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

Did politics make a difference in my decision to take senior status?

Particularly among legal academics and political scientists, there is interest in and speculation about why federal judges take senior status.  See, e.g., Stephen B. Burbank, S. Jay Plager, and Gregory Ablavsky, LEAVING THE BENCH, 1970–2009: THE CHOICES FEDERAL JUDGES MAKE, WHAT INFLUENCES THOSE CHOICES, AND THEIR CONSEQUENCES, 161 University of Pennsylvania Law Review 1 (2012).

Among other things, folks want to know whether the decision is “strategic.”  That is, does a judge taking senior status time his or her decision so as to give the political party that the judge favors an opportunity to nominate the judge’s successor?  I don’t speak for anyone else, but here are my thoughts.

I decided to take senior status as early as permitted, that is, on December 1, 2011.  On that date, my age (65) plus my years of service as a judge exceeded 80.  At that point, if I took senior status, my salary would convert to an annuity, I would be eligible for Social Security retirement benefits, and I would not be required to pay Social Security taxes.   By taking senior status, I would give myself a nice pay bump.  Maybe that was my primary motivation, but I am really not sure.

In the District of Nebraska, it had been the unspoken custom to take senior status as soon as possible so that our court could renew itself with a new judge.  Additionally, in the District of Nebraska, senior status judges are treated respectfully be the chief judge and the active district judges.  These two factors were also very important to my decision.

Was my decision to take senior status about one year before the 2012 Presidential election motivated by who sat in the White House?  That is a  complicated question and I will answer it as truthfully as I can.

Until I became a judge, I had been a low-level partisan and member of the Republican party.   But, I had absolutely no political pull.  Indeed, I would never have become a federal district judge without the quiet but absolutely critical support of three very prominent Nebraska lawyers who were pillars in both state and national  Republican circles.   These were men of uncommon judgment, legal talent, intellectual honesty and toughness. And, since I had prosecuted the impeachment of Paul Douglas, the beloved Nebraska Attorney General, and since Mr. Douglas, a staunch Republican, was a close friend to all three of these men, their willingness to help me was extraordinarily generous.*

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.**

On balance, I decided that if a Democrat got to make the appointment, so be it.  There was no “strategic reason” to delay taking senior status.

To sum up, if my experience is any indication, when a federal district judge considers taking senior status a variety of factors will enter into the decision.  One factor is  likely to be economic.  Another may be the culture and collegiality of the court.  A third may be “strategic.”   It is very hard to say whether one factor is more important than another.

RGK

*Five years earlier, and because of my involvement in the Douglas matter, Virginia Smith, an extremely influential Nebraska Congresswoman, actively opposed talk that I might be nominated by President Reagan to succeed Judge Beam who had been elevated to the Court of Appeals.  I well remember going back to Washington and being asked by a DOJ judicial selection official, “What did you do to piss her off?”  Doing my job evidently wasn’t a good enough answer for Mrs. Smith or the political operative at DOJ who questioned me on this subject.  The nomination went to Bill Cambridge at Mrs. Smith’s urging.  (I should add that Bill served with great distinction.  He was a dear friend until his death.)

**My successor is Judge John Gerrard and he was appointed  by President Obama at the urging of Senator Nelson, a Democrat, and Senator Johanns, a Republican.  John was universally regarded as a stellar lawyer and then a highly respected Nebraska Supreme Court Justice.   As I have said many times before, John was and is a great person and a gifted judge–he is no ideologue.

Should senior status district judges retire as a group to get the attention of Congress?

As I noted yesterday, federal district judges who take senior status work for free.  They also do a hell of lot of work.

Consider this analysis:

For the district courts, there were 678 authorized judgeships (including
temporary judgeships) and 651 judges in regular active service in December
2009. The latter accounted for 78.8% of case terminations in 2009, while
judges in senior status accounted for the other 21.2% (including 26.8% of all
trials). It would require 174 district judges in regular active service to do the
case work performed by judges in senior status in that year. Taking vacancies
into account, this translates into 147 additional authorized district court
judgeships.

Stephen B. Burbank, S. Jay Plager, Gregory Ablavasky, Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequence,  161 University of Pennsylvania Law Review 1, 93 (2012).

If Congress continues to starve the federal judiciary of the money it needs to perform its core functions,  perhaps a significant symbolic act is in order.  At some point, senior district judges, who obviously love the federal judiciary enough to work for free, should consider retiring as a group.   Congress would then have to find a lot of money to pay for its intransigence.   While the impact on our active judicial colleagues and our staffs would be severe, there may be no other way to truly get the attention of Congress.  I am entirely serious about this.

RGK

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