The blawgosphere is abuzz, awash, atwitter, about the Los Angeles Times revelation that 9th Circuit Chief Judge Alex Kozinski has a kinky side, revealed by ”sexually explicit” images on his personal website. That he was currently presiding over an obscenity trial of Ira Isaacs, described by the WSJ Law Blog as “accused of distributing criminally obscene sexual-fetish videos depicting bestiality and defecation. (For background on the Isaacs case, click here for an AP story.)“
Some have seized upon this delicious opportunity to challenge Judge Alex’s ethics and called for his recusal from the case. Others have questioned whether the images are “crude and misogynistic — pictures of naked women as cows; pictures of womens genitalia with the caption, “Bush for President”; implied bestiality as humor.” And Howard Bashman asks whether this is newsworthy at all. After all, would we be writing about this if Judge Alex was spotted at the newstand buying Playboy?
But when it comes to the salacious and titillating, or when it comes to anything about judicial hottie self-applicant Alex Kozinski, there’s only one place in the blogosphere to go: David Lat’s Above the Law. Naturally, upon learning of the scandalous allegations, Lat went straight to the
cow’s horse’s mouth to get the scoop. This is what the judge had to say:
David: I can’t comment on the trial.
As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was — I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he’s pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don’t remember putting some of that stuff there.
I consider the server a private storage device, not meant for public access. I’d have been more careful about its contents if I had known that others could access it.
This response is unbelievably remarkable for one reason: Judge Kozinski sounds just like every criminal defendant who gets caught. I don’t remember it. I don’t think I did, but I’m not sure. I thought it was private. I thought no one else would see it. If I had known that I would get caught, I would have been more careful.
The line between lawful and unlawful has grown so very thin, almost to the point of being imperceptible these days as the slightest tweak in conduct raises some malum prohibitum brainstorm of criminalizing nearly ordinary behavior.
I’m not suggesting that Judge Alex was engaged in some porn crime, but in the same vein, he wasn’t all that far away from others who like their images hot or humorous, however they wish to characterize it. Acceptability is largely in the eyes of the beholder. I’m not one for explicit images personally, but that’s my sensibility. Others feel differently, and I won’t castigate them for their choices.
But this tempest raises the same response from a judge who could well be packing his bags to move to Washington in the near future. If Judge Alex can say that he really can’t remember much about how these images found their way onto his “personal” computer, why does judge after judge reject and ridicule ordinary people who can’t offer a judicially satisfactory explanation of how stuff made its way onto their hard drives?
Unless the rest of the federal judiciary is prepared to call Judge Alex a liar and a disgrace, why a different set of rules for him than for the rest of us?
Compare as well the reaction of the Stephen Gillers, the Torquemada of the bench and bar.
Stephen Gillers, a New York University law professor who specializes in legal ethics and has known Kozinski for years, called him “a treasure of the federal judiciary.” Gillers said he took the judge at his word that he did not know the site was publicly available. But he said Kozinski was “seriously negligent” in allowing it to be discovered.
“The phrase ‘sober as a judge’ resonates with the American public,” Gillers said. “We don’t want them to reveal their private selves publicly. This is going to upset a lot of people.”
Gillers said the disclosure would be humiliating for Kozinski and would “harm his reputation in many quarters” but that the controversy should die there.
He added, however, that if the public concludes the website was intended for the sharing of pornographic material, “that’s a transgression of another order.
“It would be very hard for him to come back from that,” he said.
Gillers has never before found a transgression that didn’t mandate the death penalty. What difference does it make that it was intended to be private? Does that save the defendant from charges of possession of simulated kiddie porn, intended for private viewing? Since when do people have to intend their indiscretions be public before they’re wrong?
What I take from all of this is that Judge Alex Kozinski may well be the best qualified jurist on the federal bench to sit in judgment of others. He’s demonstrated that he’s human, something that most judges would avoid at any cost. So he enjoys the occasional image of a naked woman. So what? So he finds humor in odd places. So what? So his personal quirkiness went public. So what?
Do we remain so naive, so Puritanical in our hearts, that we believe that judges should still be so buttoned-up in starched white collars that they have no attachment to what’s happening in the rest of society. Must they be so pure, so as not to offend even the prissiest member of society, to be deemed sufficiently trustworthy to pursue justice?
Yes, Judge Alex’s reaction was to offer the same old excuse, “I didn’t know,” that has been offered and rejected a million times by defendants throughout our country. Let’s make this the discussion, that real people don’t always remember what or why they did something stupid, but didn’t intend to do harm or wrong. Not every itty bitty act is part of a scheme of greater significance demonstrating an evil heart.
Should Judge Alex recuse himself from the Isaacs’ trial? Absolutely not. So what if he likes a little nudity once in a while. Where is it written that judges must be antagonistic to defendants before they are competent to sit? Has Judge Alex shown himself to be unsuitable for the Supreme Court of the United States of America? To the contrary, he has shown himself to be exactly what we would hope for in a person who would sit on the court of last resort: A brilliant judge and a real person, who has an appreciation and understanding of things that real people do.
Having foibles is a consequence of being human, not an unacceptable transgression. While I may disagree with some of Judge Alex’s conservative positions and his libertarian politics, I will sleep very well knowing that he has failed to meet some Victorian image of perfection.
Update: Gideon (who posted at about the same time is me, so I hadn’t seen his when this was posted) argues that this is much ado about nothing.
These pictures are tasteless at worst, funny at best. They’re not meant to be sexually arousing or pornographic. What’s the big deal? We gotta stop being fuddy-duddies.
Clearly, Gid is a far better connoisseur of sexually arousing photos than me, and I defer to his judgment. From his link to Patterico, here are some of the images that were supposedly downloaded from Judge Alex’s website, and here is the image of the two naked woman painted as cows.