Kozinski’s Spirit

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As a panel of federal jurists gets underway its review of Judge Alex Kozinski’s alleged “porn site,” it was terrific to see the jurist defended in Gordon Crovitz’s column in the Wall Street Journal. The judge’s wife, Marcy Tiffany, emerged last week to say that the pictures are not about any interest in bestiality or other degrading forms of sex. “The fact is, Alex is not into porn — he is into funny — and sometimes funny has a sexual character,” she was quoted by our Josh Gerstein as saying in an e-mail message to a Web site. She characterized the material on the home computer as “more accurately described as raunchy humor.”

Mrs. Kozinski’s statement comports with our own impression of Judge Kozinski, with whom we’ve had a passing acquaintance for years. The acquaintance has left us with the impression that he is one of the greatest judges on the appeals bench — a national treasure of a jurist. It may be that the blue noses will bring him down or knock him out of contention for the high court, but if so, it would be a loss for the judiciary and for the country.

Judge Kozinski’s rise is one of the most remarkable stories in public life. Until the time he was 12, he was trapped in communist Romania. It was an oppression that made his arrival in America, as a teenager, all the sweeter a liberation. He plunged into America’s freedoms with the exuberance of a boy in a candy store, ending up, little more than a dozen years after he got here, clerk to the chief justice of the United States and, at age 35, a judge on the federal appeals bench.

When we first met him in the 1980s, we were struck then not only by his brilliance but by the vivacity of his spirit. He took great joy in language, sprinkling at least one opinion with phrases from Yiddish, which he heard in his parents’ grocery store in Southern California. One day, he mentioned that he was headed to Seattle for a few days. We asked what he was going to be doing there. He said he was going to be riding the circuit — i.e., hearing cases elsewhere in the 9th circuit from his base in Southern California. The phrase struck our fancy, which is why, even today, The New York Sun’s stylebook requires federal appeals judges to be referred to as riders of a circuit.

Judge Kozinski’s spirit also includes a profoundly serious, even humble, side — and a penchant for controversy. According to Los Angeles Times, even before the uproar over the photos on his private computer, the judge was under investigation for having visited an inmate on death row to learn what life is like there. The visit had taken place after the inmate had read one of the judge’s articles in the New Yorker. Judge Kozinski is one of those jurists who, like Judge Posner and others, has written widely while on the bench.

He has a sense of the deep currents of the law. Once at a First Amendment conference, we fell into a conversation with the judge about how freedom of the press is tied to freedom of property. We talked about how press freedom was lost in the Soviet Union, a story that was related in John Reed’s “Ten Days That Shook the World.” It had been merely suspended at the start of the fight, but when a call was made for it to be restored, Lenin himself shouted down the idea with a tirade about how that would involve returning to private owners property — printing equipment, paper, and ink — that had been seized by the revolution.

What an irony that the judge is now being mocked for raunchy material that was being held on his private computer inside his private home. A finding against Judge Kozinski would signal that our courts have difficulty seeing the difference between public and private, and between ribald and pornographic. These are some of the most sensitive lines in First Amendment law, and the way things work the standards set for the Kozinski family could well become the standards for the rest of Americans who have home computers.


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