Friday, November 21, 2014

Print the Legend

Those of you of a certain age know that Davy Crockett was the last defender at the Alamo to be killed, swinging his empty rifle (ol' Betsy) like a baseball bat at the hoards of Santa Ana's men who've overrun the mission-turned-fort.  

Or so Walt Disney told us.  There is in fact some reason to believe not only that the detail is not true but that David (his preferred way of referencing himself) Crockett was actually captured by Santa Ana's troops and then executed.  What's the truth?  Does it matter?

Hold those questions for a moment while you consider the blog of Judge Richard Kopf, "Hercules and the Umpire."  Judge Kopf speaks his mind, which makes his blog interesting.  It also, sometimes, generates controversy.  After all, he speaks his mind.  And some folks think he ought not have one. 

Or at least keep the fact that he has one a secret.  I a post this morning, he addressed the subject directly.
If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity.
He quotes Alison Frankel from her blog at (I'm deleting her internal links).
I also believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.
Ms. Frankel calls herself a reporter in the first sentence of that blog post, and in the bioblurb that accompanies it we're offered supporting evidence.  
A founding editor of the Litigation Daily, she has covered big-ticket litigation for more than 20 years. Frankel’s work has appeared in The New York Times, Newsday, The American Lawyer and several other national publications. 
Which is pretty good.  Especially for someone who doesn't actually favor knowing what's true.  The emperor must have his new clothes.  How dare the child reveal the truth!  

Her jumping off point is an article written by Mark Bennett (federal judge Mark Bennett, not Houston criminal defense/first-amendment lawyer Mark Bennett) which mentions that the good work of trial lawyers has resulted, among other things, in “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.” And which, along with other comments in the article, led Phillip Morris to try to convince him to recuse himself from a case because he'd demonstrated his bias. (He declined.)

Frankel concedes that the law doesn't require Bennett's recusal.  But she'd like it better if the issue had never been able to be raised.
Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.
After all, the point is to maintain illusion, to keep the secret, for judges to pretend to have no thoughts, no ideas, no beliefs.  To preserve the pretense of Olympian disinterest in the affairs of humans.  Majestic objectivity.

That's all nonsense, of course.  What we can hope from judges is that they will set their perceptions and perspectives aside and decide cases based on the law and the evidence.  We cannot expect, and really should not want, judicial automatons.  The question is whether we want the lie or the truth?

Which brings us to most famous line from The Man Who Shot Liberty Valence.
When the legend becomes fact, print the legend.
Because what Jack Nicholson said is true for Alison Frankel.
You can't handle the truth.
The thing is, we aren't in Oz anymore.  And really, we never were.  Hiding one's head in the sand really doesn't change anything.


  1. The idea that there's something wrong with shaking our faith in the system is a strange inversion of priorities. The system has to be good enough to deserve our faith, and judges have to be good enough to deserve our trust in their impartiality. Losing faith in the system is a disaster, but not as bad has having faith in a system that doesn't deserve it. As a lay observer, my feeling about Kopf's blog and other outspoken judges is that if they cast doubts, or if they reveal that the judiciary is filled with asses, it's better that we learn it now than that it should come as a surprise.