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Impeach Earl Warren

Most readers are probably not old enough to remember the demand, largely but not entirely from segregationists unhappy with Brown v. Board of Education, to "Impeach Earl Warren."  Although in criminal law Warren was a willing tool of the much smarter William J. Brennan, and the author of one of the all-time most lawless decisions (Miranda), there were no grounds to impeach him.  Just being a liberal or not very smart is not an impeachable offense.  So the "Impeach Earl Warren" crowd was relentlessly dismissed and ridiculed, not without reason.

Yesterday, the new version of "Impeach Earl Warren" showed up in the form of Senior United States District Judge Richard Kopf, who, in expressing his disagreement with the Hobby Lobby decision, point-blank told his superiors on the Supreme Court to "shut the f___ up."  He did this on his widely read blog, "Hercules and the Umpire."

The question has understandably been raised whether Judge Kopf should continue blogging.  It's the wrong question.  The correct one is whether he should continue judging, and the answer is no.
I do not know Judge Kopf and I have little idea of his views on criminal law.  I believe he has written one blog entry opposing mandatory minimum sentences. That view is widely held by district judges, for a couple of reasons.  One is that some of them, together with the defense bar, view such sentences as excessive, racially biased and too costly. The other is that district judges, like almost all human beings, believe that the world would be better if they had more power (especially if the additional power were shifted to them from a competitor, such as, for example, a competing branch of the government).

But I digress.  It makes no difference what Judge Kopf's views of criminal law may be.  His blog entry standing alone  --  not to mention viewed against the backdrop of others he has written (see Prof. Jonathan Adler's post)  -- suggests that he is no longer able to serve on the bench with the degree of restraint necessary for the job.  I wrote him the following:

Dear Judge Kopf:
I commented on your Hobby Lobby post on your blog, but, because I was highly critical of it and you, I think the right thing to do is to tell you directly.  My comment was:
With all respect...if you cannot show more respect and restraint than this, you should resign from the bench. You don't bother with one whit of legal analysis, and settle on trashing your judicial superiors principally because the majority were males and Catholic. Do you think male and Catholic litigants and lawyers might wonder about you from now on? And do you think the government deserved to win simply because the Justices in the minority were mostly women and non-Catholic? Why would that be? And what leads you to the obviously foolish conclusion that this issue would be less "divisive" if the other side won? Would those supporting Hobby Lobby just shut up? Is that what you want? Do you in any event hold the absurd view that the "divisiveness" of an issue should dictate the outcome of a case?

If you want to share the perspective of a judge, good. That is useful and welcome. But do it as an ex-judge.

We all age, Judge Kopf, and aging takes its toll. Your post reflects that it has taken a toll on the restraint, respect and dignity your office must command.

I have admired your career from a distance and, indeed, was in White House Counsel's Office at the time of your appointment (although I was not involved in judicial selection).  I have admired in particular your modesty, good will, and ability to hold the balance fair and true.  But telling the majority of the Supreme Court to shut the fuck up is so grossly out of line that it betokens an impairment of temperament that makes your continued service considerably more than problematic.
I understand that I am a no one special to you, just another presence on the Internet.  But having begun to feel some of the depredations of aging myself, I believe you should seriously consider whether it's time to say goodbye to what has been a more than creditable career as a Untied States District Judge.
Bill Otis
Adjunct Professor of Law
Georgetown University Law Center


Kopf's references to the sex and religion of the Hobby Lobby majority are problematic, to say the least. Of course, by that standard, Justice Sotomayor is unfit as well because she linked the quality of judging with the ethnicity/race of the judge.

Although Kopf should be embarrassed about his divisive references to gender and religion, what's really embarrassing is that he swallowed whole the two-bit DailyKossian "corporations don't have religion" argument. As the learned judge should know, the corporate form provides many benefits to its owners. Do owners have to forego those benefits so that they can freely practice their religion? It really is as simple as that. It's as if the state is saying to a religious person, you can have unlimited liability or you can follow your religion--you can't have both (to quote a line from Casino).

This isn't hard.

It is interesting how the libs are all for corporate personhood as it relates to suing a corporation.

The corporate form does provide its owners many benefits but those are primarily of a financial nature - In a closely held corporation such as Hobby Lobby presumably all of the owners share the same religious beliefs so those types of entities can practice religion.

However, if you had a situation where the majority of shareholders desired the corporation to practice a certain religion, the minority shareholders could most certainly complain of this if the corporations religious practices were hurting profitability. In my mind practicing corporate religion can be poor business judgment.

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