Kopf’s top ten lessons a young federal trial judge should take away from the Scheindlin/Second Circuit debacle

In descending order, here is my top ten list of lessons to be learned by a young federal trial judge regarding the Scheindlin/Second Circuit fiasco.

10. Remember the first law of physics: crap flows down hill.

9. Even otherwise brilliant and perfectly decent federal Circuit judges can be megalomaniacs. Far removed from your hearing, lawyers say the same thing about you. They are indisputably correct.

8. It’s not your job to save the world. Do law, leave justice to Clint Eastwood.

7. A good journalist’s job is to get you to say something you will regret.

6. If you can’t take a sucker punch, quit.

5. If you care more about a case than anyone else, ask your Chief to reassign it.

4. Get mad, but don’t get even.

3. For good or for ill, one case will define you. You won’t ever know which one it will be, so stop worrying.

2. Remember the joy you felt the day you learned that the President of the United States wagered a little of his prestige on you. Everything that follows is gravy.

1. Whether it be an accolade or an accusation, you probably don’t deserve it.

RGK

PS If you are a young federal trial judge, here is the 11th commandment: Never rely on advice from an old federal trial judge.

16 responses

  1. We have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men. –George Orwell [1]

    RGK:“Whether it be an accolade or an accusation, you probably don’t deserve it.”

    [soapbox mode] I must take issue with this one: Many of our homegrown Saddam Husseins deserve to be hung for their excesses and abuse of power on the bench, and if you had ever been on the business end of judicial caprice, you would most certainly agree. But as Upton Sinclair once quipped, “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” Where you stand is often a function of where you sit.

    Whereas Thomas Paine proudly proclaimed “that in America THE LAW IS KING,” Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776) (emphasis in original), Richard Posner of the Seventh Circuit admits that the law’s once-vast kingdom “has shrunk and greyed to the point where today it is largely limited to routine cases.” Richard Posner, How Judges Think 1 (Harv. U. Press 2008). And the fault lies squarely at the feet of our out-of-control judiciary, as Judge Miner observed.

    There is a correct way to write an opinion and then, there is the way judges write opinions. As Chief Justice Hughes counseled a century ago (I’m digging for the cite), the first thing you do is lay out the facts, fully and fairly, before even thinking about how to apply the law to them. I’ve heard the rule of thumb that if an opinion won’t “write,” you are probably wrong, and it makes intuitive sense.

    By stark contrast, how our modern judges generally write their opinions should freeze the blood of anyone whose lives depend on their getting it right–because, except in the most mundane of cases, they never seem to get it right.

    Judge Posner is a national treasure, if for nothing but his candor. He admits that there is “a pronounced political element in the decisions of American judges,” and the evidence of this is “overwhelming.” Posner, How Judges Think at 369. “Appellate judges in our system can often conceal the role of personal preferences in their decisions by stating the facts selectively, so that the outcome seems to follow from them inevitably, or by taking liberties with precedents.” Id. at 144. And more often than not, it is the losing judge who “outs” them. E.g. Riggs v. West Virginia University Hospitals, Inc., Case No. 33335, 007.WV.000109 ¶ 159 (W.Va. 2007) (Versuslaw) (Starcher, J., dissenting) (“I have read, and re-read, and re-re-read, the majority’s opinion. I don’t know what was in the Kool-Aid they were drinking, but I believe that the opinion is one of the most factually misleading and legally pernicious cases to be produced by this Court.”).

    “Half the truth is often a lie in effect,” Twing v. Schott, 338 P.2d 839, 841 (Wyo. 1959), and judges often want a result “badly enough to lie to get it.” Karl Llewellyn, Common Law Tradition at 135. When an issue is completely elided in an opinion, it is invariably the one that, if explored honestly, would have forced the judge to rule for the other guy. “Opinions are overstated, rigid, seemingly inevitable. The rhetorical style is that of closure. The judge is depicted as having little choice in the matter: the decisions are strongly constrained by the legal materials.” Dan Simon, A Psychological Model of Judicial Decision Making, 30 Rutgers L. J. 1, 11 (1998) (citations omitted); see also Jerome Frank, What Courts Do in Fact, 26 Ill. L. Rev. 645, 653 (1931) (“Opinions, then, disclose but little of how judges come to their conclusions. The opinions are often ex post facto; they are censored expositions.”); Martin Shapiro, Judges As Liars, 17 Harv. J.L. & Pub. Pol’y. 155, 156 (1994) (arguing that “[l]ying is the nature of the judicial activity”); see also, Simon, supra, at 8–9 (summarizing the literature regarding the sense of certainty conveyed by judicial opinions and its illusory nature). Lawrence Solan concluded from an analysis of Justice Cardozo’s opinions that not even a judge as forthright as Cardozo was about the indeterminacy of law and the process of decision was immune from writing decisions with a false sense of certainty. Lawrence M. Solan, The Language Of Judges 22–7 (1993); Alan Dershowitz, Letters To a Young Lawyer 10 (Basic Books 2001) (“You will be amazed at how often you find judges ‘finessing’ the facts and the law.”).

    I have never seen an honest judicial opinion in a case where I knew the facts. Ever.

    Perhaps it is just me, but I think that the loser in particular deserves a more honest exposition of the case–some evidence that his side of the dispute was actually considered–than we get in our kingdoms of caprice. At least, the Wisconsin Supreme Court agrees with me:

    An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid.

    Wisconsin v. Allen, No. 2010-WI-10 (Wis. 2010), slip op. at ¶ 79 (internal quotation omitted).

    If I can get inside your head with my fusillade of relentless criticism of this most wretched of institutions, it is for the purpose of discouraging you from being that guy. The guy who puts his fingers on the scales of justice because it is the path of least resistance. The one who makes an indelible contribution to the institution’s opprobrious reputation.

    As Dershowitz quipped, any group with a reputation like that has done something to deserve it. [Ken gets off his soapbox]

    [1] George Orwell, Review of Power: A New Social Analysis, Adelphi (Jan. 1939), reprinted at http://www.lehman.edu/deanhum/philosophy/BRSQ/06may/orwell.htm.

  2. So one case defined me and I lost my job and my career and my home and my family and my friends, and everything except my wife and my character. And while it may not be your job to save the world it is your job to make the country free and restrict the Government from incarcerating everyone and keeping people hungry, homeless, hapless and afraid.

  3. R.E.,

    Your concern, and that of others, about federal judges staying too long while being infirm, is a real one. On balance, however, I think the concern is much overblown. I know from personal experience that my judicial colleagues will intercede if necessary.

    Not surprisingly, we judges think about such things, or at least the ones I am familiar with do. Here are three things I have put in place to guard against me serving if I become any wackier than I am now, to wit:

    *I have given specific written direction to my physician to share any and all health information about me at the request of our court.

    *I have given express instructions to my career law clerks to inform our Chief Judge if either clerk ever has any doubt about my ability to perform my job.

    *I plan to reevaluate whether I remain well enough to continue my work when I turn 70. If I am not able to do so, I will fully retire. I plan on fully retiring when I turn 75 whether I am going strong or nodding off.

    Finally, the age issue is frequently used as an excuse by a few jealous academics for doing away with life tenure for federal judges, although those same professors cling tenaciously to academic tenure. We should not forget that John Marshall, the greatest federal judge in our history, proudly served 34 years on the Supreme Court until his death, on July 6, 1835, at age 79.

    All the best.

    RGK

  4. I have practiced law in New York for decades, and I remember the travesty of what happened to Lorin Duckman. You continue to have my sympathy and my outrage over the continued presence of George Pataki in our public life.

    The ACLU released a study yesterday regarding the several thousand people who are serving life sentences without parole for non-violent crimes, such as stealing a jacket or cashing a bad check. Where are the judges who have the courage to simply refuse to impose such sentences, instead of bemoaning their powerlessness?

    So, Judge Kopf, the best piece of advice I would give to a young judge is to forget about advancement to the Circuit Court, remember that you have lifetime tenure, and do what’s right. And realize that the legal opinion is just a post facto justification for the decision you have already reached.

    Judge Rakoff of the SDNY gave a powerful speech the other day about the continued refusal of the SEC to prosecute criminal fraud. Is he biased? Should he be thrown off security fraud cases because of this? Why is it only the left-leaning judges who get into trouble, the ones who refuse to yield to the powerful, the ones who courageously uphold constitutional rights?

  5. Richard,

    I appreciate your comments. Several observations.

    I know nothing of what happened to Lorin Duckman save for what I have been able to glean from old newspaper accounts. So, I just don’t know enough to say anything that would be worth reading.

    I disagree with your statement that a “legal opinion is just a post facto justification for the decision you have already reached” if by that you mean judges rule anyway they want to rule and use their legal opinions as cover-ups. In my experience, there are a lot federal district judges who rule the way they honestly believe the law requires, even if the result is contrary to their personal views. Their written work represents an objective effort to state what the law is rather than what they wished it to be.

    I agree with you about not worrying about advancement. But, to tell the truth, I spent a good deal of my career hoping that I would make it to the Circuit. I clerked at the Eighth Circuit, and I hold the same admiration for the court that I held 40 some years ago. That admitted, as a district judge, I tried very hard not to make decisions with career advancement in mind. But, I am enough of a legal realist to admit that I can’t be sure that I was successful.

    Finally, you write: “Judge Rakoff of the SDNY gave a powerful speech the other day about the continued refusal of the SEC to prosecute criminal fraud. Is he biased? Should he be thrown off security fraud cases because of this? Why is it only the left-leaning judges who get into trouble, the ones who refuse to yield to the powerful, the ones who courageously uphold constitutional rights?”

    I have not read Judge Rakoff’s speech. However, I doubt very seriously that he said anything that would indicate a “bias” warranting recusal. In passing, I note that Judge Rakoff served as chief of business and securities fraud prosecutions when he was an Assistant U.S. attorney in the Southern District of New York.

    As for your suggestion that only left leaning judges get into trouble because they are the ones who refuse to yield to the powerful as they courageously uphold constitutional rights, that’s bull shit, my friend. Just Sayin’

    All the best.

    RGK

  6. It’s not “only” left leaning judges, RGK is right (not right leaning although often he is) – just a lot more often than not it’s the left leaning judges that get criticized 😄😄😄

  7. Rich, that’s a good list. I think it can be modified slightly to fit almost any position where one has power over others to do things that will affect their lives in a meaningful way. This extends from floor managers at Target who can decide to fire some kid they find loafing or to instead issue a warning that Target is paying you to stock shelves not to text your friends, it extends to law professors who with a fearful first year student on the hook on a difficult case can decide to either humiliate him or instead turn a mistake into a teachable moment, it extends to law deans who with a faculty member who is having a family crisis can either tell the faculty member to “get over it” or step and teach the faculty member’s class for a couple of weeks, and it extends to District Judges who with a flustered attorney who hasn’t a clue on how to lay foundation for a piece of evidence that’s clearly going to come into evidence can either show the attorney up or call a sidebar and suggest a 15-minute recess while the attorney takes a quick look at the latest version of “Evidentiary Foundations.” If I could truly get inside the head of a person and discover whether: 1) the person truly enjoys being in a position of power, or 2) is in a position of power with some reluctance and a keen sense of his own fallibility, I’d put 2) in charge every time. Best, Pat.

  8. Pat,

    Oh, yes, a number 2 is the right choice, so sayeth me, the guy who too often feels the intoxication that goes with being a number 1. All the best.

    RGK

  9. Mark,

    This will be serious for once. I sorta agree with you. Here’s why:

    Left leaning judges tend to define their roles in terms of achieving “justice.” Because “justice” is normative and not provable by conventional legal means, left leaning judges open themselves to cheap criticism. That is, the broader the judicial role definition, the more likely it is that the judge will become a target for smack. It is in that sense that I agree with you.

    All the best.

    RGK

  10. Actually, being a 1) is OK if you’re on to yourself, and willing to ask “am I doing this because I can or because it’s the right thing to do? It’s the ones who lack self-awareness that worry me the most. Watching AMK up close for a year, I was always impressed by the fact that some cases still really bothered him, even though he had been a judge for a good while by then. One in particular was a habeas case on a murder conviction where the defense was self defense. The jury didn’t buy it and the defendant/petitioner got 25 years or something on Murder 2. The state trial judge and the lawyers had all done a reasonably good job. Reviewing the record, both he and I had the same reaction, which was that we were surprised that the jury didn’t buy the self defense argument or at least given him voluntary manslaughter. So the appeal from the denial of the petition came to us (this was well before AEDPA). The petitioner/defendant had a couple of arguments about instructional error in the state court, but they didn’t amount to much. Really their argument was that the evidence was weak, but there wasn’t much we could do about that. So we issued a fairly brief opinion (I don’t think it was published; it was published it was short. We had the most liberal member of the circuit on the panel with us and he dissented, but his heart wasn’t really in it. It certainly wasn’t one of those dissents that actually forced you to respond to it. Anyway, about three months later I was in his office talking about another case, and the rehearing petition in this case was still on his desk. I hadn’t thought about the case since we issued the opinion. “Uh Judge, would you like me to file that rehearing petition for you?” “No, I want to think about it some more. It’s a long sentence. I just want to be 100% sure we’re right.” Eventually he came into my office and gave me the rehearing petition and said with a sigh: “OK, I’m done with it.” That was his way of saying that he’d made his peace with it, as best he could.

  11. Judge Kopf, I thank you for your thoughtful reply. Let me try again. First, I think it is the rare case where a judge must do something which she finds personally or politically objectionable. There is so much discretion necessarily built into the system that a judge can almost always shade matters to reach a desired outcome, whether through procedural devices, discovery rulings, or selective citation. There is nothing intrinsically evil about this; any system of justice which eliminated all discretion would be evil itself. Therefore, it must perforce always come down to the beliefs and values of the judge, i.e., politics in its true sense. All I would ask is that you recognize this for what it is.

    As for my assertion that it is left-wing judges who get into trouble, and right-wing ones who are applauded, Exhibit A is Judge Scheindlen’s decision proudly and fiercely upholding the constitutional rights of my fellow (non-white) New Yorkers, and the ongoing smears against her since then by the politicians. Exhibit B is the decision yesterday by SDNY Judge Preska, putting a kid away for ten years solely because of computer hacking. She gave the prosecution precisely what it had asked for, with no evidence of actual harm, except to the reputation of the company hacked.

    As for Judge Rakoff, when I see corporate executives being tried and sentenced for corporate and securities fraud going to prison for stealing millions, instead of paying trivial cost-of-business fines, I will agree with you. Until then, not….

    All the best.

  12. Pat,

    Thanks for the AMK anecdote. It is insightful and, if I may say so,heartening. If lay people and lawyer people understood how frequently judges doubt their own judgment and stew about their decisions I venture to say that most people would trust our judiciary more. All the best.

    RGK

  13. Richard,

    Ah, you do get to the meat of our disagreement. You writ that “it must perforce always come down to the beliefs and values of the judge, i.e., politics in its true sense. All I would ask is that you recognize this for what it is.”

    You are both right and wrong. If one knows anything about the human mind, one must admit that our “beliefs and values” color judicial decisions in ways we judges may not even realize. But, it also true that I have rendered too many decisions not to my liking that followed what I honestly thought a statute or a precedent required to drain all the cool aid from the container legal theorists like the “Crits” are offering. I am not unusual. I know many other federal trial judges that have ruled one way while wishing they could rule the other way.

    In fact, the empirical evidence suggests that federal trial judges are generally agnostic. That is, they tend to do what they believe the law requires rather than following their own normative judgments. See, for example, my earlier post entitled, It’s a fact: Federal district judges are carpenters not politicians citing the blockbuster work of Epstein, Landes and Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. In particular, read Chapter 5.

    One other thing. I do believe your argument gets stronger the higher up the judicial ladder you go. That is because conventional legal reasoning becomes less able to resolve the dispute before the appellate court. There is more flex in those joints.

    All the best.

    RGK

%d bloggers like this: