Judge Kozinski's Advice To President Trump, Courtesy Of '60 Minutes'

Plus colorful comments from Judge Kozinski on the death penalty, the First Amendment, and more.

Judge Alex Kozinski

Judge Alex Kozinski

Who says federal judges don’t give advisory opinions? Judge Alex Kozinski offered plenty of them — to President Donald Trump, no less — in his appearance last night on 60 Minutes.

If any sitting federal judge were to appear on a national television show, it would be Judge Kozinski. First, he’s one of the most fascinating members of the federal judiciary; not many judges would actually be of interest to a program like 60 Minutes. And second:

Indeed, for a judge who once nominated himself as a judicial superhottie and appeared on The Dating Game (albeit before he became a judge), going on 60 Minutes is positively staid.

Here are some highlights from the segment on Judge Kozinski, who was interviewed by correspondent Lesley Stahl.

1. On President Trump’s criticism of judges

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Lesley Stahl: Let’s say, hypothetically, that President Trump decided to single you out, how would you handle it?

Alex Kozinski: Well, so long as he spells my name right, it’s OK.

Vintage Kozinski: welcoming attention, and not afraid to be criticized. But at the same time, His Honor thinks President Trump’s attacks on the judiciary are… ill-advised:

Alex Kozinski: My advice would be to whoever is going after judges by name, whether it’s the president or anybody else, I think it’s a terrible idea. I don’t think it’s a very smart thing to do….

Lesley Stahl: Are you suggesting the president needs to be careful?

Alex Kozinski: Yes, when the president is a litigant I think it’s wise for him not to comment on the judges. It’s not going to help anything—and all it’s going to do is emphasize the weakness of your position.

See also then-Judge Neil Gorsuch’s comments at his confirmation hearings on President Trump’s criticisms of the judiciary. But Judge Kozinski went one step further, explicitly calling out the president; Judge Gorsuch was slightly more circumspect, expressing dismay “[w]hen anyone criticizes the honesty or integrity of the motives of a federal judge, and saying, when pressed about whether that includes President Trump, “Anyone is anyone.”

2. On proposals to split the Ninth Circuit

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Alex Kozinski: The 9th Circuit can’t be split, and won’t be split. It’s a terrible idea.

Lesley Stahl: Why is it a terrible idea? The president himself has come after the Circuit saying that 80 percent of your decisions are overturned by the Supreme Court.

Alex Kozinski: Generally when the Supreme Court takes cases they take ‘em to overturn. They overturn something like 70 or 80 percent of all cases that they take. So, we are, right there, sort of in the middle.

Judge Kozinski’s point is well taken. The Ninth Circuit might be above average in terms of its reversal rate at SCOTUS, but it’s not the most reversed court in the country (although note that statistics will vary depending on the period selected).

And also, in fairness to Judge Kozinski, he’s often one of the conservative voices criticizing the overreaching liberal decisions that fare poorly at the Supreme Court. For example, see his recent criticism of the Ninth Circuit’s original decision on Trump’s travel ban (the first one), arguing that First Amendment concerns militate against taking a candidate’s campaign-trail statements into account when evaluating his subsequent executive actions. Speaking of which….

3. On the First Amendment

Alex Kozinski: The First Amendment is really at the very core of political speech, and political speech is at the core of the First Amendment. So, we want to be very careful to make sure that candidates for office are free to express their views so that people will make an informed choice. We don’t want them holding back, and sort of concealing their views and then disclosing them afterwards….

Lesley Stahl: What about when a president lies?

Alex Kozinski: Well, you’ve read The Prince. Machiavelli said it is the duty of a prince to lie.

Lesley Stahl: Is that the way you see it?

Alex Kozinski: I think in certain circumstances, that’s probably right.

A controversial statement, but again, par for the Kozinski course. Here’s another example:

4. On the death penalty

Alex Kozinski: I think the use of lethal injection is the way of lying to ourselves, to make it look like executions are peaceful, are benign, are sort of like going to sleep, and they’re not. They’re brutal things.

Lesley Stahl: Now, you have proposed alternatives. You prefer firing squad to lethal injections.

Alex Kozinski: Never fails.

Lesley Stahl: But you’ve also said the guillotine??

Alex Kozinski: That’s right.

Lesley Stahl: Really? The guillotine? C’mon.

Alex Kozinski: Well, you know, it’s 100 percent effective and it leaves no doubt that what we are doing is a violent thing. If we as a society are willing to take away human life, we should be willing to watch it.

Indeed. See also this New York Times op-ed that I co-authored with Zachary Shemtob, Executions Should Be Televised.

These are just highlights from a wide-ranging profile and interview of one the nation’s most brilliant, colorful, and controversial jurists. For more — including comments from Judge Kozinski about his upbringing in Communist Romania; his quirky hobbies, such as raising pet chickens and snow boarding; his most embarrassing episode (yes, it concerned that inadequately secured file server containing sexually explicit material); and his crusade against prosecutorial misconduct — head over to 60 Minutes.

P.S. In sad Ninth Circuit news, Judge John T. Noonan Jr., a longtime member of the court, passed away last week. As Father William Dailey tweeted, “Judge Noonan was a giant among judges as well as Catholic intellectuals.” For more, see this New York Times obituary (via How Appealing).

UPDATE (4:13 p.m.): Also available on the 60 Minutes website: a video featuring Debra Milke, who says that Judge Kozinski saved her life, and some great photos — like this one, featuring Judge Kozinski and Lesley Stahl feeding his chickens:

Judge Alex and Lesley Stahl, feeding his chickens (via 60 Minutes / CBS News).

Judge Alex and Lesley Stahl, feeding chickens (via 60 Minutes / CBS News).

Judge Alex Kozinski’s advice for President Trump [60 Minutes]


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.