Mr. Fuller has done the honorable thing, even if there was an inducement


See Jada F. Smith, Federal Judge to Quit Post; He Faced Abuse Charge, New York Times (May 29, 2015).*

Even if his resignation was induced under 28 U.S. Code § 354(a)(2)(B)(ii) (“If the conduct of a judge appointed to hold office during good behavior is the subject of the complaint, action by the judicial council under paragraph (1)(C) may include—requesting that the judge voluntarily retire, with the provision that the length of service requirements under section 371 of this title shall not apply”), Mr. Fuller has done the honorable thing. For that, I applaud him.


*For prior posts on this subject, see here, here and here.

My mind and heart is in Australia

It is early in the morning on Sunday.

Last night, I spoke to Keller. In this economy, it is tough being a young postdoctoral researcher even when your novel idea has been accepted by BioScience, an Oxford Journal, with a high impact factor.

A photo of our grandson Fletcher, who lives down under, helped me worry a little less:

El Tigre

El Tigre


Update on deportation

My chemo port came out easily and I was home by 7:00 PM with a little buzz and happy as a clam. The funny and tall male nurse, who described himself a “legal drug dealer,” made sure that my IV flowed with Versed and Fentanyl.

The port went to the lab. Will it grow germs that might be the source of my continuing infection? We shall see.


Religion as satire

Mainline American religion can sometimes produce real events that even a satirist could not dream up. This post provides an example.

In the city in which I live, a former bishop wrote that Catholics ought not do yoga because that was a “serious sin.” According to the Lincoln paper,

“It would be most desirable for persons who are Catholic to abstain from the practice of yoga and use other methods to exercise … We are never allowed to place our Catholic faith unnecessarily in any danger, and certainly the practice of yoga could be an occasion of serious sin …”

The Women of Grace blog further stated:

“He (Bruskewitz) correctly points out that yoga originated in, and is an important part of, various forms of the Hindu religion which is, in the Catholic perspective, ‘a pagan religion based on heathen beliefs and false doctrine of revelation involving such things as transmigration of souls, and so forth.’”*

This really pissed off the Hindus. Thus:

Hindu cleric Rajan Zed, in a statement issued early Friday morning, urged Pope Francis to discipline Bruskewitz for unnecessary condemnation of yoga. Zed is president of Universal Society of Hinduism, a noted leader in interfaith relations in Nevada and in 2007 was the first person to offer Hindu prayer before the United States Senate.

hinduDespite my agnosticism, I greatly respect Catholics (like my wife and members of her family) and other people of deep faith from America’s mainline religions. That said, the experts who do polling tell us that for Christians in America their share of the population is in sharp decline. I wonder why.


*As the Lincoln paper notes, “Catholicism is not the only religion to take issue with yoga. Some evangelical Christian churches warn congregants that it is incompatible with Christianity. In response, Christian yogis have adapted the stretches and meditations to include Christ-centered prayer and scripture.”

Today, I get my port removed at the hospital–Trigger Warning for Special Snowflakes: this post contains a video of the procedure and a full grown man’s naked chest

This afternoon, an interventional radiologist will remove my port at the hospital. The device will go to the lab to see if they can culture (find) any bacteria that may be on it. I still have the infection that caused the kidney problems that sent me to the hospital in March. In any event, they will let me go home in the late afternoon or early evening assuming there are no complications.

I will be glad to have the port removed ’cause I can then take off the silly bracelet that warns first responders that this old guy has a port and chest compressions in the wrong place would hurt like hell. Additionally, the removal provides closure for me regarding the cancer even though I will be closely monitored the rest of my life via PET scans and otherwise. Finally, it would be neat if the port was the infection culprit, since that would eliminate the source of the problem. We shall see.

Removal will take place while I am awake, just like when it was installed more than a year ago. Here is a video of the surgery on another fellow which shows nicely where the port is placed and how it is surgically removed:

After the pain medication wears off, I will feel like a mule kicked me in the chest. Other than that, I should be able to kiss the dog and beat the wife.


Text of Chairman Grassley’s Inspector General bill for the federal judiciary

Thanks to a helpful reader, here is the bill (Senate Bill S.1418 (2015)) as it appears in the daily edition of the Congressional Record on May 21, 2015:

S. 1418

 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the ‘‘Judicial Transparency and Ethics Enhancement Act

of 2015’’.


(a) ESTABLISHMENT AND DUTIES.—Part III of title 28, United States Code, is amended by adding at the end the following:



‘‘1021. Establishment.

‘‘1022. Appointment, term, and removal of Inspector General.

‘‘1023. Duties.

‘‘1024. Powers.

‘‘1025. Reports.

‘‘1026. Whistleblower protection.

‘‘§ 1021. Establishment

‘‘There is established for the judicial branch of the Government the Office of Inspector General for the Judicial Branch (in this chapter referred to as the ‘Office’).

‘‘§ 1022. Appointment, term, and removal of Inspector General

‘‘(a) APPOINTMENT.—The head of the Office shall be the Inspector General, who shall be appointed by the Chief Justice of the United States after consultation with the majority and minority leaders of the Senate and the Speaker and minority leader of the House of Representatives.

‘‘(b) TERM.—The Inspector General shall serve for a term of 4 years and may be reappointed by the Chief Justice of the United States for any number of additional terms.

‘‘(c) REMOVAL.—The Inspector General may be removed from office by the Chief Justice of the United States. The Chief Justice shall communicate the reasons for any such removal to both Houses of Congress.

‘‘§ 1023. Duties

‘‘With respect to the judicial branch, the Office shall—

‘‘(1) conduct investigations of alleged misconduct in the judicial branch (other than the United States Supreme Court) under chapter 16 that may require oversight or other action within the judicial branch or by Congress;

‘‘(2) conduct investigations of alleged misconduct in the United States Supreme Court that may require oversight or other action within the judicial branch or by Congress;

‘‘(3) conduct and supervise audits and investigations;

‘‘(4) prevent and detect waste, fraud, and abuse; and

‘‘(5) recommend changes in laws or regulations governing the judicial branch.

‘‘§ 1024. Powers

‘‘(a) POWERS.—In carrying out the duties of the Office, the Inspector General shall have the power to—

‘‘(1) make investigations and reports;

‘‘(2) obtain information or assistance from any Federal, State, or local governmental agency, or other entity, or unit thereof, including all information kept in the course of business by the Judicial Conference of the United States, the judicial councils of circuits, the Administrative Office of the United States Courts, and the United States Sentencing Commission;

‘‘(3) require, by subpoena or otherwise, the attendance and testimony of such witnesses, and the production of such books, records, correspondence, memoranda, papers, and documents, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by civil action;

‘‘(4) administer to or take from any person an oath, affirmation, or affidavit;

‘‘(5) employ such officers and employees, subject to the provisions of title 5, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates;

‘‘(6) obtain services as authorized by section 3109 of title 5 at daily rates not to exceed the equivalent rate for a position at level IV of the Executive Schedule under section 5315 of such title; and

‘‘(7) the extent and in such amounts as may be provided in advance by appropriations Acts, to enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and to make such payments as may be necessary to carry out the duties of the Office.

‘‘(b) CHAPTER 16 MATTERS.—The Inspector General shall not commence an investigation under section 1023(1) until the denial of a petition for review by the judicial council of the circuit under section 352(c) of this title or upon referral or certification to the Judicial Conference of the United States of any matter under section 354(b) of this title.

‘‘(c) LIMITATION.—The Inspector General shall not have the authority to—

‘‘(1) investigate or review any matter that is directly related to the merits of a decision or procedural ruling by any judge, justice, or court; or

‘‘(2) punish or discipline any judge, justice, or court.

‘‘§ 1025. Reports

‘‘(a) WHEN TO BE MADE.—The Inspector General shall—

‘‘(1) make an annual report to the Chief Justice and to Congress relating to the activities of the Office; and

‘‘(2) make prompt reports to the Chief Justice and to Congress on matters that may require action by the Chief Justice or Congress.

‘‘(b) SENSITIVE MATTER.—If a report contains sensitive matter, the Inspector General may so indicate and Congress may receive that report in closed session.

‘‘(c) DUTY TO INFORM ATTORNEY GENERAL.—In carrying out the duties of the Office, the Inspector General shall report expeditiously to the Attorney General whenever the Inspector General has reasonable grounds to believe there has been a violation of Federal criminal law.

‘‘§ 1026. Whistleblower protection

‘‘(a) IN GENERAL.—No officer, employee, agent, contractor, or subcontractor in the judicial branch may discharge, demote, threaten, suspend, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee to provide information, cause information to be provided, or otherwise assist in an investigation regarding any possible violation of Federal law or regulation, or misconduct, by a judge, justice, or any other employee in the judicial branch, which may assist the Inspector General in the performance of duties under this chapter.

‘‘(b) CIVIL ACTION.—An employee injured by a violation of subsection (a) may, in a civil action, obtain appropriate relief.’’.

(b) TECHNICAL AND CONFORMING AMENDMENT.— The table of chapters for part III of title 28, United States Code, is amended by adding at the end the following:

‘‘60. Inspector General for the judicial branch …………………………….. 1021’’.


An Inspector General for the federal judiciary?


The Chairman of the Senate Judiciary Committee, Senator Charles Grassley from Iowa, is proposing to create the position of Inspector General for the federal judiciary. See Lyle Denniston, Constitution Check: Do the Supreme Court and other federal courts need a watchdog?, Constitution Daily (May 28, 2015) (discussing S. 1418 (2015).).

As of this moment, the bill is not available to the public:

As of 05/28/2015 text has not been received for S.1418 – A bill to amend title 28, United States Code, to provide an Inspector General for the judicial branch, and for other purposes.

Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed.

S.1418 – A bill to amend title 28, United States Code, to provide an Inspector General for the judicial branch, and for other purposes, (click on “Text’) (last accessed May 28, 2015 at 11:08 AM Central Time).

Although the bill is generally unavailable, I received a copy and I have read it. With respect, I don’t favor the Senator’s bill. But given the federal judiciary’s lack of transparency in many areas, I understand the Senator’s motivation for introducing it. Nonetheless, I don’t like the blunderbuss approach when other more targeted tactics would work just as well or better. Additionally, the law of unintended consequences is always a concern (at least in the abstract).

The foregoing stated, if S.1418 ever passes, the world will probably keep spinning just fine. From time to time it may cause heartburn for federal judges, but that’s why God made Tums®.



FYI: Kopf will now go silent on Nebraska’s repeal of the death penalty

With the repeal of the Nebraska death penalty, and viewed from the perspective of the pending death penalty cases that I have now, I won’t be writing any further on this subject in Hercules. I see difficult legal issues looming in those cases, and, possibly, in “closed” death penalty cases I have handled in the past.


If you care about the First Amendment and free speech, here is a “must read”

Over at Concurring Opinions, the prolific Professor Ron Collins, just as he did with Judge Posner, conducts a fascinating interview with First Amendment icon, Burt Neuborne. Among other things, the post consists of:

__ a discussion of Neuborne’s new new book, Madison’s Music: On Reading the First Amendment

— a biographical sketch of Neuborn’s life work in the First Amendment area

— a discussion of his interpretive approach to the First Amendment

— a discussion of his views re the relationship between free speech and democracy

— a discussion of his views on Cass Sunstein’s 1993 book Democracy & the Problem of Free Speech

— a discussion of his views on the campaign finance laws

— a discussion of his views of the ACLU’s position on the campaign finance cases

— a discussion of his views of views on a constitutional amendment to overrule Buckley and its progeny

— a discussion of his views on the ACLU’s brief in McCullen v. Coakley (2014)

— and some closing comments on his future.

This post has several photos in it, including two of the young Neuborne and another of Neuborne white water rafting with then Judge RBG.

If you have an interest in free speech, this interview is required reading. Collins again distinguishes himself with his original scholarship on contemporary legal history.


Nebraska kills death penalty over veto of Governor

Updated at 4:20 PM

I just completed watching the audio and video feed of the debate and vote. The vote was 30 to repeal despite the veto, 19 to support the veto. In other words, the veto was overridden, but with no votes to spare. See the New York Times article.


%d bloggers like this: