Alex Kozinski, the judge whose private file server was revealed to contain pornographic images, has been the subject of harsh criticism over the affair. In a Blowback, Lara A. Bazelon joins the “Crucify Kozinski” brigade, despite the inherent flaws in the case against the federal judge highlighted so well by a Times editorial that asked, “So what?” about the judge’s possession of pornographic images. I was compelled to respond to Bazelon.
She says that Kozinski “has been arguing for years for tighter restrictions on federal judges,” as though he is somehow a hypocrite now that some are accusing him of misconduct. But Kozinski would be a hypocrite only if he argued against those restrictions being applied to himself. In fact, to the contrary, Kozinski has invited such scrutiny from his colleagues, and has a flawless record of supporting and upholding the 1st Amendment right to free speech and free expression, including his famous fight to remove porn filters from court computers. I’d say that is the exact opposite of hypocritical.
Bazelon says, “A Times story reported that Kozinski maintained a private website replete with pornographic material, including ‘a picture of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal.’ ”
Well, Bazelon hasn’t been paying attention. Kozinski’s wife, Marcy Tiffany, spoke out about this the other day and described the material in more detail. She says of that clip: “It is a widely available video of a man trying to relieve himself [in] a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other.” Not exactly “cavorting” in the sense Bazelon and The Times’ story implies, is it? Barnyard humor, to be sure, but an instance of rejecting a donkey’s advances does not pornography make.
Bazelon reports on the statute’s definition including “behavior off the bench that results in ‘a substantial and widespread lowering of public confidence in the courts among reasonable people.’ The outraged response of hundreds of Times readers, whose dismay extended from Kozinski’s conduct to include concern about the integrity of judges in general, is compelling evidence that this standard has been met.”
Except for a few things. First, the “outraged responses” were to a mere newspaper report giving vague summaries, rather than any firsthand access to the material, a report which has since been shown to have been unclear, causing people to completely misunderstand the nature of the site. “Reasonable people” don’t get outraged about fairly harmless material on somebody else’s private file server.
I wonder why Kozinski is lacking in “high standards of conduct.” Is it the mere possession of pornographic images? Tiffany has made it clear that her husband is “into funny,” not “into porn.” But let’s say he was. Let’s say Kozinski had a sizable porn collection on his private file server (which he doesn’t). What would even that prove about Kozinski? That he’s normal?
She finishes by saying: “How ironic, then, if the very rigor that Kozinski argued for with such eloquence is used to serve his own comeuppance. The argument for tougher standards on judges, it seems, has come full circle.”
There’s nothing ironic about it. Kozinski is not arguing that he be treated any differently from any other judge. And more important, he’s not guilty of judicial misconduct by any stretch of the imagination.
John Wright is the host of a daily afternoon radio show on KLPZ-AM (1380) along the California-Arizona state line, and blogs frequently on libertarianism and current affairs at www.John-Wright.Net. This piece is adapted from his blog.
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