Memo To Mrs. Clinton & Mr. Trump — Please Pick “Plumbers” As Judges
July 27, 2016 (Fault Lines) — Please forgive me for encroaching upon your valuable time. I understand full well that each of you have campaigns to run. I also understand that one of you will become President of the United States of America, with all the awesome power and responsibility that such a title carries with it.
I have the temerity to write you because I have no stake in your campaigns. I am not even registered to vote. So, I truly have no political axe to grind.
Both of you are extremely bright and successful people. Each of you has been successful and much of your success, you must admit, has been the result of savvy assistance from keen advisers. But here is the thing, I want you — indeed I implore you — to ignore those advisers.
When you land in the White House, someone will be pulling strings about who you should nominate to become a federal district judge, often times in some God-forsaken place. A federal district judge is a trial judge. He or she has very little discretion. These judges must follow the precedents of two higher courts; that is, the trial judge must follow the precedents of the relevant Court of Appeals and the Supreme Court.
It is fair to think of us as master plumbers. Indeed, I embrace that description with the same enthusiasm that you use to savage each other.
If you want a good plumber, you don’t care one iota about the political stripes of that plumber. What you want is a plumber who is skilled enough that the toilet will not overflow during a state dinner party at your White House event, though the ambassador from one the “stan” countries produces exceptionally large bowel movements.
So, I beg you to appoint federal district judges who are good plumbers. These are people who have tried cases to juries and to judges, and are known to be open-minded and not particularly ideological. These folks understand how the pipes run and where the leaks may arise which can cause catastrophic damage. These are the type of lawyers you should nominate to serve as federal district judge, at least most of the time. Sure, you gotta appoint folks mostly from your party, but concentrate on their skills as craft persons—plumbers in my analogy.
I was a nominal Republican when nominated. My mentor, Judge Donald R. Ross, had served as the Vice Chairman of the RNC and he was also the person who ran the Republican Convention in 1968. I also had the strong support from Republican Congressman Bill Barrett, an extraordinarily decent and fair man, and a former client. But I also had the very helpful and sincere support of Senators “Jim” Exon (August 9, 1921 – June 10, 2005) and “Bob” Kerrey, both Democrats and really smart fellows. President Bush (41) nominated me, and I was confirmed a little over a month following my nomination by a Senate controlled by Democrats. Apparently, they thought I would be a decent enough plumber.
Since I have been on the bench, I have made “conservative rulings” (like the Nebraska Nuke Dump case, for example) and I have made “liberal decisions” (like the federal partial birth abortion case). None of these decisions have been made because of my prior political affiliation or because of some particular judicial ideology or method of reasoning. Rather, I applied the precedents as best I could and then let the chips fall accordingly.
It is true that I lean slightly to the right, but on things that matter (like the vast majority of my district court colleagues), I rule straight up. Hell, most of us are too lazy or too practical to take chances in order to push our own particular ideology over what the precedents’ demand—nobody wants to do it twice.
What is going on now for nominations to the federal trial bench is tragedy. Understand, we are truly technicians and not policy makers. The appointment and confirmation of federal district judges has become a blood sport because the foregoing truth is either not understood or it is willfully ignored. You know you can do better. Indeed, if the basic foundations of the federal judiciary — the federal trial courts — are to survive, you must do better.
Most of the time, you should hire “plumbers” to sit as federal trial judges and ignore the advice of those who urge you to take an ideological path. Hire the best plumber you can find to sit as a federal trial judge. You just may save the federal judiciary if you do.
As a reminder, next time you hit the bathroom, think of me and plumbers!
Thank you for considering my thoughts. All the best.
Richard G. Kopf
Senior United States District Judge (Nebraska)