Kozinski Unplugged

Alex_KozinskiWhat makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.

Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).

Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.

So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.

With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:

On tyranny:  “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’  And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”

On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”

The importance of freedom: “Those of you who’ve had the good fortune to be born in the United States simply have not known the absence of freedoms. You can only imagine, but not experience, what it’s like to live in a society where these freedoms are absent.”

On law: “Law is language.”

On writing: “I think law ought to be intelligible. . . . If you can’t explain [a legal point] in such a way that someone who is an intelligent and interested layperson would understand, then you . . . probably don’t understand it yourself.”  (For more of Kozinski on writing, see here.)

The state of the First Amendment: “I think the First Amendment is in very good shape.”

Conservatives, liberals & free speech: “[C]onservatives tend to be as, or more, supportive of free speech as liberals.”

Jury nullification:  It is “one of the truly evil ideas. . . . It’s really a frightening idea.”

On ideas: “[I]deas have consequences.  And ideas that are well-reasoned and forcefully stated tend to eventually find their way [into] cases and [into] our law.”

On privacy: “Until further notice, I would not consider anything you put on the cloud [to be] private. Is that clear? I’m not saying it’s not going to be, but it is a highly undecided question.” (For more of Kozinski on privacy, go here.)

There you have it, Kozinski unplugged.  Of course, there is more (about guns, privacy, the Commerce Clause, and the Ninth Circuit, etc.), and I urge readers to check out the full Reason interview.

One more thing: To my friends who take exception to my company, I say, “relax, let your hair down, grab a cold Corona . . . and imagine that you really do believe in diversity!”
Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.  His latest books were Floyd Abrams and the First Amendment, which came out last January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Generation (with David Skover).

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12 Responses

  1. Brett Bellmore says:

    Jury nulification is one of the few topics where I disagree with him. Sure, it’s a frightening concept… for somebody who works for the State, and whose job is to uphold the State’s laws. After all, the purpose of jury nulification is to see to it that sometimes those laws WON’T be uphold.

    But if you look at all the classic cases that are regarded as triumphs of the jury system, like the William Penn case, are they not all cases of jury nulification? Nulification is the purpose of a jury, like blowing is the purpose of a fuse: You expect a fuse to uneventfully conduct electricity almost all the time, but a fuse that will never blow isn’t worth a damn as a fuse. Similarly, you expect juries to uphold the law almost all the time. But a jury that cannot nulify is not worth a damn, it is not the trial by jury the Constitution promises us.

    Even the greatest man can get one wrong.

  2. Shag from Brookline says:

    Once again Brett blows his fuse with his version of originalism:

    “But a jury that cannot nulify is not worth a damn, it is not the trial by jury the Constitution promises us.”

    By the way, even the worst man can get one right, so, Brett, keep trying.

  3. Bill Placke says:

    Judge Kozinski’s words are refreshing. I do, however, agree with @brettbellmore re. juror nullification and how this is a very good thing. It is, in the classical sense, akin to the Chancery Courts and the truest sense of the courts in equity designed to make corrections in the law where its application did not fit the particular situation confronted. I can think of no better application of being judged by a jury of one’s peers. Thanks to Larry Cunningham for the link and to Ronald Collins for the great short story. Now about those card games with Judge K . . .

  4. Joe says:

    “Nulification is the purpose of a jury”

    I thought the major purpose of the jury was to provide a means for the people, not the state, to judge the facts, providing a down to earth populist aspect to civil and criminal justice. I was not aware “the purpose” was nullification, even though it is a possibility.

    Singling out things like the Penn case as ‘triumphs’ as compared to juries trying the facts and in various cases — even with public sentiment against it — bringing forth a just result is misleading. The Zimmerman Case, e.g., very well might be seen as a triumph and it involved no nullification that I am aware of.

    Judicial nullification is also not just frightening for “the state” though since the “state’s laws” includes things we the people tend to find benign, nullifying such laws would often be frightening to the general public. The “classic” cases would include some not so ideal civil rights cases.

  5. Joe says:

    ETA: “Jury nullification” is what I mean in the last paragraph.

    I would add, btw, that the “classic” view of the jury system can be seen in two movies — “To Kill A Mockingbird” and “12 Angry Men.” The latter is seen as an ideal jury — carefully examining the facts to determine a person, even a poor alleged murderer, is legally innocent.

    The former provides a somewhat different view of a jury representing the community, but even there, it is noted one juror tried for a long time to convince the jury to go the other way. Again, jury nullification is not what is seen as the “purpose” here, but for a jury of average citizens to rule the right way pursuant to the facts.

    Nullification was accepted as possible but as the complexity of the law grew, it was seen as not the job of a jury to decide the law. Deciding the facts was hard enough. The jury provisions of the Constitution leave open such a development. Nullification is still possible as a fact of life but even back in the day it was not “the point.”

  6. Shag from Brookline says:

    For a limited period of time in American history, a jury could determine the law as well as the facts. I’m not aware of any American jurisdiction that currently permits the jury to determine the law. Early on, in the federal system, it was determined that a jury could not determine the constitutionality of a law; that was the role of the court. Those who may believe that jury nullification “is a very good thing” presumably would be critical of the theme of “Strange Fruit,” both the book and the song. Perhaps they view jury nullification as a solution to the changing demographics; more likely, it might be a problem for a new minority, if the past is addressed by a new majority. And comparing equity jurisprudence to jury nullification suggests a lack of knowledge of the development and application of the former.

  7. C.J. K’s remarks about jury nullication are here. What he’s talking about, though, isn’t jury nullification. His concern is that a jury who doesn’t like an innocent defendant could (by “nullifying” in Kozinski’s sense) find him guilty. But nullification is the opposite—finding a guilty defendant innocent. Arguably evil or frightening (cf. southern juries’ use of actual nullification to clear white men of crimes against blacks), but not nullification.

  8. Joe says:

    Mr. Drake’s link is not showing up, but some place else quotes the judge: “juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off” http://www.peoplevstate.com/?p=795

    This is a valid definition of the term — it is applying the law in a way the jury feels correct, even if the judge instructed them differently. This isn’t a one way ratchet. It can be used for or against the innocent. It also can be used in civil cases in various respects.

  9. While Judge Kozinski is occasionally clever and funny, I suppose I’ve not acquired a taste for his views, jurisprudential and otherwise.

    As to jury nullification, see (in no particular order): Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (University of Chicago Press, 1985); Jeffrey Abramson, We, The Jury: The Jury System and the Ideal of Democracy (Harvard University Press, 2000 ed.); William L. Dwyer, In The Hands of The People (St. Martin’s Press, 2002); Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Quid Pro Books, 2010, originally Stanford University Press, 1973); Alan Scheflin and Jon Van Dyke, “Jury Nullification: The Contours of a Controversy,” Law and Contemporary Problems, Vol. 43, No. 4 (1980): 51-115; and Irwin A. Horowitz, “Jury Nullification: An Empirical Perspective,” Northern Illinois University Law Review, Vol. 28 (2007-08): 425-452.

  10. Shag from Brookline says:

    In the decade leading to the Civil War radical Lysander Spooner advocated jury nullification. But nullification was not available with respect to the Fugitive Slave Act of 1850 which did not allow for juries. Of course, juries were involved with the events of Strange Fruit post-Reconstruction Amendments.

  11. Joe says:

    As to the Fugitive Slave Act, the actual hearings for putative slaves did not allow for juries, but this issue did arise regarding aiding and abetting them. Some leading figures saw jury nullification particularly troubling in this context. One good volume on the events: “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” by Steven Lubet. Also, “Millard Fillmore: The American Presidents Series: The 13th President,” 1850-1853 by Paul Finkelman.

  12. Joe says:

    ETA: Also, though the lawyers here very well probably know of it, “Justice Accused: Antislavery and the Judicial Process” by Robert Cover would be notable too.