In the always informative blog How Appealing I came across an online article in the Wall Street Journal on what the author considers to be a relatively new phenomenon of judges speaking more freely about their work, their political views and all manner of other interesting subjects. The article is linked here.
Prominently mentioned is the blog of my friend Judge Richard Kopf, a Nebraska federal judge, entitled Hercules and the Umpire. I am a frequent commenter on Judge Kopf's blog. (I call him "Rich" and he calls me "Pat" but I'll stick with the more formal for our purposes.) Judge Kopf and I don't always agree. He posted a test of political views and he rated in the most liberal 10% (although he was a Bush appointee) and I scored well right of center. But we have had many fruitful exchanges (at least I like to think of them as fruitful) and I've learned quite a bit.
A much more voluble judge is Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, often considered the father of the law and economics school of jurisprudence. Whether he deserves that title or not is something I don't wish to debate here. But Posner is a brilliant generalist who has written fascinating books on everything from the relationship of sexual activity to the law, to the Clinton impeachment to the Bush-Gore cliffhanger. He also writes in an accessible manner that is happily being emulated by more and more judges. For an example -- especially if you don't have formal legal training -- read his recent opinion sarcastically dismissing the civil rights suit of a University of Indiana student found growing marijuana in his dorm room; the opinion is linked here.
A perhaps more mundane, but previously unthinkable, example (this also by way of "How Appealing") is that Supreme Court Justice Sonia Sotomayor will count down the new year ball drop in Times Square tonight.
So what gives? Until fairly recently, judges spoke to the public (actually lawyers and reporters who cover courts) only through their opinions, and that's still the way most of them communicate. The U.S. Supreme Court is particularly taciturn and unfriendly to press coverage. It was a huge breakthrough when it agreed to release the audiotapes of the Bush v. Gore oral arguments immediately after the argument was completed, giving the public something approaching real time access.
The fear of most judges is that they'll say something publicly that will come back to bite them in the rear and force them to be disqualified in a later case. Obviously judges shouldn't and don't blog about pending cases and thus give hints about how they're leaning toward ruling. But if judges wind up saying something that disqualifies them (forces their "recusal" in more technical terms) in one case out of a thousand, is that such a bad thing? For a Supreme Court, that's probably a risk that's not worth running, because if a justice of the U.S. Supreme Court is recused there's no way to replace him or her and there's a risk of a 4-4 tie, which leaves the lower court opinion in place but deprives the Supreme Court of the opportunity to write anything with any precedential value.
I don't mean this flippantly, but if Judge Kopf is recused occasionally, who cares? The case will be assigned to another district judge who will be perfectly capable of handling it. That trivial price is well worth the benefit of having Judge Kopf's candid views on his job and many other subjects. "Talking judges" do much to demystify the judicial process.
Of course, this can have real world consequences for the judge. Judge Posner would have had a realistic chance of being elevated to the U.S. Supreme Court had he not written so many interesting and controversial things. But he was not willing to set aside his public pursuit of an intellectual vision, and good on him. Whether you agree with a word he's written or not, all should agree that the world would be a much poorer place if Judge Posner had taken the "safe" route. And my guess is that it would take 67 Senators to pry "Hercules and the Umpire" out of Judge Kopf's hands. Actually I take that back -- that would only make his blog more interesting.
Addendum of 1/1/14 Judge Kopf is taking "Hercules and the Umpire" off the air. It's not the result of any pressure from anyone, it simply was a one-year experiment and he believes he has said all he has to say in that forum. I'm sad about it, but understand it. -- PJB.