Boyish U.S. Judge Vigorously Fights Excesses of Power

Three years after appointment to the nation’s largest federal appeals court as a brilliant young conservative, Judge Alex Kozinski is proving to be an enigma to both former critics and supporters.

Tagged a Reagan conservative by some and a quixotic libertarian by others, Kozinski has shown an independent streak in defending free speech and criticizing government abuse of power.

Friends and foes have described him as brilliant, ambitious and a gifted writer. Some former subordinates add that he is cruel, harsh and intolerant. But it is his opinions that confound Kozinski watchers.

As Kozinski, who completed three years on the bench in November, approaches the benchmark of his first 100 opinions, his rulings reveal a judicial philosophy that is not easily pigeonholed.

Youngest Judge

When appointed at age 35, he was the youngest federal appeals judge in the nation in this century, and today, at 39, he remains the youngest.

He is a member of the 28-judge U.S. 9th Circuit Court of Appeals, which decides cases in three-judge panels.

Kozinski’s nomination, after a scant two years as chief judge on the obscure Court of Claims, brought protests from civil liberties groups, influential Sen. Carl Levin (D-Mich.) and some former subordinates.

They accused him of crushing bureaucratic whistle blowers while serving as chief counsel for the Merit Systems Protection Board, created to defend federal workers who expose wrongdoing.

Kozinski expressed pride in his handling of the job.

“I think I handed over to my successor a far better office than I inherited,” he said, but added, “It was a tumultuous period. I lacked experience. With more experience, with more maturity, I might have been able to avoid some problems.”

Critics also cited his firing of a woman undergoing cancer treatments because of her absences from work a month before her retirement and his dismissal of a 25-year veteran employee on disability leave.

Intolerance and exacting demands for precision were blamed for driving off half his staff at the board between 1981 and 1982, according to Senate confirmation documents.

While chief judge of the Court of Claims in 1984, he not only rejected a judicial misconduct claim against one of his court colleagues but fined the lawyers who reported it, and, in a highly unusual move, wrote to their clients informing them of the fines.

The lawyers countered in 1986 with a formal misconduct complaint against Kozinski at his new post at the 9th Circuit, based on his handling of the 1984 incident. But the 9th Circuit dismissed it, noting the Senate had confirmed him with full knowledge of the dispute.

Kozinski squeaked through his Senate confirmation fight by a slim nine-vote margin.

Harsh criticism of Kozinski during the 1985 Senate confirmation may have derailed him from what looked to be a fast track to a Supreme Court seat. Nevertheless, his name still pops up in legal circles as a possible nominee for the high court.

Puzzling Contradictions

But who is the real Alex Kozinski?

Short and boyish looking, he doesn’t fit the image of an appellate court judge. His gregarious and disarmingly candid personality serves to offset his reputation for harshness.

“I consider myself an old-style Jeffersonian liberal,” he said.

The most consistent tag has been libertarian, a philosophy that holds that the less government, the better.

“I’ve been called worse things in my life,” Kozinski said with a laugh.

Kozinski, who is Jewish, immigrated to the United States with his family at age 12 from Communist Romania in Eastern Europe.

“I remember from my childhood seeing people locked up in their pajamas in the middle of the night by police,” he said.

Fears From Childhood

Fears of retaliation for anti-government sentiments prompted his father to take unusual protective measures.

“My father and I had a signal. I was very small, and he said, ‘If you ever start talking, and I give you the signal, you must stop.’ He couldn’t afford to let a small child say stupid things in public . . . things critical of the government,” Kozinski recalled.

“I feel probably more suspicious of governmental power than most people who are viewed as conservatives and, I dare say, than some people who are considered liberals,” he said.

“I tend to worry a lot about the First Amendment. I tend to worry a lot about search and seizure laws. I also tend to worry about the government interfering in the economy.”

In a case challenging the legality of searching airport luggage without a passenger’s consent, Kozinski wrote, “My guess is that most passengers would be shocked to learn that, as they are waiting to board the plane, faceless bureaucrats are breaking into their luggage and pawing through it at will.”

Kozinski rocketed to the top of the Reagan constellation of judges by adherence to the conservative agenda. But he has turned out some surprisingly liberal rulings in a few areas that may reflect his upbringing.

He has:

- Defended free speech rights of homosexuals in a 1986 dissent involving the International Olympic Committee.

- Criticized the government’s widespread use of secret searches of airport luggage without the knowledge or consent of passengers in a 1988 drug-courier case.

- Said in a 1986 case that defense lawyers who claim prosecutors are racially biased when they exclude minorities from juries are entitled to hear prosecutors explain their reasons and to refute the rationale.

- Wrote a 2-1 ruling invalidating the Reagan-created Sentencing Commission, which wrote tough new federal prison sentencing guidelines for the nation. He ruled it violated the separation of powers doctrine by letting judges enact legislation. The Supreme Court reinstated the guideline Jan. 18.

- In a 1987 Utah Law Review article, Kozinski criticized a pet philosophy of former Atty. Gen. Edwin Meese III that advocated a far more restrictive interpretation of the Constitution. Meese pushed judicial adherence to the original intent of the Constitution’s drafters, something akin to religious fundamentalist belief in the literal words of the Biblical book of Genesis.

“Original intent,” wrote Kozinski, “thus appears to be a ‘head-in-the-sand, feet-in-cement’ and a not-very-clever jurisprudence of reactionary politics that would reverse 200 years of our nation’s development.”

Jerry Falk, a liberal San Francisco attorney who practices constitutional law, called Kozinski “extraordinarily brilliant” and said he views cases “with a fresh approach” and “without preconceived ideas.”

“If I were an appointer looking for somebody to make a huge mark, it would be Kozinski.”

Kozinski also has been the darling of conservatives since joining Reagan’s transition team as deputy counsel after the 1980 election victory. He has embraced Reagan conservatism in the majority of his 85 opinions in the last three years.

Economic Positions

Kozinski remains solidly conservative on economic issues, affirmative action, the environment and criminal issues.

In some of those conservative rulings he:

- Struck down San Francisco’s contract system giving preferences to minorities while leaving in place preferences for women-owned and locally owned businesses. Much of the decision was reinforced by the Supreme Court in a Virginia case Jan. 23.

- Sided with mobile park landlords in a Santa Barbara rent control case by stating that restrictive rents reduced property values. He reinstated the landlords’ lawsuit, which seeks compensation for the lost value of the property. The ruling ignored three Supreme Court decisions and a number of other court rulings rejecting challenges to rent regulation, according to Herman Schwartz, a liberal American University law professor and Kozinski critic.

- Supported an English-only rule in the workplace for bilingual workers in a Los Angeles court hired to translate for the public. He disputed the ruling allowing them to speak Spanish with co-workers.

Kozinski, who is not a native English speaker, said giving workers an absolute right to speak other than English undermines the 1964 Civil Rights Act and undermines workplace morale.

Although he has upheld one death penalty ruling in a Montana case, he thinks it is possible states may become disenchanted with the death penalty.

If it happens, it would not be a judgment about the essential worth of the death penalty, he said, adding: “My suspicion is it will be because . . . every death penalty case imposes a hugely disproportionate cost on the legal system compared to other cases.”

On the environment, Kozinski upheld a planned government sale of offshore oil leases over the objections of Alaska, two tribal villages, seven fishery groups and a host of environmentalists.

In a second case, he sided with Alaskan natives in giving 400 Kenaitze Indians priority on federal fishing rights.

Close to the Agenda

Schwartz, who wrote “Packing the Courts,” a book about Reagan-appointed judges, said Kozinski fits the libertarian mold, but he expects him to stick closely to the Reagan agenda on affirmative action, property rights and church-state questions.

But a clearer understanding of Kozinski’s political stance may come from his handling of ground-breaking legal issues such as the pending case of Perry Watkins, a former Army sergeant from Seattle who was denied re-enlistment because he was homosexual.

Patrick McGuigan, a historian and non-lawyer who is senior scholar of the conservative Free Congress Center for Law and Democracy, agreed.

“There has been scattered criticism over the last few years that Alex is too sympathetic to the rights of the accused or suspected people,” McGuigan said.

McGuigan said he considers Kozinski a libertarian, sensitive to government intrusion into personal liberties.

“He is just at the start of what is a very distinguished career,” McGuigan said.