To Salon and Brad Friedman: Give me a f…ing break

Salon through Brad Friedman has a florid article entitled, America’s most heinous judge resigns: Wife-beater Mark Fuller leaves the bench, finally, but not easily (June 1, 2015). While correctly and fairly noting that I harshly condemned Mr. Fuller and called for his resignation, the piece describes me as one “who likely shares a similar political and judicial philosophy as Fuller . . . .”

To Salon and Friedman,

You are idiots.

You provide no data, and have none, to establish that I “likely” share “a similar political and judicial philosophy” to Mr. Fuller. If you took the time to look, you would see that I twice supported a woman’s right to a “partial birth abortion” and both cases ended up in the Supreme Court. You would also find that, when sitting on the Eighth Circuit Court of Appeals, I supported Mrs. Clinton and dissented from the panel’s decision to deny her the attorney client privilege during a White House meeting with her government lawyer and her private lawyer. You would also find that I actively supported the Presidential commutation of a black woman who was the victim, at my hands, of the overly harsh Sentencing Guidelines.

You might even notice that I was appointed by Bush 41, rather than Bush 43, and that, at the time of my appointment, I was serving as a United States Magistrate Judge having gone through a statutory merit selection process to become an MJ. Had you examined the record, you would I have found that I have elected not to vote since I became a judge more than two decades ago. Had you done any due diligence you would have discovered that I was trial counsel for Nebraska in an impeachment proceeding brought by Nebraska (through the nonpartisan legislature) against a Republican Attorney General.

Moreover, had you done your research, you would have easily found that I took “senior status” at a particular time partially because I trusted President Obama more than the Republicans to appoint my successor. I clearly elaborated on this point on this blog on May 12, 2013:

So, as I contemplated if and when to take senior status, I was very mindful that I owed a lot to the Republicans who supported my nomination two decades earlier. But, to be frank, there was a countervailing concern. The Republican party as I knew it had vanished. When it comes to judges, the modern Republican party places a premium on a rigid orthodoxy and I have never trusted “true believers.” While I had absolutely no sense of who the Republicans would nominate, I was very concerned that my replacement might be an ideologue rather than a good lawyer. As a consequence, I studied what President Obama had done in the way of nominations to the federal district courts. In large measure, it appeared that the men and women Obama nominated to the federal district court bench were non-ideological (although frequently left-leaning) and mostly very good lawyers.

Richard G. Kopf, Did politics make a difference in my decision to take senior status?, Hercules and the umpire (May 12, 2013).

In short, I deeply resent the insinuation suggested by Salon and Mr. Friedman. Not only was it unfair to me (and Mr. Fuller), it was terminally stupid and ignorant. What’s worse, such unsupported assumptions all too often allow the media to lump judges together on nothing other than rank speculation. If journalists give a shit about accuracy and the federal judiciary, they ought to realize that we “Republican” judges don’t all look-alike*–here’s hoping you are smart enough to get my allusion.


*Of course, the same thing is true for “Democratic” judges.

40 responses

  1. Judge, you should be the last person to accuse a blogger of posting derogatory information without researching the issue or performing any due diligence.

    If I remember correctly, wasn’t it you who published an accusation against prosecutors (that had been made by a Ninth Circuit panel) without having conducted any research into the matter to determine if the allegations were accurate or not?

    Indeed, you never even had the guts to apologize for engaging in defamatory blogging without doing any investigation into the truth of what you communicated for the world to read.

    Yes, internet blogging is a cesspool if not done responsibly.

    Welcome to your filthy world.

  2. Karma,

    I don’t know what you mean. But, you are perfectly right about Karma. I richly deserve whatever nasty things life throws at me, but that doesn’t mean I have to like it.

    All the best.


  3. Thank you!
    We may or may not agree on the political situation or many other things but your comments here are exactly what needed to be said.

  4. Take that assholes!
    Wish Obama had an appointment to the USSCt. You would be a fine choice
    The Republicans of old wouldn’t recognize some of their successors.

  5. You are too much of a contrarian to fit in any pigeon hole, witch is part of the fun.

  6. Judge:
    Mr. Friedman gives away the game when, before the body of the article itself, he identifies former Judge Fuller as a “George W. Bush appointee who beat his wife bloody…” While it is technically true that Mr. Fuller was nominated by that particular president, the implication in such an introduction is clear: Bush 43’s nominee was as evil as he was (and vica versa). Mr. Friedman, as is the case with so many others, clearly prefers an echo chamber to another type of audience.

  7. Robert given that it is standard practice to say what POTUS nominated a judge you are over reacting, doubt that Friedman was suggesting George W produced an outbreak of spousal beating.

  8. When Robert Travers, under his non pen name, became a judge of MI S Ct he described himself as looking like a pregnant Prussian field marshal smuggling a basketball into the court room. While perhaps not that portly, the description captures more Art iii judges that does the image of a murder of crows.

  9. What happens when a judge is impeached by the House and aquitted by the Senate? I would think they would be so severly damaged they could not carry out their normal duties.

  10. Robert, That was about 26 years ago, However you maybe right though remembering that after all these years is impressive, I do not remember yesterday’s breakfast.

  11. I imagine if a judge is willing to fight the case through to a Senate trial, they’re not going to leave voluntarily come hell or high water.

  12. Whatever Brad Friedman is, he certainly is not “an idiot.”

    Labeling him that way says more about your integrity that about his.

  13. As a former law clerk for a Federal appellate court judge, I find that the media simply cannot resist the temptation to label a judge with whatever prejudices their intended audiences might carry simply by reference to the POTUS who nominated that judge.

    The media doesn’t care whether that judge consistently applies the law, it doesn’t care whether that judge avoids the political fray, and it certainly doesn’t care if the judge has proven to be more than the sum total of which POTUS nominated him or her. All of that would be far too difficult to capture in a 500 word or less snippet. Nor would much of the audience likely go beyond the twitter-length 140 characters in any article.

    Judge, your service over the course of well over twenty-eight years as a federal judge defines your temperament and judicial philosophy, not the judicial officer(s) (MJ) or POTUS (USDCJ) who may have ultimately elevated you to your federal judicial positions. Lumping you in with Judge Fuller (or any other “republican” nominee) is an insult, but unfortunately, no longer unexpected. Keep calling them out and hold your head high.

  14. Judge Kopf:

    It is the media. They do this all the time. Don’t get upset over it. Salon is wrong. Most media outlets are like this and put people, including yourself, in the unfortunate position to have to respond, defend, or counter because, like it or not, we live in the digital age where everything comes up on the first or second page of google and silence is interpreted as an endorsement. I love the first amendment but I hate reporters who make broad idiotic statements….unfortunately there is nothing you can do about it…

  15. Just to add to my post above as Anon, but please do call them (media) out….unlike others, at least you are in a position to call them out, so do call them out as needed…

  16. Karma:

    If I remember correctly, the Ninth Circuit made the finding. There was nothing wrong with Judge Kopf’s repeating of the allegation.

  17. Anon.,

    With your experience as a former clerk to a federal appellate judge, I am particularly glad to hear from you.

    The Salon piece annoyed me personally. So what? I am a big boy at the end of my career. It doesn’t matter what anyone thinks of me personally.

    What is really troublesome is the journalistic operating principle that uses the proxy of the President as the metric by which individual judges are judged. Using the President as a proxy can be fine for large data sets crunched by political scientists, but it is obviously a flawed way to look at individual people.

    Journalists are smart. It is not that they don’t understand their use of this fallacious approach is weak-minded. Rather, some are too lazy to do otherwise, and many others find it a useful tool to further their left-leaning or right-leaning goals.

    I worry for a lay public that is increasingly dependent upon small bits of information as the foundation of their world view and, in this example, their take on the federal judiciary. As another blogger (Scott Greenfield) is fond of saying, we ought not make people dumber.

    Thanks for taking the time to write. All the best.


  18. Anon.,

    Thanks for writing. As I replied to another person who commented, I am not worried about myself so much as I am worried for my beloved federal judiciary.

    Separating judges into castes does great harm to the federal judiciary as an institution, and does nothing to further the public’s insight into who we are and what we do. So, I intend to continue my personal jihad against journalistic institutions like Salon and writers like Brad even though it may be fruitless.

    All the best.


  19. Pardon me, your Honor, but why in the hell are you defending yourself (or judges in general) against such stuff? It is what it is. It seems to me that if one wrestles in the barnyard, one cannot complain of dirty, smelly clothes (or a messy arena). It also seems to me that a man of your age and accomplishments, with a few unfortunate health issues, yet bound and determined to fight battles, would be better served fighting battles that have the potential for progress. Correcting bloggers/reporters who seemed determined to be wrong seems a waste of time, effort, brains and frankly, peaceful enjoyment, but I suspect you know that firsthand.

  20. The courage and humor you have shown in dealing with illness entitles you to much respect and getting upset with Salon is perhaps understandable, but when did the public ever have other than snipets from which to judge the courts. When we still had fault divorce clients knew the grounds in Cal. and had to be told this was NE. Rose Birds famous decision about the phone booth was treated as off base because most people do not understand the idea of multiple causes. Nobody really has a clue about most legal issues. The first interstate I road on in Kan. was lined with impeach Earl Warren signs. More and more the type of judges to be appointed is an issue in politics and separated the parties. Your comments about liberal icon Reinhardt and Don Lay’s power lust in habeas were hardly works of scholarship.. though you did send us to law reviews which I am sure helped the non lawyers. While Roscoe Pound’s idea that lawyers and judges are misunderstood because they are a priestly class is probably silly, the historic hostility runs through American history. Relax.

  21. Judge, you’re in good company. Justice Holmes was an appointee who disappointed the president who appointed him. So was Earl Warren.

  22. Somewhat related to my overall reply below, if defending the (federal) judiciary is important (and I’d agree that it is and would replace “federal” with “all of the…”), why not “fight” to help correct the rampant problems that unfortunately exist and help stories like the one cited here gain traction with the public?

    If someone were to write a scathing condemnation, or merely a disparaging critique, of how janitors mopped, computer programmers typed, architects used a drafting table or gardeners mowed a yard, no one would pay attention because there is no real controversy (or manufactured, such that anyone has an interest in observing). However, the way judges adjudge (and whether motivations to a particular decision are, ahem, influenced) is of great concern to much of the public. The public knows instinctively that we need – NEED – judges, but they also know they must be fair and as above reproach as human nature can possibly permit.

    Fix that issue and “articles” like this one will garner as much interest as a 5000-word exposé on left-to-right versus up-and-down mopping techniques.

  23. How DO you get into so many of these silly little squabbles, Your Honor?

    The American people have lost faith in the judiciary’s ability to perform its function: apply the law to the facts in an even-handed and apolitical way. Mark Fuller is one of the worst offenders, playing an essential role in one of the most odious political prosecutions in recent memory. But the fault lies not with the public, but the judiciary. Even if you don’t participate, your silence is an indictment.

    Best line of the entire month (on BradBlog): Your “beloved federal judiciary” is “America’s FIFA.” It’s even funnier because it is largely true. The 98% of federal judges who are dishonest political hacks make it look bad for the good ones.

  24. I once was guilty of the same sin. I was a newly-minted law school graduate and clerking for a federal appellate judge, a Carter appointee, in 1983. A district judge, a recent Reagan appointee, had granted habeas corpus in a controversial case. About the second or third time that I said to my judge that I was surprised that a “Reagan Judge” would do this, my judge exploded. Although we had had many heated debates, this was the one time that I think that the judge really was angry with me. The judge said: “X is a UNITED STATES DISTRICT JUDGE. He is a fine man. Don’t ever label one of us by the President who appointed us.” It was a valuable lesson for me. In the 30+ years since then I have appeared before judges appointed by every President from John F. Kennedy to Barack Obama. I think that all of them have tried to be fair and more than once I have received a ruling that the judge’s appointing President probably would not have liked. That being said, when a judge issues a controversial ruling, I usually look to see who appointed him or her.

  25. Mark,

    Thanks ever so much for taking the time to write, and, in particular, thank you for sharing your story about your judge. Several observations.

    First of all, good for your judge. Second, I think using the President who appointed judges is a reasonable proxy for a large group of judges–that is what political scientists do in certain circumstances. Third, using the President who appointed a single judge as a proxy to predict that particular judge’s behavior is obviously fraught with danger. Fourth, my complaint with the Salon article is that I expect journalists to do more research than their readers and hence be better informed. Otherwise, they are just making readers even dumber. Finally, when I see a goofy opinion–that appears ideological in nature–I too check to see who appointed that particular judge. But, that is different. My motivation for checking is the ideological nature of the judge’s opinion, as opposed to generalizing about a specific judge based solely on whether the judge was appointed by a President of one party or the other. As I say, political scientists tell us that party affiliation is good proxy in certain circumstances for examining large data sets, but no serious person would use that criteria as the single data point upon which to generalize about a specific judge.

    All the best.


  26. Coultergeist,

    I have no answer to your first question.

    Second, I agree that the American public is losing faith in the federal judiciary but that is because of our lack of transparency rather than dissatisfaction with particular decisions. I believe the public will accept decisions they don’t like, and respect the judiciary in the process, when judges are utterly transparent. Unfortunately, we are failing badly when it comes to transparency.

    Thanks for writing. All the best.


  27. Ah yes, nothing wrong with the decisions themselves, we are just not EXPLAINING them properly.

    Bush v. Gore was insufficiently TRANSPARENT, for instance, and surely Citizens United would have gone over splendidly if it were presented in the form of a reality TV show.

    Here we have encapsulated the true ESSENCE of the problem.

  28. Anon.,

    I see what you mean. But, do me a favor and tell what you propose to cure the problem(s) you see?

    All the best.


  29. That’s the problem. For every Richard Kopf, there are fifty Mark Fullers. Not wife-beaters, but political partisans with no respect for the Constitution or our laws. When you give people like this the kind of power that would try a saint, you expect this to happen.

    I’ve actually written judges “fan letters” for going against their Party. All three of them, at last count.

  30. I posted my solution elsewhere. It wouldn’t address subtle changes of law on arguable points (Bush v. Gore was NOT subtle), but it would go a long way toward rebuilding desperately-needed public confidence in the judiciary. Perhaps you should invite your learned audience to offer ideas on how we can cure the problem(s).

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