Behind-the-scenes–Kopf is old and sick, what should the court do?

As a magistrate judge, as a Chief District Judge, and as an active district judge, I have had three opportunities to observe or participate in how our court dealt with a district judge* who was sick or old and where questions were raised about whether the district judge should continue to hear cases. Each case was different.

I will not write about those three cases. However, the reader might be interested knowing how we have addressed this behind-the-scenes question in light of my own ongoing cancer treatment. Hopefully, the take-away is that the federal trial courts are sensitive to this issue, proactive, and careful.

Among all federal judges, a federal district judge is unique in one respect. The federal district judge is the only Article III judge who has the general power to make a decision solely by himself or herself. This vests in district judges an awesome power and responsibility. Most of us never forget that we walk the tightrope alone, and if we fall off because of an infirmity we are likely to badly injure those below.

Like the narcissist that I sometimes am, here is my story and how our court dealt with my becoming old and sick.

Four days after my first wife unexpectedly died on December 26, 1986 of an unknown virus that attacked the electronics of her heart, and only a month before I was to become a magistrate judge, my stomach ulcer ruptured spilling the contents of my guts into my stomach cavity. Emergency surgery, replete with a huge scar, followed. Eight days afterwards, I was released. I weighed 137 pounds. I recovered (sort of) and began working in Omaha as an MJ in February of 1987. I had just turned 40.

I became a district judge in 1992 soon after turning 45. By the time I was a few years over 50, and while driving back from a strenuous trial in North Platte, I suffered a heart attack. The blockage was relieved by angioplasty. But not long thereafter the blockage came back. That was followed by another angioplasty and then a stent. I began to mend.

Several years after the heart attack, and during a routine check up, my cardiologist thought he heard the distinct murmur of a blockage of the right carotid artery. Testing confirmed it. Several days later, into the operating room I went. I lay partially sedated but awake (so they could talk to me and determine if I was having a stroke) while the talented vascular surgeon dissected the carotid and relieved the blockage. A year or so later, the right carotid was blocked again and the second endarterectomy was performed. This time it took.

As readers of this blog know, in early December of 2013, and while trying a high-profile jury trial out-of-state, my left leg and foot began to swell. Two deep vein thrombi were discovered and then were relieved by blood thinning medications. Severe pain persisted. I was 67.

More or less, the Chief Judge and my other judicial colleagues knew of my medical history. Even though I had taken senior status at 65, since I never missed much work and maintained a full caseload, I doubt that history gave my Chief Judge, the other active Article III judges or anyone else a concern about whether I could do my job competently as a senior district judge. That changed for me, and I suspect my colleagues, when I was diagnosed with stage III** classic Hodgkin’s lymphoma earlier this year.

Here in chronological order is a general description of what transpired behind-the-scenes:

  • On February 27, 2014, I notified my colleagues that I had been diagnosed with lymphoma but that the disease had not been typed or staged. I outlined the process for typing and staging.  I asserted that no change in the assignment procedures was required until I knew more about a precise diagnosis. My colleagues were supportive, and I promised to keep the Chief Judge, the other active Article III judges, the Clerk and her deputy advised. This was all done in writing.
  • On March 6, 2014, I advised my colleagues in writing that I had Hodgkin’s lymphoma either stage III or IV. I also advised that even at these late stages the disease was curable according to the medical literature that I provided.
  • On March 17, 2014, I advised my colleagues in writing that:

Today, I learned the following:

1. The nodule in my lung is probably a fungal infection that occurs frequently in this part of the country. The UNMC pathologist gave that tentative opinion this morning following a biopsy of my lung at UNMC on Friday. If that turns out to be true, the infection will be ignored for the time being and I will start treatment of the lymphoma.

2. After a biopsy last week, the bone marrow is free of the lymphoma.

3. Given the above, I have stage III, classical Hodgkin’s lymphoma. The five year survival rates are all over the board. From the literature I have reviewed, I estimate that I have somewhere between a 60 to 85 percent chance of being around to haunt you in the spring of 2019.

4. Dr. Armitage, a world leading expert, and Dr. Green, my treating oncologist in Lincoln, both agree that I should start a chemo protocol developed here in Nebraska for people over 60. I will receive treatment here in Lincoln.

5. I will go through six cycles of treatment. Each treatment cycle lasts 28 days. I receive chemo drugs on the 1st and 8th days by infusion into my port. On days 1-14, I also take chemo medications by mouth. Days 15-28 are for rest and no chemo is administered. Radiation is not usually required.

6. I will start the protocol as soon as the final pathology report on my lung is received by Dr. Green confirming that I have a fungal infection and not cancer in the lung. That is, I should start chemo in a week or so.

7. Dr. Green advises that I should not plan on conducting trials during the first cycle–that is, for about a month after I start chemo, I should not plan on conducting trials because I could be very sick. If the first cycle goes well, I may be able to handle trials thereafter, particularly during the last 2 weeks of each cycle. But my functionality as a trial judge (always suspect in the minds of many) is yet to be determined.

8. Judge Zwart is managing my trial calendar with the foregoing in mind. If trials become necessary during the first month, I will ask LSC to reassign cases. After the first month of treatment, I should know better how I will be able to handle trials. As for sentencings and other short matters, Kris [my judicial assistant] and I will manage those that have been previously set with the idea that I should be able to be on the bench for short periods of time. For new sentencing matters, I ask Judge Zwart to schedule them in accordance with the above and pursuant to our oral discussions.

  • On March 26, 2014, I advised my colleagues that I had started my treatment. I described in some detail what the treatment was like.
  • Soon after March 26, 2014, the Chief Judge, the other active district judges, the Clerk and her deputy conferred or corresponded with me and the following was done: (1) my career law clerks*** were instructed in writing to contact the Chief Judge if they felt I could not perform my duties competently and they were to do so without consulting me; (2) the Chief Judge, the Clerk and her deputy were provided in writing with permission to consult my physician without notifying me and to secure any and all information they desired at any time and that such permission was considered by me to be irrevocable; (3) the Chief Judge, the Clerk and her deputy were given in writing the user name and password necessary to access my electronic medical records and they were given irrevocable permission to do so without notifying me; (4) General Order 2014-02 “IN RE: JUDGE KOPF’S CANCER DIAGNOSIS AND TREATMENT” was entered generally advising the bar and the public of my condition and how the court would deal with my illness including the fact that the court was taking steps to monitor my condition; and (5) at my request, a non-jury civil trial scheduled for early April was reassigned to Judge Gerrard who graciously offered to take it.
  • Following completion of the active part of the first cycle, my doctor wrote a report that included this statement about my ability to work:”Fully active, able to carry on all predisease activities without restrictions.”  I provided the Chief Judge, the Clerk and her deputy with a copy of that report.
  • On April 30, 2014, I advised the Chief Judge, the Clerk and her deputy, the two other active district judges and Magistrate Judge Zwart that my doctor had advised that I was doing very well, but that my fatigue, while fully expected, was likely to increase with each cycle. Tentative plans were instituted on both a short term basis and a longer term basis to deal with the possibility that I might be unable to try one or more cases due to the increased fatigue level. That is where we stand today.

Kopf is old and sick, what should the court do? Now you know what we did. Other courts and other judges might find better ways. I don’t hold out our approach as a model. I do, however, suggest that we in the District of Nebraska take these problems seriously, and deal with them responsibly.  And that is a small part of what goes on behind-the-scenes.

RGK

*As Chief Judge, and otherwise, I have also dealt with two magistrate judges who had serious illnesses  But, those situations pose different problems, and are not the focus of this post. The focus here is on district judges who exercise Article III power and who enjoy Article III protections. Those powers and protections cover Article III judges who have taken senior status but continue to work (as is their right). However, is up to the Chief Judge of the local court to determine the extent to which the senior judge will be given a caseload. See 28 U.S.C, § 294.

**A stage III is assigned when the disease is found in lymph nodes above and below the mid-line of the body but not in the bone marrow.

*** Jim is 62. Jan is right around 50. Jan has been with me over 20 years and Jim has been with me more than a decade. I would literally trust either one with my life. They are brilliant and experienced lawyers who take their responsibilities seriously and I have no doubt that they would contact the Chief Judge if that became necessary. They are just the best.

37 responses

  1. Having seen one of those examples up close, as it were, I would say there is a lot to be said for transparency. Keeping all of that stuff to yourself would have some negative impact on your constitutional right to complain about all manner of things–even if only occasionally. Sympathy for your condition notwithstanding, I reserve the right to complain about your rulings. Cheers!

  2. High Plains Lawyer,

    Certainly.

    In fact, knowing you, a long time and big time litigator, you will use my sad disability to fulfill ever plaintiff’s lawyer’s wet dream in federal court. That is, defeat a summary judgment motion in an employment case by overwhelming my frail constitution with disputed facts and by asserting some wacky “burden shifting” argument. Bastards, all of you! (Kidding, of course.)

    By the way, my kid in Australia, who is now a citizen of that strange place, ends his correspondence with “cheers.” That annoys the shit out of me because it isn’t Amerikan. I bet you called him to find out what little knife-twist you could use to upset me this morning. Bastards, all of you. (Kidding, of course.)

    Screw your cheers. (Kidding, sorta.) All my best. (Not kidding.)

    RGK

  3. Personally, I would retire … but then again, I have never held a job that was so much fun that I would do it for free. You could concentrate on getting well, and assuming that you do, you’d be able to get a part-time gig at UNL or Creighton to keep you engaged. Several of my instructors were retired judges and others, moonlighting ones.

    What should the Court do? What the statute tells them: that you “may continue to perform such judicial duties as he is willing and able to undertake.” Federal appellate judges can work almost exclusively from home, and trial judges often sit by designation. Since we’re paying you anyway and you’re willing to do the work, we might as well indulge you.

    Who knows? One day, you might actually have an opportunity to atone for Richard Arnold’s most tragic career failure. Unlike him, you seem to have the ‘nads for it.

  4. I’d be happy to trade in my citizenship straight-up. These days, I can only fantasize as to what it would be like to live in a country governed by the rule of law, as opposed to the arbitrary and capricious rule of judges.

    And I’ve seen more of the country–yes, including Albury–than virtually every Aussie.

  5. Ken,

    The Australian judicial system is certainly great. But, and I mean this truly, you might be surprised with some of the results that come out of the Australian courts, particularly the Australian appellate courts. No. I am probably wrong. Knowing you, you probably know more about the Australian legal system than most Australian law professors (an interesting bunch I might add).

    All the best.

    RGK

  6. I have complete confidence in your ability to perform your job duties and complete confidence in your clerks to fulfill their obligations should you falter. Additionally Judge Zwart will do whatever is necessary to make certain the all is well. Take care of yourself.

  7. Judge Kopf, I will challenge you once again: Where else but in America will you find the spectacle of judges properly named as defendants in tort sitting in judgment of their own cause?

    Under what other legal system is that even possible?

    The elegance of the Commonwealth legal system is in the problem of Parliamentary supremacy. (Given a choice between that and judicial supremacy, I will take the former every time because you can always vote Parliament out.) In their system, if judges “should be disposed to exercise WILL instead of JUDGMENT,” Fed. #78, Parliament can simply overrule them. You really can’t avoid getting the occasional odd duck in any judicial system–judges are, after all, quite human, as you have demonstrated with aplomb–but their system is self-correcting. All Commonwealth jurisdictions of which I am aware have the ancient remedies of scire facias and mandatory certiorari review. Here, judges sacrifice “justice” on the altar of personal convenience (see e.g., Judge Gertner) on a regular basis because they can.

    When I am forced to cite precedents from Zimbabwe, Bangladesh, and Putin’s Russia to shame our travesty of a judicial system, it speaks volumes, and nothing in that chorus is good.

    When I tell my war stories to friends and colleagues across both the Big and Little Pond, the universal reaction is horror. How can a judge sit in judgment of his own cause? How can a judge disregard clear and unequivocal superior court precedent with impunity? To them, the problems precipitated by Judge Arnold’s failure to write a dissent for the ages are inconceivable.

  8. Vince,

    I appreciate your confidence, and, yes, Judge CRZ is a treasure in more ways than anyone from the outside might suspect.

    All the best.

    RGK

  9. Unless one of your law clerks is writing your posts, your mind seems unaffected by the chemo. This too will pass. You will be back on your feet soon and likely will be inflicting yourself on us in five years.
    That’s a good thing. My advice to you is do what you feel you can do as long as you enjoy your job. When you no longer enjoy the work, retire.
    Working will keep you younger in mind and body.
    Remember, the reason the senior judge and judicial retirement programs began was some judges (supposedly including Oliver Wendell Holmes) stayed on the job because they needed the salary even though their minds were a shadow of their former selves. As long as your mind is working well and your body is functioning, keep working if you want to.

  10. Tom,

    Thanks. No, my law clerks don’t touch the blog. That really bugs Jan ’cause she would like to edit (not write) it given all the little (and not so little) errors she finds. And, I almost never talk to anyone beforehand about what I write. Just think of me naked. No don’t.

    Thanks also for the good advice. It is true. I have not yet experienced “chemo fog.”

    All the best.

    RGK

  11. Dear Judge,

    All best for a good recovery (as a fellow native of Northwestern Ohio, I’m betting on your ability to weather this storm). Thank you for sharing this information about how your court has handled your health challenge. I think it speaks very well for you and your colleagues that you so plainly have made your priority insuring that the person making decisions is able to do so ably. I’d be fascinated to know if other courts have followed the same or a similar protocol. The skeptic in me fears that yours is the exception.

    David

  12. David,

    Thanks for your kind note. By the way, I still miss Maumee, down by the river, during the summers and despite the humidity.

    I, too, am interested in knowing how other federal courts have handled this problem. Frequently, a sick judge is the “elephant in the room.” Maybe the post will generate some feedback. I hope so. And, people should know that they can post without giving a name. They can also send me an e-mail: Hercfriends@gmail.com I am always willing to take sensitive information from a correspondent who does not want to be identified, and then use their information, with the correspondent having the ability to approve or shitcan the post before posting.

    I really want Hercules and the umpire to make our federal trial courts more transparent. That includes sensitive subjects like this one. Yet, we must all be mindful that the internet scares a lot of people precisely because it is such a powerful educational medium. I realize that fear and I am willing to go to great lengths to alleviate it when I can. Finally, and although I doubt that this would ever happen: I would resist a subpoena to my dying breath–and I have the will and money to back that up.

    All the best.

    RGK

  13. Not all Commonwealth realms are the same. Canada has a federalist system and a written constitution (as well as common law constitutional elements). Amendments to Canada’s governing structure or constitutionally guaranteed freedoms require a procedure that incorporates both the Federal Parliament as well as the legislatures of the 10 provinces.

    See, for example, Prime Minister Harper’s recent proposal to abolish the Senate of Canada, which the Supreme Court said would require the consent of all 10 provinces.

    http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13614/index.do

    The ruling actually is a great intro to the structure of Canadian government.

  14. Judge:
    I am nearly overwhelmed by your attempt to engage in complete transparency concerning your present health condition. You were under no obligation whatsoever to do this but nonetheless did so to reassure your colleagues that this matter will be handled in the most ethical way possible. The only circumstance of which I am aware that is even remotely similar was the problem the High Court had in dealing with Justice Douglas at the end of his tenure. My recollection is that Justice Douglas, by then likely suffering from significant cognitive impairments, refused to resign despite suggestions from his colleagues that he do so (Justice Douglas even wanted to remain on the Bench after his successor as a “tenth justice.”). In sum, the federal judiciary was–and likely still is–unprepared to deal with these health issues given the lifetime tenure of its members. What you have done here is an act of both courage and grace of which the federal judiciary would be wise to take note.
    Robert

  15. The late Chief Justice William H. Rehnquist took a powerful sedative during his first decade on the Supreme Court and grew so dependent on it that he became delusional and tried to escape from a hospital in his pajamas when he stopped taking the drug in 1981, according to newly released FBI files.

    http://www.washingtonpost.com/wp-dyn/content/article/2007/01/04/AR2007010400140.html

    And of course, this fact was hidden from us. For ten years, he was under the influence and at times, he made about as much sense as Drugs Limburger on Oxycontin.

  16. Ken,

    Yes, I am aware of the Chief Justice’s painful illness, the resulting drug dependence, and his treatment in the hospital. As I remarked to someone else, a sick judge is frequently very much like “the elephant” in the room for the judge’s judicial colleagues. A judge should be self aware enough to spare his colleagues those concerns. But, self awareness when you are old and sick is a tricky business. (Luckily, I have people around me at the office and at home who care for me enough that they would not allow sickness or old age to ruin whatever might remain of my reputation, such as it is.)

    As far as the public is concerned, and at the time, perhaps the Chief should have been more open about his illness, drug dependence and treatment. (Although if you go back and do enough research you can find publicly available information around the time he went into the hospital that is reasonably specific.) However, I hold the very strong opinion that the public had no right to now of the FBI memos until the Chief died.

    All the best.

    RGK

  17. Robert,

    You are far too kind. I see nothing courageous about telling the truth, particularly when Article III of the Constitution is such a blessing for judges like me. For Christ’s sake, I have the best job in the world. At the very least, common decency (not to be mistaken with virtue) requires reasonable transparency.

    All the best.

    RGK

  18. SLS,

    I am going for an Australian “innovation” patent on whiskey. Too funny. Thanks.

    All the best.

    RGK

  19. I’m applauding the hell out of what you are doing here. My problem with Rehnquist (and Pickering before him) being functionally disabled on the bench is that it compromises my right to a decision consonant with the rule of law (not that I have ever received one from perfectly healthy–but irredeemably corrupt–ones).

    How do you think I feel about having a decision rendered against me by a man who was well into his nineties and in all likelihood, suffering from senile dementia? I think we should have an age limit on judges (in Colorado, they are forced to retire at 70), full on-line disclosure of every judge’s health, and a right to challenge a decision on the basis of possible judicial infirmity.

  20. Ken,

    You ask: How do you think I feel about having a decision rendered against me by a man who was well into his nineties and in all likelihood, suffering from senile dementia?

    You deserve a frank answer. If the judge was senile, as you assert (and I remain agnostic on the facts), you should feel abused and mistreated and denied the essence of due process.

    Your comments about age and illness of federal judges cause me to add a few random thoughts in no particular order:

    1. Science is telling us that many, many people are physically and mentally capable of performing high level work of a sedentary nature far longer than expected just a few years ago.

    2. Age limits for federal judges are not the solution. The numbers reveal that senior status federal judges perform so much of the work of the federal judiciary that the system would collapse without them.

    3. While I don’t like judicial term limits because those rules conflict with the evolving science, I think senior status judges should consider self imposed limits. For example, I have promised my court to take a full caseload until I am 70 (two and half years from now) unless something happens before then. At 70, I presently intend to continue working but probably reduce my caseload to the bare minimum necessary to help our court and maintain my staff. At 75, it is my present intention to retire fully. Why go at 75 if everything else is working? No better answer than that I am a planner and that number seems about right for me.

    4. The present informal system of handling old or sick judges really works pretty well. I have seen it up close. But, as my post suggests, I think judges have an obligation to be transparent about their health.

    5.As you know, 28 U.S.C § 351 provides that “Any person . . . alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.” Such a complaint triggers a formal review process within the judiciary. See here. In the case of judicial disability, if the complaint is sustained, this may result essentially in the judge being forced to retire. See 28 U.S.C. § 354(a)(2)(B)(i),

    Thank you for your engagement. All the best.

    RGK

  21. RGK: You ask: How do you think I feel about having a decision rendered against me by a man who was well into his nineties and in all likelihood, suffering from senile dementia?

    You deserve a frank answer. If the judge was senile, as you assert (and I remain agnostic on the facts), you should feel abused and mistreated and denied the essence of due process. [my emphasis]

    OMG! I got you half-way there. Now, let’s reel you in.

    How do you think I feel about having a decision rendered against me by judges properly named as defendants in tort (under facts legally indistinguishable from those in Diblasio v. Novello, 344 F.3d 292 (2nd Cir. 2003) (claims survived summary judgment))[a], despite the fact that eighteen non-conflicted judges were available and expressly authorized by statute to sit it in their stead?[b]

    These are all judicially noticeable and formally noticed facts, so you don’t have to remain agnostic.

    In Federalist #10, Hamilton observed that “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. ” And, just in case the reason for this isn’t obvious on its face, the Colorado Supreme Court explains why:

    The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides.

    People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (Colo. 1915) (emphasis added).[1]

    If there is a more self-evident violation of due process than that, I’ll be damned if I can figure out what it is. So, I will ask the same question: Should I “feel abused and mistreated and denied the essence of due process” on these judicially noticed facts and if not, why not?

    Should I also “feel abused and mistreated and denied the essence of due process” on account of the documented fact that a federal DC judge whose husband was a friend of one of the defendants (their relationship had been documented as far back as their time at a college radio station) Gertner’d my resulting Carey v. Piphus, 435 U.S. 247 (1978) (absolute right to procedural due process) claim (as all pro se cases are in the District) on freakin’ Rooker-Feldman grounds?

    Am I not entitled to the same Fourteenth Amendment that Hugh Caperton got, the same Rooker-Feldman doctrine that Exxon-Mobil got, and the same Equal Protection Clause that Frank Ricci got, and if not, why not?

    And I will ask you yet again: Is there any other country in the civilized world that has a judicial system that is so fucked up that a decision like this could ever be handed down? Certainly not anywhere in the Commonwealth, as certiorari is a mandatory remedy.[2] And as the vast majority of nations are signatories to the ICCPR, and a signatory State is liable for all torts of its authorized agents,[3] it can’t even happen in Burkina Faso! Iran couldn’t even fuck this up!

    I kind-of think I DO deserve some frank answers.

    And you wonder why I am such a persistently virulent critic of our kangaroo court system (Damn! I WILL have to apologize to those nice kangaroos again)? There is nothing quite like a justifiably disgruntled customer….

    (I will respond regarding the absurd Potemkin village that is judicial self-discipline in another post, as I’ve been down that road, and have more jaw-dropping war stories.)

    ENDNOTES:

    [a] The law controlling liability in quasi-judicial proceedings in the Tent Circus is so well-established that they are disposed of in unpublished opinions: If safeguards against abuses of the process exist and are enforced upon demand, the admin judges are entitled to tort immunity … but if not, they are not. Devous v. Campbell, No. 92-8063 (10th Cir. Jan. 13, 1994) (applying Horwitz v. Board of Medical Examiners of State of Colorado, 822 F.2d 1508 (10th Cir. 1987), further stating that Supreme Court and Tenth Circuit cases properly set
    forth the controlling law and analysis).

    [b] It is standard practice in states with statutory or constitutional provisions analogous to Colo. Rev. Stat. § 13-4-101 for conflicted supreme court justices to recuse. See e.g., Mosk v. Superior Court of Los Angeles, 601 P.2d 1030 (Calif. 1979) (also collecting cases from North Dakota, Washington, and Wyoming); Lorenz v. N. H. Admin.
    Office of the Courts, 858 A.2d 546 (N.H. 2004), Sullivan v. McDonald, 913 A.2d 403 (Conn. 2007). In every case in every common law jurisdiction confronting it, the Rule of Necessity was only applicable where no substitute judge could be found. See e.g., Dickason v. Edwards [1910] 10 CLR 23 (Australia); Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [1998] 1 S.C.R. (Canada), Ruben v. Petewon, 14 FSM Intrm. 146 (Chk. S. Ct. App. 2006) (Micronesia). There is no contrary authority.

    [1] The case law reads like a Brandeis brief. E.g., Calder v. Bull, 3 U.S. 386, 388 (1798) (“a law that makes a man a Judge in his own cause … is against all reason and justice”), Tumey v. Ohio, 273 U. S. at 523, 531-534 (judge violated due process by sitting in a case in which it would be in his own financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212, 215-216 (1971) (per curiam) (judge violated due process by sitting in a case where one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133, 137-139 (1955) (judge violated due process by sitting in criminal trial of a defendant whom he had indicted); see also, Gibson v. Berryhill, 411 U.S. 564 (1973) (administrative agency). There is no contrary authority.

    Colorado law is in accord. “Even where the trial judge is convinced of his own impartiality, the integrity of the judicial system is impugned when it appears to the public that the judge is partial.” People v. Botham, 629 P.2d 589, 595 (Colo. 1981); see also, e.g., People v. Dist. Court, 192 Colo. 503, 508, 560 P.2d 828, 831 (1977) (“Courts must meticulously avoid any appearance of partiality.”); Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo. 1984) (“Although the trial judge is convinced of his or her own impartiality, if it nonetheless appears to the parties or to the public that the judge may be biased or prejudiced, the same harm to public confidence in the administration of justice occurs.”); Nordloh v. Packard, 45 Colo. 515, 521, 101 P. 787, 790 (1909) (stating that the impartial administration of justice is necessary “to retain public respect and secure willing and ready obedience to [courts’] judgments”).

    [2] In Great Britain, King’s Bench was tasked with the duty of supervision over all lower courts, and had power to issue all writs necessary for the discharge of that duty —referred to as prerogative writs because they essentially do the same thing. “The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.” Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 (India). And “by virtue of its ‘general superintendancy over all inferior courts,’ King’s Bench could punish judges of lesser courts by attachment for contempt ‘for acting unjustly, oppressively, or irregularly’.” Raoul Berger, Impeachment: The Constitutional Problems 161 (Harvard U. Pr. 1974).

    [3] The United States is a signatory to the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force March 23, 1976) (ratified by the United States Sept. 8, 1992), the intended purpose of which was to eradicate all legal immunities for violations of citizens’ rights by the sovereign. As it is a validly enacted treaty, it is the law of the land, U.S. Const. art. VI, cl. 2, and by virtue of the ICCPR and its First Optional Protocol, and court decisions throughout the world, e.g., Köbler v Austrian Republic [2003] 3 CMLR 28) (European Union), Simpson v Attorney-General (Baigent’s case), 3 NZLR 667 (CA 1994) (New Zealand), Nelles v. Ontario, 2 S.C.R. 170 (1989) (Canada), Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC385; Case C-224/01, justly risen to the level of jus cogens law. But should all that “furrin” law give Scalia heartburn, his own words should suffice: “At the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law.” Antonin Scalia,“Historical Anomalies in Administrative Law,” as quoted in Ermin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1210 & fn. 43 (2001).

  22. Ken:

    You need to be honest about what you did. The Colorado Bar refused to admit you to practice because of your mental instability and your abusive lawsuits.

    http://www.cobar.org/opinions/opinion.cfm?OpinionID=5343

    You tried to get the entire federal bench of Colorado recused, they weren’t named defendants you just called them all “John Doe 1-50” and then demanded recusal.

    http://www.ca10.uscourts.gov/opinions/10/10-1280.pdf

    You’ve sued every member of the U.S. Supreme Court in their personal capacity including Clarence Thomas at least twice.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-935.htm

    You tried to get a U.S. District Court or *ORDER* the U.S. Supreme Court to take up your frivolous appeals after they denied cert over and over again. Specifically you wanted “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.””

    http://f11f.wordpress.com/2011/03/07/eight-justices-out/

    You have harassed yourself into several state and federal contempt citations for suing judges and filing frivolous materials against them for the “crime” of ruling against you.

    “As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure.”

    In talking about people with possible mental issues Ken, given the the CO Bar denied you admission because of your mental issues, I’d suggest people in glass houses should not be throwing stones.

  23. Ken:

    You need to be honest about what you did. The Colorado Bar refused to admit you to practice because of your mental instability and your abusive lawsuits.

    http://www.cobar.org/opinions/opinion.cfm?OpinionID=5343

    You tried to get the entire federal bench of Colorado recused, they weren’t named defendants you just called them all “John Doe 1-50” and then demanded recusal.

    http://www.ca10.uscourts.gov/opinions/10/10-1280.pdf

    You’ve sued every member of the U.S. Supreme Court in their personal capacity including Clarence Thomas at least twice.

    http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-935.htm

    You tried to get a U.S. District Court to *ORDER* the U.S. Supreme Court to take up your frivolous appeals after they denied cert over and over again. Specifically you wanted “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.””

    http://f11f.wordpress.com/2011/03/07/eight-justices-out/

    You have harassed yourself into several state and federal contempt citations for suing judges and filing frivolous materials against them for the “crime” of ruling against you.

    “As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure.”

    In talking about people with possible mental issues Ken, given the the CO Bar denied you admission because of your mental issues, I’d suggest people in glass houses should not be throwing stones.

  24. With your indulgence, Judge Kopf, it appears that I am going to have to defend my honor against the cowardly calumny of this anonymous attacker. (I am pretty sure I know who he is; the guy has stalked me before. He’s not very good: He once traced my I.P. to Tahiti when I was sitting at home in front of the fire. Wish he had actually been right. 🙂 )

    Cynic: “You need to be honest about what you did.

    I am perfectly honest about what I did. Unfortunately, neither you nor the justices of the Colorado Supreme Court can say the same. Personally, I welcome honest scrutiny, but I have my doubts as to your honesty, competence, and/or motives.

    Cynic: “The Colorado Bar refused to admit you to practice because of your mental instability

    Essentially, someone got a bee in his or her bonnet–or as is more likely in Colorado, cash changed hands–regarding my First Amendment-protected activities in exposing a corrupt televangelist. Specifically, they used the words, “inordinately interested.” Some might think I went too far, but others may think that I didn’t go far enough. It is protected speech. That does not, standing on its own, make a credible ground for a finding of “mental instability” and even if it might, they skate on awfully thin First Amendment ice.

    Further, the bar had no standard by which they could even begin to determine an applicant’s “mental stability.” Yes, we asked. Indeed, an applicant could still be admitted to the CO bar despite the fact that he “has been declared mentally ill or incompetent by a court having jurisdiction, and the declaration has not been dissolved or rescinded.” The “mental stability” standard is therefore void for vagueness. LDS, Inc. v. Healy, 589 P.2d 490, 492 (Colo. 1979); see e.g., Connally v. General Construction Co,.269 U.S. 385, 391 (1926).

    And then, there were the procedural issues. The Inquiry Panel had 30 days (now, 35) from the date of the decision in which to issue its report; it took them 120. That requirement is jurisdictional. Furthermore, “[t]he findings shall state with particularity the specific matters indicating that the applicant is not qualified;” The report did not make any allegation to the effect that they were questioning my mental stability at all. Period. And again, that is jurisdictional:

    The issues at the formal hearing shall be limited to those in the inquiry panel findings and challenged in the applicant’s request for a hearing unless, prior to the hearing, the attorney regulation counsel requests the inquiry panel to reopen the probable cause determination to consider additional information.

    If I don’t challenge it, it isn’t part of the hearing. Period. And if findings are not stated with particularity, I don’t have to. As no such finding was ever made, it could never have been a proper subject of the hearing.

    And then, there is the ADA issue. As they do not require every candidate to go through a mental fitness evaluation, I become a protected person. Even if they could order me to undergo a psych eval, they couldn’t force me to pay for it.

    In essence, my legal gripe was that the Bar knowingly disregarded not only controlling federal law and my constitutional rights, but their own enabling statute. Justice Douglas wrote that “procedure … spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring). Lord Chief Justice Goddard adds: “Time and again this court has said that justice must not only be done but must manifestly be seen to be done. …” Rex v. Justices of Bodmin [1947] 1 K.B. 321, 325. This gripe is all about procedure.

    (FWIW, I got a psych eval in prep for trial, and passed it with flying colors. If I thought it was even an arguable point, I may have simply cut a deal. But these people–and one or two in particular–were on a jihad. If I had consented to play by their rules, I would have been signing my own professional death warrant. I won’t go into the gruesome details, but at the time, I was being represented by the premier civil rights lawyer in the region (David Lane), and heeding his sound advice.)

    Cynic: “and your abusive lawsuits.

    What “abusive lawsuits?” The preacher publicly accused me of stalking him; I filed a defamation action and on deposition, I actually got him to admit under oath that his statement was “rhetorical hyperbole.” The abuse was all on the other side: I had to recuse the judge on account of evidence that he had taken a bribe to rule against me on crucial motions. He was forced to grant that motion.

    FWIW, James Coyle (now CO Attorney Regulation Counsel) actually praised my efforts in Smith v. Bob Larson Ministries. If my litigation was abusive, why would he do that?

    Cynic: “You tried to get the entire federal bench of Colorado recused, they weren’t named defendants you just called them all “John Doe 1-50″ and then demanded recusal.

    Cyn, You don’t have the first fucking clue as to what you are talking about, now do you? I don’t know the names of every judge’s elbow clerks. (Or shall I call you “Ted?”)

    Cynic: “You’ve sued every member of the U.S. Supreme Court in their personal capacity including Clarence Thomas at least twice.

    Clearly, you don’t understand the difference between a personal capacity and official capacity lawsuit. Where did YOU go to law school, Ted? Smith v. Thomas (challenging the constitutionality of discretionary cert) was an official capacity action; rather by definition, you sue the nominal officeholder.

    Cynic: “You tried to get a U.S. District Court to *ORDER* the U.S. Supreme Court to take up your … appeals after they denied cert over and over again. Specifically you wanted “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.””

    And why is that even the slightest bit problematic? if you understood the rudiments of constitutional law, Ted, these ideas would not be so challenging to you.

    The question was whether I have a constitutional right to certiorari review of an irregular lower court decision. And if the opinion of Justice James Wilson—the main author of Article III—is to be afforded any weight, the answer is yes. The rationale is self-evident: if a lower court can disregard established precedent at will, not even constrained by the discipline of issuing a written decision binding on future courts, “law” as we know it literally ceases to exist. It would empower a lower court to depart from the law set out in such prior decisions without any reason to differentiate the cases, effectively reducing the Bill of Rights to what Scalia derisively calls “just words on paper.”

    If it is the Supreme Court’s “prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997), inferior courts have no colorable legal authority to defy its dictates. It logically follows that there must be some meaningful remedy for the transgressions of lower courts, as a right cannot exist without an effective remedy for its breach, Ashby v. White [1703] 92 Eng. Rep. 126, 136 (H.C.), and to “take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v. Greenhow, 114 U.S. 270, 303 (1884).

    As the victim of a flagrantly lawless decision at the appellate level, I filed a timely action in federal district court for the District of Columbia, alleging that the Justices owed me a legal duty to review that decision, and that I was legally entitled to an order compelling them to do so 28 U.S.C. § 1361. Read “literally, the language of § 1361 would allow a district court to issue mandamus directly against the Justices of the Supreme Court themselves.” Panko v. Rodak, 606 F.2d 168, 171 & n. 6 (7th Cir. 1979), and when the text of a statutory provision “is not ambiguous, the courts, in
    giving construction thereto, are not at liberty to search for its meaning beyond the instrument.” Lake County v. Rollins, 130 U.S. 662, 670 (1889). Moreover, the case must be “a strong one indeed, which would justify a court in departing from the plain meaning of words … in search of an intention which the words themselves did not suggest.” United States v. Wiltberger, 18 U.S. 76, 96 (1820).

    In the alternative, in reliance on the Declaratory Judgment Act, 28 U.S.C. § 2201, I asked the courts to declare the Bill of Rights null and void for want of meaningful enforcement. The First and Fourteenth Amendments guarantee access to the courts that must be “adequate, effective, and meaningful,” Bounds v. Smith, 430 U.S. 817, 822 (1977); ad hoc, ex post facto denials of jurisdiction in flagrant defiance of hide-bound precedent do not satisfy this requirement.

    I fully recognize that this is counter-intuitive to a layman like yourself, Ted, but it is not that challenging to those trained in law and logic.

    Cynic: “You have harassed yourself into several state and federal contempt citations for suing judges and filing frivolous materials against them for the “crime” of ruling against you.

    Go ahead. Tell me that it is not a violation of due process for a judge to sit in judgment of his own cause. A judge who aids and abets a felony is criminally liable for his willful and knowing participation in the scheme; he accepts liability in tort, as well. Whereas the government can always indemnify him if it chooses, the judge-made law of immunity has been trumped by our ratification of the ICCPR, which according to the Constitution, is the law of the land.

    Cynic: “As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure.”

    The author is entitled to his somewhat ill-informed opinion, but I thank you for bringing that article to my attention. I thought that I was pretty much the only man on the planet who knew about it. I will apprise him of what he obviously doesn’t know, and give him the opportunity to correct his statements.

    You obviously invested a lot of time in this, Ted.

    Cynic: “ I’d suggest people in glass houses should not be throwing stones.

    Speaking of which, how IS your baby-killing brudder-in-law, Ted? Last I heard, he was declared incompetent to stand trial in the matter of his allegedly throwing his four-year-old daughter off a California sea-cliff to avoid having to pay child support. (I’m actually sympathetic to his b-i-l’s plight, but this guy hates me so much that he follows me all over the Web.)

  25. Oh, in case anyone wants to know, the blogger “Cynic” refers to is Mike Sachs[1], a recent Georgetown grad, who didn’t seem to grasp the difference between official and personal capacity lawsuits: He writes:

    *UPDATE: QED and Joe in the comments did the due diligence to dig up the docket listing for Smith v. Thomas at the D.C. Circuit. Turns out Smith brought suit against every sitting justice in October 2009. Therefore, the mass recusal today was not because of perceived bias in favor of the named defendant, Justice Thomas, but rather that all eight justices (and former Justice John Paul Stevens) were also defendants.

    QED’s link didn’t work for me, so here’s a cached copy. And here is the District Court’s order granting the justices’ motion to dismiss. Turns out, as Joe points out below, that the suit was not an effort to remove the justices, but rather an effort to seek “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.”

    http://f11f.wordpress.com/2011/03/07/eight-justices-out/

    In short, it was a facial challenge to the constitutionality of discretionary cert. Like, DUH!

    If his readers had been astute professionals, they might have noticed this from the source they were using:

    Defendant – appellee: Sonia Sotomayor, Honorable, in their official capacities as Justices of The Supreme Court of the United States

    http://dockets.justia.com/docket/circuit-courts/cadc/10-5041/

    Sachs was just a little too wet behind the ears to grasp what he was reading. He made no effort to contact me, as a competent reporter would have.

    Compare my case–a challenge to the constitutionality of discretionary certiorari–to another rather notorious non-recusal decision: Cheney v. United States Ct. of App. for the District of Columbia, 541 U.S. 913 (2004) (Scalia, J., memo).

    Most Americans had the good sense to roll their eyes in bemusement when they heard Scalia’s public claim that he hadn’t received a bribe from Dick Cheney, even though he admitted facts, id. at 914, which would justify a bribery prosecution (a bribe is determined by the value of a thing to the recipient). But yet, he justified he decision to sit in a case deciding the interests of his good friend and generous patron in claiming that

    …while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.

    id.. at 916.

    Even though 28 U.S.C. § 455(a) requires a “justice” to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and inferior court judges routinely recuse themselves in matters when they are personal friends of parties or even attorneys in a matter, e.g., Scott v. Devry University, Inc., No. 08-cv-00575-WYD, 2008.DCO.1664, ¶ 8 (D.Colo. Mar. 24, 2008) (Versuslaw); Wassie v. Mukasey, No. 08-cv-00178-REB-MEH, 2008.DCO.1161, ¶ 10 (D.Colo. Feb. 29, 2008) (Versuslaw), Scalia chose to sit in the Cheney case, invoking this Court’s de facto Rule of Necessity, which provides:

    Even one unnecessary recusal impairs the functioning of the Court. … In this Court, where the absence of one Justice cannot be made up by another, needless recusal deprives litigants of the nine Justices to which THEY ARE ENTITLED, produces the possibility of an even division on the merits of the case, and has a distorting effect upon the certiorari process, requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four out of nine.

    William H. Rehnquist, et al., Statement of Recusal Policy of the Supreme Court of the United States, Nov. 1, 1993, at 1-2 (copy on file; emphasis added).

    If Scalia was fit to sit in judgment of his good friend Dick because it was an official capacity action and “nothing personal,” why was he not equally fit to sit in judgment in Smith v. Thomas?

    Someone has to be able to authoritatively answer the question of whether the practice of discretionary cert is constitutional. If not the federal district courts, and not SCOTUS, then who? JUDGE JUDY???

    This is one of the hazards of blog journalism: bloggers rarely do their due diligence.

    ENDNOTE

    [1] He blogs for the Huffington Post these days, and as near as I can tell, has no actual litigation experience. http://www.huffingtonpost.com/mike-sacks/

  26. And lest we miss the obvious point, Smith v. Mullarkey was written by the defendants in the case. No chance of disqualifying bias there, eh?

  27. Dear Ken and Cynic:

    First, let me remind each of you of my rules:

    Rules are, well, rules. My number one rule is simple: This is my blog, and I will do with it what I want and that includes (1) trashing your comments if they annoy me or (2) barring you from the site because I think you are crazy. I have other rules, but I am not going to tell you about them because my number one rule covers the waterfront.

    Here are a few tips that may help you from violating my rules:

    I love good writing, particularly about federal trial judges. I am fine with snark (particularly if it is directed at me), but I don’t like nasty or mean. I don’t like bullies or character assassins. I don’t like repetitive rants. I don’t like the terminally stupid. I greatly prefer reasons rather than conclusions. I am bored by those who think law is politics by another name–that’s not legal realism, it’s just plain stupid.

    Finally, if you engage with this blog, be aware that you take risk especially because I don’t promise to have or enforce rules and because I owe you nothing, In short, volenti non fit injuria.

    Second, I don’t care what happened to Ken in Colorado and I don’t want to hear anything more about it. It is not relevant to the purpose of this blog, and if it has some minimal relevance it is not worth the time sorting the relevant from the not relevant.

    Third, you have each been heard on this subject. No more.

    Fourth, if you violate this dictate I will ban you from the blog.

    All the best.

    RGK

  28. I am impressed by your and your district’s mature and thoughtful approach to the problem. Would that all federal judges and district courts approached the problem of potential medical incompetence in the way that you have.

    Unfortunately, many judges and courts instead approach the issue with little respect for the public’s needs, focusing instead on the judge’s feeling of self-importance and the perceived need not to alienate or depress the judge. I practice in a district where two judges would be described by any observer as utterly senile. They experience obvious memory lapses on the bench, repeat themselves in ways that make clear they’re reading a law clerk’s script without understanding it, and make rude comments to attorneys who point out that certain legal niceties need to be followed. The problems are well known to the bar — and I have to assume (based on reversal rates and reassignments ordered by the Circuit Court on appeal) that they’re also known to fellow judges including the Chief Judge. I’m in no position to know whether the affected judges’ colleagues and the senior judge have brought the matter up with the judges in question — or how forcefully they’ve done so. But it’s clear that Justice is ill-served — that criminal defendants and civil parties (and the public, too) are having their fates determined, in incredibly important cases, by men who should by now be resting at home with their loved ones, rather than sending people to prison, or deciding civil cases. And yet, they go on and on. A travesty of Justice — and one that compares poorly with your more selfless, mature, respectful approach.

  29. Westerner,

    I am very sorry to here about your experience. It reflects badly on all concerned.

    Thanks for sharing your experience. Perhaps someone with the power to change things will get the hint.

    All the best.

    RGK

  30. Westerner: “I practice in a district where two judges would be described by any observer as utterly senile. … But it’s clear that Justice is ill-served — that criminal defendants and civil parties (and the public, too) are having their fates determined, in incredibly important cases, by men who should by now be resting at home with their loved ones, rather than sending people to prison, or deciding civil cases.

    As Judge Kopf has agreed, whenever a judge stays on the bench so long that s/he can no longer discharge his or her duties competently, it is a patent violation of the litigants’ due process rights. The problem is that, as is the case in your District, the judge’s colleagues pull a McQueary: They can see the problem just as well as we do but invariably, they will circle the wagons around their friend and colleague, at the expense of litigants whose rights are cruelly sacrificed on the altar of collegiality. The problem is far worse at the Circuit level, as the litigants normally have no notice of the problem, and no objective way of ascertaining the judge’s mental fitness level.

    As the evidence shows, at the circuit level, courts use feeble judges as rubber stamps. By way of example, in the six years or so after Judge McWilliams of the Tenth Circuit turned 90 (on April 27, 2006), he delivered 54 unpublished opinions (which judges do not write, and seldom read). He dissented in seven opinions, and in six (of which one was published), he did not write a single word explaining why he thought the majority was wrong. In that entire time, he only wrote one paragraph in dissent, and did not author a single concurrence. If you check the records, you will find pretty much the same scenario with respect to very-senior appellate judges.

    Maybe it is just me, but I think a litigant has a due process right to know WHY a judge disagreed with the majority in his or her case. A well-crafted dissent can change the world (see e.g., Plessy v. Ferguson), and a judge needs to have the intellectual agility to grasp fine points of law to be able to discharge his or her duties. Dotage is a seeming inevitability; there comes a time (Judge McWilliams was still on the bench at 95) when everyone has to get off their horse.

    In theory, there are remedies, and you as an officer of the Court have a duty to avail yourself of them for the greater good:

    RGK: ” As you know, 28 U.S.C § 351 provides that “Any person . . . alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct.” Such a complaint triggers a formal review process within the judiciary.

    But of course, in the real world, Section 351 is a farce, as judges refuse to discipline themselves; as Dr. Cordero has pointed out, the odds of public discipline resulting from a complaint approach one in a thousand. Worse yet, they will resent your taking action, with deleterious effects on your career. Even Alan Dershowitz refused to turn in federal judges he charged in his book on Bush v. Gore as being corrupt, because it is a Career-Limiting Move. Section 351 is roughly as potent as the bill of rights in the 1935 Soviet constitution: you avail yourself of it at grave peril. I don’t blame you for complaining here instead.

  31. Pingback: Ken Smith is banned from this blog « Hercules and the umpire.

  32. In Kansas, we had the pleasure of working with Judge Wesley Brown until he passed away at 104. I only had the opportunity to interact with him personally a couple of times, but he was always sharp and engaging despite his age. It always baffled me that he assumed senior status before I was even born.

  33. You might want to look into what is called “chemo brain”. I’ve had two friends develop it after bouts with cancer (1 breast cancer, 1 non-Hodgkins Lymphoma). In both cases, for quite a while after their treatment ended, they were forgetful and scatterbrained. They are both recovering now, but you might want to advise your clerks and wife to be on the lookout for that. In the meantime, I’m remembering you in my prayers at mass.

  34. RDS,

    I am familiar with “chemo brain.” As of yet, the people around me have not mentioned symptoms consistent with that fog and frankly I have not perceived the onset of such a problem either. In my most recent progress note (April 29, 2014) from the doctor (which is available to the Chief Judge, the Clerk of Court and her deputy), the physician writes: “Psychiatric[:]No depression, anxiety. POSITIVE FOR INSOMNIA[.] Alert and oriented times three. Coherent speech. Verbalizes understanding of our discussions today.” The doctor added: “No physically strenuous activity, but ambulatory and able to carry out light or sedentary work (e.g. office work, light house work).” My doctor understands that I am a federal trial judge.

    Nonetheless, it is good of you to warn me. We all remain vigilant.

    All the best.

    RGK

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