June 16, 2008
Romanes eunt domus!
After single-handedly creating the Kozinski pseudo-scandal with a deliberately misleading and inflammatory story, the LA Times cheekily advises the parties to chill.
Via Patterico, who also posts a courtly, quite well-written letter from Kozinski's wife.
Meanwhile, the seeds sown by the Times's mischaracterization of the material in the Kozinski family's "stuff" directory continue to sprout in unexpected forms.
As you'll know if you've been following this story from any source other than the LA Times, among the files stored on the server (not really a "website" as the articles usually describe it) were a relatively naughty image of some ladies in black and white body paint and a not-in-the-least-naughty video of a drunk man being chased by a donkey.
The LA Times contrived to leave the impression that they were considerably more sinister than the reality.
The San Francisco Chronicle picked up where the LA Times left off and actually characterized them as "images of bestiality" on a "steamy website."
Now enter Bill O'Reilly and his legal analyst Megyn Kelly, who puts it this way:
he had some crazy picture of like a woman with her head on a cow's body, and like some weird other stuff with animals.
O'Reilly thinks the controversy is "karmatic," since the Ninth Circuit wants to "make everything legal," including even raunchy parodies of Mastercard "priceless" commercials and cows except they have like human heads or something.
(By the way, Cyrus Sanai, the kooky vengeful lawyer who started the whole thing, has been quite busy over the weekend leaving comments on legal blogs like Volokh, Overlawyered, and Patterico. Strange guy.)
UPDATE: for some reason links to particular items on Patterico's blog are now returning an error message, but the posts themselves (including the letter) can be read on the main page.
FURTHER: Okay, it looks like Patterico's server was overwhelmed by a link from fark.com for awhile there. Links all seem to work now.
Posted by Dr. Frank at June 16, 2008 04:27 PM
What a complete farse. Who is willing to bet that the journalist(s) who have pointed their finger have infinately more repungant files stashes away deep in their hardrives?
In my opinion, persons choice of pornography is only interesting/ scandulous to those lumbered with guilt around sex- be it because of their own fetishes, religious guilt etc. Unless it be completely abhorant such as child-nazi-rape porn or something, who cares?
Nazi porn? Whoa...there must be some sick people out there...and what is it, exactly? Eva Braun in pasties, whipping a naughty Herman Goering? The mind reels....
BTW, Frank, the Patterico link and the link to the letter by the judge's wife don't work. Too bad, I'd like to read it.
Not sure why the links aren't working, but you can go to http://patterico.com/.
Hey, where'd the 'black and white body paint ' hyperlink go?
All my links seemed to be screwed up for a stretch so I lost them in the re-editing, Custodian. The images that have been made public (the only ones as far as I know) are on Patterico's blog: http://patterico.com/2008/06/12/exclusive-kozinskis-porn-images-from-judge-alex-kozinskis-web-site/
Ann Althouse examined them and commented in one of the addenda here: http://althouse.blogspot.com/2008/06/i-think-its-odd-and-interesting-its.html
Another case of turning basic logic on its head by the venerable "Doktor."
Let me see if I got this straight. A United States Federal Circuit Court judge is caught distributing obscene and pornographic images. Notwithstanding the fact that this is, to say the least, improper behavior besmirching the judicial office with which Kozinski has been trusted, Kozinski FAILS TO DISCLOSE that the fact he is in essence an amateur distributor of the very same type of explicit images at issue IN A PENDING CRIMINAL OBSENITY CASE over which he is presiding. This is a clear conflict of interest which Kozinski failed to disclose in violation of judicial ethics rules. Moreover, the copyrighted images distributed by Kozinski have likely been reproduced in violation of applicable copyright law.
Meanwhile, in the "Doktor"'s neo-con alternate universe, it is the Harvard-educated attorney who discloses the truth about Kozinski's conduct who is "kooky" and "vengeful," while the amateur-porn-distributing Federal Judge violating ethics rules and other laws is somehow transformed into a poor, innocent victim.
No, Paul, you don't have it straight. All I'm saying is that, judging from what has been disclosed thus far anyway, the description in the LA Times article was inaccurate, as were the subsequent descriptions in the other two cases I mentioned. Your description is inaccurate as well, though perhaps not quite so far out as the Fox News "woman with her head on the body of a cow" idea.
It's a matter of opinion, certainly, but the lawyer does come off as something of a kook in all of those comments threads on overlawyered, patterico, and volokh, and it does seem pretty clear that a longstanding grudge against this guy is his motivation. No?
Also: are you by any chance Arya University?
Ha! I checked your IP address. You *are* Aryamehr University! Just like old times....
Most unbiased observers understand the primary issue is that Mr. Kozinski is engaging in improper behavior, violations of judicial ethics rules, possible violations of other laws, and simple hypocrisy. The effort to personally attack the messenger in all of this - or even to shift the discussion from the message to the messenger - is smoke screen.
Kozinski believes he is above the law, and this latest incident confirms that. In fact, the underlying dispute between Sanai and Kozinski stems from the fact that Kozinski believes he may rule in contradiction of 9th Circuit precedents in so-called uncitable "unpublished opinions." In other words, Kozinski can violate the inviolable judicial rule of "stare decisis" and ignore precedents of his own court any time he wants. And he can do so with no adverse consequences by designating any such opinion he renders "unpublished" and uncitable. It is sort of the judicial version of the John Yoo's ingenius yet hair-brained "Unitary Executive" theory of Constitutional Law (struck down by the U.S. Supreme Court this week), which argues with a straight face that the President has the right, on a whim, to imprison anyone in the world for life without charges, and torture them and their children, including but not limited to smashing their children's testicles.
Anyway, a very smart lawyer named Cyrus Sanai wrote an outstanding article in the Recorder discussing the dangers of a court of the 9th Circuit's stature having a policy whereby a judge could, with or without sufficient justification, ignore all of the court's prior legal precedent and decide a case any which way he wants in an uncitable, unpublished opinion.
In response, in an unprecedented move extremely unbecoming of a United States Federal Circuit Court Judge, a "spiteful" Kozinski responded to the Recorder with a letter in which he did virtually nothing but personally attack Mr. Sanai, barely addressing the issues raised in the article.
After this episode of "spitefulness" by Kozinski, it is discovered that there is also something "kooky" about Kozinski. The guy likes posting porn and beastiality pictures on the Internet, and, in his personal life, he is especially contemptuous of certain groups of people - women, blacks, catholics and, of course, Arabs.
And the "Doktor"'s response to all of this? Every criticism we should level at Kozinski (spiteful, kooky, etc.), he directs at .....Sanai!? Ha! I missed you too, Frank.
Though your rhetorical style is unmistakable to anyone who has experienced it before, I must ask that you pick a name and stick to it, because it might be confusing to others who have not previously been touched by the relentless Arya experience.
Obviously, you buy Mr. Sanai's theory that he and his siblings are the victims of a long-standing well-organized conspiracy of federal judges. Fair enough. I know you are drawn to that sort of thing. I know nothing of Kozinski's "personal life," so I can't comment on that either, though many people seem to think he's a pretty good guy.
Your characterization of the "porn" material is wrong, though. The images disclosed by Mr. Sanai to Patterico -- pretty obviously the same ones on which the LA Times writer based his article -- could by no stretch be described as bestiality, or even "beastiality." The parameters of legal obscenity seem a bit hard to pin down, but I doubt many people would see them as extreme enough to qualify as "OBSENITY," as you put it, and they are certainly not in the same league as the work of the guy being prosecuted in the case from which Kozinski has now recused himself. Many would say it is a stretch to call them "porn," inasmuch as they are intended as vulgar gags, and relatively tame ones at that. This stuff has been floating around the internet as "viral" inter-office email list "humor" for years, it is kind of hard to imagine anyone being genuinely shocked by it unless they are determined to will themselves into temporary prudishness. It's not my favorite kind of humor, I might add: I prefer to curl up with a nice PG Wodehouse or the Marx Brothers and laugh quietly to myself. But they do not appear to be illegal images. Embarrassing, sure, and that is obviously the point of shopping them around to the media. Creepy and sleazy behavior, by my lights, but there it is.
I understand that you and Mr. Sanai really want the judge to be guilty of something, and he may well be for all I know, but I don't really see a crime here.
I don't care about Sanai's career, his parents, his siblings, his aunts, his uncles, his favorite beer, who he likes, who he dislikes, what he orders at Starbucks, or what his favorite color is, and you shouldn't either. Why do you keep making this about Sanai? Sanai could be Mother Theresa or Charles Manson. That doesn't change the facts regarding Kozinski.
So you can "Sanai, Sanai, Sanai" all you want, but Sanai's not the Chief Justice of the 9th Circuit Federal Court of Appeals of the United States of America. Kozinski is. Sanai's not the one caught distributing porn while presiding over an obscenity case regarding porn. Kozinski is. This is about Kozinski no matter what dirt Kozinski and his buddies manage to dig up on Sanai.
Oh, and even if nothing Kozinksi did constitutes a "crime," it is more than obvious the behavior is highly improper for a federal judge, especially one of Kozinski's standing, just as it would be considered improper for a Senator to do such things. This will have an adverse effect on Kozinski's career and reputation. "Illegal" or not, Kozinski will undoubtedly, and rightfully, pay for it in a number of ways for the rest of his career.
Now go write something about how Cyrus Sanai cheating in algebra class in the 8th grade.
Funny stuff, Arya. You're right. I shouldn't have been worrying so much about eighth grade algebra shenanigans. Cyrus's more recent antics on all those blogs are amusing quite apart from anything to do with Kozinski or the eighth grade. I never heard of these guys before the LA Times article, and I don't particularly care about either of them personally one way or the other.
You're the Boalt grad, so you'd know better than me, but it's my understanding that it is pretty difficult to impeach a federal judge. Maybe I'll be proven wrong about this, but I don't see it happening on the basis of this stuff, which, improper as it may be, is still rather trivial in the end. On the other hand, Cyrus's aim appears, to the casual, non-lawyerly observer, to be to punish judges who rule against him with media smears, as a warning to judges in future cases who might consider crossing him. I may well be wrong about that, too, but that seems to me to be the more disturbing ethical problem, and my guess is the judges will probably win that one, too. Like I say, I have no expertise and I may well be wrong, but that's sure how it looks to me.
Kozinski won't be impeached. He'll just be ruined in the court of public opinion. What will happen is that he will go down in history as the judge caught stashing a quite injudicious, pardon the pun, collection of raunchy porn. He will have his prudence and judgment under question.
Also, he had previously been a very serious contender for a future U.S. Supreme Court nomination. I will bet you dollars to donuts that this is no longer the case.
As for Sanai, he may have his issues but, as I've said, he's not the one presiding over the 9th Circuit Court of Appeals. Kozinski is.
By the way, check out Paul Craig Roberts and his writings when you get a chance.
Which did you mean is the creepy and sleazy behavior? Appreciating the images as humor or shopping them around to the media?
The second one, Custodian.
OK, VDARE Universty, I'll check it out.
I'm sure you're right that the smear about the so-called porn-site will stick in the public memory, which is a shame because it is inaccurate and, moreover, rather frivolous and banal. If failure to see the humor in, say, that donkey video is meant to be some kind of bright line between proper and improper judicial comportment I doubt many judges would pass muster. All else being equal, I'd prefer those on the other side of the line, frankly. Free speech and all that, you know? Of course, all that stuff is just a pretext anyway. It appears that Mr. Sanai may have other judges in his sights for what he has described on blogs as step two and three of his three part "litigation strategy" so there may well be more smears to come.
Anyway you don't have to like the guy to see that pursuing him for "impropriety" on this basis is kind of an insane notion. Or maybe you do at that.
But you're right obviously: he'll never live it down, I'm sure.
Shouldn't that be, "O Tempora! O Mores!"?
Oops - you're right, Larry. My bad...