The Center for Public Integrity and the Sick Obsession with Caesar’s Wife

Pompeia

A group that has received funding from foundations created by Mr. George Soros, pompously named the Center for Public Integrity, has published another one of those reports about federal judges attending seminars funded by large corporations and conservative nonprofits. See Corporations, pro-business nonprofits foot bill for judicial seminars (March 28, 2013).

The report is interactive and allows the reader to search for judges by name, court, title of the seminar and location of the seminar.  It also lists the funding entities or persons who contributed to each of the seminars.

The Center got most of the data from public reports judges are required to make each year.  Those reports are available on each federal court’s web site, and they are kept for three years.

In 2009, I attended one of the “junkets” to Northwestern University and I am listed in the report as having done so.  I was reimbursed for my expenses which totaled less than $815 and that reimbursement was fully disclosed on my financial disclosure report.  While no one from the Center for Public Integrity called to ask why I attended, I would have been happy to disclose that I attended primarily because I wanted to hear Judge Posner speak and because I was interested in one of the topics dealing with the “New Science of  Judicial Behavior.”  As it turned out, the seminar was boring, and I left early.

Why am I writing this post?  I am deeply disturbed by the “Caesar’s wife” syndrome that the Center and other do-gooders are obsessed with when it comes to federal judges.  That is, the idea that judges are supposed to comport themselves as Julius Caesar demanded of his wife Pompeia.  In my view, this way of thinking is corrupt.  After all, Caesar was a vain jerk.  His decision to divorce his wife because his reputation was more important than the truth is a perfect example of the decadence that brought down Rome.

Since 1987, when I became a magistrate judge, I have elected not to vote and I have not even registered to vote.  I have withdrawn from all civic groups.  I have severed all connections with religious institutions like a church or synagogue or mosque.  I socialize virtually not at all.  I gave up my law license when I withdrew from membership in Nebraska’s integrated bar association.  My financial disclosure reports and recusal lists are posted on our court’s web site for all to see for free.  I have owned no stocks.  I could go on.**

Now, please put the Center for Public Integrity’s report of my attendance at the sleepy little seminar into the full context of my judicial life.  Far more importantly, do the same for each and every other federal judge listed in the report.  Crudely put, the authors of the Center’s report would not recognize judicial integrity if it bit them in the ass.

I urge those who are sincerely interested in the federal judiciary to ignore groups like the Center for Public Integrity when they publish tripe of the kind represented by the report.  Caesar was wrong to punish and impugn the integrity of his wife for the sake of his reputation.  In like manner, the Center for Public Integrity is wrong to promote an ideal that finds it roots in the decay of Rome.

RGK

*It is believed that the drawing of Pompeai was published by Guillaume Rouille (1518-1589).  In any event, the work is in the public domain because it was published (or registered with the U.S. Copyright Office) before January 1, 1923.

**These were my choices.  I do not recommend them to anyone else.

Kopf’s big blunder(s)

Mistake

Photo Credit:  De Maus Collection, Alexander Turnbull Library, National Library of New Zealand.

Earlier, I said that I would blog about some of my screw-ups.  I start that process with this post about a huge mistake that I made some three years after I became a federal trial judge.

This big blunder revolved about an impassioned opinion explaining that a departure was warranted in a drug case because the defendant was a combat veteran whose drug dealing was caused by the horrible things he had witnessed.  See United States v. Perry, No. 4:94CR3035, 1995 WL 137294 (D. Neb. 1995) (the Sentencing Guidelines are sufficiently flexible to take into account the indisputable impact of the cruelty of war on a very young man who suffered through horrific events as a crew chief-emergency medical technician on an Army air ambulance in the Persian Gulf War).

There was only one problem.  The defendant had appropriated the experience of another soldier, hoodwinking me and several others.  When fellow vets who knew the true story heard about my touchy-feely decision, they contacted the press to straighten things out.  Headlines, a blistering editorial, a scalding editorial cartoon (see below) and universal condemnation ensued.   Sadly,  all the criticism was justified.photo

While I later corrected the error by sentencing the defendant to the prison term called for under the Guidelines, the damage had already been done.  I had given aid and comfort to the nuts who attribute to federal judges every sin under the sun.  More importantly, for the majority of citizens who are well-motivated, I provided a solid reason to doubt my judgment, and, by extension, the judgment of my colleagues.  The saying “lower than a snake’s belly in a wagon rut” perfectly captures how I felt.

“OK,” you say.  “So what?”  Aside from the considerable enjoyment that comes from another public flogging, what value does this post have to the study of the role of federal trial judges?  “Quite a lot,” is my response.   What follows are several lessons learned the hard way that inform my views about the proper role of a federal trial judge.

First, the axiom that we learn by doing is especially (and painfully) true for federal trial judges.   I came to the position with experience as a law clerk to a federal appellate judge, thirteen years of practice (including service as a special counsel appointed to prosecute the impeachment of Nebraska’s Attorney General), and then five years as a United States Magistrate Judge.  Unanimously, the ABA committee that evaluates federal judicial nominees thought me “well-qualified.”   Lesson One:  There is no amount of experience that trains one for the job of a federal trial judge–absolutely nothing.  The judge must learn his or her role by doing.   Finding the proper role is very much a result of the slow process of accretion.

Secondly, there is a lot of blather about doing “justice.”   That is frequently code for giving someone a break not clearly called for by precedent or rule.  Lesson Two:  The more the federal trial judge strays from applying “law” to do “justice” the more likely it is that something unexpected will pop up thereby creating a good reason to question the legitimacy of a life-tenured and unelected judiciary.

Finally, I have reread what I wrote in the Perry case.  My analysis of the law, while approaching the outer limits, was correct.  My grievous error was credulity–believing what the defendant said.   Lesson Three:  Skepticism is an integral component of the role of the federal trial judge.  Empathy, while necessary, is overrated.

George Bernard Shaw is reputed to have said something like the following: “A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing.”  I certainly hope that is true for the blunder described above is merely the tip of my iceberg.

RGK

(The cartoon is reprinted pursuant to a “one-time use permission” granted by the Omaha World-Herald.  Thanks to the OWH and Michelle Gullett, intellectual property manager for the paper.)

Crack-addicted hookers and the ethereal

Moon.over.Rockies

Photo Credit:  ziazia by permission.

As I said in an earlier post, the trial courtroom is not mystical.  It is a real place where, all too frequently, the judge hears horrid accounts of awful things.

As I write about the role of federal trial judges, I cannot stress too much the importance of confronting and embracing this realism.  Understanding theory and doctrine are critical to the trial judge’s work, but seeing things for what they truly are and saying so is equally important.

The aging, crack-addicted black prostitute–convicted of being a minor player in a drug ring who hung herself in the cell adjacent to my courtroom shortly after I sentenced her–provides an example.  We federal trial judges must be concerned with the disparate impact that the crack laws have on young black men.  However, the deadly carnage that those young black men inflict upon the least among us is not ethereal.  It is a reality that cries out for expression in the starkest of terms.

To borrow a phrase from the elites (that I otherwise abhor), we should not fear to judge.  This idea–nothing more sophisticated than telling the uncomfortable truth–will be a recurrent theme in posts to come.

RGK

Low blows

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Photo credit:  Library of Congress. Bain News Service, publisher.  [French boxer Charles “Little Apache” Ledoux and Frank Fleming]

I have made my share of mistakes.  Some of them have been humdingers.  (In later posts, I intend to discuss a few of those screw-ups.)  As a result, I am no stranger to reversals.  While I wince, I also understand that it is the job of the superior judge to correct the errors of the inferior judge.  Most of the time, and this is particularly true at the Eighth Circuit, appellate judges are fair and respectful in their description and explanation of the trial judge’s mistaken views.  But that is not always the case.

Trial judges must learn to take low blows from their superiors.  It goes with the territory.  When that happens, the sensible course of action for the trial judge in most situations is to shut up and go about business as usual.  Take it on the chin and move on.

There is something to be said, however, for having a backbone.  That is, once in a blue moon, a counter punch is in order.  An upper cut may provide general deterrence.

In the first Carhart case, Justice Anthony M. Kennedy took a cheap shot.  In dissent, the Justice wrote:

The United States District Court in this case leaped to prevent the law from being enforced, granting an injunction before it was applied or interpreted by Nebraska. . . . In so doing, the court excluded from the abortion debate not just the Nebraska legislative branch but the State’s executive and judiciary as well. The law was enjoined before the chief law enforcement officer of the State, its Attorney General, had any opportunity to interpret it. The federal court then ignored the representations made by that officer during this litigation.  . . .

Stenberg v. Carhart, 530 U.S. 914, 978-979 (2000) (citations omitted).

Giving due allowance for Justice Kennedy’s evident anger at getting outwitted by his colleagues in Casey,  the “United States District Court” did not do any of the things that Justice Kennedy ranted about in his dissent.  Even a cursory look at the record would have shown that the Justice’s statements were untrue.  Several examples are illustrative.

Instead of granting a temporary restraining order without hearing from the other side (as is the practice in many federal courts), I heard from Nebraska.  I also held a preliminary injunction hearing and then a trial where everything the parties wanted me to consider was considered.  I “ignored” nothing.  As for considering the views of the three branches of state government, the Nebraska Attorney General was a party to the litigation as was the head of the relevant state executive department that was tasked with administering the law.  No party asked me to certify any questions to the Nebraska Supreme Court to obtain a ruling on the meaning of the challenged statutes.  Perhaps Justice Kennedy did not know it, but the Nebraska Supreme Court typically refuses to answer certified questions posed by federal courts.  And that is particularly true where the facts are in dispute.  Still further, I asked the parties whether they wanted me to appoint an independent expert so I would get an objective assessment of the medical issues.  Both sides declined.  Over Plaintiff’s objection,  the ruling was “as applied” to Dr. Carhart only.  In short, I did not “leap” to prevent the law from being enforced and any fair reading of the record would have made that plain.

More than 12 years have passed since Justice Kennedy wrote the words I highlight now. They still sting.  Although the assertion may seem dubious and even laughable, this post is not primarily about me.  I am a senior judge and I will be gone soon.  Justice Kennedy is no spring chicken either.

I am more concerned with the future and the implicit but critical social compact that binds judges in the same system together when trying to fulfill a common purpose.  If, in this cynical age, federal trial judges are to faithfully perform the difficult and sometimes unpopular roles assigned to them by their superiors, it is not too much to expect that they will be treated with more fairness and respect than Justice Kennedy displayed in his vitriolic dissent.*

*I am not the first person to describe that dissent as vitriolic.  See Jeffrey Toobin, Swing Shift, p. 6, New Yorker (September 12, 2005) (archived).

RGK

The Judicial Toilet

The photo shown below got me thinking about toilets and my role as a judge.  In addition to incessant fawning (that never gets old), one of the perks of becoming a federal judge is that you generally get your own toilet.  Until I took senior status, I proudly claimed my own toilet as one of the  finer trappings of the judicial role.  But, now, that has all changed.

The practice in our little courthouse is that when a judge takes senior status, the old judge moves from his former chambers to make room for the new judge.   When our wonderful new colleague John Gerrard joined us, I moved just like Warren Urbom moved when I became an active district judge.

With one exception, my new chambers are perfectly fine.  Since I practiced law for 13 years in an office without windows, virtually anything is better than the dump I had while in the law biz.

There is a big problem however.  My new digs don’t have a toilet.  I have to walk three steps into the corridor to get to a bathroom and that bathroom is also used by court staff and jurors.  Ick!  Ick!  Ick!

Communing with commoners while in the commode is probably good for the soul.  It does not, however, burnish my self perception as a big cheese.*   Just say’n.

*I am not the only big cheese with toilet and self perception issues.  “I just realized my name is an anagram for ‘toilets'” — T.S. Eliot, on his deathbed.

 RGK

Photo credit:  Two Roses’ photostream.                                                                    Used pursuant to a Creative Commons License, http://creativecommons.org/licenses/by/2.0/deed.en

toilet2

No Rookies: the inestimable value of career law clerks

Attribution:  beckstei's photostream.  Creative Commons License.  http://creativecommons.org/licenses/by/2.0/deed.ent

In the narrow corridors behind the courtrooms lurk the law clerks (lawyers) for the federal trial judge.  If the judge is lucky, very lucky, the judge has been able to hire career law clerks–highly educated and experienced men and women who will remain with the judge through most of his or her time on the bench.  This post is a tribute to those career law clerks.

First things first.  For a very funny, extremely well-written and wonderfully researched law review article about law clerks, please read Parker B. Potter’s Law Clerks Gone Wild.  Written by a career law clerk for a federal trial judge, Mr. Potter shows us how to write legal stuff that is both entertaining and insightful.  Mr. Potter concludes his tour de force this way:

Commentators have had plenty to say about the deleterious effects  of the rise of the clerkigentsia.  But, based on my research, the really  scary law clerks are entirely fictional. Law-clerk conduct that threatens  the basic integrity of the American legal system is all but absent from the  pages of the Federal Reporter and the Federal Supplement, and can be found only on the fiction shelf, . . . . That might be a small comfort, but it’s nothing to sneeze at in a day and age when integrity can sometimes seem in short supply in both the public and private sectors.

Parker B. Potter, Jr., Law Clerks Gone Wild, 34 Seattle U. L. Rev. 173, 232 (2010).

Second, long ago, I was a law clerk.  For almost two years, I served a judge on the United States Court of Appeals for the Eighth Circuit.  Fresh out of law school, I was young and dumb.  From my clerkship, I learned that young lawyers are not worth very much to the judge until just about the time the clerk leaves to go out into the world.

Third, when I became a federal trial judge, I decided to hire only career clerks to fill the two clerkship positions that each federal trial judge is allotted.  Fortunately, I got two very good ones.  Jan and Jim, my career clerks, possess more than 50 years of legal experience.  Both did extremely well in law school.  One was editor-in- chief of her law review.  Both clerked on our state supreme court.  One spent time as an assistant state attorney general, and the other became a partner and litigator in a highly respected firm.

Fourth, I decided on career law clerks because of how I viewed my primary task as a trial judge.  I have always believed that my primary job as a trial judge was to make decisions as fast I could do so.  Since that has always been my orientation, I knew that I wanted law clerks who could help me accomplish that task with a minimum of hand holding and training.   I needed seasoned lawyers to rely upon.  I did not and do not have time to deal with the young and the dumb (as I was some 40 plus years ago).

For those who say that judges have an obligation to train fledgling lawyers and hiring recent law graduates as short term clerks meshes with that training obligation, I say nuts.   Our job, at least at the trial level, is to be judges and not something else.

For those who say career law clerks have too much power, I say nuts (times two).   A judge can have valued career law clerks without ceding to those clerks the judge’s authority as a judge.  In no other business or profession would we make an argument that the decision maker ought to be helped by the inexperienced because the decision maker is too foolish or weak to make his or her own decisions if served by an experienced adviser.  Bluntly put, such an argument is rubbish.

Fifth, in 2007, driven by budgetary concerns, the Judicial Conference of the United States limited federal trial judges to one career law clerk plus one “term” clerk.  (Thankfully, Jan and Jim are grandfathered.)  Moreover, any new “term” clerk is limited to not more than four years of service.  I understand the budgetary concerns that drove that decision.  Respectfully, however,  I believe the decision was short sighted and remains so today.

It would have been far better to have allocated a sum certain to each judge with the allowance that the judge could use the money to hire his or her staff on such terms as the judge thought best so long as the judge did not break the budget.  Instead, newer judges will be forced to get along with rookies, and that is a real shame.  Perhaps the Judicial Conference will reconsider, but I am not hopeful given the sequester and related drama that is now unfolding at the center of the universe that we know as Washington, D.C.*

In summary, I could not get along without the skills and hard work of Jan and Jim, my career law clerks.  They make a middling judge like me better.

*The judiciary’s budget is a very small part — substantially less than one percent — of the entire federal budget.  In the scheme of things, we are not even a rounding error.  Yet Congress seems to have no concern about gutting the third branch of government by using the budgetary process to drain the life blood of the judiciary–our personnel.   It is a damn shame that the politicians have so little regard for a coequal branch of government.  But even more frightening, if this sequester and debt-ceiling nonsense continues, Congress will get exactly what it has paid for–a third-rate judiciary for a third-rate country.  That fear is not an exaggeration.

RGK

Photo credit:  beckstei’s photostream. Creative Commons License, http://creativecommons.org/licenses/by/2.0/deed.en

“Partial-Birth Abortion” litigation: An example of the problem of an uncertain role definition for federal trial judges

Initially, three things need to be plain:

(1) I do not write to take a substantive position one way or another on abortion regulation by the state or federal government.

(2) I intend no criticism of the individual justices.  Moreover, I intend no substantive criticism of the Supreme Court’s abortion jurisprudence.

(3) In the fall of 2011, I recused myself from handling any more civil cases involving the regulation of abortion.  See General Order No. 2011-10 (D. Neb.) (Kopf, J., recusing and explaining basis for recusal),

Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court.  Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007).

Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second.  To say that I was perplexed is an understatement.  It is that perplexity that prompts this post.

At the heart of abortion litigation is the Supreme Court’s “undue burden” standard.   See Planned Parenthood v. Casey, 505 U.S. 833, 845-46, 877, 879 (1992).  The Supreme Court’s test asks whether, prior to viability, the regulation unduly burdens a woman’s decision to terminate her pregnancy.  According to the Court, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden.  Assume that as a trial judge I am only interested in knowing how to understand and then apply the “undue burden” standard.  Assume further that I approach that task with no conscious bias.   How do I go about my task?

I could and should use precedent to try to parse the meaning of “undue burden.”   See Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games–A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11 (2002).  But what if the intellectual giants of the lower federal courts can’t agree on what the words mean.  See, e.g.Hope Clinic v. Ryan, 195 F.3d 857, 861, 876 (7th Cir. 1999), cert. granted and judgment vacated by 530 U.S. 914 (2000) (Judge Easterbrook wrote the opinion upholding efforts to ban the practice and Judge Posner wrote a stinging dissent).  When that happens, the federal trial judge is in a real pickle.

Now, this is not a “poor me” lament.  I get paid the same whether my decisions are affirmed or reversed.   Moreover, you can’t become or long survive as a federal trial judge without a strong ego.  (Insert the snark of your choice!)   The law is necessarily ambiguous.  It is ever-changing.   Blah, blah, blah.

So, why do I write this post?   Intending no effrontery, I urge the justices to write their opinions with the role of the federal trial judge more keenly in mind because it is in everyone’s interest to do so.  And, I offer what to many may seem a simple-minded way of going about doing so.

When writing opinions, the justices would do well to ask:   In subsequent cases, is the federal trial judge to behave more like the Herculean judge or more like the judge-as-umpire when applying our decision?  Of course, the more ambiguous the role definition the less likely it is that the federal trial judge will get it right.   Everyone’s interests are served by providing greater precision.

If the justices want to be more explicit about role definitions for trial judges, then, and as odd as it may seem, they might also try writing jury instructions after reading their opinions and before they are published.  (To be clear, I know that juries typically have no role in abortion cases.)   We communicate to lay people all sorts of tricky legal stuff in jury instructions.   We define conspiracies and motivating factors .  In so doing, our language sometimes gives juries broad latitude and other times very little latitude.  While writing jury instructions may seem pedestrian, I have often found that you cannot fully understand the substantive law until you can put it into jury instructions.  The private and in-chambers exercise of writing jury instructions as a test for opinion clarity would serve to focus the justices on the important work of assigning more precise role definitions for federal trial judges.

I appreciate that the justices have many tasks to accomplish when writing opinions and many of those tasks are very difficult and not apparent to the rest of us.   See, e.g., Jeffrey Toobin, The Nine, pp.  48-59 (Doubleday 2007) (discussing the interplay between the justices that resulted in the Casey opinion and the “undue burden” test).   Nonetheless, providing the federal trial judge with a clear role definition ought to be at the forefront.*

RGK

*Until the appointment of Justice Sotomayor in  2009, no justice has had experience as a federal trial judge since Justice Whittaker ended his tenure in 1962.

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