How do I put this delicately . . .

The clinic wants  me to stop losing weight. So, they gave me samples of stuff with a lot of liquid protean. I drank one after my early morning blood draw yesterday. Hours later, without warning while listening to the testimony of the plaintiff during a non-jury trial, I learned something. You can’t look dignified calling an immediate recess, turning and exiting through the secure door behind you at a run while stripping your robe off at the same time, and then sprinting through the jury deliberation room to find the nearest bathroom. When I returned to the bench, the lawyers and everyone else did their absolute best to keep their faces straight, I mumbled some lame toilet joke, and the trial proceeded apace. That folks is legal realism.


Judiciary Supports Sentencing Amendment Retroactivity with Delayed Implementation, Training

I just got this e-mail from the Administrative Office of the United States Courts:

The federal judiciary, which administers the federal probation system, supports retroactive application of a proposed amendment to the U.S. Sentencing Guidelines that would lower penalties for most drug offenses, provided that:

1. The Courts are authorized to begin accepting and granting petitions on November 1, 2014;

2. Any inmate who is granted a sentence reduction will not be eligible for release until May 1, 2015; and

3. The Sentencing Commission helps coordinate a national training program that facilitates the development of procedures that conserve scarce resources and promote public safety.

Judge Irene Keeley, chair of the Criminal Law Committee of the Judicial Conference, expressed concern about the impact the added workload would have on public safety, if the proposed amendment is approved. In the past ten years, probation staffing declined five percent, while the post-conviction supervision caseload rose 19 percent.“The driving factor for the Committee’s decision was fundamental fairness,” Judge Keeley said in testimony today before the U.S. Sentencing Commission. “We do not believe that the date a sentence was imposed should dictate the length of imprisonment; rather it should be the defendant’s conduct and characteristics that drive the sentence whenever possible.”

“The release of thousands of additional offenders to supervision when the system is already dealing with diminished resources and an increasingly risky offender population raises several public safety concerns,” Judge Keely said.

“We believe that the delay in the effective date that we have recommended will help the courts and probation offices manage the surge in workload while we try to secure additional resources,” she told the Commission. “We also are confident in the ability of judges to discern suitable candidates for sentence reductions, and that through close coordination between staff in the judiciary and in the Executive branch this important amendment can be implemented effectively without putting public safety at risk.”

By the way, it was not a slam dunk that the federal judiciary writ large would support retroactivity.  For me, I am glad that it has done so.  The additional tweaks seem reasonable and. in any event, unobjectionable.  RGK 

Another vetting vignette

I had been a United States Magistrate Judge, for all of five months or so, when my old boss Judge Don Ross took senior status and then Chief District Judge C. Arlen Beam was nominated to take Don’s spot.  That left an opening on the district court bench, and Judge Ross urged me to “apply.” Unlike in more recent times, “apply” did not mean filling out formal paperwork for the home state US Senators. It meant letting the right people know of your interest.

I told Judge Ross that I was reluctant to apply because I had just become a magistrate judge, and he replied that these opportunities did not come along very often, so I should not be stupid. Judge Ross could be blunt. So, I “applied.” Truth to tell, I “applied” to Judge Ross and he passed along my interest to the powers that be.

I found myself at Main Justice in the summer of 1987 as preparations for the Bork nomination and hearing were in full swing. I think I wore a vested wool suit with vague pin strips and highly polished shoes. Of course, that meant I was covered from head to toe in perspiration as I was ushered into a room for my first appointment. Like Bush 41, President Reagan had the legal policy lawyers at DOJ do the interviews for non-entities like district judges.

I was supposed to have five interviews of about an hour each and then a final interview with the head man. Honestly, the interviews were fun. The DOJ lawyers were extraordinarily smart and asked tricky question. I truly enjoyed the give and take. After the fifth interview, I was told that a sixth interview was added for a guy who normally dealt with appellate judges. That interview went fine too, although of all the interrogators the last one was clearly the smartest and toughest. By the way, stacked in his office were all the papers that Robert Bork had ever written.

By mid afternoon, it was time for the last interview with the big cheese.  This one was brief and to the point. He asked me why the President should nominate me. Throwing caution to the wind, I told him the six fellows that had just interviewed me would tell him, if he hadn’t already asked, that I was the best candidate for the job.

At the point, he cracked a small smile and asked what I had done to piss off Congresswoman Virginia Smith. I told him that I had represented the state in an impeachment proceeding against Paul Douglas, the Republican Attorney General, but that the charges were bipartisan. Nonetheless, Mrs. Smith and many of her supporters were friendly with Mr. Douglas, and they questioned my Republican bona fides in taking on the investigation and ensuing impeachment.

Virginia Smith was small woman with enormous national political influence despite the fact that she represented the third district of Nebraska. The boss man at DOJ was blunt. He said: “We might be interested in your nomination, but we aren’t taking on Mrs. Smith for you. If you can talk her out of opposing you, call me back. Otherwise your done.”

When I got back to Omaha where I was then stationed, I called the one person that I knew could change Mrs. Smith’s active opposition. As it happened, I knew Bud well, he was a lawyer in Lexington. While we were not friends, we had always been cordial. He and his wife were close confidantes of Mrs. Smith and long time friends of the Attorney General. I asked Bud if he might be willing to intercede on my behalf, and he said no. He was not unpleasant, but he was absolutely firm in the view that I had made a choice in proceeding as counsel for the state against a fine Republican Attorney General and I would now have to live with consequences. In short, I was toast.

Mrs. Smith got the White House to nominate a nice fellow from her district, but the ABA would not give him a qualified rating. Then, she convinced the White House to nominate another lawyer from her district, state district judge Bill Cambridge. I had known Bill in the practice and respected him particularly his humility and work ethic. He was easily confirmed, and Bill and I became fast friends. I remained a United States Magistrate for five more years.



On being vetted

One reader suggested that I might add some posts on what is like to being vetted to become a judge. I think that might be of some interest.  So, for the next several days, I will post pieces about what happened to me in the vetting process.

I have been “vetted” four times. Once by our Court with the assistance of the FBI when I became a magistrate. Twice by the White House when I was considered for the position of district Judge. And, once by Senator Chuck Hagel for a circuit judge position.

The day after Christmas in 1986, and after the FBI was done with me for the position of magistrate judge, my wife died unexpectedly while we entertained a client who had just gotten out of prison. Since my wife was perfectly healthy or so everyone thought, our wonderful friend and family doctor urged an autopsy. He said it was particularly important to know whether there was something genetic going on. I agreed.

The autopsy came back. My wife had idiopathic myocarditis. Essentially, this is an inflammation of the heart that interferes with that organ’s ability to function. Not infrequently, young men and woman in the 40s just fall down and die without any symptoms to speak off. That’s exactly what happened to my wife in the kitchen of our home as she was gathering more to eat.

I don’t remember when, but around the time the autopsy was complete, I received a letter from the Special Agent in Charge at the Omaha field office of the FBI. He expressed his condolences for the death of my wife due to idiopathic myocarditis.

The only way the SAC could have known of the precise cause of death (because the death certificate showed only “heart failure”) was for him to have read the autopsy report. I had certainly signed all the waivers necessary for him to obtain whatever he wanted at the beginning of the FBI inquiry. After reading the letter, I was impressed with the FBI thoroughness and “wink and a nod” kindness of telling me that the FBI knew exactly the cause of death and there was no concern. Sometimes, being “vetted” is sad.





Justice Breyer is “a cold fish,” the young and the dumb said so

As a lawyer, until you have been around for a while after law school, you are young and dumb. You just are. It is a provable fact–as a lawyer without experience you are young (even if you are old) and you are dumb.

I don’t care if you went to Harvard Law School. I don’t give a shit what your IQ score was at some prep school. I don’t care if you carry around your Nobel Prize. No White House should use lawyers with no more than two years experience to help vet potential Supreme Court nominees. For a terrifying (and fun) read when the young and dumb were consulted in the Clinton administration about Judge Breyer, please read ‘Cold Fish’ Memo on Justice Breyer Surfaces in Clinton Papers, Wall Street Journal (Jun 6, 2014). Thanks to Howard Bashman, at How Appealing.

When I got done reading the article. I had two thoughts. (1) What a bunch of fucking idiots at the White House to rely upon these kids.  (2) What kind of an ego does it take to believe that two years out Harvard you are competent to undertake the task of evaluating a potential nominee to the United States Supreme Court?

God(s) please spare us the young and the dumb.




Who me?

A book came in the mail. It contained a letter from the publisher, Henry Holt and Company. Addressed to “Richard,” the letter asked if I would care to review Uncertain Justice subtitled The Roberts Court and the Constitution (June 2014). The book was written by the Constitutional law legend Laurence Tribe, and someone else that I did not know, Joshua Matz. My first thought was: Who me? You really want a review from me?

Federal district judges are at the bottom of the judicial totem pole. Some wags refer to our work as the offal of “third tier toilets.” The appellate courts don’t really care very much what we write, and that is particularly true of the Supreme Court. For example, I have had two cases reach the Supreme Court. These were the Carhart partial-abortion cases, one involving a state law and the other a federal law. So, far as I am concerned, they were identical. My decision was affirmed 5 to 4 in the first case, and reversed 5 to 4 in the second. No, I just don’t understand the Supreme Court, and that was good enough reason not to attempt a book review of a book about the Supreme Court.

I am also infuriated with the Supreme Court. Over a period of seven years, the Court went this way and that way telling federal trial judges about about how they must sentence criminals.* Taking their own sweet time to lay down rules that were necessary to the day-to-day functioning of the federal judiciary was grossly irresponsible. I said so in no uncertain terms in a piece that later won a Green Bag legal writing award and that generated a fair amount of publicity in the legal press. David Lat, wrote:

Any trial judge with the Gall to benchslap the Supreme Court has a serious set of cojones. Accordingly, Judge Richard Kopf (D. Neb.) — who sent beer to Professor Doug Berman, as recently noted — is our Judge of the Day. See links collected below. We agree with Tony Mauro: Judge Kopf’s irreverent “top 10″ list of lessons learned from the high court’s sentencing jurisprudence is “a provocative jaw-dropper that may get Kopf scratched off the holiday card list at the Supreme Court.”

 David Lat, Judge of the Day: Richard Kopf, Above the Law (30 Jan 2008 at 4:10 PM). (For the “Top Ten” list itself, see here.)

In addition to not understanding the Court and also being infuriated by it, I had a third reason not to review the damn book. The retail price of the book is $30.00. I am required each year to disclose on the stupid financial disclosure form whether I have received gifts. In the past, when people have sent me books I have always returned them simply to avoid worrying about those silly disclosure requirements.

I was about to return the book, when I read a squib about the second author, Joshua Matz, To my amazement, the kid is presently a federal law clerk. So, I decided to dig a little deeper, and this what I found in the NYU Review of Law and Social Change about the brilliant (and baby faced) Joshua Matz.


Joshua Matz graduated magna cum laude from Harvard Law School in 2012. He was a law clerk to Judge J. Paul Oetken of the Southern District of New York. From 2013 to 2014, he is clerking for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals.

In law school, Joshua served as President of the American Constitution Society and as Articles, Book Reviews, and Commentaries Chair of the Harvard Law Review. He also worked as a research assistant to Professors William Stuntz, David Barron, and Laurence Tribe, interned for SCOTUSblog, and assisted several professors with appellate litigation projects. Joshua received the Irving Oberman Memorial Prize in Constitutional Law for the Class of 2012. Before attending HLS, Joshua received a B.A. magna cum laude from the University of Pennsylvania and an M.St. with distinction from Oxford University.

It is well-known around these parts that I have a great affection for federal law clerks. I was one once a long time ago. I know how hard they work, and how passionately they try to do the right thing. I try my best to promote them when I can. So, I decided what the hell! Tribe’s a genius and he has evidently found a wunderkind he is introducing to the world. Maybe you can help just a little bit.

So here goes, Kopf’s review of Uncertain Justice, The Roberts Court and the Constitution.

Initially, if you lean right, don’t be turned off by the liberal bona fides of the authors. This book is intellectually honest and decidedly nonpartisan. On the other hand, if you lean left, you will not find the red meat that you may hunger for. This is a mature book for mature people, both lawyer and layperson alike.

In addition to the clear and sometimes beautiful prose, the great strength of this book is that it endeavors to explain the “Roberts Court” in an unusual way and unlike what you might expect from academics like Tribe. Here are the approaches the authors reject:

Many of the most important stories of the Roberts Court consist not of definitive rulings but of the portents and fault lines that lurk in opinions and hint at what lies ahead. In this book, we show how conventional wisdom on these matters is often misleading, and we draw out the latent meaning of this Court’s opinions to identify the uncertainties facing the nation and its justices.

To that end, we do not adopt a standard convention in books about the Court: The “deep explanation.” We do not point to a strong left/right split, a partisan realignment, or a dispute over legal method and then argue that the life of the Court really boils down to that story. We do not claim that the Roberts Court is ultimately about a fight between “activism” and “judicial restraint,” both of which are largely useless terms (all justices are “activists” in certain areas of constitutional law). We do not pick one or two justices and insist that their agendas or struggles ultimately define the Court. Nor do we distill the Court down to “liberals” and “conservatives,” explaining landmark cases as the result of ideological blocs and agonizing over one or more inscrutable “swing voters.”

There is, of course, much to be said for these approaches to the Court. Executed well, each can reveal important patterns, draw out the under-appreciated influence of a particular justice or idea, and identify overall coherence or contradiction in the Court’s undertakings. Yet writing about the Court is not like examining the physical universe. Whereas scientists can at least strive for perfection in their models, only a madman or a fool would ever claim to have fully explained the Court. At times, this realization can inspire an intense frustration: scholars of the Court inevitably feel as if they are trying to nail jelly to the wall, to borrow an apt phrase from Teddy Roosevelt. In the end, though, accepting this limitation is liberating. It points the way toward a more ecumenical mind-set that can shed valuable light on the Court by approaching it from many angles at once.

Indeed, there are particularly good reasons to look skeptically on all of the leading deep explanations. They often overstate the determinate role of politics, principles, or personality and thereby squeeze out crucial elements of uncertainty and contingency. They certainly don’t capture how the justices actually think about their work or their positions on a nine-member court. Justice Elena Kagan tends to lean left, and Justice Samuel A. Alito, Jr., tends to lean right, but neither of them would ever approach a case by saying, “I’m a [liberal/conservative], so what does that mean for my vote here?” Nor do any of the justices reflexively think in, say, activist or nonactivist terms when considering how to work through constitutional issues.

Uncertain Justice, at pp. 3-4.

Here is the approach the authors adopt:

In those contests, every justice matters. For that reason, any accounting of the Roberts Court must grapple with the uncertainty inherent in a Court steered not just by one chief but by nine unique individuals – each with a different vision and voice, each with just one vote, and each keen to take the lead on certain issues. As Adam White has speculated in the Wall Street Journal, “Maybe we have a court without leaders.” That’s an intriguing proposition, but we would amend it: the Roberts Court has nine leaders, not none.

Id. at 8.

The authors’ decision to look at all nine justice who comprise the Roberts court is brilliant, unique and highly informative. By taking subject matter areas, and looking at the views of the individual Justices, the author reveal a far more nuanced and complex explanation of what goes on at the Supreme Court. And, not to fear, this is not a book about gossip. It is a book about how each of the nine grapple with the Rorschach test which is our Constitution.

In order to have a concrete background for their analysis, the authors look at nine subject matters. Here is the table of contents:

 1. Equality: Are We There Yet?
2. Healthcare: Liberty on the Line
3. Campaign Finance: Follow the Money
4. Freedom of Speech: Sex, Lies, and Videogames
5. Gun Rights: Armed and Dangerous
6. Presidential Power: Hail to the Chief
7. Privacy: What Have You Got to Hide?
8. Rights for Sale: Discounting the Constitution
9. Making Rights Real: Access to Justice
Epilogue: The Court and the Constitution

While one can quibble with this selection of subjects, one sees why the authors elected to focus on these nine areas. They provide fertile soil for a review of how the individual Justices approach their work. To the degree that any book like this can be a “page turner,” this is that book.

In this age of cynicism about the Court, the authors conclude on an uplifting note. I am glad they did because my cynicism about the Supreme Court had reached the status of a malignancy, and I didn’t need more poison to fuel that cancer.

They write:

Dissecting the logic of opinions with care, and attending to how much each of the nine justices views the Court and the Constitution, helps narrow the range of what seem like possible futures. That is so, however, only if we refuse to stereotype the justices and if we explore their opinions with an open and welcoming mind. The recurring disagreements between otherwise like-minded justices about privacy, free speech, and “rights for sale” should leave no doubt that it is often counterproductive to reduce the justices’ views to political caricature. That realization can provide a basis for cautious optimism: the process by which the nine justices reach their decisions is not foreordained by the policy views and political backgrounds the justices bring with them to their lifetime positions. Although those factors are relevant and can be influential, they are hardly the whole story or even its most important part.

In case after case, the Court’s decisions are shaped mainly by the justices’ deep beliefs about the architecture and design of the constitutional system itself, the way its parts fit together to make a working whole. What matters to each of the justices is how the Constitution defines values of liberty, equality, and dignity, and how it fuses them to historic precepts of state-federal relations and the separation of powers. What counts is how the justices perceive their vital role in our democratic society as they grapple with the realities of the past and then deal with the uncertainties posed by technological change, cultural transformation, and evolving societal expectations.

The Court is engaged in a dialogue not just with itself and its future incarnations but also with the lower courts, the other branches of our federal government, the sovereign states, and the American people. Stanford Professor of Literature Robert Pogue Harrison reminds us that “conversation is as essential to learning as it is to the life of the republic, for republicanism, as the civic humanists understood it, is all about a plurality of voices making themselves heard in an open forum.”

What emerges from an attempt to pursue these conversations through the stories of the Roberts Court and its encounters with American life is not a blueprint or a road map; nor is it a polemic praising or damning this Court’s rulings. What emerges instead is greater insight into what the Roberts Court is doing, where it is going, and how it is moving – at times halting and uncertainly – along the moral arc of history, the long arc that bends toward justice.

Let me say again, Uncertain Justice is mature book for mature people. It ought to be read by those people.


* See, e.g.UNITED STATES V. BOOKER, 543 U.S. 220 (2005). Stevens, J., delivered the opinion of the Court in part, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., delivered the opinion of the Court in part, in which Rehnquist, C. J., and O’Connor, Kennedy, and Ginsburg, JJ., joined. Stevens, J., filed an opinion dissenting in part, in which Souter, J., joined, and in which Scalia, J., joined except for Part III and footnote 17. Scalia, J., and Thomas, J., filed opinions dissenting in part. Breyer, J., filed an opinion dissenting in part, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined.

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