Conservative and libertarian judges on the Ninth Circuit — yes, they exist — have been showing the East Coast a lot of love lately. Last month, my former boss, Judge Diarmuid O’Scannlain, delivered the Joseph Story Distinguished Lecture at the Heritage Foundation (an excellent speech that you can watch here). Later this week, Judge O’Scannlain and one of his colleagues, Judge Carlos Bea, will make appearances at the Federalist Society’s National Lawyers Convention.
And yesterday, the ringmaster of the Ninth Circuit himself, Chief Judge Alex Kozinski, delivered a talk at Yale Law School entitled “The Immigrant Experience and Judging.” He spoke to a packed house in YLS’s largest classroom.
Here are some highlights from his remarks….
The event featured Judge Kozinski in conversation with Charlie Dameron, vice president for events of the Yale Federalist Society, which sponsored the event. Dameron asked smart and thoughtful questions, but he really didn’t need to do much; as we’ve seen from the judge’s prior appearances at YLS, he’s voluble, insightful, and funny.
Judge Kozinski, who came to the United States from Romania at age 12, began by describing his childhood in that country. The state exercised great control people’s lives, one could not speak freely, and consumer goods of decent quality were in short supply. Having grown up in that environment, he does not take the United States for granted:
“Sometimes people ask me: Why did you come to America? This is a question that only an American would ask. You went to America because you could!”
He recalled how his father once brought home a banana. It was not very yellow, mostly black, but it still tasted delicious. After young Kozinski and his parents left Romania, they stopped in Vienna, where he discovered bubble gum, chocolate, and a market where you could buy ripe bananas in copious quantities. It had an immediate and profound effect on him:
“I became a capitalist overnight!”
Our experiences, from childhood to adulthood, shape who we are. And that’s true even for judges. In response to a question from an audience member about the Empathygate controversy that erupted during the nomination of Justice Sonia Sotomayor, Chief Judge Kozinski had this to say:
“We’re all a product of our upbringing and background. I didn’t quite get the whole controversy. You have to empathize as a judge. Part of your job is to understand the case from the point of view of the parties, particularly the losing party. It doesn’t mean you [vote that way], but you have to understand.”
And given how powerfully our experiences shape our worldviews, it’s troubling that judges come from such similar backgrounds, as the judge later noted:
“Look around. You’re all the future judges of America. And you’re pretty much the same. You may have differences in race or gender, but you come from the same educational background, and many of you come from the same social class.”
These remarks echoed the judge’s famous dissental in the GPS/Fourth Amendment case, United States v. Pineda-Moreno: “No truly poor people are appointed as federal judges, or as state judges for that matter…. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.”
I asked Chief Judge Kozinski about one of our favorite oral arguments here at Above the Law — the en banc argument in United States v. Maloney, in which a federal prosecutor got so badly benchslapped that the government ended up confessing error. Specifically, I asked the judge whether he had anything to say to critics of the benchslapping like Professor Will Baude, who questioned the propriety of appellate judges urging the government to confess error. Chief Judge Kozinski said:
Why such a curt response? It would appear that the judge doesn’t want to suffer the fate of La Shira: because the government’s motion to summarily reverse the conviction is still pending, the case remains active and he cannot comment on it. (This makes me wonder whether the Ninth Circuit might actually chastise the government in writing in the course of granting the motion, instead of just sweeping the possible prosecutorial misconduct under the rug by granting the motion without comment, as Professor Baude assumed.)
UPDATE (11/13/2013, 5:15 p.m.): Professor Baude doubts that the Ninth Circuit will benchslap the government in writing.
Going up to New Haven and back took me a few hours, but it was well worth the trip. If you ever have the opportunity to hear Judge Kozinski speak, take it; missing him would be simply bananas.
(Flip to the next page for a few photos from the event — including a picture of Judge Kozinski with a surprise guest, a fellow immigrant and prominent feeder judge….)