Does a federal trial judge’s personal life matter?

Photo credit:  diametrik's photostream pursuant to Creative Commons license.  Akbar's Hall of Private Audience in India is pictured.  A Muslim ruler and intellectual, Akbar granted audiences to religious scholars of varying faiths and encouraged them to debate the respective strengths of their religions.  Muslim, Hindu, Buddhist and Christian elements are depicted in the column.

Photo credit: diametrik’s photostream per Creative Commons license.  (Akbar’s Hall of Private Audience in India is pictured. A Muslim ruler and intellectual, Akbar granted audiences to religious scholars of varying faiths and encouraged them to discuss their views.  Muslim, Hindu, Buddhist and Christian elements are depicted in the column.)

After federal district judge Vaughn Walker issued his ruling in the Proposition 8 case that is now before the Supreme Court, there was a lot of discussion about the judge’s sexual orientation. One particularly thoughtful writer wondered aloud whether the judge’s personal life really mattered.  See Jesse Finfrock, Does Prop 8 Judge’s Personal Life Matter?, Mother Jones (August 4, 2010) (concluding that “while his sexual orientation does not matter from a legal perspective, it does put the judge in a tough position politically and personally: No matter how he ruled, he was bound to come off as biased, insensitive, or both.”)

Following oral argument in the Supreme Court on the Prop. 8 case, I thought of Judge Walker and reread the Mother Jones article.  I then began to question whether a judge’s religious or spiritual inclinations were relevant to the judicial role.  If Judge Walker’s sexual orientation matters, doesn’t the fact that the majority of the Justices belong to the Catholic church matter every bit as much?  See Geoffrey R. Stone, Justice Sotomayor, Justice Scalia and Our Six Catholic JusticesHuffington Post (August 28, 2009) (the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago asked “whether and to what extent judges are and should be influenced by their religion, their ethnic background, their race, their life experiences, and their personal values.” )  In turn, that got me thinking about whether my personal life mattered to my role as a federal trial judge.

Several years ago, I enjoined the enforcement of a local ordinance that banned pro-life picketing at a Protestant church.  One of the congregants was a doctor who performed abortions and the picketers evidently wanted to drive the doctor from his church.  I ruled that the pro-lifers could show gruesome photographs of dead fetuses on the sidewalk in front of the church even though those photos frightened little children who were attending church services.  See Olmer v. City of Lincoln, 23 F.Supp.2d 1091 (D.Neb.,1998), aff’d, 192 F.3d 1176 (8th Cir.1999).  In doing so, and among many other things, I alluded to St. Patrick’s Cathedral in New York and how the Nebraska ordinance would, if applied there, prohibit pro-life Catholics from practicing their faith on the adjoining sidewalks of their famous church.

At the time, one of my daughters supported herself by tending bar.  By all accounts, she was a pretty good bar tender.  While pouring a drink for a lawyer one evening, the subject of my ruling came up.  The lawyer had no idea that she was speaking to the daughter of the judge who had issued the ruling.  Anyway, during the discussion, the lawyer told my bar tending daughter that the ruling was driven by the well-known fact that I was a dyed-in-the-wool Catholic.  Like all good bar tenders, my daughter merely nodded, smiled and kept pouring the booze.

Keeping in mind the lawyer’s fixation on my supposed Catholicism, let me add five details:

1.  Neither one of my parents was religious.  In fact, after consuming large quantities of Irish whiskey, my mother, an intensely devoted alcoholic, would frequently rage against the Papists.  She never saw the irony in her love of Irish whiskey and her dislike of Catholics.  In any event, and not to put too fine a point on it, I am an agnostic.  I have been all my life.

2. The bar tender in the foregoing story, was a bit of a wild child.  After my first wife passed away, for five years, I raised our three children as a single parent.  At my insistence, and hoping to instill some discipline, the wild child (later to become a gifted school teacher) attended a Catholic (all-girls) high school.   However, and so far as I know,the dear child remains unaffiliated with any particular religious denomination.

3.  After years of service in the State Department, and spending a lot of time in Arabic speaking places, my cousin, who was raised as an Episcopalian, converted to Judaism.  After his retirement, and following a meticulous research effort, he wrote a book questioning, among lots of other things, whether our grandmother’s German immigrant family was Jewish.  See George Kopf, Looking for Almeda: A Story of Immigration, Freedom and Faith, Amazon Digital Services, Inc. (2011).

4.  My late wife (the mother of the bar tender) was raised by a Presbyterian father and a Mormon mother who were both steady practitioners of their respective but very different faiths.  Nominally a Protestant, my wife taught in a Catholic school.  Before passing away at age 40, she frequently took our kids to the Methodist church.

5.  My second wife, the kids’ step-mother, is the oldest of seven children raised in a devout Catholic family.  She was educated in Catholic elementary and secondary schools.  Notwithstanding her deep love for the religion of her youth, she refuses to attend Mass because of the church’s stance on women.

So, does a federal district judge’s personal life matter?  Well, Duh!*  Of course it does.  But not in the cartoon-like manner that has become the hall-mark of dolts like the lawyer who slurped down drinks poured by my daughter, the bar tender.  Federal trial judges have far more complex (and interesting) personal stories than silly stereotypes about sexual orientation or religion can capture.

RGK

*If Nobel prize winners can use this formulation, then plebeians like me can do so too.  See Paul Krugman, Today in Well, Duh, N.Y. Times (March 3, 2013).   Most of the time, I find Mr. Krugman to be a tiresome (but brilliant) ideologue, but that’s another matter.

What I learned (and am still learning) from a “Fuck You” motion

Several years ago, the Clerk’s office received a scribbled piece of paper from a prisoner that was in response to an adverse ruling I had made.  The Clerk’s office appropriately treated it as a motion.  The motion concluded with the words:  “Fuck you!”*   In response to the motion, I drafted an order stating that “the ‘Fuck You’ motion is denied with a hearty ‘you too.'”

I sent the order for filing, but my “taste and decorum committee” strongly recommended that I reconsider.  They asked me to put myself in the position of the prisoner and then ask myself how the prisoner would feel upon receiving my sarcastic order.  I pulled the order.

On another occasion, I was in the process of sentencing a young Native American for an offense that had taken place on the reservation.  (Parenthetically, if you want to see what its like to live in hell, spend time in “Indian Country.”)  I had informed the lawyers that I was considering an upward departure or variance.  My upward departure/variance suggestion was met with strong opposition from zealous defense counsel as well as the the fair-minded prosecutor.   While considering the motion, and during a heated exchange with counsel, I harshly and sardonically described the young man and his conduct.

When given the opportunity to speak prior to sentencing, the kid seemed nearly in tears.  He was not scared of more prison time, he was angry at me for describing him in ways he thought were unfair.  After listening to the boy, I decided to follow the recommendations of the lawyers and I gave what amounted to a “time served” sentence.  But, the young man’s injured reaction to my words hangs with me still.

Now, why do I write this post?  It is true that the role of the trial judge frequently calls for the use of unvarnished language, and humor can be an excellent way of punctuating the point.  However, there are human beings on the receiving end of those words.  In lots of cases, those human beings confront lives that few of us on the federal bench can imagine and, when they appear before us, they are powerless.

Lesson learned (and still learning):  Control your inner smart ass.  Sometimes, saying nothing is quite sufficient.

RGK

*For more on this word and its legal significance, see Christopher M. Fairman, Fuck, 28 Cardozo L. Rev. 1711 (2007).

Judge Cebull and being careful out there

Judge Richard Cebull, a federal district judge from Montana, has a brother. The brother sent him an e-mail containing a joke about the President. Using his government e-mail account, the judge forwarded it to some of his friends. That got the judge into very hot and deep water when a newspaper got a copy and the story went viral.  See, for example, the New York Times editorial  Judge Cebull’s Racist ‘Joke.’    The judge sincerely apologized and filed a complaint against himself with the Ninth Circuit Judicial Council.  Yesterday, the news folks reported that the judge has now retired.

As one who once wore (and revealed) a bra while sitting on the bench in our special proceedings courtroom to illustrate my mordant claim to be the first woman to serve as a district judge in Nebraska, I empathize with Judge Cebull. I suppose the reason that I avoided a judicial conduct complaint is because everyone knew that my shtick* was good-natured. Sexist it might have been, but the laughter, including that emanating from my dear friend Chief Judge Laurie Smith Camp, was both warm and loud.

I read the joke that Judge Cebull sent.  I confess that I laughed when I read it. Although it was tasteless and race provided the premise for the joke, it reminded me of a lot of something that Richard Pryor might have written.  I loved Pryor.

Anyway, I doubt very much that Judge Cebull is a racist. Take a good look at his biography sometime, and then examine the reviews of lawyers about the judge’s background, ability, performance and demeanor.  See, e.g., Almanac of the Federal Judiciary, Aspen Publishers, Inc (2013) (search “Richard F. Cebull”).  Unless you are totally lacking in objectivity, I bet you conclude that Judge Cebull is the type of judge we want on the federal bench even though the judge made a mistake by forwarding the joke.

So, why this post? As Sgt. Phillip Freemason Esterhaus, in Hill Street Blues, frequently intoned, “Be careful out there.”  It is a humorless and bitter world we live in.

RGK

*I am only slightly worried that the use of that word makes me an anti-Semite.

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