Blogging judge calls political candidate "unfit" for office

Sen. Ted Cruz (R-Tex.). (AP Photo/Cliff Owen, File)

U.S. District Judge Richard Kopf is no stranger to controversy. At his personal blog, Hercules and the Umpire, Judge Kopf has over time shared his somewhat intemperate criticism of the Supreme Court, other judges, Congress, and lawyers practicing before him. His posts have generated no shortage of national press attention.

In a recent post, Kopf may have added another controversial notch to his blogging belt by proclaiming a political candidate "not fit" for office. In response to recent Supreme Court decisions, Sen. Ted Cruz (R-Tex.) has proposed a constitutional amendment that would require Supreme Court justices to face periodic retention elections. Judge Kopf argues that Cruz's attack on lifetime tenure reveals Cruz as "a right-wing ideologue" who "is demonstrably unfit to become President." In Kopf's view, it's obvious that lifetime tenure for federal judges is better than a system of retention elections. To argue otherwise would "sacrifice the Supreme Court upon the altar of an extreme right-wing ideology." "[A]s a federal judge," Kopf writes, that gives him "the right . . . and dare I say the duty, to respond to the proposal." Cruz's proposal is so bad, Kopf reasons, that it makes Cruz "unsuited to become President."

Whatever one thinks of the substance of Kopf's argument—both as to the proposal and the candidate—I'm more interested in the ethical questions it raises. Canon 5 of the Code of Conduct for Federal Judges states:

A judge should not . . . publicly endorse or oppose a candidate for public office[.]

Does calling a candidate for public office "unfit" and "demonstrably unsuited" for that office amount to "oppos[ing] a candidate for public office"?

In response to commenter who raises this concern, Judge Kopf argues that he did not violate Canon 5 because he was merely exercising his right to comment on public matters:

For me, it is enough to state that I did not label Senator Cruz unfit to serve in order to oppose his candidacy for political or partisan purposes but rather to demolish and protect us all from his intemperate legal attacks on the Supreme Court. I remind you that I am not registered to vote, and I have not been registered to vote since I became a judge in 1987. My comment on his legal fitness was inextricably intertwined with my right to speak publicy on legal matters and the administration of justice. That said you are correct that I skated close to thin ice.

He adds:

If Senator's Cruz's legal proposition was beyond the pale, and I have the right under the Code of Conduct to write on legal subjects, why is that I am prohibited from concluding that his legal assertions disqualify him from public office? It seems to me that the two things are inextricably linked. I find it impossible to honestly separate the speaker from the speech in this instance.

And further:

I might add that I stand by views after serving six years on the Judicial Conference's Codes of Conduct Committee. That hardly makes me right, but it does reflect a serious study of the Code of the Conduct for United States Judges.

Has Kopf skated close to thin ice, as he says, or has he skated over it and fallen through? Kopf was of course free to comment on the merits of Cruz's proposal. (For what it's worth, I agree that Cruz's proposal is a bad idea; I personally favor 18-year terms for Justices.) But I would think that the ethical line is actually pretty clear. The ethics canons allow judges to publicly oppose a reform proposal but do not allow them to publicly oppose a candidate for public office. The two may be related from the perspective of voters, as presumably they would want to vote against a candidate with bad ideas. Or at least they would weigh a bad idea against a candidate when they decide who among the candidates in the race they should support. But I don't think the two are intertwined for the judges who have to follow the ethics canons.

Or so it seems to me. I'd be interested to know whether others agree or disagree.

UPDATE: Judge Kopf elaborates a bit on his position in the comment thread to his post:

[W]hen a man of Senator Cruz's education and experience calls for a radical and fundamental attack on the Supreme Court he is not acting in political terms. If he is really serious about the amendment he is a threat to the judiciary that I love and respect and have devoted much of my life to serving. Therefore, his unfitness is a function of his threat to our Constitutional form of government-it is in that sense that he is acting in an extra-political manner and that extra-political action entitles me to take the public position that I have taken about his unfitness.

This reads like an explanation of why it's worth it to violate Canon 5 rather than why it's not a violation in the first place.

ANOTHER UPDATE: In a new comment thread, Judge Kopf argues that he did not violate Canon 5 at all. He writes, with emphasis in the original:

I neither publicly endorsed nor publicly opposed Mr. Cruz for a public office. Rather, I wrote that Senator Cruz "was unfit." "Oppose" is a verb. "Unfit" is an adjective. While the words are similar, they are not in any sense the same.

I appreciate the response, but I don't get this as an argument. First, I don't think it takes a specific verb to oppose someone. Second, when you say someone is "unfit for public office," I have always understood that to mean "should not be in public office." I don't see how you can say someone should not be in public office without opposing them for that office. Third, in defending his position Kopf also wrote:

If Senator's Cruz's legal proposition was beyond the pale, and I have the right under the Code of Conduct to write on legal subjects, why is that I am prohibited from concluding that his legal assertions disqualify him from public office? It seems to me that the two things are inextricably linked. I find it impossible to honestly separate the speaker from the speech in this instance.

I read that as Judge Kopf saying that Cruz's views "disqualify him from public office." I don't see how you can argue that a politician's views "disqualify him from public office" without also opposing that politician's bid to the office.