Judge Not Lest You Be Judged, Judge
The judge in question is the honorable Richard Kopf, a U.S. District Court judge in Nebraska. Judge Kopf has for some time maintained a blog called Hercules and the Umpire. Recently Judge Kopf wrote a post in which he opined that Ted Cruz is not fit for office. Judge Kopf’s post was motivated by Senator Cruz’s call for a constitutional amendment that would require Supreme Court justices to periodically stand for retention elections (Senator Cruz’s new slogan – “I love the Constitution, but let’s not get carried away”).
In Judge Kopf’s view, Cruz’s attack on lifetime tenure demonstrated that Cruz is a “right-wing ideologue” who is “demonstrably unfit to become President.” And that may be true. But federal judges are not quite as free as the rest of the population to share their opinions.
Canon 5 of the Code of Conduct for Federal Judges says: “A judge should not . . . publicly endorse or oppose a candidate for public office.” The policy reason for that provision no doubt is to maintain the judiciary’s independence. But did Judge Kopf violate the rule? Well, no, at least according to Judge Kopf. In response to a commenter on his blog, the Judge said:
For me, it is enough to state that I did not label Senator Cruz unfit to serve in order to oppose his candidacy for political or partisan purposes but rather to demolish and protect us all from his intemperate legal attacks on the Supreme Court. I remind you that I am not registered to vote, and I have not been registered to vote since I became a judge in 1987. My comment on his legal fitness was inextricably intertwined with my right to speak publicly on legal matters and the administration of justice. That said you are correct that I skated close to thin ice.
So, I think there are a couple of parts to the Judge’s position. As an initial matter, he believes he is free to comment on a general legal proposition. And he’s probably right as far as that goes. And the legal proposition here is the question of lifetime tenure for Supreme Court justices. In Judge Kopf’s view, the policy reasons for keeping Supreme Court justices off limits to popular vote are so clear that only an idiot would think otherwise. And to take it one step further, idiots are not fit for the office of presidency (oh man, I can’t wait to read the comments on this one. I’ll make it easy “If idiots aren’t fit to be president, how do you explain ___________ ).
So the question becomes, can a Judge speak his mind on an issue and not at least implicitly be viewed as opposing a candidate who disagrees with that position? Judge Kopf drew additional attention by explicitly naming Cruz, but had he said “anyone who thinks Supreme Court Justices should stand for election is unfit for the office of president” would it have mattered? Judge Kopf’s initial response had a “no harm no foul” aspect to it.
But that was then. More recently, Judge Kopf announced that he is pulling the plug on his blog. Apparently, at a retreat for employees of the Nebraska District Court, the question was posed whether the Judge’s blog had become an embarrassment for the court. A majority of employees indicated by raising their hands that it had. And so, the blog will cease.
I hate to see that resolution. It seems to me that making courts more transparent and accessible is a good thing. I find it hard to believe that Judge Kopf couldn’t continue with his writing and stay within ethical guidelines. At this point, I suppose we’ll never know.