On being a dummkopf

As my name implies (assuming you know a bit of German), I can be thick-headed. Dumb, if you will. My terminal stupidity broke out again last Spring, and this post is about my mistake. As I have said earlier, this blog allows me to own up to big blunders. Hopefully, such public admissions by a senior district judge serve an educational purpose for less experienced judges and others.  Or maybe I’m just a narcissist and a masochist. Anyway, here is the background.

A law student was terminated from the University of Nebraska College of Law. He sued claiming, among other things, that he was discharged because he subscribed to the Muslim faith and because he was an Arab. There was a fair amount of publicity surrounding the case. The defendants were the College of Law, various individuals at the law college, the Board of Regents, and the University of Nebraska.

I held a hearing on a request for a temporary restraining order. The parties adduced evidence and argument. I then denied the motion, and referred the case to Magistrate Judge Zwart for further progression. With that, I forgot about it as the excellent lawyers for both sides prepared to get the case ready for a jury trial.  In the interim, my son, Keller, and I were talking about the end of his post-doctoral fellowship in Australia and the possibility that he might come back the States. It is then that I made a bone-headed mistake by contacting a senior University administrator (who was not a named defendant) about my son’s job search.

Here is I how I described my error, and the subsequent recusal decision, in an order I issued soon after I awoke from my brain-dead slumber:

Following the institution of this lawsuit, a personal matter arose last week involving one of
my adult children and that matter causes me to recuse myself from this case. My son, a graduate
of the University of Nebraska, is completing his post-doctoral studies in Australia in the field of
biology. He is seeking positions with American universities. In that connection, last week, I wrote
an official of the University of Nebraska requesting help in my son’s job search.  Although my
motivation was innocent, I realized over the weekend that my contact with a party, while I was the judge assigned to this case, was improper. I apologize to the parties for my mistake.

IT IS ORDERED that I recuse myself from this case and the Clerk shall refer this matter to
the Chief Judge for reassignment.

AL-TURK v, UNIVERSITY OF NEBRASKA COLLEGE OF LAW, et. al, No. 8:13CV74 (D. Neb., April 8, 2013) (Filing no. 36.)

So, what is the lessons learned from this fiasco. While the life of a federal trial judge is chaotic, the judge must constantly be aware of what is on his or her plate. A good heart but an empty head is no excuse. Trial judges screw up all the time. Admit your mistakes and do so in honest terms. Move on. Old dogs must constantly relearn old tricks. Kopf is a dummkopf.

By the way, Keller stayed in Australia. His university got additional funding, the powers that be hired him to continue his research, and I pine over the continued inability to see my first grandson, Fletcher, more often. Oh, well.


4 responses

  1. It’s a crazy world. Let me give yoiu another example of how crazy it is.
    Yesterday, one of our judges signed an order giving a client 16 years credit on a 121 month sentence for time he was released due to incredible negligence by the government. An assistant US attorney on the case turned up a lot of the information of the government’s negligence and gave it to us and the judge. He also agreed to give the guy credit.
    This AUSA had nothing to do with the underlying mess ups. He just did the right and honorable thing.
    I would love to write the AG and the US attorney and tell them they have a bright, honorable guy working for them. But if I did that, he’d find himself transferred so he was going nothing but traffic tickets in magistrates court at Ft. Wainwright Alaska.
    I jump all over prosecutors who do the wrong thing all the time. Why can’t I say good things about one who did what he is supposed to to?

  2. Tom,

    Thank you for telling me about this case. I would like to think that most federal prosecutors would do the honorable and honest thing.

    All the best.


  3. Judge Kopf – I have never been a judge, so I don’t have first-hand experience with making a decision to recuse. I think your post is instructive on the issues of recusals. But more importantly, I think it shows your willingness to explain an important concern in litigation. As I understand what happened, you recused yourself on your own initiative. Also, it is my understanding that judges are not required to give an explanation as to why they recused themselves. Nevertheless, it seems that you gave a very honest explanation about the recusal. Then, you subjected yourself to letting the public know about this by including the discussion of the recusal issue in your blog (without getting into the merits of the case itself). I think that many litigants are frustrated when they think judges should recuse themselves and yet don’t recuse. Thus, I think this experience served to instruct lawyers and the public concerning what can be a complex situation for all involved. Your straightforward discussion about recusals is very much appreciated.

    As to your son, Keller, I hope that the opportunity for him in Australia will be beneficial to his career. I also hope that you find some way to see your grandson, Fletcher, more often.

    Elaine Mittleman

  4. Elaine,

    Thanks for your kind comments. Regarding whether federal judges should give reasons for recusal, I have always believed that federal judges should do so except in very rare cases. I have refused to give reasons for recusal where the reasons for my recusal came from secret proceedings in wiretap matters that I was prohibited from disclosing. Otherwise, counsel and the People ought to know why a federal judge is getting out of a case if only to make sure that the judge is not shirking his or her responsibility.

    All the best.


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