Conversation: Judge Richard Kopf
When invited by Charon QC to convene an interview on judges and their judging, my first wish was an audience with Rich Kopf, that is to say The Hon. Richard G. Kopf, United States District Judge, D. Nebraska. I would tell you all about him, but I thought better of it and wrote down our conversation of this week, for which I am grateful.
MC: Starting in 1997 you presided over a legal challenge to a new statute by the Nebraska legislature that restricted abortions—in what became a series of suits at the different tiers of our legal system now called the Carhart cases. You were the trial judge charged with making the ruling in the first instance over whether this abortion ban the legislators had enacted violated the Constitution?
RK: Yes, that is true. The Carhart cases involved so-called “partial birth” abortions. In fact, those types of abortions involved a surgical technique that had nothing to do with “birth,” (or viable fetuses). Indeed, the challenged technique had been in use for over a hundred years. In some cases, that technique was clearly safer than other available surgical techniques.
In the first Carhart case, the Supreme Court agreed with me. In the second Carhart case, and after Justice O’Connor retired, the Supreme Court effectively reversed itself and disagreed with me.
Other than the composition of the Supreme Court, nothing significant had changed.
I was very disturbed by the “about face” and, as a result, have since recused myself from handling any civil cases involving the regulation of abortion. In the recusal order (click on 2011-10), I wrote, among other things, that: “I am honestly unable to provide a principled explanation as to why the Supreme Court affirmed the decision in the first case, but reversed the decision in the second one.”
MC: The lawyer for the respondent in Carhart, who was the Deputy Attorney General for Nebraska at the time, wrote a formal law journal article that criticized your rulings in the case during 1997 and 1998, and then he went on to advocate the same argument when the U.S. Supreme Court took up the matter, which Nebraska lost on appeal in the year 2000.
RK: Yes. See Steven Grasz, If Standing Bear Could Talk…Why There is no Constitutional Right to Kill a Partially-Born Human Being, 33 Creighton Law Review 23 (2000). Mr. Grasz is a brilliant fellow.
It seemed to me that Mr. Grasz was making a neo-conservative argument that federal district judges should be “activist” in certain types of cases, and that this activism should be employed by federal district judges like myself when reading the precedents of my judicial superiors on the Courts of Appeal and the Supreme Court.
MC: You then wrote a candid journal article of your own in the same journal, the Creighton Law Review, that in part was a response to this Nebraska state official’s formal arguments against your decisions, but that on balance more so became a focused discussion on just how challenging it can be for the trial judge to adhere the outcome of a real, live controversy to a body of legal precedent that cannot be optioned away from the suit.
RK: True. See Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games – A Response to Steve Grasz and other Conservatives, 35 Creighton L. Rev. 11 (2002).
The essential point of the essay is that federal district judges should fairly read and apply the precedents of their judicial superiors no matter where that reading and application takes the judge after he or she has found the facts.
That task is not easy, but it is hard reconcile the job of a federal trial judge in our hierarchical judicial system without such an approach.
Remembering that the federal judicial branch is fundamentally undemocratic, and that federal district judges primarily function as fact finders, my response to Mr. Grasz was to reject his neoconservative call for judicial activism in favor of a far more limited role for federal district judges.
MC: What was the aftermath of your exercise in writing a scholastic response to this lawyer who was continuing his advocacy, as von Clausewitz might say, by other means, and in writing a, almost a jurist’s own soliloquy on the experience of trying to marry a charged, turbulent social issue like abortion to these binding Supreme Court precedents, the well-known Roe v. Wade and Casey opinions?
RK: Well, first, let this be clear: My response to Mr. Grasz was written after the first Carhart decision had been rendered by the Supreme Court, and before I was received the second Carhart case to decide. That is, I was not commenting upon a pending or impending case.
From the article, my essay has been viewed or downloaded around 325 times according the Creighton Law Review. Other than that, I know not.
But as for the “aftermath” of handling the Carhart cases, I received roughly a thousand fairly nasty e-mails and at least one death threat that was serious enough that the FBI looked into it.
I once had aspirations to be elevated to the Court of Appeals under President George W. Bush, but, when an opening became available, I was passed over largely (so I believe) because my Carhart decisions were so unpopular.
To be fair, the fellow (Bill Riley) who went on the Eighth Circuit Court of Appeals is my dear friend and law school classmate. He is universally held in the highest regard. Indeed, he is now our absolutely superb Chief Judge. Looking back on it, things worked out just fine for me. But, I will be forever grateful that I have enjoyed the protections of life tenure guaranteed by the Constitution.
MC: When this same Carhart dispute that had decided was taken up by our Supreme Court, within the Supreme Court’s opinion, some thought there was a certain amount of chastisement of you in the words of one of the writing Justices, Anthony Kennedy, to the effect that you as the trial judge were too quick to rule and enjoin the law before various state interests within the Nebraska political realm had first weighed in?
RK: Yes, that is true, and it came in the first Carhart case in a dissent. I thought Justice Kennedy’s comments were unfair. Much more importantly, he was just plain wrong on the facts. See here for the details.
MC: Were there times during the long Carhart timeline when you felt like Paul Scofield’s Sir Thomas More in A Man For All Seasons? By which I mean did you feel the visceral isolation, loneliness, and sense of unpopularity that a judicial officer who is supposed to find and then follow a law will inevitably encounter?
RK: In no way, shape, or form should I ever be compared to Sir Thomas More! (The same is true for David Paul Scofield, a brilliant actor.)
Personally, I had very little at stake. I had the protections of life tenure, and no threat to be hung, drawn and quartered. Throughout, my wife and my staff (who I consider to be part of my family) shielded me, in many respects, from the feelings of isolation.
MC: One might suppose that a trial judge is always potentially subject to unpopularity from below, from the lawyers who implead the judge to rule one way or another, but also from above, from the superior court with oversight that can review and comment and reverse him? Your experience adjudicating Carhart seems an intense example of how a judge can feel the weight of criticism, of unpopularity, from both above and below, simultaneously.
RK: You are correct. But our late and great Judge Richard Arnold told me on the occasion of my investiture as a district judge that I would never again be as popular as I was on that day, and in emphasis he added, “After today, it is all downhill.”
He was right, as he almost always was, during the entirety of his magnificent life.
MC: More than a decade after your work in Carhart, you would launch a blog—the first, and, I think, still the only dedicated blog authored by an American federal judge—it was named Hercules and the umpire. And the first thing you blogged about was the principle that “a trial courtroom is not an abstraction.”
RK: Indeed. What goes on in a trial courtroom is visceral as much as it is intellectual. In large part, this is because trial courts are primarily designed to find facts using adversarial tools.
MC: I think that, in chief, you were starting a conversation about the difficulty between trial and appellate courts in viewing shared cases through the same lens, the court further removed tending to abstractify the matter more. But I think that your principle applies equally to lawyers coming to court. Some of us have the tendency to envision law’s rules as the precious or living things to hand, rather than the people who are trying to figure a mess out with the guidance of those rules. What could be more abstract than a defense counsel quibbling over a pleading in a motion to dismiss?
RK: What you work toward is that it is extremely important that a lawyer know his or her audience. And, by extension, Courts of Appeal think very little of what we trial judges think about the law, but they think a great deal of what we think of the facts.
MC: Another principle you set out for discussion on Hercules is that “judges should not fear to judge.” Is that also to do with resisting abstractions? Does it strike at the idea that the judge must crystallize into reality an outcome from a set of facts set in reality, and that if the decision is based in abstractions . . . well, can one under-judge a matter in the way that a chef can under-cook a dish?
RK: Exactly right. That’s why I don’t eat Sushi!
MC: When we consider what a living person thinks about what certain laws mean, a term from science and the humanities that comes to mind is “observer bias.” Laws can sit by themselves on a bookshelf until they are needed, but once they are needed they are applied by someone in the decision maker’s chair; our legal observer.
Thinking about “observer bias,” many lawyers seem to rush to court saying ‘the law is thus and so, and here is why.’ And many scholars of jurisprudence write very nice tracts about the deep roots of law, and whether those are natural, like rocks and wind, or whether they are a man-made overlay to the natural world, like a bicycle. But doesn’t it seem that both the lawyers and the scholars too often don’t ask, ‘who is sitting in the chair of decision?’ and ‘from whence does law arise according to their view?’
How often have you perceived a disconnect in your courtroom with the lawyers appearing that you could attribute to the fact that you as the judge are saddled with an observer’s bias and the lawyer arguing is going on about a law or the law as if it had no observers, as if there was no place law itself resided at except the bookshelf?
RK: What a fascinating question! How often do I perceive this disconnect? Every day.
One of the books that greatly influenced my thinking about law had little to do with law. That book is Language in Thought and Action, a text on semantics, by the late Samuel Ichiye Hayakawa. Two things the great man wrote are especially relevant here, so I will quote—
Regarding the Meaning of Words
1. “Citizens of a modern society . . . need to be systematically aware of the powers and limitations of symbols, especially words, if they are to guard against being driven into complete bewilderment by the complexity of their semantic environment. The first of the principles governing symbols is this: The symbol is NOT the thing symbolized; the word is NOT the thing; the map is NOT the territory it stands for.” (Emphasis mine.)
Discovering One’s Biases and Endeavoring to Blunt Them
2. “The point is that by the process of selection and abstraction imposed on us by our own interests and background, experience comes to all of us . . . already slanted . . . The writer who is neither an advocate nor an opponent avoids slanting, except when he is seeking special literary effects. The avoidance of slanting is not only a matter of being fair and impartial; it is even more importantly a matter of making good maps of the territory of experience. The profoundly biased individual cannot make good maps because he can see an enemy only as an enemy and a friend only as a friend. The individual with genuine skill in writing — one who has imagination and insight — can look at the same subject from many points of view.” (Emphasis mine.)
In short, to Hayakawa, it makes a great deal of difference whether your “observer” (the judge) is aware of these two important principles.
It is even more important that the advocate be aware of these principles, and the frightening possibility that the judge is clueless regarding such things.
MC: That is utterly harrowing, and also illuminating. Thank you!
While we speak of external realities, in another blog post on Hercules, you asked, and I think it was tongue-in-cheek, whether your federal appellate court had “gone nuts.”
From a cold read of that post, you seemed to be talking about what a political scientist would call realpolitik—the gulf between what we think is the way something is done, and the way we observe something to be done, and the plausible explanation for the change in process.
Did you get feedback from raising court’s chamber’s realpolitik-in-action as a blog topic?
RK: The sense that I have is that lawyers appreciate realpolitik and judges are afraid of it. That said, I never, ever received one word of criticism from the members of the Court of Appeals about this blog post or my blogging efforts, writ large.
MC: And speaking further of the external, your blog championed a thought piece by Lee Epstein and Jack Knight which proposed that, surprise(!), judges, like everyone else, are motivated in their jobs by esteem, prestige, influence, promotion, income, and leisure.
That judges might feel and follow these most human of impulses should surprise no one. And it may be something that is talked about at judges-only conclaves. But it has long been my sense as a lawyer that such talk is by habit taboo, is truly verboten, for lawyers to take up, outside of their most furtive and hushed lunchtime conversations.
Is the legal system leaving some improvement unfinished by not fostering more open discussions about how judging is a career and how that can give rise to perceptions of careerism, and what can be done to counterbalance those perceptions? Should there be anthropologists studying judges and delivering findings to judicial collegiums?
RK: Yes, and yes! It is truly verboten for the practicing bar to speak of such things to judges, both because lawyers are too timid, and because there are few venues for brutally frank exchanges between lawyers and almighty federal judges. That is a shame. We judges could learn a lot from lawyers on these subjects. And, yes, having a variety of scholars studying federal judges—like cultural anthropologists (or, my new favorite, neuroscientists)—could do wonders for the judiciary and for the public.
MC: The most noticed judicial opinion in America in the last 12 months was the Supreme Court’s opinion in Obergefell, where the Court recognized the right of gay marriage.
The Chief Justice, John Roberts, was in the dissent, and he wrote a dissenting opinion that ended along the lines of ‘look here, celebrate love, celebrate marriage, but don’t celebrate the Constitution as you think of this ruling, because this has nothing to do with the Constitution.’
And Richard Posner, who needs no introduction, came out with a written piece that called Roberts’s ending “heartless,” and that in another section cast an outlook that the gay question was for faith and not law as vaguely theocratic.
And you blogged on Hercules in defense of the Chief Justice and said that Posner was dead wrong in his interpretation of Roberts’s ‘don’t think this is about the Constitution’ statement in the final passage. How did you read what John Roberts wrote at the end of his dissent in Obergefell?
RK: I took the Chief Justice at his words. Those words were these:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. (Emphasis mine.)
It seemed to me that the Chief was not “heartless,” but genuinely pleased for those who would benefit from a decision that he earnestly believed was not grounded solidly in the Constitution. Judge Posner had absolutely no factual basis for saying otherwise.
MC: Posner himself is someone who you have high regard for, I suppose both as a jurist and as an intellect. He wrote a book, Public Intellectuals, that was a kind of paean to the age when there were more accomplished members of society, across all vocations, writing and discussing our shared societal problems in public for a, like newspapers, and now, blogs.
Posner placed great importance on the role of the public intellectual. And he himself is one and is also a full-time jurist of no small distinction.
Through Hercules, you experienced something of this dual role that Posner has legendarily carved for himself. What is the experience, internally, of being seen and talked about as a public commenter on a platform that is followed like yours was but who is also filling the narrow and conventional role of “judge”? And what do you suspect was the chief thing your readership prized about the fact that you were, as Posner exhorts the sidelined savants of the world to do, taking up for public debate the issues that you saw around you?
RK: I think my modest readership arose because, first, I wrote transparently about the federal judiciary, particularly the under-studied federal trial courts. Second, I wrote transparently about myself, and third, I welcomed comments and wrote replies quite frequently.
Again, in no way, shape, or form should I ever be compared with Judge Posner. He is a universe unto himself.
MC: Like many, I enjoyed reading Hercules because you sought to demystify the judge and the role of judging. I found this both helpful, to me, and healthy to society, in terms of how plain talk about what you as a judge do tends to dispel misunderstanding and conspiratorial speculation. Have you met other judges who have strong points of view and who seem to be subject matter experts on something or other who should be blogging, as public intellectuals? What are we missing out on?
RK: Yes, there are many federal judges who could contribute greatly to the public discourse. We are missing out on a lot when judges who have something to say silence themselves unnecessarily.
MC: I will offer that, simply viewed in terms of resources and capabilities, I live in a community of one million, and we have fifteen federal trial judges, District and Magistrates combined, and we have another forty or so trial judges in our local state court, and so that is over fifty top legal professionals who have the experience and the brainpower to speak cogently on something for the public.
And I hate to think that, within their number there are one or two who may feel the impulse to write for a popular audience, but are told or have told themselves that they need to keep their heads down.
To make a lame pun, that would represent talent “left on the bench.” How can we, lawyers particularly, encourage the next Hercules, or the next set of Richard Posners giving us the benefit of their ideas outside of strict adjudication?
RK: To be blunt, lawyers can’t do very much about it. But it is inevitable that younger judges, who have grown up with social media, will view blogging and tweeting as perfectly appropriate endeavors.
For example, a Florida judge has taken to tweeting about legal and judicial matters (@SMarstiller). Judges in Georgia (@JudgeDillard) and Texas (@JusticeWillett) are likewise tweeting their hearts away.
The longer form—blogging—is sure to follow. In short, have patience. Transparent federal judicial engagement with the wider public will come via blogging, just as surely as television coverage will come to the Supreme Court.
MC: Let me heat the skillet back up as we drive toward a finale. Earlier this summer you blogged a response to a campaign proposal by Ted Cruz, a Republican Senator in Texas, who is running for President, to subject the class of federal judges like yourself who serve lifetime appointments to a review and recall process, which would be a very significant revision to the U.S. Constitution. Your response was that Cruz was unfit to ascend to the office of President.
In terms of style and timing and overall effect, this was a rejoinder that the great American argumentician William F. Buckley, Jr. might coach you into. He might have called it an “intensifier.” It certainly seemed to be a comment that drew heat to you and to Hercules from various quarters.
RK: First, as I stated in one of my later posts (here), my suggestion that Senator Cruz was unfit to serve as President violated Canon 5(C) of the Code of Conduct for United States Judges that prohibits judges from engaging in “other” political activity.
Second, although much of the blog post about Cruz fit squarely within Canon 4(A)(1) of the Code of Conduct for United States (a “judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice”), my excessive rhetorical flourish was foolish. I gave aid and comfort to those who either hated my views or hated the idea that a federal judge blogged.
On a side note, I loved watching Buckley. He was a true public intellectual. I especially liked it when Buckley and another great public intellectual, Gore Vidal, nearly came to blows on TV during the 1968 Democratic Convention. See here (look particularly at time record 10:02).
MC: At last, I’ll turn the tables on my own kind. Are there lawyers out there who should speak out more in public forums and apart from their or their clients’ personal and proprietary interests? Should the practicing lawyer endeavor toward the second status of public intellectual?
A: One of my favorite writers and public intellectuals (who, incidentally, would be insulted by me attaching the term “public intellectual” to his name) is Scott Greenfield. His long-running blog Simple Justice is consistently thought provoking. He writes from the perspective of a criminal defense lawyer but does not limit himself to such matters.
So, yes, lawyers should speak out through blogging or otherwise as it is in the public interest for them to do so. After all, one third of our government is given over exclusively to lawyers!
Michael Cavendish is an American trial lawyer appearing specially with Charon QC.