Although Hercules and the umpire is dead and buried, it has been suggested that I let those who enjoyed (or hated) H&U that I am writing about legal subjects at Fault Lines. I am privileged and honored to have that opportunity. See here.
Although Hercules and the umpire is dead and buried, it has been suggested that I let those who enjoyed (or hated) H&U that I am writing about legal subjects at Fault Lines. I am privileged and honored to have that opportunity. See here.
I am today pulling the plug on Hercules and the umpire. Let me explain.
First, I want to stress that I have not been asked to stop blogging by anyone including my Chief Judge, the Chief Judge of the Eighth Circuit, or anyone else up to and including big wigs in Washington. If anything, I have continually received encouragement to keep blogging, especially from my Chief Judge, Laurie Smith Camp.
Second, I want to stress that so far as I know I am not the subject of any disciplinary complaint. Even if I was, such a complaint would not discourage me from blogging.
Third, I am not pulling the plug because of any mental or emotional struggles or treatment. And, by the way, both my Chief Judge and the Clerk of our Court have long had full and complete access to all my medical and mental health records. With my cancer in remission and my renal problems solved, I am perfectly healthy. As far as cognition is concerned, I am no more goofy now than I was when I was appointed.
Fourth, I am not pulling the plug because of my post about Senator Cruz or because of any other blog posts that have been the subject of intense criticism. In that regard, no one in authority has suggested that I stop blogging because of errors or omissions I have made in previous blog posts.
Fifth, I am pulling the plug because I learned a couple of hours ago about a discussion held at a retreat for our employees. The retreat had to do with honesty in the workplace, especially when dealing with uncomfortable subjects. Chief Judge Smith Camp attended the meeting and was asked a question.
The question was this: Did the Chief Judge feel that Hercules and the umpire had become an embarrassment to our Court. She responded that she thought 95 percent of the posts were insightful, entertaining, well-written, and enlightening. Then she asked for a show of hands, inquiring how many of the employees felt the blog had become an embarrassment to our Court. The great majority raised their hands. The Chief then told them that she appreciated their candor, and that she would share with me their sentiments.
Chief Judge Smith Camp was as a good as her word. She shared the sentiments expressed at the retreat with me. She did this both by e-mail and by telephone. She did not ask me to stop blogging. On the contrary, she praised my efforts. I was the one who expressed the need to call an end to the blog. There is nothing more important to me than the United States District Court for the District of Nebraska. If I have lost the confidence of our employees through publishing the blog, then I have harmed the Court. I cannot tolerate that thought, and I have therefore decided to pull the plug. My decision is irrevocable.
Sixth, I have received a lot of help and support from people that I would not have met had it not been for the blog. Many have become my friends, although we have not had the opportunity to meet face to face. I want to thank all of these fine people, and will not attempt to list them all for fear I will forget someone. That said, the brilliant Scott Greenfield, author of Simple Justice, has been a true yet honest friend and a giver of great advice. While I have not consulted him about this decision, I must expressly thank him for his many past kindnesses and his especially wicked sense of humor.
Seventh, the blog will be archived and comments will close
seven days from today. at around 12:30 AM on July 15, 2015. [See update.] I will continue to pay the fees necessary to keep the blog on the net during the remainder of my life.
Some things are more important than others. To me, Hercules and the umpire was one of those important things.
In the future, I hope another federal trial judge will use this powerful medium to address judicial transparency and the role of the federal trial judge. Most particularly, I hope that the brave judge who accepts this difficult challenge will learn from my mistakes.
Update: Some of the comments have been very cruel and nasty. It is OK to attack me. I am old and tough to chew. It is not OK to attack Judge Smith Camp or the staff. As for the rest of the folks who commented, I am touched beyond description by your kindness. Thank you.
As soon as I sign off from this update, the comment period will end. All the best.
Fred C. Stevenson Research Professor
The George Washington University Law School
July 8, 2015 (late evening)
Dear Professor Kerr,
In your most recent post for the The Volokh Conspiracy entitled More on Judge Kopf: The Calabresi precedent, which I only became fully aware of this evening, you cite what you call the Calabresi precedent coming from the Second Circuit. I have now had the opportunity to carefully read the opinion.*
The decision of the Second Circuit is not, strictly speaking, “precedent,” and Judge Calabresi’s comments contained such statements as “In this case, like Mussolini, he [President Bush] has exercised extraordinary power” and “Bush’s reelection raised a ‘deeper structural issue’ that was ‘at stake’ in the forthcoming election.” Nevertheless, I have concluded that (1) the holding of the Calabresi opinion would likely be applied to me if an ethics complaint was filed in the Eighth Circuit; and (2) you are correct, based upon the holding of the Calabresi decision, that I violated Canon 5(A)(2) (“A judge should not . . . publicly endorse or oppose a candidate for public office.”)
Specifically, when I wrote that “Senator Ted Cruz is not fit to be President” and when I made related assertions of unfitness for office and the like in reference to Senator Cruz as a candidate for the Presidency, I crossed the line under the holding of the Calabresi opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges. Consequently, I apologize to you, Senator Cruz and everyone else for my error.
I wish to make clear, however, that I stand by my criticism of the Senator’s intemperate remarks about certain individual Justices, the Supreme Court and his proposal for judicial elections of Supreme Court Justices. I believe those criticisms are both fair and fairly within the provisions of Canon 4(A)(1) (“A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”).
Richard G. Kopf
Senior United States District Judge
*Prior to my term on the Judicial Conference Codes of Conduct Committee, I was generally aware of the controversy over Judge Calabresi’s remarks, but I had not carefully read the Second Circuit decision until this evening. That said, I do not offer this failure as an excuse.
THE SCOTUS MARRIAGE DECISION, IN HAIKU.
BY DANIELA LAPIDOUS*
– – – –
I support you all
No, really, I do, but this
Isn’t our problem.
“Happiness is not
the point of marriage, fools. It’s
BABIES,” he whispered.
“Liberty” – this word,
I do not think Locke means what
You think it means. Sigh.
You’re not a poet,
Kennedy. And by the way,
Kennedy’s majority decision:
Hark! Love is love, and
love is love is love is love.
It is so ordered.
*Published in Timothy McSweeney’s Internet Tendency, (last accessed July 8, 2015).
James W. Hewitt (Jim) is my very good friend. Indeed, he held my hand, and gave me solid advice when I went through the vetting process to become a federal district judge. Jim had served as a distinguished member of the American Bar Association’s Standing Committee on the Federal Judiciary. In fact, he served in that capacity during the confirmation hearings of Judge Robert Bork. See Mary Thornton, The ABA’s Judgments on Judges, Washington Post (September 25, 1987). I only disclose this relationship so the reader understands that my review of Jim’s recent book, which I will get to in a minute, may not be entirely objective. In short, I have enormous respect and affection for Jim.
That Jim took pity upon and helped a terrified 45-year-old federal Magistrate Judge become a federal District Judge is not the only reason Jim garners my respect and the respect of many others. Jim is a tall and big-boned man consistent with his football playing days at Hastings College. He has a voice that trial lawyers (which Jim once was) would kill for. He graduated from the University of Nebraska College of Law around 1956 and promptly became a legal luminary in Nebraska.
Jim was recognized as the Nebraska State Bar Foundation’s Outstanding Legal Educator. The award is given in recognition of significant contributions to the field of legal education by a legal educator or lawyer who serves in continuing legal education capacities. Having retired from the active practice of law, Hewitt taught American History and Constitutional Law at Nebraska Wesleyan University. Hewitt earned a master’s degree and Ph.D. in American Legal History after 35 plus years of a high pressure legal practice.
His Ph.D. dissertation, “Slipping Backward: The Nebraska Supreme Court 1938-1995,” was published as a book by the University of Nebraska Press, as a part of the Law in the American West Series. The book received rave reviews by historians and lawyers alike.* Did I mention that Jim was also President of the Nebraska Bar Association in his spare time? I must not forget to also add that Jim served as Chair of the American Bar Foundation’s fellows program.
I should note that Jim raises the most beautiful roses I have seen in many a year. In short, Jim is a man for all seasons. That is not an exaggeration.
All of this brings me to Jim’s fantastic new book, James W. Hewitt, In Cold Storage, Sex and Murder on the Plains, University of Nebraska Press (2015). I suppose I love this book, for among other reasons because I knew of this notorious case and, far more importantly, because I knew many of the participants. They ranged from the brilliant Lannie Roblee, a good old country boy of a Sheriff whose manner belied his intellect; the prosecutor, Fred Schroeder, a decent fellow committed to doing his best together with Paul Douglas, later Nebraska’s Attorney General. who, as the special prosecutor, was sent out from Lincoln to help Fred;** Dick Hove, the defense attorney (of sorts) from the big city of Kearney; and Judge Jack Hendrix, a careful and fair trial judge with whom I had the pleasure of practicing before. See here for an extreme example of a case I tried before Judge Hendrix–please concentrate on “Baby Jason.”
Not only did I know many of the participants, I have a keen sense of the place. I, too, have eaten in the basement of the church in Stockville, Nebraska (population about 25) where the ladies from Curtis, Nebraska come over on “court days” to serve meals to lawyers, witnesses, judges and juries in heaping family style lunches. Still further, I well remember the vastness and the isolation of the place, and particularly the remote lake where the bodies were dumped.
For you see, In Cold Storage tells of the murder and the grisly dismemberment of the parents of Kay Hein, a woman who had participated in a ménage à trois (French for “household of three”) gone deadly wrong. Harold and Ena Nokes were the other participants in the threesome.
Harold confessed–twice. Lonnie tricked him the first time. Harold was eligible for the death penalty, but he got life in prison. It is very likely that Judge Hendrix convinced the other judges on the three judge panel not to impose the death penalty.
For reasons that remain unclear, Ena Nokes was sentenced to only a few years in prison for unlawful disposal of the bodies. Out west, they tend to treat lightly those who dispose of litter in the wrong place.
It is not clear why the murders took place. Much of the violence that takes place out near where Central time almost becomes Mountain time has no rhyme nor reason. Apparently, the fact that Ms. Hein had called off her involvement in the trysts with the Nokeses led somehow to the death of her parents.
Over nearly a decade, Hewitt compiled every conceivable fact that could be unearthed. He is the only one ever to have interviewed Mr. Nokes in prison. He obtained confidential files from lawyers and law enforcement personnel. He had access to the tapes of the “bugs” in the home of the perpetrators. He talked to witnesses and those who were familiar with the place and the people. He did the hard work of an academically trained historian.
But what makes the book sing is the writing. The reader is patiently told of the facts with the skill of the best newspaper writer. We learn the texture and the feel of the place and the people. The official story is told, and then deconstructed with the scalpel of an experienced lawyer. Hewitt does not believe we will ever know what really happened. He is not happy with that uncertainty, but like historians and lawyers and newspaper types he tolerates uncertainty while remaining keenly skeptical of the official version. By the way, Hewitt has no doubt that the Nokeses were guilty. Hewitt believes, however, that there is far more to know.
For the details of the story, you will have to buy the book. It can be purchased online from the University of Nebraska Press or Amazon. If you are interested in a real life legal thriller, told in a highly accessible manner, you will happily pay the price for the book. Simply put, you don’t have to be a lawyer, a historian, a newspaperman or any other calling to be intrigued by Hewitt’s masterful prose and deep-dive research. I recommend the book without reservation.***
At 138 pages, the book is an easy one night read. Be aware, however, that as you close the book, turn off the lights, and speculate as Hewitt has speculated, you will no doubt be sure that the dead bolt is firmly in place.****
*For example, Peter Longo, former Chair of the Political Science Department at the University of Nebraska at Kearney who is both a lawyer and PhD, tells us that “Slipping Backward provides an excellent addition to the scholarship of state supreme courts and is the first major work dedicated to a state supreme court of the Great Plains.” Peter J. Longo, Western Historical Quarterly (2008-09-01).
**Ironically, I later represented Fred’s sister, together with my partner Ed Cook and my dear, now tragically departed, friend Wes Mues, in a personal injury case involving her husband. We settled for the most money of any personal injury settlement in Nebraska’s history at the time. Even more ironically, I later tried on behalf of the State of Nebraska the impeachment of Mr. Douglas.
***Mark Scherer, Chairman of the history department of the University of Nebraska at Omaha, a former practicing lawyer and a PhD in legal history, writes: “In the best tradition of Capote’s iconic In Cold Blood, James Hewitt presents a gruesome, bizarre, and tragic tale of sex, murder, and small town intrigue, told with the objective insight of an accomplished legal historian and the gripping narrative style of a novelist. . . . This is a book you should be prepared to complete in one setting. It is that gripping.” Mark Scherer, University Nebraska Press, Book Review of In Cold Storage.
**** Joan and I were privileged to review and comment upon an early draft of the manuscript. That Jim acknowledges our contribution in print together with a hand written note of thanks in our personal copy of the book is an example of a man who gives credit to others when in fact he deserves all of it himself.
Please read Professor Orin Kerr’s Blogging judge calls political candidate “unfit’ for office’, The Volokh Conspiracy, Washington Post (June 7, 2015) (arguing that I violated Canon 5 of the Code of Conduct for United States Judges by virtue of my prior post).
I am 68. A year before my birth, a Supreme Court Justice resigned. For all intents and purposes, the resignation was a non event as we learn from the Jackson List. How the world has changed!
For the Jackson List:
On Monday, June 18, 1945, the Supreme Court of the United States announced its final decisions of its term and began its summer recess.
That same afternoon, Justice Robert H. Jackson, almost eight weeks into juggling his Court work with his presidential assignment to serve as U.S. Chief of Counsel for the prosecution of Axis war criminals in the European Theater, left Washington National Airport on a military plane to Labrador (for refueling), then England, and fulltime work on what became his job as U.S. chief prosecutor at Nuremberg of Nazi war criminals.
Back in Washington, Justice Jackson was not the only Supreme Court Justice who had departed from Washington with something more than the ordinary characteristics of taking the Court’s summer recess.
Justice Owen J. Roberts also was gone. He was the Court’s senior Associate Justice, appointed by President Hoover in 1930. By 1945 if not sooner, Roberts had become unhappy on the Court. He also had turned age seventy that May and was eligible for a retirement pension.
On Monday, June 4, 1945, Justice Roberts was present on the Court bench and participated in announcing decisions.
He was absent on the next decision day, Monday, June 11th.
He was absent again on the final decision day, June 18th, missing the Court session that concluded with commencement of its summer recess.
Justice Roberts had, in early June, departed Washington for his true home, his farm in Chester Springs, Pennsylvania.
On Saturday, June 30th –seventy years ago today – Justice Roberts sent President Truman a letter of resignation.
Justice Roberts also wrote, longhand, this letter to Chief Justice Harlan Fiske Stone:
I am about to submit my resignation as Associate Justice to the President. I did not wish to do so without advising you. Hence this note.
I do not know when the White House will announce the matter, and I am sure you will hold the news confidential until that occurs.
I wish Mrs. Stone and you a good and restful summer. Mrs. Roberts sends her regards to both of you.
Justice Roberts’s decision remained a secret until Thursday, July 5th. At his press conference that afternoon, President Truman announced the decision by reading Justice Roberts’s letter to him and his letter of reply – click here.
Here is the extent of the public mention of the Justice’s retirement at a press conference held by President Truman shortly after the resignation and on July 5, 1945:
Now here is another letter from Chester Springs, Pennsylvania, dated June 30, 1945, addressed to the President [reading]: “As I have served as a member of the Supreme Court for more than fifteen years, and have attained the age of seventy years, I desire to avail myself of the provisions of Section 260 of the Judicial Code, as amended, (28 U.S. Code § 375),–“
Nobody but a Justice would write that. [Laughter]
“–and to resign my office as Associate Justice.
“Accordingly, I tender you my resignation, to take effect July 31, 1945.
“I am, Sir, with great respect, Sincerely yours, Owen J. Roberts”
[5.] “Dear Mr. Justice: I am indeed sorry that you have decided to retire from the Bench after your long service.
“The Supreme Court, in the period during which you have served as a member, has been called upon to pass upon some of the most important economic and social problems in the history of our country.
“As I told you this afternoon when I saw you and finally agreed to accept your resignation as of July 31, 1945, I do so only on your promise to continue to give your country the benefit of your sound judgment and advice as occasion arises.
“I extend to you the gratitude of the nation for the service you have rendered.”
Q. Mr. President, I notice he resigned. Is that something different from the retirement the other Justices have?
THE PRESIDENT. I think he intended to retire. I think that is the sense under the statute he cites. I think he intends to retire from the bench. At least, that’s how I took it.
Q. Have you picked a successor to Justice Roberts yet, sir?
THE PRESIDENT. I have not. I haven’t thought about a successor. I am ready for questions now, if you have any.
76. The President’s News Conference July 5, 1945, Harry S. Truman Library and Museum (last accessed July 7, 2015).
Indeed, how the world has changed. At least insofar as the Court is concerned, I do not believe it has changed for the better.
Perhaps unexpectedly, if you read Tweaking the Machinery of Death, Fault Lines, Mimesis Law (July 6,2015), by Christian Farias, you will find out why it may be extremely difficult to do away with the death penalty as a matter of judicial fiat given the text of the Constitution. It is most certainly an article that deserves your attention if you are concerned with the death penalty. It is well written, objective and does a great job of setting up the arguments that the pro death penalty Justices will be asserting and the challenges the con death penalty Justices will be forced to confront.
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.
Senator, and Presidential candidate, Ted Cruz has recently stated,
I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015) (“This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. . . . . Both decisions were judicial activism, plain and simple. Both were lawless.”).
Ted Cruz is a brilliant and well-educated man and former law clerk to Chief Justice Rehnquist. If he is seriously suggesting the following, and it unfortunately appears that he is serious, Cruz is demonstrably unfit to become President despite his resume:
[T]he Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
. . .
But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.
There are at least three reasons why this proposal is wacko.
First, Mr. Cruz’s attack on the Framers–for allegedly underestimating “the justices craving for legislative power” and over estimating the “Congress’s backbone to curb it”–reflects a “Ted Cruz knows best mentality.” It ignores the debate among the brilliant Founders regarding the power of the judiciary. That debate was held and a result was reached. For Cruz to propose that he alone knows better and he alone knows more than the Founders reflects an ego the size of Texas. If we truly cherish what went on in Philadelphia, then the momentary political machinations of a right-wing ideologue ought be rejected out of hand. History has proven, as I next discuss, that the lifetime tenure provision of the Constitution adopted by our Founders, after serious debate on the subject, is the best way to insure we have a Court that can check the political branches of the federal government, that we have a Court that can check the 50 states, and, when necessary to protect the rights of the minority, that we have a Court that can check the majority. A life tenured system of Justices is a brilliant and thoughtful method of balancing power in this federal republic. Ted Cruz should know better than to reject the wisdom of the Founders.
Second, while Cruz is enraged about the gay marriage and the ACA decisions he ignores what lifetime tenure has brought us over a much broader expanse of time. Blacks have been freed from segregated schools, Nixon was instructed that no President is above the law, and each person in Texas has the right to have his or her ballot counted equally because of the Court’s “one man/one vote” declaration. Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.
Finally, George Will, a thoughtful person with unquestioned conservative credentials, suggests that Ted Cruz has become “unhinged.” Will argues convincingly that judicial elections will make the Supreme Court more political rather than less political.
Will makes his persuasive argument this way:
Cruz’s idea is congruent with the 1912 proposal of another rambunctious Ted, former president Theodore Roosevelt. Running as a full-throated Progressive (against another progressive, Democrat Woodrow Wilson, and the conservative Republican president and future chief justice William Howard Taft), TR advocated not just the recall of judges but also “the review by the people” of “certain” judicial decisions. TR embraced the core progressive belief that the ideal of limited government and hence the reality of the separation of powers are anachronisms.
It is, therefore, especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court’s political behavior by turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court’s prestige and hence its power to stand athwart rampant executives and overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.
George F. Will, Some GOP candidates becoming unhinged over gay marriage ruling, Washington Post (July 1, 2015). (Emphasis added by Kopf.)
Mr. Cruz seeks to sacrifice the Supreme Court upon the altar of an extreme right-wing ideology. That makes him unsuited to become President.