Stupid Lawyer Tricks, Kozinski Edition

My views about Ninth Circuit Judge Alex Kozinski’s conduct were expressed before any of the following. I point this out not to suggest my views are any more valuable than anyone else’s, but to show that this post isn’t influenced by bias. Koz was wrong.* His conduct was completely improper and reflects exceptionally bad judgment. This matters because he’s a judge, and as I wrote, “judgment is a jurist’s stock in trade.”

But what’s been put out since by people who are lawyers, lawprofs and putatively not blithering idiots, scares the living crap out of me. As Andrew King correctly called it, “knee-jerk.”

In response to Will Baude’s twit about Heidi Bond’s post, Georgetown lawprof Marty Lederman calls Judge Kozinski a “monster.”

I am so deeply sorry for what your friend has had to endure, Will. This is a horrifying account. The broader legal community should be ashamed of having celebrated such a monster (who didn’t really do much to hide it).

Granted, I complain often about academics using moderated language that fails to convey any actual meaning, so Lederman’s word choice is at least clear. That said, a monster? Did Koz rape dozens of externs and eat their kidneys? The alternative to impropriety isn’t outlandish hyperbole. What would Lederman call Koz if he groped a female clerk, double literally Hitler? And as improper as Koz’s conduct was, does that suddenly make his work as a judge otherwise invalid?

And then there’s the Head Ally of the Appellate Twitter social justice scolds.

Why? Come on, questions such as why are for misogynists. Proportionality is for haters. The answer to all wrongs is “off with their heads.”

But then, Steed’s proven allyship with the oppressed is nothing compared to the complicity of the truly passionate.

I hate to be the one pointing this bit of cishet logic out, but if Brodsky knew this “open secret,” if she “always felt the men who took their places were traitors,” then why didn’t she say anything until now? But wait! There’s more:

So not only was she consistent, albeit condemning, in concealing Kozknsky’s improprieties, but she knows about others as well? So where are the names of these evil judges? Why is Brodsky complicit in concealing this evil?

Of course, Brodsky is spreading rumors, because she doesn’t possess any actual information about improprieties. She’s heard stories, and that’s good enough for the shrews to take to the twitters and sow anger and outrage without being responsible for their words.

Brodsky may well be right, for all I know. I’m not defending any judge who engages in actual impropriety, but I will question wild, baseless rumors by people who get their jollies from the adulation they receive on social media from people even less rational than they are. But I expect no less from the likes of Brodsky. No one has ever accused her of being too deep a thinker.

There is a serious and important question of what to make of Judge Alex Kozinski’s conduct. Assuming it’s all true, does it impact his other writings, his circuit opinions, the otherwise broad respect for him? What consequences, if any, should there be? He isn’t accused of rape. Not even a grope or a tongue thrust, a la Al Franken. So that makes him a monster? So the only solution to every allegation is to throw the monster out?

The voices here aren’t the flaming nutjobs who graduated from twitter law school, but lawyers and academics who should have some small command of nuance and proportionality, but based upon their public statements, they’ve completely lost their shit.

Will every Warlock be burned at the stake? That seems to be the only answer the brightest of the legal woke have to offer. Nuance has died. Proportionality is gone. All that’s left is screaming for Kozinski’s head and pandering rumors to the outraged townsfolk. To the extent anyone thought lawyers were capable of rational thought, this puts an end to it.

*Edit: It was pointed out to me privately that I’m not using “alleged” or questioning whether the allegations against Koz are true. This is a valid complaint, and I have no clue whether they’re true. That said, Koz hasn’t denied them, and instead gave a flippant response. Given that he’s far too intelligent to to say he doesn’t recall, but not that he denies these things happened, I’m constrained to give his own words meaning. Then again, I could very well be wrong.

25 thoughts on “Stupid Lawyer Tricks, Kozinski Edition

  1. CLS

    I’ve largely kept silent over the #MeToo scalp fest because it was limited to people who didn’t know better or couldn’t be expected to. It’s far easier for those in the media, politics, or corporate world to put feelings before actual rational thought.

    Now that the virus has seeped into the legal profession, it seriously makes me consider walking away from law entirely. If those of us who swore an oath to uphold the law are willing to abandon their word at the altar of social justice feelz, then nothing really is sacred.

    1. SHG Post author

      Walking away strikes me as an abdication of my oath as well, though. My inclination is to be the guy who calls bullshit on the outraged and irrational SJWs. They can (as they already do) scream about how I’m a misogynist for rejecting their absurd orthodoxy. I have broad shoulders, and it’s not my nature to sit silently while the crazies scream hysterically.

      1. CLS

        Since you put it that way, I am reminded that I do have a bit of a loud mouth and an inclination to raise hell…

          1. CLS

            Half Scot. Half Irish. 100% unapologetic Southern Redneck.

            But hey, you got two out of three. And two out of three ain’t bad, or so I hear.

    2. Pablo

      Look at the parade of horribles that has sworn to uphold the Constitution. If everyone quits, you’ve given them the field.

  2. Pedantic Grammar Police

    The #metoo crowd’s response to Kozinski is a knee-jerk response. Anyone who offends anyone is literally Hitler and must go. This is a stupid argument. Kozinski’s defenders say that he has been a good judge and that his decisions from the bench have demonstrated good judgment, and that poor judgment in his personal life is irrelevant to his job as a judge. This is not a stupid argument, but it misses an important point.

    Two things appear to be true:

    1. Kozinski has demonstrated good judgment in his legal decisons.
    2. Kozinski has demonstrated poor judgment in his personal life, and that poor judgment has affected his work. It has affected his staff and his reputation as a judge.

    The #metoo crowd will say that #1 is irrelevant. That is nonsense. Of course his performance is relevant. In light of #1, does #2 mean that he should no longer be a judge? That is not a simple question, but it is possible to think carefully about this question and then answer “Yes.”

    A judge’s job is not only to make correct decisions. It is also to uphold the integrity of the justice system. A judge who repeatedly demonstrates poor judgment and allows that poor judgment to affect his work as a judge loses the ability to credibly represent a system of integrity. Our system only works because we believe in it. When a judge orders something we do it, partly because if we don’t, we will be forced to obey, but partly because we believe in the system. If we lose respect for the system, and stop believing that justice is being dispensed, the system will fail. A system where we obey only because we are forced is an unstable system. Kozinski’s poor judgment gives credibility to those who disagree with his decisions even when they are correct. That is why Kozinski should step down, and if he doesn’t he should be impeached.

  3. Jyjon

    We’ve been in an ‘enlightened’ era for a bit. The pendulum is slowly swinging from reason to stupidity. They’ll be screaming for a new ‘Torquemada’ to deal with these heathens soon enough.

    1. SHG Post author

      Social media is the new Spanish Inquisition. Had Hillary been elected, we would already have a federal Department of Torquemada, but given the rapist in chief, they have to do it by themselves. And so they have. And they’re pulling it off.

      1. Jyjon

        I thought they already had a Federal Department of Torquemada, the ones …ok, I give up at parody, while trying to find the name of the department who deals with Title IX cause I couldn’t remember it. I came across this Dept of Edu department… Information for Financial Aid Professionals (IFAP).. how to beat that, I don’t even

  4. James L. Smith

    Hell, no. I’ll not participate in calling for the resignation of a man from any position of authority because of this winter of discontent, this mass hysteria, this witch hunt now festering in the USA.

    Judge Kozinski, stay right where you are.

  5. John Barleycorn

    Even if Alex hasn’t been able to tidy discovery up with a forevermore final ruling, and it is looking like Al will not be keeping the 2020 primaries interesting, I am thinking that if Alex does go the way of Al those two could put on a pretty epic “What’s In Your Attic” tour that would sell out from coast to coast. Especially if they bring that Keillor guy along for the ride and hire me as their prop guy.

    P.S. I know a guy that knows a guy that knows a few porn stars who have already been approached with some drafts of a few sketches for the tour. Looks like their could be some room for you esteemed one. Talk to your agent and tell him to be expecting a call. And don’t forget its your duty to serve your country!

  6. Martin

    Perhaps the most interesting analysis would be comparing Konzinski’s actions to examples of less lurid poor judgement engaged in by the average appelate judge. My guess is that his personal behavior judgement isn’t, on average, worse than that of his peers, but rather that he’s exercised his poor judgement in areas which are more appealing to the prurient interest (and therefore recieve press).

    1. SHG Post author

      In the current climate, lurid stories are unforgivable, without regard to the severity of the crime. When this passes, and it will when the panic fades, a rational comparison could be possible. Today, there is little chance.

  7. B. McLeod

    As “male toxicity” is apparently an inherent curse suffered by penis-bearers in general, it should be protected and fostered, like trans-ness and gayness. I don’t see how our SJW colleagues can even colorably assert that males should be accountable for the consequences of this inherent “toxicity,” as it obviously is not our fault. The shitlord haters should leave Kozinski alone.

      1. B. McLeod

        Indeed, and I feel that SJWs are bound to respect male identities and appreciate us for who we are (and that’s a demand, not a request).

  8. anon

    “Scolds” and “shrews,” words historically used to demean and shame women. Could you be any more of a flagrant misogynist?

    1. SHG Post author

      I bet I could if I tried harder, but then, I suspect you didn’t leave this comment to appreciate my humor. I could avoid the shallowest level of outrage had I limited my word choice to those approved by the feminist dictionary. I chose not to. The language has a limited number of words, and I prefer to pick from those available, even if they have been deemed offensive to women. This is purposeful. Others may choose not to use these words to avoid the needless backlash from women. I choose to the opposite tack. They’re words. Just words. And I reject the idea that the scolds get to approve my words and tell me which I’m allowed to use.

      But at a deeper level, the ideas should far more offensive to the woke than the words. Here’s the deal: people can be smart or stupid, rational or irrational, right or wrong. The includes men. That includes women. I reject the idea that women get to avoid responsibility because they’ve forbade the words they say demean them. Brodsky felt no shame in spewing? Fair enough. I feel no shame in criticizing her spewing.

      That, by the way, is how equality happens. But you don’t want to be equal, or words that hurt your feelings wouldn’t make you outraged. That is not fair enough. You don’t get to dictate the rules. At least not here.

      1. SHG Post author

        I can’t please everybody. If I’m too shrill for your tastes, then you don’t have to read me. Or you can criticize me, whether for my shrillness, my words, or anything else that displeases you. You’re allowed.

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