Alex Kozinski, Jeffrey Cole - My Afternoon With Alex. An Interview With Judge Kozinski

My Afternoon with Alex: An Interview with Judge Kozinski
Author(s): Alex Kozinski and Jeffrey Cole

Source: Litigation, Vol. 30, No. 4, Risks, Responsibilities, Reforms (Summer 2004), pp. 6-20,
74-75
Published by: American Bar Association
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My Afternoon with Alex:
An Interview with Judge Kozinski
by JeffreyCole
Like Richard Posner, that other lion of conservatism, Alex Born in Communist Bucharest, he came to the United
Kozinski is one of themost influentialjudges inAmerica. He States as a child. Rejecting his mother's injunction to be
has been called thedarling of theFederalist Society and one "mediocre"?a caution born of being
a Holocaust survivor?
of the brightest superstars in thefederal judicial firmament, Kozinski graduated first in his class at UCLA Law School and
"an Article III celebrity of Tom Cruise-esque proportions." was themanaging editor of the law review.But in thosedays, as
But ifJudge Posner has about him "the ectoplasmic air of the Kozinski recalled, 'firmswere lookingfor somebody tomarry,
butler in a haunted house, who escorts his visitor to thewait? and I wasn't an eligible bachelor." And so, after being rejected
ing room of his personality, where the visitor will sit lulled by by 20 lawfirms, includingTed Olsons, he decided to applyfor
the bland ambiance of theplace, until it is timefor murder," a clerkshipwithAnthonyKennedy, who had just been appointed
The New Yorker (Dec. 10, 2001), Judge Kozinski has about to theNinth Circuit. That decision would change the course of
him theair and effusiveness of a ringmaster, and thewaiting his life.The Kennedy clerkship led to his getting the coveted
room of his personality is anything but bland. clerkship with Justice Douglas, who resigned from theCourt
He is the onlyfederal judge with a fan-created website. He hours afterKozinski was notifiedhe had been hired.Not missing
delights in reminiscing about having been on and winning a beat, Kozinski within days landed a clerkshipwith Chief Jus?
The Dating Game (while a student), only tobe stood up by his ticeBurger. That experience convinced himwhere his future lay.
date and miss theGuadalajara Bowling Tournament. Shortly When Ronald Reagan announced his candidacy for President
after coming on the bench, Kozinski, an avid movie buff of theUnited States, Kozinski volunteered todo for theReagan
smuggled more than 200 movie titles into the text of an campaign what he did best: solve complex legal problems. His
antitrust opinion involving themovie industry.In July of this unique intellectual giftswere soon recognized, and, following
year, he successfully nominated himself (after the close of the theReagan victory,he was, at theage of 32, nominated byRea?
nominating period) to be "Male Superhottie of theFederal gan to be Chief Judge of the newly formed Federal Claims
Judiciary" and, after an admittedly shameless campaign, Court. Three years later,with the help of Ted Olson, he was
won the title?an extraordinary victory for someone who again nominated byPresident Reagan, this time tobe a judge of
describes himself as bearing an uncanny resemblance to theNinth Circuit. Following a contentious confirmation hear?
Moses, with an accent close to Governor Schwarzenegger 's. ing, the 35-year-old Kozinski, who, likeFelix Frankfurter,had
See http://underneaththeirrobes,blogs. com/main. emigrated to theUnited States at theage of 12, became one of
Like Judge Posner, Kozinski is a prolific writer. The titles theyoungestfederal judges in history.As Tim Russert recently
of his numerous law review articles and speeches reflect his observed inhis charming autobiography, "What a country."
extraordinary and puckish sense of humor and the diversity I recentlymet with Judge Kozinski at his office inPasadena.
of his interests: "Bob Bork Meets theBald Soprano," "My What was tobe a two-hour interviewbecame a fascinating day?
"
Pizza with Nino," "Don't Drop the Torah, "My Digital long excursion with the Judge into his childhood, the events
Exam," Death: The Ultimate Run-On Sentence," and thathave shaped his views of law and life,and a frank discus?
"Trouble in Super Mario Land" are illustrative. But make sion of his opinions on a diverse range of topics, both personal
no mistake, he is brainy and zany in equal measure. Indeed, and professional, including thedeath penalty, original intent,
few would disagree thatKozinski stands in thefirst rank of how towin (and lose) appeals, theSecond Amendment, judicial
the great federal judges. craftsmanship and judicial ethics, and much more. Even a
quick read of what follows will make it apparent why Alex
JeffreyCole is the editor-in-chief of 'Litigation and is with Cole & Staes, Kozinski continues to be a lightning rodfor controversy and,
Ltd., in Chicago, Illinois. even more so, to have so devoted a following.
Litigation Summer 2004 Volume 30 Number 4

Q: Often people who are born in theUnited States tend to asked me todo it.So, you know, writing ismy life; there
take for granted the freedoms that this country affords, is no writing that is theoretically too difficult.
while thosewho emigrate here, as you did, seem to have
Q: This iswhat you wrote in 1996:
a greater appreciation of those freedoms. You were born
On this, my 46th birthday, I contemplate the
in 1950, inBucharest, Romania, where you lived under
a Communist regime with your parents, both of whom vagaries of fate. I thinkabout thosewho died in vil?
were Holocaust survivors. lages likeDzurov, deaths made all themore tragic
because no one was lefttomourn. And I thinkabout
A: Those beginnings and those experiences profoundly David Kozinski, the scoundrel, who despite his
influenced my life.One of the things I'm really sorry is the reason theKozinski family left
many faults,
about is that tomy children theHolocaust is history, sort in the nick of time. And I think about Reizl, that
of like the Inquisition, somewhat different in time, but
courageous woman who maintained her family
not thatdifferent.To me itwas real?a livingmemory? without a husband, and took them out of harm's
because when I was growing up in the '50s, theHolo? a brave and
way. And about my father,Moses,
caust was only a few years past. My parents, like so decent man, who brought his own small family out
many others, experienced theworst, and I exist because frombehind the IronCurtain so his son could grow
they both happen to be survivors and theymet after? up inAmerica. And I sigh.
ward. So in a way, I am a child of theHolocaust. And I
A: Yes. It is a microcosm for the human condition.
grew up with storiesmy fatherused to tell, stories of his
survival, how he made it through four years in the Q: You have written that your grandfather, David, was a
Transnistria concentration camp, how he was one of the boozer, a philanderer, a child and wife abuser who aban?
doned his family. And yet, you credit him essentially
lucky ones who lived; stories of how many died, ways
inwhich people were generous to him, helpful. And so with your existence today?
too my mother?stories about people she saved, and A: That's right. Quite unlike what you'd expect a Jewish
people who saved her. It's quite a story,quite a sad story, man of that time to be like.My grandfather did terrible
but an inspiring story,as well. things?I mean, his children hated him. I remember
Q: These influences seem tohave affected your view of the hearing about how my grandmotherwas abused by him.
Second Amendment, and I have inmind your dissent He was a terriblefather and husband, but I and my chil?
from thedenial of rehearing en banc inSilveira v.Lock dren owe our existence towho he was, and what he was,
and the choices he made. After he abandoned his family,
yer [328 F.3d 567 (9thCir. 2003)]. There you referred to
the Holocaust?among other great tragedies of his? my grandmother,Reizl, was leftwith four children and
tried tomake ends meet, running a little store out of a
tory?and said, "If a few hundred Jewish fighters in the
Warsaw ghetto could hold off theWehrmacht for almost hut in which she and the children lived. And then,
a month with only a handful of weapons, six million through people she knew, she managed to track down
Jews armed with rifles could not so easily have been David inBucharest. I am here because my grandmother
herded into cattle cars." left their village a few years earlier with her children,
dressed up as Ukrainian peasants because you could not
A: It is a terriblemistake to forget the lessons of history. I
travel without a permit if you were Jewish. After she
expressed my view that itwas a mistake to use some left,during thewar, theNazis killed every Jewish soul
constitutional provisions as springboards for major
in the district.Had Reizl not left to search for her hus?
social change while treatingothers like senile relatives
band, I would not be here today. She was a very daring
cooped up in a nursing home so that they don't annoy and resourceful woman.
us. I thought that thiswas themajority's approach to the
After I came on the bench, my cousin and I went
Second Amendment. I said there that ifwe adopt a
jurisprudence sympathetic to individual rights, we
should give broad compass to all constitutional provi?
sions that protect individuals from tyranny. I thought
and continue to think that the Second Amendment was
intended by theFramers as a protection against govern?
mental tyranny?a "doomsday provision" designed for
those exceptionally rare circumstances where all other
rights have failed. If we're not consistent in our
approach, all we are doing is constitutionalizing our
personal preferences.
Q: In 1996, you wrote an online diary for a time at the

request of the online magazine Slate, full of personal
and poignant reflections?as well as some pretty zany
stuff.In it,you wrote of the great sadness stemming not
only from themillions of deaths in theHolocaust but
also from the absence in somany instances of anyone to
mourn them.
A: No one tomourn them,yes. I had not kept a diary before

this,and I have not kept one since. But Michael Kinsley

back tomy father's village. There was a mass grave in a Q: You got in trouble for that?
little town called Zablotov, for all the Jews in the area. A: My father did. After that,we had a signal.Whenever I
And we met villagers who told us the story that one said anything, he pinched his nose and sniffed. I was
night, all theGermans and Poles had come in, rounded supposed to stop, don't finish the sentence, don't ask
up everybody who was Jewish, loaded them into trucks, questions, just stop talking.When you grow up in that
and all were taken to a field and shot; no one survived. environment you don't see it at all as oppressive. It's
Q: Did your grandparents stay togetherafter she found him simply how theworld works. Once you are exposed to
inBucharest? the liberating experience of changing environment, it's
A: I don't know exactly the story. I know thatshe caught up quite a rush, and you become much more committed to
with him and they were together in some sense. these new ideas than ifyou lived them all your life.And
Whether they lived togetheras man and wife or whether I realize that if you were to ask somebody of normal
theywere?what the extent of their relationship was, I intelligence, normal education in this country, do you
don't quite know. Soon afterwards thewar started. I do know that there are societies where people are
know thatmy father could not go to school and had to oppressed, theywill say yes, of course.
Q: But they don't feel it in theway someone who has had
your experiences does.
A: I thinknot, not on that level, not the same way. I'm sure
By the time I came that itwas my early experiences thatmade me so out?
to the United States raged when I learned that the judicial administrators in
Washington were monitoring the Internetusage of fed?
I was already an eral judges on government computers. [Matt Richtel,
"To One Judge, Cyber Monitors Bring Uneasy Memo?
"
avowed capitalist. ries N.Y. Times, Aug. 18,2001; Kozinski, "Pulling the
Plug: My Stand Against Electronic Invasions ofWork?
place Privacy," U. III. J.L., Tech. cfc Pol. 407 (2002).]
Also, I'm guessing thatmy consciousness of being a
go towork when he got toBucharest in order to support Jew is a little different from, let's say, my sons'.
his mother and sisters.
Although I must say, under Communism, officially
And I must add that it is highly ironic that in a real therewas no discrimination, and Romania tried very
sense I owe my existence toHitler. My parents would hard to suppress all kinds of discrimination, but itwas
never have met. This would not have happened, had he so very differentfrom theUnited States.
not done thehorrible thingshe did. For the same reason, This country is really a miracle. I mean, a few men
we have a state of Israel. The ironies of life.
got together at the right time and under the right condi?
Q: Did your grandfather survive thewar? tions and there was a successful revolution. It could
A: Yes. I have pictures ofmyself as an infantwith him, but have gone wrong in any number of ways.
he left in about 1952 or 1953. But having said all this, itwasn't as bad as it seems
in retrospect. Life is a question of frames of reference.
Q; What was it like for you as a child inpost-war Romania
And I, for themost part,was pretty sheltered fromwhat
growing up under a Communist regime?
was going on. My parents never taughtme anything
A: I can't say I suffered at the hands of Communism. But
subversive. I believed in Communism. I remember
looking back at things I saw and experiences I have had,
I now filter them through a different lens. For example, wondering, why is the Statue of Liberty inAmerica
where everybody is oppressed? I used to see all the
I remember seeing people hauled off in themiddle of
newsreels about people being oppressed and lynched
the night by the police in theirpajamas. It was not an
and Paul Robson and all sorts of propaganda about how
uncommon sight.And one therefore takes for granted
bad thingswere inAmerica. True freedom was inCom?
the idea that you cannot talk about certain things, and
munism, theproletariat, thepeople are in control.
thus you don't talk about those things.You don't have
certain thoughts. It is not something thatyou question. Q: Did your father and mother believe that?
When you grow up in thatenvironment, you don't see it A: You know, my mother never did; she was too hard
as
oppressive. headed. My fatherwas a Communist before thewar. He
Once you have differentexperiences you see things fought and bled for Communism. After the war he
differently,and I think, to some extent, that is an expe? became a member of the Party. He had a pretty good
rience that people who are born here don't have. For position, and he was doing verywell by Romanian stan?
example, when I was in second grade, I remember com? dards. So most of the time,we were doing verywell. We
ing tomy father's office. He was still a commissar, a had freemedical care, and itwas the best thatwas avail?
member of theCommunist Party. I was waiting forhim, able inRomania. My parents had six weeks' vacation
and thepeople who worked with him asked me if I could and many other benefits that came with being Party
read. They showed me the newspaper called Free members. But my father became disillusioned; he saw
Romania. I said, I wonder why itwas called Free Roma? how corrupt the systemwas. And how what was a sys?
nia when therewere so many people in prison. Itwas temwhere everyone is supposed to be equal was really
reallymore of a joke than anything. I didn't reallymean much more unequal than had ever been before thewar
anything by it. and where power and wealth were much more concen

trated and where personal freedom was much more edly that in the absence of judicial review, grave injus?
oppressed thanbefore. tices could take place forwhich our government and
My father came to realize that thiswas a society in people would have to bear themoral responsibility.
which the things he had fought and bled forwere not These injustices might, as Judge Kozinski suggested,
going to happen, and that thiswas not a good society for ordinarily be few innumber. But in some periods inhis?
me to grow up in. So he gave itall up, because once you tory,they could be many indeed."
ask permission to leave, as he did, you are considered a A: JudgeReinhardt ismore of a pessimist than I am. I think
And somy parents got kicked out of theircushy
traitor. he sees despotism as a more likely outcome. I thinkwe
jobs. My fatherused to be a weaver by profession, and have a long way to go, whereas he thinkswe are on the
as a Communist Partymember he used to run a weaving brink of it.All of these things are not written into the
factory.After he asked permission to leave, he was back Constitution. These things are interpretations;what we
to being a weaver. My mother lost her very nice job as a
today consider to be due process would have been
telex operator at an export company forRomania. She
laughable 50 years ago. So we always have gone
started taking in typing on her manual typewriter. In
through some period of adjustment back and forth, in
those days, typists used carbon copies, and my job
light of changed conditions. I view it as a more fluid
would be toput the carbon paper?eight copies?out in process. We had one attack on our country on Septem?
the sun so that they could be used again and again. My ber 11. If we have a few more, maybe the balance
mother came from a part of Romania where German between personal freedom and securitywill shift.Up to
was spoken, and my mother tongue was German. All
now, I think thatfears about post-9/11 oppressions have
this time, I went toGerman school. I spoke German to been exaggerated, and the courts have been pretty vigi?
my mother till the day she died. Even still,my parents lant about protecting personal freedom. Ifwe starthav?
paid forme to have French and English lessons and ing the kinds of experience per capita that Israel is hav?
piano lessons because that'swhat you did. Itwas part of ing, perhaps thebalance may be struckdifferently.
becoming educated.
Q: While you were a fervent capitalist, you weren't a fer?
Q: So when you came here at the age of 12, you were a vent scholar in high school or even in college?
committed believer inCommunism?
A: No, I was not.
A: No. By the time I came to the United States I was
Q: Too busy chasing girls, so the legend goes?
already an avowed capitalist. Here's the story. I remem?
ber leaving Romania, December 24, 1961. And I still A: Not always successfully.
remember being on the train,making plans formyself,
Q: And you are the only federal judge who was on The
how I would go to the West where people were
Dating Game and got stood up by your date?
oppressed and Iwould sharemy knowledge of Commu? A: I did, I did.We were supposed togo toGuadalajara. And
nism and help bring enlightenment by helping to tear
I called her and she said that she couldn't go because she
down capitalism.
had a fiance. The full story is this:Many years later, I
Q: You were a revolutionary? was telling the story to a guy inmy law firm, and he
A: Iwas. And thenext thingI remember, Iwas inVienna, and said,What's the girl's name? And I said, Rita. And he
I got bubblegum and chocolate, which were freely avail? said, Itwasn't Rita Brand? And I said, Yes itwas. And
able. Itwas as thougha cloud or veil had lifted.Itwas such he said, So you are the jerk from The Dating Game. I
a differentworld, you had real consumer goods. People said,What do you mean? And he said, She told every?
weren't running around with shackles. Everything that one the story she didn't want to go with you because you
had been said about theWest was untrue. Bananas were were such a jerk.And I said, She had a fiance. And he
plentiful. In Romania, my fatherused to have towork a said, There was no fiance.
half-day to get threebananas. I remember going with my Q: Did you have your long hair and beard at that time?
parents to an open-air market inVienna and seeing all A: I was clean-cut.
No, very
these bananas, cheap, and thinking, look at all these
bananas and wondering whether theywould be there Q: But you recovered and went toUCLA law school and
tomorrow. I looked a week laterand theywere still there. finished first in your class?
There was no conscious rethinking or recalculating my A: First inmy class. But Imust confess I had not done well
point of view. I was now an instantand fervent capital? in undergraduate school, and I barely scraped into law
ist?bought offby cheap consumer goods [laughing]. school. I would not have gotten into UCLA had I
Q: So when you arrived in theUnited States in 1962, you applied even a year later,because the admission stan?
were a capitalist? dards were raised. In fact I got rejected by some of the
best law schools in the country.
A: Oh yes!
In Rodriguez-Roman v. INS [98 F.3d 416 (9th Cir. Q: You went to law school by default; you weren't good in
Q:
engineering, and you couldn't stand the sight of blood
1996)], you said that you did not want your opinion to so you couldn't be a doctor.What did yourmother want
be a general indictment of the INS, and you expressed
you to be?
respect and gratitude to the INS for thedignity and com?
A: Mediocre.
passion with which the INS treated you and your family
when you arrived here fromRomania as refugees. Judge Q: She didn't want you to stand out because of her experi?
Reinhardt's concurrence said, "We agree wholeheart ences in theHolocaust?

him to show off; so he was excited. The accident was a
terrible thing. Itwas a bitter reward for having survived
theHolocaust, and for having fought and clawed to get
his son out of Communism and to theUnited States. But
he did live to see me become a judge of this court.
Q: Even though you were the valedictorian at UCLA, you

couldn't get a job?
A: I submitted about 20 resumes aftermy second year.
Q: And only two firmswould take you?

A: Only twowould takeme.
Q: Ultimately you had the last laugh. Do you ever see the
partners in these firms that turnedyou down?
A: Well, one of themwas Ted Olson, who of course is now
theSolicitor General. I interviewedwith him personally
at Gibson, Dunn. I don't remember any of my other
interviews. But I remembermy interviewwith him. As
impressive as he is today, he blew me away in thathalf
hour interview 30 years ago. I walked away saying to
myself, towork for this guy would be fabulous. I was
really upset when the lettercame rejectingme. Later, we
worked togetheron some cases and I've remained close
with him over the years. He was key in helping me get
on theNinth Circuit when the time came.
A: In her experience, people who stood out got theirhead Imust say thismuch: I am not sure that thefirms did?
shot off. She didn't want me to excel academically. She n't have good reason to not hire me. Look at what I've
wanted me to blend in. She said, "Don't be last, but done. I have not followed the normal career path. And
don't be first,be in themiddle of the pack." But I had this is a timewhen people were hired for firms, itwas
this epiphany in the first threeweeks in law school. I likemarriage. You got hired after your firstyear; you
realized I couldn't just be mediocre. I read an article in spent a summer there.This was in the '70s, before the
Juris Doctor, aWestlaw publication for law students, game of musical chairs started. The firms were really
discussing thebig slump in the lawmarket and how dif? looking for people who were going to be partnership
ficult itwas toget a job ifyou were not in the top 10 per? material. So the fact thatyou were really smartwasn't
cent of your class. The article went on to give tips about necessarily the end-all and be-all.
how to get a job if you were in the lower part of the The question really was, is this the kind of person
class. The thoughtof going from law office to law office who we can expect to stay?You were expected to stay
and begging the receptionist to see one of the partners the rest of your career. Although I had cut my hair and
didn't much appeal tome. Nor did theprospect of work? trimmedmy beard, theymay have thought I was the
ing for the FBI, which the article offered as another brilliant eccentric or something else, probably very
alternative for those not in the top of the class. good in some stuff,but notmaybe likely to do well with
The article really put the fear of God intome, and I billable hours and client development. Plus, I think
couldn't move for a while. And I said tomyself, ifyou mostly I asked a lotof questions.
have tobe in the top 10 percent of your class to get a job, Q: You were going to be a troublemaker?
then this littleJewish boy with the thickaccent will have A: Iwas going to be a troublemaker, yes. I asked questions
to finish first. I'd never done anything like thisbefore. about thework: What is theworst thing about the job,
Q: Was yourmother proud of you at the end? questions about salary, chances of partnership, and so
on. I actually treated the interview as being a two-way
A: Proud but skeptical. To her dying day, she never got rec?
street. I can't say that theywere wrong. Imean, look at
onciled to the academic success I had or even tomy
me. They were looking for somebody tomarry, and I
becoming a judge. She would come andwatch me, but she wasn't an eligible bachelor.
always felt thepolitical process is dirty,and she had this
fear that ifyou standout, they'll come afteryou somehow. Q: After your first summer working for a firm, had you
decided thatyou wanted to be a judicial clerk?
Q: Even after you became a judge on theNinth Circuit?
A: Yes.
A: No. This was '74 or '75, and doing a judicial clerkship
was highly unusual. It was far from de rigueur. So I
Q: What about your father?
half-heartedly applied for a few clerkships, but didn't
A: My father is a more difficult situation. He had an acci? get them.And then in the spring of my senior year, a
dent when I was in law school. He hit his head, and he classmate ofmine, Clive Jones?who, by theway, I just
was never the same after that. So it is difficult to say. I swore in as a district judge inNevada?had just finished
do know that the summer thathe left, 1974,1 had just an externship with CliffWallace in San Diego, called
published a piece in the law review.And he took itwith and said, "Alex, there is this new judge who has just

been appointed in the Ninth Circuit. His name is Q: Did you decide thatyou wanted to be a judge when you
Anthony Kennedy, and I really thinkyou ought to apply were clerking forKennedy?
to clerk for him." He raved about his externship with A: I think so. It is not the kind of thought that one fully
JudgeWallace, so I applied to Judge Kennedy and got gives vent to because it seems so presumptuous at that
the clerkship. This was in 1975.
age; but I think so. The idea sortof crept intomy mind.
Q: And itchanged your life? Q; After you clerked on theCourt, did you just decide, I am
A: Changed my life.And of course, once you get on that going to do what I need to do to position myself to be a
treadmill, you sort of think about the Supreme Court. federal judge? Because it seems like you did.
And so I sent out Supreme Court applications to all the A: Yes, I probably did. It is a little hard to reconstruct. I
Justices, and I got to be Douglas's clerk. clerked for the Chief Justice in 1976-1977, Jimmy
Q: The ultimate odd couple. Carter was thePresident, and therewas no hope forme
A: There wasn't anything you could be thatwouldn't be an of doing any kind of positioning. I was in private prac?
odd couple with Bill Douglas. When I saw the selection tice, and itwasn't untilMarch or April of 1980 that it
committee headed by JerryFalk, the first thing he said looked like Reagan was going to be the nominee and
tome was, "Alex, I think there is something in the secu? that you really could focus your attention on it. I do
rities laws that requires us to disclose what you will be remember sitting inmy office?I was working for a law
firm at that time?and thinking,Reagan is going to be
getting into if you get this clerkship." So theywent
ahead and toldme what a difficult guy Douglas would President, and other people are going to get these plum
be to clerk for.But nobody turnsdown a Supreme Court jobs. I thought about how other people would be posi?
clerkship just because the Justicemight be difficult. tioning themselves for federal judgeships or whatever.
And here I am. I have no political involvement; I have
A fewweeks later,I remember getting a call at 11 am
never worked for a party; I have never done anything.
from JerryFalk tellingme thatDouglas had picked me as
I'm already behind the eight ball.
his clerk. Three hours later,I got another call from Jerry
tellingme thatDouglas had resigned. Can you imagine? Q: So what did you do?
A: I sat and was despondent for a while [laughing].
Q: How did you end up clerking forChief Justice Burger?
A: He had a selection committee, too, composed of former Q: Then you sprung into action.
law clerkswho screened applicants andmade recommen? A: Weil, nervous energy has its benefits. It is like looking
dations. I was interviewed twice and I remember being foryour way out of a dark room. I happened to read the
asked, in effect,how could somebody who was picked by Legal Times, and ithad this article on Reagan's lawyers.
Douglas possibly clerk for theChief Justice?And I said, Among the people on the list was Peter McPherson,
well, you know, I thinkIwould probably disagree with the who was his lawyer inWashington. I got his number and
Chief as often as Iwould disagree with Douglas. I called and I said, "Hello, Peter. My name is Alex
Q: What was your experience like clerking for him? Kozinski, and I clerked on theSupreme Court, and I fin?
ished first inmy law school class, and Iwant to help out
A: As it turnedout, I agreed with theChief Justice farmore
Ronald Reagan." I thought therewas no point beating
than I anticipated. I found him to be flexible and open
around the bush. And he said, "That's very nice, could
minded. His opinions in cases involving freedom of
you send us your resume." So I did. I had this idea that
thought and religion, and there are a number of them, I was going to be doing advance work and writing
often upheld the claims of litigants asserting those free?
doms. His views were not absolutist. He was suspicious speeches, meet Ronald Reagan, be in the thickof polit?
ical battles, and so on.
of the power of the state and keenly aware of the arbi?
Nothing happened for a while, and thenone day I got
trarymanner inwhich it can be misused. Those suspi? a call fromPeter. He said, "We want toknow if it's okay
cions suffusedmuch of his thinking.Much tomy sur?
to use campaign money tomove some personal furni?
prise, he was not set in his ways and was always willing ture."And I said, "Okay," and I spent that night in the
to listen and anxious to hear the views of us younger
Covington & Burling law library researching the ques?
lawyers. He was a kind and generous human being. I tionofwhat kinds of thingsyou can use campaign funds
never heard him speak ill of anyone. He treatedeveryone
for.At this time Iwas working at Covington. I came up
with the utmost respect and civility. [See Kozinski, "A
with a memo. A lesser guy might have removed my
Tribute toChief JusticeWarren E. Burger, 100Harvard
name from thememo and passed thememo off as his
Law Review 975 (1987); Kozinski, "Spook of Earl: The
own, but Peter didn't do that?he gave me full credit.A
Spirit and Specter of theWarren Court," in The Warren few days later, I got another call from Peter, asking me
Court; A Retrospective (Bernard Schwartz ed. 1996).]
to research other dull legal questions. So I spent a lotof
Q: You clerked with some exceptional people. nights that spring, summer, and fall doing long memos
A: Yes. Ken Starr and Ken Ripple, who is now a judge on on various subjects after getting permission from the
the Seventh Circuit. Ken Ripple's successor was Bob firm.Which is great because this is what I do best?
Mayer who is now theChief Judge of the Federal Cir? writing memos in depth on obscure legal issues.
cuit. Also at the same time, clerking for different Jus? So by the summer, I had a big stack ofmemos, on all
ticeswere Willy Fletcher, one ofmy current colleagues, manner of odd and complicated questions, including
and Diane Wood, who is also now a judge on the Sev? what to do if some of the electors defected. So when all
enthCircuit. was said and done, Reagan got elected. McPherson, I

guess, because he did such good legal work, got picked a done deal and saying, "So tell me, Alex, you don't
to be the general counsel of the transition.He brought secretly sleep with your dog do you?" I said, "No I don't
me and another fellow in as his deputies. This was even have a dog." And he said, "Good, keep it thatway."
November 1980.
Q: You actually gave a speech inwhich you recounted this
Q: And you were on your way. incident, "Why Yale Doesn't Have a Dog." Yale is your
A: And I was on my way. Itwas pure chutzpah. Brains is son's name. The subject of the speech was actually the
not hard; brains is a gift. The question is, how do you right to privacy.
find your way out of the box, put your brains towork A: Yes.
and get intoposition where you can use the intelligence
Q: You probably shocked a lot of people when, in talking
God has given you. aboutWarren & Brandeis's venerated 1890 article, "The
Q: So you went first to theDeputy Legal Counsel for the Right toPrivacy," you said: "I must confess Iwas awed.
Office of the President-Elect. And then theAssistant Seldom had I seen so much made out of so very little
Counsel in theOffice of theCounsel to thePresident? with quite so much zest.... itwas the legal equivalent
A: Correct. Basically what happened iswhen Reagan got of a souffle?all air, no substance, tastes great. Boy, if I
sworn in, therewas no general counsel, so Pete McPher could write opinions like that I would surely be an
son picked up thewhole operation fromM Street (tran? OOPPSSCA emeritus."
sition headquarters), and moved it to theWhite House. A: I probably did shock some of theaudience. But, while pri?
Q: Was your office in theOld Executive Office Building or vacy is a precious commodity inmodern society, as I said
theWhite House? inmy speech, itdoesn't come free. Like all other precious
A: I was in the OEB. McPherson became the de facto things, you have towork for it. Privacy is a two-way
street.While it is a way of keeping thatwhich we hold
Counsel to the President. Eventually, I became Special
most sacred from intrusionby thepublic, we ought not to
Counsel of theMerit Systems Protection Board.
forgetthatit is also a way to cut ourselves offfrom therest
Q: Was thatwhat you wanted? of society.To isolate our experiences so no one else can
A: Yes. Itwas a job I thought I could get, and itwas a pres? learnfrom themand so we cannot learnfrom others.
idential appointment with Senate confirmation. This Q: By theway, what isOOPPSSCA?
was 1981, and I was not quite 31 years old. I figured on
A: It stands for theOrganization of People Patiently Seek?
theway to becoming a judge, therewere things Iwould
have to do to get serious consideration. It seemed tome ing Supreme Court Appointment. Itsmotto is: "What
that itwould be much easier to get considered ifyou've you don't say can't be misquoted." I should say, I'm not
been cleared already by the FBI and confirmed by the only the founder but the President and only member of
thiswonderful organization.
Senate. People can say, "Well he's clean," and so on;
once you've made it through the confirmation process Q: And from theMerits Board, you went to be theChief
once, you were ahead of the game. I remember a fellow Judge of theUnited States Claims Court?
in thepresidential personnel office tellingme that itwas A: Yes, 1982. The Court was just coming into existence,
^^^
_mIIIIIMi MW

along with theFederal Circuit, as I learned from reading to results in particular cases; ithas to do with a method
Law Week. I learned that theChief Justice of theClaims or approach to precedent. Sometimes it leads to a result
Court would be designated by the President. I said, that is libertarian; sometimes it leads to a result that is not
"Shazaam, that's my job." libertarianat all. I think itmeans that I tend to favor rules
over vague standards.And I tend to believe in clear-cut,
Q: What did you do?
A: I called all ofmy friends in the JusticeDepartment and hard-edged precedents. It doesn't necessarily mean that
in theWhite House. you always defer to the legislature or to the states. I think
ithas more to do with thequestion of how you approach
Q: Did you have a concern thatyou might not be able to the concept of precedent. I tend to look at authorities
move from theClaims Court to a higher judicial office? with an inclination to be bound by what they say, rather
Or did you have a commitment to be appointed to the than to find a way around them if I don't like the result.
Court ofAppeals?
Q; You don't necessarily look to social utility or the social
A: I had no commitment, and it is foolish to expect com? result of what you are doing?
mitments frompeople.
A: Not unless I'm in the gray area. If I am in the gray area,
Q: So how did you go from theClaims Court to theNinth if it's one of those situations where the rule is not clear
Circuit? or I'm caught between two precedents or between two
A: I was there for three years, from 1982 through 1985. It equally plausible meanings of the statute, that iswhere
seemed long enough, and Congress passed a bill creat? judgment comes in and that is where one can draw on
ing five new judicial positions. The first thing I did was one's views of the right result, which could include
call Ted Olson. social utility.
Q: And had you maintained a relationship with him over Q: So you're not a subscriber to Posnerian pragmatism?
the years? A: I'm not, and I'm not quite sure where he and I start
A: Yes. Although itwas a distant relationship, I feltwe had diverging, but we definitely do diverge. I actually do
a bond. So I called him up and asked to see him in his believe there is an objective content tomost laws and
office that afternoon. I told him ofmy interest in going only at the edges is there discretion. But when you are
on the Ninth Circuit, and that I wanted to pursue it acting within the sphere of what is clear, you go with it.
unless he had an interest in the vacancy, inwhich case I
Q: Where do you come out on the original intent theory
said I would not.When he assured me he had no such that is popular in some quarters today?
interest, I asked him for his help. As I said before, he
was key inmy securing the appointment. A: Well, firstof all, I'm with Scalia in saying it's really not
original intentbut original meaning thatmatters. Intent
Q: Despite your previous confirmation, the confirmation
suggests a hidden mental state. I think that it's a tricky
for your appointment to theNinth Circuit was some?
what contentious.
subject because theConstitution has many layers, and it
is not entirely clear?I mean, you cannot approach con?
A: That's true. Iwas thought to be a conservative and there stitutional textas you would approach a contract,where
was probably some difficulty because of that and
you're likely the first court to look at the particular
because of my age. I was one of the youngest appeals clause. The Constitution, by contrast, has been amended
court judges since Taft. But ultimately things worked inmany importantrespects. Ithas many layers of prece?
out, and I was confirmed. dent,which you are not free to go back and examine. So
Q: So thereyou are at 35, a judge of theUnited States Court you can't really speak of original meaning in quite the
ofAppeals for theNinth Circuit. You have said at various same way you would talk about themeaning of a con?
times thatyou were too young and too inexperienced tobe tract.The stuff that's happened in between keeps you
from getting at what may have been the true original
qualified for the job when you were appointed.
A: That's true, although I certainly thought that I could meaning. [Kozinski, "Original Mean [der] ings," 49
handle it. I thought if one had one's druthers, then Stanford Law Review 1583 (1987).]
another five or ten years doing something else would Q: So what are the original intent theorists talking about
probably have been a useful thing to do. But an oppor? when they say that in order to confine judges to their
tunity like thismay never come again. proper role, one has to look to the original intentof the
Framers?
Q: It seems tome being a federal appellate court judge is
the perfect job for someone of yourmakeup. A: Remember, I am not on the Supreme Court, somy level
of discretion is quite circumscribed. I can't overrule
A; My wife keeps pointing thatout tome. Every so often if
I sort of think of doing this or doing that, she says it's Marbury v.Madison even if I were of a mind to. But I
don't think theCourt can either.While theCourt can, of
too late.You can't do it. It's been so long since you have
been answerable to anybody, it's beyond your capacity course, overrule theirown cases, theyought not to over?
rule thatwhich people have come to rely on for a long
to learn. So in a way I am stuck.Don't getme wrong?
time. I thinkwhat is at the heart of what original intent
I love my job.
seeks to accomplish is something with which I have
Q: You have described yourself as a judicial conservative sympathy; but I approach itwith caution. The idea is
and political libertarian.What does thatmean? that therehas to be some objective content to theCon?
A: I don't quite know what thatmeans anymore. I view stitution,otherwise you have no constraintwhatsoever.
judicial conservatism as having no particular connection If you can look at the language and make itmean any

thing you feel it should mean, then you do not have a Supreme Court. As theyparted, he said, "Well, sir,have a
Constitution. All you have is rule by judges. There is no good day, and do justice." To which Holmes responded,
document; there is no agreed understanding that can "It's notmy job to do justice, but to play thegame by the
predictably govern futuredecisions. rules." Is thatessentially what you are saying?
I think the Constitution should mean something A: I think I'm saying something a littlebit different.What
objective, and one should be able to say, I don't like the I'm saying is, it's really hard to figure out what ultimate
results, but that'swhat theConstitution requires. Or, I justice is. I think it's particularly hard to figure itout if
can't find thatprinciple in theConstitution, and I'm not
you're on an appellate courtwhere facts are brought to
going to invent it.Let's say you had a tape recording of you in a filteredway. To me, following the rules is jus?
Madison and the other Founding Fathers talking about tice because the rules are therefora reason, tomaximize
your case. You wouldn't necessarily find yourself justice in society. So I don't go beyond thatvery often.
bound by their interpretation, because a lot has hap? To me, if the rules have been applied fairly, then a just
pened in the last two centuries. It is a very complicated result has been reached. But having said that, you do
problem, and a lot goes into the question of how you occasionally run into a case where you seem to apply
arrive at an objective meaning. therales inwhat appears to be an objectively fairway,
That having been said, I think that the idea thatyou and you come up with a result that in some ultimate
ought to have an objective meaning that constrains sense seems to be unjust. That's really the test of your
judges is an important concept. So I have a lot of sym? resolve, and there are no easy solutions.
pathy for the goal of the original intent theorists.But I
think it is naive?a shortcutmore than anything else? Q: What have you done in that situation?
to say we're going to look at the original intentas ifwe A: I hate to say it, but I probably imperceptibly bent the
were examining a contract. rules to come up with a result I thoughtwas right.
Q: Do the concepts of morality, justice, or fairness creep Q: One of those cases involved a 23-year-old woman,
intoyour decision making? Catherine Ponce, whom you sentenced after the incident
A; I think it's hard to keep them out. I think it's hard not to inwhich your sonwandered out of thehouse, was found
think about justice implications about many of the
thingswe do.
Q: In United States v. Ramirez-Lopez [315 F.3d 1143 (9th
Cir. 2003)], themajority affirmed the conviction of a The rules are there
defendant for alien smuggling even though theprosecu?
tion had made unavailable witnesses, all of whom had for a reason, to
told the INS that the defendant had not been the guide
as charged in the indictment.You wrote a lengthy and maximize justice
impassioned dissent that caused quite a stir,and subse? in society*
quently led the government to take the extraordinary
step of dropping the charges and releasing thedefendant
fromprison, even though the case was affirmed. [David
Houston, "The Power of Judge Kozinski's Pen," LA.
sitting in themiddle of the street, and was rescued by
Daily Journal, Apr. 18, 2003, at 1.] One commentator
has said thatyour dissent teaches us thatwe are a coun? passing motorists.
A: Yes. I have actually written about this, and I said I
tryof values that should not be sacrificed in blind obe?
dience to judicially created standards of review. [Fisher, thought thatGod took pity on me and did notmake me
'The Greatest Dissent?" Federal Lawyer (Oct. 2003), at pay formy mistake. I and my family were spared the
30.] Did your sense of right,wrong, or justice help dic? tragic consequences ofmy error.About a week later, Ms.
tate your dissent? Or was itjust thatyou thought the for Ponce was beforeme for sentencing?I was sitting in the
malistic rules were not adhered to? district court. Something inside me made a connection
between these two events.While I sentenced her to some
A: Well, tome not following the rules is the injustice. If you
time in prison, I knew that I was giving her a sentence
abstract back far enough from the case, my guess is that
outside the guidelines, but I thought itwas the just thing
the defendant more likely than not, was guilty. Under
to do. I was verymuch influenced by the incidentwith
one set of criteria,you would say the ultimate resultwas
my son. I knew I would have to be very lucky to get
unjust. But I stopped short of that.To me we have a set affirmedon appeal. The governmentmust have seen the
of rules which operate for a reason and by having con?
same justice implications as I did, for it didn't appeal.
sistent application of the rules regardless of who the
defendant is, you get in the aggregate a just result. They came tome afterwards and said, "You're not in the
district court often enough toworry about." I deserved to
Maybe not in the individual case; maybe the guilty guy
walks but, on occasion, that's necessary to prevent the get reversed, ifone applied the rules objectively.
innocent defendant frombeing convicted. So tome, fol? Q: She justified your faith in her, though?
lowing the rules and having reasonably objective and A: She did. A couple of years later, I got a letterfrom her
concrete rules to follow is how justice is done.
probation officer suggesting that I terminate probation
Q: There is the famous exchange between Learned Hand early because she was a model probationer and he was
and Holmes. Hand was walking with Holmes to the convinced she'd learned her lesson and would never

stray again. The government did not oppose. Fortu? effect on the language. English is an incredibly mal?
nately, you don't see toomany of those. I think the real leable language, and the infusion of pop culture terms
danger is that it's very easy to persuade yourself that can be a benefit, but I do worry about the loss of read?
your sense of right and wrong is infallible. ing. I worry about the fact thatchildren today do far less
Q: You really begin to believe you were anointed, not reading thanwe did. It's very hard for children to read
with the competition from television, video games, and
appointed.
A: It is easy to do. So I trynot to do that very often. It's computers. There just isn't the time to do the reading
that I think is so necessary. One of the reasons I tend to
almost always, perhaps always, in a criminal case. One
be pretty good at and love writing is because I had a
of theproblems with this job, and I think the reason we
have sentencing guidelines, is it is very easy to see the huge storehouse of words that I had accumulated as a
littlekid and phrases and images and theway inwhich
pain that the punishment will cause the defendant and
his family. It is very hard to imagine the pain that is concepts are put together. I read tremendously as a
child. Before I even came to theUnited States I had read
going to be caused by erring on the side of leniency. Mark Twain, Victor Hugo, and so many others. I don't
There are all sorts of harms that can happen ifyou're
thinkyou can get it later in life, and I'm saddened my
too lenient. I thinkwhat the guidelines and mandatory
children haven't had that experience.
minimum sentences are designed to do is to correct for
thatkind of blindness. I don't know what your experi? Q: In theGennifer Flowers case, you quoted Shakespeare:
ences are, but inmy experiences, there are very few "Even among public figures, defamation, that tort
judges who can be called "maximum Johns." Most whose sting is as sharp as the sword's, can leave scars
judges err on the side of leniency. Nobody likes to be that in the most egregious circumstances demand
an ogre, to see people tortured,and few people like to redress." But your cite says "Bill Shakespeare."
toy with somebody else's life, unless it's truly a A: It's a commentary on the fact that the President of the
heinous case. United States liked tobe called Bill. If it's good enough
for thePresident, it's good enough for Shakespeare.
Q: So you are not opposed to the sentencing guidelines.
A: No. I think sentencing guidelines give you a real sense of Q: Your opinions are filledwith things like this, in addition
to being highly stylized. How do your colleagues react
peace of mind; you're not having tomake the big deci?
to your writing?
sion, and yet you still have some measure of discretion.
So all in all, I'm fairlycomfortablewith theguidelines. A: My colleagues have been very generous with me. I think
Q: How do you reconcile your belief in a God that inter? theyhave figured out many years ago that I write a lit?
venes so directly inhuman affairs and took pity on Alex tle differentlyfrom the typical judge. That ismy style,
and I think theyhave come to accept itas time has gone
Kozinski, with the question that has haunted Jews;
on. In fact, I thinkon some occasions it is in a way lib?
namely, how could such a God have allowed theHolo?
caust to occur? erating for them.They realize that the style ismine and
that they are not going to be held responsible for the
A: There is no answer. It is the same question thatplagued
style inwhich I write an opinion.
Job, and the answer is, "I am God and you are not."
Q: Did you tryto emulate anyone?
Q: And one stops there. A: Justice Musmanno who was on the Pennsylvania
A: And one stops there.We humans just do not have the
Supreme Court. I read some of his opinions and dissents
wisdom to understand. The analogy and the reason that in the firstyear of law school. I wasn't sure whether I
came tomy mind is thatwhen you sentence somebody
agreed with what he said, but I liked theway he said it.
you do have this terriblepower, and I feel a littlebit like Plus, one can aspire toMusmanno. It's hard to aspire to
God. Because at thatpoint in time, you are taking away Holmes or Jackson. Robert Gardner of theCalifornia
a piece of somebody's life. You are saying you have Court ofAppeal also wrote a number of very interesting
been given three score and ten years, and I am now
opinions.
going to take away ten or 20 of those years.
Q: When you write, do you tryto be quotable?
Q: You voiced strongobjections inyour online diary toDis? A: I don't care much about being quoted. Iwant tobe read.
ney's happy-go-lucky portrayal of thehunchback ofNotre Iwant people to readmy opinions inorder to apply what
Dame. Are you concerned about what some have said is I have said, and theway toget them to do that is to teach
thedumbing down of language and values inour society?
them thatwhen they read one ofmy opinions, it is not a
A: I was offended to the core at having this great tragic sad chore but something that they are going to enjoy.
novel that I grew up with turned into a feel-good love Along theway the readerwill learn something about the
fest. The essence of Victor Hugo's novel is hardness, law and my perception of the law, which people will
cruelty, injustice, and hopelessness. They are part of the then cite. That perception gets into case books because
human condition. I was most offended by thedistortion law professors read the opinions and law professors try
of this terriblypainful, poignant story, towhich Disney to put cases in theirbooks that are fun to read because
gave a happy ending. Iwas concerned that the ability of law students get bored.
an entire generation to enjoy and learn from the novel So I use various devices to achieve this goal. A good
might be undermined by early exposure to theDisney example is the imaginary dialog between the defendant
bastardization. and his lawyer with which I began inmy dissent in
It's not that I am worried about popular culture's Ramirez-Lopez.

? ^ ^ <-
<J \ ^?toll U_ "|
Q: Your opinions sometimes go through 50 ormore drafts. thatthe luncheon audience would have a better idea of the
A: Sometimes many more. As I wrote in 1996 in Slate, topic of the speech). Does theuse of such titillatingtitles
stem fromyour desire tobe read, or is itjust an aspect of
although I love writing and delight in the end result,
writing is, forme, difficult on a certain level.Words do your well-known sense of humor?
not flow like a gusher. So it's hard work. In addition, the A: Yes.
process of revision is necessary to understand the impli? Q: In the same vein, it is said that inyour now quite famous
cations of what is being written.As long as I keep find?
opinion inUnited States v. SyufyEnterprises [903 F.2d
ing issues and ambiguities and problems, I keep revis? 659 (9th Cir. 1990)], you smuggled more than 200
ing.As I tellmy clerks, you have to keep reading with movie titles into the textof theopinion, which involved
differenteyes every time you look at a draft.You realize a government antitrust action against the owner of
very often thatwhat initially seemed perfectly clear movie theaters. In fact, theBrigham Young University
makes no sense at all because I haven't thought through Law Review, in 1992, published the opinion and identi?
all the implications. But it'smy job to imagine how my
fied, by underlining certain words and phrases, 215
opinion will be applied and write in a way thatwhen movie titles.How do you plead?
new problems come up, the answer will be there.
A: Nolo contendere.
I tellmy clerks the story of themaster brass door
maker, who was explaining to his apprentice all of the Q: You have said that ifyou were the appointing authority
many, many steps thatgo into the casting, the buffing, to fill a Supreme Court vacancy, you would appoint
and the endless sanding and resanding of a brass door. Richard Posner.
When asked by the apprentice, "But when is it ever A: Absolutely.
done?" the master craftsman says, "It's never done.
Q: Where would you rank him among the federal judges of
They just take it away." One of the traps of this job is the last 50 years?
nobody ever comes and takes it away. Of course, at
some point you have to say, enough is enough, and I A: I thinkhe is thegiant of our generation. It is hard to com?
have to go on and do something else. pare him to somebody like Friendly or Learned Hand,
because theyare so different.Plus, Hand probably had to
Q: Many of the titlesof your articles and speeches are, to say
deal only with about 100 cases a year. I don't mean to
the least, unusual: "Torts Are No Piece of Cake," "My
demean him, but I don't know whether he would thrive
Pizza with Nino," "Confessions of a Bad Apple,"
in a systemwhere you've got 500 cases a year. Friendly
"Mickey and Me," "My Digital Exam," "How I Nar? came along later and would probably do better.
rowly Escaped Insanity," "Scholarship of theAbsurd:
Bob Bork Meets the Bald Soprano," "What I Ate for Speaking of Hand, have you seen theJump Book by
Breakfast and OtherMysteries of JudicialDecision Mak? Philippe Halsman? It shows all these famous people
ing," "Lawsuit, Shmawsuit," "Teetering on theHigh jumping. Look at this:Here is theDuchess ofWindsor,
and Nixon and Stevenson, and here is Learned Hand.
wire," "How I Stopped Worrying and Learned to Love
thePress," "Don't Drop theTorah" (which replaced the Isn't thiswonderful [laughing]?
original title,"Manhole Covers for theHandicapped," so Q: You once gave a speech entitled "The Wrong Stuff:

How You Too Can Lose Your Appeal." What are the whether there is controlling authority on point. If any
most common mistakes you see lawyers make in your one judge is uncomfortable having the case considered
court? as part of the screening process because he thinks it's
A: Well, as I try to tellmy law clerks, every writing is a more complicated, thecase will be kicked and will go to
communication fromone mind to another, and you have the full argument calendar. So, it's an aspect of how
tounderstand your audience, and you have tomake cer? much do you trustthe judges.
tain assumptions about what the audience knows, and Obviously, there are lots of other cases that are not
you have to sort of pitch the thing at the right level of appropriate for thisprocedure, big commercial cases for
sophistication. example, and other kinds of cases that are fact-inten?
sive. Criminal appeals, sentencing guideline appeals,
Q: How do you do that,when you don't know who will be some social security and immigration cases are well
on the panel?
suited to be handled through the screening process,
A: It's hard. But I think you have to err on the side of which enables us to turnout a high volume of cases with
assuming a lack of intelligence, a lack of attention, a what I believe to be an error rate no greater than in any?
lack of interest, and a lack of sophistication in your
thing else we do?perhaps lower.
audience. That's how I write my opinions. Some opin? With the other kinds of cases, I do read the briefs,
ions I draft from scratch, but my clerks do most of the
although I can't say I read every word of every brief.
initial drafting, and I don't really see it until about the Some obviously get more careful attention, depending
15th draft. Eventually, by the time I'm done, almost on the case.
everything is replaced one way or the other, Q: You said that you write to be read, not to be quoted.
I tryto tellmy clerks that indoing their initialdrafts, What does the lawyer do who wants his or her brief to
theyshould imagine thattheyhave a sibling inhigh school be read by the court, or at least attentively by the law
and that theopinion should be written in such a way that clerk? Does style count?
the sibling can understandwhat thecase is about, and why
A: Style matters, I think thatwriting in a dull way will
we are coming out theway we are.You have to explain it
make it less likely that it is read and understood. I think
in a common-sense, narrative way. If you can't do that,
the technique?which I see a lot inbriefs?of going into
then chances are you don't understand ityourself. That's
great depth indiscussing the facts early on in thebrief is
why, inpart,we go through somany drafts. a big turnoff,because facts at thatpoint don't matter so
Too many lawyers think they can just use basically
much; facts are so homogenous until you know what the
the same brief in theCourt ofAppeals theyused below.
That's a mistake. It's a different audience, and the case legal issue is. So throwingout a bunch of dates when the
reader has no clue about what matters and what doesn't,
is in a differentposture. It's an entirely different situa?
is a sure way to lose your reader.
tion. You must write the brief basically from scratch.
Initially, the briefwill be read by a law clerk, who ulti? Q: How does one start then; you need a statement of facts?
mately will become either your advocate or your adver? A: It's what I tellmy clerks and how Iwrite my opinions as
sary in chambers. well: The facts section should contain the bare mini?
mum of facts. Here, less is more. Factual elaboration
Q; Do you read the briefs?
should occur as you develop the argument. That way the
A: Not inmany cases. In our court we have a screening factsmake a difference. The overloading of facts at the
process that I've discussed inprint.The judges and staff
beginning tends to not only be boring but to dilute their
participate and do initial screenings of cases. This significance. Avoid specific facts where general ones
enables us to dispose of a large number of cases where will suffice. For example, unless specific dates matter,
there is controlling authority, and the outcome of the leave them out. If you simply put a bunch of detailed
case is usually pretty clear.
facts in at the beginning, you confuse the reader.
Q: Is thatjust a Ninth Circuit procedure? Q: What about case discussion? Long citations of authority
A: I am not sure, but I suspect thatevery circuit has some? are not helpful, are they?
thing like the one we use. A: I discourage block quotes. I think one has to be careful
Q: Iwould think thatmany lawyers would find that sort of with any citation or any kind of authority. I thinkpeople
screening very disconcerting. cite authority thinking that itconstitutes a winning argu?
A: Well, it's thekind of thing that,when itwas started,many ment. Authority is only support for a winning argument.
of our judges were skeptical.And we have many judges You have to set up your argument verbally and then set
who are very particular about thiskind of stuff;you know, itup in such a way that the authority,when itgets cited,
will be like the punch line to a joke. I think that string
they love tohear oral argument and are committed to fair?
ness andmaking sure thatwe're not giving over thejob to citing authorities is distracting. You want to put in only
staff.I agree with all that,and Iwas one of thosewho was those that are useful forpersuasion. The rest is sort of a
narrative. Bring in authority only when needed. Persua?
skeptical about theprocess. But having actually done it,I
can say thattheprocess works and thatthe judges are sat? sion is something I've thought about for years. How do
isfied and come away from participating with a good you change a mind? You have to do itby induction.You
never hit anyone on thehead. You have to catch people
knowledge of the cases under consideration.
unawares and make theirmind vulnerable topersuasion
Q: What kinds of cases go into that screening pool? by distracting theirmind. Like misdirection?your hand
A: The stafflooks at the cases andmakes an assessment of ismoving over here and you are hiding the ace with the

other hand. The mind tends to resist brute force; so and the automatic pilot kicks in and he starts answer?
humor, irony, colloquialisms, and metaphors are ways ing?often in themiddle of the question.
to prepare themind to be moved. Of course, part of the problem is that the lawyer
Q: Was this in your mind when you began your dissent in thinks the judge may be asking the "wrong" question. It
Ramirez-Lopez with the imaginary exchange between may be however, that the judge may see angles in the
the defendant and his lawyer? case you haven't seen. But even where the question
stems from some confusion on thepart of the judge, the
A: Yes. I wasn't trying to ridicule anyone. I asked myself
what am I going to have to say to persuade the reader, "wrong" question gives a unique opportunity for per?
suasion. The question is an insight into the judge's
and I came up with the idea of thedialogue between the
mind. If you take a few seconds and really think about
defendant and his lawyer. If you look at it, ithas, in a
the question, you can it. You can use
folksy, colloquial, backwards way, all the arguments in
reverse-engineer
the question not to show your eloquence?or even how
it thatpresage what the dissent talks about. The reader
much more knowledgeable you are than the judge?but
has a road map towhat comes in the dissent.
to clarifywhat might be confusing the questioner.
There is something about theway people are taught
The only time when information flows from the
in law school. People who become lawyers are seldom
court to the lawyer iswhen the judge is asking a ques?
chemists or engineers; theygenerally come from one of
tion.Don't squander the opportunity to persuade.
thehumanities, and when they begin reading cases, the
process is sortofmind boggling and they think theway Q: What is another mistake that you often see lawyers
towrite is to sort of pile on thebricks, make?
Q: How important is oral argument in your court? A: This one is closely related to themistake we've just
talked about, although it's a littledifferent. It stems from
A: It's not as limited as you might think. In our court, oral
the same problem?being too eager to talk. I can say
argument is ten, 15, or 20 minutes,depending on thecase.
thatperhaps as much as in half the oral arguments when
Part of the reason we set it low is thatboth sides don't
I am on thepanel, I will tell the lawyer, you've got two
have as much to say. Generally, one side has more of a
minutes left for rebuttal but letme advise you, more
problem, sowe often let thatside go on longer. In fact,we cases are lost from rebuttal than are won. I don't do it
let lawyers go beyond theirallotted time all the time.
lightly. I do itwhen I am pretty clear on the case. I
What lawyers forget is thatoral argument is to answer would never do it to a lawyerwho I thoughtwas losing.
questions of one ormore of the judges. Your preparation I would say probably only one in four lawyers heeds my
should consist of thinking about all the questions that
admonition. The rest insist on talking. Often with bad
might come up so thatwhen the question comes, you are results for their side of the case.
.
able togive an informativeresponse There is no advocacy
as such left; there is no eloquence. There are no Clarence Everything you say thatdoesn't help, hurts! It opens
Darrows anymore, at least not in theCourts ofAppeals. up a new area of inquiry and you don't know what bells
itmight set off. I've seen people take a case theywon
We have argument because there are specific issues we
and in rebuttal,drag it into thegutterbecause theycould?
need to discuss with the lawyers. Sometimes, we have
n't resist standing up and saying two more sentences.
questions foronly one lawyer,and so you may talk for the
They were thewrong sentences, and one ormore of the
entirety of your timewithout getting a single question.
That usually means you're doing well. judges got interested in something thatcaused thecase to
go theotherway. You have to know when to shut up.
Here's a tip: If you get through say threeor fourmin?
There is another problem I see often. Lawyers often
utes without a single question, sitdown! Trying tobe elo?
do not adequately come to grips with the realization that
quent is notwhat it's all about.What it's about is answer?
those that may not have been you can lose on a number of issues and still win.
ing questions?even
directed to you. If you've wasted all of your time trying Lawyers need to figure out what is the smallest piece of
to be eloquent, you'll have no time left to respond to territorytheyneed to defend and thendefend thatpiece
to the limit. But everything else, they can give up, if
questions directed at you, as well as those directed to the
other side, and give the counter-answers to the answers necessary, and stillwin.
given by the other side. The answers to thepanel's ques? So, what I am saying is that ten to 20 minutes may
tions are the argument. Calling it an argument is an not, as a theoreticalmatter, seem like enough time to the
anachronism. It is no longer an argument; it is a chance lawyer who has spent days preparing an argument and
for the judges to ask questions to engage the lawyers on maybe traveled hundreds of miles to the courthouse.
the issues with which they are having difficulty. But in reality, it turns out to be quite adequate if the
lawyer knows what he's doing.
Q: So themost important thing is the responsiveness to the
question and the persuasiveness of the answer? Q: But given what you say is the function of oral argument,
A: That's what I tell people. When I speak on how to lose by definition itmust be adequate because all that ulti?
an appeal, I stress how important it is to listen to the mately counts is responding to the court's questions,
and the time for that is effectively unlimited.
questions. What I find?and this is perhaps the biggest
mistake lawyers make?is that they do not listen. A: Yes, but I am saying more than that.When you've
are answered the questions as well as you can, sit down,
Lawyers notorious for not listening. They are too even ifyou have time lefton the clock.
anxious to speak. The judge begins to ask a question and
the lawyer assumes he knows where the judge is going Q: What is your view of footnotes?

A: I don't have problems with footnotes; Fin not bothered severely tends to diminish to some degree the amount of
by them at all. In fact, I think they are useful. To me, crime. Until recently, the proponents of the death
footnotes are just another level of organization, to drill penalty have basically given up on this point and said
down on issues both in briefs and in judicial opinions. we admit the death penalty makes no difference deter?
The problem is thatoften the footnotes are not compre? rence-wise. But these are guesses; nobody knows.
hensive and explanatory enough. The mistake people Recently therehave been a number of studies that actu?
make inbriefs is they think they are read carefully from ally seem to show that the death penalty does make a
beginning to end. They are not.Often theyare read from difference?and that by having executions, you are
themiddle, focusing in on particular issues. This iswhy actually saving innocent lives.
I say that the comprehensive factual development
Q: Would your position be the same if you were satisfied
should be in the appropriate sections of the argument, that thedeath penalty was not a deterrent.
not dumped in the frontof the brief.Also, I think supra
A: Yes.
cites standing alone make reading difficult,For exam?
ple, I never cite a case in an opinion with just the title Q: Aren't you concerned about the irrevocability of the
and a supra and no other designation. I think in briefs, death penalty and the large number of mistakes that
it's also helpful to give some additional guidance to the have been made in death cases?
reader (such as a partial citation) so that there doesn't A: Life is irrevocable. You can never take anything back.
have to be an interruptionin the reading to search for the
Q: That's thepoint the anti-death penalty people make. You
case or article elsewhere in thebrief. can't cure the mistake.
Q: You have definite views about the death penalty? A: You can't take back a 20-year sentence or a life sentence.
A: I wrote an article in the Case Western Reserve Law All life is irrevocable and mistakes are part of living.
Review called "Death: The Ultimate Run-On Sentence" Planes come crashing down; nuclear reactors explode or
[Vol. 46 at 1 (1995)] thatexpresses my views. I believe melt down. All sortsof terrible things can happen. Com?
in the death penalty in theway I believe in incarcera? ing to see me involved risks toyour life.You thought the
tion. I believe people who do bad things ought not just riskwas worth it. I'm not surprised [laughter].But that's
be letgo. I approach all punishment with trepidation and theway it is.Anything that isworth doing will have a
with sadness. Trepidation because there is some risk risk associated with it.You try to avoid risks, but that
that people will be punished unjustly and sadness cannot be a reason for not going forward. Criminal law
because it's a terrible thing to impose punishment even is a dangerous process. People get punished. It is a
on people who have done bad things.To me the death process by which you clip away pieces of people's lives.
penalty is just an extension, not a terribly extreme Sometimes a few years, less often, an entire life.And you
extension, of the other kinds of punishments we offer.
To me, lifewithout parole isn't life at all; it's a living
death. I don't view thedeath penalty as something that's
beyond the power of the state. I think it is something To me, life without parole
that is clearly constitutionally permissible. I also think
that it is just and fair in appropriate circumstances. I isn't life at all; it's a living
think that to a large degree, what we do in termsof pun?
ishment reflects our values as a society. So for example,
death. The death penalty is
ifwe punished forcible rape the same as jaywalking, we
would be saying something about our views of rape, and constitutionally permissible.
we would be minimizing thepain and humiliation of the
victims. And, although we don't thinkof a one-to-one
can take an entire life in one of twoways: You can take
correlation, we do think that the severity of punishment
an entire life by sticking a defendant in a small cell and
roughly correlates to how bad we think the crime is. I do
think thatmurder, multiple murder, murder with tor? never letting him out or you can take an entire life by
ture?the kind of thing JohnWayne Gacy did?is so killing him. To me they're not all thatdifferent. I don't
bad that no amount of punishment short of death think anybody has been executed who has been inno?
cent. They're tryingvery hard to prove that ithas hap?
expresses the proper measure of societal anger and dis?
but haven't succeeded.
approbation. To censure by punishing by less thandeath pened,
would make light of the sufferingof the victims. I just had a case come across my desk of a guy who
exhausted all his remedies but demanded aDNA test that
Q: What do you say to the argument that the death penalty he said would prove his innocence. So we ordered the
isn't a deterrent, and that deterrence should be part of
DNA test,and itproved exactly the opposite. So most of
the calculus of punishment?
the time we have a system that is designed to ensure
A: I was just coming to that. The other thing that we accuracy and to take account of the risk of error and is
implicitlyhave in the law is thatwe have some idea that weighted so that the guiltywill get acquitted rather than
themore you punish themore likely it is thatpeople are the innocentwill get convicted. That having been said,
going tobe deterred.We don't believe thatdeterrence is all criminal trials, like all human endeavors, have errors
perfect; we don't believe thatby doubling the punish? associated with them. [For an interestingapplication of
ment we are going to halve the amount of crime.We
JudgeKozinski's view of the inevitability ofmisfortune
have some rough guesstimate that punishing more in life, see Kozinski, "Brave New World," 30 University

of California Davis Law Review, 9, 97, 1011 (1997).] cases from the state convictions are very slippery.
Most of the time the error does not get corrected, and You've got to give vast deference to state judges where
then just like the people who innocently die when their the record makes you wonder what the hell was going
plane crashes because someone manufactured a bolt on. Death cases are taken very seriously. But the guy
defectively, they've done nothingwrong except to live in thatgets a mere 20 or 30 years does not get the kind of
society. They trusted societal institutions.The law usu? scrutiny thatdeath cases do.
ally serves you well; but once in a while the law goes I thinkBarry Sheck's Innocence Project is a terrific
wrong and somebody innocent is going to get hurt. thing. I've given quite a lot of thought to the implica?
Whether theyget hurt by losing ten years or 20 years or tions ofDNA. On theone hand, the fact thata lotof peo?
the rest of their lives is tome a detail. ple have been released from death row based on DNA
Keeping the death penalty is not something though evidence is not that troubling. These are all old cases,
that Iwould be prepared to go to themat over. If society when DNA was not available at the time of the investi?
decided to do away with the death penalty, I wouldn't gation; these types ofmistakes won't happen again. On
say, Gee that's terrible, I'm going to have to leave the other hand, ifwe're finding all thesemistakes where
America and go and live inTahiti. Imerely think thatas DNA makes a difference, it really makes you wonder
a policy matter it is a desirable thing tohave, for the rea? what happens in cases thatdon't involve DNA.
sons I've said as well as others. For example, families of I think there are probably people wasting their lives
victims like it.They are victims of the crime, and they away behind bars who did nothing wrong. The fact that,
have a sense of relief. I'm not one to think that revenge like theplane crash, it is something thatoccurs, doesn't
is not a legitimate human impulse that the state can mean we shouldn't trytomake itbetter or tryto improve
acknowledge. To me, when the families of the victims things. So I think looking for innocent people who are
of these heinous crimes have suffered in theway that incarcerated is inmany ways farmore important than
theyhave, we should not deny them the sense of closure questioning the death penalty.
they seek through execution of theperpetrator. Q: You sit from time to time by designation. How do you
I think thatwe have become so inured tomurder that
compare thework of a district judge towhat you do?
I'm not sure that in the ordinary murder case we as a
A: I enjoy district courtwork, and I was a trialjudge before
society probably get very much from imposition of the this. Inmany ways I found trialwork more satisfyingon a
death penalty. But when you have a JohnWayne Gacy
case or Tim McVeigh and other very heinous cases, we day-to-day basis. I don't know whether had I been a dis?
trictjudge for the last 18 years, therewould have been
need the expiation and retribution that only the death
much to stand out. Whereas here, there is a constant
penalty can provide. I think it is part of us and it is a streamof interesting,close legal issues you can write, and
legitimate impulse.
rewrite,and thinkabout. It is actually a very stimulating
I find the argument thatmany other countries have
court to be on. There are somany interestingcases.
abolished thedeath penalty not persuasive. If I were liv?
ing inGermany or inRussia, where within livingmem? Q: Your interests are so varied. You have written on all
manner of nonlegal topics from the job of growing your
ory they killed so many of their own people, and had
such disregard forhuman life, Iwouldn't want thatgov? own tomatoes to paintballing. Is that just your own
ernment to have the power to impose the death penalty inquisitiveness or a reflex to the isolation of the job?
either.But we have consistently had thedeath penalty in about which Judge Kennedy warned you when you
this country since before the birth of the republic and were appointed at so young an age?
we've never had a bloodbath; we've never had thou? A: Who knows? I don't know any other way. I was a kid
sands of people put todeath.We've always had a steady when Iwas appointed. I do what I do because I don't see
stream of really bad people who get the death penalty. any inconsistencies with the job. Some people say that
And we're much better now thanwe've ever been in the there is. But I thinkyou have to live life to the fullest,
past at catching mistakes. I thinkmistakes aremuch less realizing of course that there are limits towhat you can
likely now with all the technology we have. I do worry do. But aside from that, I don't feel isolated at all even
on another level about all themoney and attention and though, as I wrote inmy online diary in 1996, inmany
resources thatare devoted to the death penalty. ways being an appellate judge is "a closed and lonely
If you're truly innocent, the best thing that could existence." I've got phone, I've got e-mail, I visit peo?
happen to you is to be tried for capital murder because ple. I likemy colleagues, and I see them plenty. But I
you get government-paid lawyers, investigative teams, don't seek the company of judges. But, of course, we're
psychiatrists?the resources you get tomount a defense not theway the justices used to be in the early days of
become vastly greater.My concern is thatwe've got 2 the republic, when they lived together, ate together,
million people inprison losing parts of their lives, some worked together.But I don't think that's existed since
of whom I'm sure are innocent.When a death penalty Marshall's time.
case comes to our court, it is a huge deal. We have a spe?
Q: You are an avid listenerof books on audio tape aren't you?
cial en banc procedure and so on. But the run-of-the
A: I do a lot of reading by tape. I have over two hours of
mill criminal case can be disposed of without oral argu?
commute every day, and so that ismy time to read.
ment. I worry a lotmore about not catching mistakes in
the run-of-the-mill criminal case. Q: Judge Posner has said in an interview that he does the
But on thewhole, I thinkthe federal courts do a good same thing. [Cole, "Economics of Law: An Interview
turn topage 74)
job reviewing criminal cases on direct appeal. Habeas (Please

What Do We Learn? objections and instructing to disregard whole truth,and nothing but the truth"
will not remove prejudice.) ifwe handled the procedure.
Obviously, I am critical of the article.
Yet, I submit thatwe can learn some? Thus, mistrial will usually be But mark thiswell!
We have no ironclad claim to thatfran?
thingof value from it.Not only does the required.
article recommend that trial counsel The offending party ought to be chise. Nowhere is itcarved inmarble. It
operate outside the rules, probing and required to reimburse the opposing isn't in theConstitution. When Moses
testing to discover opportunities to act party for fees and expenses incurred in came down fromMt. Sinai, nowhere on
in defiance of them, but it also reveals preparing for and conducting the trial to the tablet did it say: "Thou shalt not
the expected results of such conduct. the point of mistrial. If the defendant resolve legal disputes save through the
The results are disturbing. committed the impropriety, execution services of a licensed lawyer."
No trial is perfect. In hard fought lit? could issue. If thewrongdoer should be When our having that franchise no
the plaintiff, a retrialmight be contin? longer serves the interests of society,
igation with well trained counsel seek?
gent upon a showing that such an award society can and, I submit,will cancel it.
ing to conduct themselves according to
the rules, therewill be errors great or had been paid. Should the adversarial system cease
small from time to time. Despairing of In thisway, the rules could be vindi? to be carefully crafted to produce the
cated and the truthdiscovering purpose truth of contested issues, it will no
perfection, we have developed the con?
of the legal proceedings be reinforced. longer serve the interestsof society.
cept of harmless error. Error occurs,
but it is not considered harmful. Even However, these comments are not (Has anyone noticed the increasing
error that prejudices the effort to find addressed to the judiciary, urging the popularity of Alternative Methods of
exercise of judicial authority to restrain 10
truth, if not seen as serious, may be Dispute Resolution?)
overlooked if the judge tells the jury to "streetwise" conduct. such com?
Any
ments might best be found in The
disregard what has improperly been
presented to them. Judges1 Journal, A Quarterly Publica?
But Gary C. Dobbs and George R. tion of theABA Judicial Division.
Speckart, the authors of the article, Here, I am writing to lawyers. Unless Judge
have done commendable research ? lawyers abide the rules because they are
devoted to our truth-seekingprocesses,
perhaps more anecdotal than
cal, but nonetheless persuasive?and
empiri?
those processes are not likely to survive. Kozinski
have related their undoubted experi? Imay be suggesting that trial lawyers
ence and expertise. The result is dis? were more professional than litigators. (Continuedfrom page 20)
turbing. Rule defiance sways juries. With Judge Posner," Vol. 22, No.
Jurors are not likely to remember Afterthought 1Litigation at 23 (Fall 1995).]
judges' instructions to disregard?but If truthbe not our goal, society's use
A: I startedhim on it. I gave him his
will remember what the rule bender for our adversarial system will, sadly,
firstbook on tape.
wants them to remember about the erode. Should our profession allow?or
product of breaking the rules. encourage?disregard for the rules that Q: There are remarkable similarities
It may represent a mild case of are necessary for truthdiscovery, that between your life and career and
"robitis" for us to believe that judicial goal is abandoned. Felix Frankfurter's. You both
disapproval of conduct will "unring the Long ago, society conferred on our emigrated from Austria to the
bell." The article tells us that it is not profession an exclusive franchise. It is United States at the age of 12;
likely to be so. our most valuable holding. We, alone, you were both slow starters in
We learnfrom thisarticle that,once the are authorized to counsel as to the law. school but finished first in your
pure stream of justice has been polluted, Only members of thebar are allowed to class in law school; you were
itcan rarelybe refined. represent clients appearing in court on both the only children of Jewish
Wrongful conduct
produces benefit to thewrongdoer. Trial theirbehalf. merchants; you both became
The judicial system inwhich we and masters of the English language,
judges must not assume that an instruc?
tionwill make theprejudice go away. we alone are the officers is designated gifted writers, and extraordinar?
Mistrials and reversals, apparently as the method of resolving
disputes. ily influential federal judges.
required, will clog court calendars. Society reposes such faith in our work A: Yes, and we're both short.
But theremay be remedies. there that the rich and thepoor, thepow?
Q: But he became early on a commit?
Those who presume to thehigh office erful and theweak, great commercial
tedDemocrat, while you became
of trial counsel impliedly represent that institutions and, even, the American a conservative Republican. Most
they have been so trained that they are government, itself, is bound by the sys?
aware of rules of procedure and evidence. tem's
people with your background tend
determinations.
to become Democrats. What hap?
Thus, there is a strongpresumption that Why did society confer this franchise pened in your case?
conduct offending therules is intentional. upon our profession?
A: What itmay be isDemocrats have
Itwill be presumed that intentional
Simply because society felt that the
rule breaking is prejudicial. changed quite a bit since Frank?
investigation into and resolution of furter's time.
There is no way to remove such prej? disputes great or small would be
udice from the trial. (The "Streetwise
accomplished better,more efficiently, Q: Was Frankfurter one of your judi?
Litigation" article will be produced as with least waste of time and at least cial heroes?
competent authority that sustaining expense, based upon "The truth, the A: Yes, I thinkhe was. Holmes prob

ably
more so, as were Jackson and the stuff that really matters, the makeup or the composition of the
all theother greats. But Imust say, issues, the real ethical issues that judiciary is appropriate.
while I was influenced by judges face on a daily basis don't Q: Gerald Gunther in his biography
Holmes, I do not feel entirely even get talked about as such. of Learned Hand described
comfortable with him. I think Nobody discounts Marbury v. Hand's lifelong disappointment in
Holmes was more comfortable Madison because Marshall's role not having been named to the
with deference to the legislature in the events would probably
Supreme Court. [Learned Hand:
inmany ways than I think iswise. today require his recusal. You The Man and the Judge.] How
He was a great mind and a bril? should read Susan Block's article would you feel if you were to be
liantwriter.Of course, he was act? about the case. She and I clerked the permanent President of
ing in a legal culture where sub? together on the Supreme Court. OOPPSSCA? Is itenough for you
stantivedue process was taken for The thesis of the article is that
simply to have been an influential
granted by the courts. So he was Marshall set up the case, actually
appellate judge?
leaning against that tradition, and engineered thewhole thing, just
so he could come up with the A: I don't expect tobe appointed. And
sometimes when you lean against
I didn't take thejob with theexpec?
something, you have to be more decision he wanted. ["The Mar
tationof being elevated. I think it's
forceful thanyou might otherwise buryMystery: Why Did William
one of those things thathappens or
be. But I think Holmes was an Marbury Sue in the Supreme
doesn't happen, based on a lot of
admirable guy inmany ways, and Court?" 18 Constitutional Com?
factors you're not able to control. I
I do agree with Judge Posner that mentary 607 (2001).] It's a fasci?
decided a long timeago that it'snot
a case can be made thathe was the nating article.
In those days, the public's worth sacrificing or doing this job
most influential of our judges.
any differently because you're
Q: You have a somewhat atypical expectations were different?if
afraid of controversy.
view of judicial ethics. you had a case before you, you
were expected to set aside your Q: So you haven't led your judicial
A: I just gave a speech about this. I
biases, and everybody knew that lifewaiting to be nominated?
think thewhole current theory of
judges, like everyone else, have A: No. I think itwould be a betrayal. I
judicial ethics is just totally biases about everything.Your job think it's another one of those
wrong. The appearance of impro? as a judge was to set those things
priety standard is so wrong and implicit conflicts of interest?one
aside and decide the case impar? of those issues that no one ever
has nothing to do with judicial
ethics at all. To me, it's totally tially. It is only when you feel you talks about?a conflict between
cannot set aside the biases that
misguided and looks at entirely your own personal ambitions and
you have an obligation not to sit. deciding cases on themerits. That's
wrong things. It completely But your obligation is to decide.
misses the real issues of judicial one of the hardest of all. There are
And your obligation is to dis?
ethics. Things that nobody has probably lots of cases where you
charge your job impartially and could write things one way or the
any control over because it is the
faithfully, even when people are other, or you could decide things
judge's own decision and nobody not watching over your shoulder.
can it?those are one way or the other, and the con?
second-guess Not because you are afraid some?
the things that are really signifi? clusion could be easily argued and
cant. For example, if I were to body will come after you. You do justified ifone were tryingto?
itbecause that is your job and that
issue an opinion that iswritten by Q: To curry favor?
iswhat you are supposed to do.
my law clerk that I haven't read, A: Or at least not to offend?to avoid
who would know? Q: What's your view of affirmative
in judicial disfavor. I think it's hard to curry
And there are a thousand ways action, especially
selection? favor, but it's very easy to avoid
inwhich you have tomake ethical
A: I'm not against it. I think the ticking off someone. You can't
decisions concerning how you
words "affirmative action" have fully avoid these things, but you
allocate your time and how much can do a lot tominimize offend?
of the job and what things you gotten such a bad connotation.
It's almost like saying "racist." I ing.Of course, that requires enor?
delegate and what things you mous effort.You can avoid outside
maintain for yourself. Nobody think it is, in fact, important to
have our public institutions writing and speaking. Every time
thinks about these as ethical
the racial you give a speech or an interview,
issues. But they are, and it is a reflecting makeup of
our society in that way. I think you are taking a risk thatyou will
constant struggle.
it's important in our schools. I say something that somehow
And yet, we make a big deal
over the issue of a judge sitting in think it's important in judicial might come back to bite you. So
a case where he owns a few shares office. And I think that public maybe ifone does all those things,
one can marginally improve one's
of stock.What would the result confidence in these institutions
chances. But I decided a long time
be?a profit or loss of 50 cents or or public support for these insti?
ago itain't worth it.
5 dollars or 50 dollars? Does that tutions will not long continue if
kind of money matter to anyone? they all wind up being entirely Q: Thank you for a wonderful day.
Would white and Asian. So I think some A: You're very welcome. It was a
anyone's judgment be
affected?Of course not. And yet, consciousness of ethnic or racial real pleasure. 10


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My Afternoon with Alex: An Interview with Judge Kozinski

Author(s): Alex Kozinski and Jeffrey Cole

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

An Interview with Judge Kozinski

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Q: In 1996, you wrote an online diary for a time at the

A: No one tomourn them,yes. I had not kept a diary before

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Q: Even though you were the valedictorian at UCLA, you

Q: And only two firmswould take you?

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

Litigation Summer 2004 Volume 30 Number 4

This content downloaded from 194.29.185.230 on Sun, 15 Jun 2014 06:00:23 AM

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