The LA Times yesterday revealed that Chief Judge Alex Kozinski of the Ninth Circuit, one of the highest-profile jurists this side of the Supreme Court, has stored various sorts of pornography (to put it mildly) on a publicly accessible website featuring sexually explicit photos and videos. (The site is now down.) Kozinski conceded in the LAT interview that some of the material was inappropriate, but defended other sexually explicit content as “funny.” The story came out because – from the department of “you can’t make this up” – Kozinski was slated to preside over the obscenity trial of a filmmaker whose movies featured, among other things, bestiality and defecation.
Kozinski, who is a staunch defender of the First Amendment and generally a great friend of liberty, was assigned the case as part of a rotation in which he and other appellate judges occasionally “sit by designation” in the lower courts. With the revelation of the judge’s own stash of materials that arguably parallel the defendant’s, we already hear demands that Kozinski recuse himself from this particular case. Setting aside the merits of obscenity law and jurisprudence or even judging, as it were, Kozinski’s behavior, a reasonable argument can be made for recusal simply because the high-profile nature of the case, combined with the high-profile nature of this strange episode, can easily lead to an appearance of impropriety. Heck, Supreme Court justices recuse themselves for much less – such as holding small amounts of stock in large corporations that would benefit from a given ruling. (Then again, they also refuse to recuse themselves for what could be called more, like when Justice Scalia went duck-hunting with Vice President Cheney while a case involving the latter was pending before the Court.)
But that is where this should stop. While Kozinski surely showed questionable judgment (and/or technological ineptitude – equally surprising given the judge’s penchant for video games and scholarly writings on intellectual property) in not keeping his collection of pictures and videos private, his performance on the bench has been nothing short of exemplary. While Kozinski’s libertarian instincts at times flummox liberals and conservatives alike, and his colorful personality and writing style are unusual if not welcome in the often staid legal world, the man is a judge’s judge.
Because Kozinski typically shares Cato’s constitutional leanings (with a notable exception on the Fifth Amendment’s Takings Clause), I wrote about him here and here, after he took over the chief judge’s gavel in December of last year. I concluded my articles thus:
Kozinski’s personal style may rub some of his colleagues the wrong way, but just maybe the court as a whole — so long derided as being out of step with the rest of the country — will, in better reflecting its new chief’s quirks, fall into line.
I clearly wasn’t talking about the sorts of quirks that we now see, but perhaps nothing should surprise us about those who practice law (or sit on the bench) in what many call the “Ninth Circus.” Regardless of where this episode ends, it is a bizarre turn of events.