Senator Ted Cruz is not fit to be President

June 26, 2015 - Sheldon, Iowa - U.S. Sen. TED CRUZ (R-TX) says he is mad about lawless judges referring to the U.S. Supreme Court's gay marriage decision as he speaks to a small crowd as he makes a campaign swing through northwest Iowa. (Credit Image: © Jerry Mennenga/ZUMA Wire)

Credit Image: © Jerry Mennenga/ZUMA Wire

As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.

Senator, and Presidential candidate, Ted Cruz has recently stated,

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015) (“This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. . . . . Both decisions were judicial activism, plain and simple. Both were lawless.”).

Ted Cruz is a brilliant and well-educated man and former law clerk to Chief Justice Rehnquist. If he is seriously suggesting the following, and it unfortunately appears that he is serious, Cruz is demonstrably unfit to become President despite his resume:

[T]he Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

. . .

But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.

And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.


There are at least three reasons why this proposal is wacko.

First, Mr. Cruz’s attack on the Framers–for allegedly underestimating “the justices craving for legislative power” and over estimating the “Congress’s backbone to curb it”–reflects a “Ted Cruz knows best mentality.” It ignores the debate among the brilliant Founders regarding the power of the judiciary. That debate was held and a result was reached. For Cruz to propose that he alone knows better and he alone knows more than the Founders reflects an ego the size of Texas. If we truly cherish what went on in Philadelphia, then the momentary political machinations of a right-wing ideologue ought be rejected out of hand. History has proven, as I next discuss, that the lifetime tenure provision of the Constitution adopted by our Founders, after serious debate on the subject, is the best way to insure we have a Court that can check the political branches of the federal government, that we have a Court that can check the 50 states, and, when necessary to protect the rights of the minority, that we have a Court that can check the majority. A life tenured system of Justices is a brilliant and thoughtful method of balancing power in this federal republic. Ted Cruz should know better than to reject the wisdom of the Founders.

Second, while Cruz is enraged about the gay marriage and the ACA decisions he ignores what lifetime tenure has brought us over a much broader expanse of time. Blacks have been freed from segregated schools, Nixon was instructed that no President is above the law, and each person in Texas has the right to have his or her ballot counted equally because of the Court’s “one man/one vote” declaration. Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.


Finally, George Will, a thoughtful person with unquestioned conservative credentials, suggests that Ted Cruz has become “unhinged.” Will argues convincingly that judicial elections will make the Supreme Court more political rather than less political.

Will makes his persuasive argument this way:

Cruz’s idea is congruent with the 1912 proposal of another rambunctious Ted, former president Theodore Roosevelt. Running as a full-throated Progressive (against another progressive, Democrat Woodrow Wilson, and the conservative Republican president and future chief justice William Howard Taft), TR advocated not just the recall of judges but also “the review by the people” of “certain” judicial decisions. TR embraced the core progressive belief that the ideal of limited government and hence the reality of the separation of powers are anachronisms.

It is, therefore, especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court’s political behavior by turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court’s prestige and hence its power to stand athwart rampant executives and overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.

George F. Will, Some GOP candidates becoming unhinged over gay marriage ruling, Washington Post (July 1, 2015). (Emphasis added by Kopf.)

Mr. Cruz seeks to sacrifice the Supreme Court upon the altar of an extreme right-wing ideology. That makes him unsuited to become President.


94 responses

  1. You just figured out that he’s a wingnut? Many of us knew that some time ago!

  2. Maybe judicial retention elections aren’t even a good idea for Nebraska. It seems most other civilized countries get along fine with an entirely appointed judiciary.

    Maybe we should just follow the Canadians’ lead and let the Queen appoint all of our judges. I’m only half kidding here. Canada’s system of having an advisory panel of lawyers, sitting judges, and government ministers vet candidates who apply, and then having the crown appoint them on consent of the executive seems to actually work really well. I don’t hear many complaints about the quality of the Canadian judiciary.

    But then again I’m just a maple swilling traitor, so this could all just be a clever ruse to amalgamate the United States into Her Majesty’s Canadian Empire.

  3. One might wonder if Cruz is saying this because he actually believes in this proposal, or whether — perhaps more likely — he is saying it to attract a certain sector of the population (and one that makes up a strong plurality of the GOP primary voters) knowing full well that his idea has no real legs, either in reality or in his own mind. I’m not saying this because I am defending him. Just wondering out loud if his proposal is less about a real approach and more about a Cruz shortcut to inspire voters who have a visceral, negative, response to the Court’s recent rulings.

  4. Judge, I think it’s out of your lane to (1) say publicly who’s fit to be elected to a political office, and to a lesser extent (2) give an opinion on a proposed amendment to the constitution. Although condition (2) tends to apply with more force, the more “political” and controversial it would appear to be, and certainly to the extent that such an amendment would tend to diminish the power and prestige of federal judges.

    Of course, Cruz has a brilliant intellectual history, making it all the more perplexing why he has spent a political career pulling stunts that appeal to the uneducated and uninformed. I guess there is political hay to be made in appealing to the know-nothings.

    In short, he’s an ass. Still, you should leave this alone. I once was at a law school where Scalia was speaking, and a student asked him about the merits of a proposed amendment on some topic or another. His response was the best: “You pass an amendment, and I’ll apply it.” And that was all.

  5. I shudder at the thought of a national judicial election. My perception is that Sen. Cruz is doubling down to establish (perhaps emphasize is the better term) his conservative bona-fides being interested in an appointment as Attorney General or to the Supreme Court, which should have several vacancies for the next President to fill. Another view may be that he is burnishing his image as a conservative celebrity, one very useful for fund-raising purposes and going into the world of highly paid talking heads, the crowd, as President Obama approaches the end of his second term, that might fairly be referred to now as nattering nabobs of negativism.

  6. I’ll partially rise to Judge K’s defense here.

    (1) I agree that calling Cruz unfit to be President crosses the line as far as a judge wading into politics. I think it was, and is, ill considered. Discussing the proposed amendment’s merits does not require the aspersions levied.

    (2) I think it is however appropriate for judges to weigh in on matters of public concern regarding the judiciary. For instance, much of the time of the Judicial Conference of the United States is spent on reviewing and modifying the Rules of Procedure before they’re promulgated by the Supreme Court. Judges have important knowledge and perspective that should be part of the public discourse, and I think any such speech is First Amendment protected.

    I see the difference as akin to how charitable organizations can lobby for legislation or rules or whatnot, but cannot endorse or support candidates directly.

  7. Greatly respect your opinion and well reasoned essay.
    But here’s the deal: the Supreme Court rOeally asked for this with the two ACA decisions and SSM decision. If SCOTUS acts political, then make them subject to the political process. Turnabout is fairplay after all.

    Cruz is running for president in a big field. He has seized an opportunity to stand out in the field. Smart guy!

    When the Iowa Supreme Court made the same decision on SSM a number of their judges lost their jobs. All sorts of wailing and crying. Grow up. You took your chances when you departed from precedent and the long established history and tradition of marriage in the Hawkeye state. All sorts of average people and average lawyers lose their jobs over much less.

    The Supreme Court of Iowa survived without them and issued the seminal decision on porch drunkness this very year.

  8. That’s the beauty of free speech and robust debate. You get to separate the contenders from the pretenders. Ted Cruz, sadly, falls in the later category.

    Looking more and more like another eight years of the Clintons. How is that possible?

    *I must note that a very good friend of mine is married to someone from Argentina. His father-in-law did not like the Clintons. He kept comparing them to the Perons and was convinced that like the Perons, the Clintons would have successive terms of office. It looks like he was right. OMG!

  9. Can S Ct recently declared a S Ct appointment unconstitutional, part of a running feud that Conservative Party has with the Court, the Charter contains a provision for overruling Ct’s decision though a convention seems to be developing against using it. Conservatives in UK not thrilled with direct enforcement of ECHR and may well propose repealing statutory authority, though stuck with Strasbourg while in UK..

  10. Tradition of marriage is nonexistent, both ACA decisions were right and the departure from precedent were the Commerce Clause limitation the 5 more conservative justices adopted. CJs Marshall and Hughes probably rolled over in their graves, and in second case reading language in the light of whole statute is the rule not Scalia’s use of what Frankfurter called the little Jack Horner approach pulling words out of context. Anon your politics are showing not your legal acumen.

  11. Dear Reader,

    You raise a very serious point. It was one that I very seriously considered. Reasonable people can can reasonably conclude that my calling Mr. Cruz unfit ventures too far into the political spectrum.

    Here, in brief, is a part of my reasoning for thinking that I was allowed to comment on his fitness to serve as President and that I did not venture too far into the political arena.

    First, I have not voted since I became a judge in 1987. I am not even registered to vote. I consciously decided on this course of action to assure myself that I would remain apolitical.

    Second, and starting from the foregoing premise, I have no axe to grind one way or the other about who is elected President generally speaking. That said, when a man of Senator Cruz’s education and experience calls for a radical and fundamental attack on the Supreme Court he is not acting in political terms. If he is really serious about the amendment he is a threat to the judiciary that I love and respect and have devoted much of my life to serving. Therefore, his unfitness is a function of his threat to our Constitutional form of government–it is in that sense that he is acting in an extra-political manner and that extra-political action entitles me to take the public position that I have taken about his unfitness.

    All the best.


  12. I agree with your conclusion, and your second and third arguments seem sound enough to me. But your first is quite invalid. It’s perfectly possible for two hundred years of hindsight to show even mediocrities how the Founders could have done better. I’m not claiming to be a better general than Lee because I think Pickett’s charge was a dumb call.

    I think Cruz would be an idiot if he really believed in his idea, which I’m sure he doesn’t – although he is either a nut or altogether unscrupulous, and maybe both. As I said, I like your conclusion, just not how you get there.

    On another point, it seems absurd to me to complain of your giving an opinion about a constitutional amendment process, which is sin no way a judicial function, o that neither you nor any other judge will be ruling on it.

  13. Judge:
    Lifetime tenure for federal judges has existed–for very good reasons–for more than two centuries. It will continue to exist irrespective of the desires of politicians to attempt to do away with it. In short, I wouldn’t worry about speeches purporting to advocate ending lifetime tenure nor would I take seriously those who would advocate same. As for Ted Cruz, he strikes me as a brilliant guy who, very likely, knows better than to say something like this. But, then again, we are almost in “silly season” (also know as a presidential election year).

  14. The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.

    —Judge Roger J. Miner (2d Cir.)

    Just about everyone not on this blog would agree that our federal judiciary is out of control. But the problem, according to Professor Ronald Rotunda, is to devise “reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one [except the judges] favors a judiciary that is above the law).” Problem is, there aren’t a lot of tools in the toolbox.

    History has taught us that impeachment alone is not an adequate check on judicial misconduct. A judge has to do something really outrageous to get impeached, and it rarely has anything to do with judges exceeding their constitutional authority. Hastings, Nixon, and Porteous were accused of taking bribes, which qualifies as an impeachable offense. Mark Fuller beating up his wife, not so much, as the Judge has correctly opined.

    Article III judicial commissions are conditioned on good behavior. Given that Alexander Hamilton asserted in Federalist #78 that “[t]he standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government,” the Framers actually meant something by it, and violations can be ascertained from the common law. But what we don’t know is who would be fit to enforce it. That Congress couldn’t do it was established a century ago in the investigation of Judge Emory Speer of the District of Georgia, charged with “despotism, tyranny, oppression, and maladministration” in the course of his judicial decision-making. Charles Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Courts 160 (U. Mich. Press 2008). Specifically, the congressional committee concluded that “a series of legal oppressions [constituting] an abuse of judicial discretion” did not constitute an impeachable offense, id. at 160-61 (quotations omitted), despite their being self-evident serial violations of his good behavior tenure. In theory, aggrieved citizens would have authority to enforce it in a civil jury trial (as was the case in Britain), but as a typical federal judge would much rather sodomize his mother’s corpse than let an action like that go forward, that clause is all but a dead letter. Another victim of judicial activism….

    Many of the Framers wanted to retain the power of address and in retrospect, maybe they should have. It has worked well throughout the Commonwealth. But the same argument against it then is of equal potency today: We don’t want a dependent judiciary.

    We tried letting judges police themselves, but as a general rule, whenever you put the mice in charge of the cheese, things tend to turn out badly. As the Houston Chronicle reported, judges only sanctioned their colleagues seven times in ~6,000 complaints—a lousy batting average in any league. Lise Olsen, Secrecy May Help Protect Misbehaving Judges, Houston Chronicle, Dec. 13, 2009, at A-1. And the cause is professional courtesy: the same malady keeping the Judge from criticizing colleagues not on the Supreme Court. See In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1183 (9th Cir. 2005) (Kozinski, J., dissenting) (whitewash of Manuel Real case). Clarence Thomas could file false EIGA reports because he was Clarence Thomas, and Antonin Scalia could go duck-hunting with a party to an appeal because he could. “Accountability” is for lesser men.

    The status quo ante is unacceptable, and Judge Kopf has no viable solution on offer. But Ted Cruz does.

    The Cruz proposal avoids the “dependency” issue by putting the fate of Article III judges in the hands of their bosses, while solving the excessive independence issue by providing a form of parliamentary address. It may need a few tweaks, but the idea itself is sound.

    Would the Justices have to campaign? Not necessarily. As we have learned in the nomination battles, both sides are prepared to throw unlimited resources at elections like these, and much like Jefferson and Adams, the Justices could give a few interviews, and that would be sufficient. Besides, having the public have to grapple with these decisions can only make for a stronger electorate. Conversely, the federal bench has become so political as it is that there isn’t that much risk in making it any more political. There is very little downside to this proposal.

    If this proposal freezes the judiciary’s blood, it must come to terms with the fact that they are to blame for this development. As Chief Judge Kozinski writes,

    Pleasant or not, it’s a responsibility we accept when we become members of the Judicial Council, and we must discharge it fully and fairly, without favor or rancor. If we don’t live up to this responsibility, we may find that Congress — which does keep an eye on these matters, see, e.g., Operations of Fed. Judicial Misconduct Statutes: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Prop. of the House Comm. on the Judiciary, 107th Cong. (2001); Report of the Nat’l Comm’n on Judicial Discipline and Removal (1993) — will have given the job to somebody else, materially weakening the independence of the federal judiciary.

    Given the dreadful state of affairs we endure today, a weaker federal judiciary doesn’t sound like a bad idea. For this reason, I stand in support of Senator Cruz’s proposal. I apologize in advance for the length of this response, but the Judge’s thoughtful and detailed critique demands it. While I would entertain viable alternatives, I don’t really see any.

    To suggest that Senator Cruz is any less fit to sit in the Oval Office than such luminaries as The Donald, Sarah “Caribou Barbie” Palin, Shrub, or Hillary on the basis of this thoughtful proposal alone is spectacularly irresponsible and unbecoming, coming from a sitting federal judge.

  15. I’m actually for Bernie 2016,

    Thanks for your engagement. I appreciate your point of view but respectfully disagree with it. The vast majority of federal judges are honest and trustworthy. In contrast, the vast majority of the complaints against federal judges are either frivolous or represent disagreement with the substance of the judge’s decision that is the proper subject of an appeal rather than a complaint against the judge.

    I am sorry that you found my post “spectualarly irrresponsible and unbecoming,coming from a sitting federal judge.” It is worth noting that as a sitting judge judge I “may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Code of Conduct for United States Judges, Canon 4(A)(1). I also observe that the commentary to this Canon states, “As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.”

    My post was directed at Senator Cruz and his unfounded attack on the federal judiciary. As such, I believe that I was well within my right to write what I wrote because he launched an unjustified attack on the federal judiciary and proposed an amendment to our Constitution that would have gutted the checks and balances our Founders agreed upon.

    All the best.


  16. How objective can you be when someone threatens to take action against “the judiciary that I love”?

  17. You can say it, Your Honor, but the point was well-made. In a field including The Donald, it is hard to argue that Kim Kardashian is manifestly unqualified (she will be 36 in 2016) to be President. Not your finest hour. Sometimes, it really is better for federal judges to STFU. 🙂

    But since you raised the point, a practical question emerges: What ARE the “checks and balances” restraining misconduct by the federal judiciary? “I’m for Bernie” makes the valid point that judges have (mis)interpreted them into oblivion. Ours is the only judicial system in the world where a judge can sit in judgment of his own case without penalty, as has been mentioned on this blog (and evidently, you didn’t even see THAT as wrong!). Impeachment is a mere scarecrow, Supreme Court review of even flagrant lower court errors has been abolished, and good behavior tenure has been reduced to a mere shibboleth. In most cases, appellate review is certiorari review, with appeals being decided on one-page summaries in far less time than it takes to get take-out at McDonalds. Where ARE the safeguards?

    (The problem with 1000 blog posts is that everything you have said or even not said may be used against you. 🙂 )

    I have to, as Bob put it, “call bullshit” on your claim that most claims against federal judges are frivolous and that that proves anything. First off, since the complaints are shrouded in unwarranted secrecy, we have nothing but your word to support it. Second, I have reviewed drafts of meritorious complaints which were summarily dismissed. Third, the Real and Kent incidents prove that judicial councils routinely “whitewash” valid clams, which is why James Sensenbrenner is so “hot” about it. Finally, there are all the complaints that the rest of us would have filed but failed to, safe in the knowledge that doing so would be an utter act of futility that would surely expose us to retaliation. I would genuinely enjoy your having robust debate on that issue with the “highly regarded” Senior Judge John Kane and Chief Judge Alex Kozinski (I would hate to be on the side opposing him), who say you are full of bullshit.

    If we had effectual provisions against abuses of judicial authority, I would be inclined to dismiss the proposal. But when the pigs are rolling around in the living room, you can’t say that the house is clean. Unless you can propose an alternative, your argument appears both tendentious and self-serving.

    The proposal is not unreasonable. For you to attack Senator Cruz in that manner is, at best, a serious lapse in judgment. Denounce his proposal? Of course. Attacking him personally is just plain wrong, and you embarrass yourself by indulging.

  18. Cardozo,

    I have heard your story before. I heard the incidents you mention before. Nothing I say is likely to make a difference to you. So, I will leave it this way: I agree with you to disagree with you.

    All the best.


  19. Sigh! If I could only teach judges to read…. 🙂

    What I took issue with, and found irresponsible, is your assertion that Ted Cruz is “not fit” to be President. While I am mortified by the prospect, that was over the line. Attack his ideas? Yes! Attack him personally? Not on these facts.

    Let’s do the math. If 90% of the complaints against federal judges are “cray-cray,” that leaves 600 credible ones, resulting in 7 admonitions. That suggests a 99% error rate in the judicial councils.

    If a judge decided cases with his Magic 8-Ball, and had staffers write his decisions (which he didn’t read), would that, in your eyes, be sanctionable misconduct? “[D]isagreement with the substance of the judge’s decision” is not always just the proper subject of an appeal. If it is not misconduct in judges’ eyes, it certainly is in everyone else’s.

  20. Canada’s Parliament retains the power of address. The fact that a judge can lose his or her job probably makes them behave better than Scalia, who asks, “What can they do to me? I have lifetime tenure.”

    In giving up the power of address, our Framers made a huge mistake.

  21. Cardozo, nobody is objective. We can be honest and forthright about our biases, taking care to leave them open to challenge, but we will have them, and that is not in itself a problem.

  22. Dear Orin,

    Point well taken. I could have given him some hard earned advice on that subject.

    All the best.


  23. I’m actually for Bernie 2016,

    I take your point on personalizing the matter of Mr. Cruz. But I have a question. If Senator’s Cruz’s legal proposition was beyond the pale, and I have the right under the Code of Conduct to write on legal subjects, why is that I am prohibited from concluding that his legal assertions disqualify him from public office? It seems to me that the two things are inextricably linked. I find it impossible to honestly separate the speaker from the speech in this instance.

    In this regard, I note that Senator Cruz was not content to debate ideas, he attacked the Court itself and every Justice. He wrote: “The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself.” For a highly trained lawyer to suggest that the entire Court is lawless is to personalize the debate both as to each individual Justice and the Court as an institution. Having done so, I respectfully suggest that giving him his own medicine on a legal subject was appropriate.

    Regarding your attack on the small number of judicial sanctions, in the past, I have made my position clear on the number of admonitions issued by the Judicial Councils. While I do wish the judicial council process on “discipline” was less opaque, your assumption that 10% of the complaints must be well founded is unfounded. There is simply no reason to believe tha 10% of the complaints must be meritorious.

    All the best.


  24. Ultimately, this is a conversation we need to have as a nation.

    The Judge’s biases are self-evident. Like Scalia, he likes being our absolute ruler so much that he is willing to “work for free.” Like Hitler, Stalin, and Putin, he craves power without accountability. And if we were in his position, we would probably prefer it, too. In the words of Bush #43, “If this were a dictatorship it would be a heck of a lot easier… as long as I’m the dictator.” Who wouldn’t “love” the institution that made you a god?

    The Judge’s biases are such that he refuses to recognize the problem. “I am your ruler. You are to obey me. What’s the problem?” That IS the problem. The judge’s office is to declare the law, and they stopped doing that a long time ago. If he destroys your life, it is an “acceptable error.” But don’t you dare mess with HIS power or perquisites. Cutting HIS staff funding was a mortal sin.

    We are all “learned in the law,” but our views are not tainted by his obvious self-interest.

    The Framers would most likely support Cruz. As “Brutus” (a/k/a, Judge Robert Yates) complains, “There is no power above [SCOTUS], to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” That Judge saw this problem coming, and his warning was prescient.

    None of the Framers were in favor of investing the judiciary with unchecked power. As Thomas Jefferson explains, “[w]e all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side.” John Adams adds: “As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature.” Certainly, Clarence Thomas’s seven-figure book deal qualifies as one of many “temptations to prostitution which the judges might have to surmount,” Federalist No. 83, and stripping the judges of their current excess of power reduces the potential for its abuse. And as James Madison observes,

    preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.

    Our imperious Judiciary has plainly overstepped its bounds. Not in the SSM case itself, but in too many others. We must find a way to restrain this tyrannical body, if we are to ever again live as a free people.

    Ted Cruz’s solution may not be the best one, but it is a good start. Certainly, it is better than the absence of a solution the Judge has proposed. In the words of Dr. Franklin, who proposed that it be emblazoned on our Nation’s Great Seal, “Rebellion to Tyrants is Obedience to God.” May God save our country.

  25. I thought Cruz was born in Canada and his father was then a non citizen, surely the Republican birthers can not tolerate that nor can the extreme literalists but Judge you probably did overshoot the mark on the issue of his fitness.

  26. I thank you for engaging. I don’t see the Code as staying your hand. Rather, I suggest that a serious proposal from a brilliant legal mind warrants more thorough consideration. Also, I would suggest that your natural biases are clouding your judgment on this question.

    “If Senator’s Cruz’s legal proposition was beyond the pale” is the crux of the nub. A fair reading of the public debate on this topic reveals the Framers’ concern that judges not be beholden to the legislature, but that they not be “independent of the people, of the legislature, and of every power under heaven.” Despite the craven political motive (Cruz’s need to “get noticed” by voters), his proposal appears to address their concern. Judges can be removed from office — not by a co-ordinate branch, but by the people they work for. It is consistent with the Framers’ view of sovereignty, and preserves the judges’ independence from the legislative and executive branches.

    As for sanctions, Judge Kane disagrees with your assessment, as does Judge Kozinski. To me, the “solution” is transparency. Every single complaint should be made public. We can decide whether you are right, or Judge Kane is. My suspicion is that you interpret “disagreement with the substance of the judge’s decision” too broadly, which is the point of my question wrt the Magic 8-Ball.

    As for Senator Cruz’s remark concerning “the lawlessness of the Court itself,” it is consistent with his theory of jurisprudence, as evidenced by his “leaked” Princeton senior thesis (which is truly first-rate, I might add). Elena Kagan said pretty much the same thing in her thesis (I have read both). When the Court interprets constitutional provisions out of existence, they ARE rewriting the Constitution, which is expressly above their pay-grade. If that is not “lawlessness,” what is? Alden comes to mind, as does Iqbal and Twombley. You can ask Professor Thomas about summary judgment, and how it is incompatible with the 7Am. While Cruz’s specific complaints border on demagoguery, the charge that our courts are “lawless” has been argued by judges and academics of all stripes, including (albeit somewhat delicately) Judge Arnold.

    For these reasons, I would respectfully submit that his remarks were not beyond the pale, or even that close to the border of it. Your own colleagues are more strident.

    I hope that this and my other remarks have addressed your concerns.

  27. Why must a judge be unbiased about how the judiciary operates (e.g., whether judicial elections are a good/bad thing)?

  28. Did you read the next canon?

    Canon 5:

    “A judge should not . . . publicly endorse or oppose a candidate for public office;”

    In what possible way is publicly calling a presidential candidate “not fit to be President” anything other than publicly opposing a candidate for political office?

    You did not limit your comments to the proposal, or even the man; you attacked the candidate. That’s not allowed.

  29. I’m Actually, Cruz’s proposal does not deal with bad behavior in the lower courts, your primary issue, and it invites a popularity contest on the Court’s interpretation of the Constitution. Given who votes Thomas and Scalia would probably survive, RBG and maybe Kennedy less likely. I think you are right about the remedies for bad conduct not being optimal, but they maybe good enough. Judicial supremacy is an inevitable outcome of judicial review by an independent judiciary, right because final, question is is the review worth its costs. Problem would be there if Thomas and Scalia had lived like Trappist Monks, and they might have ruined the fruit cakes. Constitution creaks with age but in a Country so divided the risk of Amendment seems too high.

  30. Jack,

    Your comment is spot on. And it shows, in my opinion, the clash between Canon 4 and Canon 5. For me, it is enough to state that I did not label Senator Cruz unfit to serve in order to oppose his candidacy for political or partisan purposes but rather to demolish and protect us all from his intemperate legal attacks on the Supreme Court. I remind you that I am not registered to vote, and I have not been registered to vote since I became a judge in 1987. My comment on his legal fitness was inextricably intertwined with my right to speak publicy on legal matters and the administration of justice. That said you are correct that I skated close to thin ice. I may have erred in that regard, and if someone in authority says I did, I will humbly apologize and take my lumps. Indeed, in such a circumstance, I would do my best to see that my chastisement was made public.

    Thanks for your engagement. All the best.


  31. You damn well ought to recognize it. The material was taken from your blog.

    Perhaps it is just me, but I should think that any legal system that would let a judge sit in judgment of his own case, or requires 100 courts to weigh in on an issue before it is decided, is in immediate need of major repair. And if you know perfectly well that you can’t justify either but yet, want to maintain that it is not broken enough to fix, then anything you might say would not be persuasive.

    Denial is not just a river in Egypt.

    If you truly loved the federal judiciary, you would be open to ideas on how to improve it. And if you had a viable alternative to Cruz’s proposal, I would welcome it. But if you have nothing to offer and know it, all we can do is agree to disagree.

  32. I’m not sure that inviting a popularity contest is necessarily a bad thing, as it would force the electorate to revisit those questions our Founders struggled with. If judicial supremacy is inevitable under our system, we may be better off going back to English-style parliamentary supremacy because, unlike a king or a judge for life, Parliament has to stand for election.

    The Constitution doesn’t creak with age. It is, for all practical intents and purposes, a rotting corpse.

  33. I’m actually for Bernie 2016,

    Fair enought. I admit my biases are self evident. Indeed, one of the reasons I write this blog is to make them utterly transparent and that includes the biases you dislike and, if they exist,the biases you like.

    As for Thomas jefferson, he lost his fight about the judiciary. I should also add that I think Jefferson very much a a brilliant hypocrite.

    All the best.


  34. Congress solved that problem via statute, shortly after John McCain was born. See Gabriel Chin’s law review article. As Mrs. Cruz was an American citizen of an appropriate age (Obama’s mother was too young, according to the birthers), Cruz is a “natural-born citizen.” Issue solved, even for the birthers.

  35. That Jefferson and Judge Yates “lost [their] fight” doesn’t mean they were wrong. The senior Harlan also lost his fight in Plessy v. Ferguson, but he was vindicated by history.

    I applaud what has turned out to be an edifying discussion. This is the best of what this blog can be.

  36. But the Code asks judges to avoid conduct that implicates clashes among the Canons. In Canon 2A, you are asked to avoid not only true impropriety, but also the appearance of impropriety. “True” impropriety includes a violation of the Code, and the standard is whether reasonable minds can disagree about whether the conduct was improper. If it could go either way, Canon 2A says you should not do it.

    Canon 2A means judges don’t have to engage in difficult line drawing when it comes to evaluating their own conduct. What you say is “enough for [you]” is irrelevant. Your conduct has to be enough for any reasonable disinterested observer, and you appear to agree that reasonable people might find this post over the line. If that’s so, you don’t have to–nor should you–wait for someone in authority to tell you what to do next.

  37. Cardozo I was joking but I am not sure it is for Congress to decide who is natural born. Thanks for reference.

  38. Why is it smart for Cruz to stand out in a field if he’s so far from the center that reasonably intelligent people, even conservative ones, think he’s nuts? I’d say that was indicative of either a political death wish or a serious bi-polar problem. Either way, the Judge is right to say he’s unfit for anything approaching high executive office (representing Texas in congress is hardly a serious undertaking; c.f. DeLay, Bustamante, etc.)

  39. I think we should all accept that judges have political views just like everyone else. Forcing them to pretend they don’t doesn’t serve any purpose.

  40. Cardozo, English are dealing with Strasbourg style judicial supremacy and the semi supremacy of statute allowing local enforcement of EHRC. A lot of the world seems taken with judicial review in human rights while we are having doubts. As Aunt Blabby used to say do not say rotting corpse to an old person.

  41. Jack,

    Thanks for your engagement. I stand by my views.

    I might add that I stand by views after serving six years on the Judicial Conference’s Codes of Conduct Committee. That hardly makes me right, but it does reflect a serious study of the Code of the Conduct for United States Judges.

    All the best.


  42. Judge Kopf didn’t give up his citizenship when he became a judge. Any citizen is in his lane when he says who should be president or what our laws should be.

    I’d agree it was inappropriate if he expressed these views in a judicial opinion or on the bench, but not on a blog. I’d also agree it was inappropriate if Judge Kopf said, “You pass an amendment, and I won’t apply it.” But he didn’t say or imply any such thing.

    The fact that Scalia is willing to pretend not to have political opinions does not show that it is appropriate for judges not to have political opinions. It only shows Scalia’s inclination to disingenuity.

  43. “If SCOTUS acts political, then make them subject to the political process.”

    And we know they’re acting political because they reached a result contrary to that favored by Anon. The gymnastics required to think that two Republicans voted to save key Democratic legislation because of politics is impressive.

    “All sorts of wailing and crying.”

    [citation needed]

  44. RGK,

    I think you’re right on this one. And I speak from the pompatus of love– now that’s authority.

  45. Pingback: Professor Orin Kerr: “Blogging judge calls political candidate ‘unfit” for office” « Hercules and the umpire.

  46. I am sorry sir but claiming that you must defend “the judiciary that I love and respect and have devoted much of my life to serving” while violating your own judicial canons by making it personal against Sen. Cruz instead of making it against the proposal is male bovine excrement. I highly doubt that you would accept such an excuse from a lawyer practicing before you in court.

    This post and attendant justifications gives the appearance that Sen. Cruz is correct in his analysis against the court system and justices when a respected judge is willing to violate the canon in order to oppose the proposition. If the proposed Amendment is truly horrific then it should have been easy to shred it to bits and leave it in the trash heap of history without making derogatory, political, or other types of personal attacks.

  47. Sounds good to me. Let’s include college transcripts and records like we have done with all but one President!

  48. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Thomas Jefferson

    It appears that the Constitution was also written to provide a less violent way to deal with human nature and the tree of liberty than that stated by Jefferson. Hopefully, the Constitution finds the fountain of youth instead of being refreshed with blood.

  49. Your Honor,

    Do you think the same of Dean Erwin Chemerinsky? He recently wrote a New Republic article entitled “Ted Cruz is Right: The Supreme Court Needs Term Limits.” Although Dean Chemerinsky disagreed (politely and thoughtfully) with Sen. Cruz’s ultimate retention election proposal, he shared many of Sen. Cruz’s concerns. And, Dean Chemerinsky proposed a constitutional amendment that would place term limits on Supreme Court justices. Like Sen. Cruz, Dean Chemerinsky argued that the current structure of lifetime appointment gives “outsized power to unelected judges” and “should change.”

    Also, only the naïve believe that the federal judiciary is not already the “third political branch.” Lawyers (no matter how talented) who are not actively involved in partisan politics very rarely have the political clout necessary to get a nomination. I have appeared before many federal judges. Some of them are preeminently qualified, while others of them are clearly on the federal bench only because they grew up with a senator or worked on a presidential campaign.

  50. Wow! The Judge’s argument against the Cruz proposal is tragically reminiscent of Sergeant Schultz in Hogan’s Heroes: “I zeeee nuttttt-thing. Nutttttt-thing!”

    His argument distills to “It ain’t broke. So, why fix it?” But if he can’t even say that it is wrong for his colleagues to sit in judgment of their own case, or that the system failed because it failed to correct an outrage that obvious, his credibility is shot to hell. We can’t believe him when he says that most of the complaints against his colleagues are frivolous. We can’t believe him when he says that his colleagues are applying the law, because he is like an NHL ref in overtime in the Stanley Cup finals, who might not even blow his whistle in the case of a multiple homicide. We can read the opinions, and know better.

    His apparently willful violation of Canon 5 is the coup de grace. Judges know that their disciplinary rules are a farce, which is why he doesn’t give a shit about violating them. Judges know that stare decisis is a farce, which is why they don’t give a shit when they ignore it. Ours is a nation ruled by men, not laws.

    From this, we can deduce that the corruption in our courts is pandemic, from the lowliest magistrate to SCOTUS. Rules are made to be ignored. What Canon 5? What Supreme Court decision right on point? Arrogance is an attitude, fueled by a lack of accountability.

    There are times when a judge should have the sense to STFU. This was one of them.

  51. TrialAtty,

    You indicate, and it is true, that the Dean was polite and thoughtful. With that in mind, please refer to the Senator’s statement, Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015). Calling the entire Supreme Court “lawless” is neither polite nor thoughtful.

    Furthermore, as you fairly note, the Dean did not support Senator Cruz’s proposal. There are good reasons for that as George Will pointed out. That said, I don’t think term limits are appropriate either. They are arbitrary and would create a never ending series of confirmation fights thus dividing our already divided nation even further.

    In my view, these proposal are solutions in search of a problem driven by people who don’t like the results of Supreme Court decisions. If you want a Supreme Court to decide hot button issues, and I see no way around that proposition, then the Court will anger lots of people at any given time, including both liberals and conservatives. Consider Brown v. Board of Education as an example. And we should remember that President Franklin D. Roosevelt was so angry with the Supreme Court of his day that he proposed to pack it.

    However, I do agree that the Supreme Court would be well advised to avoid hot button issues when it can. Each of the Justice might even read again this summer what Alexendar Bickely wrote in The Least Dangerous Branch and his other writings. That is, the Justices would do well to consider anew Bickel’s “passive virtues.”

    Thanks for your engagement. All the best.


  52. The last paragraph appears to be a reasonable – and courteously expressed! – renewal of your call so far back for the SC to STFU, at least as far as possible.

    I would like to get on your case about another logic problem. Calling the Court as a whole lawless is NOT equivalent to saying the same about all of its members, or even a majority of them. One might find examples of an entire institution behaving in a lawless fashion even when no particular individual is. Even the present confrontation in Greece might furnish a couple of examples, no matter who we might be rooting for.

    As lawyers, and even non-lawyers like me, learn upon our hides, don’t overtate your case.

  53. Pingback: Blogging Federal Judge Says Ted Cruz 'Not Fit to be President'. - Ride Advised

  54. FlameCCT, Every president but one, how did William Henry Harrison do in college? Did go to one?

  55. Peter,

    I agree with your logic. But here is what Mr. Cruz wrote that reasonably (at least to me) suggested that his condemnation included most if not all of the justices: “The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself.” When one suggests that “the Court itself” is lawless it implicates, at the very least, a majority of the Justices, if not all of them.

    All the best.


  56. I don’t know how to read the quoted statement on its face except as a statement that the problem is with the court as an institution and not the individuals on it.

    How else would he express that sentiment? “. . . the problem lies not with the lawless rulings of individual lawless justices” seems like about as clear a repudiation of lawless justices being the problem as it gets.

    It’s true that he did not explicitly state that they are not lawless, but would that be consistent with his stated view that that’s not even a question that ought to be reached?

  57. Mousey, I wonder why you think that going out of the way to be insolent adds persuasiveness to your case.

  58. Pingback: Blogging Federal Judge Says Ted Cruz ‘Not Fit to be President’ | Innovations in Law

  59. One man’s extreme right-wing ideology is another man’s needed return to the sensible center. I’m not nearly as upset by the gay marriage decision as policy as I am by its bankruptcy as constitutional theory. And I’m upset by the ACA decision mostly because it’s the route to fiscal ruin and likely will be an disincentive for the best and brightest — which, as the hopelessly naive may not realize, always equals the profit-motivated — to enter medicine and I might need to pay such a genius a fortune to save my life sometime. The needs of those too poor to pay for themselves are far down my list, particularly when I’m being taxed to pay for them. Clearly the worst decision of the week was the case importing the abomination of disparate impact analysis into housing law. Cruz’ proposal is clearly radical and may be ill-considered, but times are desperate. We’re closer, I fear, to needing a revolutionary solution to the cancers of expanding leftist economics and omnipresent government than my hopes for living out the rest of my life in comfort would admit. The people who actually create wealth and drive the economy (that’s not the “workers” or the crony capitalists, but entrepreneurs) are almost squeezed out by oppressive regulation. Add to that the travesty of the CEO of the largest company in the world (by market cap) weighing in to pick on a pizza shop in Podunk that doesn’t want to cater a gay wedding, and a commissar in Oregon fining a similarly inclined bakery out of existence, and maybe its time to rethink the whole relationship between the citizenry and the state.

  60. Dear Judge Kopf—

    Consider this a friendly motion for reconsideration—not of your position about Senator Cruz but about your decision that the post did not trample just a bit on Canon 5.

    We agree, I think, that the analysis hinges on whether the post “publicly … oppose[d] a candidate for public office.” The post was “public,” so that requirement is met. Senator Cruz is a “candidate for public office,” so that requirement is met. The post contends that Senator Cruz is “unfit” for the presidency and that he is “unsuited to become President.” I think you would have to slice the onion unreasonably thin to say that those statements do not “oppose” the senator’s candidacy. If I tell my wife that I think tomatoes are disgusting (and I have), I have plainly opposed the use of tomatoes in my salad. (I realize I may be overdoing the vegetable analogies, but kindly work with me.) Put another way, I don’t think a judge needs actually to say “I oppose the candidacy of Senator Cruz for the presidency” to run afoul of Canon 5(A)(2).

    I don’t think your responses to earlier comments quite do the trick.

    To note that “oppose” is a verb while “unfit” is an adjective is true but meaningless. One accomplishes the verb by using the adjective.

    To suggest that there’s a conflict between Canon 4 and Canon 5(A)(2) is, I think, to find tension where none exists. Canon 4 allows judges to comment generally on matters related to the law. Thus, a judge could freely challenge the proposition that federal judges should be subject to retention elections. However, Canon 5(A)(2) describes one form of public comment a judge may not make: one that endorses or opposes a candidate for public office. Thus, while a judge might say that a candidate’s proposal is a bad one, the judge should stop at that and not proceed to say that the candidate should not be elected because of the proposal.

    To say that the post “did not label Senator Cruz unfit to serve in order to oppose his candidacy for political or partisan purposes but rather to demolish and protect us all from his intemperate legal attacks on the Supreme Court” does not seem to me to be helpful. The motive is, I think, irrelevant. If I complain about tomatoes, am I opposing their inclusion in my salad any less if my reason is not that I think they’re disgusting but that I object to the labor policies of the growers?

    All of that said, I would be in favor of leniency in this situation.


  61. Raising the issue of Cruz’s fitness for office moved the center of gravity of the case away from the judicial issue, which is the one that RGK is interested in here. RGK might want to amend his complaint to drop the fitness for office issue.

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  63. Is it me, or does that picture of Senator Cruz with the pursed lips and smug facial expression look a little like Mussolini making a speech?

  64. Making tough decisions is the job of the Supreme Court. Most cases that reach them do so because the laws at issue are unsettled and someone has to dive in, split hairs, and come to a decision. In that sense, almost every decision made by the Supreme Court could be seen as judicial activism, because of if the case were easy enough to be resolved by simply relying on existing precedent, it probably wouldn’t appear before the Court in the first place. But that’s why the Founders put them there in the first place. Judicial activism is just a lazy way of complaining that you don’t like or disagree with the decision.

  65. I wouldn’t say that judicial activism is necessarily a lazy way, there are some of us in litigation especially in interstate who just can’t absorb the shock of the learning curve and miss out on those paramount opportunities to plug the holes in our boats with an appeal. I find this reading fascinating, I graduated 5th grade and now am a 45 year old father trying to save my child practically on the spur of the moment after being wiped out by the previous round of family law. If I missed the point please excuse me.

  66. Your Honor, I’m not an educated man but i am well acquainted with grief. If you do have to take any “lumps” do you think I could convince you to come down here with us small people for just a brief period and help us find a way to achieve this family law reform so many are wailing? We love our children so dearly judge! So many people crying out for help, we need true and skilled guidance, and your kind of guts, the kind it takes to speak up when something’s wrong regardless of possible risk, please help us Your Honor. Respectfully and humbly, Warren

    If nothing else please point my feet in the right direction that I may take the steps to genuinely help our families.

  67. isn’t that the problem with our legal system today? The finger pointing, the accusations, finding the culprit even if one has to be fabricated? Way I see it, if the judge wants to express his opinion I feel like that’s his constitutional right to do so. People who vote should be educated enough to make their own asportation as to whether the person they are voting for is a POS or a true soldier. personally, I am faced with an appointed judge in a family law matter who has done to me what so many judges across the lender doing to so many other men and children. I think this is where our focus should be rather than it picking about one mans opinion of another possible snake is. In other words, with what judgement you judge it should be judged to you again. Don’t be so harsh, the Honorable is only human and if one takes no risks or makes no mistakes, that means he isn’t doing anything! I give the Judge props for posting in a blog his thoughts, personally I find it fascinating and very educational. I’m hoping to learn something that I can use to forward the children’s agenda which is the pursuit of happiness and the right to life. As far as I can tell this is not something that many judges do, please don’t ruin it for us little people by becoming something that you perceive to be foul. Respectfully, Warren

  68. Would this type of argument settle in a situation where the judge has wide discretion? I trow not. So what do?

    And I quote: “…ye strain at a gnat and swallow a camel. ..”

  69. Pingback: Professor Orin Kerr is correct on Canon 5, and for that I apologize « Hercules and the umpire.

  70. “Insolence” is normally shown toward a superior. What, if anything, makes Judge Kopf superior to the rest of us?

    The comment was certainly trenchant and sardonic, but insolent?

  71. And I would suggest that it was a reasonable statement on Cruz’s part. The judicial power is all the Court has, and when it exceeds that authority, it is acting in a lawless manner, according to no less an intellect than Robert Bork. And the George Will you cite would be among the first to agree.

  72. And some of these clowns, by their own admission, were mediocre students at second-tier schools (e.g., Marcia Smith Krieger), to boot. The fact that her daddy was a judge probably had a lot to do with her ascension to the bench.

    A comical example was that of Christine Arguello. She made it to Obama’s short list the first time out solely because she was one of the few menstruating Latinas on the federal bench (less experience than Thomas, and even less talent), and the talent pool was not deep. But of course, once the “Latina Seat” had been filled by Sotomayor, she was quietly removed from consideration.

    Mediocre people, doing uniformly crappy work. And we are supposed to be proud of our bench?

  73. Bork called it “the American disease.” Judges are enamored with it, as it increases their power. The rest of us, not so much.

  74. Warren,

    I have now reviewed your posts. First, it is illegal for me to practice law and I am prohibited from giving legal advice. Second, while I don’t know where you live, I can say that most bar associations have a legal referral service where good lawyers volunteer to help people for no fees or low fees. I suggest that you call your local bar association and inquire. That’s the best I can do.

    All the best.


  75. Well after reading and contemplating what the discussion has been about and my replies, I have had a chance to digest and see and feel like an idiot lol as the most noble Festus said “much learning doeth make thee mad”! I’m exhausted.

  76. MarcosD:

    So the guy who graduated at the top of his Harvard Law class, clerked for SCOTUS and argued nine cases before SCOTUS is both nuts and bi-popular?

    Look at yourself. Your politics has consumed your thinking.

    Try this. Just because someone disagrees with MarcosD and the NYT doesn’t make the object of your hate insane.

  77. Judge Kopf, Senator Ted Cruz was his high school valedictorian. Were you your high school valedictorian? Sen. Cruz attended Princeton and graduated cum laude. Did you attend Princeton or another Ivy League University and graduate cum laude? Then Sen. Cruz received a degree from the Woodrow Wilson School for Public Policy at Princeton? Are you a graduate of either the Wilson School at Princeton or the Kennedy School at Harvard? Senator Cruz individually won both the 1992 US National Debating Championships and the 1992 North American Debating Championships. Did you win either or both of these prestigious debating championships? Then Senator Cruz attended Harvard Law School and graduated magna cum laude? Did you attend Harvard Law School and graduate magna cum laude? While at Harvard, Senator Cruz served as Primary Editor of the Harvard Law Review. Were you an editor of the Harvard Law Review or of any other top-six-in-the-nation law school’s law review? After his Court of Appeals Clerkship, Sen. Cruz next clerked for Justice William Rehnquist of the United States Supreme Court. Did you, Judge Kopf, clerk for a justice of the United States Supreme Court?

    I didn’t think so. Perhaps you’re not qualified to be a United States Federal District Judge. Ever consider that, Judge Kopf?

  78. Pingback: Judges Should Blog More But Learn From Judge Kopf’s Mistakes | Maryland Appellate Blog

  79. The judge has probably considered that possibility, Copple. Have you considered the value of keeping civil fingers on your keyboard?

    In answer to your points, no one has disputed that Cruz is a smart man, but what does that have to do with the matters at issue in this conversation? Martin Heidegger was a very smart man too. Look him up, and learn that as far as being qualified for a position of trust, that’s not dispositive.

  80. It is more that Cruz is overqualified to be a federal district court judge. If you can walk and chew gum at the same time and know a Senator, that is generally enough.

    Cruz is smart enough and knowledgeable enough to understand that it is a bad idea to give judges power without any accountability, and that retention elections are ubiquitous in Missouri Plan states. His suggestion was not so far beyond the pale as to warrant the Judge’s insane flame.

  81. Maybe s/he just doesn’t suffer fools gladly. The Judge’s remarks were certifiably bat-shit.

  82. You are a band of tyrants, who have manifestly exceeded any authority you were granted at law. Of course, you don’t see a problem.

    The rest of us? We see one.

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