I am not yet sure what I think of the legal merits of Kozinski’s Goldyn opinion. I confess to being sympathetic to the opinion, and this is why: Even if it strains a relevant rule of law (deference to state courts’ interpretation of state statutes), it does so in order to uphold another rule-of-law principle: attending to the plain meaning of statutory text, especially in something as important as a criminal prosecution.

The opinion belongs in the “federal courts telling state courts their interpretations of state law are on crack” folder. Note that this folder also contains the Rehnquist concurrence in Bush v. Gore.

A memorable recent example is his dissent in U.S. v. Ramirez-Lopez (9th Cir. 2003), which was so cutting the government decided to drop the prosecution, despite having prevailed in the Ninth Circuit, and the panel majority withdrew their opinion!

In light of what the prior comment accurately terms the “baseless innuendoes” thrown around in the post, let me note that Ramirez-Lopez, the defendant whose railroading at trial summoned forth Judge Kozinski’s tour de force dissent, was a Mexican national convicted for smuggling illegal immigrants across the U.S. border.

What a coincidence – after reading Professor Filler’s posting, I, too, was suspicious: would Professor Filler have laid out a similar posting of baseless innuendoes if the judge’s name instead had been, say, Judge Stephen Reinhardt…or if the plaintiff had in fact been a crack addict named Osama bin Hamdan.

Professor Filler seemingly inoculates himself with a meaningless declaration of “I’m not accusing Kosinski or his mates of being explicitly racist or sexist”. Thanks for clearing that one up! I mean, after reading about a WOMAN of unknown ethnicity or race winning in federal circuit court after spending twelve years in jail – well, who wouldn’t initiallty think that such a ruling could only come from some rascist, sexist neanderthal.

Perhaps if Judge Kosinski had merely wrapped his opinion around some kind of social policy-making (i.e. tied her conviction to a gambling addiction) – maybe then Professor Filler would have been a bit more understanding, if not downright effusove with praise…but, no, instead Judge Kosinski made a “”most controversial move”; he decided “to interpret a statute according to its plain text”.

Now, I’m not accusing Professor Filler of being explicitly a liberal law professor out to impugn a judge he doesn’t agree with. It’s just that I’ve spent enough time around liberals to know that, when it comes to judges considered not to be connected to their inner William Kunstlers, well, anything goes. And that leaves me a bit suspicious here.