The Big Kozinski By Emily Bazelon
Righting the Ship of Democracy By Bruce Ackerman and James Fishkin
Smooth Sailing By Richard Posner
The Wrong Tack By Arthur Lupia
The Big Kozinski
If the Ninth Circuit were a circusand some say it isAlex Kozinski would be its ringmaster. Presenting the most controversial judge on our most controversial court.
By Emily Bazelon
At 10:30 ON A WEDNESDAY EVENING IN LATE SEPTEMBER, Judge Alex Kozinski, the high-flying conservative of the Ninth Circuit Court of Appeals, bounded into his San Francisco chambers wearing black Keds, cargo pants, and a stretched-out blue polo shirt. Kozinski headed for the computer. His law clerks usually read and send out his court-related e-mail, but they had already left the bare-bones visiting chambersnot for home, but for the judge's home base in Pasadena, 400 miles to the south. Kozinski, who builds computers for fun, logged onto their terminal without a password, gleeful about having rigged it to bypass court security. His e-mail rewarded him. The inbox held two new briefs opposing the decision recently issued by three other Ninth Circuit judges to stop the election to recall California governor Gray Davis.
Kozinski ripped open a package of printing paper and thumped the stack against a table to align the edges. While the printer hummed, the 53-year-old judge leaned back, happy to digress for a moment. He told me about Karl May, the 19th-century pulp fiction writer whose many books the judge has read in German. 'Hitler was a big fan,' he said archly.
May is known for his oddly imagined version of the American Wild West, in which an uber-cowboy and his Apache blood brother gallop along, slaying their foes. The image was a fitting one that night, because Kozinski was in the midst of leading the charge in his circuit's own version of cowboys and Indians. The Ninth Circuit is the country's most notorious federal appeals court, and for Kozinski, the recall case was the season's showdown, a chance to head off an expansive approach to voting rights he saw as 'very dangerous.'
When he had learned of the three-judge panel's decision earlier that week, Kozinski made the call for en banc review, in which the Ninth Circuit's 26 judges would draw an 11-judge panel to rehear a case. The briefs that Kozinski received on Wednesday night came from two minor candidates for governor, members of the horde that had signed up to replace Davis. Both were apoplectic about the possibility of the election being delayed (as were California's election officials and, wisely or not, Davis himself). With the vote about whether to rehear the case just 34 hours away, Kozinski decided to spend the evening (and early morning) bombarding his colleagues with all the reasons why the election should go on as scheduled.
At 11:15 p.m. he got a law clerk on the phone and handed off a research question about absentee ballots. It was the first of many such deployments. Between 1:30 and 3:30 a.m., Kozinski sent three memos to the Ninth Circuit's e-mail list. When the judge checked his e-mail at 10:15 the next morning, after hearing oral arguments in a different case, he was disappointed that no one had responded.
It's not entirely clear what Kozinski's exuberance accomplished. Judge Stephen Reinhardt, the leading liberal on the circuit and a friend of Kozinski's, had his doubts. 'I called him after the first round of e-mails and I said, 'Alex, what are you doing? Why are you sending all these memos? Don't you have anything better to do with your time?' he said.
Back in Pasadena on Friday morning, Kozinski sat at his computer keeping a tally as the judges' votes rolled in over e-mail. Three judges had recused themselves, and rehearing the case would require the support of a majority of the remaining 23. When the count reached the magic number, Kozinski couldn't conceal his pleasure. 'It's pretty much a clean sweep!' he called to his clerks, stepping from his office into one of theirs for a high five.
Getting the recall election back on track was serious business for Kozinski. The three-judge panel had relied on Bush v. Gore, the Supreme Court's decision on the 2000 presidential election, to find that six California counties were violating the constitutional rights of voters by using old punch-card voting machines, which would likely fail to count as many as 40,000 votes cast mostly by minorities. Kozinski thought the three-judge panel had gotten the law wrong. While Bush v. Gore had halted a recount, it did so only after it was clear that each miscounted vote mattered in an extremely close contest; the Ninth Circuit panel had taken the unprecedented step of stopping an impending election. Kozinski pointed out that the Supreme Court has tended in other cases to allow elections to go forward in the face of undisputed constitutional violations. 'I don't like Bush v. Gore much, but there's a great temptation to stick it to the Supreme Court,' he said. 'They clearly did not create this whole jurisprudence whereby federal courts are supposed to be comparing different voting systems.'
In this as in many other cases, Kozinski was leading with his libertarian instincts. An immigrant who was born in Communist Romania and lived there until he was 12 (his accent turns 'the right to vote' into 'zah rlide to vode'), he is deeply suspicious of government power. He is a prominent defender of the right of owners to use their private property as they see fit, at the expense of environmental regulations, and he thinks the Second Amendment broadly protects an individual's right to bear arms, a position that's anathema to gun control advocates. Like Justice Antonin Scalia of the Supreme Court, he believes that courts should rarely (if ever) read broad new rights into the text of the Constitution and should generally stick closely to statutory language. He has called Critical Legal Studies, the leftist academic movement that minimizes the importance of legal rules, 'horse manure.'
But displayed in Kozinski's office next to photos of Ronald Reagan, who appointed him to the appeals court in 1985, and former Supreme Court chief justice Warren Burger, for whom he clerked, is a shot of young Alex with the liberal icon William Brennan. Justice Brennan has his arm draped around Kozinski's shoulder; both men are in their shirtsleeves, grinning. The photograph may be there for sentiment's sake, but when he writes about fair trials and freedom of speech, Kozinski can sound like a Brennan disciple. When his court denied the request by the Unabomber, Theodore Kaczynski, to represent himself at trial, Kozinski penned a withering dissent. 'There is, I suggest, something worse than being tried and punished for one's crimes,' he wrote, 'and that is being treated by our legal system as less than human, a thing to be manipulated, supposedly for one's own good.'
There's also nothing conservative about Kozinski in the stuffed-shirt sense; he's a troublemaker. The judge is zany and bawdy, a high-pitched giggler and an anything-goes storyteller. Kozinski takes his law clerks paintballing and snowboarding. (E-mails from his personal account are addressed from 'The Easy Rider,' a reference to his snow boarder identity.) He has written video game reviews for The Wall Street Journal and an account of a Malibu pajama and lingerie party for the online magazine Slate. Six pet chickens have the run of his property in the beachfront community of Palos Verdes, where he lives with his wife and three sons. When Kozinski gives surplus eggs as gifts, he names which chicken (Veronica or Heckle) laid each one. At one oral argument in September, after listening to the Drug Enforcement Agency argue for a ban on the use of hemp seed and oil in food products, Kozinski leaned forward solicitously. 'Before you sit down, can you tell me how you're going to save the poppyseed bagel?' he asked the government's lawyer, to the delight of the Vote Hemp deadheads in the audience.
Kozinski's open-to-anything mindset means that as a judge he relishes the opportunity to shred a piece of received wisdom. That doesn't mean he's a judicial activist in the ends-justify-means sense. Though he often makes mincemeat of poor reasoning in a previous judicial holding, Kozinski doesn't ignore or brush off precedential rulings that don't go his way; he insists on letting the language of a statute set the course of his analysis. 'If you, as a judge, find yourself too happy with the result in a case, stop and think,' he has written. 'Is that result justified by the law, fairly and honestly applied to the facts? Or is it merely a bit of self-indulgence?'
But sometimes, when there is no clear legal precedent to bind him, Kozinski seems to do exactly what he pleases. If he gets caught up in fierce intellectual combat, he can forget, or purposefully disregard, the human cost of his decisions, standing up for procedural formalities at the expense of people. Then, when you think you've pegged Kozinski as heartless and chillingly indifferent to real-life consequences, there he is siding with a sympathetic defendant, the letter of the law be damned. Kozinski is one of the smartest judges on the federal benchand one of the most willful.
NOWHERE IS KOZINSKI'S MERCURIAL STREAK MORE EVIDENT than in his record on the death penalty. He proclaims that 'vicious killers deserve to be executed,' yet he has voted to stay execution in almost half of the published decisions about death row cases in which he has participated. He has also called for the death penalty to be reserved for the most heinous criminals'mass murderers, hired killers, airplane bombers.' Kozinski's argument for scaling back capital punishment is pragmatic rather than moral: Despite support for the death penalty in the political arena, he argues, we're stuck with a cumbersome appeals process created by the courts, which means that the death penalty in its current form wastes resources and robs victims' families of closure.
In a 1997 article he wrote for The New Yorker, Kozinski embraced the role of avenger. 'Whatever qualms I had about the efficacy or the morality of the death penalty were drowned out by the pitiful cries of the victims screaming from between the lines of the dry legal prose,' he wrote. The article prompted a convicted murderer named Michael Hunter to give Kozinski a sense of what California's death row looks like from the inside by writing him a letter. Finding the killer to be smart and articulate, Kozinski wrote back and later arranged to visit him. The California attorney general's office was outraged. In a letter to the Ninth Circuit, the office asked the court to investigate Kozinski for impropriety and, in the meantime, to bar him from hearing capital appeals. Kozinski released the attorney general's letter to the press. 'It was intimidation,' he said, seeming to enjoy the unlikely role of bleeding heart. 'At the attorney general's office, they consider prisoners their animals. They don't like it when anyone considers them human beings.'
All of which testifies to Kozinski's intellectual curiosity, his capacity for nuance, and his humanity. And then there's the case of Thomas Martin Thompson.
In 1981, Thompson, then 26, moved into an Orange County apartment with his friend David Leitch, also 26, who was involved with a 20-year-old woman named Ginger Fleischli. The three went out for drinks one night. The next morning, Fleischli was found dead. She'd been stabbed in the head, her right wrist was crushed, and there were bruises on her arms and legs, possible signs of rape. The state arrested and jailed Leitch and Thompson.
At a preliminary hearing, the deputy district attorney in the case said that Leitch 'was the only person' with a motive to kill Fleischli, because he'd feared that she would prevent him from reconciling with his ex-wife. Reinforcing that theory of the crime, four jailhouse informants testified that Thompson had confessed that Leitch had recruited him to help with the murder and the disposal of the body. One of the four said that Thompson admitted he'd had sex with Fleischli, but said the sex had been consensual.
Thompson was tried first. The prosecutor didn't call any of the four informants as witnesses, however. Instead, he produced two new informants, both of whom had long records of making up confessions in other cases and being rewarded for it. The pair said that Thompson had confessed to killing Fleischli by himself after raping her. Thompson's court-appointed lawyer didn't try to impeach the informants, so the jury never knew there was reason to doubt them. The lawyer also didn't attack the evidence that Fleischli had been raped, even though he'd consulted with a pathologist who said that Fleischli's bruises were several weeks old at the time of her death. The jury convicted Thompson of rape as well as murder, which meant he was eligible for the death penalty. The vote was for execution.
Two years later, the same prosecutor tried Leitch for Ginger Fleischli's murder. This time around, he called the original four informants to the stand, and they testified that Leitch was the mastermind. In response to the defense's argument that Thompson had killed Fleischli, the prosecutor said, 'No, it didn't happen that way.' Leitch was convicted of second-degree murder and sentenced to 15 years to life. Seven former California prosecutors would later file a friend-of-the-court brief on Thompson's behalf, condemning the use of different sets of informants to convict Thompson and Leitch on incompatible theories. The inconsistent presentations demonstrated 'how easy it is to manipulate facts when the prosecutor's goal is to win at all costs,' the lawyers wrote.
The California Supreme Court rejected Thompson's appeal. In a petition for habeas corpus filed in 1988, he turned to the federal courts, where he drew Judge Richard Gadbois. Thompson argued that he deserved a new trial because of his lawyer's poor performance and the prosecution's unethical tactics. Gadbois spent five years on the case and ultimately wrote a 101-page opinion granting Thompson a new trial.
On appeal, three conservative Ninth Circuit judges reversed Gadbois, saying that the errors of Thompson's lawyers hadn't affected the outcome of his trial. It was the kind of decision that the liberal judges on the circuit normally ask the court to rehear. Sending the internal signal that a judge has concerns about an opinion, Judge Betty Fletcher, one of the court's liberal veterans, requested that the three-judge panel send the other judges a 5.4(b) notice. According to a law review article that Stephen Reinhardt later wrote about Thompson's case, once the 5.4(b) request is made, other like-minded judges 'ordinarily assume that the judge who made the request will take responsibility for the case.' But Fletcher didn't make the call to ask the court as a whole to rehear the case, apparently because she and her law clerks missed the e-mail or fax in which the three-judge panel circulated the 5.4(b) notice. When Reinhardt and Fletcher learned through the legal press that the execution was on, they were horrified. They wrote to the panel that had ruled against Thompson, asking for more time to request the vote. The panel refused.
E-mail messages flew back and forth among the Ninth Circuit judges debating what the court's next steps should be. Meanwhile, Thompson filed another habeas petition in the California courts based on new evidence. Denied again by the state supreme court, Thompson's petition came back to the full circuit a week before he was scheduled to be executed. This time, a majority of the judges agreed to rehear the case en banc.
Four days before the scheduled execution, the court voted 7 to 4 to give Thompson a new trial. Because federal courts are restricted in reviewing successive habeas petitions, the court didn't consider Thompson's new evidence. Instead, it took the unusual step of opting on its own accord to scrutinize Thompson's initial claims. Fletcher's opinion for the majority explained that the court had failed to act when the case first came before it because 'our normal en banc process did not function in the intended manner' due to 'procedural misunderstandings.'
Judge Kozinski wrote a dissentthe kind of dissent that other judges refer to as a 'cert petition,' because it practically begged for Supreme Court intervention (which is formally requested in a petition for writ of certiori). There had been no 'procedural misunderstandings,' Kozinski asserted. Two judges had simply regretted their failure to ask that the case be reheard en banc. And even if there had been a breakdown in the process, so what? En banc review is for ensuring consistency among a circuit's rulings, not for correcting a run-of-the-mill procedural error like a missed deadline, Kozinski saidand that principle mattered more than whether Thompson would be executed. 'If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself,' Kozinski wrote. 'That this is a capital case does not change the calculus. The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process.'
Though they often duel on the bench, Reinhardt and Kozinski are old friends. But in the Thompson case, Reinhardt called Kozinski's dissent 'bizarre and horrifying' and 'unworthy of any jurist.' 'Reading Judge Kozinski's strange dissent,' he wrote, 'one would think that justice is irrelevant in this nation and that all that matters in our system of law is whether a single piece of paper was misplaced in a judge's chambers.'
On appeal, however, the Supreme Court was receptive to Kozinski's attack. In a 5-4 split between the court's conservatives and liberals, the justices reaffirmed Thompson's death sentence. Justice Anthony Kennedy, for whom Kozinski clerked, wrote an opinion accusing the Ninth Circuit of 'a grave abuse of discretion.'
What explains the icy vehemence of Kozinski's dissent? I asked the judge about the case on the flight from San Francisco to Burbank, en route to his chambers in Pasadena. Kozinski was in a good mood, the only kind of mood I saw him in during the three days I spent with him, and he energetically defended his dissent in the Thompson case. He'd tried to get the Supreme Court's attention because he couldn't let pass Fletcher and Reinhardt's attempt to make an end-run around the court's internal procedures. 'We have rules and they weren't followed in this case,' he said. 'They said, 'Death is different'I guess I don't buy that. Formalism is important.'
Yet Kozinski also argued that he felt confident insisting on strict adherence to procedural rules because he was sure that Tommy Thompson had murdered Ginger Fleischli. 'I sort of think everyone is guilty,' he said. 'But occasionally, I find cases where I think the guy might not be. If I think this could be one of the innocent guyscould bethen I am a lot less anxious to apply procedural bars. But there were many details in the record. And I read the press about the trial. The journalists who were there said it was absolutely clear that Thompson was lying.' It's unusual, to say the least, for a judge to say he made a decision based even in part on the media's account of a case.
Kozinski may have been convinced that Thompson had murdered Fleischli, but in his dissent he nevertheless attacked the prosecution's approach at Leitch's trial. He wrote that by presenting to two juries contradictory versions of the same murder, the state had cast doubt on its belief in Thompson's guilt. 'Whether or not the United States Constitution allows them to argue inconsistent theories to different juries, it surely does not inspire public confidence in our criminal justice system for prosecutors to leave themselves open to charges of manipulation,' he wrote. 'The danger is particularly grave in capital cases, where the manipulation could well cause the execution of an innocent person.'
Given his concern about the way in which Thompson's prosecution was conducted, I asked Kozinski if he was sure that Thompson was guilty not only of murder but also of rape, the crime that qualified him for the death penalty. 'I have no doubt that he committed the murder,' Kozinski said. He paused. 'I think, beyond a reasonable doubt, that he committed the rape. If I had a doubt, I might have done something differently at one of many discretion points. I might not have written that dissent.'
Kozinski told me that Reinhardt would agree with him about Thompson's guilt. 'He's smart enough, he reads the record closely enoughhe thinks the guy did it.'
That wasn't what Reinhardt said when he spoke to me in his Los Angeles chambers the next day. At 72, he moves slowly and speaks quietly, but the Thompson case brought out the vigor he's known for. 'I think probably [Thompson] had some participation [in the murder], though not the major role, and even that is only probable,' Reinhardt said. 'Which to me is not important. What's important is that he had an unfair trial, one of the worst trials ever. What makes it much worse is that this is not the kind of person we normally execute. He had no prior convictions. If he did something, it was probably the result of drugs or alcohol on that one night. So whether Alex has decided as a sort of extra juror that Thompson was guilty, well, that is really not a proper consideration.'
Tommy Thompson was executed in July 1998. He was the first person in California since the reinstatement of capital punishment in 1977 to go to his death insisting on his innocence.
Thinking about that outcome, Reinhardt sighed. On his desk were pictures of him and Kozinski horsing around on a fall day. Kozinski is trying to kiss Reinhardt and Reinhardt is recoiling in mock disgust. 'He occasionally goes off half-cocked, and it can be hard for him to admit that he's wrong,' Reinhardt said of his friend. 'Here there was never a chance to correct it.'
IN HIS WRITINGS, KOZINSKI HOLDS PROCEDURAL RULES and consistency over the heads of his fellow judges. In a dissent last May, he derided Reinhardt for narrowly reading the Second Amendment's right to bear arms while broadly reading other parts of the Constitution that protect individual rights. 'It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us,' he wrote. 'As guardians of the Constitution, we must be consistent in interpreting its provisions.'
Kozinski, however, hasn't always followed his own directives about consistency. Almost every year, the judge accepts an assignment in trial court so his law clerks can see lawyers and litigants in action. In 1988, he had to sentence 23-year-old Catherine Ponce, who had pleaded guilty to possessing five kilograms of cocaine. At her sentencing hearing, Ponce sobbed out her story: She met a well-dressed man on a cross-country plane trip. He promised her $50,000 and a Mercedes to set up a cocaine deal. She did. The man turned out to be a federal agent.
Ponce had never been in trouble with the law before, but five kilos is a lot of cocaine. Kozinski could have sentenced her to anything from probation to life. The prosecution asked for 10 years. In a 1997 law review article, Kozinski described his thoughts as Ponce stood before him. About a week before the sentencing, he'd been working at home when the doorbell rang. A young couple stood at the door holding a toddlerKozinski's son Clayton, whom they'd found sitting in the middle of the road. Kozinski had forgotten to close his front door, and Clayton, who had just learned to walk, had wandered outside.
Catherine Ponce 'was not the only one in that courtroom who had made a big mistake,' the judge wrote. 'Only a week earlier I, too, had made a big mistake and, as a consequence, put my young son's life in danger. I am not a deeply religious man, but in that instance I was convinced that God had taken pity on me and spared me and my family the tragic consequence of my error. Something inside me made a connection between the two events and told me that I would not go wrong if I, too, erred on the side of forgiveness.'
Kozinski sentenced Ponce to six months in jail plus community service and probation. The judge admitted feeling uncertain about whether he was right to be 'influenced by something wholly extraneous to the case.' But he noted that he had wide discretion because the case preceded the federal sentencing guidelines.
Except that it didn't, entirely. Kozinski initially sentenced Ponce after Congress had enacted the guidelines, which narrowed the range of punishment for each federal crime, but before the Supreme Court had approved the new rules. When the court did so in 1989, the prosecutor in Ponce's case went back to Kozinski and asked for nine years. Kozinski said no. He deviated from the guidelines to uphold his original sentence, on the grounds that Ponce had already done her community service. 'I thought it was a stretch,' he told me, shaking his head. 'But maybe I'd get away with it.'
But you're a formalist, I said. What about the sentencing guidelines?
'I'd had my epiphany,' Kozinski said with a fleeting smile. 'It's more complicated, though. There she was in front of me with her family. I just felt like, having set her on this track, I had a responsibility to her.' The prosecution did not appeal the sentence a second time. Catherine Ponce stayed clean, got married, and had a baby.
BY SELECTIVELY APPLYING THE RULES in order to withhold mercy from Tommy Thompson and grant it to Catherine Ponce, is Kozinski 'calling 'em as I see 'em,' as he puts it? Or is he playing God? Those who have been on the wrong side of the judge's wrath tend to think it's the latter. Kozinski doesn't reserve his rhetorical beatings just for his fellow judges, nor does he wield his power only over appellants and defendants. The judge has unleashed vengeful attacks on members of the bar for reasons both professional and personal. In 1993, he reversed the conviction of two drug dealers because of a prosecutor's misconduct in a case called U.S. v. Kojayan. Courts almost never cite lawyers by name, especially if they're criticizing them. Kozinski named the assistant U.S. attorney who tried Kojayan throughout his opinion, accusing the young Los Angeles prosecutor of the flagrant ethical violation of making a false statement in court.
When I asked why he had used the prosecutor's name, Kozinski looked surprised. 'We took his name out before we published the opinion,' he told me. Informed that the opinion available on the popular database Lexis included the prosecutor's name, his eyebrows shot up. 'His name is all through it?' The judge winced. 'Ouch.' He paused and then leapt to his own defense. 'Well, I thought that what he did was improper. And I thought that it was really, really important for lawyers, particularly from the government, to ask themselves when they're in the courtroom in the Ninth Circuit, 'Am I going to get that crazy guy Kozinski on appeal, and is he going to quote my words back at me?'
According to Ron Nessim, a defense lawyer in the Kojayan case and a former federal prosecutor in Los Angeles, Kozinski's opinion has had precisely that effect. The opinion 'caused tremendous discomfort in the U.S. attorney's office,' he said. 'Everyone who is trained there is given that case to read, because it really teaches a good lesson.' Nessim credited Kozinski for blowing the whistle. But he also said the prosecutor in Kojayanwho left the U.S. attorney's office a year laterwas 'a good guy' who got carried away 'in the heat of the moment or out of inexperience.' 'I don't know that it was necessary to name him,' Nessim said. 'The guy suffered a great deal.'
Kozinski has also used the power of the bench to attack the lawyer and writer Edward Lazarus, though for a different type of transgression. Lazarus is the author of Closed Chambers, a 1997 book about the Supreme Court term he spent clerking for Justice Harry Blackmun. While most of the book offered sophisticated legal analysis, the book also dished dirt. Lazarus derided a right-wing 'cabal' of law clerks, some of whom were Kozinski's former charges, for delighting in executions and for manipulating Anthony Kennedy'not a dazzling intellect,' Lazarus wroteinto going along with the result preferred by Scalia in an important racial discrimination case.
Reasonable people argued over whether Lazarus bent the court's ethical rules and breached Blackmun's trust by writing about what he'd learned while working at the court. Kozinski, who treats confidentiality in chambers as sacrosanct and remains close to Kennedy, didn't argue; he excoriated. 'I have nothing but contempt for him,' he said of Lazarus in the press. He asked to review Closed Chambers in the Yale Law Journal at a time when the journal's editor was on the way to a clerkship with him. Kozinski used the review to accuse Lazarus of violating the Supreme Court's code of conduct and, 'possibly,' federal criminal law for allegedly taking internal documents out of the court building. Lazarus says that the judge tried to have him fired from his job as an assistant U.S. attorney in Los Angeles and disbarred in California. Kozinski denies the accusations.
The judge's harsh stance left some of his friends shaking their heads. 'I genuinely like Alex and respect him a great deal, but I was enormously troubled by his behavior toward Eddie,' said Erwin Chemerinsky, a law professor at the University of Southern California who wrote a response to Kozinski's attack on Lazarus in the Yale Law Journal. 'Much of what he did was inappropriate for a judge to do. It was far too personal.' Chemerinsky's support for Lazarus cost him Kozinski's friendship. He said the judge hasn't spoken to him for five years and refuses to serve on academic panels with him or even shake his hand.
Kozinski, for his part, now seems relatively conciliatory about the episode. 'I'm really sorry to have had a basic disagreement with [Lazarus] about a question of honor,' he said. 'In retrospect, he did educate a lot of people about the court.' Lazarus isn't moved. 'He still holds a seminar during the orientation of the Ninth Circuit law clerks in which he bashes the hell out of me,' he said.
SITTING IN HIS LARGE, SUNNY PASADENA OFFICE the afternoon before the en banc vote in the recall case, Kozinski called to one of his clerks, 'Do you have a draft for me?' Another memo was in the works. But by the time the clerk, Theane Evangelis, came in to discuss her draft, Kozinski had gotten distracted. He was reading an opinion piece by Slate's Dahlia Lithwick that mocked the three-judge panel's decision to delay the recall. Slate specializes in irreverent commentary, and Lithwick's court coverage hardly stands on ceremony: The subtitle of her piece on the recall was 'The 9th Circuit moons the Supreme Court.' Kozinski loved it. 'This is pretty brutal,' he said. 'Let's send it out.'
Kozinski excerpted the best bits ('Reading the opinion, you can almost hear the panel saying: 'Hey, let's not just halt the recall, let's have a little fun with the thing!' ') and added a note to his colleagues: 'This is not nice stuff. But serious legal commentators are deriding our panel's opinion, and consequently our panel. As Lithwick says, the fun has to stop now. Vote early, vote often, but definitely vote yes.'
Evangelis came in to read over the judge's shoulder.
'What do you think?' he asked.
'Send it,' she said.
Kozinski told her to get the e-mail ready to send. Then he hesitated. 'You're my easy clerk,' he said. 'You're too much like me. Go check with Kathy.' Evangelis left to show the e-mail to her co-clerk, Katherine Ku.
A few minutes later, Ku hurried into Kozinski's office. 'Judge, this is offensive,' she said, waving a printout of the draft e-mail. 'You can't send this. It's not as if we're not being listened to! Come on, Judge, it's just too much.'
Kozinski looked rueful. He wadded up the draft and tossed it into the trash. 'She's right,' he said, 'There's no reason to be' He got to his feet and strode down the hallway to Ku's office. 'Can I at least send out the link?' he asked.
KOZINSKI PROBABLY COULDN'T STOP MAKING TROUBLE if he wanted to. He was born in 1950, the first and only child of two Holocaust survivors. Sabine, his mother, spent the war in a Romanian ghetto; Moses, his father, was held for four years in the Transnistria concentration camp with about 150,000 other Jews. Tens of thousands died of overwork or ill health, but Moses turned his experience there into humorous stories for his son, who now enjoys telling them himself. There is the story about Moses posing as a master 'presser' (that is, ironer) to get work in the laundry and be spared more difficult labor, and the story about him tying the bottoms of his pant legs while harvesting so he could stuff his trousers with potatoes. This one Kozinski acts out.
A staunch Communist, Moses became manager of a textile factory when a Soviet-backed government took over after the war. As a 7-year-old, Alex asked the workers at his father's weaving plant why the country's official newspaper was called Free Romania, when there were so many people in prison. Moses nearly lost his job. He started using hand signals to tell Alex when to keep quiet.
Four years later, the family was disillusioned with the Communist regime and ready to emigrate. They planned to go to Israel, but first managed to arrange a yearlong stay in Vienna, where, as German speakers, they would be able to work and earn money. While there, the Kozinskis befriended a Romanian family named Fried. The Frieds were having difficulty arranging to leave Romania permanently, because Mr. Fried, who was paralyzed from the waist down, was in danger of failing the medical exam required to emigrate. He asked Moses to go to the exam in his stead. Kozinski revels in describing his father's surprise at the frank stare his father got from Mrs. Fried when he took off his pants for the medical examiner.
In 1962, the Kozinskis got their own visas for America. After spending five years in Baltimore, Alex and his parents moved to West Hollywood in search of warmer weather. Moses, who'd gone from being a Communist to a proud Republican, opened a small grocery store. Alex completed his senior year of high school in L.A. and improved on the C's and D's he'd gotten previously. Aided by an 800 on the German Achievement Test, he squeaked into UCLA. He wasn't a star there, either. The problem wasn't the language barrier, he insists, it was the time he spent chasing girls. (In 1968, he went on The Dating Game and won, though his date stood him up.)
Alex decided to go to law school because he'd been a terrible engineering major and because he liked the movie 12 Angry Men. He got into UCLA's law school after he dropped his engineering load for architecture courses, which he says were 'guaranteed A's.' Still, he spent the first year of law school on academic probation. Kozinski says that he had always followed the advice of his mother, who had urged him since childhood never to be either the best or the worst at anything, since 'the ones on the end are the ones who get shot.' Then he read a magazine article about how difficult it could be to find a job after graduation. The article advised hard-up law students to try the FBI. 'I said, 'Oh shucks. No Jewish boy with a thick Romanian accent is going to be an FBI man,'' Kozinski remembered. 'So I'll have to finish first.'
He did. But after applying to 20 big Los Angeles firms, he got only two offers. Students with lesser records had far better results. 'I think it was because I was sort of weird,' the judge said. It was 1973, and along with his accent Kozinski had long hair and a beard, what he calls 'the Jesus look.' 'I didn't fit the model of the downtown firm. They may have thought I wouldn't be very good with clients. They were probably right.'
At the last minute, Kozinski decided to apply for a clerkship with Kennedy, who had just been appointed to the Ninth Circuit. He got the job and loved it. 'I'd learned in law school that you can tell how a judge will vote based on his politics,' he remembered. 'So I was very pleasantly surprised by how Judge Kennedy would go back and forth on a close case and really think about it and try to get it right.' Kozinski was nervous about spending his life in a law firm, and he wasn't drawn to academia, which seemed too disconnected from real-world concerns. His year with Kennedy opened his eyes to a career in the judiciary.
Justice William O. Douglas, the irascible civil libertarian, selected Kozinski for his Supreme Court chambers in November 1975, only to retire before the clerkship could begin. Chief Justice Warren Burger agreed to interview the disappointed candidate. He and Douglas were hardly ideological or intellectual soulmates, and at the interview the chief justice asked whether he'd be well served by a clerk selected by Douglas. Kozinski replied that he expected to disagree with Burger about as often as he would have with Douglas. 'It turns out that the Chief Justice and I agreed far more often than I had anticipated,' he later wrote in a memorial tribute to Burger.
Kozinski went on to secure a job in the White House counsel's office during the Reagan Administration. It was a heady moment for young conservative lawyers in Washington. 'We were gung-ho Reaganites, all very enthused about cutting back government, which we thought was like fungus,' recalled Loren Smith, then a close friend of Kozinski's and now a senior judge at the U.S. Court of Federal Claims. Kozinski contributed to the esprit de corps by throwing parties. People from different agencies brought their kids, played Trivial Pursuit, and ate 'Kozinski squares'brownies laced with caramel candy.
In 1981, Kozinski became special counsel to the Merit Systems Protection Board, the federal agency charged with protecting whistleblowers. It was a credential-building job in a low-status agency. Riding the Washington Metro one morning, he read an article about a new U.S. Claims Court, which was slated to hear cases against the government involving federal contracts and tax refunds. 'I said 'Shazam! That's my job!'' Kozinski said, pounding the table. 'I called some friends in the Administration and said, 'How about me for chief justice?' They laughed. So I waited a few days, and I called again. Pretty soon they forgot the idea came from me.' The court opened in 1982 with Kozinski as its first chief.
Kozinski had cannily seen what most of Washington had missed: the new court's potential as a showcase for talent. Kozinski's job as chief judge didn't come with life tenure, but it allowed him to handle big and complex cases, across the street from the White House, in front of lawyers from the Department of Justice. 'Alex was probably one of the few people in the administration who realized that this court existed and what it could be,' said Richard Willard, then assistant attorney general in the civil division of DOJ, and Kozinski's co-clerk from his days with Kennedy. 'Otherwise, that job would have gone to someone older and more politically connected.'
It didn't take long for Kozinski to map out his next step up: an appointment to the Ninth Circuit to fill a new judgeship created in 1985. When he talked to Kennedy about the idea, his mentor tried to dissuade him. 'The isolation, the serenity, the quiet of an appellate court for a younger man is a risky undertaking,' he recalled recently, introducing Kozinski at an awards dinner. 'It's risky because you miss so much of life's experience, which should shape you as a person and as a judge.' But Kozinski was determined, and he had a growing reputation.
Edwin Meese III, Reagan's powerful attorney general, backed Kozinski's nomination to the Ninth Circuit and then fought for his man. As Meese remembers it, 'Anyone who was a very good potential judge who believed in the Constitution was a target for the left-wingers.' Kozinski was a lightning rod target for Senate Democrats. They were frustrated by the Republicans' success in appointing conservative judges and nervous about approving a 35-year-old who would be the youngest appeals court judge since William Howard Taftand who was already being talked about for the Supreme Court. In a preview of the confirmation battles that have since become routine, Kozinski was attacked by Senators Carl Levin of Michigan and Howard M. Metzenbaum of Ohio as 'too arrogant and insensitive' to serve on the federal bench. Former employees of the Merit Systems Protection Board came forward, some to praise Kozinski and others to charge that he had been a 'cruel' and 'humiliating' boss. It was alleged, for example, that Kozinski had prematurely announced the departure of a long-time worker who had cancer without telling her he was doing so. Kozinski called the announcement 'an unfortunate clerical error.' He squeaked by the Senate on a 54-43 vote, one of the closest splits ever over a judicial nominee.
THE NINTH CIRCUIT, WHOSE JURISDICTION SPRAWLS over nine western states, is often called the country's most liberal appeals court. Seventeen of the judges on the courtthere are now 27have been appointed by Democratic presidents. (The court is allotted 28 seats, one of which is unfilled.) But these numbers are misleading. Five of the 14 Clinton appointees (Barry Silverman, Susan Graber, Ronald Gould, Richard Tallman, and Johnnie Rawlinson) are solid conservatives. Several others are moderates. And it was a Republican appointee, Alfred Goodwin, who wrote the decision to omit 'under God' from public school recitations of the Pledge of Allegiance that so enraged conservatives last year.
There are now 12 liberals and moderates on the court and 15 conservatives. 'It's not a liberal court. It's an ideological court,' said Ben Wizner, a lawyer with the Los Angeles branch of the American Civil Liberties Union. 'You have these titans doing colossal battle with each other.'
Being one of the titans doesn't always get Kozinski far with his colleagues. 'There is a certain amount of eye rolling, a feeling that he inflates his importance,' one former Ninth Circuit clerk said. He and Reinhardt are famous (or infamous) for memos like the ones Kozinski sent about the California recall. 'I think a lot of the judges generally don't particularly care for his memos or for mine,' Reinhardt said. 'I think they think we ought to be more sedate and reserved and act more like their idea of a judge.'
Still, Kozinski is a skillful politician, as his boy-wonder rise to prominence attests. The evening I spent with him in San Francisco, we had dinner with Carlos Bea, a 69-year-old superior court judge who was then awaiting confirmation to the Ninth Circuit. As Bea sipped white wine and listened intently, Kozinski advised him about everything from dealing with a senator's hold on his nomination to choosing law clerks. They joked that when Bea joined the court (as he did two weeks later), en banc votes would be that much easier to win. Kozinski mentioned that he is next in line to be the Ninth Circuit's chief judge but said that he's not terribly excited about the prospect because of the administrative work involved. Bea reminded him of a traditional perk of being chief: 'You'll get to sit on all the en banc panels!'
Kozinski keeps his profile high outside the circuit as well. He's a regular on law school campuses, often as a speaker for the Federalist Society, the résumé-builder of choice for conservative law students. Kozinski also likes to write scholarly articles, many of them about constitutional history and interpretation. But he's not particularly respected by academics in that field. 'His scholarship is just another way to draw attention to himself,' one constitutional law professor said. 'It's fine, but it's not that penetrating. It's more clever than it is profound.'
Kozinski has made his mark with his judicial opinions. The judge is one of the best stylists on the bench, routinely working through 50 or more drafts. 'He would often ask, 'Does it sing?' said Eugene Volokh, a UCLA law professor who is a loyal former clerk and the coauthor with Kozinski of 'Lawsuit, Shmawsuit,' an essay about the increasing use of the word 'chutzpah' in judicial opinions. (Kozinski and Volokh offer two explanations: 'a dramatic increase in the actual amount of chutzpah in the United States,' which they consider unlikely, or the supplanting of Latin with Yiddish as the 'spice in American legal argot.') Kozinski is a master of marshalling facts to support an argument and of letting zingers fly. Professors love to quote his opinions in their casebooks, and Kozinski loves being quoted. 'How important do I think casebooks are?' the judge has written. 'So important that, once in a while, I write an opinion precisely for the purpose of getting into one.'
Law students line up to clerk for Kozinski because of his writing prowess, his network, and his pull. 'Within three hours of accepting my clerkship, I got five calls from former clerks welcoming me aboard,' recalled Steven Engel, now a lawyer at Kirkland & Ellis in Washington. This year's clerksthree women, a Kozinski firstare all 'going upstairs,' as the judge puts it, to work at the Supreme Court.
The downside of clerking for Kozinski is that he owns you. The hours are 9:30 a.m. to 1:30 a.m., with Friday nights and some Saturday nights off. There have been clerks who have been chewed up and spit out by the pressure. 'He goes around telling clerks 'You're the gold medal clerk, you're the silver medal, you're the bronze medal,'' one professor said. 'You subordinate yourself to him and maybe he gets you to the Supreme Court. It's a Faustian bargain.'
Kozinski hasn't succeeded in getting himself to the Supreme Court, though he was frequently mentioned as a likely nominee in the early 1990s. According to former clerks and conservative court-watchers, his name is not on anyone's short list now for several reasons: He doesn't have friends in the right places; he has written too many off-the-wall articles; he's not regarded as reliably right-wing; and he has pissed off the wrong people in the Bush Administration. Whatever the explanation, Kozinski hasn't tried to tame himself in hopes of getting a nomination. 'You might wonder with some of the moderates, whether they're being cautious because they have ambitions,' said Reinhardt. 'I don't think Alex has ever let that affect either his judicial decisions or his personal life.'
Kozinski used to joke about being a member of OOPPSSCA, the Organization of People Patiently Seeking Supreme Court Appointments, but now he seems to accept that he's likely to stay right where he is. 'I decided a long time ago that it ain't worth it,' he said. 'If I don't live the job for all its worth, I cheat myself and the public. So I write my opinions and I try to say something.' The judge leaned back in his scuffed leather chair and took a stab at modesty. 'If I got to choose the next appointee, I'd say Judge Posner,' referring to Richard Posner of the Seventh Circuit. 'Well, if I were being honest rather than ambitious, I would.' He giggled. 'If I thought I could really get it, I'd probably say me.' Kozinski laughed some more, tossed his hair off his forehead, and went back to work.
THE JUDGE'S SECRETARY, DONNA SALTER, who has been with him since his Washington days, made banana bread on the Friday morning of the vote to rehear the recall case. There was a loaf with chocolate chips for the clerks and a loaf without for the judge. Kozinski was eating a piece as he watched the e-mails come in. After celebrating the outcome of the vote, he settled in for the announcement of the en banc panel. On other federal appeals courts, every judge hears each en banc case. But the Ninth Circuit is considered too large for this practice, so the names of 11 judges are picked out of a jewelry box. When the e-mail announcing the selection arrived, two of Kozinski's clerks came into his office to read over his shoulder. 'Oh, my God,' the judge said. 'It's a bone-breaking court.' There were two liberals, one moderate, and eight conservatives, including Kozinski, on the list.
Oral argument in the case was held in San Francisco the following Monday. Kozinski needled both sides with his favorite kind of questions, uncomfortable hypotheticals, and he otherwise dominated the proceedings. When Mark Rosenbaum, the ACLU's chief counsel, looked overwhelmed after learning that he had just 30 seconds left to rebut his opponents' arguments, Kozinski encouraged the lawyer, calling him a 'fast talker.' Rosenbaum proceeded to race through his argument, saying, in sum, that this was 'the strongest case that has ever been in this circus. Um, circuit.' The gaffe broke up the courtroom.
The next day, the 11-judge panel issued a short, unsigned opinion clearing the way for the October election in which voters recalled Davis and replaced him with Arnold Schwarzenegger. The decision conceded that the plaintiffs, a consortium of civil rights groups, were 'legitimately concerned' that the punch-card machines would deny the right to vote to some voters. The public hardship of postponing the election outweighed that consideration, however. The decision was unanimous.
For Kozinski, more than for most judges, the job is about these moments of triumph. One of the judge's favorite images of himself is a photograph by Helmut Newton. It was taken for Kozinski's New Yorker article, though the magazine didn't end up running it. A print of the photo hangs on the wall of his chambers and a scanned version adorns the desktop of his computer. In it, Kozinski is standing on the roof of his chambers. Behind him is a huge fan, but it's out of the camera's range. What you see is the judge, dramatically backlit against a gray sky, his robe billowing out behind him. He is carrying a great, grand book of statutes. It's the image of a man wielding power with a thrill.
Emily Bazelon is a senior editor at Legal Affairs.
There’s always something fun going on in the Ninth Circuit. Last week, the Court voted against rehearing en banc in United States v. Alvarez, a case raising the constitutionality of the Stolen Valor Act (a law that essentially criminalizes false claims of military heroism). A divided three-judge panel struck down the Act on First Amendment grounds, and the Ninth Circuit voted against reconsidering that decision en banc.
Judge Diarmuid O’Scannlain (disclosure: my former boss) wrote a spirited and persuasive dissent from the denial of rehearing en banc, on behalf of himself and six other judges. The dissenters argued that the Act passes constitutional muster and that the First Amendment does not protect knowingly false statements of fact (subject to certain exceptions not presented by the law). The position that the Stolen Valor Act is constitutional is shared by a number of prominent scholars, including First Amendment guru Eugene Volokh.
But this is far from an open-and-shut case (unlike many of the Ninth Circuit cases that generate dissents from denial of rehearing, which we’ve previously described as the “Bat Signal” flashed by right-of-center Ninth Circuit judges to the Supreme Court when the lefties run amok). On the other side of the Alvarez case was Chief Judge Alex Kozinski — Professor Volokh’s former boss, and a jurist who, like Judge O’Scannlain, is often vindicated by SCOTUS smackdowns of Ninth Circuit liberals.
(Digression: I don’t like it when two of my most favorite federal judges cross swords! It’s like watching a fight between My Two Dads. I’d much rather see the two of them join forces against the Emperor Palpatine and She Who Must Not Be Named.)
Chief Judge Kozinski wrote a rather colorful concurrence to the denial of rehearing en banc. Some hilarious highlights from it, plus a fun movie-related tidbit from His Honor, after the jump.
The key passages from the Kozinski concurrence have been previously noted by a number of SCOTUS watchers, including Robert Barnes of the Washington Post, who sees the case as a likely candidate for Supreme Court review, and Josh Blackman, founder of FantasySCOTUS. Harlan picks out this great excerpt from the Kozinski concurrence:
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny [sic],” “I got stuck in traffic”and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”
Harlan offers this amusing observation: “Don’t mess with JDate. For what it’s worth, I did an ALLFEDS search for jdate! and there were zero hits. Another first for Koz.”
And then there’s this:
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”);to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“ButI love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
See also “Oh no, Judge, that paragraph isn’t too long!”
(Seriously, though, it’s an awesome paragraph. The length, while perhaps excessive, is forgivable.)
Chief Judge Kozinski continues:
And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?
(Hey, don’t knock plastic surgery — it paid for my college and law school. If you call my parents for a consultation, be sure to ask for the ATL reader discount.)
Okay, that’s enough quotation from the pages of F.3d for one post. Let’s turn our attention to the movie-related tidbit.
Recall Chief Judge Kozinski’s recent recommendation of the new movie Atlas Shrugged: Part I. Then check out this message, which I recently received from His Honor:
I got numerous comments from ATL readers who were jealous of the fact that I had seen Atlas Shrugged before it was out in the theaters. Now there is something they can do to be part of Atlas Shrugged history. This video explains it:
You (and they) will have to wait and see which and how many of the Kozinski extended family will post a video.
Stay tuned — about Alvarez, and about Atlas Shrugged. If Chief Judge Kozinski shows up on the DVD, it should do wonders for sales!
Yours truly and Chief Judge Kozinski
United States v. Alvarez [U.S. Court of Appeals for the Ninth Circuit via How Appealing]
Is lying protected speech? [Washington Post]
Kozinski: “Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy” [Josh Blackman]
District Court Upholds Stolen Valor Act Against First Amendment Challenge [Volokh Conspiracy]
Earlier: A Movie Recommendation from Chief Judge Kozinski