On going public

Before every trial, and for the last 25 years plus, I have conducted a jury orientation for prospective jurors that is open to counsel and the public but which is not part of voir dire or the trial. One of the things I do is to take the prospective jurors on a walk about the courtroom as I narrate what they are seeing. The jurors are able to sit at counsel table, sit in the jury box, and sit in the witness chair. We walk on to the clerk’s bench and my bench and jurors see all the “secret” stuff and how it works. The jurors are really interested in the digital audio system that we use instead of a court reporter, the interactive video display to make documents and drawings accessible to the jury, and the panic alarm button to get additional Marshals. We turn on the “white noise” that blocks the jurors from hearing bench conferences, and I explain why we do that. They are also intrigued by the infrared audio head sets we can provide jurors who are, like me, a bit hearing impaired or when we need to listen to those damn wired buys. If they like, the prospective jurors can sit in my big black fake leather chair. In reverse, we use my door to enter the courtroom (hidden in the wood paneling, to the amazement of the jurors) and walk down the steps behind the courtroom and into the jury deliberation room. I’m yammering all the time as we engage in this tour.

You get the picture. So do the prospective jurors. I envisioned this blog being something similar to my jury orientation. That is, I hoped the blog might become a way to open up what I do, how I do it, and why I do it. And that brings me to my earlier post on Mr. Lane’s editorial in the Washington Post that was critical of Judge Posner for being too public. I asked readers to tell me what they thought, and to apply that thinking to this blog. Incidentally, the idea for that post came from a distinguished East coast trial lawyer, and I thank him, again, for calling Lane’s article to my attention. Readers have responded, and I want to take this opportunity to thank them (and apologize for not responding to each of their comments). That said, I also want to add five thoughts.

First, although I do not agree with Lane’s criticism of Judge Posner, I agree with him that judges can become too public. Indeed, I don’t give interviews to the regular profit-making media because I hope what I do has a significant educational component and I don’t want to detract from that mission by becoming some sort of minor celebrity. Besides, no matter how I faced the camera, I have no good side.

Second, I waited to begin blogging until I was a senior judge primarily to shield the federal judiciary from criticism that I was shirking my judicial duties.  Since taking senior status, I am legally “retired” under 28 U.S.C. § 371(a)&(b)(1), paid an annuity (not a salary) and I would be paid whether I stayed home or worked.  Indeed, in a very real sense, I am working for free. In short, by waiting to blog until I was a senior judge, I hope I have made it hard to attack the federal judiciary for my blogging activities.

Third, like all judges (but not Justices), both active judges and judges on senior status, I am bound by the Code of Conduct for United States Judges. However, since senior judges have the statutory right to turn down cases, see 28 USC § 294(b), senior judges have somewhat more freedom to express themselves without impairing their usefulness as judges. That is, I have to worry slightly less about causing recusals when I blog since I have no obligation to take cases and I may turn down the assignment of specific cases. Nonetheless, I strive hard not to comment upon pending or impending matters in order to avoid recusals. My blog prominently highlights that caveat. See here and here. More generally, having served for six years on the Judicial Conference’s Committee on Codes of Conduct, I try hard to be sensitive to ethical issues under the Code while recognizing that I am pushing the boundaries by engaging in this new medium.

Fourth, the Code of Conduct for United States Judges, in the commentary to Canon 4, encourages judges to help in law reform efforts: “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” (Emphasis added.) I hope what I am doing in this blog is consistent with this very important statement.

Fifth, there is a strong theoretical justification for judges to be transparent because only by doing so can we harmonize the very anti-democratic institution of the judiciary with a broader society that exalts, and has enshrined in its written Constitution, the supremacy of democratic principles. The digital age gives judges a powerful opportunity to become more accessible and thus transparent. I have written an essay on this subject, ironically enough, for a Canadian law journal, and I refer the reader to it for a greater exposition of my views. See Richard G. Kopf, The Courts, The Internet, E-Filing and Democracy, 56 U.N.B.L.J 40 (2007). If nothing else, people tell me that the essay is a short and fun read (assuming you have no life, like me). Unfortunately, I just realized that a subscription is required (those damn Canadians). I will see if I can’t post the essay myself and provide a free link later. Later: The essay is now freely available here under “Archive” and “Articles.”

RGK

7 responses

  1. Dear Judge Kopf,

    There is another important justification for your blogging activities: judicial education. Through your postings, you educate and serve as a role model to (somewhat) younger judges. Your blog is a never-ending source of inspiration and knowledge. Your postings on sentencing alone have been worth the price of admission. Also, by recounting your foibles, you give us perspective on our own. I am happy to report that you have several loyal readers on the State Court bench in Miami, Fl. I can say without hyperbole that if you had never started blogging, my judicial career would have been the poorer for it, and the persons whose cases I adjudicate would have suffered.

  2. Dear Judge,

    How very nice of you to take the time to write. I am flattered and honored by your kind comments.

    As I have said before, the state trial courts are where the heavy lifting takes place. But, I must now swear you to secrecy or my former law partner, a Nebraska state trial judge who I have blogged about here, will give me endless grief when I complain yet once again that I don’t have my own ornate Article III bathroom.

    All the best, and, again, thanks a bunch. You made my day!

    RGK

    PS Dear Readers, Miguel de la O, a judge in Miami, Florida, was elected circuit court judge in April 2012 and took the bench in January 2013. See here and here for more.

  3. That jury orientation sounds fascinating! I imagine that sort of thing would be an excellent field trip for many schoolchildren as well. Civics education is often very bereft of teaching about how the court system works on a day to day basis, which is really an important thing for people to know if they’re ever going to interact with it. If you have the time and inclination I bet some schools local to your courthouse would be thrilled with an invitation.

  4. I love what you’re doing here, Judge. I only wish more judges did so. I would really enjoy seeing the thoughts and feelings of the judges with whom I interact on a daily basis. I think it would not only improve the way we do business, but it might help make me a more effective advocate.

  5. Mathew,

    Thanks very much. The interesting thing, so I have found, is that learning does not go in only one direction. For example, there is a real danger that judges become jaded over time, but the opportunity to hear from lawyers and others about their views of the law and the judiciary can be a real source of inspiration to old guys like me.

    Indeed, since my blogging effort began and when entering the courtroom, I longer feel the nearly uncontrollable urge to yell “shut the fuck up” at the first lawyer to speak. Cheaper (and more fun) than therapy!

    All the best.

    RGK

  6. When I was in the 6th grade, during our civics section, the teacher had us do a day-long mock murder trial. We students were the judge, jury, prosecutor, defense attorney, and one of us the murder suspect.

    It was very educational (because the teacher didn’t let us just role play, or toss our shoes on the desk and call it good; we had actually to research the case and the roles), and something that made jr high and high school civics classes’ boring-ness even more so.

    This sort of class field trip is way better.

    Eric Hines

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