Commentary

Hail to the Chief: Kozinski’s Reign May Restore Sanity to 9th Circuit

On Dec. 1, Alex Kozinski became chief judge of the U.S. Court of Appeals for the 9th Circuit, covering California and much of the West. With that, the chief judges of all the federal circuit courts owe their appointments to either Ronald Reagan or George H.W. Bush. While the role of chief judge in these appellate courts is mainly administrative, the chief sets the tone for his court. Kozinski thus has the opportunity to subtly affect the operations of the largest, most ideological court in the country, the one the Supreme Court reverses far more than any other.

Born in Bucharest, Kozinski fled communist Romania with his family, settling in West Hollywood. His keen intellect led him to the libertarian instincts that now flummox liberals and conservatives alike. And he developed a certain flair that would become his trademark as a jurist: As a contestant on The Dating Game in the 1970s, he won over his bachelorette with “good afternoon, flower of my heart.”

After graduating from UCLA Law School, clerking for Judge Anthony Kennedy and Chief Justice Warren Burger, and holding a string of prestigious government positions, Kozinski became the nation’s youngest federal circuit judge in 1985. Over the next 20 years, he gained a reputation as an idiosyncratic court jester, winning both praise and opprobrium, and became an undisputed star of the federal judiciary — and, according to a 2004 Internet poll, the No. 1 Male Superhottie of the federal bench.

Kozinski’s opinions in cases such as Kojayan (which vacated drug convictions for prosecutorial misconduct and excoriated the prosecutor by name) and Ramirez- Lopez (wherein Kozinski’s dissent caused the government to drop its charges after the conviction was affirmed on appeal) established him as a principled defender of individual liberties. Yet he is also a stickler for procedural rules and jurisprudential consistency, annoying his good friend and colleague Judge Stephen Reinhardt (one of the most liberal judges in the country) to no end.

At other times, Kozinski simply enforces legal common sense: When the 9th Circuit denied Ted Kaczynski (aka the Unabomber) the right to represent himself because he vehemently objected to his lawyers’ decision to portray him as mentally deranged, Kozinski wrote a sharp dissent. Although Kaczynski insisted that he was willing to proceed to trial post haste, the court found his motion to be made for purposes of delay. “Is this 1984, or what?” Kozinski retorted, arguing that worse even than facing the death penalty is “being treated by our legal system as less than human, a thing to be manipulated, supposedly for one’s own good.”

Kozinski reached perhaps the pinnacle of his “crossover” appeal in his 2002 opinion in Mattel v. MCA Records — or what has become known as “the Barbie case.” “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong,” began the judge-cum-art critic. After methodically — but entertainingly — slogging through a broad swath of trademark law, Kozinski found that the song “Barbie Girl” (the top 40 hit from a decade ago) did not harm Mattel’s interest in the doll the song parodied. “The parties are advised to chill,” he concluded, hearkening to his 1998 opinion in another intellectual property case, where he described the video game “Duke Nukem” to be “immensely popular (and very cool).”

The readability of Kozinski’s opinions only enhance the power of his defense of private property — his views on the Kelo takings case notwithstanding — free speech, and freedom from state coercion, as well as the power of his originalist take on the Constitution and formalist approach to statutory interpretation.

Kozinski is but the highest-profile example of Reagan’s current chief judges, many of whom would have been on the Supreme Court in different political circumstances.”

Kozinski is but the highest-profile example of Reagan’s current chief judges, many of whom would have been on the Supreme Court in different political circumstances. Douglas Ginsburg of the D.C. Circuit (whose nomination to the high court stalled on a pre-Clintonian admission of having smoked marijuana) and Danny Boggs of the 6th Circuit lead the libertarian charge. The 5th Circuit’s Edith Jones (runner-up to David Souter for Justice William Brennan’s seat), and the 7th Circuit’s Frank Easterbrook represent a more conservative view. And the pragmatic Richard Posner, a predecessor of Easterbrook, is probably the most famous name in today’s legal world (and a polymath authority on most everything).

By federal law, a circuit judge rises to the position of chief judge based simply on seniority: He or she is the longest-serving active judge among those under 65 who have been on the bench at least one year and have not previously served as chief. The term runs for seven years. A press release announcing the 9th Circuit’s “changing of the guard” explained that “Judge Kozinski also believes that looks count, though he can provide no support for that proposition.”

Yet the chief judge is the executive officer for all federal courts in a circuit — which for the 9th includes 15 trial-level districts spread over nine states and two territories. Perhaps most importantly, he presides over the en banc courts that resolve intra-circuit legal confl icts or other cases of high importance. The sprawling 9th Circuit counts 28 judgeships (including one current vacancy) and is the only circuit whose en banc court consists of fewer than all of its judges (11). Kozinski will now be on every such panel.

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.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute in Washington, D.C.