(The Return of) Ignatz, by Sam Heldman

Saturday, January 04, 2003

Yesterday, in an opinion of the U.S. Court of Appeals for the Ninth Circuit, Judge Alex Kozinski made a lame and gratuitous joke at the expense of former Vice President Gore. It was a lame joke of the sub-species "he claimed to have invented the internet, ha ha ha". Here's the pdf file; go to footnote 18 of Judge Kozinski's dissent, p. 33 of the pdf file. Even Jay Leno is over that; but Judge Kozinski is not.

A few weeks ago, in an opinion dealing with Gennifer Flowers' defamation case against James Carville, Senator Hillary Clinton, and others, Judge Kozinski made a lame and gratuitous joke about Monica Lewinsky. (One of the cases cited as precedent had included a party named "Levinsky, Inc.," and Judge Kozinski thought it clever to say "(no relation)". See page 12 of this pdf file.) (How do I know these things? By reading Howard Bashman's appellate-law blog, of course.)

Impeachable offense for a judge? Clearly not. But beneath the dignity of a court, and contrary to everything that judging should be, and bad for the judicial system? I think so.

In part, I recognize, I am a stick-in-the-mud about judicial opinions. I don't think that judges ought to show off, or show out, in any way. I don't usually like Judge Kozinski's occasional acts of self-consciously cute hipness in opinions, even when they are apolitical. Heck, I'm such a stick-in-the-mud that I find it annoying to read the opinions of some judges who make a point of using words that not one person in 1,000 has ever heard. To me, judicial opinions are supposed to do two things: (a) explain the results to the litigants, in such a way that – with the help of their lawyers – those litigants can understand why they won or lost and thereby, even if they think it stinks, come to understand that the process was a fair one; (b) explain the result to non-parties so that they too can understand the process to have been a fair one and the result to have been a reasonable one, and help them make educated guesses about what conduct will be held lawful or unlawful in future cases. Anything that does not contribute to these two goals has no place in an opinion, I think. If this makes the role of judging intolerably boring to a person, then I think that person ought to be an advocate or law professor or performance artist and not a judge. Now let me be clear: I'm not saying that jokes, or fancy words, or even Justice-Scalia-brand vitriol, are a violation of any judicial ethic, or ought to be outlawed, or make someone unfit for judging; I'm expressing a personal preference and a view about what I think judicial opinions should be or not be. Judicial opinions aren't like blogs, you know; instead, they are the (one would hope) rational voice of the government, explaining why it is taking or not taking an action that (in most cases) is pretty damn serious, at least to the people involved in the lawsuit.

But these recent political pokes by Judge Kozinski take it to a much different level. In one instance – where the case actually did have something to do with former President Clinton, and the joke was at the expense of him and Ms. Lewinsky – I think that a reasonable losing litigant (Carville or Stephanopoulos, perhaps) could infer something about the judge's political party preference, could infer that the judge didn't even particularly think it important to try to banish that party preference from his mind while doing the act of judging, and could wonder if that party preference might at some level have had something to do with how the judge voted in the case. And a person would be even more reasonable in wondering that, upon reading Judge Kozinski's swipe at former Vice President Gore: "heck, the guy can't even keep his snide expressions of political preferences to himself, even when they have absolutely nothing to do with the case!". Hear me now: I'm not saying that the fix was in, that Judge Kozinski's vote in the either of these cases was a partisan one. But I have more trust in the fairness of judges than many people do; and one of the important rules about judges is that they ought to avoid even those sorts of behavior that would lead some reasonable people to question their fairness. Judge Kozinski's swipes fail that test.

posted by sam 2:52 PM 0 comments


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