To Salon and Brad Friedman: Give me a f…ing break

Salon through Brad Friedman has a florid article entitled, America’s most heinous judge resigns: Wife-beater Mark Fuller leaves the bench, finally, but not easily (June 1, 2015). While correctly and fairly noting that I harshly condemned Mr. Fuller and called for his resignation, the piece describes me as one “who likely shares a similar political and judicial philosophy as Fuller . . . .”

To Salon and Friedman,

You are idiots.

You provide no data, and have none, to establish that I “likely” share “a similar political and judicial philosophy” to Mr. Fuller. If you took the time to look, you would see that I twice supported a woman’s right to a “partial birth abortion” and both cases ended up in the Supreme Court. You would also find that, when sitting on the Eighth Circuit Court of Appeals, I supported Mrs. Clinton and dissented from the panel’s decision to deny her the attorney client privilege during a White House meeting with her government lawyer and her private lawyer. You would also find that I actively supported the Presidential commutation of a black woman who was the victim, at my hands, of the overly harsh Sentencing Guidelines.

You might even notice that I was appointed by Bush 41, rather than Bush 43, and that, at the time of my appointment, I was serving as a United States Magistrate Judge having gone through a statutory merit selection process to become an MJ. Had you examined the record, you would I have found that I have elected not to vote since I became a judge more than two decades ago. Had you done any due diligence you would have discovered that I was trial counsel for Nebraska in an impeachment proceeding brought by Nebraska (through the nonpartisan legislature) against a Republican Attorney General.

Moreover, had you done your research, you would have easily found that I took “senior status” at a particular time partially because I trusted President Obama more than the Republicans to appoint my successor. I clearly elaborated on this point on this blog on May 12, 2013:

So, as I contemplated if and when to take senior status, I was very mindful that I owed a lot to the Republicans who supported my nomination two decades earlier. But, to be frank, there was a countervailing concern. The Republican party as I knew it had vanished. When it comes to judges, the modern Republican party places a premium on a rigid orthodoxy and I have never trusted “true believers.” While I had absolutely no sense of who the Republicans would nominate, I was very concerned that my replacement might be an ideologue rather than a good lawyer. As a consequence, I studied what President Obama had done in the way of nominations to the federal district courts. In large measure, it appeared that the men and women Obama nominated to the federal district court bench were non-ideological (although frequently left-leaning) and mostly very good lawyers.

Richard G. Kopf, Did politics make a difference in my decision to take senior status?, Hercules and the umpire (May 12, 2013).

In short, I deeply resent the insinuation suggested by Salon and Mr. Friedman. Not only was it unfair to me (and Mr. Fuller), it was terminally stupid and ignorant. What’s worse, such unsupported assumptions all too often allow the media to lump judges together on nothing other than rank speculation. If journalists give a shit about accuracy and the federal judiciary, they ought to realize that we “Republican” judges don’t all look-alike*–here’s hoping you are smart enough to get my allusion.


*Of course, the same thing is true for “Democratic” judges.

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