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

8 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

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