Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, is in a controversy over his publicly accessible website, which featured sexually explicit photos and videos. He insists that some of these photos were posted privately as a joke. Kozinski is a long-time friend, who has appeared in my classes in past years. While I never visited the website in question or received such material, I can attest to the fact that Kozinski has a peculiar sense of humor. He is a brilliant jurist and a leading libertarian voice on the Court. Nevertheless, the disclosure is complicating Kozinski’s sitting in a leading pornography case involving Ira Isaacs.
The objectionable material include 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. Another is a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair. Yet, other pictures reportedly involve a striptease featuring a transsexual and a series of photos of women’s crotches as seen through snug fitting clothing or underwear.
Kozinski, 57, said that he did not realize that the material could be accessed by the public. The disclosure has led to calls for him to recuse himself from the case of Ira Isaacs, click here.
The recusal question is an interesting one. It is not clear that any of this material was intended for purposes of arousal. Yet, even if it were, it raises the question of whether interest in such pictures requires recusal. There are many justices who have private lives that include extremely religious activities or conservative cultural values. However, recusal would not be demanded for such private views. Judges are expected to transcend their personal values in reaching legal conclusions and most are capable of doing that. In that sense, it is an issue that could be analogous to the controversy over Judge Robert Somma, click here.
Stephen Gillers, a New York University law professor who specializes in legal ethics, says that he must recuse himself because “the public can reasonably question his objectivity” concerning the issues at hand. Yet, does that mean that anyone who has watched or downloaded pornography is not objective? Doesn’t that create a bias in the other direction? It would suggest that private viewing of pornography is somehow discrediting — a position that would likely limit judges to a more conservative group.
I have not seen the pictures or video but it does appear that recusal is necessary in this case. There are reportedly pictures of themes of defecation and urination, which fall into the scope of the trial. While I believe Kozinski that the posting on a public site was an accident, such pictures would likely come to close to some of the evidence in the case. Moreover, given the public controversy, it may be difficult to separate the case from the controversy.
Such a recusal would be a blow for Isaacs, since Kozinski’s libertarian views would make him ideal for the case from the perspective of the defense.
One of the issue getting a lot of discussion is the fact that Kozinski sought to have filters removed that had been put on computers to deny access to pornography and other materials.
I believe that Kozinski has done the right thing in coming out and speaking frankly about this problem. It would be a shame to allow this controversy to darken an otherwise stellar judicial career. However, this controversy appears to be growing (another good reason to recuse oneself).
For the full story, click here.