Kopf to Judge Rader: Go easy on yourself

By and large, I like lawyers. This may seem strange coming from a judge who was once a lawyer. What else do you expect? Well, the answer to that question is not as obvious as it may seem. Over time, judges can begin to detest lawyers. That is because we see a lot of really bad lawyers who are really bad people.  But most of the lawyers we see are proficient and descent men and women.

Keeping the foregoing mind, I turn to the travails of Federal Circuit Judge Randall Rader. Here is the background of the judge taken from Wikipedia (with notes, marginal notations and headers omitted) and while you are reading look for his Nebraska connections:

Randall Ray Rader (born April 21, 1949) is the Chief Judge of the United States Court of Appeals for the Federal Circuit.

Born in Hastings, Nebraska, Rader received a Bachelor of Arts in English from Brigham Young University in 1974 and a Juris Doctorate from The George Washington University Law School in 1978. Rader served in staff positions on the House of Representatives from 1975 to 1980, first as a legislative assistant to U.S. Rep. Virginia Smith from 1975 to 1978,* then as counsel to U.S. Rep. Philip Crane, and legislative director of the United States House Committee on Ways and Means from 1978 to 1981. He then served as counsel to the United States Senate Committee on the Judiciary from 1980 to 1988. While counsel to the Judiciary Committee, he was Chief Counsel or Minority Chief Counsel for the Subcommittee on the Constitution and the Subcommittee on Patents, Trademarks, and Copyrights.

President Ronald Reagan appointed Rader to the United States Court of Federal Claims in 1988, to succeed Robert M. M. Seto. The United States Senate confirmed the nomination by unanimous consent on August 11, 1988. On June 12, 1990, Rader was nominated by President George H. W. Bush to a seat on the United States Court of Appeals for the Federal Circuit vacated by Jean Galloway Bissell Rader was confirmed by the Senate on August 3, 1990, and received his commission on August 9, 1990.

While on the Federal Circuit, Rader has served as a law professor, having taught patent law and advanced intellectual property courses at the University of Virginia School of Law, Georgetown University Law Center, Washington, DC, the Munich Intellectual Property Law Center, and The George Washington University Law School, Washington, DC. Rader is co-author of a casebook on patent law used at over sixty-five law schools. He has received many awards, including the J. William Fulbright Award for Distinguished Public Service, 2000. As an appellate judge, Rader has also led or participated in over sixty delegations to foreign nations, usually to teach rule of law or intellectual property concepts in developing nations.

Rader became Chief Judge of the Federal Circuit after former Chief Judge Paul Michel retired in 2010. Despite his new administrative duties, he continued to speak at law schools and at international conferences.

Rader announced his resignation as Chief Judge on May 23, 2014, to be effective May 30, 2014. Rader will remain on the court. Sharon Prost will succeed Rader as Chief Judge. His announcement came in the wake of his violation of ethical canons by sending a laudatory e-mail to a Member of the Bar of the Federal Circuit and asking that Member to show that e-mail to other Members of the Bar, creating the perception of an improper relationship between himself and Members of the Bar. Rader recused himself from a couple of cases he had presided over, due to the participation of the attorney in question.

As the foregoing suggests, Judge Rader sent an e-mail to a lawyer after a case had been submitted to the Federal Circuit. According to the Wall Street Journal, the substance of the e-mail and how it was subsequently used went something like this:

The judge sent the email in March to Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP in Silicon Valley. The email, which was reviewed by The Wall Street Journal, described a recent conversation in which another judge purportedly told Judge Rader that Mr. Reines was “IMPRESSIVE in every way.”

In the email, Judge Rader said: “I was really proud to be your friend,” and encouraged Mr. Reines “to let others see this message.” He signed the note “Your friend for life, rrr.”

ASHBY JONES and BRENT KENDALL, Judge Who Recused Himself From Patent Cases Resigns as Chief Judge [,] Randall R. Rader Leaves Post as Chief Judge of Court of Appeals, Stays on the Bench, Wall Street Journal (Updated May 23, 2014 7:13 p.m. ET) (subscription may be required for some versions).

When the e-mail was shown to a client apparently as a marketing ploy, it became public. Rader in turn resigned as Chief Judge writing a full, frank and candid admission that he had violated the Code of Professional Responsibility** by lending the prestige of his office to the private interests of the lawyer. You can read the letter here. The judge described himself as “inexcusably careless . . . .” He was right.

A lot of ink has been and will be spilled on this matter. For example, many are in high dungeon, and will endeavor to use this screw up as a reason to bash the entire Federal Circuit and perhaps to do away with that specialized body altogether with the idea of sending patent cases back to the regional circuits as in days gone past.  I have no interest in that stuff.***

What I am interested in is the human aspect of Judge Rader’s error.  I think I have only had one occasion to meet the judge when he came to Lincoln to give the Cline Williams Jurist-in-Residence lecture in February of this year. I don’t recall knowing Judge Radar when he worked for Congresswoman Smith.

Dean Susan Poser (left), Judge Radar (center) and Christal Sheppard Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law, who interned with Judge Radar.  The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon Feb. 14, 2014.

Dean Susan Poser (left), Judge Rader (center) and Christal Sheppard (right) Ph.D, J.D., Assistant Professor of Law, University of Nebraska College of Law. Sheppard interned with Judge Rader. The Judge gave the Cline Williams Jurist-In-Residence Lecture at noon on Feb. 14, 2014.

Here is my impression based on a one night of interaction: Judge Rader is a very bright judge and almost the perfect Chief Judge insofar as bench and bar relations are concerned. He is easy to talk to, he goes out of his way to be approachable, he is humble, he is self-effacing, I suspect he is an excellent teacher as his legal analysis is clear and easily understood, he seems truly sincere, and he is, without question, fun to be around without overdoing the “hail fellow well met” routine. I came away quite impressed.

What’s the point of all this? Well, there are two.

First, I venture to say that if you serve any length of time as a federal judge you will engage in an ethical lapse. God knows I have done that. Here’s one of mine: On being a dummkopf.  Like my mistake, these ethical lapses are most often the product of inattention rather than bad faith. No, that is too easy a description. More honestly put, the great bulk of the ethical errors are just plain stupid. But, federal judges, just like everyone else, are plainly stupid some of the time. If you think otherwise, you have not practiced law in the federal courts.

Second, for judges like me who like and respect lawyers, the urge to convey our appreciation to the best of the profession is a good professional and human quality. Federal practitioners and federal judges are at the most abstract level bound together in a common endeavor. In order to achieve that lofty goal, the bond between federal practitioners and federal judges at the street level needs to be strengthened and nurtured rather than weakened. We federal judges should let our practicing brothers and sisters know that we appreciate the good work we see turned in every day.

This is my sense of what motivated Judge Radar to write his overly effusive, but plainly improper, e-mail. His head was empty but I trust his heart was pure. That is not an excuse, but the judge’s effort to reach out to a member of the bar who apparently did excellent work does put a finer point on the judge’s conduct. A judge being appreciative of fine legal work and expressing that appreciation appropriately, and in the proper forum, is laudable.

In summary, I am no doubt giving Judge Rader the benefit of the doubt. I can’t know his heart. Hell, I don’t even really know him. However, given his past distinguished service (not to mention that he is a native Nebraskan), my presumption of good faith on the part of the judge strikes me as entirely justified. But, dear reader, that is up to you to decide.****

What I can say, and now say to Judge Rader, on a very personal level, is this: Go easy on yourself. Yes, you screwed up but you fessed up and there is nothing more than you can do. Don’t let the bastards get you down.

RGK

*As perhaps the leading member of the farm caucus in the House, Mrs Smith was a very, very, very powerful Member of Congress from the Third District of Nebraska. (The Third District is a huge expanse of cattle and corn and few people that covered Lexington, where I practiced law for 13 years.) I have it from multiple authorities (including the “shot caller” at DOJ) that President Reagan did not nominate me as federal district judge several months after I became a 40-year old Magistrate Judge because Mrs. Smith vigorously opposed my nomination. Keep in my mind that I stumped for her in the Third District and even substituted for her in a debate. But, when I prosecuted the impeachment of Nebraska’s Attorney General, a good man and stalwart Republican, Mrs. Smith made it known that I was “dead to her.” She was one tough cookie.

**CODE OF CONDUCT FOR UNITED STATES JUDGES.

***I spent six years sitting with a judge from the Federal Circuit when we both served on the Codes of Conduct Committee writing confidential ethics opinion to judges and redrafting the Code of Conduct. In addition to being a brilliant scientist and first-rate lawyer, this man was deeply committed to the very hard work of the Committee. He was an absolute straight shooter. It would be grossly unfair to speak of Judge Rader’s lapse as a reason to smear the Federal Circuit on ethics issues without also acknowledging the work of my friend.

****Many thanks to Eric Hines, one of the most discerning lay persons I know, for stimulating my thinking on this subject. Of course, he shares no burden for the weakness of my views.

It isn’t only left-leaning judges who get into “ethics” trouble

During the discussion last week about Judge Scheindlin. and the Second Circuit, several commentators suggested that it was only left-leaning judges who seemed to get into ethics problems. I did not think that was so, and today I will provide an example of why I don’t think that is so.

Consider the most recent attack on Judge Diane Sykes of the Seventh Circuit. She interviewed Justice Thomas on stage at the Federalist Society’s recent dinner “gala.” Because she allegedly did that at a “fund-raiser,” Representative Louise Slaughter, Arn Pearson, Vice President for Policy & Litigation, Common Cause, and Nan Aron President, Alliance for Justice filed a complaint with the Seventh Circuit against Judge Sykes. See here for the complaint. The only problem was that the dinner lost money and did not serve to raise funds, so said the Federalist Society. See here.

First, two observations about the creepy Federalist Society and its equally strange double, the American Constitution Society (ACS). Here they are:

* The Federalist Society and the ACA are like the Girl Scouts and the Camp Fire Girls of my youth. They wear matching uniforms, parade around mouthing similar slogans, and specialize in making macaroni art that is inedible. In the main, however, they are harmless.

*For among other reasons, I never attend Federalist Society or ACS gatherings ’cause I don’t appreciate fine wines. See attached photo.

Second, just as Judge Scheindlin was subjected to an allegation that she violated the Code of Conduct for United States Judges, Judge Sykes was targeted during the same time frame with an allegation that she too violated the Code. Judge Scheindlin and Judge Sykes do not share the same views on many things. But, neither one deserved the smack.

Finally, and what follows is the important point. The next time you hear that a federal judge has violated the Code of Conduct, think about that claim as a “drive-by shooting.” 

RGK

RGK's box wine on the beer 'frige in the garage

RGK’s box wine on the beer ‘frige in the garage

What do you think about the Second Circuit’s removal of Judge Shira Scheindlin?

Judge Scheindlin is a New York federal trial judge who has taken senior status.* She was handling high profile cases involving New York’s “stop and frisk” practices. She issued an opinion providing remedial relief and an injunction to the folks who were challenging the police department’s practices, and up the case went to the Second Circuit. On Thursday, without ruling on the merits of the appeal, and acting on its own without a request from the appellants, the Second Circuit removed Scheindlin.  The Court stated that the trial judge had violated the Code of Conduct and failed in her responsibility to uphold the appearance of impartiality (1) because of her statements to the parties regarding “related” cases and (2) because of interviews she gave to the media. The Second Circuit’s short opinion is here. Liberal legal commentators exploded in outrage. See, for example, here and here. The judge has responded as well. See here.

I’ll give my views later. For now, let me know what you think?

RGK

*I don’t know the judge. Nor do I know any of the Circuit judges on the Second Circuit panel who removed the judge.

On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. 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.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”

RGK

Can judges be too public?

Charles Lane (an editorial writer who attended Yale Law school) has written a piece in the Washington Post that deserves reading. A reader, who is a lawyer, called my attention to the article, and I thank the reader for doing so.

The piece criticizes Judge Posner for being too public. While I sure as hell don’t compare myself to Judge Posner in any form or fashion, I would appreciate it if readers would review Mr. Lane’s piece about Judge Posner’s penchant for being public and apply Lane’s critique to this blog. After that, I would welcome hearing from readers about what they think. Truly, I am not trying to gin up discussion. Since this blogging gig is new to me, I am sincerely interested in what others think about the important points made by Mr. Lane.

RGK

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