Kozinski: Stay on the Bench, or Get Off the Court?

By Erwin Chemerinsky
This article appears on Page 6

      Alex Kozinski broke no law. He violated no provision of the Code of Judicial Ethics. Nor did he engage in any improper conduct that affected the decision of any case before him. There is thus no basis for suggesting that he should resign from the bench.
      The claim is that Kozinski maintained a public Web site where he placed sexually explicit, offensive material. It is important to note that Kozinski's role concerning the offensive materials is disputed, as is the extent to which they were publicly available. An inquiry is now being conducted by the 3rd Circuit. Until the facts are known, it is premature to presume the worst.
      The facts, especially according to a 9th Circuit press release and statements from his son, are quite different from what has been alleged. It is unclear whether the material was on a private file server or a public Web site. A password-protected file server is analogous to a locked file cabinet.
      Apparently, members of Kozinski's family often posted things there for each other to see. There is no indication that Kozinski himself posted any of the offensive materials or that the file server was ever meant to be seen publicly.
      lthough by all accounts some of the material was very offensive and degrading, none was child pornography, obscene or even close to the line of what constitutes obscenity.
      If this is what occurred, then at worst Kozinski exercised poor judgment in not monitoring what was on the file server and not being sure that it was truly private. But as such transgressions go, this was a relatively minor one and hardly worthy of the attention it has received.
      But even if this was a public Web site and even if Kozinski put the offensive materials there, calls for his resignation are seriously misguided. In other words, even assuming the worst, there is no basis for asking him to step down. He did not abuse his office in any way. This was entirely off-the-bench conduct that had nothing to do with his performance as a judge and violated no law or ethical rule. There is nothing in the Code of Judicial Ethics that commands that judges have good taste.
      Nor will this harm the image of the 9th Circuit in any meaningful way. I am always skeptical of arguments based on the appearance of the court.
      Too often an emphasis on preserving the appearance of the court has been used to try to discipline lawyers who criticize judges. The reality is that the court's credibility is robust and the product of all that it has done over many years. The public's faith in the judiciary is not fragile and is not going to be seriously affected because one judge had some sexually explicit and degrading things on a server or perhaps a Web site.
      The interesting underlying questions go to what is appropriate conduct for a judge when off the bench. Although we rightly expect our judges to be beyond reproach, they are human beings and are allowed to view legal sexually explicit material, even material that others would find very offensive. They can laugh at bawdy jokes and even find humor in what many find distasteful.
      What if it were learned that a federal judge purchased a sexually explicit magazine from a local newsstand or rented an adult movie from a video store or visited an adult Web site? The judge has done nothing wrong. Millions of people find such material entertaining and pleasurable, and millions don't. But there is nothing illegal or unethical in the judge's behavior. The judge no more has to be disqualified from hearing obscenity or child pornography cases than a judge who legally gambles in Las Vegas needs to be disqualified from hearing cases involving illegal gambling activities.
      Although judges give up some rights, including some First Amendment rights, when they go on the bench, they are allowed to engage in legal behavior that does not adversely affect their ability to carry out their judicial duties. Those who call for Kozinski's resignation pave the way for demands for the resignation of judges who are discovered to go to strip clubs or subscribe to sexually oriented magazines or to rent adult movies.
      Of course, this would be different if the material was illegal, such as child pornography or obscenity. Judges who engage in such illegal actions warrant prosecution like anyone else and criminal activity warrants discipline and even removal from office. But there is a huge difference between what violates these laws and what is offensive.
      Several words of disclaimer and disclosure are necessary. I have not seen the materials and am relying on descriptions from the media and others as to what is there. Also, I have known Kozinski for about 20 years, though we have rarely spoken in the last decade.
      Kozinski has been a federal court of appeals judge for over 20 years and there is thus a long track record for assessing him as a judge.
      Although from my perspective, his rulings are often too conservative, I never have heard a single person question his fairness, his ability as a judge, his integrity, his intelligence or his conscientiousness. In fact, I think that there is a strong consensus that he is one of the most talented and hard-working judges on the federal bench. It would be an enormous loss if Kozinski were to step down.
      Certainly, there is a point at which it is appropriate to ask judges to resign or even to call for their impeachment. But this situation is not even remotely close to that line.
     
      Erwin Chemerinsky is dean and distinguished professor of law at UC Irvine School of Law.