The Controversy Over Judge Alex Kozinski and His Website: Why the Facts, as We Now Know Them, Do Not Provide Reason for This Talented Jurist to Step Down

By EDWARD LAZARUS


Thursday, Jun. 19, 2008

In legal circles, the scandal du jour involves Judge Alex Kozinski, the flamboyant, controversial, and brilliant Chief Judge of the United States Court of Appeals for the Ninth Circuit. Over the last week, it has been revealed that a restricted-access website that was owned and operated by his family, and in which Judge Kozinski participated, contained what might best be described as smutty humor – naughty pictures that were mostly intended to amuse. Some of the photos were arguably in very bad taste, and some were pornographic, but none were obscene.

The contents of the website came to light while Judge Kozinski was presiding over a high-profile obscenity trial. Thus far, the resulting furor has caused Judge Kozinski to declare a mistrial in the case and to refer the whole situation for investigation. The investigation will be conducted by the East Coast-based U.S. Court of Appeals for the Third Circuit. The press is also reporting widespread speculation about whether Judge Kozinski will have to step down as Chief Judge of the Ninth Circuit.

In this column, I’ll argue that there is currently no reason for Kozinski to step down, and that if he did, it would be a serious and unnecessary loss to the federal judiciary.

The Facts Here Do Not Support Punishing Judge Kozinski

It is no secret that Judge Kozinski and I have crossed swords in the past. He challenged my ethics in writing about the Supreme Court from the perspective of a former clerk. And I challenged his ethics in leveling false and irresponsible charges.

But the scandal now engulfing Judge Kozinski has spread beyond all proportion, and the facts as we currently know them have no business imperiling the career and legacy of an unusually talented judge whose contributions to the law are undeniable and legion. Judges, even high-placed and respected ones, sometimes do real damage to our body politic – damage for which they genuinely should be called to account. But the Kozinski imbroglio is not such an instance. With respect to the judiciary, as elsewhere, we should resist our seemingly irresistible tendency to lose sight of what’s important, and to focus instead on the unimportant but salacious.

The basic facts of what happened do not seem to be in much dispute. The website in question was maintained by Judge Kozinski’s son. It was intended to be used for sharing materials within the family and a select few others. The files on the site contained some smutty material (how much is unclear), including some uploaded by Judge Kozinski, as well as a lot of innocuous stuff. Access to the site was password-protected, but the site’s security set-up was weak. As a result, a litigant with an axe to grind was able to circumvent the password protection and gain access to the site’s files, including the file with the off-color images. Others also later accessed the site. The Los Angeles Times then deemed the story newsworthy, especially, it appears, in light of Judge Kozinski’s role presiding over an obscenity case. The rest, as they say, is history.

What is it that Judge Kozinski did wrong exactly? Most of us probably don’t share his taste in humor and entertainment. Some of us might be offended by it. But no one can plausibly argue that the images in question were illegal, or even close to the line.

As described by some, Judge Kozinski’s real crime seems to be either that he did not provide more effective security on this private web address or that, given his taste in humor and entertainment, he should never have agreed to preside over an obscenity trial. Neither contention makes much sense.

It’s Ironic that Judge Kozinski – Whose Privacy Was Violated – Is Now the One Facing Blame

Surely, we cannot condemn someone, or at least not much, for failing to appreciate the “hackability” of his family’s password-protected website. The early stories about the site described it as “publicly accessible” – but it would be more accurate to say that the content was publicly accessible only to someone with the talent and gumption to circumvent the password security system.

Why should Judge Kozinski take the blame for this invasion of his privacy? If someone jumps your back fence to peek through the rear windows of your house, and sees you doing something embarrassing, are you the one to blame because you didn’t line the top of the fence with barbed wire? I don’t think so.

Nor should the fact that a judge has collected some racy pictures automatically disqualify that judge from presiding over an obscenity trial involving fetishism films that bear no resemblance to the website images that Judge Kozinski kept. It’s too Victorian for my tastes to say that a judge’s taking occasional enjoyment in rather juvenile visual sexual humor means that he cannot preside over a jury trial involving the question of whether a filmmaker’s fetishism pornography was so devoid of artistic content or redeeming social value as to cross the line into obscenity. By this standard, any judge who owns an X-rated DVD, or has a few Mapplethorpe prints at home, or keeps a Playboy magazine would be disqualified.

This is not to say that Judge Kozinski should have stayed on the case after the contents of his closely-held files were revealed, or that the revelation and subsequent recusal are without import. Given the huge hubbub created by the press stories, Judge Kozinski was wise to take himself off the case even without a motion from one of the parties. The appearance of possible impropriety can exist even when no real impropriety does, and that ironic truth is incorporated into recusal standards, which seek to maintain not only propriety, but public confidence in the judiciary.

This recusal came at considerable cost. The jury had already been impaneled after a lot of effort. That effort is now wasted and, worse still, the declaration of a mistrial at such a late stage may trigger some double jeopardy problems for the government. It’s a shame it was necessary, but it was necessary not because Judge Kozinski maintained a family website, but because the site’s password was hacked.

The Cost of Eliminating Jurists Like Judge Kozinski: Dull Judges Who Lack Humanity, Humor, Personality and Spark

The whole episode, moreover, has put some dings into the armor of sober propriety in which we cloak the judiciary and its processes. The revelations are unseemly and tip the pedestal on which judges, at least in our cultural mythology, are supposed to stand.

But here, again, I do not think that Judge Kozinski can be much faulted for causing these harms unless we are willing – as we most definitely should not be – to erase the barrier between private and public conduct. The reason we value our privacy is precisely because many of us do, think, and say things behind closed doors that don’t necessarily conform with the norms of public morality. Thus, few, if any, of us would be happy with the details of our private lives splashed on the front page of the New York Times, as the saying goes – but Judge Kozinski had to see the details of his splashed on the Los Angeles Times’s pages. We value having a place where we can be rude or unvarnished or silly or a bit of a jerk, or just different from the norm, without fear of public exposure or consequence or having to explain. Judges too should be able to guard that private place.

To be sure, there are lines that we cannot cross. But leaving aside unlawful conduct, the Kozinski situation raises an important question: How should we respond when we pry open a window into a peculiar corner of a public figure’s distinctly private life? It is probably too much to ask that we ignore what we see through such a window. But we would be very wrong to dwell on it, or to punish public servants on this basis, unless we want public office to be held by only the most monochromatic and unimaginative people in our society.

That’s a price I would hate to pay. And Judge Kozinski proves the point. He’s quirky, irrepressible, and possessed of a remarkably restless and wide-ranging intellect that is well-suited to his brand of libertarian conservatism. Some – indeed, even some of his friends I would venture -- would say that he has suffered lapses in judgment, including writing some intemperate and unforgiving opinions. But for decades, he has proven by his public conduct to be an incredibly dedicated judge who has become influential in field after field of law by the sheer force of his reasoning. Most lawyers, especially those who have hard, complicated cases worthy of deep consideration, can only pray to get a judge like Alex Kozinski.

This is the complicated but exceptional record on which Judge Kozinski is rightly assessed. As for the private stuff -- that has little if any place in the discussion, and should swiftly be relegated to the category of “Judge not lest thou be judged.”

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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