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2009 Neb. L. Rev. Bulletin 1 (2009)

handle is hein.journals/nelrvbu2009 and id is 1 raw text is: How Extraordinary Lawyers Saved an Ordinary Trial Judge from Mucking Up an Extraordinary Case By Richard G. Kopf* When a trial judge like me gets a high-profile case, the sphincter tightens. Visions of Judge Lance Ito' and the O.J. murder case dance in the mind like demented sugar plum fairies on meth. Taking the suggestion of the editors of the Bulletin , herewith is a short piece on how great lawyers saved my bacon in a case that made the New York Times editorial page3 and ultimately the Supreme Court. That case is Gonzales v. Carhart.4 While I was ultimately reversed when the Supreme Court changed its mind about whether legislators were required to consider the health of women when regulating abortions, I avoided becoming a punch line for late-night comedians. Here is the short version of how the lawyers from both sides saved me and, far more importantly, how they aided the cause of justice. One day in late October of 2003, one of my law clerks received a call from a New York lawyer representing Dr. LeRoy Carhart and other physicians. It went something like this: We expect President Bush to sign the Partial-Birth Abortion Ban Act of 2003,,, and we intend to sue the government. We will be seeking an emergency temporary restraining order from Judge Kopf immediately after the President signs the bill, and we would like to give the judge advance warning. The lawyer thought the new case would be assigned to me under our local rules United States District Judge for the District of Nebraska. See, e.g., Lance Ito, WIKIPEDIA, http://en.wikipedia.org/wiki/Lance Ito (last accessed Jan. 20, 2009). For my money, the judge was treated unfairly by the press and the pundits. With their antics, the lawyers who appeared before Judge Ito didn't help him much either. 2 The Bulletin is a wonderful idea. Everyone will benefit from this new form of scholarship. See, e.g., Ian Best, Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap (April 18, 2006), http://31epiphany.typepad.com/31 epiphany/2006/04/judgerichard k.html (last accessed Jan. 20, 2009). Incidentally, there is absolutely no ethical reason why judges shouldn't blog or contribute to blogs. Id. at question 11. 3 Round One for Women's Health, N.Y. TIMES, Sept. 13, 2004, available at http://query.nytimes.com/gst/fullpage.html?res=9AOOEFD91330F930A2575AC0A9629C8B63 (last accessed Jan. 20, 2009). 4 550 U.S. 124 (2007) (holding that the Partial-Birth Abortion Ban Act of 2003 was facially constitutional even though it did not contain a health exception). 5 18 U.S.C. § 1531 (2004). The Act provides in part that: Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

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