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.

More Posner v. Scalia (and Garner)!

On its website, the New Republic has published Bryan Garner's response to Judge Posner's review of his and Justice Scalia's book and a further response from Judge Posner (Posner's response starts a bit down the page at the link).

One of the main areas of contention is whether Posner is right that Scalia and Garner misrepresent the cases they use to illustrate their interpretative canons. Posner points to six cases that he says they misrepresent; Scalia partisan Ed Whelan takes on all six examples. As I mentioned before, it is impossible without real study to make a reasoned decision about who has the better of it.

But I got a strange urge to do that real study here, thinking it would be a satisfying intellectual exercise to determine for myself who's being sloppy or worse here. I decided to look into one of the cases that Posner says Scalia misrepresents, and then doubles down on in his response to Garner's riposte—Commonwealth v. McCoy.

Here's what Posner says about the case in his original review:

Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.

I won't bore you with Whelan and Garner's response, or Posner's response to their response, because from this one excerpt of Posner's review—the only one I even began to investigate—I was able to determine to my satisfaction that it is Posner who is being too sloppy to take seriously. So I called the whole thing off.

Here's why. I decided I would start by reading this McCoy case. All I had was the case title (Commonwealth v. McCoy) and a quoted portion of the statute at issue ("from any location into any occupied structure"). So I typed "Commonwealth v. McCoy 'from any location into any occupied structure'" into Google Scholar. Here's what I got:

Nothing. Hmm.

You may notice that Google, ever helpful, had a suggestion: "Did you mean: Commonwealth v. McCoy 'from any location into an occupied structure"?

Why, yes—it turns out that is what I meant. Because it turns out that Posner misquoted the case (and the statute) in question, twice, in the span of a single paragraph.

Posner is accusing Scalia and Garner of misrepresenting and misreading cases. That means he damn well better get his own case citations right. In the only citation I looked up, he failed.

That's enough for me to conclude that Posner did not use any particular care in cite-checking the Scalia-Garner book or in crafting his review. Ultimately, it's enough for me to conclude that, indeed, his review is a tendentious hatchet job.

(Note: It's possible that Posner simply repeated a misquote that Scalia and Garner made in their book. Possible, but false. I went ahead and bought the Kindle book. Scalia and Garner quote the case, and quote it correctly. Posner introduced the error.)

Notorious B.A.G. responds to J.Dick-Po

Noted legal lexi-con man Bryan A. Garner (a.k.a. Notorious B.A.G), fresh off his niche hit "Reading Law, feat. MC Scalia," has entered the fray to defend the collaboration against fellow Central Time Zone wordsmith Judge Richard Posner (J.Dick-Po). Quoth B.A.G.:

Yo, check it, for real. The trendatious atrocity of J.Dick-Po's review in The New Republic, containing elocutions of perverse adiposities to the new B.A.G.‑A-Scales book, came as a stupefing surprise—a most disappointing one. 

Read the whole thing.

Woody is right about this.

Mr. Torvik asks whether I think there was a "golden age" of lawyers.  He also asks "Should we return to the lost ideal of the noble lawyer, as best personified by your former boss, Judge David Doty? Is this post just snarky ignorance?"  Read on for my answers.

Was there a Golden Age for the Legal Profession?

Yesterday I linked to an article by Professor Jim Chen about the state of the legal profession. One of Chen's arguments was that "the contemporary legal profession languishes in the memory of a golden age" even though "there had never been a golden age in the American legal profession."

Blogger-lawyer-jerk Scott Greenfield dissents, arguing that there was indeed a golden age of American lawyering, as proved by the career of his Uncle Dave:

More on Wisconsin's Mythical Repeal of its Non-Existent "Equal Pay Act"

This morning I posted about how Wisconsin Assemblywoman Kelda Helen Roys from Madison falsely stated that the Republican-controlled Assembly had voted along party lines to repeal Wisconsin's non-existent "Equal Pay Act."

In my original post I charitably assumed this was a mere mistake. But I now believe it's a concerted campaign to distort what the Republicans have actually done. Why? Because other Democrats are spreading the same lie. For example, Racine Assemblyman Cory Mason:

Every time I think this legislative session could not possibly get any stranger or more shocking, my Republican colleagues do something else to surprise me. On February 21st, in a stunning move, Assembly Republicans voted to repeal Wisconsin’s Equal Pay Act. That's right, instead of passing bills to create jobs, Assembly Republicans repealed the law that ensured that women cannot get paid less than a man for doing the same job.

Both of the emboldened statements are false. As noted in my previous post, what the Assembly Republicans voted to repeal was Wisconsin's "Equal Pay Enforcement Act," which actually just allowed additional monetary remedies under preexisting substantive law, and did absolutely nothing to "ensure[] that women cannot get paid less than a man for doing the same job." Pointedly, even if Governor Walker signs the repeal, equal pay for equal work will still be the law of Wisconsin (and, perhaps more importantly, the law of the entire United States).

So I'm no longer willing to give the benefit of the doubt and assume that these are just mistakes. I'm now convinced that this an orchestrated campaign by Wisconsin Democrats to purposefully sow confusion. It's shameful.

In Assemblyman Mason's own immortal words, "Are you for real?"

UPDATE:

As anonymous notes below, Governor Scott Walker has signed the repeal bill.

A brief reply to Mr. May, or Blawg War III

As Mr. Gillette points out, Mr. May has a thoughtful post responding to my earlier piece about his attack on Wisconsin and all things holy. It's worth a read. I have only a couple of things to say in response.

Mr. May admits, as he must, that employment laws have costs to employers. But he argues that "taking that argument to its logical conclusion means we should do away with all anti-discrimination legislation because they cost employers money and may, theoretically, result in less employees being hired." I don't think that's right. The argument is that these laws do impose costs, and therefore can theoretically increase unemployment by increasing how much every employee costs an employer on average. So my point is only that it's not silly, as Mr. May said it was, to justify repeal the Equal Pay Enforcement Act as a pro-jobs bill.

But that is not to say either that the repeal will create jobs or that all regulations must be repealed in order to have an optimal labor market. Instead, some regulations will be a net gain, some will be a net loss, and some will impose real costs but be worth it for other (e.g., moral) reasons. Ultimately, there's a balance to be struck, and different people will have different opinions on where to strike it. The Republicans are trying to push it one way, and the Democrats are trying to pull it the other way. But neither party can ignore that one of the variables potentially at stake in that push-and-pull is jobs.

Mr. May makes one other argument that I think misses the mark. He says, "One could also argue that an employer could avoid unwanted attorneys fees and costs by not discriminating against the employee in the first place." This is in fact false, simply because there are non-meritorious discrimination claims. In such cases, the employer has no choice but to pay the attorneys fees and costs to fight the claim, even though the employee was never actually discriminated against.

That said, I can see why Mr. May would make that argument because, as far as I know, he has never handled a non-meritorious claim. And I doubt he ever will.

Wisconsin v. Minnesota Blawg War Smackdown Round II

Nick May replies here to Mr. Torvik's argument as to why Wisconsin employers should be allowed to do whatever they want whenever they want because they are job creators (I'm paraphrasing).

Wisconsin v. Minnesota Blawg War Smackdown

Speaking of Wisconsin, Minnesota, and Minnesota legal blogs, our pal Nick May has an entertaining and informative post over at his excellent Minnesota Employment Law blog entitled, "Another Reason Minnesota is Better Than Wisconsin." That said, I am now going to tear it to shreds.