|Chief Judge of the United States Court of Appeals for the Ninth Circuit|
December 1, 2007 – December 1, 2014
|Preceded by||Mary M. Schroeder|
|Succeeded by||Sidney Runyan Thomas|
|Judge of the United States Court of Appeals for the Ninth Circuit|
November 7, 1985 – December 18, 2017
|Appointed by||Ronald Reagan|
|Preceded by||Seat established by 98 Stat. 333|
|Judge of the United States Claims Court|
October 1, 1982 – February 9, 1985
|Appointed by||Ronald Reagan|
|Preceded by||seat established|
|Succeeded by||Marian Blank Horn|
July 23, 1950|
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 and abusive practices toward law clerks. 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.
- 1 Early life
- 2 Education and early career
- 3 Federal judicial service
- 4 Allegations of sexual misconduct and abusive employment practices
- 5 Notable cases
- 6 Writings
- 7 See also
- 8 References
- 9 External links
Kozinski was born to a Jewish family 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.
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). 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).
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.[clarification needed]
Federal judicial service
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.
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. Before the confirmation vote took place, former employees from Kozinski's time at the Office of Special Counsel warned the Senate that Kozinski was "harsh, cruel, demeaning, sadistic, disingenuous and without compassion." He was nonetheless confirmed by the United States Senate by a vote of 54 to 43 on November 7, 1985, and he received commission the same day. 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.
He served as Chief Judge of the circuit from December 1, 2007, to December 1, 2014. 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.
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. He has been particularly successful placing his clerks with Justice Anthony Kennedy, for whom he had himself clerked.
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." 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."
In 2008, The Los Angeles Times revealed Kozinski "maintained a publicly accessible website featuring sexually explicit photos and videos." 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. Nonetheless, he called for an ethics investigation of himself. 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.
Support for death penalty
In an interview on CBS's 60 Minutes in April 2017, Kozinski 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.
Allegations of sexual misconduct and abusive employment practices
Kozinski has been accused of sexual misconduct, ranging from harassment to assault, by more than fifteen women. Former Kozinski clerk Katherine Ku has described Kozinski's chambers--where three or four law clerks, one or two judicial assistants, and one or more judicial externs typically worked at a given time--as a "hostile, demeaning and persistently sexualized environment." An image posted on the legal gossip blog Underneath their Robes shows Kozinski with a law clerk draped around him.
Some former Kozinski clerks have observed that because Kozinski retired from the bench after the first fifteen women accused him of misconduct, "additional targets of, or witnesses to, Kozinski's transgressions" will not be likely to speak publicly. His former clerk, Brett Kavanaugh, during his hearing before the Senate Judiciary Committee taking up his nomination for the Supreme Court, received written questions tendered to him by Senator Chris Coons about any knowledge of Kozinski's inappropriate behavior, including his circulations of sexually explicit emails via his "Easy Rider Gag List." Though Coons had asked him, on September 10, 2018, to review his emails from the judge, Kavanaugh's written and oral responses were vague, and skirted the senator's direct inquiry.
Kozinski interacted with, and allegedly harassed and assaulted, lawyers at different stages of their careers. He would regularly employ salaried full-time law clerks (recent law school graduates) and unpaid externs (law students). He interacted with clerks for other judges when they traveled to other courthouses for oral arguments. While on the bench, Kozinski was also a mainstay at law school moot courts and conferences. He also taught courses at Stanford.
Public allegations of Kozinski's sexual misconduct toward female lawyers and law students include:
- Kozinski would allegedly call clerk Heidi Bond into his office, pull up pornography on his computer, and ask if she thought it was photoshopped or if it aroused her sexually, interrogating her about why it did not.
- A former Kozinski clerk said Kozinski, in his chambers, showed her an "open-legged image of a male figure that was naked."
- "One recent law student at the University of Montana said that Kozinski, at a 2016 reception, pressed his finger into the side of her breast, which was covered by her clothes, and moved it with some 'deliberateness' to the center, purporting to be pushing aside her lapel to fully see her name tag."
- A lawyer "said Kozinski approached her when she was alone in a room at a legal community event around 2008 in downtown Los Angeles and — with no warning — gave her a bear hug and kissed her on the lips."
- University of California at Irvine law professor, Leah Litman, said Kozinski pinched her at a dinner this year, and he also joked that he had just had sex with his wife and she or others at the table would be 'happy to know it still works.'"
- Former U.S. Court of Federal Claims judge, Christine O.C. Miller, 73, said that "around early 1986 said Kozinski grabbed and squeezed each of her breasts as the two drove back from an event in Baltimore in the mid-1980s, after she had told him she did not want to stop at a motel and have sex."
- Dahlia Lithwick wrote in Slate that when she was clerking for another judge on the 9th Circuit and Kozinski learned she was in a hotel room, he asked her what she was wearing.
- Nancy Rapoport, special counsel to the president of the University of Nevada at Las Vegas, has written that when she was clerking for another judge on the 9th Circuit, Judge Kozinski invited her to drinks and asked, "What do single girls in San Francisco do for sex?"
- 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. Murphy has said, "It wasn't just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well. That was what was humiliating about it."
- A former 9th Circuit clerk reported that in late 2011 or early 2012, she found herself sitting next to Kozinski at a dinner in Seattle. He "kind of picked the tablecloth up so that he could see the bottom half of me, my legs," and he remarked, "I wanted to see if you were wearing pants because it's cold out."
- A "former 9th Circuit clerk said that at a dinner with other clerks, Kozinski brought up a movie that contained a topless woman, talking about her 'voluptuous' breasts. The woman . . . said she made a face to signal her disbelief at what he was saying, and Kozinski turned to her and said something like, 'What? I'm a man.'"
- One "former Kozinski extern said the judge once made a comment about her hair and looked her body up and down 'in a less-than-professional way.' That extern said Kozinski also once talked with her about a female judge stripping." The clerk said she wouldn't want to be alone with Kozinski.
- A former extern said she had at least two conversations with Kozinski "that had sexual overtones directed at me."
Former clerks also describe abusive employment practices by Kozinski. For many years, Judge Kozinski's job announcement stated that "I'm looking for amazingly intelligent Supreme Court clerk wannabes eager to slave like dogs for an unreasonably demanding boss." Former law clerk Heidi Bond described how Kozinski forbade her from reading romance novels during her dinner break: the Judge asserted, “I control what you read, what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?” Bond also described interactions consistent with cycles of abuse.
This sort of diatribe was a regular occurrence. The judge had incredibly high standards, and when we failed to meet them, we were raked over the coals. I do not think a week passed without at least one such outburst; during bad times, they were a daily occurrence. He also had an innate sense of when he’d gone too far. . . .
After he’d demonstrated that he had forgiven me for the misplaced comma or misspelled word that gave rise to his outburst, he would go up to me.
“Heidi, honey,” he would ask. “Do you still love me?”
There was only one answer. To say “no” would be to invite the tempest a second time.
“Yes, Judge,” I would say. “Of course I still love you.”
He’d kiss my cheek, and I would kiss his.
Former clerk Katherine Ku wrote that Kozinski expected to be able to approve the location of her apartment, would complain when his clerks "wanted salad for lunch instead of whatever he was having," and "regularly diminished women and their accomplishments."
Complaints about Kozinski's abusive employment practices were raised as early as 1985 by former Kozinski employees. Those employees claimed Kozinski was unqualified to join the 9th Circuit "because of a harsh temperament, questionable decisions and misleading testimony before the Judiciary Committee." They said Kozinski was "harsh, cruel, demeaning, sadistic, disingenuous and without compassion," and that his actions as a boss "portray[ed] an unusual degree of hostility . . . and at times an almost complete disregard for the consequences of the actions upon individuals."
Timeline of allegations and response
Kozinski responded to the allegations saying he did not remember showing any type of sexual material to his clerks and,"If this is all they are able to dredge up after 35 years, I am not too worried."
Kozinski officially issued a statement that read:
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.
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.
On December 15, the Washington Post published a story with allegations against Kozinski from 9 more women, this time with more prominent accusers including colleagues, law students, a professor and a former judge. The disclosed sexual misbehavior allegations span more than three decades, including allegations of unwanted physical touching and invitations by Kozinski to have sex. Four of the women say Kozinski touched or kissed them without permission. Three of the clerks who were working for him when the allegations broke resigned their positions.
On December 18, 2017, Kozinski announced his immediate retirement, though stepped down in a way that lets him keep his retirement benefits. It's unknown whether the investigation on Kozinski will continue. He stated during his resignation that the women must have misunderstood his "broad sense of humor" and "candid way of speaking."
Kozinski's personal website, the subject of various controversies over the years for his allegedly inappropriate posting, had been the subject of interest through the WayBackMachine to record those postings. However, the domain is now specifically excluded from the archive.
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.
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." The en banc decision was reversed by the Supreme Court, which called the Ninth Circuit's action "a grave abuse of discretion."
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."
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.
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.
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."
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.
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. 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."
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, 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.
Kozinski initially refused to comment on disqualifying himself and then granted a 48-hour stay, when the prosecutor requested time to explore "a potential conflict of interest." 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.
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. On June 15, 2008, it was reported that Kozinski had recused himself from the case. On June 5, 2009, the Judicial Council of the Third Circuit issued an opinion clearing Kozinski of any wrongdoing.
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.
Sea Shepherd founder Paul Watson dismissed the opinion enjoining his organization from interfering with ICS vessels as "entirely devoid of real evidence" and claimed that Sea Shepherd USA was in full compliance with the injunction.
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." Wood's execution subsequently took 1 hour 57 min before he was pronounced dead.
In addition to his judicial duties, Kozinski has been an essayist and a judicial commentator. Kozinski contributes to law journals utilized in graduate instruction such as at Georgetown University, and his essays have been featured in publications such as Slate, The New Yorker, The New Republic, and National Review.
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- de Vogue, Ariane. "Federal Judge Favors 'More Primitive' but 'Foolproof' Firing Squad".
- 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".
- Dolan, Maura. "Executions should be by firing squad, federal appeals court judge says". LA Times. Retrieved March 17, 2016.
- David A. Golden (1992), Humor, the Law, and Judge Kozinski's Greatest Hits, Brigham Young University Law Review: 513.
- Georgetown Law Journal(2015)
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Seat established by 98 Stat. 333
| Judge of the United States Court of Appeals for the Ninth Circuit
Mary M. Schroeder
| Chief Judge of the United States Court of Appeals for the Ninth Circuit
Sidney Runyan Thomas