New Look for 9th Circuit

February 10, 2008 • Commentary
This article appeared in the Arizona Republic on February 10, 2008.

In early December, Alex Kozinski became chief judge of the 9th U.S. Circuit Court of Appeals, covering Arizona and much of the West, including California. With this elevation, the chief judges of all federal circuits now owe their appointments to either Ronald Reagan or George H.W. Bush.

Although the role of chief judge is mainly administrative, the chief sets the tone, so Kozinski has the opportunity to influence the largest court in the country — and the one the Supreme Court reverses most often by far.

Born in Bucharest, Kozinski fled Communist Romania with his family, settling in West Hollywood. His experiences behind the Iron Curtain instilled in him a distrust of government, an awareness of the limits of good intentions and suspicions of placing unchecked power in the hands of either judges or politicians — all of which 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 a “good afternoon, flower of my heart.”

After graduating from UCLA Law School, clerking for then‐​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 becoming an undisputed star of the federal bench — and, according to a 2004 Internet poll, the honor of being No. 1 Male Superhottie. (As a news release announcing the promotion put it, “Judge Kozinski also believes that looks count, though he can provide no support for that proposition.”)

Kozinski’s opinions in criminal cases established him as a principled defender of civil liberties. Yet he has also been a stickler for procedural rules and jurisprudential consistency, annoying his good friend and colleague Judge Stephen Reinhardt (one of the nation’s most liberal judges) to no end.

Kozinski often 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. “Is this 1984, or what?” Kozinski quipped, 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 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 in his opinion. After methodically but entertainingly slogging through a broad swath of intellectual property law, Kozinski found that the parody song Barbie Girl (the top‐​40 hit from a decade ago) did not harm the doll’s manufacturer. “The parties are advised to chill,” he concluded.

The readability of Kozinski’s opinions only strengthen his defenses of private property, free speech and freedom from state coercion, as well as the power of his originalist reading of the Constitution and formalist approach to statutory interpretation.

With his new title, Kozinski becomes the highest‐​profile judge to have been picked by President Reagan.

Many of his fellow Reagan appointees would have been on the Supreme Court under different political circumstances. Douglas Ginsburg (whose nomination to the high court stalled on a pre‐​Clintonian admission of having smoked marijuana), and Danny Boggs led the libertarian charge. Edith Jones (runner‐​up to David Souter for Justice William Brennan’s seat in 1990) and Frank Easterbrook represent a more conservative view. And the pragmatic Richard Posner, a predecessor of Easterbrook on the Chicago‐​based 7th Circuit, is probably the most famous name in today’s legal world (and a polymath authority on most everything).

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 not previously served as chief.

Yet the chief is also the executive officer for all federal courts in a circuit, which for the 9th includes 15 trial‐​level districts in nine states and two territories. Perhaps most importantly, he presides over the en banc courts that resolve intracircuit conflicts and other important cases.

The sprawling 9th is the only circuit whose en banc court consists of fewer than all its judges, and 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.

About the Author
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.