Ethics Dunce: Federal Judge Richard G. Kopf

"Oh dear...and he looks like such a NICE federal judge!"

“Oh dear…and he looks like such a NICE federal judge!”

Richard G. Kopf is a senior district court judge on the U.S. District Court for the District of Nebraska, and a blogger. He is also,I would say obviously, an Ethics Dunce. Why?

He told the U.S. Supreme Court to shut the fuck up.

He really did.

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions. As lawyer and blogger Rich Hasen wrote,

“Just like a member of Congress should not yell out “You lie” to the President during the state of the union regardless of how much that member disagrees with the President, our social fabric depends upon expressing disagreement in a constructive and respectful way.”

Hasen and others writing about Kopf’s undignified and offensive attack on the Supreme Court have noted that he caused an earlier controversy by writing about how he likes female lawyers appearing in his court to wear short skirts and to reveal as much of their “ample breasts” as possible. I don’t think this is relevant either. OK, he’s sexist jerk and a dirty old man. The judicial system is crawling with them, and yet he is the only one who has told the highest court in the land to shut the fuck up.

There is hope for the judge yet. A lawyer whom he knows and respects wrote him a private note clearly and persuasively explaining why Kopf’s  intemperance was harmful and wrong. To his credit, Kopf received permission to publish it on the blog, and did. The letter said in part…

“It is not that a judge, any more or less than anyone else, does or does not have thoughts like the more controversial ones you write about in your blog; it is that a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions. It is entirely proper for us to expect that judges not be publicly profane, lewd, or disrespectful; and it is entirely proper to expect judges’ words and deeds to be consistent with the high ideals of integrity and justice. In fact, the success, or lack of success, of our legal system largely depends on judges’ meeting these standards”


Kopf says he is taking these words to heart, and will be considering over the next few days whether to end his blogging and, I fervently hope, to apologize to SCOTUS.

And the nation.

Post Script: Even more disturbing than the lack of decorum and professionalism by the judge are the majority of the comments following the critical letter. Most of them say, in essence, that the Supreme Court deserves to be treated like this, which was exactly how Rep. Joe Wilson’s boorish and irrational supporters reacted to his “You lie!” breach of Congressional ethics and the duties of citizenship.. If the objective is to speed a complete breakdown in public respect for our institutions, divisive partisans like Kopf  and Wilson are doing a bang-up job. Neither they, nor you, nor I will like where this will lead if our leaders and officials don’t come to their senses. Obviously, Kopf’s blog has done plenty of damage already.


Pointer: Washington Post (Volokh)

Sources: Election Law Blog; Hercules and the Umpire


82 thoughts on “Ethics Dunce: Federal Judge Richard G. Kopf

  1. It wasn’t the world’s brightest comment, in the sense that judges have a duty to decide every case brought before them over which they have jurisdiction, and to not decide a dispute is to decide it. (Problem is, the Supreme Court doesn’t decide ~99% of petitions that actually need deciding, reducing “law” to whatever an irritated band of judges want it to be on any given day.) But to call it “unethical?”

    “STFU” was appropriate, though. The RATS wing of the Court has reduced that once-respected body to the joke of the Western world. My problem with the Judge is that he is afflicted with the cancer of cowardice, and hasn’t said enough of what needs to be said. Hopefully, he will someday find his voice and become the next Richard Posner.

    • 1. Richard Posner would never tell anyone, not just SCOTUS, to shut the fuck up.
      2. “STFU” was appropriate, though. The RATS wing of the Court has reduced that once-respected body to the joke of the Western world. That’s pure partisan bias, and ignorant partisan bias at that. These are tough cases, “the Western world” is 100% irrelevant to U.S. law, and the opinions this term, while I do not agree with all of them, are certainly legitimately decided, and the only embarrassing moments have come from the dissents of Sotomayor and her unprofessional lament about affirmative action.

      • Pure partisan bias?” I hate to disappoint, but I am a Republican precinct commiteeperson, who has been a state convention delegate on numerous occasions. My bias is expressed by Justice Breyer:

        Judges do not simply announce a legal conclusion. They reason their way to that conclusion in an opinion written for all to see. The obligation to provide legally defensible reasoning in a publicly accessible format prevents a judge from escaping accountability. Indeed, a good judicial opinion is transparent and informative. It shows that the decision is principled and reasoned. The strength of this reasoning matters.

        Stephen Breyer, Making Our Democracy Work: A Judge’s View 83 (2010).

        Long study of judicature has revealed that whenever a judge has a dog in the hunt, s/he never fails to pet it. As a judge will never advance a weak argument in support of a position s/he despises, the weaker the argument presented, the more likely the judge is “constitutionaliz[ing] … personal preferences.” Silveira v. Lockyer, 328 F.3d 567, 359 (9th Cir. 2003) (Kozinski, J., dissenting from den. of reh. en banc). Professor Llewellyn writes that judges routinely “manhandl[e] … the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.” Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960); accord, Richard A. Posner, How Judges Think 144 (Harv. U. Press 2008) (“fig-leafing”). Reason is the soul of law, 2 J. Bouvier, A Law Dictionary 209 (15th ed. 1883), and the Court’s more partisan decisions have been notoriously short on this valuable commodity.

        By that metric, the Rehnquist and Roberts Courts are the most activist in history. They defenestrated the Seventh Amendment in Parklane Hosiery — even that was too much for Rehnquist! — jettisoned a century of states’ rights jurisprudence in Bush v. Gore, rewrote the Eleventh Amendment to their liking in the Seminole Tribe line of cases, severely limited access to federal court in Iqbal and Twombley … the list goes on and on. And in an act which can only be described as unprecedented, the Court recused in an official capacity action! Cf., Cheney.

        With all respect, it sounds to me as if you suffer from what could best be described as Layman’s Disease: “The layman’s constitutional view is that what he likes is constitutional and that which he doesn’t like is unconstitutional.” [Justice Black]. You like the outcome in Hobby Lobby, and so, you defend it, assiduously ignoring its absurdities. America has lost respect for our courts, and with good reason. They are no longer the redoubts of reason we saw in their heyday.

        • 1. I don’t “like” the result in Hobby Lobby, and never said I did. I object to the ignorant misrepresentations of the decision, and have flagged them as such. This is not a political site.

          2. I’m not a layman. I’m a J.D., an active member of two bars, and a former law professor.

          3. I’ll withdraw the partisan part of my diagnosis, with apologies, but your endorsement of obscenities hurled at decisions you don’t like stands. It’s indefensible, and your random footnotes don’t defend it. Nor is your assessment of the so-called activism of the Rehnquist and Roberts court persuasive, and it is certainly taken from partisan sources.

          4. The criticism of Bush v. Gore is a good litmus test. My field is American government, and as I watched the mess in Florida unfold, I became certain that at some point the Court would have to step in and just settle the thing, whoever was ahead, because the system was breaking down, and SCOTUS is more than a court: it is also a wing of the government. And that’s what happened, and should have happened. Everyone owes the Court a debt of gratitude. I was shocked it wasn’t unanimous, and Breyer, among others, should be ashamed of himself.

          5. That kind of (sui generis) case requires some degree of activism, which various sides deplore according to the dog they have in the hunt. But politicizing every decision and claiming bad faith is deadly to the rule of law, and critics like you and Kopf are playing with fire.

          6. I’ve read every major SCOTUS decision of the Roberts Court, and every dissent. Roberts’ most attacked decision, in the individual mandate case, disproves your thesis. Indeed, any of the decisions do. They are all fairly reasoned and defensibly decided, and if a mistake is made, as some undoubtedly are, “shut the fuck up” is neither an appropriate or a constructive response by anyone, especially a federal judge.

          • And there is this: I have no option but to assess your motives based on your comments. You, however, have an obligation to check 1) my background and credentials and 2) what I have written and expressed among the over 4700 posts here before you accuse me of “Layman’s Disease.” I know the Constitution well, and I am no more sympathetic with conservative breaches of it than liberal.

            • That you write for the Weakly Double-Standard does give me some insight as to where your bread is buttered, and your bio reveals that you were an adjunct at a third-tier law school for a few years (a little credential inflation, from an “ethics” professor?), teaching one and only one class which had nothing to do with constitutional law. Moreover, your advertised expertise is in criminal defense. Do you honestly think I could put you on the stand as an expert in ConLaw?

              If the other side brings Tribe, Dershowitz, or Randy Barnett, it isn’t going to be pretty. The legendary Harvard arrogance set aside, with all respect, we’re on fairly even terms here. Spare me the pomp, and let’s just talk turkey.

              • You’re the one throwing around “pomp,” buddy. American U. is not a “third tier” university; I taught legal ethics, which you could probably take with some benefit—what credential inflation?—and when did I claim to be a constitutional law scholar? I do not write for the Daily Standard, which is fine magazine: one short piece I wrote was published there. Now who’s inflating my credentials?

                I teach legal ethics to lawyers, law firms, bar associations, corporate law departments and federal and state agencies every week, give the mandatory ethics program to the new admittees of two jurisdictions, and the issue here, in case you’ve forgotten, is indeed ethics and judicial ethics, not Constitutional law. Kopf’s complaint wasn’t even constitutional—he made the fatuous suggestion that SCOTUS should avoid controversial and difficult cases.

                That’s your last comment, Ken. I am not obligated to accept gratuitous insults from my visitors here…you don’t get to tell me to stfu, and you have to earn the right to insult me, my work, my integrity, and qualifications. You are a smart ass, but you are still an ass, and an arrogant one. Find another colleague to abuse—you abused your privileges here.

                  • I’ll take your word for it.

                    When I was recruited by the Washington College of Law, it was represented to me as a second tier, quality law school. I didn’t check the various rankings, which, as you know, are junk, at the time, but I found nothing in either the administration, faculty, physical plant or students at WCL to suggest otherwise. Not that it would have made any difference to my course itself, which was challenging, tough, interesting, and a lot more enlightening than the ethics course I took, from a famous professor, at the “first tier” school I attended.

                    So what’s your point, exactly, Jay? That I’m unqualified to declare a judge who violates professional standards and common civility as wrong because he tells SCOTUS to shut the fuck up, due to the subjective rankings of the Washington College of Law?

                    My assessment of the judge is falling by the second as I experience the quality of character displayed by his fans.

                    • As one of the Judge’s vocal supporters, I take personal umbrage at that remark.

                      First, if you spend more time in the theatre than the courtroom, and your only recognized area of legal expertise is ethics, you are probably not in a position to offer informed comment as to the current state of our courts.

                      Second, no political institution is deserving of respect simply because it exists. The courts have lost our respect, and if Scalia tells his critics to, well, you know, he deserves as good as he gets.

                      Third, in a lower-tier law school, an adjunct professor is simply a lawyer with niche expertise. If you pull rank like you did with Ken, who obviously knows better (and wrote a guest post for the Judge, and has considerable gravitas), you should not be surprised by a harsh reaction.

                      Civility has always been a two-way street.

                    • You have presented an argument that is 100% based on rationalizations and irrelevancies.

                      1. Ethical and civil conduct in a professional setting doesn’t change, regardless of “the current state of our courts,” whatever that is supposed to mean. If SCOTUS judges are calling up federal judges and telling them to go fuck themselves, that’s not a change, that’s a breakdown in ethics and institutional stability. The same goes for federal judges indulging their muse by calling the highest court of the land obscenities. There is no change that can justify that. The judicial code hasn’t changed. Your position is fanciful, and, honestly, hard to take seriously. Or to respect, given what it is defending.

                      2. Your sly ad hominem attack to marginalize my professional opinion is a slimy tactic, but then, all of the Judge’s supporters have acted this way here, for whatever reason. I spend all my time studying, analyzing, writing about, preparing materials on and teaching legal ethics, including judicial ethics. I don’t have to be in a courtroom on a regular basis to know, for example, that a judge challenging a lawyer standing before him to step outside and settle things is unprofessional conduct. USAID chose me, when the Mongolian Judiciary asked for an American expert to train judges, prosecutors and defense attorneys in the principles of legal and judicial ethics, and I have been asked back twice. I guarantee you that the Mongolian jurists wouldn’t believe that an American judge would display such incivility and disrespect to the high court. They understand. You apparently do not.

                      3. Your #3 is as a-ethical as a statement can be. A) You are wrong. Core institutions must be guaranteed respect, even when individuals within those institutions disappoint us. History, experience, government theory and common sense demand it. You are advocating a suicidal and irresponsible theory that essentially points to revolution. B) Who is “our’? The Courts are respected a lot more than lawyers, or Congress, or the news media. You can’t maintain respect for those you disagree with, and that is a malady. C) So because Scalia tells off unnamed critics to do an anatomical impossibility, you feel that justifies a federal judge in telling him and eight other justice superior to that judge to shut the fuck up? What a pathetic argument, from any angle. Here, go memorize the rationalizations list. You need it.

                      4. I didn’t pull rank with Ken in any way. He implied that I was a layman. I pointed out in specific terms that I was not. Since he simply regurgitated disconnected opinions from various sources in an unfocused and illogical manner, I really didn’t think he was a lawyer at all. In ANY law school, by the way, an adjunct is a lawyer with niche expertise. I am not pulling rank when I inform you that I was on the Dean’s staff at Georgetown for five years, and the criteria there for adjuncts was exactly the same as the criteria at American, and in the ethics area, there was considerable overlap.

                      5. No, actually, a professional is required to remain within professional standards of civility, regardless of his target’s breaches. Civility, and Ethics, 101. Two wrongs don’t make a right.

                    • Ken either has a loyal set of friends, or Ken orbits in the glory of the subject of your post as do this swarm of supporters and we are witnessing a similar situation as the Applebee’s waitress fiasco.

                      Also! Hooray! Someone actually did use an ad hominem so we could identify it as such!

                    • I forget how many lawyers are ethics-challenged prima donnas. It’s unpleasant being reminded. Imagine…there are actually members of the legal profession who would defend that kind of language being aimed by a judge at the Supreme Court… and are snotty about it, as if its the most reasonable thing in the world. It’s pure liberal derangement (and if Ken was really a Republican, he filled out the wrong registration card.).

          • JM: “Roberts’ most attacked decision, in the individual mandate case, disproves your thesis.

            Not at all. It is actually reminiscent of an act by the other Justice Roberts: the infamous “switch in time that saved the Nine.” If Roberts had followed the RATS wing, any semblance of respect for the Court would have gone out the window. Even he knew that that one was a bridge too far. Like his namesake, he was playing a larger game.

            JM: “I’m not a layman. I’m a J.D.,

            We’re all JDs on this bus. And yes, I read about 30 cases a year. Your thesis is risible, in my judgment.

            JM: “ I’ll withdraw the partisan part of my diagnosis, with apologies, but your endorsement of obscenities hurled at decisions you don’t like stands. It’s indefensible, and your random footnotes don’t defend it. Nor is your assessment of the so-called activism of the Rehnquist and Roberts court persuasive, and it is certainly taken from partisan sources.

            Pretty much every judge on the planet has said what I just said, from the likes of Posner and Kosinski to Wald, Silberman, Corrigan, and a chorus of lesser judges and law professors; the cites would read like a Brandeis brief. Justice Kagan was correct: Bush v. Gore was merely the tip of the iceberg. As Justice Eismann of the Idaho Supreme Court recently said,

            There is a saying that hard cases make bad law. That saying is incorrect. It is courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose. A court must have the integrity to decide cases by applying the law to the facts.

            Nield v. Pocatello Health Svcs. Inc., Opinion No. 20 (Ida. 2014) (Eismann, J., dissenting). While the coded obscenity is ‘over the line’ for a federal judge, the substance of the criticism is what matters.

            JM: But politicizing every decision and claiming bad faith is deadly to the rule of law, and critics like you and Kopf are playing with fire.

            The house of cards has already burned to the ground. In certain classes of case, I can tell with virtual certainty who won if you can tell me which Party put the judge on the bench. And this is absolutely bipartisan: I can go all the way back to United States v. Callender, for which Justice Chase was justifiably impeached. Judges will always vote in their interest, as Thomas Jefferson accurately observed two centuries ago. Whereas Thomas Paine once proclaimed “that in America the law is king,” Thomas Paine, Common Sense 36 (P. Eckler Co. 1918) (1776), Judge Posner wryly 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 A. Posner, How Judges Think 1 (Harvard Pr. 2008). Why are arguably the two most brilliant men on the federal bench–Posner and Kozinski–wrong?

            The amusing thing is that Kopf doesn’t have the ‘nads to publicly criticize his colleagues in even the most outrageous of situations. Ours is the only nation in the civilized world where a judge can sit in judgment of his own cause, even where other judges are available and authorized by statute to hear it. That offends the jurisprudence of Zimbabwe and Putin’s Russia, but Kopf swallowed his whistle, and fired cross words at those who took him to task for it.

            If you think Bush v. Gore was a coherent decision, that reveals your bias. The “intent of the voter” standard was the gold standard for a century, throughout the nation, and it has always been the prerogative of states to count their own votes. For such strident advocates of states’ rights as Scalia and Thomas to cobble this exception together was astounding, and Thomas had a personal interest in the outcome of the case (wife Virginia was involved in vetting candidates for the new Administration) which, by any objective measure, should have resulted in his recusal. Sorry, but that dog won’t hunt. Yeah, I see Layman’s Disease … and even barristers can be afflicted with it.

            This pandemic is bipartisan. One black female liberal Obamabot judge actually wrote in defense of sovereign immunity that “the Bill of Rights clearly does not contain any congressional mandate expressly waiving sovereign immunity.” Try to think of how absurd it would be for the First Congress to submit a Bill of Rights knowing that it would be unenforceable on account of this alleged flaw, and you see “outcome-based jurisprudence” written all over that inanity.

            • You mistake cause and effect, and even then, you are wrong. I’m sure you know it, too. Who appointed Harry Blackmun, for example? Souter? I wouldn’t be at all surprised to see Kagan take a turn to the right over time.
              I don’t deny that there is a lot of outcome-based jurisprudence—Justice Ginzberg is one of the main offenders. Your contempt for judges and denial of their integrity is bizarre, and unjustified. You must have been mugged by some awful judges. My sympathies.

              It still doesn’t justify resorting to obscenity. You manage articulate and forceful critiques without stooping to them…why defend that tactic?

            • 1. The Roberts accusation is pure garbage. It didn’t save the “Nine,” or anything other than the ACA, which, as subsequent events have shown, does not deserve to be saved. But it was a valid decision on his part.
              2. “Pretty much every judge on the planet has said what I just said.” Baloney. Simply untrue.
              3. “The house of cards has already burned to the ground.” Cynicism isn’t an argument. This isn’t true, and obviously isn’t true. It’s a rationalization for bad behavior: “It can’t get any worse.” Yes, it can.
              4. No, your jaundiced opinion of Bush v. Gore reveals YOUR bias, and citing the “intent of the voter” standard in relation to the partisan way that “intent” was being determined–by political hacks on both sides making up standards, while you are simultaneously decrying partisan court decisions (!) is really beyond belief. As subsequent counts proved, there was NEVER going to be a definitive count, the nation was facing uncertainty in its leadership for months, with the probable result being a GOP President elected by the House and a Democratic VP elected by the Senate, with a dysfunctional government resulting. The Court did the brave and responsible thing in the best interests of the nation.

    • I respectfully disagree and if anything, I find that he is not candid enough. Like all judges, he tends to circle the wagons around the Tribe, and bites his tongue on a routine basis to almost embarrassing effect.

      If you actually read his posts, you would know that he didn’t take a position on the case itself. Rather, he pointed out that the “optics” were bad: “The Pope’s Army,” doing His Holiness’s bidding. The institution is already seen as more of an unelected legislature–Judge Bork Judge Bork described as a slow-moving and genteel coup d’êtat. Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003). And though he was writing about his State’s legislature, what Alexander Hamilton said in his Letters from Phocion applies to judges, as

      their rights and powers are [defined in the Constitution]; if they exceed them it is a treasonable usurpation upon the power and majesty of the people, and by the same rule that they may take away from a single individual the rights he claims under the Constitution, they may erect themselves into perpetual dictators.

      Alexander Hamilton, Second Letter from Phocion (Apr. 1784), in 2 Works of Alexander Hamilton 322 (John P. Hamilton, ed. 1850).

      Criticism of our public institutions is more a duty than a luxury, and when it involves the judiciary, the bench and bar must be relentless. Judge Kopf is performing a service, not unlike Posner and Kozinski. While the stfu is a bit ‘over the line,’ he should be more strident.

      • “Shut the fuck up”—and that’s what it was, so stop using the cover-initials: if he called Justice Thomas an “N-word,’ would that similarly be “a bit over the line”?—is not “a bit.” It would get any lawyer who said the same thing in Kopf’s court or any other held in contempt, and almost certainly suspended.

        And Hobby Lobby is treasonable now? No wonder you like “Shut the fuck up.”

        • Let’s not overstate the case, Counselor. Can we at least agree that the Article III judicial Power is limited to the power to apply the law of the land to the facts of a case? Any time a judge crosses that line, it constitutes tyranny. Locke observes:

          AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. …

          Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.

          John Locke, Second Treatise of Government §§ 199, 202 (1695). James Madison concurred, observing that

          preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.

          James Madison, Address to the General Assembly Of the Commonwealth Of Virginia (undated), reprinted in 2 James Madison, The Writings of James Madison (1783-1787) at 122-23.

          Is Hobby Lobby over the line? Possibly. Are other pronouncements from the Roberts Court over it? Definitely. The opinions speak for themselves. By way of example, the surreal aspect of Alden v. Maine was that Clarence Thomas, a descendant of slaves, endorsed this remarkable paragraph:

          The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.”

          Alden v. Maine, 527 U.S. 706, 755 (1999). We needed to send federal troops to Little Rock to integrate the public schools, and somehow, we can magically rely on the good faith of the States? To state the case is to refute it.

          I use the Kozinski metric: Flagrant fouls are presumptively intentional. In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1185 (9th Cir. 2005) (Kozinski, J., dissenting).

  2. I’ve got hope that he’ll do the right thing and apologize. The kind of men that react constructively to criticism are few and far between, and he took that letter like a champ (and not like an internet troll). That shows a degree of maturity, reason, and humility that I wouldn’t have expected from a guy that told the Supreme Court to stfu.

    • Let’s see if he can resist the uncivil cheering section that his own blog seems to have created. The comments are pretty depressing. It has only been recently, and primarily under Obama, when Supreme Court decisions have been treated as partisan screeds, rather than being given the due weight and respect they all deserve and require. Now there is a whole group that feels SCOTUS can be treated as just another political entity to be lobbied, manipulated and demonized, thanks to bloggers like Kopf, irresponsible demogogues like the idiotic Harry Reid, who complained that Hobby Lobby was decided by “five white men” (if you don’t toe the partisan line, you can’t be black anymore, Clarence), and, of course, the President himself, who attacked the Court, to its face, in a State of the Union message. “STFU” was just the next step on a perilous road paved by others. Kopf getting off it would be a start.

      • Don’t look now, Mr. Marshall, but your bias is showing. The “idiotic Harry Reid?” How about Ted “Green Eggs and Ham” Cruz? To be a Senator is to be a professional demagogue.

        Hobby Lobby was a horrible decision, for the reasons given by none other than Antonin Scalia:

        The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).” We first had occasion to assert that principle in Reynolds v. United States, 98 U. S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id., at 166-167.” [Ore. Dept. of Employ. v. Smith]

        The claim that the least restrictive alternative is to raid the public fisc is risible, and this opens the door to polygamy. There is no obvious limiting principle, and if I had a mistress to go along with my wife and my wife was down with it, I’d already be in Utah federal court.

        Attacking this increasingly political body for no longer being a court, but a collection of self-appointed Platonic Guardians, is a duty of citizenship. If you approve of activism when it goes your way, you create a precedent which will eventually be used against you.

        • I get it, Ken. You’re playing lawyer, without using valid legal reasoning. All this random appeals to authority do not make your argument.

          1. Harry Reid was cited 1) because he called Clarence Thomas a white man, which IS idiotic 2) because he attached gender bias to a decision that had none 3) because he is the leader of the Senate, which makes his statements less responsible, and 4) because he is, in my assessment, an idiot, and his political views have nothing to do with it. Mitch McConnell is held in similar contempt. You stooped to the worst kind of silly rationalization: Because I focus on an irresponsible Democrat, I have to balance it with an immediate critique on a Republican, or I’m biased. I’ve criticized Sen Cruz here.

          2. Scalia’s words in the unrelated case neither contradict the decision in Hobby Lobby or make your case that it was a horrible decision (I don’t agree with the balancing in the decision, but it was not “horrible.” What is horrible is the Religious Freedom law that led to it.)

          3. This is ridiculous: “The claim that the least restrictive alternative is to raid the public fisc is risible, and this opens the door to polygamy. There is no obvious limiting principle, and if I had a mistress to go along with my wife and my wife was down with it, I’d already be in Utah federal court.” The right to get free contraception and birth control under the ACA is so important that the costs should be imposed on employers even when it violates their rights to their religious beliefs, but not important enough that taxpayers should pay for it? And how, exactly, will this open the doors to polygamy? (Because, you know, it doesn’t and won’t.)

  3. I don’t think this is going to do his career as a federal judge a lot of good. However, a little mocking of high political figures like Speaker of the House John Boehner’s comments about Barack Obama’s inaction in an important crisis could be a good thing. If a man is failing at a job and the media ignores it, somebody with clout has got to say something.

    • Judge Kopf is suffering from Stage 3 lymphoma and besides, judges are as insulated from outside pressure as anyone on the planet. He can say what he damn well feels like because, as a senior federal judge, he is at liberty to refuse to hear cases. But any pressure on the self-appointed gods of Mount Olympus is a good thing, and the servility advocated here is demeaning to the institution.

        • Legally, nothing. However, if one does not have long to live, there might be a tendency to not hold back opinions one otherwise might reserve for one’s will – the only time you know you’ll be able to escape the consequences of letting everyone know what you really thought of them.

          • That is, of course, why deathbed confessions are admissible. Judge Kopf has nothing to lose. He’s not going to be named to SCOTUS or even the Eighth Circuit and to be blunt, he is facing the prospect of imminent death. To be obsequious is an affront to the public. As Judge Roger Miner of the Second Circuit put it:

            In my opinion, one of the most important societal duties of lawyers is the duty to criticize the courts. It is my premise that informed criticism of the courts and their decisions is not merely a right, but also an ethical obligation imposed on every member of the bar.

            Roger J. Miner, “Criticizing the Courts: A Lawyer’s Duty,” 29 Colo. Law. 31 (Apr. 2000). I would add only that it is not just the duty of the bar, but of everyone who holds that highest office of “citizen,” to ensure that our public institutions function as intended. In the stirring prose of Justice Jackson, “if the patriots of 1776 risked little by action, we risk much by indifference.” Robert Jackson (Attorney General), Independence Day Address (Washington, DC), Jul. 4, 1941.

            • ALERT: This was Ken’s last comment. I banned him. He is addicted to the appeal to authority, which is a lawyer’s malady, and exhausting: I have neither the time nor the interest in dredging up published rebuttals, which are out there, but pointless. He’s made his main point, in which he is clearly wrong: he thinks it’s swell for a Federal Judge to be disrespectful to the U.S. Supreme Court, because Ken doesn’t respect the Court. Got it.

              He lost his commenting privileges following a post in which he chose to belittle me on a personal basis…and that after I warned him that he was treading close to the troll line. Too bad. But Ken wasn’t interested in give and take—he was just interested in showing off, and, like Judge Kopf, denigrating the Supreme Court. He can do that elsewhere.

              • I always feel bad when I do this, and I just re-read Ken’s posts to be sure that I wasn’t being unfair in his case. I wasn’t. Every post, especially those directed at me, came with a patina of contempt and superiority, and we neither need nor have to tolerate that here.

                • Uh, you mean pAtina, right? Like the coating of color on the Statue of Liberty? The only nice expression of pEtina I can think of is Irra Petina, Russo-American singer/dancer, otherwise, it’s a not-so-nice term.

                • Thank you, Jack. Reading Ken made my mind bleed. Never have I seen so many logical fallacies dredged up and hurled about with such reckless abandon. It beggars belief, and it made the comments an unpleasant read.

                  I enjoy a good back-and-forth as much as anybody, but that was absolutely aneurysm-inducing.

                  • I am sure you could show us a few. I saw a lot of admissions from judges to support the core assertion that the system is broken, which is a view I agree with.

                    • 1. Those were not “admissions,” and every one of them was out of context.
                      2. Opinions aren’t proof of anything.
                      3. The system, presumably the legal system, doesn’t work perfectly. That doesn’t mean it’s broken.

              • There’s a certain amount of satisfaction in seeing somebody say something you don’t dare say yourself because it would be not in your best interests. Everybody likes the idea of resisting authority/standing up to the man/whatever, but in the end it’s not a good thing. BTW, I made the post I made as just a wry observation on people who speak out when they have little to lose, not as Ken-bait.

  4. Judge Kopf may have the right answer, even if he is wrong on the facts of a given case.

    In 1973, the Supreme Court imposed legal abortion on all fifty states. Did Roe v. Wade settle the issue once and for all? It didn’t, and the abortion debate has become heated and toxic – including just about every Republican Supreme Court nomination since 1990 (Thomas, Roberts, Alito). Vicious tactics, like leaking an FBI file to Nina Totenberg, have been used.

    Perhaps SCOTUS should know when to STFU on some issues. Can anyone seriously think that the likely 5-4 ruling that will address state marriage amendments will not result in a similarly toxic debate, as gay rights activists will seek to oppose any SCOTUS nominee who might overturn that decision?

    • Not a good analogy, though. There was no reason for the Court to manufacture a Constitutional right out of whole cloth as it did in Roe, and to short-circuit a cultural debate that had to play out. In the Hobby Lobby case,two federal laws were in conflict, and that is where a Supreme Court should and must step in.

      In any event, ethical, professional and respectful criticism is to be phrased as “SCOTUS ought to show more restraint and allow some decisions to stand when doing so would cause less harm than the societal upheaval of reversing them.” NOT “Shut the fuck up!”

      • The Supreme Court recognizes pre-existing rights. It does not create them from whole cloth. The right to marry is a pre-existing unenumerated right, retained by the people. So, imho unfortunately, is the right to an abortion.

        Your extreme right-wing bias is showing. Regardless of what you think of his methods, Ken pegged you.

        Over at the Kopf blog (I pinged over), someone pointed out that Justice Scalia threw a F-bomb at his critics. If it is ethical for him, why is it not ethical for Judge Kopf?

        • 1. Who said it was ethical for Scalia?
          2. You do comprehend the difference between saying “You lie!” to the President and the same to a journalist or critic, right? So I presume you also understand that saying stfu to a neighbor and the Supreme Court, if you are a judge, are not equivalent. Yet your comment would not indicate that.
          3. SCOTUS held that the DOMA was unconstitutional as a matter of Equal Protection, not based on Constitutional a right to marry. The state wouldn’t have to handle marriage at all. That abortion is a “right” is the law of the land, but the justification for the holding was week, and as Ken would argue, there is a lot of authority for that proposition.
          4. I have no right-wing bias, and a fair perusal of my posts would prove that. Ken pegged himself as an arrogant jerk, and nothing more.

            • That’s ridiculous. They have a right to whatever benefits and privileges Congress permits non-gays, and that right is equal treatment under the law, not marriage. There isn’t a constitutional right to Social security, but if the government gives it to whites, it has to give it to blacks too,

                  • “Marriage is one of the ‘basic civil rights of man.'” Loving v. VA. If it is a fundamental right, strict scrutiny applies. The government must be able to show why a gay couple can’t marry.

                    • A basic civil right is not a fundamental right. The right to marry is included in the First amendment as a sub-strata of Freedom of Religion…there would be no breech of rights if the government bestowed no special benefits on marriage and didn’t engage in the marriage process in any way. Nothing in any law stops gays from getting married, or makes gay marriage illegal, which is what the loving case was about—marriage between races being illegal. Bad analogy.

        • The unenumerated right to marry does NOT include the vast number of legal privileges and responsibilities that come with a marriage certificate in the various states. There is certainly a right to declare yourself married. There is no right to compel other people to recognize it as valid or to assign special rules to it.

          “Equal privileges” is certainly a valid argument to be made, but I tire of the constant pretense that legally granted privileges (ability to file taxes jointly, presumption of inheritence, making medical decisions in some cases, etc) are a matter of rights. It’s instructive to take most arguments about gay marriage and mentally replace the word right with privilege and see how persuasive the arguments are.

          For the record: I don’t think the government should be involved in marriages except through enforcing contract law. Given that it has established such a special pseudo contract with explicit benefits accruing to it, and convincing them to drop it in general is a non starter, I’ll settle for applying it to a broader class of people as a local optimum. I just think the use of the word “right” to describe it muddles rather than clarifies the issue.

          • This seems like basic constitutional law to me. If the right to enter into contracts is fundamental, and the right to enter into a marriage contract was ruled to be fundamental, then the government can only impair that right and then, only when it can show a constitutionally acceptable reason for doing so. What is the compelling state interest in impairing the ability of same-sex couples to marry, and enjoy the benefits other married couples enjoy?

            • Marriage should just be a contract in my opinion, but isn’t currently. Hence the phrase “pseudo contract”. If it were a contract, it wouldn’t be subject to capricious changes to it’s terms, and could actually be explicitly different for various couples. It was not ruled to be a fundamental right.

              Granting a benefit to straight couples is NOT the same thing as hampering gay couples. As jack noted above, DOMA was thrown out based on equal protection, which also covers special benefits. In other words, it’s not a right, but you still can’t be unfair about it.

              • “Basic civil rights of man” sounds pretty fundamental to me. Neither your personal opinion nor mine mean all that much. At least, it should not be subject to others’ provincial religious beliefs.

                Marriage is a contract, with default terms written by each state. Property ownership and inheritance varies from state to state, but the parties can override that.

                I don’t know how it is logically possible for a law to be thrown out on equal protection grounds if the parties are not similarly situated.

                • Incidentally, announcing that you’re “through here,” saying farewell and continuing to comment is bad theater, and annoying. If you want to participate, I welcome it and am happy as a clam, but announcing that you have no further use for the blog having argued a single issue and then continuing to argue is not cool.

                • I already mentioned the reasons I don’t think it’s the same as an actual contract. Further, having a marriage contract is NOT the same as being married. The union of two people in a permanent relationship is severable from the legal privileges associated with being in such a relationship. Common law marriages also diverge from regular contract law, in that you can become married wihout explicitly agreeing to do so.

                  Can you point out that phrase to me in the decision on DOMA? Since it was in quotes I rather assumed it was an actual quote from somewhere…

                  Click to access 12-307_6j37.pdf

                • Forgot to add: define similarly situated. I’m perfectly fine with the assumption that a gay couple who have been living together and called themselves married for 10 years are similarly situated to a straight couple who have been living together and called themselves married for 10 years, neither with an explicitly signed marriage license. Similar does not mean identical. Apparently the USSC mostly wouldn’t have a problem with it either.

  5. Thank you for the courtesy of your response.

    1. Where we disagree is in our assessment of the state of our courts. As I see it, they no longer serve their intended function in our society and thus, are no longer deserving of our respect. While profanity is never necessary, servility is never warranted.

    2. The problem with “ethics” as a discipline is that there is no such thing as an expert. I don’t have to be a certified expert in judicial ethics to know that it is wrong for a judge to sit in judgment of his own case, and that a system that permits it is no longer functional. Where your expertise lies, there is no “recognized authority,” and your opinion is only as strong as the reasoning behind it. What I am suggesting is that you cannot opine on if you are not in the courtroom is whether our courts have collapsed as an institution, and are no longer deserving of our respect simply because they exist. Forgive me if you see that as “slimy,” as it was certainly not intended as such, and I will attribute it to an unfortunate lack of precision in my arguments.

    3. I must respectfully disagree with your assertion that our institutions are deserving of respect simply because they exist. SAVAK, the KGB, and the Brownshirts were official arms of their governments, and the only emotion they elicited was fear. A court which no longer serves as a court, save for name only, has forfeited that deference. As Mark Twain put it: “Loyalty to the country, always. Loyalty to the government when it deserves it.”

    4. Ken said something about you suffering from Layman’s Disease, which is not an assertion that you are a layman. Many lawyers are solicitous of court decisions short on coherent argument, but they applaud the rulings anyway because they like the outcome. Maybe your misunderstanding precipitated the row.

    5. Two wrongs don’t make a right, but the one wrong may justify the other.

    6. Is it even a “revolution”? Abraham Lincoln once remarked that “We the people are the rightful masters of Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who would pervert the Constitution.” The courts have failed us in their charge, and the only reason 27% of the people still support the Supreme Court is that they are ignorant of their failures.

    7. The nature of Internet discourse makes for disjointed essays. What Ken has done is present admissions by judges that our system is broken, and in no way worthy of our respect. What I see is cite, cite, cite, cite, cite, to which you scream “Baloney,” to which he responded with five more cites. On what basis do you claim that the system is not broken?

    • 1. You need a new profession. The judicial system in Nuremberg in 1936 was broken. The current system is nowhere close. It is getting more scrutiny than ever, which is causing more criticism, which is causing the system to be better.

      2. It’s something of a problem, I agree. Unlike law, ethicists don’t have a trade guild to block entry. They also have no certification, so there are a lot of hacks and phonies. Of course, law does have certification, and there are still hacks and phonies. There is a large body of information to learn in legal ethics, and it is a discipline. It just wasn’t a profitable one until recently. It’s a very young field. Give it time.

      3. Institutions worth saving must have the benefit of the doubt to have any chance of surviving. Otherwise bias-based, emotional and subjective hyperbole like “the court is no longer a court” will always undermine them.
      4. THAT was a misunderstanding. The post about “Harvard arrogance” and attacking my integrity crossed the line. Yes, respect should be earned, but trust has to be earned too. New visitors here who arrive spitting contempt are sent packing. Disagreement is fine, even welcomed. I allow more license with time and proof of good will.

      5.“Two wrongs don’t make a right, but the one wrong may justify the other”. If it’s wrong, it’s not justified, if it’s justified, its not wrong.

      6. The public is ignorant about the courts, and distrust is encouraged by federal judges treating the Supreme Court like a rival gang member.

      7. I’m finished with Ken.

      • 1. The system is broken. As one writer observed at Althouse, “I believe all judges are biased. And I’d rather have my fate decided by twelve of my idiot peers.” Others: “Jurisprudence in the US is on life support and will soon be dead.” “[T]he judicial system needs to be significantly reformed to very much reduce the power of judges.” “The danger to the ‘system’ is that people might realize that law has nothing to do with justice…” It is hard to find any evidence that the system is getting any better.

        2. Institutions had the benefit of the doubt, but have squandered it. The Catholic Church. Penn State football. The New York Times (Jayson Blair). Our nation’s courts. When a judge can sit in judgment of his own case, no such benefit can be conferred. In the incisive words of Judge Kopf, “law is not politics, but that assertion now requires proof, not belief.”

        3. Is distrust conferred by the Judge’s comments? The distrust is already there. Denial is not just a river in Egypt.

        4. Were the quotations taken out of context? Not Posner’s. I read the book, and it encapsulated the entire theme. Not Llewellyn’s. And if you read the Atlantic Monthly article, you know that that was the entire topic. If you say that the quotes were taken out of context, the burden of proof is yours.

        5. Judge Kopf served on the Eighth Circuit Judicial Conference. He is an expert on judicial ethics where it counts, though, like all systems of self-policing, it is toothless. He may not be perfect at it, but he is trying to keep his comments within the confines of the Canons. If you think the system should be given the benefit of the doubt, shouldn’t he be given the same benefit of the doubt?

        6. As the Judge is back to blogging, and I don’t anticipate any more F-bombs, I’m done here, as well. Thank you for your time and attention.

        • 1. The system is broken because The Atlantic, Judge Posner, and a bunch of progressives who don’t like the First and Second Amendment say it is. Got it.

          I’m not convinced. And the aspect of the system that works the best may well be the Supreme Court.

          2. He’s an expert on judicial ethics, but he thinks it’s responsible for a federal judge to publicly demean the Supreme Court. Well, you just proved your earlier point about ethics experts!

          • The system is broken because it is. The commentators explain why.

            Perhaps a better analogy would be a water supply. It doesn’t take a lot of mercury or lead in the water to render it unpotable. The courts’ decisions are such that our rights under law are no longer secure, which is why it is broken. You need to be able to trust the law to plan your affairs, and even a few bad cases imperils that trust. Perhaps as an ethicist, you can speak to why it is better to lie by omission, or to cover up the truth like a Cardinal Law or Joe Paterno.

            If a judge sits in judgment of his own case, and the system fails to correct that obvious rights violation, it is broken. All the commentators are saying is that, yes, our system is broken.

            As for Judge Kopf, I’ll let him speak for himself. “[W]hy should anyone trust us if we judges … are not utterly open to examining our motivations and mistakes before the public for whom we serve?” Why indeed, Sir? Putting the stfu aside, I don’t see how you can argue that judges criticizing other judges is in any way harmful. The discipline of peer pressure might even improve the judiciary.

            • 1. The system is broken because it is. The commentators explain why.
              No, they don’t, and neither do you. They just take the negative view based on their own biases, and advocate one side of the argument. What is broken, and what isn’t, and how would a “fixed” system work better.

              2. Perhaps a better analogy would be a water supply. It doesn’t take a lot of mercury or lead in the water to render it unpotable. The courts’ decisions are such that our rights under law are no longer secure, which is why it is broken. You need to be able to trust the law to plan your affairs, and even a few bad cases imperils that trust. Perhaps as an ethicist, you can speak to why it is better to lie by omission, or to cover up the truth like a Cardinal Law or Joe Paterno.

              Without details and specific, that’s a useless question. I have addressed Paterno’s conduct widely, because I know the details of that. You are throwing sand. Who are you talking about? What rights? When? Who?

              3.If a judge sits in judgment of his own case, and the system fails to correct that obvious rights violation, it is broken. All the commentators are saying is that, yes, our system is broken.

              The system does not permit the judge to sit in judgment of his own case. Are you speaking of our corrupt Department of Justice and the Obama Administration? That’s not a broken system. That’s corrupt people lousing up a system intentionally. What “obvious” rights violation? If this is still about Hobby Lobby, that’s utter nonsense.

              4. As for Judge Kopf, I’ll let him speak for himself. “[W]hy should anyone trust us if we judges … are not utterly open to examining our motivations and mistakes before the public for whom we serve?” Why indeed, Sir? Putting the stfu aside, I don’t see how you can argue that judges criticizing other judges is in any way harmful. The discipline of peer pressure might even improve the judiciary.

              You can see exactly how it’s harmful, as it allows a professional bound to strengthen the system to weaken trust in it for political or partisan reasons. The motives behind any decision are always mixed and complex, and impossible even for teh individual to determine. If the decision is made in good faith and the judge involved makes a good faith effort to identify biases and get past them, then that process need not be “open,’ and shouldn’t be.

              And you can’t put “stfu” aside, because that’s the issue at hand. I didn’t say that a judge can’t criticize another judge, though personally, I think it’s unprofessional and inappropriate except in extreme circumstances.

              • “The system does not permit the judge to sit in judgment of his own case. Are you speaking of our corrupt Department of Justice and the Obama Administration? That’s not a broken system. That’s corrupt people lousing up a system intentionally. What “obvious” rights violation? If this is still about Hobby Lobby, that’s utter nonsense.”

                Then how does one explain Vaughn Walker ruling on Prop 8? In essence, he was deciding if he and his same-sex partner would have the option to go for every tax benefit that comes from marriage.

                • It still wasn’t his own case.
                  Check that issue on Ethics Alarms…my position, a minority one in the legal and judicial ethics firmament, was that Walker should recused. Courts held otherwise, though they did agree that he should have disclosed his interests, if I recall.

              • Yes, judges can sit in judgment of their own tort cases. Why? Because the Supreme Court no longer performs the job of error correction. Lower courts routinely flip the Supremes the bird, regularly burying their openly disrespectful dissents in “unpublished” opinions. The official law doesn’t change, but your “rights” are always subject to judicial veto.

                This isn’t mere theory. It happened to Ken. The funny part about this is that Judge Kopf wouldn’t even criticize the Court’s failure to correct it. We have an absolute right to procedural due process which, in the real world, is absolutely meaningless.

                The way to fix this problem is to require the Supremes to review every appeal, and issue published opinions with precedential effect. Lower courts would be more careful, as all they would be doing is creating more work for themselves. Do you honestly believe that the Supremes would have affirmed Ken’s case on appeal if they had to do it in open view? If you do, you are even more cynical than I am.

                Here’s the rub: If it can happen to Ken, it can happen to you or me. And it happens to a lot of Kens, though it is seldom that egregious. The only rights we have are the ones we invoke and the courts enforce at need. But if we can’t be confident that the courts will enforce those rights, we will naturally fear to invoke them. Even a few bad cases like his render all rights insecure.

                This change won’t fix the judicial activism problem entirely, but when a supreme court judge spends 95% of his time correcting errors, he will have few opportunities to write the law in his own image.

                • Some “may” have presided over their own cases, but they still “can’t”—its a flat out ethics violation. Give me a case cite or a news link.

                  Judging an appeal based on one’s consistent judicial and legal philosophy is not “making the law in his own image.” Judicial activism is what those who disagree with a decision use to legitimize it. Did you object to the Miranda decision? How could there be a more activist opinion than that? Or Roe?

                  And isolated instances of judicial misconduct don’t prove that a system is “broken.” SCOTUS defended many rights this term, as well as the rule of law. In a conflict of rights and law case, whoever loses will feel his or her rights are being violated. Judge Kopf’s solution is to avoid such cases,a nd leave them to whichever lower court screwed up last. It’s cowardly, and the only argument for it is that unlike in teh past, partisans and unscrupulous pols will assert that the decision was illegitimate. Nobody but the John Birch Society and the Klan did this after Brown. Now both sides do it, and you and Ken want more of that, which I think is wildly irresponsible.

                  • In a recent ABA interview, Judge Posner confessed: “I’d say that for me, for everybody in the judiciary, there’s probably a high error rate.” But the Supreme Court has declared that it will not correct errors, no matter how egregious. And we’re supposed to trust this system?

                    I agree that Judge K’s solution is daft, and have told him as much. If you bring a case before a court, you have an absolute right to have it decided in accordance with law. And that includes the Supreme Court. A decision of a judge is not necessarily a judicial decision, and as Ken observed above, “to not decide a dispute is to decide it.”

                    JM: Some “may” have presided over their own cases, but they still “can’t”—its a flat out ethics violation.

                    Not only that, it was a criminal civil rights violation. But absolute power corrupts absolutely, and ethics don’t count for much to those who don’t have to answer to anyone. The problem with this system is in the lack of personal accountability. Judge Kopf is a coward of the worst sort, and Ken spanked him pretty hard for it:

                    “Judge K: “I don’t want to get into Ken’s case because I fear that I will spend all my time looking into that matter.”

                    How long does it take you to read 323 words?

                    With all respect, Judge Kopf, you don’t need to know a thing about the merits of my case to spot a procedural due process violation; all you need to know is that state supreme court justices who were named as defendants in a tort claim purported to decide the appeal. As “it certainly violates the Fourteenth Amendment … to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case,” Tumey v. Ohio, 273 U.S. 510 (1927),[1] the only way it could not be a violation is if one of two recognized exceptions applied.

                    The first is the ancient “Rule of Necessity,” providing that “wherever it becomes necessary for a judge to sit even where he has an interest —where no provision is made for calling another in, or where no one else can take his place—it is his duty to hear and decide [a case].” United States v. Will, 449 U.S. 200, 214 (1980) (citation omitted). In Colorado, judges of the Colorado Court of Appeals are authorized to “serve in any state court with full authority as provided by law,” Colo. Rev. Stat. § 13-4-101, and it is a consistent practice in other states with analogous statutory or constitutional provisions for conflicted supreme court justices to recuse.[2] As non-conflicted judges could have heard my case, the Rule of Necessity cannot apply by definition.

                    The second, you mentioned: “The judge should not remove himself or herself if there is reason to believe that the judge was named only to cause the judge to disqualify himself or herself.”[3] But as my original lawsuit was filed in federal court, and the only reason it ended up in state court at all was owing to pendent jurisdiction, this exception cannot apply, either. Ergo, if it exists, my absolute right to procedural due process[4] was violated.

                    There it is—323 words, apart from endnotes. That’s my grievance. At the risk of going Marbury v. Madison on you, my questions are:

                    1st. Do I have a right to procedural due process and if so, was that right violated under the (judicially noticed!) facts related above?

                    2dly. If that right was violated, am I entitled to a remedy at law and if not, why not?

                    3dly. If I am entitled to a remedy at law, under what countervailing legal authority, if any, may a federal judge lawfully withhold it?[5]

                    4thly. Is there any Article III judge you know who is literally too stupid to figure out this simple logic puzzle?

                    5thly. If the rest of us are obliged to follow the rules (e.g., your “ban”), by what lawful authority are federal and state judges exempt from this obligation?

                    6thly. If a judge harbors a contempt for the Constitution sufficient to willfully disregard the limitations placed on his powers by the Due Process Clause, do you seriously believe he will present the facts of a case honestly if it doesn’t serve his purposes? and

                    7thly. Why do federal judges insist on doing their best Mike McQueary imitations when confronted with irrefutable evidence of wrongdoing by a colleague?

                    Number 7 is what offends me the most about judges. Dietrich Bonhoeffer noted that “[s]ilence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.” Anyone “who knows the right thing to do and fails to do it” sins. Jas 4:17. Indifference to injustice and the suffering it engenders is “what makes the human being inhuman.” You swore an oath of fealty to the Constitution, not your Order. As Judge McShane put it,

                    “I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure.”

                    Can you not see this in me, Judge Kopf? Am I not entitled to the protection of the Constitution? To “equal justice under law?” Am I truly that unworthy of the essential dignity afforded a man? To fundamental fairness? By what right does your Order ration the blessings of liberty?”

                    The case is Smith v. Mullarkey, out of Colorado. I’m afraid I don’t have a citation handy. (Judge K is so afraid of having to answer that he excises every post mentioning Ken.)

                    In the Federalist, Madison writes that “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” This is why I say our system is “broken”: there is no way to control our judges. This is a structural problem. How many times does this have to happen before you will admit that there is a problem?

          • Unfortunately, the ‘bunch of progressives’ are doing their best to brain wash society into believing that the First and Second Amendment are just old writings that we can choose to by-pass via the court system. In their words and in educators words to their students, the Constitution and Amendments are just an old piece of paper that has no relevance for this day and age and, generally, doesn’t apply to our modern day society here in the U.S.A.

  6. What is a “fundamental” right? Isn’t the right to own property and with it, the right to enter into contracts, “fundamental,” and if not, why not? Contracts can be regulated and even prohibited under the Commerce Clause, but on what legal ground can you regulate the marital contract? Incest produces mentally feeble children, likely to become wards of the state, so there is a compelling state interest there. What is the compelling state interest that justifies a ban on same-sex marriage? None of the court decisions have identified any. And if you grant statutory benefits to married couples, how do you justify withholding them from same-sex couples without violating the Equal Protection Clause? I thought that that was settled in the DOMA case.

    In Loving, the Supreme Court declared that it was a social relation, which as near as I can tell, has nothing to do with the penumbras of the emanations (or is it the other way around?) of the First Amendment protection afforded individual religious practices. I have a hard time finding it there. How do you get there?

    Marriage only became a sacrament in the 1500s. To conclude that it is in any way inexorably linked to Christian religious practice seems difficult to me.

    • You’re all over the place. Nothing since Loving has ever interfered with the right of two adults of sound mind to make a marriage contract, or whatever they want to call it, and be left alone by the state. The issue is whether the state calls it “marriage” and that the laws give it the benefits and status that the definition warrants under law. In Loving, the state made a social contract illegal, banned it, thus infringing the right to contract, infringing other rights, like Equal Protection, which had the effect of abusing the right to “marry” or whatever you call it. That’s not what is going on with gay marriage. I’ve attended three gay marriages in Virginia—Virginia doesn’t recognize gay marriage from a civil standpoint, but it cannot make a gay marriage that is church sanctioned illegal—which would be a First Amendment breach. And it doesn’t. It just doesn’t recognize it for the purposes of benefits and state enforced rights specifically attached to the state of civil marriage, which Virginia restricts to opposite sexes.

      The Lovings were sentenced to prison. Surely you see the distinction.

      • It seems to be a distinction without a salient difference. Loving held that the right to marry was fundamental, severely limiting the State’s power to discriminate. Moreover, in a state-sanctioned marriage, third parties have to recognize it.

        How you can recognize one set of marriages for purposes of having state benefits but not another and not run afoul of the Equal Protection Clause is unfathomable to me.

        • I’m not sure where the confustion arises, so I’m going to list out the important points I can think of.

          1. Marriage is both a social institution AND a state government granted license with associated special treatment.
          2. The first is basically the right to declare yourself a committed couple, as recognized by anyone who freely chooses to do so.
          3. Declaring yourself married does NOT mean everyone else is compelled to recognize it.
          4. The government granted license is a sign of social approval that grants special privileges.
          5. Most of the privileges can be gained through regular contract law.
          6. Governments have in some cases instituted parallel systems that theoretically differ only in name.
          7. When regular contract law and civil unions do NOT provide equal benefits, there is a reasonable argument that Equal protection applies.
          8. The phrase is “Equal protection of the law” not “Equal protection of rights”
          9. The former is significantly broader, and avoids defining what is or is not a right.
          10. Loving vs Virginia did not separate the two. It dealt with laws making even the first version of marriage a criminal act. There is a ethical difference between making something illegal, and declining to reward it.
          11. Further, Loving arguably used the definition of marriage in use at the time, involving a husband and wife. It’s entirely plausible that the judges at that time would have laughed anyone suggesting it allowed gay marriage out of court.
          12. Current limits on Gay marriage deal only with the legally granted privileges, and the use of the word marriage to define those privileges. If you want to call your civil union a marriage, the states don’t actually care. 13. Those limits are not a ban in the same way that not mandating insurance coverage for bicycle helmets isn’t a ban on bicycle helmets.
          14. Third parties aren’t required to recognize any marriage if they choose not to. Non-discrimation law may require it to be all or none.

          Does this help clarify where I stand? I missed that Loving was the source of your “fundamental right”, rather than the DOMA decision.

    • Mr Bouldergeist, Apparently, you have never read the Old Testament – which scholar’s claim to be back in B.C. time, way before the 1500’s. The Old Testament shows the ‘ritual’ of marriage. To say that a sacrament recognized by the Catholic church made it official, from my perspective is ridiculous. The First Amendment says congress shall make no law for religion or against the free exercise there of.

  7. One thing from an article on Judge K’s blog this morning that might give you a laugh: “For a judge who wants publicity, Bauer had this wry advice: “Use very unusual language or say something really outrageous. That’s going to make the paper.” (STFU, anyone?)

    • That is funny. The commenters on Althouse’s blog almost unanimously believed that the “stfu” was intended to attract publicity…which magnifies its evidentiary value as proof of wretched judgment.

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