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Jul 15, 2015

Judge Quits Blogging, Again; But It Still Can Be Done

Federal district court judge Richard G. Kopf has announced that he will stop writing his blog after being criticized for a controversial post: the second time that he was made such an announcement.

Kopf's most recent announcement came three days after he published a post blasting Senator and Republican presidential candidate Ted Cruz for his criticism of the U.S. Supreme Court's decision legalizing same-sex marriage nationwide, with the judge declaring that "Cruz is demonstrably unfit to become President."

The post was criticized by several observers, including Washington Post "Volokh Conspiracy" blogger Orin Kerr, who questioned Kopf's ethics in making the statement. Kopf's comment about Cruz, Kerr wrote, likely violated Canon 5(A)(2) of the Code of Conduct for Federal Judges, which provides that "[a] judge should not . . . publicly endorse or oppose a candidate for public office[.]" Then in later post Kerr cited the Second Circuit's endorsement of an admonition of another federal judge who criticized President George W. Bush for exercising "extraordinary power" at a meeting of the American Constitution Society, adding that "when that has happened it is important to put that person out, regardless of policies, regardless of anything else, as a statement that the democracy reasserts its power over somebody who has come in and then has used the office to take... build himself up."

In a reply to Kerr, Judge Kopf conceded that he did likely violate the ethical cannon.
Specifically, when I wrote that “Senator Ted Cruz is not fit to be President” and when I made related assertions of unfitness for office and the like in reference to Senator Cruz as a candidate for the Presidency, I crossed the line under the holding of the Calabresi opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges.
Earlier, Judge Kopf's blog received notice about a year ago for criticizing the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc., adding that the Court should avoid deciding highly controversial whenever possible. He concluded, "As the kids say, it is time for the Court to stfu," the latter word being an acronym for the phrase, "shut the f--- up." And there had been earlier controversies over a post regarding attire of female attorneys in court; a post criticizing Congress for the threatened government shutdown, saying that "It is time to tell Congress to go to hell;" and a post stating that "[a] lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis."

The comment regarding the "irrelevancy" of the Supreme Court led Kopf to announce that he was ending his blog, but he resumed it two months later.

Kopf also considered ending his blog again after the "stfu" post, but in the end decided to continue.

But after the latest controversy, Kopf called it quits after a majority of court employees indicated that the blog had become an embarrassment to his court. "There is nothing more important to me than the United States District Court for the District of Nebraska," Kopf wrote in his farewell post. "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. My decision is irrevocable."

This still leaves the question of whether a judge -- federal or state -- can ethically blog about the law and the courts. As I explored last year in discussing Kopf's blog, there is no inherent problem with judges blogging or using social media, although they should be careful about what topics they address and content they post. As the Maryland Judicial Ethics Committee cautioned,"A judge must recognize that the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct and, therefore, proceed cautiously."

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