Judge under fire for blog post on Hobby Lobby case
A federal judge turned part-time blogger who garnered unwanted national attention this week after using a profane expression to tell the Supreme Court to, effectively, “shut up” has decided to take his own advice and shut up for a while.
“Blogging will be light while I figure this out,” U.S. District Judge Richard G. Kopf of Nebraska said this week after coming under fire from fellow jurists and legal experts for writing a blistering criticism of the high court’s recent ruling in the Hobby Lobby case.
Kopf told readers Monday that he was prompted to curtail his Internet musings by a note from a lawyer he held in the highest respect who explained to him that people “expect judges not to be publicly profane, lewd or disrespectful.”
The Hobby Lobby decision, which gave religious business owners the right to refuse to provide contraceptive coverage for female employees, had many critics. Kopf’s July 5 blog post focused on how the court’s five male, Catholic, Republican-appointed justices handed down a ruling that “looks stupid and smells worse. To most people, the decision looks stupid ‘cause corporations are not persons, all the legal mumbo jumbo notwithstanding.”
He ended with a bit of advice to the justices: “As the kids say, it is time for the Court to STFU,” he said, providing a link to a definition of the four-word phrase.
Last year, Kopf, an appointee of President George H.W. Bush, took senior status with a reduced case load and started his own blog, “Hercules and the Umpire,” with the aim of describing the job of a federal trial judge.
The Hobby Lobby posting was not the only one that raised eyebrows. He got into trouble earlier this year with an overly candid account of a day in court, describing “a very pretty female lawyer who … wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.” He added that he has been “a dirty old man” for most of his life.
A few readers praised Kopf’s candor for standing up to the Supreme Court, but others said he should resign or be impeached. The incident raised questions about whether impartial, black-robed jurists can thrive in a blogosphere that often places high value on quick analysis and provocative comments.
“Blogging is not for everyone,” said UC Irvine law professor Richard Hasen, a prolific blogger on election law. “I respectfully suggest that Judge Kopf either stop blogging or retire from the bench.”
Ohio State University law professor Douglas Berman, who blogs on criminal sentencing, says he is a fan of Kopf and encouraged him last year to begin posting online.
“He’s eager to demystify the judiciary, and I wish more judges would do that. It’s good to be transparent,” Berman said. “But he may have gotten too enthralled with the lure of the blogosphere, which believes that the more provocative you are, the more attention you garner.”
For some, Kopf’s personal insights and strong opinions breached judicial ethics. They said the judge would probably be required to step aside from hearing future cases that grow out of the Hobby Lobby decision or involve religious exemptions.
In March, the Administrative Office of the U.S. Courts updated its code of conduct, advising judges not to go online and “engage in dialogue that demeans the prestige of the office or comment on issues that may arise before the court.”
But court officials say that it is up to each judge to decide what is appropriate. They also said they did not know of other judges who blogged regularly, other than U.S. 7th Circuit Judge Richard Posner in Chicago, who writes widely on economic and legal issues.
“I have no problem with a judge expressing views on a blog,” said New York University law professor Stephen Gillers, an expert on judicial ethics. “The question is what he says. Unfortunately, blogs, unlike books and law review articles, encourage intemperate language.”
The court’s code of conduct says that judges must not act in a way that calls into question their “impartiality, temperament or fitness to serve,” Gillers noted. “Kopf’s word choice and tone cast doubt on both his temperament and fitness.” And his comments about women, Gillers added, were “way out of bounds.”
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