Professor Orin Kerr is correct on Canon 5, and for that I apologize

Orin Kerr

Fred C. Stevenson Research Professor

The George Washington University Law School

July 8, 2015 (late evening)

Dear Professor Kerr,

In your most recent post for the The Volokh Conspiracy entitled More on Judge Kopf: The Calabresi precedent, which I only became fully aware of this evening, you cite what you call the Calabresi precedent coming from the Second Circuit. I have now had the opportunity to carefully read the opinion.*

The decision of the Second Circuit is not, strictly speaking, “precedent,” and Judge Calabresi’s comments contained such statements as “In this case, like Mussolini, he [President Bush] has exercised extraordinary power” and  “Bush’s reelection raised a ‘deeper structural issue’ that was ‘at stake’ in the forthcoming election.” Nevertheless, I have concluded that (1) the holding of the Calabresi opinion would likely be applied to me if an ethics complaint was filed in the Eighth Circuit; and (2) you are correct, based upon the holding of the Calabresi decision, that I violated Canon 5(A)(2) (“A judge should not . . . publicly endorse or oppose a candidate for public office.”)

Specifically, when I wrote that “Senator Ted Cruz is not fit to be President” and when I made related assertions of unfitness for office and the like in reference to Senator Cruz as a candidate for the Presidency, I crossed the line under the holding of the Calabresi opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges. Consequently, I apologize to you, Senator Cruz and everyone else for my error.

I wish to make clear, however, that I stand by my criticism of the Senator’s intemperate remarks about certain individual Justices, the Supreme Court and his proposal for judicial elections of Supreme Court Justices. I believe those criticisms are both fair and fairly within the provisions of Canon 4(A)(1) (“A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”).

Sincerely,

Richard G. Kopf

Senior United States District Judge

*Prior to my term on the Judicial Conference Codes of Conduct Committee, I was generally aware of the controversy over Judge Calabresi’s remarks, but I had not carefully read the Second Circuit decision until this evening. That said, I do not offer this failure as an excuse.

 

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