For now, just read, we’ll talk later (hint, could Vince be right?)

First, please read this article from Sunday’s Atlanta Journal Constitution regarding employment litigation in the Northern District of Georgia and the fact that almost all such cases get pitched at the summary judgment stage. Now, read the empirical study that forms the predicate for the study. The study is on the Social Science Research Network. You can download it easily and for free. Don’t worry,the study consists mostly of tables. It is a quick read.

After you have read the article and the study, give me your thoughts. I will add mine tomorrow. I end with only this question: “Is Vince right?”


Guest post: On precedent

Ken is a former Big 8 CPA “with a master’s in taxation who made the damn-fool mistake of going to law school,” so he says. He is now retired. He is also a marvelous writer and a good thinker. Graciously, Ken has allowed me to post an e-mail he sent me recently. That guest post in a moment, but first a brief introduction.

Ken writes about precedent and the late great Richard Arnold. For those of you who didn’t know Richard, you are the poorer for it. Richard was an intellectual giant, a true gentle man and in my opinion the best judge never to have made it to the Supreme Court. I really mean that.

Jeffrey Toobin wrote in “The Nine” (at p. 93 (the link takes you to p. 90, scroll down) of President “Clinton … weeping when he” told Arnold “he wasn’t going to appoint him” because of Arnold’s health. Richard served on the Eighth Circuit Court of Appeals until his untimely death. He died when he was my age now.

Arnold was not a fan of unpublished opinions. He wrote in Anastasoff v. United States that unpublished opinions were still precedent that had to be relied upon and followed by other judges. That opinion launched a huge debate. Ironically, however, that opinion did not become precedent because as Richard, himself, subsequently wrote, in an en banc decision, the dispute had been mooted. So, that is the context for Ken’s detailed, thoughtful and provocative guest post:

There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice.
                                                                   —Senior Judge R. J. Aldisert (CA-3)[1]
Dear Judge Kopf:
      I became aware of your blog on account of your stance regarding the staggering notion that, whereas the congressional gym was deemed as “essential,” that most judicial functions were not.  Mindful as I am of Chief Justice Marshall’s timeless admonition that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws when ever he receives an injury [and one] of the first duties of government is to afford that protection,”Marbury v. Madison, 5 U.S. 137, 163 (1803), to even state the case is to refute it.  It is rare for a sitting judge to speak out on issues of the day, and unfortunately so.  I commend you for it.
     Reading further, I came across your fulsome praise for Judge Glasser, raising a more distressing proposition: intellectual honesty in judging is so laudable and notable because it is so rare.  More to the point, this collective lack of intellectual honesty on the bench has reached the point where the Bill of Rights has literally become null and void for lack of meaningful enforce ment. Specifically, I would like to ask you about Judge Arnold’s famous opinion in Anastasoff, the intellectually dishonest manner in which it was withdrawn, and the logical ramifications of its having been withdrawn so irregularly.[2]  (As I have no business within the borders of your District, there should be no conflict issues.)  While a proper foundation must of course be laid, my question to you is straightforward:
What is left of the Bill of Rights if judges can disregard precedent with impunity?
      As you might recall, Anastasoff was the opinion that launched a hundred law review articles, holding that every decision of an appellate court must have binding precedential effect.  Despite the fact that a subsequent settlement between parties has never invalidated a published opinion before, Judge Arnold was forced by his colleagues to vacate his opinion en banc, and in so doing, our power-besotted judiciary has staged a “coup d’êtat.”[3] Trial courts are now free to deposit the United States Reports in the round file, safe in the knowledge that their brethren upstairs will be inclined to ignore their indiscretions.  Power minus accountability equals tyranny.
      It is axiomatic that if a citizen enjoys a right, he must “of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” Ashby v. White [1703] 92 Eng.Rep. 126, 136 (H.C.). Therefore, in the determination of what remedies I might have at my disposal for unlawful invasions of rights, a court must, by necessity, determine what “rights” I have left, for to “take away all remedy for the enforcement of a right is to take away the right itself.” Poindex ter v. Greenhow, 114 U.S. 270, 303 (1884).  If a trial judge can willfully disregard “binding” precedent with impunity—truth be told, appellate panels rarely even bother to read the opinions they issue, to say nothing of the actual briefs[4]—“law” becomes whatever the trial judge says it is on that particular day.  The brunt of this judicial triage is borne by pro se civil rights litigants, often forced by brutal financial necessity[5] to argue their own cases.  As Senior Judge John L. Kane of the District of Colorado candidly confessed, “all pro se cases, not just civil rights cases, are treated shabbily and superficially by our courts, both bench and bar.”[6]  
     A paradigmatic example of pervasive judicial sloth is Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn). (dismissed for lack of jurisdiction “with prejudice“); cf., Ex parte McCardle, 74 U.S. 506, 514 (1869).  Former Judge Michael McConnell, who taught law at both Harvard and Stanford while sitting on that Court,[7] was responsible for that bloody juridical abortion. And the problem is hardly unique to that Circuit. Federal circuit courts are now de facto certiorari courts,[8] wherein the “review” of appeals filed by disfavored litigants routinely take less than ten minutes.[9]  
Whenever a judge can “create an underground body of law good for one place and time only,” Anastasoff,223 F.3d at 904, it literally ceases to be law.  When a judge of an appellate court can sit in judgment of a matter in which he is a defendant in tort under a theory of law that has been recognized as viable in a sister Circuit and none of his colleagues even raises so much as an eye brow, cf. e.g., Tumey v. Ohio, 273 U.S. 510, 523 (1927); Dr. Bonham’s Case [1610], 8 Co. Rep. 107a (K.B.), one is left to wonder as to why we have any need for “professional” judges at all.  If the United States Reports barely qualifies as even a polite suggestion, one is left to wonder what is left of the rule of law.
     In judge-speak, “we have to follow precedent” translates into “we really, really, really want to follow this precedent, because it gets us to the outcome we want.”  Judges routinely take indecent liberties with both facts and precedent, in an often-transparent effort to conceal the fact that they are not so much interpreting the law as they are writing it to suit their personal preferences, “con stantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent”—a process Judge Posner acerbically characterized as “fig-leafing.” Richard A. Posner, How Judges Think 144, 350 (Harv. U. Press 2008).[10]  
     This state of affairs, in turn, implicates Justice Scalia’s acid test for a judicial ruling: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”Arizona v. United States, No. 11-182, Jun. 25, (Scalia, J., bench statement at 6).  Or to rephrase the question in this context, would any Founding Father in his right mind have ratified the Constitution if he knew that he was creating a judocracy, making our judges into our “robed masters?”[11] And, if the opinions of the men who created the Union and the man who preserved it control, the answer must be no. The Second Continental Congress put it this way:
If it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require from the parliament of Great-Britain some evidence, that this dreadful authority over them, has been granted to that body.
The Declaration of Causes and Necessity for Taking Up Arms, 2nd Continental Congress (U.S. Jul. 6, 1775).  As Abraham Lincoln rightly intoned, “No man is good enough to govern another man, without the other’s consent.”[12] And, read in pari materia, the Declaration of Independence and Constitution establish the limits of that consent.  While stare decisis is more likened to a cor set than a straight-jacket,[13] I would daresay that no rational being would ever consent to a grant of judicial power so broad that a tribunal could disregard precedent without cause.
     As Suetonius duly records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.”[14] Our predicament is even worse: We can read the laws and court opinions interpreting them until we go blind, but can’t hope to rely on them. When judges are free to depart from established legal principles, “the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions.”[15] We literally cannot plan our affairs with confidence or conform our behavior to the law, as “law” becomes unknowable and ad hoc.  The Constitution depends on a judiciary prepared to issue rulings “that go against the judges’ policy preferences,” Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011) (Scalia, J., dissenting), as liberty can find “no refuge in a jurisprudence of doubt,”Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992)—which is what, in fact, you and your colleagues have bequeathed unto us.  As such, I ask:
Is even a jot or tittle of the Bill of Rights I can confidently rely on?
    I would appreciate your thoughts on the matter if you are inclined to share them.
Regards, Ken
1]  United States v. Janotti, 673 F.2d 578, 614 (3d Cir. 1982) (Aldisert, J., dissenting; quoting Montesquieu, De  l‘Esprit des Lois (1748)).
2] Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000). 
# Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003).  As Judge Danny Boggs of the Sixth Circuit wrote, “[t]here is no strictly legal—let alone philosophical—justification for the practice,” Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 Green Bag 2d 17, 19 (2000), of issuing so-called “unpublished” opinions devoid of precedential effect
3] Over time, the procedural safeguards of mandatory Supreme Court review, pub lished written appellate decisions with binding effect, and in some cases, even written appellate opinions at all, have been eroded to the point that the federal statutory right to a meaningful appeal has been effectively eliminated. William Graberson of the New York Times observes:

With the Supreme Court giving full review to no more than 200 cases a year [today, it is closer to 80] and the highest courts of many states also limited in the number of cases they can hear, some legal scholars say, the increasing use of abbreviated review procedures by intermediate appeals courts means litigants are quickly losing the right to meaningful appeals.
One measure of the abbreviated treatment given to many cases, some judges and scholars say, is a sharp decline in the number of decisions Federal appeals courts publish in law books. Unpublished decisions do not establish precedents.
In studies of unpublished decisions, two law professors, William L. Reynolds of the University of Maryland and William M. Richman of the University of Toledo, say the rulings are usually so succinct that it is impossible to discern the facts of a case or the reasons for the judges’ ruling.
Court statistics show that Federal appeals courts publish only 24 percent of their decisions, down sharply from 54 percent in 1985. ”It is sort of a formula for irresponsibility,” said Richard A. Posner, the chief judge of the United States Court of Appeals for the Seventh Circuit in Chicago. ”Most judges, myself included, are not nearly as careful in dealing with unpublished decisions.”

William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999.
5] It is not that pro se litigants are barely-literate Wal-Mart greeters.  Many civil litigants who file in propria persona are actually well-educated, e.g., Steiner v. Concentra, Inc., No. 03-N-2293 (D.Colo. Aug. 6, 2004), In re Marriage of Spofford, No. 06-CA-299 (Colo.App. Feb. 7, 2008) (two Ivy League-educated physicians), and even seasoned attorneys, E.g., Tatum v. Simpson, No. 05-cv-00669-PSF-KLM (D.Colo. Oct. 1, 2007); Mann v. Boatright, No. 07-cv-01044-WDM-KLM (D.Colo. Nov. 5, 2007), Lewis v. Gleason, No. 10-cv-1850-JLK-BNB (D.Colo. Mar. 29, 2011); Cogswell v. United States Senate, No. 08-cv-01929-REB-MEH (D.Colo. Mar. 2, 2009), whereas practicing attorneys are notorious for ‘mailing it in.’ E.g., Judge Tells Colorado Litigants to Brush Up on Their Paperwork, Chronicle of Higher Education, Aug 10, 2006, at (Judge Marcia Krieger of this District of Colorado, reading attorneys the riot act).
6] John L. Kane, e-mail (to Sean Harrington), Feb. 3, 2007, quoted in Sean Harrington, Disparate Treatment of Pro Se Civil Litigants in Federal Court: A Justification for Resort to Inappropriate Self-Help? (2007), at (copy on file).
7] Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The Observer (Case West. U.), Oct. 31, 2008 (bio).
8] William M. Reynolds and William L. Richman, Elitism, Expediency, and the New Certiorari: Requiem for the Learn ed Hand Tradition, 81 Cornell L. Rev. 273, 275 (1995-96); see also, Penelope J. Pether, Constitutional Solip sism: Toward a Thick Doctrine of Article III Duty; Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional, 17 W.&M. Bill Rts. J. 955, 977 (2009). 
9] See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (50 appeals decided in two hours).
10] Judges write to defraud. “Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: the decisions are strongly con strained by the legal materials.” Dan Simon, A Psychological Model of Judicial Decision Making, 30 Rutgers L. J. 1, 11 (1998) (citations omitted); see also Jerome Frank, What Courts Do in Fact, 26 Ill. L. Rev. 645, 653 (1931) (“Opinions, then, disclose but little of how judges come to their conclusions. The opinions are often ex post facto; they are censored exposition.”); Martin Shapiro, Judges As Liars, 17 Harv. J.L. & Pub. Pol’y. 155, 156 (1994) (arguing that “[l]ying is the nature of the judicial activity”); see also, Simon, supra, at 8–9 (summarizing the literature regarding the sense of certainty conveyed by judicial opinions and its illusory nature). Lawrence Solan concluded from an analysis of Justice Cardozo’s opinions that not even a judge as forthright as Cardozo was above writing decisions with a false sense of certainty. Lawrence M. Solan, The Language Of Judges 22–27 (1993). Concurrences read like a Brandeis brief.
11] George Will, Supreme Court’s Real Priority Is Eradicating Stereotypes, Florida Sun-Sentinel, Jun. 30, 1996, available at
12] Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. “Experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” Thomas Jefferson, A Bill for the More General Diffusion of Knowledge (1778), in 2 The Works of Thomas Jefferson 414 (Paul L. Ford ed., 1904).
13] In our system, where erroneous judicial decisions cannot be overturned by a mere act of Parliament, stare decisis is an intelligent and nuanced application of existing precedent.  See, Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (Brandeis, J., dissenting).
14] Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI.
15] 1 Blackstone, Commentaries at *259. Chancellor Kent traced the practice to the earliest records of English law, 1 J. Kent, Commentaries on American Law 480 (2d ed. 1832), and Blackstone,  to“even so early as the conquest.” 1 Blackstone, Commentaries at *69; see also, Slade v. Morley [1602], 4 Co.Rep. 91, 76 E.R. 1074 (K.B). Alexander Hamilton concluded that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 470 (A. Hamilton) (I. Kramnick ed. 1987). In his magisterial work, Justice Story explained that the doctrine of precedent

…, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges.  A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

1 J. Story, Commentaries on the Constitution of the United States § 377 (1833).

Who said it and why?

“The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.”

Who said it and why? Be sure to give the context. 


PS Thanks again to the West coast ugly truck owner and holder of an Admiralty in the Nebraska Navy.

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.


The shut down is over, so why I am depressed?

The Hollow Men, by T.S. Eliot

Mistah Kurtz-he dead
A penny for the Old Guy


We are the hollow men
We are the stuffed men
Leaning together
Headpiece filled with straw. Alas!
Our dried voices, when
We whisper together
Are quiet and meaningless
As wind in dry grass
Or rats’ feet over broken glass
In our dry cellar

Shape without form, shade without colour,
Paralysed force, gesture without motion;

Those who have crossed
With direct eyes, to death’s other Kingdom
Remember us—if at all—not as lost
Violent souls, but only
As the hollow men
The stuffed men.

Eyes I dare not meet in dreams
In death’s dream kingdom
These do not appear:
There, the eyes are
Sunlight on a broken column
There, is a tree swinging
And voices are
In the wind’s singing
More distant and more solemn
Than a fading star.

Let me be no nearer
In death’s dream kingdom
Let me also wear
Such deliberate disguises
Rat’s coat, crowskin, crossed staves
In a field
Behaving as the wind behaves
No nearer—

Not that final meeting
In the twilight kingdom

This is the dead land
This is cactus land
Here the stone images
Are raised, here they receive
The supplication of a dead man’s hand
Under the twinkle of a fading star.

Is it like this
In death’s other kingdom
Waking alone
At the hour when we are
Trembling with tenderness
Lips that would kiss
Form prayers to broken stone.

The eyes are not here
There are no eyes here
In this valley of dying stars
In this hollow valley
This broken jaw of our lost kingdoms

In this last of meeting places
We grope together
And avoid speech
Gathered on this beach of the tumid river

Sightless, unless
The eyes reappear
As the perpetual star
Multifoliate rose
Of death’s twilight kingdom
The hope only
Of empty men.

Here we go round the prickly pear
Prickly pear prickly pear
Here we go round the prickly pear
At five o’clock in the morning.

Between the idea
And the reality
Between the motion
And the act
Falls the Shadow
For Thine is the Kingdom

Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow
Life is very long

Between the desire
And the spasm
Between the potency
And the existence
Between the essence
And the descent
Falls the Shadow
For Thine is the Kingdom

For Thine is
Life is
For Thine is the

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.

© T S Eliot. All rights reserved


In response to “For Whom the Light Shines” @ Simple Justice

Scott H. Greenfield, a criminal defense lawyer, has another post dealing with 21 U.S.C. §851. You may remember that I posted about Scott’s criticism of some of the things I wrote earlier regarding drugs and violence.  See here.

Mr. Greenfield has written a new and related post entitled For Whom the Light Shines. I reprint a pertinent part of that post because I wish to reply to it. The part of Scott’s post that is relevant to my reply reads like this:

In a comment to post over at Hercules and the Umpire that happens to be about the government’s abuse of 21 U.S.C. §851, a topic that should concern you but probably doesn’t because it’s all federal lawyerly rather than rhetorical, Bryan Gates wrote:

I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.

One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50′s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.

On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?

Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.

Bear in mind this is a blog comment, not a post nor a law review article. Its point, cut to the quick, is whether the trial tax of §851, effectively doubling the sentence from merely outrageously long to forever isn’t excessive. And, as Bryan notes, the decision to roll these dice is what more logical thinkers might characterize as a “bad tactical decision.” As a prosecutor once argued in response to me, defendants are presumed innocent, not intelligent.

Judge Kopf responded to Bryan (and again, bear in mind that it’s a comment, not a post):

I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.

This raises problems on two levels. While Bryan writes about the brutal sentences imposed on his clients, the judge responds with a tummy rub for the lawyer. This happens a lot, when a one-word verdict is returned after a lawyer has left his heart in the well of the court. The judge will express words of comfort about a job well done to soothe the lawyer’s pain. It’s helps some lawyers get through the agony and frustration.

But this also feeds the perception that we’re a self-serving guild, only concerned about ourselves. So what if the lives of human beings, their families, their loves ones, are ruined by a knee-jerk act of Congress abused by an over-powered teeny-bopper in a tie? What about the sad lawyer, for whom real empathy is saved.

Bryan wasn’t seeking a tummy rub, but used the opportunity to ask a hard-line question: Was it really necessary that they be given the slow death penalty because they made the wrong tactical decision? To put it in the converse, isn’t 25 years, twenty-five long years, enough to make the point? Mind you, they weren’t spraying the streets with machine gun bullets killing innocent children, because if they were, the §851 enhancement would be the least of their problems. They were drug dealers.

Judge Kopf gave his answer:

I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers…

Whether this reflects a lack of empathy, humanity or a belief that adding another 25 years to a 25 year sentence just isn’t sufficient to make a judge wonder whether he’s nothing more than a robed executioner for politicians isn’t clear.

Maybe Judge Kopf would feel differently if he had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too. Maybe then he wouldn’t dismiss their slow death so easily.

I have several reactions to Mr. Greenfield’s post.  In no particular order, here they are:

*”Rubbing the tummies” of defense lawyers after they have had the shit kicked out of them in a trial that they knew would end badly resulting in a significantly increased sentence for their clients, gives me comfort. Once in a while, it may also comfort those lawyers. Maybe I should stop the practice, but I doubt I will.

*Criminal defense lawyers, like prosecutors, have an emotional “shield.” I don’t. By this I mean that the role of a federal prosecutor or a federal defense lawyer allows, in fact demands, that the lawyer earnestly believes in the  “justice” of his or her cause. I don’t have that luxury. At least as I envision my role, I am supposed to be open and agnostic. Moreover, because I serve at the trial level, I am also supposed to be an applicator of a complex series of rules that one hopes in the very long run will produce some sort of “justice.” There is no reasonable expectation that “justice” writ large can be served on a daily basis. In fact, it is rarely my proper role to be a judicial policy maker. That’s for the big boys and girls. As I once told a federal public defender, “I don’t do justice, I do law.” Most of the time, I wouldn’t know “justice” in the metaphysical sense if it bit me in the ass.

*Sentence an aging crack whore, have her hang herself in the cell adjacent to your courtroom right after you have done so, and then ask yourself how much empathy you feel for the rat bastard who knowingly feed her addiction. Do I have empathy for the self-proclaimed”gentle”drug dealer I sentenced to life in prison, who directed his crew to sodomize a teenage girl with motor oil ’cause she didn’t pay her drug debt, and who beat others with baseball bats or pipe wrenches when the unfortunates threatened to snitch or failed to pay their bills? No, I don’t. But what about great judges like Bennett or Gleeson or Weinstein, you say. Haven’t they overcome similar experiences and remained able to seek “justice” above all else? Sure, in a manner of speaking. But, they envision their judicial roles much differently than I do. They earnestly believe that their judicial role is quite broad. I earnestly believe that my judicial role is quite narrow–go ahead, if you like, and murmur something about the German judges of WW II. Indeed, it may also be true that Bennett or Gleeson or Weinstein are simply better human beings than I am, but only the Gods, and not criminal defense lawyers, get to judge me on that question.

*I don’t lack for conviction and I am no right-wing nut job despite the fact that a Republican President appointed me. I have prosecuted a Republican state attorney general in an impeachment proceeding. I have dissented, while sitting by designation, when the Eighth Circuit said the First Lady, Mrs. Clinton, lost her attorney client privilege because she spoke to the White House counsel in the presence of her personal lawyer. I have declared unconstitutional state and federal “partial-birth” abortion statutes, both of those decisions have ended in the Supreme Court and serious personal consequences have ensued. I have written a variance decision based upon post-offense rehabilitation, later reversed by the Court of Appeals, favoring a young black woman, who I originally sentenced to life in prison for a “crack” conspiracy despite the fact that she had no criminal history. After the reversal, I publicly urged two Presidents to commute her sentence. So there!

*Section 851 enhancements pose a huge problem for the judiciary as pointed out by Judge Bennett and later Judge Gleeson. I do have sincere empathy for the defendant who get’s hit with a section 851 enhancement because of a dumb decision or merely because the defendant insisted upon a jury trial. But, discussions of empathy and generalized notions of “justice” obscure the legally significant question. The important legal issue is how to balance the Executive’s power to charge, and the federal trial judge’s responsibility to impose a sentence that is not grossly disproportionate to other sentences of similarly situated individuals. See here. Being a fan of rules, I am beginning to develop some ideas about how federal trial judges could practically strike the proper balance by using court rules or standing orders to require the Executive to explain the basis for seeking such enhancements. We shall see if my ideas bear fruit.

*The post to which I reply ends this way: “[I]f [Kopf]] had dinner with every defendant, met the kids, the spouse, the life they have, the life they would have had otherwise, and saw that they were human beings too[,]  [m]aybe then he wouldn’t dismiss their slow death so easily.” After reading this conclusion I was mad and I wanted to scream “that’s really unfair and you know it.” After some reflection, I will stifle the shout. In truth, Mr. Greenfield’s point is a good but disturbing reminder that I sentence human beings and not abstractions.


The recently (re)discovered Center and what it means for the federal courts

This is going to get thick, just short of 1400 words. Hang in there.

Yesterday, I posted about a fascinating survey of Americans conducted by experts on the right and left hired by Esquire and NBC News. I urged readers to take the survey and tell me what, if any, relevance the results have to the federal judiciary. It is that question dealing with the relevance of the survey results to the federal judiciary that I address here. Realizing that many may disagree, I believe the survey methodology was sound and the results dependable, that is to say, they would be reproduced if done over and over again–for the moment, assume I am right.

The survey

Before we can ascertain the relevance of the survey results to the federal judiciary, we must understand what the survey found. A good explanation appears here and here.  It is from those discussions that I summarize the points especially relevant to the federal judiciary:

*There is a large group of American voters—a majority (51% percent)—who make up a “New American Center” that is passionate, persuadable, and very real. When we talk about the Center, we are not talking about some shapeless, shifting mass of voters who just can’t make up their minds about where they stand. They are a discrete group although they are not homogeneous .

*Nearly half of those in the Center identify themselves as liberals (20 percent) or conservatives (25 percent). But moderates make up 55 percent of the group.  The Center’s views do not correspond to traditional definitions of liberal and conservative despite how Center members might identify themselves. Religion is not a major part of the Center’s life, and Center members firmly believe that religion has no place in the public sphere. Nearly two-thirds of the Center often agree with some ideas that Democrats have and some ideas that Republicans have.

*The Center has a socially progressive streak, supporting gay marriage (64 percent), the right to an abortion for any reason within the first trimester (63 percent), and legalized marijuana (52 percent). Women, workers and the marginal would also benefit if the Center had its way, supporting paid sick leave (62 percent); paid maternity leave (70 percent); tax-subsidized childcare to help women return to work (57 percent); and a federal minimum wage hike to no less than $10 per hour (67 percent).

*But the Center leans rightward on the environment, capital punishment, and diversity programs. Majorities support offshore drilling (81 percent) and the death penalty (90 percent), and the end of affirmative action in hiring and education (57 percent). Most people in the Center believe respect for minority rights has gone overboard, in general, harming the majority in the process (63 percent). And just one in four support immigration reforms that would provide a path to citizenship for those who came here illegally.

*The Center is mostly white (78 percent) but so is most of the American voting public (72 percent) — and the Center is changing. Already it contains a fifth of African-American voters, one in two Latino voters, and half the women in America.

Our history

The publishers of the survey describe this group as the “New American Center.” But, in this respect, I think they are wrong. This Center is not new. It is old, very old. Indeed, as I read the results, I kept hearing Alexis de Tocqueville (1805-1859) in my mind.

Let’s remember who he was:

Alexis de Tocqeville (1805-1859) was one of the French intellectuals who deeply convinced that a new type of human being was emerging in the New World. He looked at America as a fascinating social experiment of vast proportions and with portentous implications for the future of the world. He spent a year in the United States to study the penal system of this young republic. After his return, from 1835 until 1840, he wrote and published the book that made him famous, Democracy in America. His descriptions and analyses of the United States are such that political scientists and historians of culture find them informative and useful to this day; they have given generations of readers an idea of what it might mean to be an American, and what the role of America might be in the modern world.

PHILOSOPHICAL FORUM, Department of Philosophy, Frostburg State University, De Tocqueville: Individualism in America.

What did Alexis find when he too surveyed Americans? As relevant here, he found two things. First, he found that Americans were practical and did not rely upon political or philosophical theories. He wrote:

I think that in no other country in the civilized world is less attention paid to philosophy than in the United States. The Americans have no philosophical school of their own; and they care but little for all the schools into which Europe is divided, the very names of which are scarcely known to them.


 And, Americans were individualistic. That is:

As to the influence which the intelligence of one man has on that of another, it must necessarily be very limited in a country where the citizens, placed on a footing of a general similitude, are all closely seen by each other; and where, as no signs of incontestable greatness or superiority are perceived in any one of them, they are constantly brought back to their own reason as the most obvious and proximate source of truth.


How then did the Americans as Alexis saw them relate to the law and the judiciary? Because they were practical–they valued solutions–and individualistic–they valued self-reliance–Americans looked upon the law and the judiciary as the accepted tool for resolution of disputes (both as between themselves as well as with the government) and as a counterweight to the potential tyranny of the majority. Famously, he wrote:

Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings . . . The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.

Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter XVI, Causes Which Mitigate the Tyranny of the Majority in the United States.

And he recognized that Americans had willingly entrusted their courts with “immense” power:

Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence.  . . . The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone.

Alexis De Tocqueville, DEMOCRACY IN AMERICA, Book One, Chapter VI, The Judicial Power in the United States.

The point

Just as De Tocqueville found in the 1830s, America in 2013 has a Center. That Center is passionate but practical. It is not philosophical or partisan. It is individualistic. Most important for these purposes, the modern Center, like the Center Alexis found, is likely to be perfectly comfortable with a legal profession and a judiciary that play an integral and moderating influence in the life of our country. For those like me who venerate the legal profession and the judiciary, the belief that history has repeated itself is a great comfort.*


*When I took the survey, I scored among the 10 percent of those who were most liberal. (A big surprise to me.) One does not need to agree with the views of the new Center to appreciate that it seems very much like the old Center. This hopefully portends both a continuing stability and a reliance upon lawyers and judges as central components of the ongoing American experience.

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