Federal judge reflects on need for and perils of candor from the courts

Judge Richard Kopf is sick and tired of people thinking judges are something special.

“They’re just people trying to do a job,” Kopf said recently. “This mystique that surrounds us ought to be blown up.”

Kopf, a senior judge in the United States Court for the District of Nebraska, is approaching three decades in service to the judiciary. He recently agreed to sit for an interview with NET News.

Kopf’s reputation for blunt talk spread to a national audience three years ago when he started a blog. Few sitting judges routinely write about their personal lives, the obligations of the job, and opinions about the justice system. The blog, Hercules and the Umpire, at times attracted national attention over its three-year run.

Kopf described the online column as “an experiment to discuss in very frank terms, sometimes even profane terms, what it’s like to be a federal trial judge.” The blog will not be updated but the over 1,000 items written since February 2013 as well as comments from readers remain online.

The interview at NET’s studios happened to fall the day after Kopf decided to “pull the plug” on Hercules. He’d been surprised to learn employees with federal courts in Nebraska had let Chief Judge Laurie Smith Camp know they felt the blog had become “an embarrassment.”

The blog logged over 1,000 individual entries since it started in February 2013, covering everything from whether jurors should be able to ask questions during a trial to contemplating the benefits of medical marijuana to his wife’s battle with rabbits in the garden. (See sidebar below).

Among the most polarizing articles:

• After Congress listed federal court employees as ‘non-essential’ during the government shutdown in 2013, Kopf wrote “it is time to tell Congress to go to hell.”
• An attempt at well-meaning advice on professional courtroom attire for female attorneys caused an uproar in part because Kopf described himself as “a dirty old man.”
• After the controversial Hobby Lobby decision giving priority to religious beliefs over insurance coverage for contraception, Kopf said the U.S. Supreme Court “is now causing more harm to our democracy than good” adding “as the kids say, it is time for the Court to STFU” and providing a link to the online Urban Dictionary to decode the profane acronym.
• In the last week of his blog, Kopf declared Republican U.S. Senator Ted Cruz “unfit to become president” after the candidate’s remarks about the “lawlessness” of the Supreme Court in the wake of recent rulings.

NET News Senior Producer Bill Kelly began the interview asking Kopf about the circumstances behind halting his online writing. Kopf heard of the concerns from federal employees after an annual retreat with Chief Judge Laurie Smith Camp.

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JUDGE RICHARD KOPF: They were talking about honesty in the workplace and particularly in uncomfortable situations. Our chief judge was there, Laurie Smith Camp, who has been a great supporter of me and the blog and she opened it up for questions and I think was surprised when somebody raised their hand and said, "Do you think that Hercules and the Umpire is an embarrassment to the court?"

BILL KELLY, NET NEWS: That’s the phrase they used?

KOPF: That’s my understanding. She asked for a show of hands of the employees who thought it was an embarrassment to the court. To use her term, a great majority of the people there said they thought it was an embarrassment. Laurie thanked them for their candor and assured them that she would communicate to me their sentiments, which she immediately did by email.

She did not ask me to pull the plug on the blog. She’s been very supportive. I said I thought there is nothing more important to me than the United States District Court for the District of Nebraska and if I’ve lost the confidence of the employees because I write this blog, then I think I’m duty-bound to pull the plug.

I then called one of my career law clerks who has been with me now for 20 years and he and I discussed… the pros and cons. He agreed with me that under the circumstances, I had to pull it, if I cared more about the court than I cared about the blog. And I care far more about the court.

KELLY: Did that reaction from the court employees kind of sting?

KOPF: I mean it was a punch in the gut. You know, I’ve been with the court now since 1987 and prior to that, I had worked for the U.S. Court of Appeals for the Circuit for two years. And I thought I was generally approachable by anyone. If someone had a real concern about what I was doing they would communicate it to me. But in fairness to the employees, and this is one of the reasons I wrote the blog, ironically, is that there’s a mythology that surrounds federal judges that is almost a big bubble and I think it frightens people including our employees to raise anything that might be sensitive. My suspicion is that because the blog is very frank, there was just a natural hesitancy to bring it up with me.

KELLY: So, no regrets about taking on the blog in the first place?

KOPF: No, it was very much an experiment and there were some good parts of that experiment and some not good parts. It didn’t end the way I wanted it to, but that’s the nature of experiments. You know, you test your hypothesis and you look at the data and then you know.

KELLY: One of the things that you’re known for bringing to your legal writing is just blunt plain English and sometimes your sense of humor is very much in evidence in some of these. Why is that important to kind of strip aside some of the legal language and put Richard Kopf’s voice into an opinion?

KOPF: That’s an interesting point. There are two reasons. Number one, I’m not that bright. Writing is thinking for me. It’s not: I think and then I write. I frequently write in order to clarify my thoughts and the simpler that I can make a sentence the more I understand so it helps me try to reach the right decision.

Secondarily, I think it helps the lawyers and the litigants to understand more clearly what it is that I’ve done. And to the extent that it has any public interest I suppose there’s a third case, a third area, and it’s more accessible to say a newspaper reporter or some person such as you can sit down and read it and you don’t have to have a Latin dictionary.

KELLY: A quick example. There was a case in 2003, a dad up in Columbus, Nebraska who’s upset that his kid gets thrown off the baseball team for being caught drinking. You write, in the process of throwing the case out before you went to trial, “except in the most compelling cases, public schools should be run by those assigned by elected officials to run them and not by geezers wearing black robes.”

You could have just said, 'this is not my jurisdiction.' Why the punch line?

KOPF: Well, first I like to write. I like words. But what I was trying to get across to the litigants, particularly to the parents, was that it’s not the job of the federal courts to second guess various agencies or state entities or local entities.

I mean, how in the world am I to judge this? This was, I think, the kid’s second offense drinking a beer. Let’s assume that it was. I can’t remember. And so they threw him off the team. Well, I mean, I’ve never coached baseball. I just don’t have any experience that would permit me to judge whether a coach or a school district disciplinary (policy) was appropriate or not.

KELLY: You say that in a number of decisions. You people should be able to work this out yourselves. Why are you even here?

KOPF: I’m very much a legal realist and a person who thinks that the courts ought to be the last resort, for a variety of reasons. First among them, the truth is we’re no brighter than lots of people who aren’t judges but our decisions carry enormous weight sometimes. To the extent people can agree, we avoid unnecessary decisions that can cause trouble. I’m very much a believer in a minimalistic approach.

KELLY: There were a number of posts about your cancer diagnosis and treatment and how it was affecting you and the like. That was a rather remarkable bit of candor for any public official. Why’d you choose to do that?

KOPF: I chose to do it because if I was going write the blog about transparency, about judges being utterly transparent, then how could I not write about that. It potentially affects my ability to perform my job. I’ve written about my children. Why should I write about them? Well, they’re part of my life. They’re part of what informs me.

When I sit on the bench and I sentence people to prison, and sometimes for very long terms including life terms, my whole life informs what I do. And if I want to be transparent about how I go about doing that, it seems to me that those sorts of things humanize judges and makes it clear that we’re no different than anybody else. We just happen to know a senator or two. I’m saying that, intending to be funny, but in my case, I knew a congressman. I didn’t even know a senator. My goodness.

In any event, the best way to say it is the idea of transparency from my perspective is "all on."

KELLY: Did dealing with cancer in the past year change I’ll say your view from the bench?

KOPF: That’s an interesting point. (long pause) At the University of Nebraska Medical Center, I saw one of the world’s greatest experts on the type of cancer I had, which was classic Hodgkin’s Lymphoma. And he happens to be a friend of mine. He said, you can go through this, you’re going to get cured, and you can take something valuable or not. And what you will value is life, if you remember if you force yourself to remember what you’re going through now. That statement I think was apocryphal. I think he’s right. Going through cancer, a fairly serious cancer, remembering it and being so thankful to the doctors and nurses who treated you, if you can remember that, I think you’re a better person for it.

KELLY: Does it affect your perception as a judge?

KOPF: (Long pause) I think so, but in broad terms. The older I get and the experiences begin to accumulate, cancer is one of them, the more uncertain I am about everything. As a young man, I was pretty sure I knew everything. And I bet I was really annoying. Oh I’m sure I was.

KELLY: That was the new kid attorney in Lexington?

KOPF: Well yeah. I had been a debater in college and that makes you act like a jerk. In any event, the older you get the less certain you are that you’re right and other people are wrong. And I think that’s a good thing. So in that sense, cancer’s part of that seasoning, shall we say.

KELLY: (Has there been) any talk of you stepping down?

KOPF: Oh no. No. As a matter of fact, when I took senior status at age 65, what I’ve told the court I would take a full case load until I was 70 presuming the chief judge agreed that I should have a full case load and she has. (After that) I would gradually reduce that caseload until I was 75, at which time I would fully retire. I announced that when I turned 65 so everyone in the court would know what I was planning. Frankly I’ve seen judges stay longer than they should. At 75, I think my faculties will be sufficiently acute, but beyond that, I’m not sure and I don’t want to put myself or anyone else in position of embarrassment.