The top ten things I learned from being a (fill in epithet of choice)

By now, you know my posts (here and here) about lawyers who are females and courtroom attire stirred up a controversy of stunning proportions.  Indeed, the device in this platform that counts such things tells me those stories generated more “hits” than any other related posts except for the ones about how my sentencing instincts suck as evidenced by Shon Hopwood’s remarkable redemption. (See here and here.)

Some of you may know also that I hold an affection for top ten lists. (See, e.g., here.) I revert to that shtick once again.

Here are the top ten things that I learned from writing the courtroom attire posts:

1. I shouldn’t believe my own press. (See here (“Courts”) and here “Miscellany” at p. 126).)  I am not nearly as good at blogging (writing essays) as I thought I was. That is, the only thing bigger than my ass is my ego.

2. A highly regarded legal blogger and true trial lawyer accurately put my grievous error this way:

“Judge Kopf was terribly wrong to have framed his point the way he did. Not because he violated the sensibilities of Millennials and Gen-Xers, who have been weaned on Orwellian notions of language to the point that they can’t even begin to grasp that there are good people who use words that they were taught are evil, but because he didn’t realize that his audience consisted of people for whom these words meant something very different.”

SCOTT H. GREENFIELD, A Poor Choice of Dirty Old Words, Simple Justice (March 29, 2014).

3. I should never, never, never have included my kids and the law clerks in this type of post. As one gentle soul who loves me unconditionally remarked with resigned sadness, “you see your work and the people who are close to you as being the same thing. We don’t see it nor want it that way.”

4. The “true story” I used in the post was untrue, although it was essentially accurate. It was an amalgam intended to take separate but similar experiences of mine in the courtroom and to blend them together precisely so I didn’t identify anyone. But because of my evasion and ineptitude, I set off a snipe hunt. I am so terribly sorry for that.

5. I can’t stop berating myself for giving aid and comfort to those who say federal trial judges shouldn’t blog. This is a powerful medium that can do much good in promoting an honest understanding of the federal trial court (a place that is not an abstraction), but I just handed the other side a sharp-edged weapon to maintain a status quo of sanitized mythology.

6. I despise faux apologies. So, for the uber outraged, hear this: I believe what I wrote. I extend no apology of any kind to those readers who wanted to be offended by my writing. And, eschewing mere truculent defiance, the vitriol will not deter me from judging and blogging in the future. By the way, and I suppose this is quaint, I view blogging as an opportunity to write a collection of short essays around a common theme. From the reader’s perspective, that means one might profitably look at the many blogs posts that come before the one in question. That is called the search for context.

7. I always knew edgy humor was both dangerous and hard to pull off as a writer, but it is much harder and more dangerous than I had ever imagined. That is an observation, not an excuse.

8. Because I was too defensive, I wrote Erin Grace, a real journalist, with a kind heart, that I don’t care how she remembers me. That was also untrue.

9. I harmed my District of Nebraska colleagues. In particular, I put my Chief Judge, Laurie Smith Camp, a person whom I revere, in a horrible position. That makes me sick at heart.

10. Most importantly, the federal trial courts (including the one in which I am privileged to preside) are places where all female lawyers are safe. Thus, I am deeply ashamed that my post generated the following fearful comment from a real trial lawyer that I presume is entirely genuine: “Wow, am I ever glad I don’t have to appear before you. I would be very uncomfortable, having read your post.” Female AFPD [Assistant Federal Public Defender] says: March 26, 2014 at 5:36 pm.


Update on first treatment

I had my first treatment yesterday for stage III classic Hodgkin’s lymphoma. All good.

Here is what happened:

1. We showed up at the clinic at 9:00 AM. First thing was to take blood. The tech accessed my blood supply through the “port.” That hurt a lot because the tissue underneath the port is still sore from the little surgery that was required for the installation. When the tech injected the needle the pressure lighted up the bruise. Sorta like being stabbed in the chest. Then, blood flowed and everything was OK. Thankfully, as the bruise heals, accessing the port will be painless.

2. We then saw a Physician’s Assistant for “patient education.” Various drugs are administered through the port, and various drugs are taken orally. Nausea can be a problem so they also give you anti-nausea drugs. I will probably be bald for a while too. We received a three ring notebook with tips and information. The PA said she hopes my pain will reduce over time as the chemo begins to impact the cancer. I hope so, as I continue to have trouble sleeping. That said, when I got home, I slept very, very hard and that was a welcome relief.

3. I then went to the infusion room. The room is quite spacious and long. It is lined with reclining chairs and places for loved ones to sit. The patient sits in the reclining chair and the drugs administered by IV are hooked up to a pump and the pump is attached, in my case, to the port. (When my blood was taken, they attached the pump’s access tube, so the port did not have to be accessed twice thus avoiding the pain of the first effort.) You sit in the recliner until the infusion is done. I received two types of anti-nausea medications and one chemo drug. The process takes about an hour.

4. We then went to the pharmacist within the clinic and received most of my oral medications and instruction. You take certain drugs on certain days in each cycle, Each cycle is 28 days long, and there are six cycles. Some are taken by mouth and some are taken IV. The first 14 days of each cycle are treatment days. I receive IV infusions on the first and eighth day of each cycle. On days 1 through 14, I also take oral medications. The last 14 days of each cycle is “for rest” and you receive no drugs by IV or by mouth. Keeping track of the drugs taken orally is a bit of a task, but we received a helpful chart for each day showing exactly what drugs to take on what day. We also received instructions about how to avoid side affects. By the way, I have to order one of the drugs myself from a speciality pharmacy. Apparently, that drug is in short supply. They deliver the drug to your home via UPS or Fed Ex. So, that adds a bit of complexity to the regimen, but it is really no big deal.

5. I then went home. I began taking the pills in accordance with the instruction. So far, no problems. (Except, Joan says I glow in the dark.)

6. I go back next Tuesday for another infusion, This is likely to make me more sick than the first. Then, I will be off for 14 days until the new cycle starts.

7. It is a very helpful to have Joan attend my visits to the clinic. She takes copious notes, and asks the questions I should ask but forget to present. Additionally, because she has recently been through her own treatment for cancer at the same clinic, she has become very well informed. Between the two of us, I think we have everything in hand.

8. Unless I get too sick between now and Friday, I intend to drive to Omaha on Friday to do seven sentencings. I hope by the second cycle (about a month from now) that I will have a better read on my stamina and level of chemo induced sickness. If everything goes well, I will begin to resume a more normal schedule during the second cycle.

9.  The mornings’ e-mail shows that Grandson Milan sacrificed his pretty locks in solidarity with Grampa’s impending baldness.  See below.


Milan, in solidarity with Grampa. What a boy!

Milan, in solidarity with Grampa. What a boy!



Post Script to yesterday’s (infamous) post

Yesterday, I touched the third rail. I wrote about women, apparel and courtroom attire.  It has generated a fair amount of perfectly fair criticism.

In the Omaha paper today there is piece about my post that I urge folks to read. It is written by Erin Grace, and Ms. Grace’s prose is powerful and, at times, beautiful and insightful. (By the way, Ms. Grace tried to call me yesterday afternoon while she was on a short deadline to get my views. I was home and asleep and missed her call. I thank her for the professional courtesy.)

At the end of the article, Ms. Grace writes:

I’m largely a conformist when it comes to office attire — perhaps fallout from years of wearing Catholic school uniforms. And I’ll say for the record right now: Mom, you were right about slips.

But if law students should be remembered for what they say, not how they dress, then that should apply to judges.

The judge has said a lot of good things in the past on his blog. He writes tenderly about his grandchildren. He worries about a seventh-grader recovering from a heart transplant.

And he raises important issues. I want to remember him for those things.

Not for his latest reflections, on being a dirty old man.

I wish to respond but only briefly.


I honestly don’t care how you (or others) remember me.* I do care passionately that federal trial judges be seen as individuals with all the strengths and weakness (baggage) that everyone else carries around.

If, on balance, you think the post was harmful to the image of the federal judiciary and truly treated women as objects, I am very, very, very sorry for that, but I would ask you to pause and reread it. I hope you will find upon objective reflection that the mockery I make of myself and the hyperbole and somewhat mordant tone I employed, made a point worth considering.

In the rough and tumble world of a federal trial practice, it is sometimes necessary to see and react to that world as it is rather than as we wish it would be.


*Here’s an irony:  If I am remembered for anything, it will be because I wrote two opinions striking down state and federal “partial-birth” abortion statutes.

On being a dirty old man and how young women lawyers dress

More than a decade ago, I freaked out when tall, statuesque, and beautiful daughter Lisa showed up at her older sister’s (Marne’s) wedding in a Catholic church (that we “borrowed” out of respect for the groom’s religious preference) in a low-cut dress. Poor Joan, at my insistence, and at the last moment, rummaged around in the church’s “lost and found” to locate a demure white sweater for Lisa to wear over her very revealing frock. I was spitting nails. Marne was in tears. The groom had no idea what the fuck had just happened. Lisa shot me daggers throughout the ceremony. Once again, Joan labored under the “evil stepmother” moniker. In short, the last time the Kopf clan entered a church together as a family was one of those memories better left forgotten. And the silly thing about this kerfuffle was that it was all about an old guy’s sense of decorum.

In candor, I have been a dirty old man ever since I was a very young man.  Except, that is, when it comes to my daughters (and other young women that I care deeply about). And that brings me to the amusing debate about how (mostly) young female lawyers dress these days. See e.g, Amanda Hess, Female Lawyers Who Dress Too “Sexy” Are Apparently a “Huge Problem” in the Courtroom, Slate (March 21, 2014).

True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.

In a recent case involving this fine young lawyer every female law clerk in the building slipped in and out of the courtroom to observe her. I am not exaggerating. I later learned that word had gotten around about this lawyer’s dress. Acknowledging that the lawyer was really good, the consensus of the sisterhood was uniformly critical. “Unprofessional” was the word used most often. To a woman, the law clerks seethed and sneered. They were truly upset.

From the foregoing, and in my continuing effort to educate the bar, I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.


Dancing down under and other Sunday musings

Got up early this morning (the pain in the left thigh and groin is a bitch) and thought about the day and the week to follow.

*  Joan and I will attend a memorial service for Janice Cook Ross today in Omaha.  Janice was married to Judge Donald R. Ross, my mentor, for over 70 years. Ed Cook, my former law partner, and my other mentor, was her brother. She died recently. A wryly funny, and brilliant person, it is a shame that she will not be there when the Eighth Circuit Court of Appeals and the Nebraska Federal District Court honor Judge Ross’ memory tomorrow.

*  Speaking of the memorial proceeding tomorrow, Judge William H. Webster will be there and speak about his good friend, Judge Donald R. Ross. Judge Webster was a United States Attorney for the Eastern District of Missouri from 1960 to 1961. In 1970, Webster was appointed a judge of the United States District Court for the Eastern District of Missouri, and in 1973 he was elevated to the United States Court of Appeals for the Eighth Circuit. Five years later, President Jimmy Carter appointed him as Director of the Federal Bureau of Investigation. Then in 1987, President Ronald Reagan chose the judge to be Director of the Central Intelligence Agency. He led the CIA until his retirement from public office in 1991. Judge Webster served in the Navy during WWII and the Korean War.

*  Tuesday, I start chemo. I get my first infusion plus “patient education.”  Ought to be interesting.

*  Fletcher, one of our beloved grandsons, lives in Australia.  In fact, he is an Australian citizen and is developing a distinct Aussie accent.  His dad, our son, Keller, takes Fletcher on Saturday morning outings to give mother Stacey a break.  Recently, the bushy, blond-haired boy busted a dance move during one those outings. As a dancer, the kid is better than his father, but that’s not saying much.  Too funny!

*  The river of life and all that . . . .


Great news: Emily ditched Bernie

Emily does her school work while nasty old Bernie looks on--he's gone now

Photo from last year: Emily does her school work while nasty old Bernie looks (and beeps)  on.

Last year, I posted about an extraordinary young girl who is related to my correspondent, Elaine Mittleman. Elaine is an experienced and highly regarded lawyer who does a lot of federal criminal work. Emily is in seventh grade. Overcoming nearly overwhelming obstacles, she is on the honor roll. This courageous kid* maintains her schooling despite being hospitalized seemingly forever while her little heart fails her. Until now, she has been kept alive by “Bernie” while awaiting a heart transplant.

On Friday, Emily received her new heart and kicked Bernie to the curb. Some things are truly more important than others, and this wonderful news is among the most important.


*Attached find her journal around the time of the transplant. Scroll down to the beginning to see her thoughts prior to the transplant. What a tough and funny young lady! Duck Dynasty before transplant? Emily’s journal 3.16.14 – 3.22.14

The death of Fred Phelps

Pastor Fred W. Phelps Sr., of Topeka’s Westboro Baptist Church, protested against all manner of behavior that he and his tiny congregation believed was sinful. I presided over two suits involving the Church. Most notably, I declared Nebraska’s flag desecration statute unconstitutional as applied to Margy Megan M. Phelps-Roper and members of the Westboro Baptist Church. See here.

Fred Phelps, the founder of the church, died Wednesday night. The Topeka Capital-Journal has printed a fascinating article about Phelps. See Phelps’ life turned from brilliance to hatred, Phelps was disbarred, reviled internationally by the time of his death (March 20, 2014).

How an eagle scout, who turned down an appointment to West Point, and who became a brilliant lawyer and fundamentalist pastor, came to be one of the most reviled human beings on the planet presents an absorbing story. Especially for the lawyers and judges in the crowd, that story is worth reading and thinking about.


Don’t tell Grampa, it’s a secret

Every summer when our grandchildren, Petra and Milan, return from China to visit us we try to have an early birthday party. Their birthdays are in late summer and early fall.

This year Joan sent the kids a video of various cakes they might like, and asked them to pick the cake they liked the best. We just received the return video with their selections. See attached. Some things are more important than others.

My dirty little secret: How I obscure the suffering of the defendant during allocution

Mark W. Bennett, U.S. District Court (Northern District of Iowa), and Ira P. Robbins, American University – Washington College of Law, are extraordinary thinkers, writers and researchers. Their new work, entitled Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, (March 10, 2014), is required, and I mean required, reading for any lawyer who represents a federal criminal defendant facing sentencing.

The last thing that takes place before a sentence is imposed in federal court is the defendant’s personal statement to the judge–allocution. After more than 20 years, and a 1,000 plus allocutions, I have a dirty little secret to admit.

Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.


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