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What's Next for Kozinski?
The Recorder
June 13, 2008
As Chief Judge Alex Kozinski called for an investigation Thursday into the sexually explicit images he kept online, just how he could be disciplined becomes a key question.
Normally, each circuit's chief judge screens complaints against federal judges. But since Kozinski himself is the chief judge, that task now falls to the active judge with the most seniority. In this case, the individual Kozinski just replaced as chief -- Judge Mary Schroeder -- would handle the proceeding, said University of Pittsburgh School of Law professor Arthur Hellman.
Yet recently approved judicial discipline rules contain a mechanism where a complaint can be sent to a judge in another circuit for screening. This procedure was highlighted by a discipline reform committee headed by Supreme Court Justice Stephen Breyer.
"That is something the Breyer committee encouraged chief judges to make greater use of," Hellman said.
It's what will likely occur in Kozinski's case, said one 9th Circuit source close to the matter.
The Los Angeles Times first publicized Kozinski's Web site Wednesday, which the chief judge acknowledged contained several sexually explicit images. Kozinski had begun presiding by designation over the obscenity trial of filmmaker Ira Isaacs.
The chief judge ordered a delay in the trial to consider recusal motions. He declined to discuss the details of the case Thursday.
Whether Kozinski will ultimately be disciplined may depend in large part on whether his failure to keep the Web server private was just a mistake, or whether he recklessly made the images public, Hellman said.
If, for instance, Kozinski kept porn videos at home and invited friends to come over and watch, such behavior would hardly be actionable, the professor said.
"The question is -- how far from that is this? If he had a Web site that was private, for family and friends, it would be pretty close to the porn-in-the-house analogy," Hellman said. "What we don't quite know is how far from that the real situation is."
Kozinski has said he never intended the images to be public, and his son told The New York Times on Thursday that it was his fault the site was not password-protected. Before it was removed, the greeting at alex.kozinski.com stated: "Ain't nothin' here. Y'all best be movin' on, compadre." To access the explicit photos, one would have had to know additional words to add into the Web address. On the other hand, Kozinski has long been known as a computer-savvy enthusiast who personally disabled the circuit's Internet filtering systems as a protest to the court's monitoring policy several years ago.
Judges have been disciplined for out-of-court behavior that reflected badly on the judiciary. In 1997, the 9th Circuit council publicly reprimanded Northern District Judge James Ware when he falsely claimed to be the brother of an Alabama boy slain by white youths.
If a chief judge finds a complaint worth examining, the circuit's judicial council must investigate. Beyond the obvious questions that arise from having a tribunal of Kozinski's colleagues -- who would need his vote on every en banc panel -- pass judgment on his behavior, the current and former chief judges have a particularly thorny past when it comes to judicial discipline.
After Los Angeles U.S. District Judge Manuel Real was accused of improperly interfering in a bankruptcy case to protect a probationer he was supervising, Schroeder at first dismissed the complaint without appointing a special committee to investigate. A divided 9th Circuit Judicial Council eventually confirmed her decision not to discipline Real, but Kozinski issued a bitter dissent.
"Congress has surely not made us the most powerful judges in the world so we can bestow thousands of dollars of bounties on our personal favorites whenever we feel like it," Kozinski wrote at the time.
The 9th Circuit council eventually recommended public censure of Real, but the episode represented one of the biggest black marks on Schroeder's otherwise praised tenure as chief.
Schroeder was not available to answer questions Thursday.
