Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. (Paul Sakuma, Pool via Associated Press)
It’s hard to exaggerate the affection and admiration conservative court-watchers felt for Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. He was outspoken, irreverent, sharp-tongued and brilliant. From one concurrence in 2011 on the Stolen Valor Act (lying about military heroism):
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.”
In U.S. v. Syufy Enterprises, a movie theater antitrust case, he famously worked in more than 200 movie titles. (““Absent structural constraints that keep competition from performing its levelling function, few businesses can dictate terms to customers or suppliers with impunity. It’s risky business even to try. As Syufy learned in dealing with Orion and his other suppliers, a larger company often is more vulnerable to a squeeze play than a smaller one. It is for that reason that neither size nor market share alone suffice to establish a monopoly. Without the power to exclude competition, large companies that try to throw their weight around may find themselves sitting ducks for leaner, hungrier competitors. Or, as Syufy saw, the tactic may boomerang, causing big trouble with suppliers.”)
He was not shy about condemning results-oriented judging. In a Second Amendment case, he took his liberal colleagues to task:
As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
He was a favorite subject of scholarly articles. (One began: “This Article, based on an over ninety-minute interview with Judge Kozinski in his Pasadena, California offices in August 2002, provides a first-hand look at his thoughts on a range of both First Amendment issues and cases such as New York Times v. Sullivan and Hustler Magazine v. Falwell. In the process, he describes what he believes may be the most important free speech issue soon facing the federal courts — the extent to which recently-enacted anti-terrorism statutes may abridge freedom of speech and, therefore, the Fourth Amendment — as well as his belief that freedom of speech serves as an essential bulwark against totalitarianism.”)
He could take a dull topic (“Mattel appeals the district court’s ruling that Barbie Girl is a parody of Barbie and a nominative fair use; that MCA’s use of the term Barbie is not likely to confuse consumers as to Mattel’s affiliation with Barbie Girl or dilute the Barbie mark; and that Mattel cannot assert an unfair competition claim under the Paris Convention for the Protection of Industrial Property”) and spin it into judicial gold. He began his opinion: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” He ended with:
After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a “social commentary [that was] not created or approved by the makers of the doll,” a Mattel representative responded by saying, “That’s unacceptable․ It’s akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal.” He later characterized the song as a “theft” of “another company’s property.”
MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole” … The parties are advised to chill.
But, it turns out, he was also apparently a creep. And that was his downfall, the cause of his disgrace and the end of his legal career.
Alex Kozinski, the powerful judge on the U.S. Court of Appeals for the 9th Circuit who was facing a judicial investigation over allegations that he subjected 15 women to inappropriate sexual behavior, announced Monday that he would retire effective immediately.
In a statement provided by his lawyer, Kozinski apologized, saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike” and that, “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace.”
“It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent,” he said. “For this I sincerely apologize.”
“Feel uncomfortable”?! What would a Kozinski opinion say about that dismissive tone, bearing no self-awareness or real shame? The Post recounts a few of the complaints:
One former clerk, Heidi Bond, who worked for Kozinski from 2006 to 2007, said the judge called her into his chambers at least three times to show her porn, asking her if it was digitally altered or if it aroused her. Bond said Kozinski also showed her a chart that purported to depict women with whom he and his college classmates had sexual relations.
“When this happened, I felt like a prey animal — as if I had to make myself small,” Bond wrote in a first person account of her interactions with the judge. “If I did, if I never admitted to having any emotions at all, I would get through it.”
Another woman, Emily Murphy, who clerked for a different judge in the 9th Circuit, said Kozinski talked about her working out naked when she and other clerks were discussing training regimens. When the group tried to change the subject, Murphy and others present said, Kozinski kept steering the conversation back toward the idea of Murphy exercising without clothes.
For a federal court judge, one familiar with federal workplace protections and sexual harassment jurisdiction, to be so cavalier and clueless might stun observers. But federal court judges — especially those whose fame confirms their self-image as brilliant scholars unrestrained by stuffy jurisprudential conventions — are virtual potentates in their courtrooms. Protected by lifetime tenure and treated with reverence by obsequious litigants, they can become imperious and arrogant. And when that air of self-importance and blinding hubris takes root, they are unlikely to think of themselves as mere mortals constrained by the rules that others must follow.
In this case, the downfall of a judge — and his humiliation — might strike some as Shakespearean. Or, as Kozinski might describe (via “King Lear“) in one of his rakish opinions: “A knave; a rascal; an eater of broken meats; a base, proud, shallow, beggarly, three-suited, hundred-pound, filthy, worsted-stocking knave; a lily-livered, action-taking knave, a whoreson, glass-gazing, super-serviceable finical rogue; one-trunk-inheriting slave; one that wouldst be a bawd, in way of good service, and art nothing but the composition of a knave, beggar, coward, pandar, and the son and heir of a mongrel bitch: one whom I will beat into clamorous whining, if thou deniest the least syllable of thy addition.”