As the stomach turns and the Congress dithers . . .

As the stomach turns* and the Congress dithers, every federal judge in the nation today received instructions from the Administrative Office of the United States Courts on measures that should be taken in the event of a government shutdown. As I previously indicated, I have a complex 12-day criminal jury trial scheduled to start on October 2, 2013, one day after the shut down would start. What a train wreck!**


*Fittingly, “as the stomach turns” began as the title for a parody of TV soap operas.

**For example, I look forward to telling jurors that they will get paid, we just don’t have any idea when.

16 responses

  1. My favorite quote of the week — from a fellow member of the House of Representatives: “Thank God he (Ted Cruz) wasn’t fighting at the Alamo.”

  2. Judge Kopf,

    What would happen if the criminal defendant just refused to appear at his trial? He simply waived his right to be there, to confront witnesses, or put on a defense.

    This has been a rather forseeable issue since three years ago. When crazy defendants do the above to their PDs, many courts are not very forgiving and proceed accordingly. I know it sounds harsh, but sometimes AUSAs should have to pay for the misdeeds and insanity of their client.

    Relatedly with the sequester, it’s interesting how the DOJ has kept many people onboard whilst PDs are having to let people go left and right. Right now, it looks like the shoe’s on the other foot a little bit.

  3. All that’s necessary is for the Democrats to stop being obstructionist and pass the bill before them that funds the government through mid-December.

    Eric Hines

  4. Josh,

    I have two brief, not well thought out, points. First, at least directly, it is the Congress and not the Executive that is at fault. So, “punishing” the Executive (and the public represented by the Executive) just doesn’t seem right. Second, I am not big on empty gestures, and I doubt an outright dismissal would stand up to an appeal. All the best.


  5. Judge Kopf,

    Thank you for your reply. The distinction you draw had not necessarily occurred to me. I was envisioning political ads accusing sitting congressmen of taking actions that resulted in their being “soft on criminals” with their ridiculous behavior, inadequate funding of the judiciary, and essentially playing chicken with the validity of the Treasury’s bonds.

    And I wouldn’t call it “punishing” the Executive; I’d refer back to Mr. Justice Holmes’s comment: “I always say… that if my fellow citizens want to go to Hell I will help them. It’s my job.”

  6. Josh,

    As for Holmes, the older I get the wiser he becomes. The reason that legal conservatives and legal liberals dislike Holmes so much is that Holmes consistently punctured both of their diametrically opposed certitudes about the law. The older I get the less certain I am about anything, most particularly the law. In that respect, Holmes is also a comfort.

    You ended with one of my favorite quotes of Holmes. Here’s another: ““I happen to prefer champagne to ditchwater, but there is no reason to suppose that the cosmos does.”

    Hoping to piss off both Teddy Cruz and Barry Obama, if I could convey one message to them, it would be that “its all relative” despite what they thought they learned while thinking big thoughts and editing the Harvard Law Review.

    Thanks for writing. Take care.


  7. Eric,

    No argument from me. But, I don’t believe the public is ever served when the Congress fails to perform its most basic Constitutional duty and that is to enact a budget.

    All the best.


  8. I agree. But when you’re making an argument on principle–as some from both parties are–it gets difficult.

    How does an honest man compromise his principles?

    Eric Hines

  9. Eric,

    An honest man never compromises his principles except, perhaps, to save lives.

    With very rare exception, compromise does not require one to give up his principles. Let’s say that one has a principled objection to Obamacare that is rooted in the Constitution and let’s say that person serves in the Senate and let’s say that this person graduated from Harvard Law School and has been described as being “off the chart brilliant” by a prominent liberal law professor at Harvard, and let’s say that same person was a law clerk to a Supreme Court Justice. Faced with a budget bill that would fund Obamacare, that person could vote against the bill while preserving his principles, but he need not obstruct his colleagues from exercising their contrary principled positions in order to be true to his principles, particularly when he knows there is virtually no chance that his colleagues will agree with him.

    All the best.


  10. Much of that, Sir, is your strawman; you have the responsibility of defending it.

    But let’s expand the rest of your tale a bit and say that there is a body of Congressmen who agree with the principled objection to Obamacare that their votes are sufficient, in the aggregate, to block a bill that funds Obamacare. Must they change their votes to go along?

    Why are the members of the other party not similarly enjoined?

    In the particular case, let’s review the bidding. The House passed a bill that funds the government for long enough for negotiations to proceed. It also withholds funding for Obamacare. What is the Senate’s counteroffer? “Do it our way.” What is President Obama’s? “No.”

    With “two-thirds” of the government refusing to negotiate, much less compromise, what are a principled group of men to do?

    With regard to your opening statement, the honest man who is acting to save lives is compromising no principle; he’s moving to uphold the one principle from which all others flow–the right to life.

    Eric Hines

  11. Indeed, the refusal to negotiate is getting ever more disingenuous: “It’s the law. Get over it.”

    As though a law is sacrosanct and can never be altered or withdrawn. Yet if that were the case, the Democratic Party’s Jim Crow Laws still would be the law of the land. No precedents could be overturned, so Plessy still would be the law of the land. Woodrow Wilson’s segregation policies–for the protection of the black man–still would be in effect. Etc.

    Eric Hines

  12. Eric,

    You asked: “How does an honest man compromise his principles?” I answered that question.

    Now, you wish to change the ground upon which you would like to do battle and inject something about the collective judgment of folks in two different legislative bodies. You huff about my “strawman.” You are “moving the goal post,” is my equally huffy rejoinder.

    Nicely played, however. All the best.


  13. Blaming one political party over the other in this situation is like saying that the black spy in Mad Magazine’s “Spy vs. Spy” comic strip is blameless and that the white one is the cause all the characters’ troubles.

    I am sure it has been noted elsewhere but I thought Senator Cruz’s decision to read “Green Eggs and Ham” during his faux filibuster was an inspired choice. A guy implacably opposed to implementing Obamacare read aloud from a book about a guy implacably opposed to eating a food. I wonder if Senator Cruz is worried that the ending to Dr. Seuess’s book is prophetic.

  14. Adam,


    I don’t know why, but visual images evoked by your delightful comment and the doings in Washington reminded me of The Rocky and Bullwinkle Show and these unforgettable opening words:

    A thunder of jets and an open sky,
    A streak of gray and a cheerful “Hi!”
    A loop, a whirl, a vertical climb
    And once again you know it’s time
    For Rocky and his friends!

    I then tried to envision who in the House or Senate would be best suited to playing, Rocket “Rockey” J. Squirrel, Bullwinkle J. Moose, Boris Badenov, Natasha Fatale, Dudley Do-Right, Mr. Peabody and his pet boy Sherman. I don’t know why, but I think my whimsy has something to do with my age and my increasingly intense desire to enter the WABAC machine.

    All the best.


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