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.

Judge Posner's argument against polygamy also works against same-sex marriage

Polygamy has been a hot topic in the aftermath of the Supreme Court's finding a constitutional right to same-sex marriage. Indeed, Chief Justice Roberts argued in his dissent that most of Justice Kennedy's arguments apply just as strongly in favor of a right to plural marriage:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 

(citations removed for clarity)

And the argument for a right to plural marriage isn't just a gotcha advanced by bitter conservatives. Leftist blogger Freddie deBoer and left-libertarian blogger Will Wilkinson both jumped on the bandwagon, arguing that there should be a right to plural marriage.

In typically idiosyncratic fashion, Judge Posner has come up with an argument that he thinks dispatches this plural marriage stuff:

[T]he chief justice ... suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

Posner's argument is that a policy that would create an excess of unmarried men imposes a real cost on society, and therefore is certainly not required. In other words, this is at least a rational basis for a ban on plural marriage.

I see a number of problems with this argument. From a legal perspective, it is essentially frivolous because it has nothing to do with the reasoning of Justice Kennedy's opinion, which is based on liberty and equality, not economics or utilitarianism.

But, more subtly, it could just as easily be used to construct a rational basis for a ban on same-sex marriage, at least if it's plausible that there would be more homosexual women than homosexual men. Consider Posner's society of 100 men and 100 women, but where 6% of the men and 10% of the women are gay. If same-sex marriage is allowed, the 6 gay men and the 10 gay women pair up. That leaves 94 straight men fighting over 90 "marriageable" straight women. We've got four extra, lonely men. This counts as a "real cost" in Judge Posner's world.

And, to the best of my understanding, it is in fact true that women are more likely to identify as LGBT:

The gap is even bigger if you just look at younger people, who have grown up in a society much more tolerant to homosexuality and thus might reasonably be expected to be more honest about, or even aware of, their sexual orientation:

If you do the math, you can construct an argument that permitting same-sex marriage could leave millions of American men with no potential spouse:

1) According to the 2010 census, there were approximately 41.6 million men and 41.3 million women between the ages of 20 and 39. (So you'll notice that we start with a problem.)

2) Using the more extreme figure of 8.3 percent LGBT females and 4.6 percent LGBT males, we are left with 37,872,000 million "marriageable" straight women for 39,686,000 straight men to fight over. That's 1,814,000 extra, "unmarriable" men -- over 4 percent of the prime-age male population!***

Thus, based on Judge Posner's reasoning, we have found the "real costs" of same-sex marriage, and constructed a rational basis to require that marriage remain a one-man, one-woman institution.

Just to be crystal clear, I don't actually think this hocus pocus is a good argument against same-sex marriage. But all the reasons that make it a bad argument against same-sex marriage make it an equally bad argument against plural marriage.

***Totally weird coincidence: there are about 2,000,000 American men in prison right now.

Supreme Court saves Obamacare again - Scalia pulls a punch

Fan(s)™ of my Platinum Coin series surely knew where I stood on the latest challenge to Obamacare, King v. Burwell, which challenged whether federal subsidies were available in states that refused to set up their own health-insurances exchanges. In short: the plaintiffs advanced a rather hyper-textualist reading of the law, and hyper-textualist arguments almost never win if there is any decent pragmatic argument to the contrary.

And that's the best reading, in my view, of Chief Justice Roberts's opinion for the Court today. Deep down he and Kennedy sensed it would be unjust to be hyper-technical in this case, and they were able to find enough rhetorical cover to justify a departure from the "plain meaning" of the statutory text. So they did.

Justice Scalia's dissent, however, is fairly powerful on its own terms—even if it is characteristically overcooked. He has a compelling response to each of Roberts's dodges. Based on the text of the statute alone, even when viewed in context, and even taking some account for the apparent "purpose" of the legislation, the argument for the plaintiffs in King is compelling on purely interpretive grounds.

But what struck me as I read his dissent was its complete lack of pragmatism. This is no accident: Scalia is not a pragmatist -- that's Justice Breyer's gig, and it is anathema to Scalia. But ultimately Scalia's defense of his interpretive method relies on a core principle of judicial restraint: that it is Congress's job to legislate, and the judicial power does not include the power to save badly drafted legislation. That's all well and good, but when the practical effect of such restraint would be to more or less undo landmark legislation, it makes the principle itself seem suspect, even monstrous. It's strange that judicial restraint would be the principle that undermines what many consider Congress's most momentous achievement of this century.

In any event, one thing to get off my chest: the usual suspects (whom I will not name) pegged this challenge as frivolous or cynical. This grates me to no end. I urge you to forever ignore any person who advanced that argument, as they are hacks and shills. As one example, many commentators advanced the argument that this challenge was frivolous because at the very least the statute had enough ambiguity to invoke Chevron deference, which is the doctrine that courts should defer to expert agency interpretations of ambiguous statutes.

Not a single justice bought that argument. Both the Roberts opinion and the Scalia dissent rejected it without reservation. No one concurred to say, "Hey, Chevron!" So this argument that commentators said rendered the King challenge frivolous lost nine to zip at the Supreme Court.

And finally, Justice Scalia ends his dissent with a pretty great little joke:

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. 

I absolutely guarantee that at some point in the drafting process the punchline of this joke was ROBERTScare.

Aggravated pimping UPDATED

UPDATE:

DSK acquitted.

ORIGINAL POST (3/6/2012):

Dominque Strauss-Kahn has been charged with "aggravated pimping" in France for his alleged role in a prostitution ring.

One wonders: how would the true economist react to this news?

No word on whether DSK has been charged with "sex by surprise" as well.

Sunday reading: some thoughts on faith and the death penalty

A few days ago, I wrote a post about how the Nebraska Legislature banned the death penalty despite the fact that Nebraska's governor opposed doing so. It turns out that Nebraska's Governor Pete Ricketts really, really wants to execute prisoners. As a result,  Governor Ricketts claims he is going to have the 10 prisoners currently on Nebraska's death row executed before the new law takes effect.  As Garrett Epps points out at the Atlantic, it is unlikely that Governor Ricketts can make that happen.

Governor Ricketts is also supporting a group called Nebraskans for the Death Penalty. The group is seeking to hold a referendum that will overturn the law banning the death penalty.  The honorary co-chairs of the group are former Nebraska Attorney General (and current State Treasurer) Don Stenberg and Beau McCoy, a state senator.  One of the sponsors of the referendum is Omaha City Councilwoman Aimee Melton.

According to the Omaha World-Herald-presumably from information supplied by the men to the paper, Mr. Stenberg is an "Evangelical Christian" and Mr. McCoy is a "born again Southern Baptist." Ms. Melton's biography on the Omaha City Council webpage suggests that she is a Roman Catholic. It might be worth noting that, as Ms. Melton's local bishops recently pointed out, the Roman Catholic Church teaches that the death penalty is wrong.

I bring up the religious faith of these three individuals because they have publicly proclaimed their faith. I think it is safe to assume they proclaimed their faith because they wanted people to know that they were voting for a candidate who would act in accordance with their religion.

So what might Jesus think about supporting the death penalty? In the Gospel of Luke (4:18), Jesus states that his mission on earth is "proclaim good news to the poor . . . proclaim freedom for the prisoners and recovery of sight for the blind, to set the oppressed free" (emphasis mine). I doubt the freedom for the prisoners that Jesus had in mind was execution by the government. In the Gospel of Matthew (25:31-46), Jesus tells how, at the judgment day, people will be judged worthy of eternal life.  

‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in,  I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ 

Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink?  When did we see you a stranger and invite you in, or needing clothes and clothe you?  When did we see you sick or in prison and go to visit you?’ 

[Jesus] will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

(emphasis mine). The people who did not do not feed the hungry, care for the stranger, clothe the naked, and visit the prisoner "go away to eternal punishment," The implications of this passage in Matthew sometimes awaken me, as the saying goes, like a fire bell in the night when I think of the times I did not do those things.  But I digress

Anyway, I do not understand the part about visiting prisoners to be visiting prisoners in order to execute them.

Some people might say that an exhortation to visiting prisoners suggests that Christ does not have any issue with people having criminal sentences imposed upon them. But consider the story of Jesus and the woman who was caught in adultery (John 8:1-11).

In the story, "teachers of the law" bring a woman caught in adultery to Jesus. They point out to Jesus that the punishment for adultery is to be stoned to death. They ask Jesus what he has to say about the imposition of this punishment. Jesus ignores the question for a while and writes on the ground with his finger.  The teachers of law press Jesus for an answer and he says "Let any one of you who is without sin be the first to throw a stone at her." John writes how people began to leave one at a time until only Jesus was left with the woman. Jesus instructs the woman to go and leave her life of sin.

Another digression, you can watch a clip of this passage-starring someone who looks a lot like the guy who played Desmond Hume on Lost-here.

I understand this passage from John to say that the State should not execute people because the state is not blameless, i.e., without sin. Moreover, Christ's admonition that the woman leave her life of sin suggest that the death penalty is wrong because it does not allow the sinful to repent and be redeemed.

There is also is a practical reason that Nebraskans should not vote in favor of the reference proposed by Ms. Melton, Mr. McCoy and Mr. Stenberg. Sometimes the innocent are sentenced to death. Indeed the Charlotte News-Observer has the story of how North Carolina Governor Pat McCrory recently pardoned two brothers who were sentenced to death (and on death row awaiting imposition of their sentence for 30). The reason Governor McCrory pardoned the men is that they were innocent.

I am not trying to mock the faith of death penalty supporters. And I am not trying to suggest they are hypocrites. I fail to live up to my religious beliefs all the time. But it seems to me that when disregarding one's religious beliefs results in someone being executed, people ought to try harder to follow their faith.

What do you think Mr. Torvik, is it fair,  to point out that Ms Melton, Mr. McCoy, and Mr. Stenberg are not following in the best traditions of their faith? Should politicians base their political views on their religious views?

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?

Calling it now.

Back in 2012, we ran a series of posts about Republicans candidates who were running for the GOP presidential nomination that had no shot at ever being elected president. You can read some of the posts here. I am embarrassed to note that we did not do a post regarding former Texas Governor Rick Perry.

The New York Times reports that Mr. Perry has announced he is once again running for president. Why would a guy who finished fifth in the Iowa Caucuses think he can win the GOP nomination (and general election) this time? Well, one of his aids says that Mr. Perry has "focused like a laser beam on the task of running for president in 2016 almost since he dropped out of the race." This laser-like focus has included "donning hipster-style black-rimmed eyeglasses and trading his cowboy boots for black loafers."

I am not entirely sure why putting on glasses makes on seem more presidential. A quick review of presidential portraits shows that our only glasses-wearing presidents were Woodrow Wilson and Harry S. Truman. Maybe Mr. Perry thinks that glasses will appeal to democratic voters of a certain age.

In any event, I do not believe that Mr. Perry will be able to convince voters to view him differently than they did in 2012. As a result I am calling it now. Rick Perry will not be elected President of the United States of America.

Maybe the Nebraska Legislature doesn't like the Nebraska Governor.

Yesterday, I wrote about how the Nebraska Legislature overrode a veto of a bill banning the death penalty. I assumed that the veto override was a rare thing. But, as the Omaha World Herald has a story about the Nebraska Legislature overriding another veto by Nebraska Governor Pete Ricketts last night.  By a 34-10 vote, the Legislature overturned a veto of a bill that allowed the children of undocumented immigrants to get a license to drive. The margin to overturn this veto was even larger than the one to overturn the veto on the death penalty bill.

Having the legislature override two of his vetoes in two days has to sting Governor Ricketts but if you read the article, it turns out that this is the third time this month that the Nebraska Legislature has overridden one of Govern Ricketts's vetoes.  Earlier this month, the Nebraska Legislature overrode a veto on a bill increasing the gas tax in Nebraska. You can read about that occasion here. While you ponder the circumstances that caused a "red state" to increase taxes, note that on this particular override, at least one legislator who voted against the gas tax increase voted to override the veto. One wonders if the Nebraska Legislature is just messing with Governor Ricketts's head.

Wait, Nebraska banned the death penalty?

Before yesterday, the last six states to ban the death penalty were New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland. One thing each of those states has in common is the presence of a robust Democratic Party that, at least occasionally, controls the legislative and executive branches of the state.That is not really true of the latest state to ban the death penalty-Nebraska. Depending on how one counts, Nebraska has had 41 governors since it became a state in 1867 and only 14 have been Democrats (2 of those Democrats were elected by "electoral fusion" and not on the Democratic ticket). The only Democrats to win the Presidential vote in Nebraska in the 20th or 21st Century are Woodrow Wilson, Franklin Roosevelt (although only for his first two terms), and Lyndon Johnson. Suffice it to say that Nebraska is a conservative state.

"Gay Marriage Arguments Divide Supreme Court Justices"

So says the headline to this New York Times article.  The headline suggests that the prior to today the Supreme Court was not divided. Some evidence suggests the justices have divided on other issues before today.