Richard Kopf is a senior district court judge for the United States District Court for the District of Nebraska.
Ted Cruz is a United States Senator from Texas, and he is running for president as a Republican.
Judge Kopf does not care much for Senator Cruz.
His dislike stems from Cruz's proposal to amend the constitution to submit federal judges to retention elections. Based on this proposal, Judge Kopf declares:
Senator Ted Cruz is not fit to be President
Judge Kopf seems aware that he is at least close to crossing a line by making such a statement:
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.Judge Kopf's duty not to play politics is set out in Canon 5(A)(2) of the Code of Conduct for United States Judges. It is fairly straightforward: "A judge should not . . . make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office."
I think Judge Kopf's blog post can reasonably be interpreted as opposing Ted Cruz's candidacy for president. Although, the bulk of his post is an attack on the merits of Cruz's proposal—which seems permissible—he cannot resist taking specific shots at Cruz's fitness as a candidate for president. Perhaps we can view those shots as mere rhetorical bluster, rather than a serious opposition to Cruz's candidacy. What do you think, Mr. Gillette?
Incidentally, Judge Kopf quotes George Will pointing out that Cruz's proposal is similar to Teddy Roosevelt's proposal, when running for president as a Progressive in 1912, to submit judges to recall elections. Teddy Roosevelt, of course, actually served as president and became so popular that he's literally on the Mount Rushmore of U.S. Presidents. This undercuts Judge Kopf's argument that a person proposing to overhaul the judiciary in this way is unfit to president.
Judge Kopf explains his thinking on the ethical qualm in a response to a reader comment:
You raise a very serious point. It was one that I very seriously considered. Reasonable people can can reasonably conclude that my calling Mr. Cruz unfit ventures too far into the political spectrum.
Here, in brief, is a part of my reasoning for thinking that I was allowed to comment on his fitness to serve as President and that I did not venture too far into the political arena.
First, I have not voted since I became a judge in 1987. I am not even registered to vote. I consciously decided on this course of action to assure myself that I would remain apolitical.
Second, and starting from the foregoing premise, I have no axe to grind one way or the other about who is elected President generally speaking. That said, when a man of Senator Cruz’s education and experience calls for a radical and fundamental attack on the Supreme Court he is not acting in political terms. If he is really serious about the amendment he is a threat to the judiciary that I love and respect and have devoted much of my life to serving. Therefore, his unfitness is a function of his threat to our Constitutional form of government–it is in that sense that he is acting in an extra-political manner and that extra-political action entitles me to take the public position that I have taken about his unfitness.I am quite unconvinced.
I think that it was reckless for Judge Kopf to go forward with the post if he was aware that reasonable people could reasonably conclude it crossed the line into political advocacy. Why toe that line?
The stuff about voting is irrelevant and backwards: the code of conduct doesn't prohibit voting, it prohibits public advocacy for or against candidates! And, besides, voting isn't what gives us political opinions, it reflects them. A federal judge with a widely followed blog can influence an election far, far more with a post than he can with a single vote (which is meaningless, of course).
Finally, what to say about Judge Kopf's judgment that Cruz's unfitness is not a political opinion, but rather a simple fact of nature based on his proposal to amend Article III of the constitution? What to say about his judgment that Cruz's proposal is some sort of "extra-political action" because it is a proposed amendment to the constitution that poses a "threat to the judiciary"?
Probably the less the better. There no principled, or even coherent, argument that judges are allowed to campaign against politicians who make proposals that judges don't like.
Judge Kopf now concedes his error, and has apologized.