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Kozinski: Much Ado About Naught?

As a general summation of why Judge Alex Kozinski now finds himself in the midst of a so-called scandal over a porn collection, no one has said it better than Emily Bazelon at the Slate blog Convictions: "The problem with being a judge who loves to shock is that you're a flashy barracuda in a school of plain tuna, and you risk careening off into the high seas that are the province of public officials who are just too out there for their own good." After all, this is the judge, Bazelon recalls, who wrote a week-long diary for Slate in 1996 in which he recounted his attendance at a lingerie and pajama party. This is the judge, as Carolyn Elefant reminds us, who lobbied for a nomination as a judicial hottie in a competition sponsored by David Lat's former blog, Underneath Their Robes. This is the judge, as The Recorder reports, who was once chided by former Chief Justice William Rehnquist to "watch pornography at home," not at the court.

In case you need updating, Howard Bashman at How Appealing is all over this story with several posts and link-wraps. Among them, he has e-mails from the lawyer who tipped off the newspaper that broke the story, the Los Angeles Times. The Beverly Hills lawyer, Cyrus Sanai, had a long-standing grudge match with Kozinksi. In an e-mail to Bashman, Sanai says he discovered the images and videos on Christmas Eve and shopped the story to various media outlets, including the Daily Journal, The Recorder, the Wall Street Journal and the LA Times. All, he charges, "deliberately held this information from the public." Last month, Sanai says, ABA Journal reporter Terry Carter began working on the story, when the LA Times finally decided to publish it. Bashman, in a separate post, asks his readers to weigh in on whether the LA Times should be praised or condemned for reporting Kozinski's cache of pornographic images. "Is this story newsworthy merely because a federal judge has posted pornographic images on the internet?" he asks.

Neither praise nor condemnation is due the LA Times. It was simply doing its job. Without doubt, the story is newsworthy. The real question is not whether to report the story, but what to make of it. One immediate issue is whether Kozinski should recuse himself from the obscenity trial he is overseeing. At the blog Techdirt, Mike Masnick says that if obscenity is supposed to be judged based on community standards, then removing Kozinski does not seem right. "If even the judge finds those types of images 'funny' or 'interesting' and 'a part of life,' then perhaps that's making it pretty clear that they're not obscene," Masnick writes. "Saying he needs to recuse himself seems to be presupposing that the images are obscene, which doesn't seem quite right. Rather than being used as a way to tar the judge, doesn't this just raise questions about obscenity laws in the first place?" That is the position taken at TalkLeft, which says the incident, "Goes to show how obscene it is that the Justice Department wastes public resources on adult 'obscenity' trials."

Apart from the immediate issue of recusal, what does the news of Kozinski's cache tell us about Alex the Judge? I tend to agree with the sentiment expressed by the lawyer who writes the blog Sack Bagley, when he says, "While Judge Kozinski was certainly foolish to display these images on a site publicly associated with his name, we shouldn't feign shock at the revelation that a prominent or respected person enjoys sexual imagery." If Emily Bazelon had the best summation of how Kozinski got into this mess, then Sack Bagley has the best summation of the lesson we should all take away from it:

We should approach the incident as something to laugh at, an ultra-candid glimpse at the humanity of a renowned public figure. We should take personal respite in the fact that even those who head our most stolid institutions are prone to the same ridiculous curiosities as the common man. And we should look with great suspicion at those who use this incident as an opportunity to moralize or to castigate those with 'deviant' sexual desires.

I am reminded by all this of the story we'd been following here of the crossdressing judge in Massachusetts, whose decision to resign prompted an outpouring of support from the legal community. To paraphrase the letter they wrote in his support, these recent events should not in any manner diminish Kozinski's ability to fulfill his duties and to remain as a respected member of the bench. 

Posted by Robert J. Ambrogi on June 12, 2008 at 10:54 AM | Permalink | Comments (0)


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