HON. RICHARD G. KOPF
The author is a senior U.S. district judge in the District of Nebraska.
From the Bench
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
True, blogging by judges is rare, but
their use of social media is growing, al-
beit slowly. Judge Posner on the Seventh
Circuit has blogged, while other judges
have taken to Twitter, though that me-
dium 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 se-
nior status may freely decline to accept
cases under the relevant statute, I thought
the potential harms that flow from re-
cusal 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
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).