Professor Orin Kerr: “Blogging judge calls political candidate ‘unfit” for office”

Please read Professor Orin Kerr’s Blogging judge calls political candidate “unfit’ for office’, The Volokh Conspiracy, Washington Post (June 7, 2015) (arguing that I violated Canon 5 of the Code of Conduct for United States Judges by virtue of my prior post).


60 responses

  1. Federal district judges have first Amendment rights too– even if they haven’t voted since 1987.

    Besides the “Gangster of Love” has already opined that you’re ok on this one.

  2. On a more serious note, I would invite attention to Republican Party v. White, 536 U.S. 765 (2002), which was decided well after ABA Model Code of judicial Conduct Rule 5A was promulgated.

    I acknowledge Justice Kennedy’s observation, in his concurrence, that the issue of whether a sitting judge could have his political speech restricted was not presented in White. But by logical extension, the reasoning in White would seem to apply. How does 5A (particularly under the circumstances of your blog opinion) survive strict scrutiny?

  3. This is the fundamental problem with the federal system of judicial discipline: “Rules don’t matter if there is no penalty for violating them.”

  4. Dear Anonymous,

    I don’t know whether Canon 5(A) would be subjected to strict scrutiny. If I had to bet, I would bet not.

    The foregoing said, even if you consider my blog post as engaging in “political activity” (which I am not willing to concede), Canon 5(A)(2) is not applicable. I neither publicly endorsed nor publicly opposed Mr. Cruz for a public office. Rather, I wrote that Senator Cruz “was unfit.” “Oppose” is a verb. “Unfit” is an adjective. While the words are similar, they are not in any sense the same.

    If someone intends to subject another person to rules, then they have an obligation to rely upon the words of the rules. If I engaged in “polticial activity” by labelling Mr. Cruz as “unfit” (a proposition that I again deny), then Canon 5(C) applies rather than Canon 5(A)(2) since I did not oppose his candidacy. Rather, I commented upon his fitness.

    Canon 5(C) states in full: “Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.” (Emphasis added.)

    Canon 4, noted as an exception in Canon 5(C), and specifically Canon 4(A)(1) unambigiously states “A judge may . . . write . . .. and participate in other activities concerning the law, the legal system, and the administration of justice.” My blog post was clearly one “concerning the law, the legal system, and the administration of justice.”

    All the best.


  5. Kerr does not list ethics as one of his areas. Typical law prof thinks he knows everything. We both know people like that. Tell him you want Tom Morgan’s opinion, his wife is fromNE so he might be more sympathetic though she went to Creighton.Actually given the phrasing of the blog and the size of the field of R candidates parvity of matter applies You should respond with Horace about the labor pains of a mountain and the ridicules mouse they produce.

  6. You’re probably right that it wouldn’t be reviewed under strict scrutiny, but regardless, I still don’t think the Judicial Canon can prevent you from expressing a political opinion (or at least shouldn’t). In any even I agree that your post wasn’t political activity.

    I also think that reasonable restriction of political activity different than restricting your right to express an opinion.

    I’m more concerned, however, that you haven’t registered to vote. But that’s none of my business.

  7. repentinglawyer,

    Not JUST because of this comment, I have come to love (but not in that way) you.

    All the best.


  8. Anonymous,

    With the gathering mob calling for my head, I appreciate your support. That said, I don’t intend to assert any Constitutional defense. I simply don’t believe I violated the Code of Conduct for United States Judges.

    All the best.


  9. Seriously, you just gave Kerr some content for which he was presumably paid. He should send you a thank you note. Or some steaks.

  10. Im not really convinced that this isnt a violation of Canon 5.

    Kopf, if you had said ‘Cruz is unfit for presidency because he has a bad hair cut’, would you have violated canon 5? I would have thought so.

    Kerr quotes you as saying it is enough that your intention was not to endorse or oppose Cruz. I find that interesting, and ultimately compelling (after mull this over all day). Everyone would understand, that if someone is unfit for presidency, then they should not be president. It would be ridiculous to think
    it possible that Kopf supports Cruz and thinks he is unfit for presidency. However, a statement from which it is reasonably entailed that the speaker thinks something should be, is not equivalent with a statement made because the speaker thinks something should be. Opposition and endorsement, is more than just revealed sentiment; it is the product of intention.

    What I find fishy, is that idea that Kopf did not have the intention of opposing Cruz, but instead had some other intention behind claiming Cruz threatens our constitutional form of government. If a claim about threats to our constitution doesnt indicate political intention, I dont know what does. Even if constitutional law is ‘extra-political’ as Kopf points out, a claim about constitutional law is exactly the sort of thing a politician would pivot off.

    I do think that Kopf, like the rest of us, is constrained by his listeners understanding of his words (right or wrong his listeners are in having that understanding). Even if Kopf really did somehow make his archetypically political claim, with no political intention, he must take responsibility for how his listeners would obviously have understood him.


  11. I don’t see the problem, unless Cruz appears before you in a legal matter. Ain’t my circus, ain’t my clowns.

  12. “Canon 5(A)(2) is not applicable. I neither publicly endorsed nor publicly opposed Mr. Cruz for a public office. Rather, I wrote that Senator Cruz ‘was unfit. ‘Oppose’ is a verb. “Unfit” is an adjective. While the words are similar, they are not in any sense the same.”

    I’m sorry, judge, but that argument is nuts. And I say that as someone who agrees that Cruz is unfit to be President.

    It is possible to oppose someone as a candidate for public office without using the word “oppose.” In fact, doing so is utterly commonplace. Go look at some attack ads and see how many of them use the word. Or at partisan political commentary in which the author is arguing against the election of one candidate or another.

    And consider this: 501(c)(3) organizations are not allowed to “participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” Suppose a group of such organizations gets together to publish ads saying “Don’t vote for Ted Cruz.” Under your argument, their their tax exemptions wouldn’t be at risk because they didn’t use the word “oppose.” Or let’s make the hypothetical identical to your situation. The ads — paid for with tax-exempt money — say “Ted Cruz is not fit to be President.” Under your argument, that’s just hunky-dory, and the IRS has no reason to be concerned. While I’m by no means an expert on tax-exempt organizations, I don’t think that’s the law. And I don’t think it would be a reasonable view of the law.

  13. I guess Orin Kerr is a textualist. After all, if we were to take the prohibition in the rule literally, it would mean that judges couldn’t vote! At any rate, I am thankful to Prof. Kerr; otherwise, I would have never discovered this wonderful blog …

  14. Well Richard, I think you did probably did cross a line there. Yes, Supreme Court elections is a terrible idea, the same way that all direct elections of prosecutors, judges and sheriffs are a mistake, but take care.

  15. Despite self-inflicted wounds, Richard Kopf still lives. 🙂

    Jack Sparrow: Me? I’m dishonest, and a dishonest man you can always trust to be dishonest. Honestly. It’s the honest ones you want to watch out for, because you can never predict when they’re going to do something incredibly… stupid.

    Canon 5(A) provides, in pertinent part: “A judge should not … publicly endorse or oppose a candidate for public office.” Your statement that “Senator Ted Cruz is not fit to be President” certainly violates the spirit of the rule. But Captain Barbossa comes to your rescue:

    Elizabeth: Wait! You have to take me to shore. According to the Code of the Order of the Brethren…

    Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you’d call “guidelines” than actual rules. Welcome aboard the Black Pearl, Miss Turner.

  16. Neal,

    Thanks for your engagement. I don’t think my view is nuts. But, I’ve been wrong before.

    All the best.


  17. GB,

    If I crossed the line, then I presume I will get my comeupance. If so, then I will deserve what I get. That said, I remain unconvinced that I crossed the line as you say.

    All the best.


  18. I’m actually for Bernie 2016,

    I have been called a lot of things. Some I deserve and others not so much. KNow I’m a pirate? I like the sound of that–it will come in handy at sentencing when I instruct folks to walk the plank.

    All the best.


  19. While I don’t buy off on the idea that proposing reasonable changes to the Constitution designed to restrain our out-of-control judiciary is evidence of unfitness for office — the whole point of the damn thing was that it could be adjusted on an as-needed basis, and Article III certainly needs to be rescued from the judges — some of the comments on Orin’s blog were just downright hurtful, and way over the line:

    I never heard of Judge Kopf before he started blogging, but the impression I’ve formed is the embarrassing picture of a man who is losing a bit of mental ability and filter, and thinks he is considered more important and funnier than he is. I’m sure he was once a well respected pillar of the legal community and a good judge. It’s sad to see such a person deteriorate and embarrass himself like this.

    …but attacking the proponent so venomously suggests a temperament unfit for the bench.

    Another tyrannical federal judge, exempting himself from the rules.

    Hey! That’s OUR chew-toy you’re beating up! Stop that!!! 🙂

    Judge Kopf’s absurd parsing attempting to explain how he hasn’t breached Canon 5 shows unmistakably that he is unfit for judicial office.

    Give me a break! “Absurd parsing” is what judges do. It’s as if that commentator had never read a Scalia opinion.

    Keep stirring the pot, Your Honor.

  20. I’m actually for Bernie 2016,

    Despite the fact I am unimportant, without a filter, and was not heard of by great minds before I started blogging, I will continue to stir the pot if only to annoy fellow Princeton graduates.

    All the best.


  21. “presumably”

    I guess anything is “presumable” if there’s someone out there willing to presume it.

  22. while i wholeheartedly agree with your comments re: Sen. Cruz, i am unpersuaded by your arguments that you did not violate the rule in question. to be clear, i have no issue with your assessment of his proposal (and do not believe that such runs afoul of the ethical rules), but to then conclude that Cruz is unfit for office is, in my opinion, a statement that cannot reasonably be interpreted as anything other than expressing your opposition to Cruz’ candidacy. Moreover, that particular aspect of your commentary reasonably casts doubt on your objectivity and fairness (at least in certain contexts). while such concerns may very well be unfounded, as you know better than i, it is the appearance of impropriety that is the concern. i hate to sound so harsh, because i enjoy your blog and think that to the extent it “humanizes” a federal judge in the eyes of folks that don’t have the pleasure of knowing or working with such folks it is a worthwhile endeavor, but i think you might have stepped in this time.

  23. “…that particular aspect of your commentary reasonably casts doubt on your objectivity and fairness (at least in certain contexts).”

    It would seem to cast doubt on Richard’s ability to be reasonable and fair if Cruz came before him in his courtroom, or if he had a case that hinged on the notion of electing USSC Justices, in which cases recusal would be in order. Otherwise it’s just a judge expressing an opinion on a Constitutional matter. A tempest in a thimble this is.

  24. This seems yet another example of too many people using the internet to vastly overthink the situation. I would suggest that his Honor’s statement of opinion was very much like a person shouting “POPCORN!” in a crowded theater: oh, sure, it gets a moment’s attention for those assembled, and a few folks think it a restatement of the obvious, but it changes nothing about anyone’s thoughts, intentions or behavior with regard to Ted Cruz’s candidacy.

    The real problem regarding Canon 5 is that it is like all other judicial canons I’ve ever seen or read: it is/was written by those the Canons propose to govern, and as such, it truly prohibits nothing, but rather, it gives a disciplinary panel something it can use to find, in a given set of facts, that it means whatever that particular panel might wish to find. Hence, the debate set off by RGK’s post; from an objective read, about all Canon 5 actually bans is a judge publicly and specifically saying, “I endorse/oppose as a candidate for …”

    A quick example: a judge appears to be publicly very friendly with a candidate. Is that “endorsing” that candidate? Before you answer… The judge is Justice Ginsberg, the candidate is Bernie Sanders and the circumstances are such that it repeatedly broadcast with “color commentary” on CNN, Fox, MSNBC, etc. And if Justice Ginsberg doesn’t appear in public, demonstrating the same level of friendliness, with all 204 GOP candidates (and all 204 Dem possibles), is she then “opposing” all of them?

    For a recent example of this type of judicial goofiness (and a possible argument for SCOTUS limits), see Williams-Yulee v. Florida Bar (from the state decision through to SCOTUS). Basically, a campaign manager, standing next to a judge/candidate, can ask for money, but (according to SCOTUS) if the _judge_ asks, the public’s confidence could be shaken to the core. And no, the dissent is not any better: “Judges tempted by money? Oh, no, not judges, never!”

    Moreover, please note that Canon 5 does not address the issue of _current_ candidacy or even that the candidate must be alive. Thomas Jefferson _was_ a candidate for public office. Therefore, it is at least arguable that any invocation that could be construed as an endorsement or opposition to anything Jeffersonian is a technical public endorsement or opposition of a candidate for public office.

    Where you really see the results of this type of, er, canon-ization is at the state level. Many states base their canons on the federal version (with some variation, of course, esp. if judges are elected) and if one thinks state case law is all over the map, read some of the disciplinary opinions issued by the same courts AND panels. If an “unpopular” judge is being disciplined, fixing a traffic ticket is a high crime of moral turpitude, whereas for “popular” judges, accepting a bribe to fix a bench trial is minor mistake in an otherwise-unblemished record. And often, a judge’s popularity (with those adjudicating) is based very much upon “is this judge of a like political mind?,” or, “if we don’t bust this judge, what might it mean for OUR chances at re-election?”

  25. Judge: I think your logic is off here.

    “I neither publicly endorsed nor publicly opposed Mr. Cruz for a public office. Rather, I wrote that Senator Cruz “was unfit.” “Oppose” is a verb. “Unfit” is an adjective. While the words are similar, they are not in any sense the same.”

    Of course you opposed him, and the verb/adjective distinction you’re relying on is beside the point. You wrote and then posted a piece on a blog that is widely read in which you criticized his fitness for an office he is actively seeking. The action in question (i.e., the verb) was the posting of the piece, which contained some arguments (i.e., the adjectives) that, if accepted by reasonable readers, would make them not want to vote for Cruz.

    Think of it this way. Imagine the following conversation at home. “Husband: I think we should go to my mother’s house for Thanksgiving this year. Wife: I don’t like your mother’s house. Her cooking is terrible, and the house isn’t clean.”

    If that is all that is said in the conversation, didn’t Wife “oppose” Husband’s request? Sure, she didn’t use the magic words–i.e., she didn’t say “I oppose that.” But she publicly expressed her displeasure with Husband’s suggestion and then gave reasons why she thinks it shouldn’t be followed. The whole point of her expressing that opinion and then giving those reasons was to persuade Husband not to push the issue.

    Isn’t that essentially what you did vis a vis Ted Cruz? You publicly gave reasons why he shouldn’t be president. How is that not opposing his attempt to be president?

  26. And, your Honor, to whom must the alleged violation be proved, and assuming it is proven there, who reviews it and under what standard?

    If I may use a religious reference, society expects, even demands, that judges be Solomon (or if one prefers, Sulayman, etc.). It even tempts the issue by putting a sword at your feet. Unfortunately, there are not nearly enough mothers willing to give up her half for the good of the child, and likewise, there are too many judges who figure, “I must have it for a reason; why let a perfectly good sword go to waste?” Admittedly, it is a chicken or the egg problem – do we need more mothers who want to see a live child or fewer sword-wielding judges? Yes, we do.

    NB – No, I do not think you violated the Canons in regard to this Ted Cruz bullshit (and I suspect that no one with the slightest amount of common sense _actually_ does, either).

  27. “Kerr does not list ethics as one of his areas.”

    Can you name a lawyer that does?

    Litigation? Check. Real Estate? Check. Taxation? Check. Criminal defense? Check. Patent law? Check. Ethics? [crickets]…

  28. GB wrote, “I think you did probably did cross a line.” Why don’t you know?

    Assume an absolute speed limit state and a road with a posted limit of 55 mph. A motorist traveling upon that road, who saw the sign and knows the law, observes that the vehicle’s speedometer indicates that the vehicle is going 68 mph. The HiPo who pulls them over has a radar unit that indicates 65 mph. Is the motorist violating the speed limit law, or is it uncertain? Why?

    I would suggest that many are confusing “crossing the line” of (arguable) prudence regarding (permissible) public commentary with “violating the Canons” as they are written. But see my other reply, re: the purposeful ambiguity of those Canons.

  29. Yes, one’s vote is secret, but the act of going to the polls and voting for someone is itself a “public” act, is it not?

  30. Dear Adam,

    I get your elliptical (and, frankly, nasty) point. You might even be surprised that I read your critical blog post before I received your comment.

    Now, please consider my response to the comment you evidently felt compelled to make on Hercules and the umpire.

    If someone thinks I violated the Code, there are remedies for such a violation. Chastisement in the Washington Post, through The Volokh Conspiracy and distinguished Professors such as Orin Kerr, is not one of such remedies. While I consider various points of view, and I take criticism, especially on the basis of legal ethics, very seriously, I am obligated, in the end, to be responsible for myself. Whether others think me right or wrong is ultimately not determinative of my views. Everyone is entitled their own sorrow and their own opinion.

    By the way Adam, you might wish to spell “Canons” (not “cannons”) correctly. Just sayin’.

    All the best.


  31. Utah Lawyer,

    I understand your analysis. But if words have meaning I did not “publicly oppose” Cruz, I called him unfit to be President. I believe there is a difference particularly when you are speaking about carefully chosen words in a judicial code of conduct.

    Having answered your question, now please answer mine:

    Don’t you honestly believe that Canon 5(C) is a better match to the facts rather Canon 5(A)(2)? See here for all of Canon 5.

    I look forward to your answer.

    By the way, I honestly appreciate your engagement. All the best.


  32. Judge:

    It seems to me that this is one of those statutory/rule interpretation questions where you have a specific provision and then a catch-all. Canon 5(A)(2) seems to be more specific, while 5(C) seems to be a more general catch-all.

    So if this were presented to me and I were the decider, I would first ask whether your blog post constituted a “public” “oppos[ition]” to a candidate under 5(A)(2). For the reasons I expressed above, I think it did. But if I were persuaded otherwise, then I would move to 5(C) to determine whether it constituted “any other political activity” (I’m not sure what that means without researching it; offhand, that phrase seems awfully broad).

  33. enrigue,

    Your concern is a valid one. That is one of the reasons I have not registered to vote since I became a judge in 1987. It is easy to access the registration records that call for party affiliation in many circumstances and if I noted therein that I was a Republican (as I once was) and someone saw me enter the polling both where a hot button issue divided Democrats and Republicans, what would a litigant think if the litigant later brought a law suit on the issue and the litigant was a Democrat?

    All the best.


    PS. From the web site of the Nebraska Secretary of State I understand the following:

    1. Voters may choose from one of the three statewide parties currently recognized in Nebraska: Democratic, Republican and Libertarian or they may choose to not affiliate with any party by checking the non-partisan box on the application.

    2. If you wish to vote in the primary election, where parties choose their nominees for state and county offices, you need to declare your party affiliation.

    3. If you register without a political party affiliation, you will receive only the non-partisan ballots at a primary election.

    4. Non-partisans may designate a party preference at primary elections and receive partisan ballots for the Senate and House congressional races.

  34. Thanks for your very thoughtful response.

    However, if you apply Canon 5(A)(2) to any comment directed against a candidate who asserts a particular legal view that harms the judiciary then such a comment would be prohibited. Given the words of Canon 4 plus the words and spirit of the commentary (the public has the right to know the views of judges on legal matters because judges are in a unique postion to address such issues), I do not think it was the intent of the drafters of the Code to immunize a candidate from good faith criticisms of the candidate because of his or her legal position that directly and adversely harms the federal judiciary.

    If, on the other hand, Canon 5(C) applied then the exception would apply. I would then have the rights enumerated under Canon 4(A)(1) (“Speaking, Writing, and Teaching. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”). That is, there is no conflict between Canon 4 and Canon 5.

    In short, I think my view does a better job of harmonizing Canons 4 and 5. Nevertheless, your position is a reasonable one and I appreciate your taking the time to articulate your position.

    All the best.


  35. Judge Kopf,
    My comment was just trying to make a joke. I’m sorry it fell flat. If there was a nasty point to the joke, it is lost on me.

    Thanks for pointing out the typo. I should extend the same courtesy by noting that I am not the author of the blog post you mention in your reply.

  36. I don’t see the difference between your statement and, say, “Senator Cruz is unfit for the Presidency because of his silly haircut.” I doubt anyone would be up in arms if you’d said that. Well, maybe because his haircut is perfectly normal.

    If you didn’t violate the letter, then maybe it’s the spirit that has pissed people off? I don’t agree there either, for what it’s worth. Carry on. I only discovered your blog because of this “controversy,” and have been thoroughly enjoying it.

    Not that you wouldn’t, but please keep writing.

  37. Any reason you don’t register as non-partisan and simply abstain from the partisan primaries and vote in the general elections and the non-partisan primaries?

  38. [Kopf] must take responsibility for how his listeners would obviously have understood him.

    Well, this poor, dumb Texas layman understood him to mean that, in essence, Cruz is an idiot. Which Cruz, most assuredly, is, and a dishonest one, at that.

    If remarks like Judge Kopf’s here were to have, or appear to have, an impact of any sort on any case coming before him, that’s what recusals are for. Because misunderstandings of plain statements, even by poor, dumb Texas laymen, are rare, no matter the opinions of the Elites among us, and so recusal is a fine response to such outliers.

    In addition to which, were such a misunderstanding to impact any case in which I might appear before him, as I’ve done repeatedly on other matters, I’d be most willing to recuse myself from such a case and spare the Judge the conflict….

    Eric Hines

  39. L,

    Yes, there is a reason. By withdrawing entirely from the electoral process I remind myself that I am not ever a partisan. That may sound silly. But it is important to me.

    All the best.


  40. Judge Kopf,

    Perhaps an analogous situation might bring some clarity. While serving in the military I registered to vote as non-affiliated even though I could have chosen one or the other. The military, like the judiciary, has rules about political speech. As a military member (now retired), I was not allowed to make political commentary to subordinates nor publicly as a member of the military. If I had a blog and posted the same as you, I would have crossed the line in making political commentary. There have been several military personnel that have received punishment for making similar comments about our current CINC on personal social media.

    On this blog, you are presented as a federal judge and therefore still subject to the restrictions of the Canon. You made derogatory comments, which are considered opposition, in regards to a political candidate and the position sought. If the proposition was so horrific then your commentary did not and should not have used political comments as to a candidate being fit or not for the political office.

    I also find it hard to believe that you would accept such a response, as you’ve presented, from a lawyer before you in court.

  41. Anonymous,

    Thank you very much for writing. And, I do think you are on to something important.

    The “spirit” of the Code of Conduct has sometimes, in my opinion, been used unintentionally to cabin perfectly appropriate conduct of judges. There is a sound reason for this caution. The Third Branch is by far the weakest. What’s more federal judges are acutely aware that they have life tenure and they avoid like the plague any controversy that imperils their status. I do not mean to suggest that they are concerned about themselves. I mean they see institutional value to life tenure and they desire to preserve it for future generations.

    I decided to blog for a variety of reasons, and one of the primary reasons was to educate lawyers and lay people about the strengths, weaknesses and challenges faced by federal judges in general and federal trial judges in particular. Thus, I am very much an outlier when it comes to writing for public consumption over the Internet. Later this summer, I will have an article on my blogging activities published by the litigation section of the ABA in a journal entitled Litigation. In that article I address these issues in somewhat greater details.

    All the best.


  42. FlameCCT,

    Fair enough. While you find it hard to believe that I would accept such a response from a lawyer appearing before me, I can only tell you to believe it. That, of course, is entirely up to you.

    All the best.


  43. Dear Adam,

    I am jerk and an asshole. I sincerely apologize. I feel awful. My only excuse, and it is a lame one, is that I feel somewhat beleaguered trying to respond to a bunch e-mails labelling me all sorts of bad things.

    I misread who wrote the post at your URL, the URL I see behind the scenes here at idiot central. It appears that one of your colleagues wrote the post, rather than you. Of course, I did not check it carefully. Shit. And I had the temerity to question your spelling?

    So here’s the deal.

    Back in the old days when I was young and even dumber, we lawyers used to fight like hell and get mad at each other in the courtroom and then make up over drinks. Once in a while one of the judges would show up, and we carried on as usual but avoided bitching about how dumb the judge was.

    So, buy yourself a drink or several. Then send me the bill. I am double damn serious. Send me the frigging bill. If you don’t, I’ll hunt you down. You don’t want me sitting across the table from you. That would mean you couldn’t bitch about how dumb I am.

    All the best.


  44. I’m interested to hear your reaction to Kerr’s latest post.

    I’d also be interested in a little more explanation to your response on Canon 2A. Yesterday I wrote what I thought was a pretty clear syllogism:

    1. Judges must avoid even appearance of impropriety. (Canon 2A)
    2. Violations of the Code of Conduct are improper. (Canon 2A)
    3. An action appears improper if reasonable people disagree on whether it is improper (Canon 2A)
    4. Reasonable people disagree on whether you violated Canon 5.
    5. Therefore, you violated Canon 2A by failing to avoid the appearance of impropriety.

    Can you show me the flaw in this syllogism from your point of view?

  45. Methinks FlameCCT makes a good point and it is particularly valid because it is made by a non-lawyer – he is member of the general public. It is the citizenry who should be of some concern here when it comes to the “appearances” presented by the legal system and a federal judge in particular. I agree with your view of Cruz’s idea to make the Supreme Court elective. It is simply stupid, even if some would claim it is brilliant – I fail to see his brilliance – he comes off as a strident political hack to me. Anyhow, I think you could have made all the points you wanted to make about his silly idea without ever opining about his fitness to be POTUS. You would have served an important purpose of exposing a suspect idea to discussion and avoided being the target of so much criticism for the “appearance” of engaging in improper political comment that should not be encouraged by a sitting judge. Just my humble opinion. Of course, I know you do not shy away from controversy and probably push the envelope at times to make a point that you believe is important. No one can accuse you of not having thought out these things before venturing into the fray. 🙂

  46. “if words have meaning I did not ‘publicly oppose’ Cruz, I called him unfit to be President.”

    So I take it that your view would be that in the following conversation, Sam and Joe didn’t agree to Joe would sell drugs to Sam:

    Sam: Hey, Joe, I’d like to come over to your house tomorrow to buy some illegal drugs.

    Joe: Great! I’d like to sell you some illegal drugs. And as it happens, I have in my possession ten quaaludes, which I am willing to sell to you for $100.

    Sam: OK. That’s a good price. I am willing to buy those ten quaaludes for $100. In fact, I promise I will buy the ten quaaludes from you tomorrow for $100, if you will promise right now that you will sell them to me for that price.

    Joe: Of course! In exchange for that promise, I hereby promise I will sell you the ten quaaludes tomorrow for $100.

    Sam: I have an idea! Let’s write down our promises to each other on a piece of paper and sign our names at the bottom. Then I’ll make a photocopy for you. That way, we will each have a written record of the promises we have made to each other.

    Joe: Splendid!

    [Sam writes out their promises, and for extra emphasis, he writes, “Each of these promises is made in consideration of the other promise.” Sam and Joe both sign the paper. Sam makes a copy for Joe and gives it to him.]

    Sam: OK, see you tomorrow, when I bring over the money to buy the drugs.

    Joe: And I’ll be waiting for you. I will be ready, willing, and able to transfer title and possession of the quaaludes to you upon my receipt of the aforementioned sum.

    Sam: Let’s shake on it!

    [They shake hands. Exeunt.]


    When you get assigned to a criminal conspiracy case, does the defendant’s lawyer do a little happy dance?

  47. Clearly, the flaw is that you, Jack, are not a reasonable person. In all seriousness, the only thing I can think of attacking is the link between 1 and 2.

    Under 2A, An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired

    Thus, appearance of impropriety does not result when reasonable minds disagree on whether something is improper, but rather, when reasonable minds disagree as to whether a judge’s honesty, etc is impaired. Impairment does not necessarily mean breaking the code.

    In other words, I take your argument to be as follows:

    1) breaking the code is improper,
    2) therefore coming close to breaking the code (reasonable people disagreeing about whether Canon 5 was violated) is creating the appearance of impropriety.
    3) therefore, since appearance of impropriety is breaking the code, the judge broke the code.

    I think the weakness in this is that coming close to breaking the code =/= appearance of impropriety.

    Having said all this, I may just be wrong and mischaracterized your argument

  48. Thank you for the response. It doesn’t sound silly at all to me. I think it’s important that we figure out what is important to us and abide by that.

    (I do think it would be unreasonable for others to expect that of you, but that’s a different thing.)

  49. “Can you name a lawyer that does?”

    Geoffrey Hazard, Stephen Gillers, Lawrence Lessig, Deborah Rhode, Michael Frisch, David Luban, Ellen Yaroshefsky, Timothy Terrell, Martha Nussbaum, Steven Lubet, Lisa Lerman, Bruce Green, James Hodge, Jane Kirtley, Renee Knake, Ronald Rotunda, Eli Wald, . . .

    Do you not have Google, Oliver?

  50. i agree with you up to the point that the judge stated that Sen. Cruz was unfit to serve as president. that comment was not “an opinion on a Constitutional matter,” but was instead a clear statement in opposition to Cruz’ candidacy. like it or not, that is simply not something on which sitting federal judges are supposed to publicly comment.

  51. Ok, my two cents. When Judge Kopf is on the U.S. Supreme Court and has to rule on whether the Texas voters properly had their vote counted, he should recuse himself. If neither of these circumstances arise, we should move on to a new topic.

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