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

This article appeared in the Los Angeles Daily Journal on December 24, 2007.

On Dec. 1, Alex Kozinskibecame chief judge of theU.S. Court of Appeals forthe 9th Circuit, coveringCalifornia and much of the West.With that, the chief judges of all thefederal circuit courts owe their appointmentsto either Ronald Reaganor George H.W. Bush. While therole of chief judge in these appellatecourts is mainly administrative, thechief sets the tone for his court.Kozinski thus has the opportunityto subtly affect the operations ofthe largest, most ideological courtin the country, the one the SupremeCourt reverses far more than anyother.

Born in Bucharest, Kozinskifled communist Romania with hisfamily, settling in West Hollywood.His keen intellect led himto the libertarian instincts thatnow flummox liberals and conservativesalike. And he developed acertain flair that would becomehis trademark as a jurist: As acontestant on The Dating Gamein the 1970s, he won over his bachelorettewith "good afternoon,flower of my heart."

After graduating from UCLALaw School, clerking for JudgeAnthony Kennedy and Chief JusticeWarren Burger, and holdinga string of prestigious governmentpositions, Kozinski became thenation's youngest federal circuitjudge in 1985. Over the next 20years, he gained a reputation asan idiosyncratic court jester, winningboth praise and opprobrium,and became an undisputed starof the federal judiciary — and,according to a 2004 Internet poll,the No. 1 Male Superhottie of thefederal bench.

Kozinski's opinions in casessuch as Kojayan (which vacateddrug convictions for prosecutorialmisconduct and excoriated theprosecutor by name) and Ramirez-Lopez (wherein Kozinski's dissentcaused the government to drop itscharges after the conviction wasaffirmed on appeal) establishedhim as a principleddefender of individualliberties. Yet he is alsoa stickler for proceduralrules and jurisprudentialconsistency, annoyinghis good friend andcolleague Judge StephenReinhardt (one of the mostliberal judges in the country)to no end.

At other times, Kozinskisimply enforces legalcommon sense: When the 9thCircuit denied Ted Kaczynski(aka the Unabomber) the rightto represent himself becausehe vehemently objected to hislawyers' decision to portray himas mentally deranged, Kozinskiwrote a sharp dissent. AlthoughKaczynski insisted that he waswilling to proceed to trial posthaste, the court found his motionto be made for purposes of delay."Is this 1984, or what?" Kozinskiretorted, arguing that worse eventhan facing the death penalty is"being treated by our legal systemas less than human, a thing to bemanipulated, supposedly for one'sown good."

Kozinski reached perhaps thepinnacle of his "crossover" appealin his 2002 opinion in Mattel v.MCA Records — or what has becomeknown as "the Barbie case.""If this were a sci-fi melodrama,it might be called Speech-Zillameets Trademark Kong," beganthe judge-cum-art critic. Aftermethodically — but entertainingly— slogging through a broadswath of trademark law, Kozinskifound that the song "Barbie Girl"(the top 40 hit from a decade ago)did not harm Mattel's interest inthe doll the song parodied. "Theparties are advised to chill," heconcluded, hearkening to his 1998opinion in another intellectualproperty case, where he describedthe video game "Duke Nukem" tobe "immensely popular (and verycool)."

The readability of Kozinski'sopinions only enhance the powerof his defense of private property— his views on the Kelo takingscase notwithstanding — freespeech, and freedom from statecoercion, as well as thepower of hisoriginalist take on the Constitutionand formalist approach tostatutory interpretation.

Kozinski is but the highest-profile example of Reagan's currentchief judges, many of whom wouldhave been on the Supreme Courtin different political circumstances.Douglas Ginsburg of the D.C.Circuit (whose nomination to thehigh court stalled on a pre-Clintonianadmission of having smokedmarijuana) and Danny Boggs ofthe 6th Circuit lead the libertariancharge. The 5th Circuit's EdithJones (runner-up to David Souterfor Justice William Brennan'sseat), and the 7th Circuit's FrankEasterbrook represent a more conservativeview. And the pragmaticRichard Posner, a predecessorof Easterbrook, is probably themost famous name in today's legalworld (and a polymath authorityon most everything).

By federal law, a circuit judgerises to the position of chief judgebased simply on seniority: He orshe is the longest-serving activejudge among those under 65 whohave been on the bench at leastone year and have not previouslyserved as chief. The term runsfor seven years. A press releaseannouncing the 9th Circuit's"changing of the guard" explainedthat "Judge Kozinski also believesthat looks count, though he canprovide no support for thatproposition."

Yet thechief judgeis the executiveofficerfor all federalcourts in a circuit— which for the 9thincludes 15 trial-leveldistricts spread over ninestates and two territories.Perhaps most importantly, hepresides over the en banc courtsthat resolve intra-circuit legalconfl icts or other cases of highimportance. The sprawling 9thCircuit counts 28 judgeships(including one current vacancy)and is the only circuit whoseen banc court consists of fewerthan all of its judges (11). Kozinskiwill now be on every suchpanel.

Kozinski's personal style mayrub some of his colleagues thewrong way, but just maybe thecourt as a whole — so long deridedas being out of step withthe rest of the country — will, inbetter reflecting its new chief'squirks, fall into line.