I’m a huge fan of D. Neb. Judge Kopf’s Hercules and the Umpire blog. Vibrant and unflinching. His theme: judges are people, and even smart people trying their damnedest to get it right sometimes don’t. That’s not CA3blog’s theme, but I do say appellate lawyers need to understand judges better. For that, Kopf is essential.
Recently, Kopf and Scott Greenfield at Simple Justice have been blogging back and forth about sentencing and clemency. Kopf regrets a harsh drug sentence he once imposed on a defendant named Hasan, Greenfield finds it “incomprehensible” a judge would impose a sentence he knew was unfair: “I would like to believe that they could have put a gun to my head and I still would have refused to impose a sentence I thought to be too harsh, but then, that could explain why I was never made a federal judge.”
Here’s Kopf’s response today, a comment posted on Simple Justice:
Your concluding remarks are important. I hope everyone thinks hard about them. How in the hell could any sane person impose a life sentence on Hasan or even a sentence of 324 months. I did so, as a very young judge, and I wrote a long opinion explaining why. But I do want you to know that I came close to concluding “hell no” and saying I hereby quit this stupid fucking job. But, I was, as Lorin Duckman pointed out gently to me while using different words, a “good German” judge.
I almost became an academic. I studied classic political thought. When I became a judge, I believed and understood that Congress had the right to set punishments and I had the obligation to enforce them in almost every circumstance. No game playing. Play it straight up. Do what Congress tells you because, and this is and was very important to me, the role of an unelected life tenured federal trial judge is very hard to square with democracy unless the judge’s role definition is greatly circumscribed. These thoughts were in mind in 1993—I really labored over that sentencing opinion. Ultimately, I concluded that Hasan participated in the sale of a shitload of crack and that crack ripped the lives of poor black people apart. Who was I to say that Congress was wrong and a life sentence was too harsh for someone who knowingly poisoned some of the least among us?
Those thoughts are still with me, but I much less certain about them. In fact, I [am] much less certain about every aspect of judging. And, that is why I write my blog. I have doubts about myself as a judge, and they are profound doubts. The People have every right to know about the frailties of judges like me. Your concluding remarks may well highlight one of my biggest failings.