The Kozinski Kerfuffle

Note: opinions contained herein are representative only of the author and not of W&L Fed Soc as a whole. The aforementioned author makes no pretense of impartiality.

For those who have been living under a rock, honeymooning, or studying for the bar in the past week: the LA Times reported that Chief Judge Kozinski was running a porn website. Worse yet, he was running a porn website... while presiding over a high-profile obscenity trial. (Appellate judges will occasionally cover trials; Judge Kozinksi once said that he takes them at least once a year so that his clerks will see trials as well as appellate practise.) According to the LA Times, one of the files contained a video of a man "cavorting" in a field with an obviously aroused donkey; others contained paedophilia and content of a sexual nature.

In light of the controversy, Judge Kozinski recused himself from the trial and called for an investigation into himself. As he is the Chief Judge of the Ninth Circuit, he requested that another circuit conduct the investigation; Chief Justice Roberts assigned five judges from the Third Circuit to fulfill this duty.

At least that's what the LA Times - and every newspaper and media outlet that has since picked up this story - has said. Ultimately, the porn was not porn; the website was not a website; and the person who broke into the Kozinski's server and then leaked the contents to the LA Times is a litigant with a long-standing grudge against the jurist.

In 2005, Cyrus Sanai - a California attorney with a pending motion for en banc review of the Ninth Circuit's refusal to intervene in the state proceedings of his parents' divorce case - penned an article (in the Recorder, a SF newspaper) about the Rooker-Feldman doctrine, entitled, "Taking The Kozinski Challenge." Judge Kozinski was not one of the judges who had originally decided his case, but had Sanai's motion for en banc review on his desk. Problematically, Sanai's article did not mention his affiliation with pending litigation, but contained this as its last line:

Granting en banc review of the next unpublished decision which raises the three-way Rooker-Feldman conflict would be a good start.

Kozinski's response (here)
discussed the Rooker-Feldman doctrine. The judge also stated that Sanai was not an unbiased observer of an archaic area of jurisprudence:

A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai's article appeared in print. The name of the case? Sanai v. Sanai. A mere coincidence of names? Not hardly. The petition, signed by Mr. Sanai, cites the same cases and makes the same arguments as his article -- including the reference to "Catch-22."

Judge Kozinski then discussed Sanai's perpetual turmoil with the judiciary. He quoted a district judge's decision which described Sanai's actions as "an indescribable abuse of the legal process, ... the most abusive and obstructive litigation tactics this court has ever encountered." Judge Kozinski linked to a pdf stored on his family's server (which could, before this mess, be accessed remotely at alex.kozinski.com), that described how Sanai had forced a state court judge off of his family's divorce case.

In response, Sanai made a motion to have Judge Kozinski investigated for a breach of judicial ethics (specifically, for commenting on a case before him). Judge Kozinski apologised; the investigative panel (at that time, Judge Mary Schroeder was the Chief Judge of the Ninth Circuit) found no wrongoing.

Sanai then spent months looking into the Kozinski's web server. The "site" contains no internal structure to guide a user through it; unlike, say, this blog, it does not have a tool bar for navigation, archives, or a directory structure. The vast majority of the server is not indexed on search engines (the judge's writings, however, could be found there). Sanai, during his travels, happened across the now-infamous "stuff" folder, which contains, inter alia, sexual humour. This was in December. The attorney, or the LA Times (it is unclear which) waited until Judge Kozinski had empaneled a jury and begun to preside over an obscenity trial before breaking the story, which ensured that it would do maximum damage to his reputation - and be more newsworthy.

Sanai has admitted that this is all part of his "litigation strategy."

Judge Kozinki's wife, Marcy J.K. Tiffany, penned the a letter to Patterico's Pontifications. Her beautiful letter (please read it - it's worth it!) explained the nature of the family's server, the uses to which they put it, the role of Cyrus Sanai, and the nature of the alleged "porn." Ms. Tiffany stated:

One especially egregious misrepresentation is that there was a “video of a half-dressed man cavorting with a sexually aroused farm animal.” In subsequent articles, including one in the S.F. Chronicle, this has been described as a “bestiality” video. In fact, as you reveal on your Blog, it is a widely available video of a man trying to relieve himself a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other. I would note that there is a version of this video on YouTube that apparently aired on the Fox channel. Crude and juvenile, for sure, but not by any stretch of the imagination is it bestiality. The fact is, Alex is not into porn - he is into funny – and sometimes funny has a sexual character.

For another good read, Stephen Gianelli's response to the LA Times is here.

Now, for my own thoughts:

Judge Kozinski is just that - a federal judge. While we ought to hold judges to a higher standard than other people, such standard-making belongs in confirmation hearings, not as "litigation strategy." Senators, who presumably do not have business before the court upon which an appointee will sit, may make an unbiased and thorough examination of the appointee's character, ability to judge without partiality, and fitness for the bench. Once confirmed, however, such oversight from the government would border on tyranny. We would, appropriately, be afraid of government officials who would smear the reputation of jurists with whom they disagree. Such actions would castrate the third branch of government, which would be unable to function as a check on the power of the other two branches.

Such intrusion is only slightly less frightening when it comes from the private sector. Any litigant who may disgrace a judge who rules against him has the power to undermine the foundations of the judiciary - both in perception and in function. A judiciary ensures that we are not the ruled subjects of our government, nor of our fellow man - a role that requires that the third branch function independently from both from the government and potential legal adversaries. Our system ensures that dissatisfied litigants may appeal their decisions, petition Congress or their states for a change in the law, or, with the support of their fellow citizens, amend the Constitution. What a litigant cannot do is to harass and smear judges until a favourable result is achieved. Such is the antithesis of justice.

Even if there were pornographic items on Judge Kozinski's home computer, that would not render him unfit to do his job. This is not some insight into his soul that would indicate a lack of fitness for the bench: that fitness has been conclusively demonstrated for decades. This blogger was in kindergarten when he was appointed to the Ninth Circuit; undoubtedly, some of Dubyanell's readers were not yet born when that happened. In the intervening years, Judge Kozinski has established himself as one of the nation's leading jurists, known for his brilliant opinions and commitment to freedom. It is ridiculous to attempt to determine, by proxy, his ability to do his job when he has been doing it - and doing so superlatively - for almost a quarter century.

In the past week, Judge Kozinski's character has been questioned, challenged, and attacked. He has been branded a porn-loving misogynist. In my personal experience with him, Judge Kozinski is anything but a misogynist; rather, he is one of those rare men who enjoys the company of women. He certainly does not need to spend time with law students, but he has given me (and, by all accounts, many others) a tremendous amount of support and advice. Undoubtedly, most American men would prefer to watch pantless men fend off amourous donkeys, rather than volunteer for the role of friend and advisor to multitudes of law students; Judge Kozinski is not one of those men. His jurisprudence is not an accident of his character; he can - and ought to be - defended against these attacks upon both grounds.