Ted Cruz will never be President of the United States of America

Astute Reader(s)™ of this blog undoubtedly noticed that we went over a year without posting anything. One of my regrets about that period is that I had a draft post about how Ted Cruz will never be elected President of the United States.  There are many reasons for why Senator Cruz will never be elected, I will address two.

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.

ADDED:

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.

UPDATE:

Judge Kopf now concedes his error, and has apologized.

President Obama is running out of time.

Yesterday, Judge Richard G. Kopf expressed his puzzlement that President Obama has not formally nominated anyone to fill the judicial vacancy in the District of Nebraska. The vacancy was created when Judge Joseph F. Bataillon took senior status in October 2014. Judge Kopf noted that Nebraska's two senators (who are members of the Republican Party) have suggested that President Obama nominate Robert Rossiter, Jr., to fill the vacancy. Judge Kopf notes that judicial vacancies in Utah and Texas (states, like Nebraska, where both senators are members of the GOP) were filled by nominees who received the support for the senators. So why not Nebraska?

Americans Don't Want to Kill Innocent People

I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.

¯\_(ツ)_/¯

Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:

It is better that 10 guilty persons escape than that one innocent suffer. 

Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:

It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.

This is not a cherished principle of American law, thank God, and let's hope it never is.

Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).

Some heavy reading on the death penalty.

Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.

Will Bryan Garner take the bait?

United States District Court Judge Richard Kopf recently posted on his blog a list of ten legal writing hints for lawyers to use when appearing before him. Hint number 9 caught my eye. It says,

Burn anything that Bryan Garner has written.  He really knows his stuff, but Strunk and White’s The Elements of Style said it all.  Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules.  Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.

We covered the spat Judge Kopf mentions to the point it grew tiresome (see here, here, here, here, here, and here).