Give credit where it is due — and especially where it is not. — Alex Kozinski (8-19-96)
Over at the Volokh Conspiracy Eugene recently posted excerpts from a new article by Judge Alex Kozinski; the piece is titled “12 Reasons to Worry about our Criminal Justice System.” Eugene’s posting got me to thinking (yet again) about Kozinskian lessons on life and law.
Thus this post concerning an August 19, 1996 National Law Journal article by the Judge titled “So You want to Become a Federal Judge by 35?“
Given the sound counsel in that piece, I thought our under 35 age readers might appreciate familiarizing themselves with the his 10 “commandments.” Take heed: they may serve you well. At the end of these “commandments” (as I term them), I asked the Judge a few followup questions, which he kindly answered. They should be of interest to the over 35 crowd.
Onward, then, to Alex Kozinski’s Ten Commandments, albeit in abbreviated form:
Commandment I: “Decide early. This, the most obvious step of all, is often overlooked. .”
Commandment II: “Get into politics. Judging is not a partisan political process, but being fitted for the robe definitely is. . . .”
Commandment III: “Never back a loser. Campaiging for the Spotted Owl Party in the middle of a lumberjack country won’t get you a robe. . .”
Commandment IV: “Get a job in Washington. If you want to become a federal judge; you might as well peddle your wares in the federal judgeship bazaar. . . .”
Commandment V: “Get to know your senators. You won’t get a federal judgeship if a senator from your state objects” to you or your credentials.
Commandment VI: “Make friends on both sides of the aisle. . . .”
Commandment VII: “Ask a lot of people for favors. . . . Most people believe that the way to get ahead in politics is to do a lot of favors for others so they’ll owe you favors when you need help. In fact, people hate to pay back favors — it makes them feel cheap; anyway, they always think the favor you’re cashing in is worth lesss than the one you’re asking in return. . . .”
Commandment VIII: “Give credit where it is due — and especially where it is not. When you do achieve a measure of success . . . be sure to thank those who helped. . . .”
Commandment IX: “Do your level best at whatever job is entrusted to you. Political assignments are not merely stepping stones; they are important jobs in themselves. . . . [And] if you disappoint someone who has helped you, don’t expect that person’s help again.”
Commandment X: “Don’t be daunted. . . There’s a fine line between being persistent and being a pest; don’t crosss it, but get close to it.”
So if one follows those ten commandments, will they work? Well, “you’ll have a very good shot” wrote Kozinski, provided you have a “modicum of intelligence and common sense.” And, of course, a kindly nod from Fortuna is always helpful.
* * * *
Twenty Years Later — A Few Followup Questions
Most judges leave politics behind when they take the bench. — Judge Alex Kozinski (7-18-15)
In 1981-1982 Alex Kozinski served as the first U.S. Special Counsel; he was appointed by President Ronald Reagan. Thereafter, he was nominated to be Chief Judge of the United States Court of Federal Claims. In 2002 he spoke at a conference celebrating the twentieth anniversary of the US Court of Federal Claims. On that occasion he said:
My acquaintance with the new court started one day while riding the Metro during the spring of 1982. In those days, I used to read U.S. Law Week religiously, even the boring parts at the end where they reported on new legislation and such stuff. I was getting near my stop – it was Farragut North in those days – when I came across a new statute called the Federal Courts Improvement Act of 1982. Yeah right, I thought. How can one possibly improve the federal courts? But, as I read on my eyes opened wide:
The Act created two new courts, the Federal Circuit and the United States Claims Court. I glossed quickly over the Federal Circuit; too ambitious, I thought. Maybe in three years or so I could think about becoming a circuit judge. But the Claims Court retained my interest. The Act provided that the President would be appointing all the judges of that court – fifteen in all – and, most interesting to me, he would also be designating the court’s chief judge. “Shezam!,” I thought to myself. That’s my job!
Over the next couple of weeks I spent considerable time on the phone calling everyone I knew in the White House and Justice Department, explaining to them why I’d be the ideal candidate to be chief judge of the Claims Court. In truth, I don’t remember what I said, because I can’t think of anyone less suited for that position. In addition to knowing nothing about the court, I knew nothing about trials.
In 1985, after having served on that court and when he was 35, President Reagan nominated Kozinski to the Court of Appeals for the Ninth Circuit. He was confirmed: 54 to 43.
Question: Did you follow your own advice? Be honest!
Kozinski: For the most part. I’d probably do a better job on some of them today — like making more friends with people on the other side of the political fence.
Question: Your 10 “commandments” speak mostly to the prospect of being nominated to be a federal judge. Do you have any additional advice — e.g., dos and don’ts — on how best to weather confirmation hearings?
Kozinski: Try answering questions by using baseball metaphors.
Question: If Judge Robert Bork had taken you’re advice, starting from when he was 25 in 1952, would he have had a “very good shot” at becoming a Supreme Court Justice?
Kozinski: With my advice he’d have certainly become a Justice.
Question: The political atmosphere today seems different from what it was twenty years ago when you wrote your article. It seems more polarized. No? If so, how does that affect your “get into politics”/ “make friends on both sides of the aisle” maxims?
Kozinski: Those maxims are probably more relevant now than ever.
Question: Can you give an example of when persistence turns into annoyance?
Kozinski: When you persist by trying the same (failed) strategy over and over again. To avoid annoyance you have to be imaginative in your persistence.
Question: Tell us more about the art of asking favors of others so that they do not feel exploited.
Kozinski: Appeal to their better nature. Make no promises as to how you would vote on cases or issues. Be dignified. And don’t overreach. Most important of all, promise to reciprocate when you’re in a position to do so.
Question: Say more about what you meant when you said “give credit . . . where it is not” due.
Kozinski: Let’s say you ask 10 people for help and you then find out that only one or two made a difference. The rest either didn’t try or were ineffective. Never mind — they all get 100 percent of the credit: “I couldn’t have done it without you.”
Question: You claim that “judging is not a partisan political process.” Are you speaking of the ideal of appellate judging or the reality of such judging? It seems that many people now just assume that such judging is partisan.
Kozinski: Not in my experience. Most judges leave politics behind when they take the bench. Of course, your philosophy stays with you, and that will inform you decisions-making. Sometimes that looks like politics, but it’s not.
Question: Mindful of what you say in “Commandments” 6-8, can you tell us the names of some of the people whose help made a difference in you getting nominated to be a Circuit judge?
Kozinski: I probably shouldn’t mention names without their consent, but there are many names you’d recognize.
Question: Given how confirmation hearings are conducted in the post-Bork era, just how candid do you think that a judicial nominee can be in answering senator’s questions? Isn’t the name of the game to be as evasive as possible? Or not? What is your sense of this?
Kozinski: Yes, total candor is probably best left for private conversations. Always follow the three rules of live in Washington:
- Don’t say it if you don’t want to see it quoted in the Washington Post.
- Don’t do it if you don’t want to be asked about it during your confirmation hearings, and
- If you can eat it and drink it in a single sitting, it’s not a bribe.
Question: What do you think of an 11th “Commandment”: Whatever else you do, avoid writing anything on any potentially controversial topic (e.g. capital punishment, criminal justice, abortion, campaign finance, gay rights, women’s rights, corporate rights, environmental protection, etcetera).
Kozinski: I’m not so sure. You do have to do something to be noticed. Timidity may result in its own kind of failure.
Question: What is your sense of the A.B.A. committee that evaluates judicial nominees?
Kozinski:They gave me a hard time and eventually gave me a mixed Q/NQ rating. But they did let me get by, so I’m grateful.
Question: Given your talents in advising young men and women on how to best secure a federal judgeship, do you have a few words of wisdom for law students who aspire to be law clerks for a federal judge?
Kozinski: Bust your buns; sleep little; read much; and take lots of practice exams.
Question: If your plans to be a judge had never panned out, what do you suppose you’d be doing today?
Kozinski: I would have been a lumberjack!