Via the Geek with a .45 I found this article from the December ’95/January ’96 issue of the late, unlamented political magazine George on my favorite Appeals Court judge, Alex Kozinski – he who wrote the most eloquent dissent to the Silveira v. Lockyer decision not to re-hear en banc. (Warning, it’s a PDF file of scanned pages, and it’s SLOW to load.) Here are some highlights from the piece (with my commentary.)
After graduating first in his law school class in 1975, Kozinski clerked at the U.S. Court of Appeals and then for Supreme Court Chief Justice Warren Burger. He was made chief judge of the U.S. Claims Court at age 32 and a Ninth Circuit Federal appeals judge at 35, which made him the youngest person appointed to the federal bench in this century. During the Reagan-Bush years, it was an open secret that Kozinski was being groomed for the Supreme Court – an appointment many think will occur if a Republican wins the White House next November.
Unfortunately, that didn’t happen, but now is the perfect time to nominate him for O’Connor’s seat.
Unlike recent Supreme Court nominees, Kozinski doesn’t hesitate to trumpet his judicial agenda: “I want to change the face of American jurisprudence,” he has declared.
Which is why, I beleive neither he nor Janice Rogers Brown will be offered the seat. Bush wants to avoid conflict at home.
But it’s time and past time for that conflict, IMHO. It’s time to drag out the Left and make them expose themselves completely to the general public.
Note these comments:
The conservative judge Richard Posner calls him “one of the best and smartest judges in the country,” and Harvard constitutional scholar Laurence Tribe considers him “on of the few genuinely interesting minds in the Federal Judiciary.”
Note the author while he pointed out Posner’s political leanings, he didn’t mention that Lawrence Tribe is (accurately) a self-described liberal – one, I will note, who seems remarkably intellectually honest.
Clint Bolick, the litigation director for the Institute of Justice… says if he were “advising a president on the Supreme Court, Alex would be on the top of my list.”
“Alex is one of the true conservative libertarians in public life today,” says Harvard Law School professor Alan Dershowitz.
Dershowitz is an überliberal – also un-noted.
“He shakes his finger at fellow conservatives and tells them to scrutinize government at all levels, not just where it helps their wallets.”
Regardless of this praise, I imagine few on the Left would be pleased with him. For example:
“Kozinski gets away with a lot because he is so funny and charming,” says Nan Aron, president of the liberal Alliance for Justice.
Given the two earlier examples, if the author concluded that noting the Alliance for Justice is “liberal” was required, it must be damned near Stalinist. Continuing:
“But he is also very dangerous, especially with regard to the rights of immigrants, workers, and the poor. Property rights always trump human rights for him.”
Someone should inform Ms. Aron that property rights are human rights – the human right to acquire and keep property. That’s how the poor stop being poor.
Fellow Ninth Circuit judge Stephen Reinhardt, a passionate liberal and close friend of Kozinski’s, is also one of his harshest critics. “What do I think of his views? Not much,” he says bluntly. “Alex is one of the brightest of the right wing, but he focuses too narrowly on property and is terrible on affirmative action and other civil rights. I would hate to see him on the Supreme Court, where he could do some really serious damage.”
Instead of on the Ninth Circuit, where he is overwhelmed by the majority of liberals who keep him from correcting any of the damage they continue to do. Reinhardt wrote the original 69 page Silveira decision that Kozinski, in his dissent to the denial to hear an en banc appeal characterized thus:
The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it – and is just as likely to succeed.
Those “fourteen short words” being the Second Amendment. And yet, they’re friends. Unless and until Kozinski is in a position to make a real difference. I guess then you find out who your true friends are.
This was fascinating, too:
Kozinski was born in Bucharest on July 23, 1950. His father, Moses, spent most of World War II in the Transnistria concentration camp, where inmates were systematically worked to death.
A weaver by trade, and a Communist agitator in his youth, Moses was made vice-president of a textile factory when the Soviet-backed government took over after the war.
Life in postwar Romania was not easy for the Kozinskis, even with Moses’s party credentials. Nor was the gulf between communism’s theory and its reality lost on Alex: At age eight, the boy got his father into trouble by publicly asking him how a government with so many political prisoners could possibly publish a newspaper called Free Romania.
Well, we already knew he was smart.
After emigrating to the U.S. in 1961, Alex embraced being an American.
“One taste of chocolate and bubble gum and I was a capitalist,” remembers Kozinski. “I spent the first several years glued to the television, sucking up American culture.”
It’s a wonder his mind survived it, but it was the early sixties. I shudder to think what happens to our kids today who “suck up American culture” via the boob tube.
After a probably less-than-stellar academic achievement in primary school, Kozinski began attending UCLA in the late sixties, studying engineering – poorly. But he also studied the anti-war movement, then in full swing, and commented on it:
Kozinski, who had just become a naturalized citizen, chafed at his fellow students’ politics. “Most of the protests were really about people justifying the fact that they were chicken,” he says. “Students were seduced by all the anti-American rhetoric. They hadn’t lived under a truly repressive regime.”
Nor do they now.
So outraged by anti-American sentiments was Kozinski that he boycotted (and still refuses to see) Jane Fonda movies – a stance about which he has only one regret: “I wish I had seen Barbarella,” he says wistfully. “Maybe one day I’ll watch the video – if someone else pays for it.”
Don’t bother, Judge. She doesn’t really look any better than most of the exposed actress flesh displayed today.
Kozinski then switched his major to law, barely squeaking in, and after reading that only the top 10% of law school graduates had much of a chance at financial success, he set out with the intention of graduating at the top of his class. The very top, not second or third place. And he did.
So now that we’ve established his bona fides let’s consider Kozinski’s “judicial philosophy,” in his own words:
“Look, we have to realize that ideas have consequences, and legal ideas have more serious consequences for society than most.” The law, in his view, has an ineradicable moral dimension that we ignore at our peril. When, for example, “courts tell us that someone else is always to blame for whatever misfortune happens to befall us, pretty soon we start to believe it” – a denial of personal responsibility that Kozinski derides with his Toyota Principle (named for the company’s “You asked for it, you got it” ad campaign). Lawyers must see the law as “a method for resolving legitimate disputes, rather than a means of extortion.”
His remedy for “hate crimes” exemplifies this anti-litigious, communitarian approach. “Our focus on punishing the speaker diverts attention from … the things we can do to repair the damage,” he argues. Society’s first responsibility, Kozinski says, is to reassure victims of their rightful place in the community, to tell them that, despite the wrong suffered, they are not outcasts.
This part particularly got my attention:
Kozinski is not shy about bringing his experiences to bear on his legal formulations. He particularly attributes his sensitivity to free speech and defendant’s rights to his time in Romania. “I know what it means for police to really run amok,” he says. “Seeing people hauled away in their pajamas in the middle of the night stays with you.”
Yes, I imagine it does. And it reminds you that it can still happen today, here.
Although Kozinski brings a certain informality to the courtroom, his constitutional philosophy – the compass guiding his vast array of decisions – is anything but lax. It revolves, he explains, around three principles: textual fidelity (interpretations should be grounded in the actual words of the Constitution), completeness (provisions in the Constitution should not be ignored or emasculated), and consistency (similar phrases should be construed in similar ways). “The Constitution is a complicated, old and multilayered document that is meant to have some play in the joints,” he says. “But it must have limits to its interpretation or else you are simply taking advantage of its flexibility for your own purposes. You can’t just find in it anything you want to find in it.”
And he lives this philosophy. From the aforementioned dissent in Silveira:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
Of course, again some on the Left have a problem with this:
“I don’t think it is possible to have such a strict theory of constitutional interpretation,” says University of Southern California law professor Erwin Chemerinski. “Kozinski follows his theories in some areas and not in others. His opinions involving the takings clause (the portion of the Fifth Amendment that requires the citizens to be compensated when the government “takes” or reduces the value of their property), for instance, tend to be very broad and don’t square at all with his decisions involving criminal law.”
Given the recent Supreme Court Kelo decision, I am personally very happy to hear that. Chemerinski, another far Left-liberal, does not rank high in my esteem as I’ve previously noted. (Chemerinski is a regular on Hugh Hewitt’s afternoon radio show, and I have heard him defend the Kelo decision on the air.) That Chemerinski dislikes Kozinski’s judicial philosophy is mere icing on the cake, for me.
And this observation cements Kozinski’s appeal:
(Kozinski’s) nomination would prove a dilemma for the Republicans: Kozinski’s passionate defense of First and Fourth Amendment rights would give the far right reason to pause. “He’s too unpredictable, he isn’t a Scalia or a Thomas,” says New York University law professor Stephen Gillers. “Kozinski is a truly independent thinker, and we are at a point where presidents only want sure things.”
That would, I submit, make him more like Thomas, not less. We’ve learned a lot about Thomas in the intervening ten years, and he is, currently, my favorite sitting Justice. I think he, Scalia, and Kozinski would make a perfect set. Not mentioned in the piece was Kozinski’s strong support for the individual rights view of the Second Amendment. He has several very eloquent dissents on the topic, and his position has been commented on by other Ninth Circuit judges in their decisions.
But the “sure thing” comment is entirely correct. I think the reaction to Miers surprised Bush, and as I said, I don’t think he has the stomach for a fight.
But one can dream.
UPDATE, 10/29: Both Instapundit and David Bernstein of the Volokh Conspiracy think Kozinski is a great choice.
He hasn’t got a chance in hell…
Further update: David Hardy has details of most if not all of Kozinski’s decisions relating to the Second Amendment, and other things near and dear to our hearts.
Think “snowball in hell.” But Hardy notes that there is an email address, [email protected], and notes:
I’d assume somebody counts the number of emails on a given subject and reports that. If we all sent email entitled, say “please nominate Judge Kozinski,” it might just get someone’s attention. They may be a bit jumpy about the internet and blogs just now (grin).
Perhaps. I think I’ll jot them a note. Kozinski or Janice Rogers Brown. Either would please me.
UPDATE 10/31: It’s Alito, sometimes referred to as “Scalito.” I can live with that.