Professor Orin Kerr is correct on Canon 5, and for that I apologize

Orin Kerr

Fred C. Stevenson Research Professor

The George Washington University Law School

July 8, 2015 (late evening)

Dear Professor Kerr,

In your most recent post for the The Volokh Conspiracy entitled More on Judge Kopf: The Calabresi precedent, which I only became fully aware of this evening, you cite what you call the Calabresi precedent coming from the Second Circuit. I have now had the opportunity to carefully read the opinion.*

The decision of the Second Circuit is not, strictly speaking, “precedent,” and Judge Calabresi’s comments contained such statements as “In this case, like Mussolini, he [President Bush] has exercised extraordinary power” and  “Bush’s reelection raised a ‘deeper structural issue’ that was ‘at stake’ in the forthcoming election.” Nevertheless, I have concluded that (1) the holding of the Calabresi opinion would likely be applied to me if an ethics complaint was filed in the Eighth Circuit; and (2) you are correct, based upon the holding of the Calabresi decision, that I violated Canon 5(A)(2) (“A judge should not . . . publicly endorse or oppose a candidate for public office.”)

Specifically, when I wrote that “Senator Ted Cruz is not fit to be President” and when I made related assertions of unfitness for office and the like in reference to Senator Cruz as a candidate for the Presidency, I crossed the line under the holding of the Calabresi opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges. Consequently, I apologize to you, Senator Cruz and everyone else for my error.

I wish to make clear, however, that I stand by my criticism of the Senator’s intemperate remarks about certain individual Justices, the Supreme Court and his proposal for judicial elections of Supreme Court Justices. I believe those criticisms are both fair and fairly within the provisions of Canon 4(A)(1) (“A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.”).

Sincerely,

Richard G. Kopf

Senior United States District Judge

*Prior to my term on the Judicial Conference Codes of Conduct Committee, I was generally aware of the controversy over Judge Calabresi’s remarks, but I had not carefully read the Second Circuit decision until this evening. That said, I do not offer this failure as an excuse.

 

64 responses

  1. Judge,

    Three points on having read much of the discussion (I read your posts and all of Prof. Kerr’s posts at the Volokh Conspiracy):

    1) I was not sure- but did have some doubt- about the “correct” analysis and “resolution” of the issue. It was not a clear cut issue to me, but, as you acknowledge (and maybe that makes “guessing” about the resolution of the issue moot), you “crossed the line under the holding of the Calabresi opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges.”

    2) Seems to me that this is not the “crime of the century.” Our profession (I mean as lawyers…but, probably applies to judges,too, and maybe more so) is fraught with issues of complying with many rules that implicate our conduct on a constant basis. Further seems to me that there are tons of opportunities for everyone to mess up and not meet the “letter of the law.” I think intent matters. Does not appear to me that your “violation”- if complained of- does not rise to a mountain….more like a mole hill.

    3) Not to be overly solicitous, but, I think your having thought about the issue, blogged about it, explained your thoughts and goals in posting what you did in the first place, probably makes your “violation”much less egregious. Further,your addressing the issue and being forthright about your thoughts and (even more) the minimal/non-existent impact of your post lessens the seriousness of this whole issue. (That said, I do think it is good/important- sorry if better “law words” escape me now- that the discussion is had in the first place…that actually mitigates (good law word) toward making your violation less egregious)

    Okay, I can’t count. Fourth point, unless someone makes a complaint, this is all academic. Fifth, can’t see that the issue is “impeachable.” Barring that, what could a review result in- admonition? censure? Something else (like suspension of hearing cases/sitting in cases)? (I think those are the options….the questions were serious, I am not sure of the sanctions that might apply).

    My points are that I think your violation was not egregious, the discussion was good, your acknowledgment lessens the impact of the violation, it doesn’t matter much unless someone files a complaint, and not much should come of this.

    I have screwed up many times. I have not screwed up so bad that it mattered or impacted me much and most times my screw ups have resulted in better performance/corrections. I think that is the nature of experience. You take what you have done and do better next time (if you are smart). On balance, I think your blogging is a good thing (probably more for lawyers- the public probably doesn’t care much or understand the context of what you post). Your “violation” is probably in that nature. I am thinking you won’t willfully violate the Canons (and did not do so in the first instance with intent to violate them).

    (You can tell I am a lawyer because I set out to write a quick response and here I am with a treatise on the topic….go sue me).

    Regards,

    Jason Perry

  2. WTF???

    Though the matter is admittedly trivial, this is an example of “judicial reasoning” at its most florid: A judge decides what he wants the answer to be and then, works backward to his justification. Judge Posner called it “fig-leafing.” And here (unlike in court), everyone can (and many did!) call it the transparent bullshit that it was.

    When it serves a judge’s purposes, dictum from a case s/he hadn’t even read (if s/he had read it, s/he would know better than to apply it and often, the omission is breathtaking) magically becomes “binding precedent.” But a holding that even you concede is likely to be applied to you (whenever it serves your purposes, “persuasive” precedent), you try to tell us that it is “not, strictly speaking ‘precedent'”???

    I repeat, WTF???

    This is what makes me so furious. I can’t rely on anything judges write, because you are constantly pulling bullshit like this. If you had manned-up and said, “Professor Kerr, you are absolutely correct and I humbly stand corrected,” sparing us the comical attempt to lessen accountability for your error, it would have been a lot easier to respect. Imagine! A judge, actually admitting that he fucked up! It literally is not an experience I have ever encountered in the real world. But that sentence visits further opprobrium on the judiciary, and rightfully so. Process matters.

    Or as Nixon learned, it’s not the crime, but the cover-up.

    Really, Judge Kopf! You of all people ought to know better. Isn’t it true that, on June 2 of this year, you published a post using a quote from Mark Twain — “Always acknowledge a fault frankly…” — as a title?

    And you had the temerity to call me a “wacko”? I repeat again, WTF???

    I would be willing to bet that 20% of all judicial misconduct complaints are precipitated by dishonest opinion-writing (violating Canon 1), but we’ll never know for certain, because you insist on keeping complaints confidential, and it is covered by an overly-broad reading of “directly related.” Put all of the evidence under lock and key and define the problem away, and no one can prove a “pattern of misconduct.” Nice.

    To invoke Twain, “You are a judge. And disingenuous. But I repeat myself.”🙂

  3. @Roadrunner-

    I gather you agree with Judge Kopf’s admission that he violated the Code of Conduct for United States Judges.

    That said, I don’t get your post….you seem to suggest that his original position was wrong, go on about fault/reductive reasoning…but, seem to also forget the mea culpa and acknowledgment by Judge Kopf of the violation.

    I don’t get your point- Nixon’s lesson about crime vs. cover-up…seems to be inapposite as Judge Kopf covered up nothing and the “crime” (Canon violation) has been acknowledged.

    Missed any previous description of you as a “wacko.” Don’t know what that is about.

    What is the “penalty” you think Judge Kopf should pay for his “transgression”? If the matter is “trivial.” why are you mad?

    I am really asking these questions. Your post seems to be angry in tenor and to have a point- but that point escapes me on reading. Lots of anger and energy transmitted in your post. Just can’t suss out the reason or what you want from all of that.

  4. Your Honour,

    I happen to be somewhat closer to Cruz’ opinion than to yours on lifetime appointments, and I happen to think you’re ultimately correct in calling yourself afoul of Canon 5.

    That out of the way, given Canon 4(A)(1), which you quote, if
    –you restrict yourself to a vigourous opposition of Cruz’ positions
    but
    –you do a good enough job and persistent enough job in your advocacy

    could it not be inferred by anyone with his eyes open that you’re opposing a candidate, thus violating Canon 5?

    25 words or less: Does anyone doing a strong job on 4(A)(1) almost certainly violate 5(A)(2) because some candidate somewhere holds an opposite opinion?

    Thanks,
    Shawn

  5. @curacaolittleleague,

    You ask: “could it not be inferred by anyone with his eyes open that you’re opposing a candidate, thus violating Canon 5?”

    Did you read the part where Judge Kopf wrote ” I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges,”?

    I hate to feel like or to be seen like I am rallying around Judge Kopf (if that is how I am seen, I suspect I will survive the wound of that viewpoint being hung on me either way)….On substantive issues, I disagree with much of what appears to be his positions and I definitely disagree with many of his decisions and views. Unfortunately for me, no one made me a Federal Judge, so my opinions don’t really carry the day.

    The above prefatory remarks aside, did you not read the part where Judge Kopf already agreed that he violated Canon 5? You read that, right? Or you just wanted to confirm what he already wrote? Don’t get the post if you actually read Judge Kopf’s post.

  6. I complained that judicial self-discipline was a farce, a point echoed not only by respected academicians but his own fucking colleagues. For that, he called me a “wacko.”

    My point is about the process, and dishonest judicial opinion-writing in general. Judge Posner called it “fig-leafing.” Calabresi is precedent, and to say that it is not in an attempt to qualify his mea culpa is disingenuous.

    The mea culpa should have read something like this: “Professor Kerr, you are absolutely correct. Calabresi would be controlling in my case, were anyone to file a complaint. I humbly stand corrected, and apologize to Senator Cruz and the public at large.”

  7. I’m good with the Judge making a mistake (I am sure he wasn’t aware of Calabresi). I’m better with him admitting it. I’d be better still if he didn’t try so hard to qualify the damn thing.

  8. What is the better answer and what is his “crime” ? That he should have not explained his reasoning as to his original position? That he never had the original position (and therefore his “violation” is only viewed as to the original “error,” and nothing else matters? That he did not apologize or acknowledge the error? My read is that he did: “Consequently, apologize to you, Senator Cruz and everyone else for my error.” Don’t understand your angst or disagreement given he seems to have done exactly what you suggest he should have done….unless, maybe, you want him to have stated that he was intentionally wrong and set out to violate the referenced Canons. I don’t think that is the actual case.

    BTW, since I am not a judge- Sen. Cruz is a menace and it unfit to hold the position of dog catcher.

  9. Further, I strongly disagree with Judge Kopf’s position on not registering to vote or not voting. We don’t have compulsory voting in this country. So, he doesn’t have to vote. I just think he is wrong that that being a Federal Judge means that he should not vote, or that his position on this point makes any sense- I think he is wrong and is voluntarily giving up or not exercising an important right (and to some degree- I think it is a duty and obligation as a “good citizen” – whatever that means- to vote). As a Veteran and former Army Officer, I have strong feelings about many issues regarding our government. This is one of them.

    You get the government you deserve. Doesn’t resonate with me much that being a Federal Judge gives him or anyone a pass on not participating in our system of government and not voting. It is both a right and an obligation to vote if you are a good citizen. I hope he reconsiders his position on this issue. In the same way that any action (including his comments on Sen Cruz) may reflect on the judiciary, I think that as holding a very high position in a “co-equal” branch of government, any points that Judge Kopf may hold carries weight. Voting is important. As Forrest Gump said, “That’s all I have to say about that.”

  10. Richard,
    Calabresi was right about Bush v Gore, and you were right about Cruz the first time. Funny how it always seems to be only remarks which piss off right-wingers which get judges in trouble. Scalia and Thomas have delivered outrageous politically charged remarks in public fora about all manner of things which have pissed me off, but no one complains like this. Free speech for me but not for thee indeed.
    As for Orin Kerr, since he worked for Senator Cornyn, I suppose he feels that he has to stand up for Texas’s other Senator. But his criticism of you is misplaced, and your apology unwarranted. This continued insistence that judges and law are somehow above politics is childish, and to make them fall on their swords is offensive. I happen to agree with Calabresi’s politics and disagree with yours, but you were both right.

  11. Go and sin no more.

    But I stand by an earlier reply. I think application of canon 5 under the circumstances of your comment violates the First Amendment. I thought the opening paragraph in Justice Kennedy’s concurrence in White, that any regulation of content based political speech is unacceptable and that there was no need for strict scrutiny analysis. But even under strict scrutiny, I don’t think your brief remarks (and Judge Calabresi’s for that matter) should be controlled or sanctioned by canon 5.

    The price for being an innovator often includes being subject to pettifogging nitpick ears. Thank you for your sacrafice. This blog is great, don’t let the critics chill your speech. We all benefit by it.

    Sign me one of Kopf’s Kommandos! ( and by that I mean one of the cadre of loyal readers)

  12. Shawn,

    You raise an important and good point. In fact, if you read all the comments and all my responses you will see that I flagged the issue repeatedly. (See, for example, my discussion with Utah Lawyer.)

    I thought I could harmonize Canon 4 with Canon 5 by applying Canon 5(C) rather than Canon 5(A)(2) but the Calabresi opinion breezed over fine distinctions such as this. I don’t mean this as a criticism of that decision, only that the decision is not helpful on the issue you raise.

    The foregoing said, I cannot in good faith wage war against Senator Cruz by hiding behind Canon 4. Since I have no such intention of doing so anyway, the difficult issue you inquire about is moot insofar as I am concerned.

    While my response is slightly more than 25 words, I hope you find it clear enough and short enough for government work. Thanks for your engagement.

    All the best.

    RGK

  13. Mr. Perry, I am sorry, but I do not understand your reasoning. Perhaps I do merit the award. However, please see below.

    Canon 3B (5) A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code or a lawyer violated applicable rules of professional conduct.

    Canon 3B(5). Appropriate action may include … reporting the conduct to the appropriate authorities …

    Source: http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d

  14. Roadrunner–You should stop reading this blog. It’s bad for your blood pressure and therefore hazardous to your health.

  15. jadm71,

    I did indeed read Judge Kopf’s post. Further, I read His Honour’s reply below and I accept it. I guess my question is more theoretical than specific to this case. Let me give it another shot by rephrasing it.

    Suppose a judge is exercising his rights under 4(A)(1) as quoted in the post. One may even for the purposes of argument suppose that the judge’s work is received with high acclaim from many quarters.

    “Many quarters”, however, doesn’t mean there isn’t some single-issue candidate somewhere running against the judge’s careful work under 4(A)(1).

    My question, then, is does 5(A)(2) force the judge to be silent, if the judge is the proponent of one side of the argument and the candidate the proponent of the other? If yes, as corollary, what value is 4(A)(1) at all if Candidate X pops up and starts invoking 5(A)(2)?

    I meant no disrespect to Judge Kopf and I try to read the posts carefully. I mean none to you.

    –S

  16. If I were a cynic (who, me????) I might think this post is a non-admission admission. (For those who don’t know what I’m talking about, go back and look at All The President’s Men.)

  17. Ron,

    Apologies if I came of (as I think I probably did) as “tart” in my response…..

    My input and response is in the context of having practiced law for many years and having seen issues that deal with “substantive” violations of rules (i.e., issues that “matter” in cases).

    Judge Kopf admittedly violated the rules. You suggest that he should or might consider “self-reporting” of his violation.

    To what end?

    Without going into an ad hominem examination of all of the ethical issues and possible outcomes/permutations, what action should he take beyond already publicly admitting his violation of the rules? No one has filed a complaint or referral of his actions for review or consideration to a disciplinary body. Should he file a complaint against himself?

    Do his statements warrant discipline? Especially after his agreement that he erred? If so, what discipline? A statement (reprimand, censure, admonition….all adding up to the same thing….perhaps private or perhaps public) that his statements were not proper (in the context of his already public acknowledgement that he crossed the line)? What more?

    I have two further points….

    If you have practiced law for any period of time, you have probably bumped up against issues that might be problematic from a strict reading of the rules of conduct that apply to you. Have you ever driven above 35 mph when the sign says that is the limit? Would be shocked if you didn’t. I guess this goes to the analogous issue of venial vs. mortal sins.

    Getting back to my main/first point in (discourteously) suggesting you were dumb for raising the issue….my point is that in my experience, this is a tiny issue, yes an admitted technical violation of rules, however a violation that has lessened impact based on context/reasoning/and acknowledgment of the issues.

    My point was that my thought on reading your post was that this is something that might come up in a 2L/3L ethics course which might be technically correct. However, real world experience will show that really horrible and egregious issues come up all the time. Not saying that any violation of rules is not of concern. But, there is a wide range of issues that “matter,” and on the spectrum, Judge Kopf’s actions are more akin to speeding at 36 mph in a 35 zone than premeditated murder.

    And, unfortunately, my point was, get real….in the real world, this type of issue is not something anyone would seriously pursue as to ethical or disciplinary actions. I know this is not the message that gets spread in law school. I am only referencing the real world.

  18. Ron,

    I think I have “self-reported” my error by publicly acknowledging it and apologizing for my mistake. In any case, I don’t plan any further action on my part. That said, folks are certainly entitled to use my admission as the basis for a complaint. The way to go about doing that is as follows:

    First, be aware that the “Codes of Conduct and related sources of authority provide standards of behavior for judges and others in the federal court family. The Judicial Conduct and Disability Act allows complaints alleging that a federal judge has engaged in ‘conduct prejudicial to the effective and expeditious administration of the business of the courts’ . . .” United States Court of Appeals for the Eighth Circuit, Judicial Conduct and Disability (last accessed June 9, 2015).

    Second, click on the link for Judicial Complaints.
    Then click on the links found under this topic entitled Existing Rules On Filing Judicial Complaints and Filing a Complaint of Judicial Misconduct. You should also be aware of the New Rules On Filing Judicial Complaints, Judicial-Conduct and Judicial-Disability Rules adopted by the Judicial Conference of the United States on March 11, 2008. You can download those rules from the above cited link to Judicial Complaints.

    I trust this is responsive to your inquiry. All the best.

    RGK

  19. Apology accepted. Now, it is time for the gnashing of teeth to end and for all to move on to other matters. As for Senator Cruz, he has less than a snowball’s chance of being POTUS. No harm done. Hmmmmmmm. Reminds me of the “harmless error” rule.

  20. I am proud of you for swinging your cannon around town shortly after you finally achieved your official non-virgin 1000 status.

    I am even more proud of you for dismounting while apologizing to all those high and low, virgins and otherwise, whose feelings and or sensibilities you may have inadvertently treaded on during some mighty brave cannon swinging even if you probably should have read the fine print of the nuanced canons of cannon control manual before swinging your cannon all over town.

    In the meantime…If this meandering little ride along the fence rows of Lincoln that you have been on the last few days gets too hot, I would recommend you hunker down for a while across town hiding in plain sight. Then tidy up your docket and business dealings, take care of any family matters, and then tell the misses you need to get the hell off the reservation for a bit.

    Then mount up and takeoff for a leisurely ride northwest until you get to the Nebraska Badlands.

    That should give you plenty of time to clear your head while adjusting to your new status as an outlaw.

    After finding a suitable place in the badlands to hide out and kick back for few months you can tromp around the Oglala grasslands on day trips while hunting buffalo as you plan your next diabolical move.

    But keep your eyes open as covert political operatives have been in and out of that territory for years hunting down the last of the Atheists and even a few old school Quakers that are supposedly starting to embarrass the real Christians by claiming that American Exceptionalism doesn’t really mean what the real Christians think, ever since they were forced down there after the Great Purging of the Black Hills and Mount Rushmore up in South Dakota that was needed to make sure South Dakota stays more friendly or as friendly as Delaware to incorporate a credit card company.

    Anyway, a word to the wise, the covert political operatives cut all the broadband wires during the purge and even chased off all the skilled labor keeping the cellular telegraph towers maintained when they busted their union, just for the sport of it while they were in the area, so you might as well leave your laptop and cell phone at the fort on the outskirts of Lincoln and keep the saddle bags light.

    Some extra pens and powder couldn’t hurt but that should go without saying.

    Nobody talks to press people from DC or New York out there anymore and they only ride on the main trail in wagons anyway but the RNC and the DNC both have a handful of scouts out there looking for some easy scalps to register to vote in the upcoming presidential primary so watch out for them fuckers but other than that you should be good.

    If you want I am sure you can rustle you up a few immigrants, attempting to herd up the few remaining unbranded cattle roaming around, to smuggle some of your papers to the Free Press in Montana and bring you back the press clippings of the day. They can ride fast and they know how to keep their mouths shut. So, you shouldn’t fall too out of touch with civilized society.

    I think you should as it will keep things interesting and you will be obligated to taunt your bounty hunters anyway under the Great American Outlaw Canons 4(a),(c) and (g). (I would provide a link but that is forbidden by Cannon 8(d).)

    FYI: I have it on good authority there is a hermit staging in the Nebraska Badlands until he can get his FEC filings in. The grape vine has it he has been writing a tome of a critique, since the 70’s, about these federal canons of the court you have been speaking of recently.

    They call him the Ecclesiologist of Anarchy.

    Rumor has it he paned enough gold up in Saskatchewan when he was squatting on Queensland, while on the run for getting into some sort of trouble in Wyoming, that a breakaway group from the
    Lac La Ronge Indian Band had to smuggle him back into the United States.

    Anyway, I guess after he paid them for their trouble of saving him from the Royal Canadian Mounted Patrol and smuggling him back into America this past spring they asked him why he stole all the gold from Queensland instead of just staking a claim and he told them that he was going to need the extra cash to run for the Office of the Presidency of the United States of America and he couldn’t accept official support from a foreign nation nor its citizens if he expected to get through the primaries and without the cash he would have to find someone
    or something to demonize to raise the cash and that just wasn’t his style.

    So, whatever you do, don’t shoot him if you happen to run into him. I hear he is the “good” kind of crazy not the “bad” kind of crazy but these days you best not turn your back on any kind of crazy!

    There is also some other guy who settled in Texas, a while back, who rumor has it also had some Canadian connections at one time. You might already know him. If not, it shouldn’t be too hard to identify who is who for a while, as I guess the guy from Texas already has his paperwork filed with the FEC to run for President and he and has been keeping himself busy figuring out new and creative ways to scare the shit out of people while passing the hat.

    I wouldn’t be turning your back on that particular kind of crazy either as that kind of crazy has a peculiar sort of unpredictability.

    BTW, if you happen to reconsider the voting thing, now that you have become an outlaw, I figured you should know that even big “O” outlaws can vote in Nebraska as long as you qualify under Nebraska Election Canon 2(e) which states; you can vote if you have not been convicted of a felony, or if convicted, at least two years have passed since the completion of your sentence for the felony including any parole term.

    P.S. Good Luck and Good Speed over the trail. This should all blow over in no time at all but you never know.

  21. Some nice fellow named Pat Green went on Kerr’s blog and persuaded me there was no material violation and then you confess, I have no hero left.

  22. You see, this is the kind of stuff that keeps me reading this blog. What a cast of characters the Nebraska bar must have. I think it must be a lot of fun practicing law in the Wild West.

  23. This is the kind of stuff that keeps me reading this blog. What a cast of characters the Nebraska bar must have. I’m very jealous. It looks like it would be a lot of fun to practice out there in the Wild, Wild West.

  24. DITTO. Lots of windshield time (the ‘modern’ time in the saddle) out there in the Wild West; full of real cowboys (and cowgirls, of course) and other characters, maybe even a couple of Judge Roy Bean types – been there and done that.

  25. Is it me, or isn’t applying Canon 5A under these circumstances violative of the 1st Amendment as impermissible content regulation of political speech? Here’s what I mean. If a judge makes a comment in his personal capacity on the qualifications of a political candidate that is his or her right to do so as a citizen. Government can’t regulate the content of political speech.

    That is different if a judge, as a judge, makes a comment on a political candidate. It would seem that such speech could be regulated under Canon 5A, without violating the first amendment, as a time, place and manner restriction.

    Example 1: Judge Hercules at dinner with a group of friends. “I don’t think candidate X is for office because X, Y, Z, but what do you think?”

    Example 2: Judge Hercules on the bench wearing his robes, looking down at the lawyers over his bifocals, pointing his finger, saliva coming out at the corners of his mouth, “Don’t vote for candidate X, he is unfit for office, or else!”

    Why am I wrong? (And I’m not saying I’m not wrong on this one, but I want someone to explain it to me and repenting Lawyer may be my last hope) Look at the opening paragraph of Justice Kennedy’s concurrence in Republican Party v. White. I promise, this will be my last comment on that case.

  26. Anonymous, NE Bar is but a pale reflection of its earlier self, we do not even have good fist fights any more.

  27. Anonymous, Korf’s case is a middle between you two hypos, closer to dinner example while Guido is closer to on the bench, not invited as torts guy. Answer is I do not really have an answer. There are hard cases and Judge Hercules is a myth or dead if Dworkin meant himself to be Herc which is my guess.

  28. repentinglawyer,

    I would not raise a First Amendment defense under any circumstance that I can contemplate should I be the subject of a misconduct complaint. That is not because there aren’t strong First Amendment claims that could be asserted as a defense, but because I happen to think the Code does a good job of striking a reasonable balance. In other words, it is good enough for government work insofar as I am concerned.

    All the best.

    RGK

  29. John,

    It is true. You never know.

    Trigger Warning: Too much information follows: Indeed, after nearly six years of seeing a shrink, the unknown still remains my primary fear.

    All the best.

    RGK

  30. Huzzah. I would add “and blind” to “childish.” In my opinion, writing as a non-lawyer, much ado about nothing. Absolutely no disrespect to your opinion, Judge, but, it will have minimal effect on the electorate and had USSC’s opinions about SSM and healthcare gone his way a couple weeks ago, Cruz likely would’ve been silent. That said, I think you did go over the line according to the way I read Canon 5. I don’t have a problem with it because 1) in my opinion, Cruz deserves the criticism and 2) you are hardly the only member of our Judiciary behaving politically.

  31. Warren,

    I don’t remember. Things have been hectic. I will peak behind the magic curtain to see (again?) what you wrote. If I believe a response is called for, I will respond promptly.

    All the best.

    RGK

  32. Judge Kopf, it is a minuscule error in light of the difficulties our nation faces today. It should not even be an issue. If we focused on the things that really mattered together we could make a positive difference rather than focusing on trivial infractions and “stoning the wicked”. I’m an American citizen and I support your right to criticize who ever you feel is a threat to our heritage and American Way of life! In the Bible, men of God were tortured, imprisoned, and executed because of laws that man created. I understand your position, but I believe you did what you thought was right and that should be given credit. …As one man said “just a few more laws and we could all be criminals”.

  33. Judge Kopf, THIS IS AN EMERGENCY! I understand the confusion of this thread and situation. I feel you. I want you to know that regardless of what anyone says or does to demean you or make you feel low I support you. I feel like you are a good man and we need good people because our children have nowhere to look but up for the correct guidance. my plea to you is a hope that this situation creates a window to communicate the gravity of the situation our children are in so that they are heard by someone who can make a difference for their best interest of a truth. our families are suffering harsh judgement by family courts and we need help to put a stop to the cookie cutter approach being used by judges in family matters coast to coast. our men are being sold into slavery automatically faced with the burden of child support and children being used as weapons and pawns. I’m sure you are well aware and familiar with what I’m talking about. This is an emergency! Help me help us! my objective is toward a 50/50 presumption in custody determinations. Studies show the majority of American parents agree this is something that is needed IMMEDIATELY. PLEASE HELP US HELP YOU HELP OUR CHILDREN!

  34. You should have never apologize for what you believe in. You’ve said nothing wrong. I would suggest to tell everyone to kiss your @#% but I know you’re a gentleman.

  35. Well, Judge Kopf, you have caused a kerfuffle (only the second time I’ve ever used that word)! Mr. Kerr, apparently, needs more to do. You were right on in your comments about Sen. Cruz and I appreciate your expression of your opinion, which any reasonable person could not have read as an opposition to his candidacy for office.

  36. Good for you, Judge. I don’t always agree with what you say, but appreciate your willingness to say it. I wish more judges shared that bent.

  37. Thank you Judge Kopf. I disagree somewhat with your position on the proposal although I always believed they stood more strongly on their own.

  38. I declare this done. Move along–nothing more to see here.

    We haven’t discussed bestiality in some time, and never discussed the impact of immigration on Idaho trout fishing. Someone, pick up the baton and carry Ol’ Rich!

  39. I see a large difference between advocacy for/against a proposal versus for/against a person. I also understand that SCOTUS has made a distinction between advocacy for a position versus advocacy for a candidate in election law.

  40. Isn’t the BLM, EPA and State Fish and Game monitoring the immigration of trout in to/out of Idaho?

  41. That’s an interesting point, and the answer is I don’t know. Do trout immigrate? Do fish immigrate? If so, is there illegal fish immigration? Can they illegally immigrate on their own by crossing waterways, or is it illegal only if a fish coyote is involved? Mr. Trump talked about immigration and Mexicans–do they fish? If a legal trout is moved from its usual place of water by an illegal immigrant, is that illegal trout immigration? What are the penalties, no flies for a month?

    I noticed you avoided the first temptation, so I ask: is sex with a fish bestiality?

  42. Judge:
    I don’t know how relevant this is from an ethical standpoint but, IMHO, your comments about Senator Cruz–misguided though they may above been–were not mean spirited. I do not have the same reaction about the comments by Judge Calabresi concerning President Bush.
    Robert

  43. Judge:

    It takes a courageous man to admit when he is wrong. By admitting that you have violated Canon 5 openly and honestly, you have demonstrated that you are a man of integrity and moral courage. You certainly have my respect.

    I believe that your previous comments about Mr. Cruz demonstrate a fear that is not well-founded, however. What Senator Cruz proposed was to amend the U.S. Constitution. I will not insult your knowledge and experience by detailing the difficulties involved in accomplishing such a feat. Needless to say, if Mr. Cruz is successful and his proposed amendment is ratified, then there could be little doubt that the American people supported him (or at least a substantial majority of them).

    You spoke of the wisdom the Founders demonstrated by giving U.S. Supreme Court Justices lifetime tenure, yet you overlooked their wisdom in making the amendment process so difficult. Many other similarly ill-conceived proposals to the U.S. Constitution have been rejected throughout history. I submit to you the following:

    1876: amendment to abolish the U.S. Senate, REJECTED
    1876: amendment to prohibit religious leaders from holding public office, REJECTED
    1878: amendment to replace the presidency with a “council of three,” REJECTED
    1893: amendment to rename the United States of America as “The United States of the Earth,” REJECTED
    1893: amendment to abolish the United States Army and Navy, REJECTED
    1912: amendment to outlaw interracial marriage, REJECTED
    1914: amendment to outlaw divorce, REJECTED
    1916: amendment to make all acts of war subject to public referendum, provided that all “yes” voters would register automatically for military service, REJECTED (note: proposed in anticipation of U.S. involvement of WWI)
    1933: amendment to limit all personal wealth to $1,000,000, REJECTED
    1936: amendment to make all acts of war subject to public referendum, REJECTED (again)
    1938: amendment to outlaw public intoxication, REJECTED
    1947: amendment to limit personal income tax to 25%, REJECTED
    1948: amendment to give citizens the right to segregate themselves from others, REJECTED
    1971: amendment to give citizens an inalienable right to be free of pollution, REJECTED

    Mr. Cruz’s proposal is just as ludicrous as those listed above. I trust that the American people and their duly elected representatives would, as they have in the past, deal with Mr. Cruz’s proposal similarly.

  44. Pingback: Judges Should Blog More But Learn From Judge Kopf’s Mistakes | Maryland Appellate Blog

  45. Is it? The judicial retention election is an integral feature of the “Missouri Plan,” adopted by roughly half the states. If it is so ludicrous, why have so many states embraced it?

    What is ludicrous is the status quo. Cruz is bright enough to see it. Why aren’t you?

  46. They were objectively stupid — proposing the adoption of a remedy embraced by half the states is certainly not a valid ground for declaring a man unfit for office — but not mean-spirited.

  47. Kerr is personally acquainted with Cruz, and acknowledges it.

    Cruz’s proposal is not unsound, having been adopted by roughly half the States.

    Judges are politicians in robes. Any pretension to the contrary is juvenile.

  48. Pingback: Hercules Ceases His Labors

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