A Bad Day At the Office

I was reading Judge Kozinski’s opinion, issued yesterday, in Institute of Cetacean Research v. Sea Shepherd Conservation Society.  This is an interesting piracy case involving an environmental group that attacks whaling vessels.  What caught my attention, though, was the conclusion of the panel’s opinion:

“The district judge’s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case.  The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.”

Ouch.

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2 Responses

  1. A.J. Sutter says:

    This case of course receives a lot of attention in Japan, where there is plenty of pro-whaling sentiment, although considerably less firm than in the past. A couple of things have puzzled me about this case, and maybe as an admiralty expert you could explain:

    (1) How is a US injunction against Sea Shepard to be enforced, given that the activities are in Antarctica? Can anything more be done than taking action against Sea Shepard assets in the US, assuming they stay out of US waters?

    (2) Given that Australia has issued an injunction against the Japanese whalers, to which the 9th Circuit refused to accord comity, whose injunction takes precedence? Or is this just a PR “battle of the injunctions,” none of which can really be enforced, but each of which can be used as justification for the respective winner’s actions?

    (3) A bit farther afield from admiralty: Reading Judge Kozinski’s remark that

    Where a valid law speaks to the proper level of deference to a particular public interest, it controls. See Golden Gate Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112, 1126–27 (9th Cir. 2008). Our laws defining the public interest in regards to whaling are the Whaling Convention Act and the Marine Mammal Protection Act, both of which permit whaling pursuant to scientific permits issued under the Whaling Convention. 16 U.S.C. § 1372; 16 U.S.C. § 916c. Cetacean’s activities are covered by such a permit and thus are consistent with congressional policy as to the marine ecosystem.

    was an analogous line of reasoning (minus the treaty) used to uphold Jim Crow laws?

  2. It’s worth noting that one of the judges dissented from the majority’s decisionto remove the judge, arguing that the move was unprecedented and unwarranted.

    (The District Court judge’s opinion, by the way, is much better than Judge Kozinski’s.)