By a margin of only 11 votes, the Senate on Thursday confirmed Alex Kozinski, President Reagan's controversial nominee, to fill a vacancy on the U.S. 9th Circuit Court of Appeals in San Francisco.
The vote in the Republican-led Senate was 54 to 43, mostly along party lines. Sen. Pete Wilson (R-Calif.) voted to confirm Kozinski, while Sen. Alan Cranston (D-Calif.) opposed the action.
"I'm very pleased and humbled, and I'm anxious to return to California as soon as possible," Kozinski said after his confirmation.
Kozinski, 35, a UCLA alumnus who has been chief judge of the U.S. Claims Court in Washington for the past three years, now becomes the youngest federal appellate judge appointed in this century.
He will join the nation's largest regional federal appeals court, with 25 active and nine senior judges hearing cases involving California and eight other Western states. He will sit in Los Angeles, along with five other 9th Circuit judges.
During debate on the Senate floor, Democratic opponents of Kozinski described him as exceptionally bright but said his conduct as special counsel to the federal Merit Systems Protection Board in 1981-82 showed that he lacked the temperament and compassion judges should have.
Sen. Carl Levin (D-Mich.), Kozinski's leading opponent, charged that Kozinski harassed his subordinates in the special counsel's office, forcing them to move and repair his office furniture and writing deprecating remarks on drafts of their legal briefs.
"He is exceptionally intelligent and academically superior," Levin said, noting that Kozinski, a native of Romania, graduated first in his UCLA law class in 1975. "But he lacks judicial temperament, is prone to anger and is lacking in compassion."
Sen. Howard M. Metzenbaum (D-Ohio) declared that Kozinski "misled the committee in responding to objections raised to his confirmation." He said Kozinski told the committee that Mary Eastwood, a former employee of his, had repudiated earlier charges she made against him, while Eastwood told the committee that she held firm to her conviction that Kozinski had treated some employees in a "harsh and cruel" manner.
However, Sen. Strom Thurmond (R-S.C.), chairman of the Senate Judiciary Committee, which had approved the nomination, called criticism of Kozinski "the puniest, most nit-picking charges ever raised against a judicial nominee."
Sen. Orrin G. Hatch (R-Utah) praised Kozinski as "an outstanding legal scholar . . . fair and understanding."
Critics and supporters alike agree that Kozinski's abilities are exceptional, however, and acknowledge that his background--a childhood spent in the closed society of Communist Romania, where, he noted, typewriters must be registered with the state--has left him with a deep appreciation of the legal system.
"You don't realize how bad it is in a country like that until you live in a free society like ours," he said in a recent interview. "People there live in fear of the secret police--fear that something they say may get them taken away in the middle of the night. I have seen people hauled off in their pajamas.
"I've seen what a system of government can do when it is not restrained by law. It's very important to have a system where the rights of minorities are protected--and the rights of the majority are protected from a small minority of oppressors."
Moreover, he contends that his youth can be a major asset.
"Certainly, in 10 years I hope to be a better judge than I am today," he conceded. "But to some extent, being young is an advantage. I may have a general philosophy, but there are very few things I have already made up my mind on. I can keep an open mind and put the time and energy into the job that it requires."
He is widely expected to bring a conservative voice to the court, now perhaps the most liberal in the country. He told the Senate Judiciary Committee that many federal and state courts "have abused the mandate given to them by the legislature and have embarked upon schemes to rewrite statutes, to impose far-reaching remedies and to undermine the traditional threshold requirements for adjudicating cases or controversies."
In the interview, Kozinski said: "It's wrong for judges to decide on a result they want in a case and then try to make the law fit. I think that you start at the other end--with the law--and come out wherever you come out. You may not like the result, but that's just too bad."
That view of the law, which is the sort Reagan is seeking from his judicial nominees, is becoming increasingly common on the federal bench.
By the end of this year, it is expected that Reagan will have named nearly 300 judges to the nation's federal district courts and regional appeals courts, and he probably will have filled a majority of the 743 positions on those courts by the time he leaves office in 1989.
Before Reagan, only Presidents Franklin D. Roosevelt and Dwight D. Eisenhower appointed a majority of judges on the district and appellate benches.
Kozinski, more, perhaps, than any of the other Reagan judicial nominees, would appear to personify the Administration's quest for dedicated young legal conservatives for the federal bench.
Those who know Kozinski find him a man of contrasts. He can be harsh and demanding of underlings but friendly and unpretentious to others. He speaks four foreign languages but makes self-deprecatory jokes about his noticeably accented English.
When Kozinski was a boy in Romania, his parents, who had survived concentration camps during World War II, made what he recalls as "superhuman efforts" to provide for him, giving him piano lessons and tutoring in French, German and English. When he was 8 years old, they asked permission to leave Romania; their request was granted when he was 12.
Arriving in Baltimore with $5 in their pockets, the Kozinskis established a small grocery business with the aid of Jewish welfare organizations. They moved later to Los Angeles and started another grocery in Hollywood, not far from the ABC Television Center. Jimmy Durante, Goldie Hawn, Greg Morris and Lawrence Welk were among their customers.
Kozinski studied economics at UCLA before entering law school there, and worked as a law clerk to Judge Anthony M. Kennedy of the 9th Circuit and then to Chief Justice Warren E. Burger of the U.S. Supreme Court.
He became acquainted with Edwin Meese III, now attorney general, and while in private legal practice, signed on as a volunteer attorney for the 1980 Reagan-Bush campaign. In 1981, Kozinski was rewarded with an appointment as special counsel to the federal Merit Systems Protection Board, the agency that handles complaints from government employees against their supervisors.
Fourteen months later, Reagan named him to head the U.S. Claims Court, which handles such matters as contract disputes with the government. He drew widespread praise for streamlining court procedures, reducing the case backlog and even increasing toilet facilities to accommodate women employees, who were being forced to stand in line to use the lavatory.
But after he was nominated last summer to the 9th Circuit, government employee groups and others focused on his tenure at the Merit Systems Protection Board, where, they charged that he had mistreated staff members and had not adequately protected the rights of "whistle-blowers"--employees who complain about government waste and improprieties.
Former staff members told the Senate Judiciary Committee that he lacked compassion and crippled staff morale. They cited his handling of a draft legal brief from a subordinate, which he filled with corrections and the scathing notation: "This is one of the worst pieces of work I have seen. It shows sloppy work habits, fuzzy thinking, lack of organization, inexperience in formulating a coherent legal argument and total inattention to detail."
Thomas M. Devine of the Government Accountability Project, a private group that backs whistle-blowers, led the attack against Kozinski but quickly admitted to mixed feelings about him.
"In personal dealings, I found him genuinely likable and extremely charming," Devine said. "But the thing that has struck me is how many of his former employees refer to his 'reign' rather than his 'tenure' and how often they use words like 'cruelty' and 'humiliation' to describe what he did."
Kozinski firmly denied most of the charges.
"I tried to be fair to employees and to treat them with the respect they deserved," he told the Judiciary Committee. "Nevertheless, there were some employees who would not or could not perform adequately, and dealing with such problem employees is never pleasant."