Judges Should Blog More But Learn From Judge Kopf’s Mistakes

By Steve Klepper (Twitter: @MDAppeal)

Since the Maryland Appellate Blog’s debut in September 2013, the “Blogroll” at the bottom of our home page has included Hercules and the Umpire, written by Senior U.S. District Judge Richard Kopf of the District of Nebraska. His blog has offered terrific, insightful commentary from a judge who cares about justice and who vocally deplores injustice. Also, in offering updates on treatment for cancer (thankfully in remission), Judge Kopf has helped to humanize the judiciary. But Judge Kopf made serious mistakes along the way, leading to a not-unexpected outcome this week.

Judge Kopf announced on Thursday that he will cease adding new posts. I’m glad he has seen the light, but I’m sad it came to this. This decision follows the latest in a series of missteps.

The controversies included commentary on female lawyers’ clothing – always a bad idea for a man in a position of power. He far too much enjoyed the abbreviation STFU, which he directed at the Supreme Court. This month, Judge Kopf admitted that he violated the Code of Conduct, Canon 5(A)(2), when he opined that “Senator Ted Cruz is not fit to be President.” Following that last error in judgment, the court’s chief judge informed Judge Kopf that, at a retreat, the vast majority of the court’s employees raised their hands when asked if the blog was an embarrassment. Kopf announced his decision to cease blogging hours later.

Judge Kopf ended his farewell post with the following plea:

In the future, I hope another federal trial judge will use this powerful medium to address judicial transparency and the role of the federal trial judge. Most particularly, I hope that the brave judge who accepts this difficult challenge will learn from my mistakes.

I do fear that what judges may take away from this is that blogging presents too big a risk of embarrassment for a court. If so, that will be the wrong lesson. As Judge Kopf observes, the commentary accompanying the Code of Conduct includes that “a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice,” and, therefore that a “judge is encouraged to do so” to the extent consistent with his or her other ethical duties.

We don’t have any blogging judges (state or federal) here in Maryland. The closest we’ve come is that, before joining the bench, Court of Special Appeals Judge Kevin Arthur contributed a number of posts to this blog. Judge Kopf’s mistakes reduce the likelihood that we’ll see a sitting judge blogging.

But, if any judges do consider taking the plunge, I’ll offer the same comment that I offered last year, when Judge Kopf asked his readers to post their thoughts on a lawyer friend’s plea to please stop blogging: “Perhaps you could identify two or three lawyers or judges whose judgment you value, and then send them draft posts in advance.”

The greatest risk in blogging is its immediacy. It’s easy to post one’s thoughts, without time for reflection, whenever the urge strikes. In that respect, it’s much different from giving a speech or writing an op-ed.[*] It requires self-discipline to resist posting willy-nilly, without input from peers. That’s precisely the kind of self-discipline we expect from judges. I cannot imagine a situation in which a judge’s blog post would be so urgent that there would not be time to circulate a draft to others before posting.

Twitter is risker, given its intrinsic immediacy. But there have been success stories, including Texas Supreme Court Justice Don Willett, Georgia Court of Appeals Judge Stephen Dillard, and U.S. Magistrate Judge Paul Grewal (N.D. Cal.). For Twitter, if a judge dares, the goal should be simply to avoid controversy at all costs. If there is any doubt, don’t micro-blog about it on Twitter. Save it for a vetted blog post.

With those suggestions, if any state or federal judges want to take up Judge Kopf’s invitation and contribute an appellate-focused guest post to the Maryland Appellate Blog, please give us a ring.

[*] The prolific Seventh Circuit Judge Richard Posner co-authored the The Becker-Posner Blog from 2004 until Professor Becker’s death until 2014. His comments have stirred controversy, regardless of the medium.