See Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap,

The student asked me whether I would consider blogging. I answered this way: “If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.”

I am now on senior status, and with that change in status (plus advancing age) my reticence to blog has lessened.  I think I have something worth writing about.

I am very interested in the role of judges and particularly the role of federal trial judges.  So, that is what I will write about in this blog.

As an aside, even though I am a senior judge, I still have an active caseload. Thus, I must not comment upon pending or impending matters. I will strive hard to live up to that restriction.  Fair warning: nothing I write about in this blog should be taken as a comment upon those forbidden areas. 

The Title

I hope the title evokes an image of two poles.  On the north, we have the late great Ronald Dworkin’s all knowing judge, Hercules.  On the south, we have Chief Justice Roberts’ formulation of the judge as umpire.

I am interested in knowing (1) which pole is the better and (2) whether there is a longitude and latitude between those poles that locates the proper role of a federal trial judge.

Richard G. Kopf

E-Mail:  Hercfriends@gmail.com

34 responses

  1. Would you consider a third…pole? Without digging into the details of these two gentlemen’s formulations, and so based strictly on a layman’s understanding of the bare terms, it occurs to me that an “all-knowing judge” would feel entirely too free to amend the Constitution from the bench–akin to Justice Ruth Bader Ginsburg’s (among others) formulation of a “living Constitution,” which misses the fact that the heartbeat of the Constitution is its Article V and its circulatory system is We the People, who own this document, and not at all the judge who feels constrained to “creatively interpret” the Constitution in order to “update” it to modern times.

    Then there’s the “umpire.” This implies to me a referee between the two sides of a controversy, accepting the rules as they exist. Yet a Federal judge’s first task in any controversy, it seems to me, is to determine the legitimacy–the Constitutionality–of the laws being brought to the court by the two sides. This approaches, but carefully does not reach, an “all-knowing” state, but rather a knowing understanding of what the Constitution (and the laws proffered) actually say as opposed to what the judge or any of the litigants might wish it to say.

    I suggest a third pole in my tortured analogy, or perhaps a vertex to a triangle, with my view at the top…. My view of the judge’s role is a combination of the all-knowing and the umpire, but he stands beside both of them, rather than between them. He has to apply his knowledge of what the Constitution actually says, and perhaps terminate the case at that point. If the case can continue, then he has to determine the legitimacy of the law(s), and perhaps terminate the case at this point. If the case can continue, then he must apply the law as it is written, without alteration or “interpretation.”

    This sequence puts the judge out on the equator, or at the vertex of a triangle.

    Eric Hines

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  7. Judge Kopf,

    Notwithstanding “a third view” — as I noted at “Constitutionally Speaking? Does Retention Matter,” 75 Albany Law Review 1823 (2012), http://www.albanylawreview.org/issues/pages/article-information.aspx?volume=75&issue=4&page=1823 — in my opinion, Harvard Law Professor Randall Kennedy had it right when in deconstructing the realities of judging and how judges “make law,” he cited colleague Christopher Eisgruber’s trenchant observation about Chief Justice Roberts’ baseball analogy noting Eisgruber’s critique that Justice Roberts is “an odd sort of umpire” since the key pitches get consistently called the conservatives’ way.

    All the same, I applaud your own examination of the role of judges between the twin poles. Best wishes!

    - Mo

    • Dear Mo.,

      Professor Kennedy may be correct when it comes to the Supreme Court. The more interesting issue for me, and the direction of this blog, is to explore (the relatively unexplored) question of what role federal trial judge should play and what role they actually play.

      Unless a federal trial judge transparently answers the role definition question, and attempts to live by the results of that inquiry, the federal trial judge becomes a petty bureaucrat with enormous power who happened to get hit by the lightning strike of a Presidential appointment. Because federal trial courts are intentionally structured in our legal system to be subordinate to the courts of appeal and the Supreme Court, and because the federal courts writ large are decidedly undemocratic, the role definition issue has existential significance for federal trial judges.

      All the best.

      RGK

  8. That is awesome. The latitude and longitude and Hercules and the umpire as analogies. Then finding the role of the federal judge. My daughter is an attorney, she found your blog and sent it to me. She knows I am a constitutionalist and extremely interested in federal court decisions. Keep up the good work.

  9. Why would someone in your position say something as juvenile as “STFU” to the Supreme Court? My standard advice to people like you: “read more, write less.”

  10. I am now retired, but I practiced for thirty-five years in Courts throughout the country and ultimately appeared in the courts of more than sixteen different jurisdictions. That is offered simply to serve as a basis on which to judge the gravitas of this opinion. Judges are at the beginning, the middle and the end people – ordinary citizens who are rarely gifted intellects or sinless souls. When appointed, they assume an awesome responsibility that requires they subsume their egos, their pre-evidence opinions and any tendency toward simple expediency. Few ever really do that. The principal requirement is that of integrity. There is no judicial integrity in positing a theory that the Constitution grants a right of religion to the shareholders of a corporation – large small, close or distant.

  11. Every now and then, street vernacular is appropriate. I don’t doubt that ‘stfu’ gives certain people the vapors.

    The hysteria over the use of ‘stfu’ compared with the insanity of the claim that a corporation has religious beliefs, is curious. I do hope that those feeling ill over the use of ‘stfu’ recover their health.

  12. I wonder if His Honor has heard of the Judicial Code of Conduct. Would I believe in his impartiality in a future case of this nature, due to the public stake he has now taken? With due respect, I wouldn’t. This was not a good idea, in my opinion. Why not simply say anything? Of course, judge that wants to speak out can always retire first.

  13. In re STFU (I saw the “controversy” on CNN on my IPad):

    As someone who has had the (very) scary experience(s) of being perceived by a federal judge (or two) as (wholly unintentionally) disrespectful (when I was merely being sloppy re not enough time in the day to be perfect) vis-a-vis very powerful yet fragile egos (who would have preferred to be “dignified” through obeisance than challenged by vigorous intellect even in imperfect form), I empathize if you are going through a hard time.

    I write to you not as a brother-in-arms but rather a fellow human. I am not your brother-you are worlds above where I am now (or may ever be); and, I’m not in arms (on the contrary, most days I’m just tired). I write because I care when I see a good soul attacked (and perhaps hurting)-it just makes me sad.

    No matter how much power deserves to be transparent and spoken to directly even if contrarily (or even derogatorily-they can or should be able to take it), the often harsh retaliation from merely social or even political offense can sting. Frankly, no one knows how to retaliate better than a judge personally scorned.

    You may be a tough guy with a life appointment (and the marshalls at your command), but I sense the backlash still stings; thus, you are human.

    In all, however, it is better for all of us for power to be transparent and candid then to be perceived as in agreement through silence. Silent discontent is disturbing-especially when one has the platform and power to effect true change-as you do (or, if not, at least open communication).

    While you may be carrying a cross at the moment, know that you are not alone (and I am not some rogue hippie attorney hellbent on making enemies by being aloof and snarky offensive-just a small town federal practicioner with short hair and a conservative dress, who is just trying to survive by attempting to dot every I and cross every T so as not to offend Their Honors).

    In short, if you are feeling in the cross-hairs of discontent or backlash, know that there are those such as myself who find you to be a breath of fresh air-regardless whether I even agree with you (which I do re Hobby Lobby; which I don’t re SCOTUS taking less controversial cases): there is something inspirational and motivating about someone in power speaking unbridled personally believed truth to even greater power.

    Said differently, you could have said nothing and thus been perceived as coaligned, and, by doing so, been “safe”-you chose to speak out and open yourself up to attack: the road less traveled. Yes, there is and may be a price to pay; but, I imagine saying nothing is a personal price not worth it to you.

    You have a lifetime appointment, have had a distinguished career, and you get to be all 3 branches in one shot: make the law; interpret the law; and have the marshalls to execute the law-why not say what’s on your mind (if not you, who?).

    I wish someone like you would pat me on the back and tell me its going to be ok sometimes when my back’s against the wall-I don’t. But….I write to tell you that it will be ok (for what its worth from me).

    I don’t know you. But, I am better for you being around.

    Said simply, I hope you never STFU.

    Best wishes,

    -Matt

    P.S. Please keep my below (required) info confidential-I am not as brave as you.

  14. I noticed several years ago that the New Yorker magazine was printed words that decades ago were considered dirty. Your STFU and the New Yorker are both behind the times. George Carlin’s catelogue of seven dirty words has been extended beyond count. I would think a judge should be permitted to deploy ancient slang.

  15. I am not a judge, a lawyer or otherwise engaged in the profession of law. I am simply a 54-year-old man who was raised by New England parents who encouraged their children to read. When I was in my teens I began reading the “Supreme Court Reporter” with the same zeal as friends addicted to sporting news. Going backward in time by learning of precedent and tracing footnoted comments, Supreme Court decisions taught me that we live in a nation that can be at least partially ruled by sound reasoning when Congress or the states erred on the side of oppression. William Brennan became – and remains – one of my favorite writers of the 20th century.

    The spark of intelligence behind such landmark cases as Malloy v Hogan (self-incrimination), Green v. School Board of New Kent County (desegregation) and New York Times v. Sullivan (libel) was coupled with a vision of optimal freedom for American citizens. Alas, with Brennan and his peers now long gone, over time the Supreme Court has lost its spark and inclusive vision, and become a showcase of bellicose adherence to personal religious beliefs, false assertions of “strict constructionism” and inked insult to dissenting members and to precedent itself.

    I cringed when I read that a sitting judge had a blog, but have since come around. Why? Because I have lost confidence in the Supreme Court as a capable arbiter of dilemmas between citizens, and have grown weary of a press that seems almost entirely unable to report on the true content of court decisions. The court is now an arm of an ineffectual Congress and, as such, it behaves in ways suitable for politicians but entirely unbecoming of a body whose actions directly affect us all.

    We are adrift and prone to the winds of pugnacious hot air.

  16. Hey Judge,

    You are the perfect example of how the Judicial system has become even more corrupt than it was in the racist South. Your profession is now on par with “journalism”. As you may recall, the highest ideal of any journalists was once to report the events of the day without bias as perfectly as possible. After Watergate, the journalism major who is asked why they pursue the profession will say “to change the World.” In reality they do it to draw attention to themselves. The true, and honest reasons. Fame, attention. Your profession is right in line with that.

    Today’s judge is only concerned with propagating a wacko-leftist agenda and waving a “hey look at me” flag in everyone’s face while shoving their dick down our collective throat.

    Sir, GFY, go fuck yourself. I hope you drop the soap in the same prison you subject others to.

  17. Hobby Lobby is a U.S. Corporation, not a family business, so I agree with your basic assessment of the decision but am wondering why you would ‘go public’ in such an abrasive, insulting and foolish way. If your goal was to start a spirited conversation / debate you were successful, but at the same time you put the bull’s eye on your back.

  18. I am surprised by the hypocrisy of the media critics who can’t take a few swearwords when stated in the right place. After reading the Supremes’ decision I was wondering why only the women on the court, – and one man – could see the patent stupidity and destructiveness of the decision. How far from regular men and women in the street has the court gone? And can’t a person – even a judge – have an honest human reaction and be allowed to express it in a blog without having everybody jump on him?
    I feel more depressed by many men’s thunderous silence after the decision than by four appropriate letters. Finally, an inspiring human being, even if a federal judge, whose feeling reaction to a distressing decision was not held back. Congratulations to the judge, and thank you for a much needed expression of judicial temperament.

  19. Well I am not a lawyer so this may sound uneducated but it seems to me that the Supreme Court’s decision will come back to bite some in the &@$. Corporations are formed for personal protect of the indiviuals- by asking to be considered a “person” it would seem they have eleveated the protections those individuals have enjoyed behind the corporation

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