Not to be confused with Alex Kosinski.
"Kozinski" redirects here. It is not to be confused with Kosinski, Kosinsky (disambiguation), or Kaczynski.
Alex Kozinski (born July 23, 1950) is a former United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, where he served from 1985 until announcing his retirement on December 18, 2017, after a growing number of allegations of improper sexual conduct. Kozinski was chief judge of that court from November 2007 to December 1, 2014. In addition to his previous judicial duties, Kozinski is an essayist and a judicial commentator.
Kozinski was born to a Jewish family in Bucharest, Romania, in July 1950. In 1962, when he was 12, his parents, both Holocaust survivors, brought him to the United States. The family settled in the Los Feliz neighborhood of Los Angeles, California, where his father, Moses, ran a small grocery store. Kozinski, who had grown up as a committed communist in Bucharest, became what he described as "an instant capitalist" when he took his first trip outside of the Iron Curtain, to Vienna, where he partook of such luxuries as chewing gum and bananas.
Education and early career
He received a Bachelor of Arts degree from University of California, Los Angeles (1972) and a Juris Doctor from UCLA School of Law (1975). He was a law clerk for Judge Anthony Kennedy of the United States Court of Appeals for the Ninth Circuit (1975-76) and for Chief Justice Warren Burger of the Supreme Court of the United States (1976-77). He was in private practice with Forry, Golbert, Singer & Gelles in Los Angeles (1977-79) and Covington & Burling in Washington, D.C. (1979-81). He was a Deputy Legal Counsel of the Office of the President-Elect in Washington, D.C. (1980-81) and an Assistant Counsel for the Office of Counsel to the President in Washington, D.C. (1981). He was a Special Counsel for the Merit Systems Protection Board in Washington, D.C. (1981-82).
Office of Special Counsel incident
While he was in the Office of Special Counsel, despite staff recommendations against termination, Kozinski overruled his staff and then repeatedly tutored Interior SecretaryJames G. Watt's legal staff in how to rewrite the proposed termination of a mining safety whistleblower, James Spadaro, so as to pass legal muster. When the incident came to light years later during confirmation hearings for Kozinski's Ninth Circuit Court of Appeals nomination, the scandal drew 43 Senate opposition votes and reportedly subsequently prevented Kozinski's planned promotion to the US Supreme Court.[clarification needed]
Federal judicial service
Kozinski served as a trial judge of the United States Court of Claims in 1982, serving as Chief of Trial Division that year.
Kozinski was nominated by President Ronald Reagan on August 10, 1982, to the United States Claims Court, to a new seat authorized by 96 Stat. 27. He was confirmed by the United States Senate on August 20, 1982, and received commission on October 1, 1982. He served as Chief Judge from 1982 to 1985. His service terminated on February 9, 1985, due to resignation.
Kozinski was nominated by President Ronald Reagan on June 5, 1985, to the United States Court of Appeals for the Ninth Circuit, to a new seat created by 98 Stat. 333. He was confirmed by the United States Senate by a vote of 54 to 43 on November 7, 1985, and received commission the same day. At 35, he was the youngest federal Appeals Court judge at the time of appointment.
In 2005, after concluding that the 9th Circuit insufficiently addressed breaches of judicial conduct by Judge Manuel Real, after rules had been enacted to discourage behavior that would initiate "a substantial and widespread lowering of public confidence in the courts among reasonable people," Kozinski demanded the actual imposition of higher standards, writing,"It does not inspire confidence in the federal judiciary, when we treat our own so much better than we treat everyone else." Kozinski was persuasive and Real's case was reopened and he was disciplined.
He served as Chief Judge of the circuit from December 1, 2007, to December 1, 2014. In that capacity, he received complaints about Montana Federal Presiding Judge Richard Cebull, who had sent hundreds of emails disparaging women, racial minorities and liberal politicians. One joked that President Barack Obama's birth was the product of a sexual relationship between Obama's mother and a dog. Kozinski appointed a five-judge panel to review the matter in which he was the chair. It recommended disciplinary measures but not removal; the particulars of the investigation were largely kept confidential, at Kozinski's initiative.
During his tenure as a court of appeals judge, he has become a prominent feeder judge. Between 2009-13, he placed nine of his clerks on the United States Supreme Court, the fifth most of any judge during that time period. He has been particularly successful placing his clerks with Justice Anthony Kennedy, for whom he had himself clerked.
Defense of Ninth Circuit
In the 2000s, while defending the Ninth Circuit against criticism because of a recent controversial decision, Elk Grove Unified School District v. Newdow, Kozinski, who had not been part of the case, emphasized judicial independence: "It seems to me that this is what makes this country truly great—that we can have a judiciary where the person who appoints you doesn't own you." He also took a stand against the charge that the Ninth Circuit is overly liberal: "I can say with some confidence that cries that the Ninth Circuit is so liberal are just simply misplaced."
On November 30, 2007, he became the tenth chief judge of the Ninth Circuit. His term as chief judge ended on December 1, 2014, when he was succeeded by Judge Sidney Runyan Thomas.
In 2008, The Los Angeles Times revealed Kozinski "maintained a publicly accessible website featuring sexually explicit photos and videos." Kozinski had collected a "vast" number of images sent to him via e-mail over many years and retained them on a personal web server in his home. Only a "small fraction" of the images were offensive. Kozinski believed that only invited friends and family were able to view the image directory. Nonetheless, he called for an ethics investigation of himself. In July 2009, a panel, headed by Judge Anthony Scirica, wrote that Kozinski should have administered his web server more carefully but that Kozinski's apology and deletion of the web site "properly conclude" the matter.
Support for death penalty
In an interview on CBS's 60 Minutes in April 2017, Kozinksi talked about his support for the death penalty but with the reservation that death by lethal injection should no longer be used. He advocated the use of the guillotine or firing squad and said that for any country that wants to take human life, citizens should be prepared to watch the proceedings.
Sexual misconduct allegations
On December 8, 2017, Kozinski was accused of misconduct by six women including former law clerks and junior staffers, including unexpectedly showing them sexual images when they were alone in his chamber and sometimes asking if they felt aroused or making other inappropriate remarks. Kozinski's former clerk Heidi Bond, now a novelist under the name Courtney Milan, told The Washington Post that Kozinski showed her pornography three times in his chambers and bragged about his college sexual activity while she was clerking for him in 2006 and 2007. Emily Murphy, who was clerking for another Ninth Circuit judge at the time and later became a professor at UC Hastings, said Kozinski suggested to a group that she exercise naked in the courthouse gymnasium. Four other women who worked for Kozinski stated that he acted improperly towards them: showing one pornography, using improper sexual overtones in conversations with one, looking improperly at one's legs, and making an inappropriate comment about one's hair; they wished to remain anonymous because they feared retaliation. Kozinski responded to the allegations saying he didn't remember showing any type of sexual material to his clerks and, "If this is all they are able to dredge up after 35 years, I am not too worried."
Kozinski officially issued a statement that read:
I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.
On December 14, the chief judge of the 9th Circuit referred the matters for investigation and a day later assigned them to the 2nd Circuit.
On December 15, the Washington Post published a story with allegations against Kozinski from 9 more women, this time with more prominent accusers including colleagues, law students, a professor and a former judge. The disclosed sexual misbehavior exceeds three decades, including unwanted physical touching and invitations by Kozinski to have sex. Four of the women say Kozinski touched or kissed them without permission. Two of his current clerks resigned their positions.
On December 18, 2017, Kozinski announced his immediate retirement, though stepped down in a way that lets him keep his retirement benefits. It's unknown whether the investigation on Kozinski will continue. He stated during his resignation that the women must have misunderstood his "broad sense of humor" and "candid way of speaking."
Thompson v. Calderon
Thomas Martin Thompson was convicted based largely on the testimony of his fellow inmates, but doubts about the effectiveness of his defense counsel led seven former California prosecutors to file briefs on Thompson's behalf.
The Ninth Circuit had originally denied Thompson's habeas petition attacking the state court decision. Two days before Thompson's scheduled execution, the Ninth Circuit en banc reversed (7–4) the earlier denial.
If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself.... That this is a capital case does not change the calculus. The stakes are higher in a death case, to be sure, but the stakes for a particular litigant play no legitimate role in the en banc process.
Kozinski's opinion was criticized by Judge Stephen Reinhardt, who called it "bizarre and horrifying" and "unworthy of any jurist." The en banc decision was reversed by the Supreme Court, which called the Ninth Circuit's action "a grave abuse of discretion."
White v. Samsung Electronics America, Inc.
Kozinski dissented from an order rejecting the suggestion for rehearing en banc an appeal filed by Vanna White against Samsung for depicting a robot on a Wheel of Fortune–style set in a humorous advertisement. While the Ninth Circuit held in favor of White, Kozinski dissented: "All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy."
An extended extract from the opinion is widely quoted:
Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.
Kozinski's dissent in White is also famous for his sarcastic remark that "for better or worse, we are the Court of Appeals for the Hollywood Circuit."
Mattel, Inc. v. MCA Records, Inc.
Main article: Mattel, Inc. v. MCA Records, Inc.
Yet another of Kozinski's high-profile cases was the lawsuit filed by Mattel against MCA Records, the record label of Danish pop-dance group Aqua, for "turning Barbie into a sex object" in their 1997 song "Barbie Girl." Kozinski opened the case with: "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong" and famously concluded his 2002 opinion with the words: "The parties are advised to chill."
United States v. Ramirez-Lopez (2003)
The majority found the due process rights of a man, who was accused of smuggling illegal immigrants across the border, were not violated despite the fact that witnesses who could have exonerated him had been deported before they could be deposed. Kozinski dissented. Federal prosecutors, however, dropped all charges and released the defendant.
In 2012, after prosecutors used similar tactics in another case, United States v. Leal-Del Carmen, Kozinski's position in Ramirez-Lopez became the law in the Ninth Circuit.
United States v. Isaacs
Kozinski was assigned an obscenity case, similar to that in Miller v. California. Ira Isaacs was accused of distributing videos depicting bestiality and other images. During the trial on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com." The Times reported that the site included a photo of naked women on all fours painted to look like cows; a video of a half-dressed man cavorting with a sexually aroused farm animal; images of masturbation and public and contortionist sex; a slide show striptease featuring a transsexual; a series of photos of women's crotches as seen through snug fitting clothing or underwear; and content with themes of defecation and urination. Kozinski admitted that some of the material was inappropriate but defended other content as "funny."
Calling the coverage a "baseless smear" by a disgruntled litigant, Stanford University law professor Lawrence Lessig pointed out that the Times had unfairly taken the videos and pictures out of context in its descriptions. He wrote that one frequently-mentioned video, the video described above as a "half-dressed man cavorting with a sexually aroused farm animal," which actually involves a man running away from a donkey, is available on YouTube, and is not, as is implied by the Times article, an example of bestiality. He also argued that the Kozinski family's right to privacy was violated when the disgruntled litigant exposed the private files, which were not intended for public viewing. Lessig compared the incident to breaking and entering a private residence.
Kozinski initially refused to comment on disqualifying himself and then granted a 48-hour stay, when the prosecutor requested time to explore "a potential conflict of interest." On June 13, Kozinski petitioned an ethics panel to investigate his own conduct. He asked Chief Justice John Roberts to assign the inquiry to a panel of judges outside the Ninth Circuit's jurisdiction. Also, he said that his son, Yale, and his family or friends may have been responsible for posting some of the material.
Kozinski had previously been involved in a dispute over government monitoring of federal court employees' computers. Administrative Office head Ralph Mecham dropped the monitoring program but protested in the press. On June 15, 2008, it was reported that Kozinski had recused himself from the case. On June 5, 2009, the Judicial Council of the Third Circuit issued an opinion clearing Kozinski of any wrongdoing.
Cetacean Research v. Sea Shepherd
In February 2013, Kozinski wrote an opinion reversing a district court ruling that had denied Japanese whalers Institute of Cetacean Research a preliminary injunction against the US-based anti-whaling group Sea Shepherd Conservation Society. Kozinski found that the militant conservationist group were "pirates," reversed the denial of injunction by the district court, and affirmed its own provisional injunction against Sea Shepherd. The injunction bars Sea Shepherd from approaching within 500 yards of ICS vessels.
Sea Shepherd founder Paul Watson dismissed the opinion as "entirely devoid of real evidence" and claimed that Sea Shepherd USA was in full compliance with the injunction.
Wood v. Ryan
In July 2014, Joseph Rudolph Wood, who had been sentenced to death, filed a motion before the Ninth Circuit Court of Appeals claiming a right to know which chemicals were included in the lethal injection that was to be used to execute him. While the court denied his motion, Kozinski issued a dissenting opinion, calling the use of drugs a "misguided effort to mask the brutality of executions by making them look serene and peaceful." He went on to argue that states should revert to more primitive methods like the guillotine, electric chair, gas chamber, and firing squads because they are accurate and do not mask the brutality. He wrote, "Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all." Wood's execution would subsequently take 1 h 57 min before he was pronounced dead.
In addition to his judicial duties, Kozinski has been an essayist and a judicial commentator. Kozinski contributes to law journals utilized in graduate instruction such as at Georgetown University, and his essays have been featured in publications such as Slate, The New Yorker, The New Republic, and National Review.
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Alex Kozinski, a high-profile federal judge, retired Monday following sexual harassment accusations from at least 15 women.
Kozinski served on the U.S. Court of Appeals for the Ninth Circuit in California for 32 years. He was appointed to the Ninth Circuit—the largest federal appeals court in the U.S., by former President Ronald Reagan in 1985. He served as chief judge of the court from 2007 to 2014.
Kozinski issued a statement Monday explaining he was stepping down because he cannot “be an effective judge and simultaneously fight this battle.” He also apologized to the women who accused him of sexual harassment, saying, “It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”
The allegations against Kozinski span decades and involve women who worked for him as well as those who encountered him at events, according to The Washington Post, which broke the initial story. The newspaper’s first report on Dec. 8 details accusations from six women, all former clerks or junior staff members, who alleged the judge had made sexual comments or acted inappropriately, including hugging and kissing them. Two women said Kozinski showed them pornography in his chambers.
More women have since come forward.
Last week, the chief judge of the Ninth Circuit started a formal inquiry into Kozinski. Supreme Court Chief Justice John Roberts transferred the formal investigation to the federal appeals court based in New York following a request from the 9th Circuit Court of Appeals Chief Judge Sidney Thomas. The transfer was requested to ensure impartiality.
Kozinski has faced accusations of misconduct. The Los Angeles Times reported in 2008 that Kozinski, who was chief judge of the Ninth Circuit at the time, maintained a publicly accessible website featuring sexually explicit photos and videos. One photo depicted naked women on all fours painted to look like cows. Kozinski initially told the LA Times that the site was for his private storage and that he was not aware the images could be seen by the public. He did acknowledge that he shared some material on the site with friends, and while he said some material was inappropriate, he defended other content as “funny,” the paper reported.