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Not to be confused with Alex Kosinski.
"Kozinski" redirects here. Not to be confused with Kosinski, Kosinsky (disambiguation), or Kaczynski.
Alex Kozinski
Chief Judge of the United States Court of Appeals for the Ninth Circuit
In office
December 1, 2007 – December 1, 2014
Preceded byMary M. Schroeder
Succeeded bySidney Runyan Thomas
Judge of the United States Court of Appeals for the Ninth Circuit
In office
November 7, 1985 – December 18, 2017
Appointed byRonald Reagan
Preceded bySeat established by 98 Stat. 333
Succeeded byVacant
Personal details
Born (1950-07-23) July 23, 1950 (age 74)
Bucharest, Romania
EducationUniversity of California, Los Angeles (A.B.)
UCLA School of Law (J.D.)

Alex Kozinski (born July 23, 1950) is a former United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, where he served from 1985 until announcing his retirement on December 18, 2017, after a growing number of allegations of improper sexual conduct.[1] Kozinski was Chief Judge of that court from November 2007 to December 1, 2014. In addition to his previous judicial duties, Kozinski is an essayist and a judicial commentator.

Early life

Kozinski was born to a Jewish family[2] in Bucharest, Romania, in July 1950. In 1962, when he was 12, his parents, both Holocaust survivors, brought him to the United States. The family settled in the Los Feliz neighborhood of Los Angeles, California, where his father, Moses, ran a small grocery store. Kozinski, who had grown up as a committed communist in Bucharest, became what he described as "an instant capitalist" when he took his first trip outside of the Iron Curtain, to Vienna, where he partook of such luxuries as chewing gum and bananas.[3]

Education and early career

He received a Bachelor of Arts degree from University of California, Los Angeles (1972) and a Juris Doctor from UCLA School of Law (1975). He was a law clerk for Judge Anthony Kennedy of the United States Court of Appeals for the Ninth Circuit (1975-76) and for Chief Justice Warren Burger of the Supreme Court of the United States (1976-77). He was in private practice with Forry, Golbert, Singer & Gelles in Los Angeles (1977-79) and Covington & Burling in Washington, D.C. (1979-81).[4] He was a Deputy Legal Counsel of the Office of the President-Elect in Washington, D.C. (1980-81) and an Assistant Counsel for the Office of Counsel to the President in Washington, D.C. (1981). He was a Special Counsel for the Merit Systems Protection Board in Washington, D.C. (1981-82).[5]

Office of Special Counsel incident

While he was in the Office of Special Counsel, despite staff recommendations against termination, Kozinski overruled his staff and then repeatedly tutored Interior Secretary James G. Watt's legal staff in how to rewrite the proposed termination of a mining safety whistleblower, James Spadaro, so as to pass legal muster. When the incident came to light years later during confirmation hearings for Kozinski’s Ninth Circuit Court of Appeals nomination, the scandal drew 43 Senate opposition votes and reportedly subsequently prevented Kozinski's planned promotion to the US Supreme Court.[6][clarification needed]

Federal judicial service

Kozinski served as a trial judge of the United States Court of Claims in 1982, serving as Chief of Trial Division that year.[5]

Kozinski was nominated by President Ronald Reagan on August 10, 1982, to the United States Claims Court, to a new seat authorized by 96 Stat. 27. He was confirmed by the United States Senate on August 20, 1982, and received commission on October 1, 1982. He served as Chief Judge from 1982 to 1985. His service terminated on February 9, 1985, due to resignation.[5]

Kozinski was nominated by President Ronald Reagan on June 5, 1985, to the United States Court of Appeals for the Ninth Circuit, to a new seat created by 98 Stat. 333. He was confirmed by the United States Senate by a vote of 54 to 43 on November 7, 1985, and received commission the same day.[7] At 35, he was the youngest federal Appeals Court judge at the time of appointment.

In 2005, after concluding that the 9th Circuit insufficiently addressed breaches of judicial conduct by Judge Manuel Real, after rules had been enacted to discourage behavior that would initiate "a substantial and widespread lowering of public confidence in the courts among reasonable people," Kozinski demanded the actual imposition of higher standards, writing,"It does not inspire confidence in the federal judiciary, when we treat our own so much better than we treat everyone else." Kozinski was persuasive and Real's case was reopened and he was disciplined.[8]

He served as Chief Judge of the circuit from December 1, 2007, to December 1, 2014.[5] In that capacity, he received complaints about Montana Federal Presiding Judge Richard Cebull, who had sent hundreds of emails disparaging women, racial minorities and liberal politicians. One joked that President Barack Obama's birth was the product of a sexual relationship between Obama's mother and a dog. Kozinski appointed a five-judge panel to review the matter in which he was the chair. It recommended disciplinary measures but not removal; the particulars of the investigation were largely kept confidential, at Kozinski's initiative.[9][10]

Feeder judge

During his tenure as a court of appeals judge, he has become a prominent feeder judge. Between 2009-13, he placed nine of his clerks on the United States Supreme Court, the fifth most of any judge during that time period.[11] He has been particularly successful placing his clerks with Justice Anthony Kennedy, for whom he had himself clerked.[12]

Defense of Ninth Circuit

In the 2000s, while defending the Ninth Circuit against criticism because of a recent controversial decision, Elk Grove Unified School District v. Newdow, Kozinski, who had not been part of the case, emphasized judicial independence: "It seems to me that this is what makes this country truly great—that we can have a judiciary where the person who appoints you doesn't own you."[13] He also took a stand against the charge that the Ninth Circuit is overly liberal: "I can say with some confidence that cries that the Ninth Circuit is so liberal are just simply misplaced."[14]

On November 30, 2007, he became the tenth chief judge of the Ninth Circuit.[15] His term as chief judge ended on December 1, 2014, when he was succeeded by Judge Sidney Runyan Thomas.[16]

Ethics investigation

In 2008, The Los Angeles Times revealed Kozinski "maintained a publicly accessible website featuring sexually explicit photos and videos."[17] Kozinski had collected a "vast" number of images sent to him via e-mail over many years and retained them on a personal web server in his home. Only a "small fraction" of the images were offensive. Kozinski believed that only invited friends and family were able to view the image directory.[18] Nonetheless, he called for an ethics investigation of himself.[19] In July 2009, a panel, headed by Judge Anthony Scirica, wrote that Kozinski should have administered his web server more carefully but that Kozinski's apology and deletion of the web site "properly conclude" the matter.[20][18]

Sexual misconduct allegations

In December 2017, numerous former law clerks and externs accused Kozinski of making inappropriate sexual remarks to them.[21] Kozinski's former clerk Heidi Bond, now a novelist under the name Courtney Milan, told The Washington Post that Kozinski showed her pornography three times in his chambers and bragged about his college sexual activity while she was clerking for him in 2006 and 2007.[22] Emily Murphy, who was clerking for another Ninth Circuit judge at the time and later became a professor at UC Hastings, said Kozinski suggested to a group that she exercise naked in the courthouse gymnasium.[21] Four other women who worked for Kozinski stated that he acted improperly towards them: showing one pornography, using improper sexual overtones in conversations with one, looking improperly at one's legs, and making an inappropriate comment about one's hair; they wished to remain anonymous because they feared retaliation.[22] On December 14, the chief judge of the 9th Circuit referred the matters for investigation and a day later assigned them to the 2nd Circuit. By December 15, fifteen women, including students and colleagues, had disclosed sexual misbehavior exceeding three decades including unwanted physical touching and invitations by Kozinski to have sex. Two of his current clerks resigned their positions.[23]

Kozinski issued a statement saying, "I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done."[24]

On December 18, 2017, Kozinski announced his immediate retirement.[1]

Support for death penalty

In an interview on CBS's 60 Minutes in April 2017, Kozinksi talked about his support for the death penalty but with the reservation that death by lethal injection should no longer be used. He advocated the use of the guillotine or firing squad and said that for any country that wants to take human life, citizens should be prepared to watch the proceedings.[25]

Notable cases

Thompson v. Calderon

Thomas Martin Thompson was convicted based largely on the testimony of his fellow inmates, but doubts about the effectiveness of his defense counsel led seven former California prosecutors to file briefs on Thompson's behalf.

The Ninth Circuit had originally denied Thompson's habeas petition attacking the state court decision. Two days before Thompson's scheduled execution, the Ninth Circuit en banc reversed (7–4) the earlier denial.

Kozinski dissented:

If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself.... That this is a capital case does not change the calculus. The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process.

Kozinski's opinion was criticized by Judge Stephen Reinhardt, who called it "bizarre and horrifying" and "unworthy of any jurist."[26] The en banc decision was reversed by the Supreme Court, which called the Ninth Circuit's action "a grave abuse of discretion."[27]

White v. Samsung Electronics America, Inc.

Kozinski dissented from an order rejecting the suggestion for rehearing en banc an appeal filed by Vanna White against Samsung for depicting a robot on a Wheel of Fortune–style set in a humorous advertisement. While the Ninth Circuit held in favor of White, Kozinski dissented: "All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy."[28]

An extended extract from the opinion is widely quoted: "Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture."[29]

Kozinski's dissent in White is also famous for his sarcastic remark that "for better or worse, we are the Court of Appeals for the Hollywood Circuit."

Mattel, Inc. v. MCA Records, Inc.

Main article: Mattel, Inc. v. MCA Records, Inc.

Yet another of Kozinski's high-profile cases was the lawsuit filed by Mattel against MCA Records, the record label of Danish pop-dance group Aqua, for "turning Barbie into a sex object" in their 1997 song "Barbie Girl." Kozinski opened the case with "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong" and famously concluded his 2002 opinion with the words: "The parties are advised to chill."[30]

United States v. Ramirez-Lopez (2003)

The majority found the due process rights of a man, who was accused of smuggling illegal immigrants across the border, were not violated despite the fact that witnesses who could have exonerated him had been deported before they could be deposed. Kozinski dissented. Federal prosecutors, however, dropped all charges and released the defendant.[31][32]

In 2012, after prosecutors used similar tactics in another case, United States v. Leal-Del Carmen, Kozinski's position in Ramirez-Lopez became the law in the Ninth Circuit.[33][34]

United States v. Isaacs

Kozinski was assigned an obscenity case, similar to that in Miller v. California. Ira Isaacs was accused of distributing videos depicting bestiality and other images.[35][36] During the trial on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com." The Times reported that the site included a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, images of masturbation and public and contortionist sex, a slide show striptease featuring a transsexual, a series of photos of women's crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. Kozinski admitted that some of the material was inappropriate but defended other content as "funny."[37]

Calling the coverage a "baseless smear" by a disgruntled litigant, Stanford University law professor Lawrence Lessig pointed out that the Times had unfairly taken the videos and pictures out of context in its descriptions. He wrote that one frequently-mentioned video, the video described above as a "half-dressed man cavorting with a sexually aroused farm animal," which actually involves a man running away from a donkey, is available on YouTube,[38] and is not, as is implied by the Times article, an example of bestiality. He also argued that the Kozinski family's right to privacy was violated when the disgruntled litigant exposed the private files, which were not intended for public viewing. Lessig compared the incident to breaking and entering a private residence.[39]

Kozinski initially refused to comment on disqualifying himself[40] and then granted a 48-hour stay, when the prosecutor requested time to explore "a potential conflict of interest."[37] On June 13, Kozinski petitioned an ethics panel to investigate his own conduct. He asked Chief Justice John Roberts to assign the inquiry to a panel of judges outside the Ninth Circuit's jurisdiction. Also, he said that his son, Yale, and his family or friends may have been responsible for posting some of the material.[41][42]

Kozinski had previously been involved in a dispute over government monitoring of federal court employees' computers. Administrative Office head Ralph Mecham dropped the monitoring program but protested in the press.[43] On June 15, 2008, it was reported that Kozinski had recused himself from the case.[44] On June 5, 2009, the Judicial Council of the Third Circuit issued an opinion clearing Kozinski of any wrongdoing.[45][46]

Cetacean Research v. Sea Shepherd

In February 2013, Kozinski wrote an opinion reversing a district court ruling that had denied Japanese whalers Institute of Cetacean Research a preliminary injunction against the US-based anti-whaling group Sea Shepherd Conservation Society. Kozinski found that the militant conservationist group were "pirates," reversed the denial of injunction by the district court, and affirmed its own provisional injunction against Sea Shepherd. The injunction bars Sea Shepherd from approaching within 500 yards of ICS vessels.[47][48]

Sea Shepherd founder Paul Watson dismissed the opinion as "entirely devoid of real evidence" and claimed that Sea Shepherd USA was in full compliance with the injunction.[49]

Wood v. Ryan

In July 2014, Joseph Rudolph Wood, who had been sentenced to death, filed a motion before the Ninth Circuit Court of Appeals claiming a right to know which chemicals were included in the lethal injection that was to be used to execute him. While the court denied his motion, Kozinski issued a dissenting opinion, calling the use of drugs a "misguided effort to mask the brutality of executions by making them look serene and peaceful." He went on to argue that states should revert to more primitive methods like the guillotine, electric chair, gas chamber, and firing squads because they are accurate and do not mask the brutality. He wrote, "Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all."[50][51][52][53][54][55][56][57] Wood's execution would subsequently take 1 h 57 min before he was pronounced dead.[56]

Writings

In addition to his judicial duties, Kozinski has been an essayist and a judicial commentator.[58] His essays have been featured in publications such as Slate, The New Yorker, The New Republic, and National Review.[citation needed]

See also

References

  1. ^ a b Zapotosky, Matt (18 December 2017). Federal appeals judge announces immediate retirement amid investigation prompted by accusations of sexual misconduct, Washington Post
  2. ^ Washington Post: "“Mondoweiss” is a hate site (Update)" by David Bernstein May 4, 2015
  3. ^ Welch, Matt; Krainin, Todd (March 8, 2013). "Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals". reason.com. Retrieved March 11, 2013.
  4. ^ Ronald Reagan The American Presidency Project.
  5. ^ a b c d "Kozinski, Alex - Federal Judicial Center". www.fjc.gov.
  6. ^ Daphne Wysham, "Mining Whistleblower Speaks Out Against Massey", Institute for Policy Studies, July 23, 2010; retrieved March 17, 2016.
  7. ^ Jackson, Robert L.; Hager, Philip (November 8, 1985). "Senate Narrowly Confirms Kozinski as Appeals Judge". Los Angeles Times. Retrieved August 11, 2014.
  8. ^ Kozinski disciplines himself, Los Angeles Times, Lara A. Bazelon, June 17, 2008. Retrieved December 18, 2017.
  9. ^ Smutty, Racist E-Mails of Montana Judge Might Be Buried, Indian Country Today, Stephanie Woodard, June 26, 2015. Retrieved November 10, 2017.
  10. ^ Proceeding in review of the order and memorandum of the Judicial Council of the Ninth Circuit J.C. Nos. 09-12-90026, 09-12-90032, Judicial Council of the Ninth Circuit, January 14, 2014. Retrieved November 10, 2017.
  11. ^ Stras, David (Fall 2014). "Secret Agents: Using Law Clerks Effectively". Marquette Law Review. 98: 157.
  12. ^ Baum, Lawrence; Ditslear, Cory (March 2010). "Supreme Court Clerkships and "Feeder" Judges". Justice System Journal. 31 (1). National Center for State Courts: 41–42. {{cite journal}}: Invalid |ref=harv (help)
  13. ^ "Online NewsHour: Debate Brews over Splitting 9th Circuit Court – January 17, 2005".
  14. ^ Michaels, Spencer (January 17, 2005). Controversial Court. NewsHour with Jim Lehrer.
  15. ^ Gavel Passing to Mark Changing of the Guard for Ninth Circuit Court of Appeals, United States Courts for the Ninth Circuit Public Information Office news release, November 23, 2007.
  16. ^ "Judge from Billings to Lead Federal Appeals Court", Houston Chronicle, November 23, 2014.
  17. ^ "9th Circuit's chief judge posted sexually explicit matter on his website". Los Angeles Times. June 11, 2008.
  18. ^ a b IN RE: COMPLAINT OF JUDICIAL MISCONDUCT, ca3.uscourts.gov; accessed March 17, 2016.
  19. ^ Slater, Dan (June 17, 2008). "CJ Roberts Assigns East Coast Judges to Kozinski Investigation". The Wall Street Journal.
  20. ^ "L.A. Now". The Los Angeles Times. July 2, 2009.
  21. ^ a b Dolan, Maura (December 8, 2017). "9th Circuit Judge Alex Kozinski is accused by former clerks of making sexual comments". Los Angeles Times. Retrieved December 12, 2017.
  22. ^ a b Zapotosky, Matt (December 8, 2017). "Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct". The Washington Post. Archived from the original on December 9, 2017. Retrieved December 8, 2017. {{cite news}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  23. ^ Nine more women say judge subjected them to inappropriate behavior including four who say he touched or kissed them, Washington Post, Matt Zapotosky, December 15. Retrieved December 15, 2017.
  24. ^ Fortin, Jacey (December 11, 2017). "Federal Appeals Court Judge Is Accused of Sexual Harassment". The New York Times. p. A12. Retrieved December 12, 2017.
  25. ^ 60 Minutes Interview, April 23, 2017,
  26. ^ Bazelon, Emily. The Big Kozinski, LegalAffairs.org, January–February 2004; retrieved April 30, 2006.
  27. ^ Calderon v. Thompson, 523 U.S. 538, 542 (1998).
  28. ^ White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1512 (9th Cir. 1993) (en banc).
  29. ^ "White v. Samsung Electronics America" (PDF). Archived from the original (PDF) on October 15, 2009. Retrieved May 3, 2009. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  30. ^ Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 908 (9th Cir. 2002).
  31. ^ Weinstein, Henry (April 23, 2003). "Appeal Lost, Yet Freedom Won". Los Angeles Times. Retrieved December 17, 2011.
  32. ^ United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003).
  33. ^ Hull, Tim (September 14, 2012). "Prosecutors Told to Stop Deporting Witnesses". Courthouse News Service. Retrieved September 17, 2012.
  34. ^ United States v. Carmen, no. 11-50094 (9th Cir. September 14, 2012) ("We had assumed, following Ramirez-Lopez, that the government would refrain from putting aliens who could provide exculpatory evidence beyond the reach of the court and defense counsel. But whatever wisdom the United States Attorney for the Southern District of California gained in Ramirez-Lopez appears to have applied to that case and that defendant only. We change that today."). Retrieved March 19, 2014.
  35. ^ Kim Zetter (June 11, 2008). "Chief Judge in Obscenity Case Caught Posting Porn". WIRED.
  36. ^ USLaw (August 11, 2008). "What "Stuff" was on Judge Kozinski's Personal Website?". Celebrity Justice. Archived from the original on June 14, 2008. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  37. ^ a b Scott Glover (June 11, 2008). "9th Circuit's chief judge posted sexually explicit matter on his website". Los Angeles Times.
  38. ^ Donkey Rapes Man on YouTube
  39. ^ Lessig, Lawrence (June 12, 2008). The Kozinski mess, lessig.org; accessed March 17, 2016.
  40. ^ Adam Liptak, "Calif. Trial Focuses on Pornography: Los Angeles Jury Will Decide If Videos Are Obscene," New York Times, June 12, 2008, A21.
  41. ^ Associated Press (June 13, 2008). California: Judge Calls for Inquiry Into His Conduct Over Web Site.
  42. ^ Blood, Michael R. (June 13, 2008). ap.google.com, Calif judge wants panel to probe his porn postings, Associated Press.@Archived June 17, 2008, at the Wayback Machine
  43. ^ Slater, Dan (June 11, 2008). "A Look Back at Judge Kozinski's Attack on Monitoring Court Computers". The Wall Street Journal.
  44. ^ eFluxMedia report Archived June 20, 2008, at the Wayback Machine
  45. ^ Jones, Ashby (July 2, 2009). "A 'Pleased' Kozinski Cleared of Wrongdoing". WSJ Law Blog. Retrieved September 20, 2011.
  46. ^ In re Complaint of Judicial Misconduct, J.C. No. 03-08-90050, Judicial Council of the Third Circuit (June 5, 2009).
  47. ^ "US judge labels anti-whaling group 'pirates'". AFP. February 27, 2013.
  48. ^ Keith Herting (February 27, 2013). "Federal appeals court rules anti-whaling group modern-day 'pirates'". Jurist.org.
  49. ^ "Ten Questions With Answers from the Southern Ocean", Sea Shepherd, February 27, 2013
  50. ^ Pilkington, Ed (July 21, 2014). "Top judge attacks lethal injection as Arizona fails in death penalty appeal". The Guardian. Retrieved July 28, 2014.
  51. ^ Longo, Adam (July 25, 2014). "NEWS Federal judge suggests guillotine, firing squad be used for executions". KSAT ABC 12. Retrieved July 28, 2014.
  52. ^ Gershman, Jacob. "Judge Kozinski: Bring Back the Firing Squad". Wall Street Journal.
  53. ^ Barbash, Fred. "Guillotine, firing squads better than lethal injection, says prominent federal judge".
  54. ^ "Federal judge urges return of firing squad". USA Today. July 24, 2014.
  55. ^ de Vogue, Ariane. "Federal Judge Favors 'More Primitive' but 'Foolproof' Firing Squad".
  56. ^ a b Thornhill, Ted (July 24, 2014). "U.S. appeals judge called for return of firing squads just days before latest botched lethal injection – but said the GUILLOTINE is probably the best method".
  57. ^ Dolan, Maura. "Executions should be by firing squad, federal appeals court judge says". LA Times. Retrieved March 17, 2016.
  58. ^ David A. Golden (1992), Humor, the Law, and Judge Kozinski's Greatest Hits, Brigham Young University Law Review: 513.
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Legal offices
Preceded by
Seat established by 98 Stat. 333
 Judge of the United States Court of Appeals for the Ninth Circuit
1985–2017 		Vacant
Preceded by Chief Judge of the United States Court of Appeals for the Ninth Circuit
2007–2014 		Succeeded by
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