Mimesis Law
18 November 2019

If I Could Put Time In A Bottle

Apr. 6, 2016 (Mimesis Law) — 1992 was an election year. Bill Clinton was running against President George H.W. Bush (41).  The Democrats controlled the Senate.

On April 7, 1992,* President Bush nominated me to become a federal district judge. Nebraska’s two U.S. Senators (Jim Exon and Bob Kerrey) were members of the Democratic Party.  Senator (now Vice-President) Joe Biden was chair of the Senate Judiciary Committee.

On May 14, 1992, the Committee on the Judiciary held a hearing on my nomination as well as the nominations of three other judges. My nomination was reported favorably on May 21, 1992. I was confirmed that day by unanimous consent of the Senate.

Before becoming a U.S. Magistrate Judge in 1987, I had been a nominal Republican. Apparently, I was well regarded in some legal circles.  The ABA gave me a unanimously well-qualified report card despite the fact that I had been a hick lawyer.  But, in truth, there was nothing special about me.

2016 is an election year. We can’t be certain who will be selected to succeed President Obama.  The two U.S. Senators from Nebraska (Deb Fisher and Ben Sasse) are Republicans.  The Republicans control the Senate.

President Obama nominated Bob Rossiter on June 11, 2015. Rossiter’s nomination came 21 months after my wonderful colleague, Judge Joe Bataillon (appointed by President Clinton), announced his plans to move to senior judge status, and ten months after the state’s U.S. senators recommended Rossiter to the President. (Then-Senator Mike Johanns participated with Senator Fisher in the recommendation, and, after his retirement, Senator Ben Sasse joined with Senator Fisher.)

This is what President Obama said about Rossiter:

Robert F. Rossiter, Jr., is a partner at Fraser Stryker PC LLO in Omaha, Nebraska, where he specializes in labor and employment litigation, primarily in federal court. He joined the law firm as an associate in 1983, was made a shareholder in 1987, and has served on the firm’s Management Committee since 2011. Prior to joining Fraser Stryker, Rossiter served as a law clerk to the Honorable C. Arlen Beam of the United States District Court for the District of Nebraska [later to become U.S. Circuit Judge] from 1982 to 1983. Rossiter is a Fellow in the American College of Trial Lawyers and is the immediate past State Chair of that organization. He also is the President-Elect of the Nebraska State Bar Association. Rossiter received his J.D. cum laude from Creighton University School of Law in 1981 and his B.S. from Purdue University in 1978.

The White House, Office of the Press Secretary (June 11, 2015).

Bob had his confirmation hearing on September 30, 2015. His nomination was sent to the Senate floor by voice vote on October 29, 2015. There he sits.

Like me, Bob was a nominal Republican. He contributed small amounts of money to candidates from both parties. I know of no one who thinks Bob should not become a federal district judge. He is a trial lawyer’s trial lawyer. He is also universally regarded as an especially decent guy.

The District of Nebraska ranks 7th in the nation and 2nd in the Circuit for the number of felony criminal cases.  We handle 201 criminal cases per active district judge, and nationally the number is 105. We rank 7th in the nation and 2nd in the Circuit for supervised release hearings. We handle 95 supervised release hearings per active district judge, and nationally the number is 36.  We have only three active district judge spots for the entire state.  We have been without our third active district judge for 18 months, yet our statistics are computed as if we had three active district judges on board.

Despite the then recent Bork and Thomas debacles, in May of 1992, some 24 years ago, I was confirmed. I was treated fairly by the political party that controlled the Senate even though it was a Presidential election year. If I could put time in a bottle the first thing I’d like to do is return to May of 1992.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*Prior to the formal nomination, President Bush made a practice of placing a telephone call to ask whether the nominee would accept the nomination. It was an unbelievably gracious thing to do that was typical of President Bush, and one that I am sure remains burned into the memories of those who received such calls. Per instructions from the famed White House telephone operator, my call was supposed to happen on April Fool’s Day.  However, the President was apparently busy on April 1, 1992 as the seven wealthiest nations were announcing an agreement on a $24B aid package for the former USSR. My call came the next day.

17 Comments on this post.

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  • Turk
    6 April 2016 at 10:32 am - Reply

    my call was supposed to happen on April Fool’s Day.

    Damn good gag.

    • Richard G. Kopf
      6 April 2016 at 11:28 am - Reply

      Turk,

      I always thought that it was the fault of DOJ. Later, I extracted a bit of revenge. I’m still at it.

      All the best.

      Rich Kopf

      • Turk
        6 April 2016 at 12:00 pm - Reply

        While I have your ear (or your eyes, as the case may be), let me just say how much I appreciate you blogging. It’s great to see someone writing candidly from the perspective of the bench.

        I know you’ve heard that from others, but I wanted to add my two rupees to tell you again.

        • Richard G. Kopf
          6 April 2016 at 12:50 pm - Reply

          Turk,

          Thank you. All the best.

          RGK

  • MOK
    6 April 2016 at 12:34 pm - Reply

    I agree with the point of all that you say here, except for your self-characterization as a “hick lawyer”. hardly.

    As for the title of your comment here, it brought to mind Jim Croce’s “Time in a Bottle” song that has the following lyric, which might have some application here:

    If I had a box just for wishes
    And dreams that had never come true,
    The box would be empty
    Except for the memory
    Of how they were answered by you.

    I fear your “bottle” is similarly empty – oh that it was not so . . . . 🙁

    • Richard G. Kopf
      6 April 2016 at 12:46 pm - Reply

      MOK,

      Click on the last link to the post and you can hear him sing the song. All the best.

      Rich Kopf

      • MOK
        6 April 2016 at 1:46 pm - Reply

        Ah, yes. I missed that. A good song by a fellow who passed far too soon.

  • Homer
    8 April 2016 at 7:49 pm - Reply

    Today is nothing like yesterday. Unfortunately times have changed, both political parties and the voters are highly polarized and dare I say it — parts of the judiciary too and its a vicious circle.

    Round and round until every cog stops working and blames the other cog for the mess. Welcome to 2016.

    I partly blame the internet for all this — back in 1992, there were no twitters and facebook. Today, everyone has to be weary of the 140 characters on Twitter, the statuses on Facebook, the videos on Youtube, Vine and many others and their Google search results.

    • Richard G. Kopf
      9 April 2016 at 8:43 am - Reply

      Homer,

      I agree with you’re a partial focus on the Internet. Democracy in a raw form is a dangerous strain of an otherwise beneficial germ of an idea. The Internet allows anyone to spout about anything and liked minded folks become trapped in the ensuing feedback loops.

      Fault Lines great promise is that truth will be told. On the other hand, it could become just another echo chamber for the same views. I know how hard our esteemed editor, SHG, works to avoid that trap. Let us hope that he continues to be successful.

      Thanks for writing. All the best.

      RGK

      • Justice 4 None
        9 April 2016 at 4:23 pm - Reply

        I remember you quoted or more properly put paraphrased Justice Oliver W. Holmes once (“I have little doubt that the country likes it and I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job!”….and you said “[i]f the people want to go to Hell, I will help them. It’s my job.” Let’s get at it!”)

        I think the news coverage that took it out of context actually even forgot to mention the link back to Justice Holmes. I mean, how could they, when would they even have had the time, you know, cause they have to be the first to get out the blog post, come up with 140 or whatever characters for Twitter, and share across all the social sites.

        Democracy is a funny idea, but is better viewed as an ideal. The problem I have today is we are all driving each other to hell and each of us, the voters and all three branches of Government have no inclination to stop it. It just goes round and round. Perhaps I am talking silly talk.

        No, I am not the revolutionary type and heck I hate the 2nd Amendment with my European roots. But, I for one, would like the judiciary to stand up a bit more and put the breaks on the idiocy of the voters and the legislature(s). If the judiciary doesn’t then there is nothing left. And, if that Nevada sex law back in the day wasn’t bad enough now passports will be marked too so we can have foreign lynchings of our domestic sex-cons. At least the fraudsters and the drug dealers can still travel, if they ever even get out of jail that is.

        Anywho, let me end on a poignant note we can all agree on, Black Lives Matter.

        • Richard G. Kopf
          10 April 2016 at 9:06 am - Reply

          Justice 4 None,

          You wrote:

          “Democracy is a funny idea but is better viewed as an ideal. The problem I have today is we are all driving each other to hell and each of us, the voters and all three branches of Government have no inclination to stop it. It just goes round and round.”

          I wish had written the foregoing. Very nicely put.

          Then you write:

          “But, I for one, would like the judiciary to stand up a bit more and put the breaks on the idiocy of the voters and the legislature(s). If the judiciary doesn’t then there is nothing left.”

          Plato would probably have agreed. The raw form of democracy scared the shit out of him. Hence the “Platonic Guardians.”

          The problem for the federal judiciary is that knowing exactly when to serve as “Platonic Guardians” is very hard. On the contrary, it is too easy to go overboard. Citizens United might be an example. Perhaps the state courts to assert themselves based on their state Constitutions, although that effort would be a band-aid only.

          So, what’s my overall view? Our society is transforming from one economic age to a different one. If that transformation settles down in a way that brings relative job security and lessens income inequality there is hope for more social cohesion. If that does not happen, the death spiral you describe for the notion of democracy is inevitable. The judiciary is simply not strong enough to stop it.

          Thanks for writing. All the best.

          RGK

          • Justice 4 None
            11 April 2016 at 9:31 am -

            Judge, thank you for the compliment and kind words.

            I agree with you that the judiciary is not strong enough to stop the death spiral. But I don’t think Justice Holmes’ wise yet apathetic stand works today; today, much more is at stake and the world has changed.

            I am not referring to you, but I think judges can and should be more than the other branches’ (mostly legislatures) henchmen/chaffeur in robes. The job comes with a lifetime appointment and yes a judge can risk reversal and end up losing a potential elevation to the Court of Appeals or perhaps higher or even risk politicizing the judiciary (if it hasn’t already happened…where judges get impeached based on their rulings (the pending legislation in the State of Kansas)), but acting as a subservient figure in robes does no one a service today.

    • TMM
      12 April 2016 at 4:36 pm - Reply

      My memory is that the difficulty in filling vacancies has been somewhat long standing, but that each time party control of the White House or Senate changes it gets a little bit worse.

      The problems of the House of Representatives is understandable. As redistricting software has gotten more precise, the number of swing districts have declined — making representatives more concerned about appealing to their party’s base to survive a potentially competitive primary that appealing to swing voters in a non-competitive general election. Since the Senate is not subject to redistricting, it is less clear why the need for partisan purity has also infected the Senate (perhaps the mentality driving House primaries have also hit those Senators from non-swing states).

      In any case, a look at the vacancy listing on the U.S. Court’s website is depressing. Not counting the Supreme Court, there are eighty-five vacancies, of which fifty have nominees pending with twenty-seven of those nominees pre-dating October 1, 2015. Of the vacancies, thirty-five have been pending since before January 2015 (thirty with nominees — seventeen pre-dating October 1, 2015).

      • Richard G. Kopf
        13 April 2016 at 6:03 pm - Reply

        TMM,

        I agree that as a different party in power takes the Presidency or the Senate that there is a tendency for things to get worse when it comes to judicial nominations. Given the divide in the electorate and the falling away of the “sensible center,” I fear that the picture you paint so dramatically will only darken as our ship of state rolls drunkenly from side to side.

        Thanks for taking the time to write. All the best.

        Rich Kopf

        PS To punctuate your point, the District of Nebraska has now been declared a “judicial emergency” as poor Bob R. swings in the wind.

  • Chris
    22 April 2016 at 10:06 am - Reply

    Do presidents typically interview district court nominees at the White House?

    • Richard G. Kopf
      22 April 2016 at 2:52 pm - Reply

      Chris,

      I have never heard of a President who interviewed a district court nominee at the White House or anyplace else. Indeed, I felt extremely fortunate to speak to the President briefly over the phone.

      All the best.

      Rich Kopf

  • New Nebraska Judge Bob Rossiter Confirmed (Paperwork To Follow)
    29 June 2016 at 8:49 am - Reply

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