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Judge Kopf admits he looks zombie – and the rest of the Federal Judiciary?

June 23, 2015

Federal Judge Richard Kopf writes the blog “Hercules and the Umpire“. He is noteworthy because he is a federal judge and because he is not afraid to write about himself on the internet. Either of those things are noteworthy in themselves but he’s both, also his recent posts are particularly noteworthy for zombie fans.

On June 20th he posted “Picking a jury when the judge looks like the walking dead” in which he confesses that he watches AMC’s “Walking Dead”:

I confess something else to you. Joan and I watch The Walking Dead. What’s worse, we like it.

And he also confesses his own case of shingles, including a gnarly picture and a story about telling a jury about his condition; particularly that

The virus cannot go air bound.

With sympathies to Judge Kopf and hopes for speedy recovery, however, he doesn’t quite look like a zombie. Here, this is what he would look like as a zombie here at ZombieLaw:

judge richard kopf zombie

In fact, Judge Kopf did properly earn this zombie portrait because of he did use “zombie” in a 2010 federal court opinion on a Social Security appeal (see Astrue zombies):

JONATHAN M. CARNEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant, 4:09CV3043
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

2010 U.S. Dist. LEXIS 7616, January 28, 2010

Kopf wrote:

Carney also “just quit” showing up for scheduled appointments at Community Mental Health, and was a “no show” for his appointments on June 30, 2005 and July 20, 2005. TR 178-179, 238. Although he testified he stopped attending treatments because Seroquel made him feel like a “zombie,” Carney never contacted his mental health provider to report any adverse side effects and never requested a change of medication. TR 238-39.

He put the “zombie” in quotes, so it is presumably from testimony or transcripts or briefs or who knows, by his Honor (or perhaps his clerk) chose to put that quote in the opinion. And now we know he also watches “Walking Dead”. Hmmm…

Meanwhile back to his current blog, just two posts before his “Walking Dead” reference, his Honor blogged a response to the horrific racial-terror church-attack in Charleston: “Evil by the numbers–I don’t want to write today, fuck you“:

I am consumed by the thought of evil.

Is it good for a judge to be “consumed” with “evil”?

The judge then cites a dubious statistics that 2% of any population is psychopathic. Now, I have not read the book cited but his Honor, nor am I prepared to provide any detailed challenge to the claim, but, I would suggest that neuroscience is probably not the right paradigm for this type of problem. Of course, zombies do like brains but there are also social ills, not merely genetic. The idea that “any population” would produce the same percentage of psychopaths is likely a function of bad statistical assumptions about populations, or a deficient definition of psychopathy. Our society is grounded in all persons being equal, not some discardable two percent. In this way brain science dehumanizes people.

I’ve mentioned Judge Kopf’s blog a few times before. He takes an admirable risk by writing about himself online (see my own writing on ““why zombie blogging is dangerous”) and thus he gives new insight into the persons who are the federal law. It is important to understand people as individuals, to see more about who they are are and how they are unique. Today’s post on the judge’s blog addresses Justice Kennedy as in a letter as if they are pals, “Dear Tony“, and questions the Supreme Court Justice on his references to Dostoyevsky and Dickens. Kopf would prefer clearer guidance for the lower courts to apply or instead he advises:

please zip the pie hole shut

Meanwhile this morning, Justice Kagan’s majority opinion in KIMBLE ET AL. v. MARVEL ENTERTAINMENT, LLC, cites Spider-Man’s great responsibility (“stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider- Man,” p. 13 (1962)”).

Yesterday was fathers’ day, and because The Zombies sang “Time of the Season“: “what’s your name? who’s your daddy?”, the ontological question. Who are our federal judges? Where do they draw their ideas? Shall they get their ideas from Dickens or Stan Lee or AMC? Are they umpires, or Hercules, or are they zombie?

Is it only coincidence that Judge Posner has nine theories of judicial behavior, in his 2010 book “How Judges Think” and the Encyclopedia of Cognitive Science (Güzeldere, 2006) has nine types of zombie?

Posner’s nine:

The theories are the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological, and, of course, what I am calling legalist theory. All theories have merit and feed into the theory of decision making that I develop in this book. But all are overstated or incomplete.

Güzeldere has a two variable classification scheme that compares Identity (as Behavioral, Functional or Physical) and Possibility as (Logical, Metaphysical, or Natural):

The ‘zombie scorecard’: nine distinct notions of zombie, classified according to the respects in which the postulated creature is the same as a human being (the ‘identity’ parameter) and the kind of possible existence the creature is granted (the ‘possibility’ parameter). (Adapted from [Polger T (2000) Natural Minds. Ph.D. Dissertation, Duke University.].)

Güzeldere nine zombie chart

There are, of course, nine SCOTUS justices; Kennedy, Roberts, Alito, Scalia, Sotomayor, Kagan, Ginsburg, Thomas and Breyer.

scotus

I’m not sure how one would classify Judge Kopf under either Posner’s classification of judicial theories or Güzeldere’s classification of zombies. I’m not sure it matters. Any 3×3 table, created simply by two variables with trivalent conditions (two poles and a middle, like for example a scale of liberal-conservative-moderate paired with a scale of priorities social-economic-mixed), would create a set of nine variations.

Woohoo nine variations, so it must be important! The Beatles sang:

Number 9, number 9, number 9…

999, 666. See also “The Nine” by Jeffrey Toobin, aka CNN’s political shill. Any jack off lawyer can write a blog or even a book, but it’s still sort of amazing when it’s a federal judge (or even their clerk). Toobin clerked for only a short time (for J. Edward Lumbard, Jr. on the Second Circuit), but even a short stint near the federal bench is important. These are special people, a chosen few… touched by zombie? It’s not “air bound” it’s in the texts! Be careful which texts you read, be they baseball, Greek mythology, or zombies, they are invading your thoughts.

See more at the ZombieLaw tag: Federal Court.

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