posted by Ronald K.L. Collins
What makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.
Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).
Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.
So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.
With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:
On tyranny: “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’ And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”
On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”
The importance of freedom: “Those of you who’ve had the good fortune to be born in the United States simply have not known the absence of freedoms. You can only imagine, but not experience, what it’s like to live in a society where these freedoms are absent.”
On law: “Law is language.”
On writing: “I think law ought to be intelligible. . . . If you can’t explain [a legal point] in such a way that someone who is an intelligent and interested layperson would understand, then you . . . probably don’t understand it yourself.” (For more of Kozinski on writing, see here.)
The state of the First Amendment: “I think the First Amendment is in very good shape.”
Conservatives, liberals & free speech: “[C]onservatives tend to be as, or more, supportive of free speech as liberals.”
Jury nullification: It is “one of the truly evil ideas. . . . It’s really a frightening idea.”
On ideas: “[I]deas have consequences. And ideas that are well-reasoned and forcefully stated tend to eventually find their way [into] cases and [into] our law.”
On privacy: “Until further notice, I would not consider anything you put on the cloud [to be] private. Is that clear? I’m not saying it’s not going to be, but it is a highly undecided question.” (For more of Kozinski on privacy, go here.)
There you have it, Kozinski unplugged. Of course, there is more (about guns, privacy, the Commerce Clause, and the Ninth Circuit, etc.), and I urge readers to check out the full Reason interview.
One more thing: To my friends who take exception to my company, I say, “relax, let your hair down, grab a cold Corona . . . and imagine that you really do believe in diversity!”
Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. His latest books were Floyd Abrams and the First Amendment, which came out last January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Generation (with David Skover).