Searching for Alex Kozinski: the controversial 9th Circuit judge on free speech, privacy, and why he didn't mind the Kelo decision

Reason, July, 2006 by Shikha Dalmia

JUDGE ALEX KOZINSKI was born to Holocaust survivors in Communist Romania, emigrating to America at age 12. Four decades later, he enjoys a reputation as--to quote the legal luminary Richard Posner--"one of the best and smartest judges in the country." Famous for his witty, acerbic writing and his libertarian inclinations, he is perennially cited as a potential appointee to the U.S. Supreme Court--and is just as perennially passed over. He is, indeed, the founder and sole member of OOPPSCA: the Organization of People Patiently Seeking Court Appointment.

Kozinski, 55, built his judicial reputation on the U.S. Court of Appeals for the 9th Circuit, where he has spent the last two decades doing daily battle with judges of both the left and the right. "I disagree with the liberals on the bench half of the time," he chuckles, "and the conservatives the other half." The 9th Circuit is widely called the 9th Circus because of its penchant for digging new legal ground even in the face of clear guiding precedent, a habit that makes it one of the most reversed courts in the country. Kozinski's incorrigible impishness--he amuses himself in restaurants by blowing the cover off straws as far as he can--could easily qualify him as the court's ringleader. But he takes his job of applying the law very seriously.

Kozinski, now married with three children, was a late intellectual bloomer who, before graduating at the top of his law class at UCLA, wiled away his time wooing women in such unusual places as television's Dating Game, which he won with an audaciously smarmy pick-up line: "Good afternoon, the flower of my heart." That unctuousness is totally absent from his legal writings, which feature a razor-sharp analytic skill.

Consider United States v. Ramirez-Lopez, a 2003 case involving an illegal Mexican immigrant accused of smuggling people across the border. The government deported most of the witnesses attesting to Lopez's innocence before his attorney could interview them but detained everyone willing to testify to his guilt. Not surprisingly, Lopez got a 78-month prison sentence. But instead of declaring a mistrial on appeal, the 9th Circuit upheld the verdict.

Kozinski, in his dissent, constructed a bitingly funny dialogue in which Lopez's attorney explains to his hapless client why denying his due process rights was necessary to ensure him a fair trial. So effective was Kozinski's parody of the court's circuitous logic that, despite its legal victory, the government dropped the charges against Lopez and suspended his sentence.

In another famous dissent, Kozinski took on the court's liberal judges for denying the right of an individual to bear arms. "The panel's labored effort to smother the Second Amendment by sheer body weight," he wrote, "has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it." Kozinski is also a great ally of the First Amendment, defending the free speech rights of flag burners and homophobes alike. All that, combined with his hatred of statism and his enthusiasm for the free market, has earned him a reputation as one of the most libertarian judges in the country.

Yet when he visited Michigan State University in April, Kozinski, who lives in the Los Angeles area, was uncharacteristically demure on most matters libertarian. Over the course of two days that included a private dinner with fellow jurists in the area, a public lecture, and a morning-after follow-up event, he tried to duck questions about the Bush administration's record on civil liberties. He disagreed in only the mildest terms with the Supreme Court's reversal of his court's opinion--and his concurrence--in the medical marijuana case Raich v. Gonzalez. (Raich tested the limits of the federal government's authority to override state drug laws. Kozinski had stood up for the states, while the Supremes sided with the feds.) And in contrast to some of his previous writings, he sounded positively mainstream on subjects such as racial preferences and capital punishment.

In fact, his most vocal comments were directed against his libertarian allies. He even endorsed the Supreme Court's ruling in Kelo v. New London, dismissing the popular outrage at a local government's attempts to take property from middle-class homeowners and hand it to rich developers. "Who was that man," one justice of the Michigan Supreme Court asked after his dinner comments, "and what has he done with Alex Kozinski?"

During Kozinski's visit he sat down with Shikha Dalmia, a senior analyst with the Reason Foundation, who asked about all those issues and more.

reason: What are your primary memories of growing up in Romania?

Alex Kozinski: That they threw rocks at me on the way to the synagogue for Sunday school. They also threw rocks at my father on the way to his synagogue. The Russians threw rocks at my grandfather on the way to his synagogue. So that's the connection, in a sense, between Romanian and Russian Jews.

reason: What about the statism in Romania? How did you react to that?