Winston Churchill: “If you’re not a liberal at twenty you have no heart, if you’re not a conservative at forty you have no brain.”

If Winston was right, what do you believe when you become 65, or 70 and so forth, particularly if you are a senior status federal district judge?* Scott Greenfield raised that point recently in an exchange with one of his readers over the hubbub surrounding my post on Hobby Lobby.

The exchange went this way:


 July 9, 2014 at 9:03 am

Judge Kopf appears to speak with the freedom of one who has accepted his own mortality. I don’t always agree with him, but his writing is always worth the time to read.

Reply ↓
SHG Post author
July 9, 2014 at 9:12 am
That’s a very interesting way to put it, “accepted his own mortality,” given that he suffers from Hodgkins Lymphoma. There seems to be a thing with senior judges, seen with Judge John Kane in Colorado, Judge Weinstein in EDNY, and Judge Kopf, where a judge comes to grips with the fact that he’s never going to make it to the Supremes, has a future limited by the good years and stamina he has left, and no longer feels the need to court anyone’s approval.

This frees the life-tenured judge to spend his remaining time on the bench doing what he believes is right, no matter who he pisses off in the process.

Judge Kopf and the Appearance of Impropriety (Update), Simple Justice (July 8, 2014).

Let’s assume for a moment that SHG is right. That is, an older judge who takes senior status is likely to:

“come[] to grips with the fact that he’s never going to make it to the Supremes, has a future limited by the good years and stamina he has left, and no longer feels the need to court anyone’s approval. . . . This frees the life-tenured judge to spend his remaining time on the bench doing what he believes is right, no matter who he pisses off in the process.”

Assuming Scott is right, we ought to ask ourselves some questions. Here are four to start the discussion:

1. Can you generalize regarding most senior status federal judges? In other words, do most seniors speak their mind more freely when they take senior status?

2. Is the “freedom” that Scott alludes to for senior judges a good thing or a bad thing? Or should senior district judges act just like their active counterparts?

3. Is the “freedom” that Scott alludes to for senior judges likely to be exercised in one direction (“liberal” or “conservative”)? Does that matter?

4. What does Scott’s conclusion say for the appointment of young judges, like those in their early 40s?

I am most interested in your take on district judges. Stray, if you must, to appellate judges or the Supreme Court but focus if you can on district judges These are just the high points. You can surely add others to flesh out Scott’s intriguing conclusion. In the past, I had not thought too much about Scott’s point, but, now that I have, I think it is pretty important.

Tell me what you think.


*“Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts’ workload annually.” FREQUENTLY ASKED QUESTIONS, United States Courts (last accessed July 15, 2014).

28 responses

  1. These are questions that probably can’t be answered by anyone who doesn’t have experience with senior federal judges, so that leaves me mostly in the dark (minus this blog). Sorry.

  2. Judge Kopf–

    I think the answer to your first question fairly resolves the issue. No, you cannot generalize about senior judges or, for that matter, active judges (and by “active” I mean, as you know, an Article-III judge who has not taken senior status).

    It seems to me that Mr. Greenfield’s hypothesis assumes that the typical active federal judge (1) aims to be on an appellate court, (2) does not recognize his/her own mortality and stamina and (3) cares particularly what others think of him/her. I don’t think there’s any survey evidence on that point, but I’m pretty confident that a significant number of active federal judges would disagree with some or all of those assumptions.

    Moreover, while I’m no statistician, I’m pretty sure that one cannot diagnose a “thing” by looking at three examples out of hundreds — especially since the very traits you’re looking for make it more likely those few examples will stand out and the others will not.


  3. As I prepared to leave my comment, I saw that my friend David had just left it for me, 100% correct and on the mark.
    -Peter G

  4. Not even enough experience to even guess but, wasn’t that exactly the point, originally, in the lifetime appointment?

    That was my understanding, and if (and remember I’m not saying it’s so) non-senior judges are not doing the right thing (in their minds, at least, and given the context) we need to revisit many things.


  5. I tend to agree with David Fine but would like to make the point that few federal judges write or speak to a general audience and when they do the lawyers in the audience pay the most attention.

  6. As the Stan who prompted SHG’s comment, I can say that I was not thinking as much about how this freedom affects judicial decisions by a senior judge as I was about the freedom to comment about law and policy in this blog. While I would hope that any senior judge would apply experience and acquired wisdom to their decisions, the constitution, statutes, regulations and precedent all provide a framework for judicial actions. What makes this blog interesting is the glimpse into how this happens, particularly when personal beliefs and the demands of the law are not always in alignment.

  7. Not that I disagree with David Fein points, per se, but his characterization of SHG’s comment is a strawman, and his comment fails to address the question in the post, which assumes SHG is right. Scott offered an observation, which Fein turns into a hypothesis with Fein’s assumptions projected onto Scott, and then later a “diagnosis.” Either Fein is reading challenged or assumes that no one will notice his gambit. I doubt he would walk away unscathed if he did this in court.

    A rather facile and shabby way to address the question posed, and quite unfair to all involved.

  8. Sgt. Schultz:

    I’ll leave it to Judge Kopf and others to decide if my comment was “facile,” “shabby,” “unfair” or a “gambit.”

    But your suggestion that I might be “reading challenged” is unfair to Christine Waters, who taught me to read many decades ago at Whiteford Elementary School in Sylvania, Ohio. I’ve always thought she did a pretty decent job.

    She also taught me the word “ironic” as in “Isn’t it ironic to be called potentially ‘reading challenged’ in a comment in which the author has mispelled your name many times although it appeared at the top of the comment to which he was responding?”

    All best,


  9. Ah yes, I spelled your name wrong. My apologies. You win the internets.

    As for Ms. Waters at the Whiteford Elementary School in Sylvania, Ohio, I’m sure did the best job she could.

  10. Sgt. and David:

    Just to be clear: I didn’t go Sylvania. I went to Ottawa Hills and Maumee. Probably irrelevant ’cause I can’t speel either.

    All the best.


  11. If you are not a sage at 70, you are a failure.

    Judge Kane is one of the few federal judges with ‘nads. He has been honest in admitting that pro se litigants are treated like lepers in federal court. Retired Judge Gertner has admitted that the average man cannot even count on the protection of the law. A legal system requires public acceptance, and our two-tier system of “justice” does not deserve it. In America, you get as much justice as you can afford.

    Judge Kane found his voice. Judge Posner found his. You should resolve to find yours, instead of trying to make excuses for our system.

    Cowardice is a lymphoma of the soul.

  12. Judge:
    I unofficially call this phenomenon “Richard Posner Syndrome.” It’s requirements are that you be:
    1) a federal judge;
    2) outspoken;
    3) unlikely to be nominated to the U.S. Supreme Court; and
    4) (because of the first three) ready, willing and able to publicly discuss a whole host
    of topics for both lawyer and layman alike.
    Relax and enjoy. You are in very good company.

  13. David,

    I think you’ve read far more into my comment to Stan than was in there. I wasn’t offering either a hypothesis or diagnosis, but merely an observation. In fact, it wasn’t really mine, as this was explained to me by a senior status district court judge with whom I’m friends, who was bemoaning the “career path” concerns of young judges (this goes to your question, Judge Kopf) and the freedom he felt after he took senior status.

    You can, of course, disagree, but this was, nonetheless, the judge’s thoughts on the question. When you become a judge, you can feel any way you want.

    I don’t think this is ripe for generalization, but rather an expression of the freedom senior status offers. No doubt many judges will feel differently, or felt they were “doing right” all along. Then again, perhaps their idea of “doing right” fortuitously aligned with their career path self-interest. Since I don’t have a sufficient universe from which to draw any grand conclusion, I can’t say.

    As for Sgt. Schultz, she’s a long time reader of mine and rather protective. Your harping on her misspelling your name, while she was addressing the substance of your comment, was poor form. Internet etiquette frowns upon such pettiness, and you might do well to be more circumspect with people whose identities you don’t know.

    Back to Judge Kopf’s question, I think there’s much to think about in the freedom that comes when other internal conflicts are past. Some won’t avail themselves of it. Others had all the freedom they wanted all along. The observation is about how freedom can impact an individual judge’s views, not about judges generally, senior or active.

    I don’t think it has anything to do with being liberal or conservative, but being freed from internal constraints. Whether freedom is a good thing or bad is based on how it’s used, and that, of course, is always a matter of whose ox is being gored.

    And Stan, sorry that my reply exceeded your question. I do that sometimes. I can be a bit opportunistic. My bad.


  14. Having a lifetime job *might* have some role in this. But, I think in general, now that I have reached the age of my upper 50’s, that most folks get a little more cantakerous as they get older. I remember reading log ago that some of the astronauts would become more like themselves as they aged – someone described it as the “moon” effect – from having landed on the moon. But, as I get older, I think many people become more like themselves as they get older. And, have to say, Judge, you strike me as someone who has long had a healthy cantakerous streak…..

  15. Robert, the Posner reference would never apply to me. He is a giant. Several other factors might.

    All the best.


  16. NEO,

    That is a very interesting point; that is, Article III was intended to promote judges speaking out. While I think that is a stretch, the Founders were not stupid. They understood that life tenure was a powerful tool for independence. But speaking out and independence are two different things.

    All the best.


  17. I take your point, Judge, and yes you are right. Still, I find it useful to have a bit of insight from the bench, as well as all of these academic lawyers that blog.

    Best to you,


  18. Tom,

    You end your comment with these word: “And, have to say, Judge, you strike me as someone who has long had a healthy cantakerous streak…..” Having memorized the Miranda warning, I confess you are right.

    All the best.


  19. SHG,

    There are all sorts of interesting things about this issue.

    For example, if a judge is inclined to speak his or her mind as an active district judge, but the judge elects not to do so for the reasons you imply or others, one can imagine a very unhappy judge at senior status time who is just bursting at the seams to express himself or herself candidly? That in turn can cause real “management” problems of the senior judge by the Chief Judge and generate all manner of internal conflict. One of the little secrets in the judiciary is that in some districts some judges won’t take senior status because they fear they will be marginalized, kicked out of their chambers, denied a courtroom and essentially told to shut up.

    To be clear, that is not the case in my situation. We have a history of treating senior judges respectfully such as allowing them to vote on all district wide issues. I moved chambers voluntarily because the active judge needed the larger courtroom and chambers, and I did not. I followed the example of Judge Urbom when he took senior status and I became the resident active judge. Moreover, my Chief Judge, Laurie Smith Camp, is a class act, one of the best persons ever, and she has been totally supportive of my blogging efforts.

    In short, your exchange was intriguing. I thank you for it.

    All the best.


  20. SHG —

    I claim no expertise in “internet etiquette,” but I’d be surprised at any protocol that condones an anonymous writer’s calling someone else’s comments “facile,” “shabby” and “unfair” but that “frowns on” a modest tweak about a mispelled name. I’m pretty sure your anonymous booster didn’t feel that she was slandered or that her free expression was chilled.

    All best,


  21. Judge,

    I suspect there’s a lot of interesting internal issues surrounding this, much of which is apparent to an outsider. I am far more interested in your take on whether, and to what extent, this happens and/or applies. My view is only from a distance, which raises my “Squire of Gothos” problem.


  22. David,

    The internet is filled with such surprises for the unwary. You may want to spend some time checking into it rather than speculating about it. The former may be informative. The latter is usually a complete waste of time.


  23. SHG,

    I didn’t want to answer that question. But I should. I think it applies to me.

    Growing old, and being sick, when once you fancied yourself a vibrant gunner, does create a certain inner turmoil. It is probably time for me to read more Elisabeth Kubler-Ross. Maybe I am at the anger stage. Or maybe I’m just bargaining. In any event, I have not reached the acceptance stage! (In my former life, (two days ago) I would use an expletive to punctuate the point. Oh, dear.)

    All the best.


  24. I did not remember your Ohio roots. My mother taught at Sylvania. All of her students were above average. On another personal note, I find that by age 70, labels such as conservative or liberal are not worth using.

  25. Anon.,

    Since I barely got out of Maumee High with a diploma, it would be wrong to compare me to your Mom’s students at Sylvania. But, I agree with you entirely that by our age labels such as conservative and liberal are meaningless, at least for those of us who think for ourselves.

    All the best.


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