Ronald D. Rotunda Aug 8, 2015
Judge WritingType “judges behaving badly” into Google, and you will get over 400,000 hits. There is one story after another about judges acting injudiciously, sometimes criminally. For example, the state of Oklahoma convicted one state judge of exposing himself while presiding over jury trials. He used a penis pump under his robes. His former court reporter testified that she saw him expose himself at least 15 times during a two-year period. In a murder case, the jurors asked the judge about the whooshing sound under his desk. He said he had not heard it. He later said that a fishing buddy gave him the pump as a joke. “It wasn’t something I was hiding.”
When state judges act injudiciously, state judicial discipline is available. The state remedies include the state publicly reprimanding the judge, or suspending him or her without pay for a period, and even removing him or her from the bench. In addition, in many states, the people vote for their judges, so that periodic elections can remove embarrassments.
No so for federal judges. Their lifetime tenure and salary protection make them immune from effective discipline, although Congress can impeach for serious offenses—a rarely used remedy, unless the federal government convicts the judge of a felony. Even then, the judge remains a judge and collects his salary, while serving time in prison, until the House impeaches, and the Senate removes the federal judge.
The framers of our Constitution gave federal judges lifetime tenure and salary protection to to make judges independent, not to authorize them to act with gay abandon. Some judges do not understand that, when they ascend to the bench, they are supposed to leave their politics behind.
Let us consider District Judge Richard Kopf of the District of Nebraska. He wrote a blog he calls, Hercules and the Umpire. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that a regulation of Health and Human Services could not force Hobby Lobby to pay for abortifacients to give to its employees. Congress could pay for the abortifacients if it chose to do so. There would be no constitutional problem with that. Indeed, Congress could distribute free abortifacients on vending machines each street corner, but Congress (actually, in this case, the Secretary of HHS) could not force one private party to pay for another’s abortion. That violated a federal statute directly on point. The decision protected the religious liberties of the employer.
Judge Kopf published his analysis of this decision in is blog. It was pithy: “As the kids say, it is time for the Court to stfu.” Where he prints “stfu,” he added a hyperlink to the Urban Dictionary, helpfully explaining to the reader what “stfu” means. All in all, for that one posting, one sees the term “stfu” 64 times. Kopf says that the majority decided as they did because they are Catholics. Kopf, by the way, compares his own legal analysis to that of the late Professor Alexander Bickel of Yale, whose writing is more eloquent.
Judge Kopf’s blog gave him 15 minutes of fame in the popular press, with an article in the Huffington Post and a few other places about his language. Not content with just 15 minutes, he later decided to attack Senator Cruz. On July 6, 2015, Judge Kopf told us, “Senator Ted Cruz is not fit to be President.” I hold no brief for Senator Cruz; I do wonder, however, why federal judges (who are supposed to leave their politics behind when they assume the bench) would signify their disapproval, rebuke, or endorsement of any presidential candidate.
If Judge Kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate, he was not cast adrift with no navigational aids. The Administrative Office of the U.S. Courts publishes is Code of Conduct for U.S. Judges. The very first sentence provides, “Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.”
The title of Canon 5 provides, in bold letters no less, “A Judge Should Refrain from Political Activity.” Canon 5A(2) states and a judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” [Emphasis added] That sentence is not difficult to understand. The Administrative Conference also provides ethics opinions to explain further what is not permitted. The Committee on Codes of Conduct Advisory Opinion No. 19 (June 2009) explains that Canon 5A(2) is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club.
In case one wonders what about Senator Cruz so irked Judge Kopf to proclaim his public opposition to Cruz’s candidacy, Kopf—who concedes that he should not be handing out such pronouncements—tells us in no uncertain terms:
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal [emphasis added] 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. Senator, and Presidential candidate, Ted Cruz has recently stated,
I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Because Cruz “is serious” about this “extreme proposal,” Cruz “is demonstrably unfit to become President.” Judge Kopf actually claims that he “did not label Senator Cruz unfit to serve in order to oppose his candidacy”; Kopf could have fooled me. I thought that if you say that Cruz is not fit to become President that means that you oppose his election to that office. No, says Judge Kopf, who claims he made his statement “rather to demolish [sic] and protect us all from his intemperate legal attacks on the Supreme Court.”
Whether one thinks that the idea of having term limits for judges is a bad idea or a good one, a proposal for a constitutional amendment is hardly an intemperate attack or an extreme proposal. In 2009, Professor Paul Carrington of Duke University urged Congress to consider term limits for Supreme Court justices. Last October, Dean Erwin Chemerinsky of the University of California Irvine, said, “I do believe there should be term limits for Supreme Court justices.” He presents his arguments in his article, Ted Cruz Is Right: The Supreme Court Needs Term Limits. Was that yet another extreme proposal or an intemperate attack on the Supreme Court? Chemerinsky argues that judicial elections are not the answer. Instead, he proposes that each justice should be appointed for an 18-year, non-renewable term, thus creating a vacancy every two years. He develops this idea in one of his recent books. Linda Greenhouse has also proposed 18-year terms.
Polls show that a large majority of Americans, without regard to party, support some sort of term limits for U.S. Supreme Court Justices. Last June, the Supreme Court ruled held that there is a constitutional right to same-sex marriage nationwide (a result that drew popular support) and that it would reject another challenge to President Barack Obama’s healthcare law (which does not enjoy such widespread support). A month after those two cases, a Reuters/Ipsos poll showed that the people, in general favor term limits for Justices: 66 percent of Democrats, 74 percent of Republicans and 68 percent of independents all favored the 10-year term limit for Justices. Are two-thirds of Democrats “intemperate” because they want limits on Supreme Court Justices that are stricter that what Cruz proposed?
Judge Kopf no longer updates his blog. He shut it down on July 9, 2015 (“I am today pulling the plug”), three days after he told us that Cruz is unfit to be President. His pages are still available on the web, but he no longer updates. Why? He says that it is not because of any judicial discipline, and anyway, any discipline complaint “would not discourage me from blogging,” he adds. In addition, “I am not pulling the plug because of any mental or emotional struggles or treatment.”
Instead, “I am pulling the plug because I learned a couple of hours ago about a discussion held at a retreat for our employees.” What did he learn? The Chief Judge asked, “how many of the employees felt the blog had become an embarrassment to our Court. The great majority raised their hands.” (Emphasis added.)
That is why he is pulling the plug. He is an embarrassment to the federal courts.
Ronald D. Rotunda Aug 8, 2015