Ninth Circuit Chief Judge Alex Kozinski (left) has written an order (below) absolving a magistrate judge (believed to be Magistrate Judge Edward Chen) of ethical charges after he spoke out publicly against “institutionalized racism” and the criminalization of immigration laws.
Here is how Kozinski described the facts:
A pro se litigant charges that a judge made public comments that violated
the Code of Conduct for United States Judges. She alleges that, after the September 11, 2001 attacks, the judge gave a speech in which he stated he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance” and that the “[c]riminalization of immigration laws” constituted “[i]nstitutionalized racism.” Complainant also alleges that, in another speech, the judge “criticized [a senator’s] work in trying to investigate campaign finance controversies involving [two individuals], both of whom eventually pled guilty to felony campaign finance law violations.” (First two alterations in original).
It is the statement on the criminalization of immigration laws that I find a bit troubling. I find it rather injudicious for a judicial officer to be speaking out publicly against specific laws — laws that he could have to interpret or enforce.
Kozinski, however, insisted that “A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure.” Kozinski (whom I consider a friend and brilliant jurist) was an interesting choice since he is often criticized for comments or jokes. In the opinion he insists “Humor is the pepper spray in the arsenal of persuasive literary ordnance. It is often surprising, disarming and, when delivered with precision, highly effective.”
Chen’s public remarks have been used against his nomination for elevation to the Northern District of California. However, Kozinski ruled that “[w]ithout more, there’s no basis for concluding that the judge’s conduct resulted in “a substantial and widespread lowering of public confidence in the courts.”
I recently wrote a column criticizing Supreme Court Justices for their increasingly public commentary — a trend that diminished the integrity of the Court and reaffirms the view that our courts are partisan and ideologically driven.
Here is the order: 1090016o
Source: ABA Journal