Tuesday, July 7, 2015

Judge Kopf goes after Ted Cruz

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.


  1. Judge Scheiss Kopf needs Roto-Rooter.

  2. Judge Kopf is perhaps inadvertently proving Senator Cruz' argument that the threat of impeachment will not deter a Federal Judge from misconduct, so retention elections are needed. I had thought that such elections are an impractical remedy, but perhaps I was mistaken.

  3. This comment has been removed by the author.

  4. Since Article III authorizes and sanctions the establishment of (only) one Supreme Court, but does not set the number of justices that must be appointed to it; let's change the statute to have 50 justices, one from each state, and one from Washington D.C., and have appointed, retained or removed depending on the individual state constitution!

    Under this proposal, no future president could every again manipulate the number of judges because the decision would not be in the President's hands, but in the constitution of each state.

    Under this proposal, the majority of each state would be represented by the election of their U.S. Supreme Court justice, which would be one of 51 other U.S. Supreme Court justices, all, collectively, representing the "majority" voice of all the states and their citizens.

    Additionally, there would be no reason to change Congress authority to remove a Supreme Court Justice (for any reason, including a purely POLITICAL reason.) But it would no longer be able to alter the balance of the court, anytime it sees fit. That decision would be taken out of their hands and placed directly into the hands of we the People through their individual state constitutions.

    Moreover, with today's vast advances in communicative technology, there would be no reason why all 51 justices would have to actually be in one place when a case is brought before them. All could reside in their home states, even in their own homes or offices.

    It is time to take full advantage of today's technologies to move the decision-making authority closer to we the people, rather than maintaining the closed, structure of the past.

  5. Judge Kopf's latest defense of the post is .... embarrassing: http://herculesandtheumpire.com/2015/07/07/professor-orin-kerr-blogging-judge-calls-political-candidate-unfit-for-office/#comment-27991

    1. I've felt a little bad about using the word "embarrassing" in this comment. But today Judge Kopf learned that 95% of the staff at his district court think his blog "has become an embarrassment" for the Court, and in light of this he's shutting it down. That's too bad, as many of his posts are very good and overall it's a good blog. Honestly, I think we'd all be better off if Judge Kopf just stopped judging and blogged full time. But, alas.

    2. Correction: On rereading Judge Kopf's post I see that it is not 95% of the staff but rather the "great majority" who thought the blog embarrassing. The 95% figure was the percentage of posts that the Chief Judge thought were great, which I agree with.

  6. I support Judge Kopf. I don't like content based restrictions on free speech. Look at Justice Kennedy's concurrence in Republican Party v. White. I'm not suggesting that a judge (state or federal) should become so enmeshed in politics that her impartiality can come reasonably into question, but Judge Kopf's short sentence falls far away from that. One doesn't lose their First Amendment Rights just because they are a judge.

    I find his blog to be simply terrific. Like anything thing or anyone else, I don't always agree with him, but he's always posting material that gives you something to think about.

    I think that is why the First Amendment is so important, the free marketplace of ideas requires conversation. I don't want a judicial canon muzzling free expression unless there is a direct conflict with the judicial function.

    Go Judge Kopf. Just sign me as one of "Kopf's Kommandos." (That is a loyal reader of his blog).

    1. Kopf Kommando:

      I appreciate your comment. I enjoy Judge Kopf's blog as well, and I know that Mr. Gillette does as well. This post was not intended as a personal attack on him -- for instance, I do not propose that he is any way unfit to be a judge, and do not wish him to stop blogging. I do think he made a mistake -- not a big one, but it was enough to move me for whatever reason to blog. Frankly I think he should just admit it and move on. His post on Cruz's proposal could be completely fixed (and of course would be far more effective) if he just took out the personal statements about Cruz.

      You may be right that the ethical restrictions on federal judges participating in partisan politics are unwise, or constitutional, or both. Clearly any restriction on anyone's political speech raises a first amendment issue, and it's a Big Deal.

      That said, I think the argument in favor of canon 5 is pretty powerful: we have a compelling interest in maintaining an independent judiciary, and keeping judges from publicly supporting or opposing candidates for office helps maintain that independence in both fact and perception. I don't believe that Judge Kopf has advanced the argument (and I very much doubt he believes) that Canon 5 is unconstitutional, or even unwise. He just doesn't think he's violated it.

      Clearly I disagree with him, but it's certainly fair to point out that no one cares what I think.


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