Disagreeing on judicial discipline

In his response to my Blowback, which discussed the possibility of Judge Alex Kozinski facing discipline by a committee of judges for maintaining a website containing pornographic material, John Wright accuses me of joining the “Crucify Kozinski Brigade,” labeling Kozinski a “hypocrite” and not “paying attention” to what Wright deems the real facts. According to Wright, The Times wrongly described the video involving a man and a donkey. This, Wright says, and other “inherent flaws” in the case against Kozinski were exposed in a subsequent Times editorial.

What I should have done, Wright suggests, was read the lengthy defense of Kozinski written by his wife. Had I done so, I would have quickly come to my senses and realized that Kozinski is not into porn -- he is “into funny.” And I would have readily agreed with Wright that Kozinski is just a “normal” man who, like the vast majority of other men, enjoys looking at porn. As for those hundreds of outraged Times readers who feel differently, they too would have changed their minds if they viewed the images for themselves. “ ‘Reasonable people,’ ” Wright says, “don’t get outraged about fairly harmless material on somebody’s private file server.”

Where to begin? First, I never implied that Kozinski was a hypocrite. To the contrary, Kozinski did the right thing by inviting his colleagues to open disciplinary proceedings against him. What I did do was point out the irony of the situation -- that Kozinski, a vocal proponent of a more rigorous judicial disciplinary system, might now become the first jurist to feel the pain of the tougher standards for which he advocated with such force and eloquence. When I wrote “irony,” I meant what it says in the dictionary: “a state of affairs or an event that seems deliberately contrary to what one expects.”

Second, my invocation of the Judicial Conduct and Disability Act is not the wild overreaching that Wright implies. By arguing for a misconduct inquiry, I merely approved of the action that Kozinski had taken already, and pointed out the parts of the act and the Judicial Canons under which he may be vulnerable to a finding of misconduct and to sanctions.

It is important to emphasize here that judicial misconduct includes behavior that may be protected by the 1st Amendment and that wouldn’t ordinarily result in a criminal charge. Disciplinary proceedings under the act are about sanctioning conduct “prejudicial to the effective and expeditious administration of the business of the courts” -- quite a different standard than that required for criminal prosecutions.

I have tremendous for respect Kozinski’s intellect and accomplishments, and I have no interest in seeing him pilloried. But I do think a disciplinary inquiry is the fair and appropriate course of action at this point -- as does Kozinski. What ultimately happens to him is up to the wise men and women who are now looking into the misconduct allegations. If they do their job, they will find the facts, apply the law and reach a just result -- whatever that result may be.

Third, the defense of Kozinski posted by his wife does not change my opinion. Whether the man-donkey video was wrongly described or not is beside the point. I’ve viewed some of the other pornographic material Kozinski posted, and it wasn’t “funny” at all. I’m with Kozinski, who said the women-painted-as-cows picture was “degrading ... and just gross.” It’s also misogynistic. To me, that’s not “fairly harmless.” Porn like that sends a message -- that it’s OK for women to be treated like animals.

Like it or not, as the chief judge of the U.S. 9th Circuit of Appeals, Kozinski is the public face of one of the most important courts in the nation -- and one, I might add, that doesn’t need an extra reason to be ridiculed. Everyone is entitled to his own opinion, of course. But I don’t think it’s unreasonable for hundreds of Times readers to react with disgust when one of the most prominent and powerful jurists in the nation is so reckless as to keep and share degrading pornography on a private site that turns out to be not so private after all.

Lara A. Bazelon is a deputy federal public defender on a temporary leave. She is writing a law review article about judicial misconduct.

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