Judges Gone Wild: The Big Kozinski

I quoted Judge Kozinski in a blog post a month ago to this day. I was impressed very with his background and reputation. Unfortunately, there is some unfortunate news coming out today about him posting some extremely inappropriate photos on his website:

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore "a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here."

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

Kozinski is one of the nation's highest-ranking judges and has been mentioned as a possible candidate for the U.S. Supreme Court. He was named chief judge of the 9th Circuit last year and is considered a judicial conservative on most issues. He was appointed to the federal bench by President Reagan in 1985.

At a minimum, Judge Kozinski has ruined his chances of ever becoming a Supreme Court Justice. It also destroys his credibility in the current obscenity case he is presiding over and tarnishes an otherwise stellar career of an amazing jurist.

Glenn Reynolds doesn't seem to think this is such a big deal, calling it a "nonstory". I think he is underestimating the public's reaction to this and the impact that will have on Kozinski's future career. Kaimipono D. Wenger expresses views more similar to my own:

...whether or not Judge Kozinski meant for them to be, the actions are taking place in a (somewhat) public forum.

If Judge Kozinski had kept all of this material on his personal laptop, which was then stolen from him, the analysis would be different. If Judge Kozinski kept it all in a password-protected site, and someone hacked his site, the analysis would be different. But keeping it in a dusty corner of the public internet, and simply hoping no one notices it -- that affects the story in important ways. It ultimately prevents Judge Kozinski from effectively raising the defense that the site was a purely private matter, which was kept under lock and key, and which has now been unfairly publicized.

...the disclosure of this material potentially compromises the judge's role in a current case -- it's coming to light in the middle of a big obscenity trial that Judge Kozinski is presiding over.

A judge makes rulings in cases like sexual harassment. And a judge's public persona has to be beyond reproach. At this point, I have to suspect that former litigants in cases that were before Judge Kozinski are asking themselves, "was my case impacted by the judge's porn habits?"

Which brings us to the broader point. Judge Kozinski's actions affect the reputation of the judiciary, on which rest foundations of the state, like public respect for the rule of law. To the extent that this public disclosure undermines public confidence in the judiciary or the rule of law, it's a very bad thing. There's a reason for the outrage that's expressed when the public hears about judges' bad behavior. As Stephen Gillers told the LAT, "The phrase 'sober as a judge' resonates with the American public."

Which is why Judge Kozinski's decidedly unsober actions are so troubling.

Indeed.

A judge has to maintain the public persona of impartiality and Judge Kozinski has destroyed much of this perception of himself in a number of areas. This may not make him completely ineffective as a judge, but it will certainly impact his credibility and respect among many and make him a liability if politicians attempt to appoint him into other positions.

On a personal level, it's also very disappointing to see someone I held a great deal of respect for blunder in such a bad way. I do respect his response in calling for an investigation on himself:

The 9th Circuit judge, who posted sexually explicit material on a personal site, according to a Los Angeles Times story yesterday, has just released this statement:

I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26, of the Rules Governing Judicial Conduct and Disability, and to initiate proceedings concerning the article that appeared in yesterday’s Los Angeles Times. I will cooperate fully in any investigation.

Alex Kozinski

Legal ethics professors said they thought an investigation was appropriate. The main concerns, they said, should be whether the judge took sufficient steps to make sure the material was inaccessible, and whether and to what extent material was disseminated.

Deborah Rhode at Stanford Law School said that to have the material “open to public consumption at the very least displays an extraordinary lack of judgment.”

While I will certainly give Kozinski a great deal of credit for calling for an investigation on himself, I think Deborah Rhode sums up Kozinski's fundamental problem well -- how can the public have confidence in a judge that displays an "extraordinary lack of judgment"? That's a perception Judge Kozinski is going to have to fight for some time to come.

More thoughts on this from Ann Althouse and Stephen Bainbridge. David Lat has a great roundup of coverage.

Update: Eugene Volokh puts this whole situation into much better context.