Please stop

I received a note today from a Nebraska lawyer.  I have the highest respect for him. He asks me to stop writing Hercules and the umpire. He believes I am doing more harm than good.  I asked if I could reprint his communication without his name.  He gave me permission to do so. Here it is:

Dear Judge Kopf,

Please excuse the liberty I am taking in sending this email; I trust that you will receive it in the spirit it was sent. I suspect that, on most topics but certainly on subjects such as the substance of this communication, judges hear from lawyers only what lawyers think judges want to hear. But I have concerns that rise above the desire to communicate only pleasantries and compel me to be, I am afraid, blunt.

I am deeply troubled when the judicial system you and I love, which I think is essential to our society, is harmed. I think blogging by judges harms our system significantly. I thought that you had decided some time ago to stop posting to Hercules and the Umpire. It is my sincere belief that you should.

As you know, justice is a horribly amorphous and ambiguous concept; the delivery of justice is a complicated, mysterious undertaking; and there are innumerable elements involved in efforts to achieve on the promise of delivering justice. But, in my 25 years as a lawyer, it is my inescapable conclusion that an important element, perhaps the most indispensible one, in our legal system’s ability to deliver justice is public trust in judges. In order for our system to work, the public must know that a judge will decide matters thoughtfully, impartially, respectfully, and on the merits. (I will refrain from further expounding upon the validity of the importance of public trust of judges as (1) if this premise is not something we can instinctively agree upon, the purpose of this communication cannot be met and (2) your “the SCOTUS should STFU” post seems to agree with this premise with the words “…all of us know from experience that appearances matter to the public’s acceptance of the law.”)

After painstaking and sincere thought, for I am sure you have considered essentially the same questions I have and reached a conclusion exactly contrary to mine, I am unable to understand how judicial thinking out loud can ever be a net plus on the scales of public trust and confidence in judges and, by extension, the law. It seems to me that such public naval gazing from a judge assumes even more potential negative weight when it takes the form of modern electronic communication prone to going viral if a member of the judiciary communicates on a controversial topic or in a controversial way.

There is little surprise in the level of attention drawn by, or the inevitable public reaction to, a federal trial judge, in a public forum, repeatedly using vulgarity including serial exercise of the f-word, apparently disclosing a fondness for looking up the skirts and down the blouses of female attorneys who appear before him, telling Congress to “go to hell”, and urging the SCOTUS to “stfu”. How does such attention and reaction create an appearance that assists the public’s acceptance of the law, help people trust judges, foster faith in our system, and advance the cause of the delivery of justice? If a judge cannot even restrain himself or herself, in a public forum, from using harsh profanity, engaging in course sexual comment, and being disrespectful of our country’s highest court – and seems incapable of exercising sufficient discernment to know when things should be left unsaid — how do we legitimately expect the public to trust a judge to make the critical decisions he or she is daily called upon to address? That seems far too long of a leap of faith to ask, much less to expect, the public to make. Are not the ultimate purposes of our profession better served by lawyers and judges acting with courtesy, grace, respect, and restraint? Whatever public benefit may come from public discussion of controversial topics, are there not more appropriate ways, far less harmful to the justice system, for those discussions to be initiated rather than through a judge’s controversial public comments?

As I understand it, part of your motivation for continuing with your blog is your passion that “federal trial judges be seen as individuals with all the strengths and weaknesses (baggage) that everyone else carries around.” (I take that quote from your reply to a response to your post about how female lawyers should dress for court.) First, I do not think that any person who thoughtfully considered that prospect could rationally conclude otherwise, with or without your blog. Second, I fail to understand the particular level of importance you apparently ascribe to folks’ possession of that understanding about judges. What difference does it make whether federal trial judges’ strengths and weaknesses and baggage are properly understood? To quote one of your rules for how women lawyers should dress, also known as the “dirty old man” post, “It is not about you.”

It is not that a judge, any more or less than anyone else, does or does not have thoughts like the more controversial ones you write about in your blog; it is that a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions. It is entirely proper for us to expect that judges not be publicly profane, lewd, or disrespectful; and it is entirely proper to expect judges’ words and deeds to be consistent with the high ideals of integrity and justice. In fact, the success, or lack of success, of our legal system largely depends on judges’ meeting these standards. Regardless of the public’s understanding of trial judges’ strengths and weaknesses and how similar those personal attributes may be to everyone else’s, it seems to me far more important to the purposes of the judicial system that a trial judge possess and display, at a minimum, the good judgment to know when something should not be said – an attribute that the existence of Hercules and the Umpire sometimes seemingly proves absent in you, much to the discredit of not only you but, through the public’s unscientific system of extrapolation, to the entire judicial system.

Again, I understand that I may be perceived as unbelievably presumptuous in privately communicating my thoughts to you. Please know that I do so only out of deep concern for our legal system’s ability to accomplish its purposes. Not that your decision on how you go forward is subject to some sort of vote, but my guess is that an overwhelming majority of lawyers disagree with your assumed conclusion that your blog does more good than harm; those I have talked to about your blog unanimously are of the opinion that you should make good on your earlier decision to stop. Again, I am certain that you have weighed the relative merits of making public your thinking on various topics and concluded that your doing so is, on balance, a positive thing. I respectfully disagree and ask, for the good of the legal system, that you please stop.

Best wishes on your treatment and recovery. My thoughts are with you and yours as you proceed on that journey.

With sincere respect,

I am going to give this letter serious consideration. It comes from someone I respect and whose judgment I trust. It also reminds me that, as a physician might say, I should always strive “first to do no harm.”  Blogging will be light while I figure this out.  While I will make up my own mind, advice (anonymous or otherwise), particularly from experienced lawyers and judges, would be welcome. Some things are more important than others.


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