The Patterico blog has details of some of the coarse humor that was available on Judge Alex Kozinski’s website. Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal. Yes, Kozinski apparently has an immature sense of humor, but we already knew that.
Of more interest is that the attorney peddling this, Cyrus Sanai, has been targeting Kozinski for years. Perhaps because of this Recorder article of September 23, 2005, responding to a Sanai op-ed criticizing the Ninth Circuit, and written by Kozinski:
Despite his colorful language, Mr. Sanai’s article raises no legitimate question about whether the Ninth Circuit has been derelict in following circuit or Supreme Court precedent. But the article does raise serious issues of a different sort. Mr. Sanai’s article urges us to “grant en banc rehearing of the next decision, published or unpublished, which asks the court to resolve the split among H.C., Napolitano and Mothershed.” A petition for en banc rehearing raising this very issue crossed my desk just as Mr. Sanai’s article appeared in print. The name of the case? Sanai v. Sanai. A mere coincidence of names? Not hardly. The petition, signed by Mr. Sanai, cites the same cases and makes the same arguments as his article — including the reference to “Catch-22.”
Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case; been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.
Sanai responded by bringing disciplinary charges against Kozinski, and now appears to have succeeded in embarrassing him. More at Bashman. The question is how someone who has frequently engaged in frivolous litigation still remains a member of the California bar without any disciplinary record. It will be appalling if Kozinski faces judicial discipline in this dispute before Sanai faces attorney discipline.
Meanwhile, the obscenity trial Judge Kozinski was presiding over was suspended. One hopes that Kozinski doesn’t recuse himself for the perception of a perception of bias when there’s no evidence of bias, and that the jury, which has already spent several hours watching unpleasant videos, need not have that effort wasted in a mistrial.
(Disclosure: in 1992, I interviewed for a clerkship with Kozinski, who was still interviewing when I accepted another clerkship for the 1994-95 term. Later that academic year, I was in a poker game with the judge and his bright young clerk, when the judge spoke at Chicago Law.)
(Update: Patterico was first to note the previous Sanai dispute; Sanai has commented there.)
Further update: Patterico has the resolution of the disciplinary complaint against Kozinski made by Sanai; Kozinski was exonerated, but apologized anyway. But .mp3s on a private directory is not illegal “file-sharing”; the Kozinski opinion (which was a dissent) Patterico refers to is about “knowingly providing crucial transactional support services” for infringement, so there’s not even hypocrisy if Kozinski mistakenly believed that his site was private.
June 13 PM: Eugene Volokh, as always, pithily summarizes:
Now the fruit of this disgruntled lawyer’s rummaging through someone else’s personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai’s discoveries are similar to someone’s finding that a judge who’s presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? …
Enough already. As Larry Lessig puts it, no-one should be put in the position of “hav[ing] to defend publicly private choices and taste” in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours.
June 15: New post: Kozinski recuses himself, and more on Cyrus Sanai’s litigation history, including the sanctions order referred to in Kozinski’s Recorder article.