On being a dummkopf

As my name implies (assuming you know a bit of German), I can be thick-headed. Dumb, if you will. My terminal stupidity broke out again last Spring, and this post is about my mistake. As I have said earlier, this blog allows me to own up to big blunders. Hopefully, such public admissions by a senior district judge serve an educational purpose for less experienced judges and others.  Or maybe I’m just a narcissist and a masochist. Anyway, here is the background.

A law student was terminated from the University of Nebraska College of Law. He sued claiming, among other things, that he was discharged because he subscribed to the Muslim faith and because he was an Arab. There was a fair amount of publicity surrounding the case. The defendants were the College of Law, various individuals at the law college, the Board of Regents, and the University of Nebraska.

I held a hearing on a request for a temporary restraining order. The parties adduced evidence and argument. I then denied the motion, and referred the case to Magistrate Judge Zwart for further progression. With that, I forgot about it as the excellent lawyers for both sides prepared to get the case ready for a jury trial.  In the interim, my son, Keller, and I were talking about the end of his post-doctoral fellowship in Australia and the possibility that he might come back the States. It is then that I made a bone-headed mistake by contacting a senior University administrator (who was not a named defendant) about my son’s job search.

Here is I how I described my error, and the subsequent recusal decision, in an order I issued soon after I awoke from my brain-dead slumber:

Following the institution of this lawsuit, a personal matter arose last week involving one of
my adult children and that matter causes me to recuse myself from this case. My son, a graduate
of the University of Nebraska, is completing his post-doctoral studies in Australia in the field of
biology. He is seeking positions with American universities. In that connection, last week, I wrote
an official of the University of Nebraska requesting help in my son’s job search.  Although my
motivation was innocent, I realized over the weekend that my contact with a party, while I was the judge assigned to this case, was improper. I apologize to the parties for my mistake.

IT IS ORDERED that I recuse myself from this case and the Clerk shall refer this matter to
the Chief Judge for reassignment.

AL-TURK v, UNIVERSITY OF NEBRASKA COLLEGE OF LAW, et. al, No. 8:13CV74 (D. Neb., April 8, 2013) (Filing no. 36.)

So, what is the lessons learned from this fiasco. While the life of a federal trial judge is chaotic, the judge must constantly be aware of what is on his or her plate. A good heart but an empty head is no excuse. Trial judges screw up all the time. Admit your mistakes and do so in honest terms. Move on. Old dogs must constantly relearn old tricks. Kopf is a dummkopf.

By the way, Keller stayed in Australia. His university got additional funding, the powers that be hired him to continue his research, and I pine over the continued inability to see my first grandson, Fletcher, more often. Oh, well.

RGK

Judge Glasser’s elegant reminder

Judge Israel Leo Glasser is a long serving senior district judge in the Eastern District of New York. He was awarded the Bronze Star during the Second World War and later served as a law school dean. Among other things, he is known for presiding over the trial of John Gotti.

The judge has written an opinion that reminds district judges like me of the importance of admitting when you are wrong. Judge Glasser has done so in a graceful opinion that makes me extremely jealous of the judge’s ability to write clearly, candidly, and beautifully. Put simply, the opinion represents judging at it best.

After a seven-day bench trial, Judge Glasser was convinced that the doctors at the VA negligently caused a grossly overweight cab driver to die an excruciating death. He awarded the widow $5 million and the three children a total of $900,000.

After the judge heard the post-verdict motion and arguments, he decided that the $5 million award was perfectly correct but that he was wrong to have awarded the children so much money. Judge Glasser reduced the award of $900,000 to $50,000 per child.

The judge explained his error in convincing detail. Then, he wrote the following:

I am conscious of the plea made by Oliver Cromwell to the Church of Scotland in 1650 that Learned Hand believed should be engraved over the portals of every courthouse in the land, viz.: “I beseech ye in the bowels of Christ, think that ye may be mistaken.” Dillard, The Spirit of Liberty XXIV (1952). I have thought and I was mistaken. The award I made to the children was egregiously excessive and is hereby modified by awarding each child the sum of $50,000.00.

The Almanac of the Federal Judiciary quotes a lawyer who describes Glasser as “a judge’s judge.”  I can see why. Thank you, Your Honor, for reminding the rest of us of the singular importance of intellectual honesty to the role of judging.

RGK*

PS Not that it matters much, but Judge Glasser was born in 1924.

*Ashby Jones, with The Wall Street Journal, has my great thanks for suggesting that I look into this case.

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