Judges Gone Wild

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12 Responses

  1. USLaw.com says:

    If you didn’t see the list of “funny, odd, and interesting” files discovered on what turned out to be the Kozinski family computer, USLaw.com compiled a list at:

    USLaw.com/pop

    We believe Judge Kozinski’s awareness of the popularity of these “viral videos” makes him even more qualified to maintain impartiality over a trial involving the interpretation of community standards.

  2. 2005JD says:

    I agree with most of the post, but this strikes me as a little strange:

    —-begin quote—

    But a judge’s job is different. 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?”

    ——-

    I think every litigant can legitimately ask himself if his case was affected by the judge’s personal habits or biases. I imagine that the litigants in the fantasy baseball case at the Eighth Circuit thought about whether the judges on the panel were baseball fans or whether they played fantasy baseball. Parties to discrimination cases probably ask themselves whether their cases would have been decided differently if the judge was of another race or gender.

    Obviously, certain demographic characteristics are immutable, and fantasy baseball offends a lot fewer people than porn, but if Judge Kozinski’s conduct off the bench isn’t illegal, than why should we be concerned about those sorts of questions from former litigants?

    **I realize that some of you prefer not to respond to anonymous commenters, so I won’t be offended if no one does. I’m interested in this issue, but not so interested that I want a permanent record of my thoughts on it attached to my name.

  3. Chris Bell says:

    Many of the collections are up online, and they don’t appear to be porn as much as “viral videos” (and pics) that often involve nudity.

    For example, the “bestiality” you mentioned is a long-available video in which a guy steps into a field to take a dump. He then gets attacked by a randy goat and finds it hard to defend himself while trying to hold his pants up.

    Like most humor, it’s only funny to an outsider. Just like laughing when someone trips and falls, it’s really a bit cruel.

    Most every item on the computer falls into that category. They are all off-colored items that college boys would email to each other.

    Your post implies at time that Judge K has some collection of hardcore porn that he watches all the time. Maybe he does, but this stuff isn’t it. There’s little to nothing that you couldn’t find on collegehumor.com or any other site.

  4. Dave says:

    I don’t know if this warrants recusal, but I resist pretty strongly the implication that judges who engage in any remotely off-color behavior (and by the standards of the internet, this stuff is pretty tame) are somehow unfit for office. True that there is a social stereotype that judges are serious, borderline humorless folks, and quite often this generalization holds true. But whether someone in his personal life has unusual tastes doesn’t seem to relate to whether he disposes of the cases before him well (whether that means rightly, efficiently, etc.). And while I don’t always agree with Koz’s opinions, they have always seemed well-reasoned and often full of life and energy in a way that so much legal writing is not.

    So while one can make the argument that a maverick judge who posted some bawdy pics on a website doesn’t comport with the notion of majesty and sobriety that we want to associate with the US Courts, that would come with costs. Maverick personalities like Koz are more likely to bring verve, new perspectives, and willingness to take controversial, nontraditional positions on issues. A little poor taste seems like a small price to pay for injecting the judiciary with that kind of life.

  5. Why is there a presumption that if he watches porn, he is a “misogynist”?

    The content was as legal as a bottle of wine. The man has a right to possess it. He has a right to have it on a sub-directory on his website. For that matter, he has a right to publish it openly — if he wants to.

    I have the following books on my bookshelves, Mein Kampf, The Story of O, The Satyricon, The Bible, and a collection from the Marquis de Sade. They are open to anyone to borrow. Just because I have read them doesnt mean that I am a nazi, into S&M, nor am I a christian.

    I’m all for bouncing judges who can’t be impartial. But, if you think that a nutty southern baptist can be neutral (that pretty much makes up the judiciary in many states), then Koz can too.

    But, I’m not sure that “law professors” who don’t actually practice law would ever think of that.

  6. Kaimi says:

    Thanks for the comments, all.

    USLaw,

    Thanks for the link. It’s an interesting added piece of information.

    2005JD,

    That’s certainly a valid question. Obviously, judges aren’t mere judging machines. Even the best judges do their jobs subject to some amount of natural human bias.

    On the other hand, there are some levels and types of biases that we tend to think are too much. The obvious example is recusal in cases where a judge owns stock in the company.

    This is going to be the case, even if the judge’s integrity is unquestioned. It’s because the perceived integrity of the system matters. If judges are just random people inserting their own opinions into cases, there’s no particular reason to respect those opinions more than anyone else’s. Judges have to be above the fray, in a way that isn’t required of others. This is what Gillers means when he says that judge Kozinski’s actions were “seriously negligent.”

    Dave writes,

    “I don’t know if this warrants recusal, but I resist pretty strongly the implication that judges who engage in any remotely off-color behavior (and by the standards of the internet, this stuff is pretty tame) are somehow unfit for office.”

    I don’t think that this makes him unfit for office. I do think that this erodes public confidence in the judge and in the court, and thus undermines the credibility of the judiciary in problematic ways.

    Chris Bell writes,

    “Your post implies at time that Judge K has some collection of hardcore porn that he watches all the time. Maybe he does, but this stuff isn’t it. There’s little to nothing that you couldn’t find on collegehumor.com or any other site.”

    My description comes from the LAT and WSJ descriptions that were available when I wrote this. Since then, various people (including USLaw above) have posted material collected from Kozinski’s site. You’re right, the material posted is not hard-core porn.

    The question of broader workplace porn use is not from the LAT description of this particular website, but comes from a quote in the law.com news story that indicates other workplace porn use.

    Marc Randazza,

    You’re correct to note that the images on the web site do not appear to be illegal. (There are questions about the legality of the mp3s posted, but that’s a relatively minor issue.)

    For better or worse, though, society tends to demand more of judges than that they simply avoid breaking laws — and it has, for a long time. “It’s legal” didn’t help Abe Fortas or George H. Williams much, did it?

  7. Chris Newman says:

    I think perusal of the various sites that have listed or displayed the images in question belies any characterization of them as misogynist. If there is any theme uniting them, it’s that they all involve deliberately offensive, or “gross out” humor. Sometimes, things are funny despite the fact that they are offensive; sometimes they are funny precisely because they are so over the top offensive (see, e.g., South Park). Not everyone appreciates this type of humor, but it is perfectly in character for Judge Kozinski, an inveterate contrarian who never met a sacred cow he wan’t eager to barbecue. I find it troubling that so many people are leaping from descriptions of the images to charges of “misogyny”, and from there to allegations that female lawyers have reason to doubt whether he will take them seriously. Read the man’s paper trail–it is voluminous, and he’s not exactly shy of controversy or circumspect about the way he expresses himself. I defy you to find him expressing opinions that provide any basis for the claim that he believes women to be unworthy of respect. Or ask the numerous women he’s mentored and sent on to the Supreme Court whether he takes them less seriously. It strikes me that some of what we’re seeing here is puritans adopting feminist cant in order to be able to pile on without seeming prudish. Then there’s the indiscriminate bandying about of the term “porn,” which conjures the image of someone using the stuff for sexual gratification, when it’s obvious from seeing it that all it was used for was a cheap snigger.

    (Full disclosure, if you think it matters: I clerked for him 8 years ago.)

  8. Kaimi says:

    Thanks for weighing in, Chris.

    I don’t believe that Judge Kozinski personally is a misogynist. I don’t know him, but I know people who know him and have positive reports. And I’ve read his opinions, and have a lot of respect for him as a legal thinker. I don’t personally believe that the existence of this site means that, for instance, Judge Kozinski will hand down terrible and woman-hating decisions.

    However, there is a separate and very real danger, which is different from the possibility of actual bad judicial rulings.

    The LA Times story — which, let’s face it, is probably the only thing that most people in this country will ever read about the judge — gives a particular description of the files. The LAT description is not particularly favorable. This is all direct quote:

    A photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. . .

    images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women’s crotches in snug-fitting clothing or underwear. . . .

    a young man is bent over in a chair and performing fellatio on himself. In the other, two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading “Bush for President” . . .

    A graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.

    For perhaps 97% of the population, they’re _not_ going to see or know the judge’s paper trail. They’re not going to read opinions or discuss it with friends who know the judge. The totality of their knowledge of him is going to come from the LA Times story.

    The real damage, I think, is not that Judge Kozinski will be a misogynist judge, but that the public will _perceive_ him as a misogynist judge.

  9. Cyrus Sanai says:

    I’m the lawyer who found this stuff and tipped off the press.

    A couple points.

    First, the USLAW.COM compilation of the material is at signficant variance with what I downloaded on December 24, 2007; there are only about 20 files names that are the same. That does not mean that the compilation is wrong; items were added and subtracted over the last six months, as what the LA Times found differed somewhat from what I have and gave them. But it is very, very incomplete.

    Secondly, the links to these supposed “viral videos” don’t lead you to the actual files. Some of what I have was material from identifiable website of X and R rated humor; others I can’t find anywhere.

    Third, the real problem, in my view, was not the porn (which is what the LA Times ran with), but rather file sharing of copyrighted MP3s. Terry Carter of the ABA Journal had been working on this side of the story for many weeks when the LA Times went forward. Here is his piece.

    http://www.abajournal.com/news/risque_images_music_tied_to_9th_circuit_chiefs_site_raises_ethics_questions/

  10. Sean Duffy says:

    Kaimi,

    Nice analysis — balanced and thoughtful. I’m wondering what your opinions are on the potential conflicts question.

    “Wouldn’t you be? Let’s say you had a sex harassment case, obscenity case, privacy case, rape case — hell, all sorts of potentially related topics — before the judge. Wouldn’t you be wondering how the judge’s personal habits affected the outcome — and whether you could re-open that can of worms?”

    We all know the rules on stock ownership, etc. — judges aren’t supposed to sit on cases where they have a real or perceived economic conflict with the outcome of the case. But is there really a conflict where the judge’s personal habits, opinions, politics or proclivities are affected by (or appear to be affected by) the outcome of a case? Supposing that judge x has misogynistic views, or is a Democrat, or has three Red Sox players on his / her fantasy baseball team, are his / her views on a cases that would be potentially impacted by these interests compromised? Of even if they are not, does the fact that their views could be perceived as compromised matter?

    For what it’s worth, my view is that this is a pandoras box we just don’t want to open.

    Sean

  11. Joe Bingham says:

    As others have pointed out, the most disturbing thing about this case is the continuing, disingenuous characterization of the material as “porn.” It’s certainly tasteless and offensive, but certainly not pornographic. The LAT misrepresented the material, and other more innocent sources (such as you) have picked up the mischaracterization. It’s very depressingly unfair.

  12. Jeff says:

    I know I’m a bit slow in responding here, but I disagree with this post entirely.

    I don’t see how this material in any way affects Kozinski’s ability to do his job. to say otherwise would be to claim that because someone has an occasional beer, he is unfit to preside over a drunk driving case, or that because someone listens to Led Zeppelin, he can’t hear a case involving the possession of illegal narcotics.

    You claim that there is something “different” about judges. But the bottom line is this: judges, just like mechanics or people who operate hot dog stands, have a professional obligation to make sure that they can properly do their jobs. Obviously, the ramifications of judicial conduct appear greater than they do for other, less-visible professions. However, if a judges is able to properly weigh evidence and decide cases fairly based the arguments presented before him, what does it matter whether he looks at the occasional lewd picture on the internet?

    Not surprisingly, you are once again letting your moral views cloud your ability to thoughtfully analyze legal issues.