Like Cher, Article III federal judges answer only to themselves and to God — assuming, that is, they aren’t atheists — otherwise they’re not answering to the Almighty either.
Which leads me to question why given how untouchable they are, some folks, granted mostly lawyers are nonetheless so exercised over Federal Judge Richard Kopf having told the U.S. Supreme Court it should ‘STFU.” One nose-out-of-joint conservative law school professor was so peeved at Judge Kopf he even went for the cheap ad hominem and called him “dummKopf.” I hope Steve Bainbridge doesn’t really think he’s the clever first one to think up that pun when he ranted it was the judge who should STFU.
The 68-year old Judge Kopf is retired but on senior status since December 1, 2011. This means he’s working at-large as a judge but assigned to any inferior federal court while receiving his retirement salary.
Hercules and the umpire.
But besides working as a senior justice, he also has a personal blog called “Hercules and the umpire” where he waxes either eloquent or inappropriate depending on your sociopolitical point of view.
Following the U.S. Supreme Court’s latest controversial decision involving a closely-held corporation’s personhood and its attendant religious beliefs concerning Obamacare-mandated contraceptives in Burwell v. Hobby Lobby Stores, Inc., the very opinionated Judge Kopf invoked the acronym, STFU, to argue the nation’s high court is “causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid.” But it was that acronym that got people’s underwear in an uncomfortable bunch.
For the uninitiated, STFU is simply short-hand for shut the F-bomb up. Oh, my, that a judge would deign to use such language? At least it wasn’t in any judicial opinion.
Cebull didn’t blog.
Maybe if the now retired 70-year old Federal Judge Richard Cebull had blogged instead of emailing on his office computer, he might’ve kept his racist robes and his own senior status another day? Just kidding.
You’ll recall an investigation by the 9th Circuit Court of Appeals Judicial Council revealed Judge Cebull had sent hundreds of “racist, sexist and politically inflammatory” e-mail messages over four years while serving as a federal judge in Montana. Parenthetically, Native American advocacy groups are still petitioning to see all the ex-judge’s racist emails but the 9th Circuit keeps saying ‘No.’ They’re supposedly confidential. Oh well, at least they’re just ‘secret’ and not ‘lost’ like Lois Lerner’s missing IRS emails.
“Dirty old man.”
It’s not like Judge Kopf hasn’t been here before. A self-described “dirty old man ever since I was a very young man,” he got people worked up just a few months ago when he posted “On being a dirty old man and how young women lawyers dress.”
In that post, he wrote “I have three rules that young women lawyers should follow when considering how to dress for court: 1. You can’t win. Men are both pigs and prudes. Get over it. 2. It is not about you. That goes double when you are appearing in front of a jury. 3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.”
Filters? What filters?
Let me first inoculate myself against accusations of ageist stereotyping. I’m well past my middle-earlies. That said, perhaps age should at least, be discussed here.
Besides our own anecdotal evidence about crazy uncles ruining holidays “with outlandish behavior and boorish opinions,” studies support what some of us have long suspected, aging brains not only drive forgetfulness but blunt behavior.
In one study, “Aging, Executive Functioning, and Social Control,” researcher William von Hippel found that physiological changes such as aging-related atrophy of the brain’s frontal lobes, which he calls “the seat of executive functions” are associated with “age-related inhibitory losses.” This can lead to unvarnished prejudice, “off-target verbosity” and “socially inappropriate remarks.” For an unscholarly, inelegant take on the same topic, also see “Old People Saying Shit They Should Not.“
Any wonder that 75-year old Federal Judge Richard Posner recommends judges after 70 be required to take “a test of mental acuity every five years.”
Judge Robert Malcolm Kerr of whom it was said, “He administers a kind of rough and ready justice that irritates many and pleases few.”
But when it comes to the berobed, the combination of age-related inhibitory deficits with hubristic-minded ‘black robe disease’ also called “Judge-Itis” — why that’s downright pyrotechnic. In some quarters, judge-itis has morphed into Judge Judy-fication. For examples, remember King County, Washington’s real-life Judge Judy Eiler or the very recent Brevard County Florida Brawling Judge John Murphy. As historian Barbara Tuchman said, “A greater inducement to folly is an excess of power.”
So if media-celebrated ‘no nonsense’ ‘tough-talkers’ on the bench can gloss over Model Code of Judicial Conduct Canon 2’s sub paragraphs on courtroom decorum and demeanor, why can’t judges with personal blogs?
“Everyone was thinking it, I just said it.”
Not to say that 60-somethings and older have cornered inhibitory deficits. Take San Diego California’s Judge DeAnn Salcido, a member of Generation X who was reprimanded for using her courtroom to create audition tapes for a Judge Judy-style television show.
Unabashed, she said, “I have a big mouth. I don’t know when to be quiet. I’m telling you everything I know. That’s just the way it’s going to be. I don’t know how to change that. It’s a defect in my personality.” Methinks she needs a blog, too.
And then over the weekend, I finally had enough. I’d been following an anonymous Millenial and once-upon-a-time wanna-be lawyer turned author/blogger. I once thought his blog was refreshingly funny even with all the profligate F-bombs. But then his profane posts kept crossing the line from witty real-world impertinence to nasty hyperbolic meanness. And after reading his last post describing what he’d be willing to do if someone paid off all his student debt, I finally said “No mas” and unfollowed.
So when it comes to blurting out whatever pops in your head regardless of the consequences, I’m now inclined to think age is irrelevant. As a society, thanks to social media, online anonymity and no-longer-taught etiquette, we have no filters.
Which gets me back to Judge Kopf. In his latest post, “Please stop,” the blogging judge says he’s reconsidering his blog after all the fallout from his STFU post. In his post, he reprints a communication received from a Nebraska lawyer who he says has his “highest respect.” In his missive, the lawyer appeals idealistically to Judge Kopf’s ‘better angels of our nature’ and asks him to stop blogging — lest it bring discredit on the public’s understanding of the judicial system.
But from my quick unscientific review of the comments to this post, it seems most readers favor his continued blogging. So as Judge Kopf contemplates what he’s going to do, not to worry. It’s not like public confidence in the Supreme Court isn’t already at a historic low or that judicial irreverence means the public will think as Dickens’ Mr. Bumble did that “the law is an ass.” I think he should keep blogging.
Photo Credits: Laughing Fool, source http://www.wellesley.edu/DavisMuseum/collections/provenance_research.htm at Wikipedia Commons, public domain;American magazine ad for the film Hercules (1959), HerculesMagazine.jpg, Wikimedia Commons, public domain;Hans Conried as Uncle Tonoose, Wikimedia Commons, public domain;Robert Malcolm Kerr, Vanity Fair, 1900-11-22m Wikimedia Commons,Public Domain; The Wounded Angel,Hugo Simberg, Wikimedia Commons, public domain.
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