9th Circuit, Alex Kozinski, Federal Judges, Free Speech, Judicial Nominations, Legal Ethics, Politics

Chief Judge Alex Kozinski Defends Free Speech for Judges

Disclosure: I'm pals with Judge Kozinski.

Given my prior stewardship of Underneath Their Robes, it should come as no surprise that I like my judges to exhibit some humanity. My favorite judges are those with personality, spunk, and a sense of humor, not the judicial automatons who just crank out dry opinions.

Sometimes judges can be, well, all too human. They might make mistakes — such as, for example, letting their lovers take nude photos of them in compromising positions, which then wind up on the internet. But that’s okay — the photos might be embarrassing, but they don’t call into question judicial impartiality or otherwise prevent the judge from serving.

(All the photos might show is that judges like sex — and is there anything wrong with that? As Elie quipped to me this morning, with regard to the Justice Lori Douglas photos, “I’m not worried about the judges who like having sex. I’m worried about the ones who don’t like having sex.”)

Earlier this week, the Honorable Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, reminded us that judges are people too — people who still enjoy free speech rights, despite their judicial offices….

In a brief order, issued in his capacity as chief judge, Kozinski dismissed a complaint of judicial misconduct. The target of the complaint isn’t named in the order, but Legal Pad has the 411:

Some of the same remarks that GOP critics have relied on to stall Northern District Magistrate Judge Edward Chen’s nomination to an Article III slot have found their way into a formal judicial misconduct complaint against him….

While the identities of accused judges typically remain secret — as do the identities of the accusers — it’s clear the judge in question is Chen. Kozinski quoted the complaint’s reference to Chen’s oft-cited post 9/11 remarks — that he had a “sickening feeling” about “what might happen to race relations and religious tolerance” — which have been used to paint him as unpatriotic. The misconduct complaint also accuses him of making a joke about a politician (President Bush?).

The ABA Journal identifies two of the best lines from the order:

  • “A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure.”
  • “The mere fact that a statement takes the form of a joke does not render it misconduct; humor is the pepper spray in the arsenal of persuasive literary ordnance: It is often surprising, disarming and, when delivered with precision, highly effective.”

Chief Judge Kozinski knows a thing or two about humor, since he’s one of the most hilarious members of the federal judiciary.

The order is vintage Kozinski — witty, smart, and to the point. Read it in full over here.


P.S. Speaking of the Ninth Circuit, former senator Rick Santorum (R-PA) wants to eliminate it. As he said in a recent visit to South Carolina, “I would sign a bill tomorrow to eliminate the Ninth Circuit. That court is rogue. It’s a pox on the western part of our country.” Santorum added, “The courts were supposed to be the most insignificant branch of the government.”

Presumably you’re a textualist, Senator Santorum — so where is that in the text of the Constitution? The judiciary might be the “weakest” or the “least dangerous” branch of government — see Federalist No. 78 — but that’s not the same as “most insignificant.”

In re Complaint of Judicial Misconduct [U.S. Court of Appeals for the Ninth Circuit]
Misconduct Complaint Against Chen Is Dismissed [Legal Pad / The Recorder]
Judge’s ‘Sickening Feeling’ and Racism Remarks Allowed, Kozinski Says [ABA Journal]
EDITORIAL: Another judicial radical [Washington Times]
Santorum stops to stump in Myrtle Beach [The Sun News]

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