September 01, 2015

From the Bench: Judicial Transparency and Blogging Judges

A judge describes the promise and perils of blogging by judges.

Hon. Richard G. Kopf

 Download a printable PDF of this article.

I write a blog entitled Hercules and the umpire. I concentrate on American federal judges, particularly in the district courts. If you don’t like my blog or think blogging by a federal judge is unseemly or just plain wrong, blame the Canadians. Let me explain.

The best movie ever made came out in 1995. It is a deeply serious movie entitled Canadian Bacon. It stars John Candy as American sheriff Bud Boomer, who, after a beer brawl at a hockey game in Ontario, invades Canada with the silent backing of the president of the United States.

Despite these hostilities, when Canada, in the form of a Canadian law review, wrote and asked me to do a favor, I agreed. I planned to lull them into a sense of complacency by furthering “cooperation” between our two nations. So I wrote an article extolling greater transparency in the judiciary. See Richard G. Kopf, The Courts, the Internet, E-Filing and Democracy, 56 U.N.B. L.J. 40 (2007) (“[A] court finds its proper place in democracy only when the court is transparent.”).

At about the same time, I was interviewed about legal blogs—giving me more reason to ponder the subject—and I decided that I didn’t see them as materially different from law review articles or speeches given by judges on legal topics. While judges should be careful, I saw no reason why they should avoid the medium altogether.

True, blogging by judges is rare, but their use of social media is growing, albeit slowly. Judge Posner on the Seventh Circuit has blogged, while other judges have taken to Twitter, though that medium may exert a stronger pull on state judges required to run for election. In short, as the Borg from Star Trek would say, “resistance is futile.”

So, after taking senior status, I decided to take the plunge. Because judges on senior status may freely decline to accept cases under the relevant statute, I thought the potential harms that flow from recusal issues associated with blogging would be lessened, though not eliminated. Senior status was a freeing experience, at least for me.

I also resolved my concerns about the ethics of the endeavor. Having served on the Codes of Conduct Committee of the Judicial Conference for six years, I concluded that blogging could be done ethically. Remember that the Code of Conduct for United States judges explicitly permits them to “speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Canon 4(A)(1). Indeed, the commentary thereto encourages judges to do so.

Last year, the Codes of Conduct Committee gave cautionary advice about blogging but stopped short of disapproving the practice. In Advisory Opinion No. 112, Use of Electronic Social Media by Judges and Judicial Employees (Mar. 2014), the committee opined that “there are media where the user is personally publishing commentary in the form of blogs. . . . [A]lthough the format may change, the considerations regarding impropriety, confidentiality, appearance of impropriety and security remain the same.”

Reasons for Blogging

In the end, I decided to blog because I believe my five-plus years of service as a magistrate judge and two decades as a district judge can be used to provide the bar and the public with useful information. I am amazed at how little even seasoned trial lawyers know about the internal functioning of the federal district courts. As Judge Posner put it, “I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than the judiciary.” Joel Cohen, An Interview with Judge Richard A. Posner, A.B.A. J. (July 1, 2014).

Consider this as an illustration: The New York Times thought it was news that federal district judges consulted with fellow judges in their district when difficult legal issues confronted one of the judges in a particular case. Benjamin Weiser, Faced with Legal Puzzles, Judges Often Turn to Fellow Jurists, N.Y. Times (May 19, 2015). This was not news, at least to district judges. It is a very common practice throughout federal district courts. That the Times thought it newsworthy shows just how uninformed many people are when it comes to the judiciary.

While we publish opinions and hold court in the open, much of what we do and how we do it, especially at the district court level, is opaque to lawyers and laypeople alike. For example, we don’t let the public see our individual sentencing statistics without a struggle. Only the individual judge or the chief judge can request the data. I am proud that my court has resisted that idea. For each judge, we requested the data and made those numbers available to the public.

In addition to fostering greater transparency, I also wanted to explore the question of judicial role. While academics have written a lot about that at the level of the Supreme Court and courts of appeals, there is very little serious discussion of it as it concerns district courts, either in legal literature or in the popular press.

Finally, I wanted to write, in essay form and plainly, about things that make federal district judges human. That meant, perhaps, sharing too much information. But the risk was worth taking, in my opinion, because the mystique that has accreted around our positions as “federal judges” is unwarranted and unhealthy in a democratic society. While I certainly don’t equate myself or my position as a district judge with them, one might ask whether Justice Thomas (in his autobiography My Grandfather’s Son) or Justice Sotomayor (in her autobiography My Beloved World) shared too much? I think not. Far more importantly, the public thinks not too.

Grievous Missteps

Still, none of this is to say that blogging from the bench is without its pitfalls. The great value of a legal blog is the accessibility and immediacy of the message, but that can also be a huge problem. If you turn out a post a day, as I do, you feel the pressure of time, particularly if you have a day job like mine. That can cause (allow) you to write things that are ill-advised. Following are two examples, and grievous ones at that, of my missteps.

Perhaps my biggest mistake was a post I thought was clever, humorous, and gentle about what struck me as unprofessional attire favored by a few female trial lawyers. My two female law clerks—knowing that I’m actually oblivious to the clothing choices of the lawyers who appear before me—thought the post was a satirical spoof. But hundreds of lawyers, both male and female, felt it was awful, insulting, and showed a bias against women. Many wanted to turn me into a pillar of salt. Some even thought I should be impeached. Suffice it to say that the “pure heart, empty head” defense is a loser.

The other monumental screw-up was a post, following the Supreme Court’s Hobby Lobby decision, citing the Urban Dictionary and stating:

Next term is the time for the Supreme Court to go quiescent—this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.

This post enraged more than a few law professors and many others because they thought it quite disrespectful. Putting it mildly (because beating myself hurts), their disapproval was not unwarranted.

So, lesson learned: Appoint a person with good judgment to serve as a “taste and decorum” arbiter to read what you have written before you publish anything that may be highly controversial. I have adopted this position—but almost always ignore it. I am a believer in the old saying “no risk, no reward.”

Knowing why I started it and how I went astray, we can end by asking whether the blog has done more good than harm. Frankly, I can see it both ways, but some developments have been reassuring:

  • The blog has garnered a modest share of critical and popular acclaim. Although I mocked the awards big time, Hercules was the top vote-getter in the ABA’s blog contest for the topic “Courts.” Sarah Mui, And the Blawg 100 popular vote-getters are . . . , A.B.A. J., Jan. 2, 2014 (“Kopf’s posts are often unexpectedly poignant, such as an August post in which he admitted that his sentencing instincts were proven wrong by a former convict who redeemed himself.”). In 2014, Hercules took third place in the same contest for the topic “News/Courts.” After the “STFU” debacle, Tony Mauro, the National Law Journal’s longtime Supreme Court correspondent, was supportive, writing “Kopf’s is a voice worth listening to—hopefully for many years to come.” Tony Mauro, Federal Jurist Ruffles Some Feathers of Colleagues, But His Honesty Is Refreshing, USA Today, July 17, 2014.
  • My chief judge, Laurie Smith Camp, one of the brightest judges I know and certainly the judge with the most class of anyone I have ever met, has strongly supported my blogging efforts. So have other district judges, like the estimable Mark Bennett from the Northern District of Iowa.
  • Hercules has led to what I hope are illuminating discussions about courts and judges on the radio, both here and in Ireland. In this country, I appeared on National Public Radio’s All Things Considered with Shon Hopwood, a young bank robber I sentenced to many years in prison. Shon has now graduated law school as a Gates Scholar, and he secured a position as law clerk to Janice Rogers Brown on the D.C. Circuit. In a similar vein, I was interviewed on an Irish public radio station by two barristers regarding a post about my post-conviction representation of a murderer whose sentence I was able to get reduced.
  • No recusal motions have been filed as a result of Hercules and the umpire.

Above all else, I hope my blog may be helping to lift the veil shrouding our federal judiciary. With all the concealment, and the fractured nature of our body politic, it is no wonder that public confidence in most judges has fallen. See, e.g., Only 33% Think Most Judges Follow the Law in Their Rulings, Rasmussen Reps., Nov. 7, 2013. As Alexander Bickel said many years ago in The Least Dangerous Branch: The Supreme Court at the Bar of Politics, judicial review stands in stark tension with democratic theory. If we forfeit the support of the people by continuing our policy of secrecy, we might as well surrender to Canada. For me, judicial transparency, although sometimes painful and embarrassing, is an effective antidote to the toxic cynicism that abounds regarding the federal judiciary. Hercules and the umpire is my fragile attempt at such transparency.

 

Editor's Note

After submitting this article for publication, Judge Kopf stopped blogging at Hercules and the umpire. In a post in July, he wrote that Senator Ted Cruz’s proposal to subject Supreme Court justices to retention elections rendered him “demonstrably unfit to become President.” After criticism of the post, Judge Kopf acknowledged that it violated the Code of Conduct for federal judges, which proscribes publicly endorsing or opposing candidates. He then posted that court employees were questioning the blog:


There is nothing more important to me than the United States District Court for the District of Nebraska. If I have lost the confidence of our employees through publishing the blog, then I have harmed the Court. I cannot tolerate that thought, and I have therefore decided to pull the plug.

Ironically, then, Judge Kopf ran afoul of his own advice on how to thread the needle of blogging from the bench. Still, in a more recent interview, he urged others to pick up where he left off, saying judges “will do far more good than harm” to blog. Tony Mauro, Chastened Ex-Blogger Urges Other Judges to Use Social Media, Nat’l L. J., (Aug. 11, 2015).

The Kopf kerfuffle comes in a season of inflamed and especially personal rhetoric from judges. Two other very recent examples: Justice Scalia’s now well-known footnote suggesting that Justice Kennedy should hide his head in a bag for prose reminiscent of a fortune cookie, Obergefell v. Hodges, 135 S. Ct. 2584, 2630 n. 22 (2015) (Scalia, J., dissenting); and Judge Posner’s description of Chief Justice Roberts’s opinion in Obergefell as “heartless.” Richard A. Posner, The Chief Justice’s Dissent Is Heartless, Slate.com, (June 27, 2015).


Such caustic language arguably raises certain questions. Is it a new trend born of today’s overheated public discourse, or is there nothing new under the sun? Does it reflect poorly on the legal world, or do people see it as healthy and vigorous debate? Does plain vanilla judging eventually bore brilliant people drawn to a brighter spotlight—judges seem to be all over popular culture now, with memoirs, articles, operas, nicknames and bobbleheads—or does more and more colorful exposure properly demystify an Olympian judiciary, as Judge Kopf argues?


Addressing these questions goes well beyond a short editor’s note. But since this is a journal for litigators, it may be better to offer practice advice: don’t try this at home. Judges may be having fun, but if we call the other side unfit, their argument heartless, or their writing bag-worthy, sanctions might follow. At a minimum, we’re told ad nauseam (and often by judges) that hyperbole and personal attacks are poor advocacy. True, lawyers should know the difference between briefs and articles or opinions, but won’t the judicial example eventually bleed into practice, particularly for new lawyers? Oh well, as lawyers already know, it’s good to be the judge.  
        
—Martin J. Siegel, Editor in Chief

Hon. Richard G. Kopf

The author is a senior U.S. district judge in the District of Nebraska.