June 11, 2008

Judicial Blogging Can Be A Bad Idea Sometimes

I wrote recently about the United States v. Isaacs case and why I thought it should never have been brought in the first place. But there it is, and it's being tried before, of all the judges in the Central District, Alex Kozinski on assignment from the Ninth Circuit. Judge Kozinski is one of the most brilliant minds on the bench, one who takes freedom and liberty seriously, and one who is not shy about colorful phrases in his opinions or showing more personality than one normally expects from such a staid segment of an already-staid profession.

But when Kozinski posted evidence from the trial on his blog, I think that probably crossed a line of some sort. He could at least have waited until the trial was over, although even then this would have been a questionable thing for him to have done, given that it was evidence in a trial before him. It's one thing to tell war stories, especially when they are humorous or insightful. But it's something else to take real evidence -- particularly real evidence that is really sexually explicit -- and post it on the web.

Most of all, it's a problem in that his defense is that he didn't think what he posted was obscene. Not that he may or may not be right, but because he's sitting as a judge in which the obscenity of this material is a matter pending before him. Unless he's already ruled definitively that this stuff is not obscene -- and the Government is likely within its rights to demand that a jury and not the judge make that finding -- then this raises in my mind a very substantial question about whether Judge Kozinski has pre-judged the material issues pending before him. It's not that the judge has any fewer civil rights or liberties than the rest of us, but he is supposed to exercise those rights in a certain way so that he can also discharge his judicial office. At this point, a cloud has been raised over that in my mind.

None of this changes my opinion of the Isaacs case and none of this changes the admiration I have for Judge Kozinski as a legal scholar and as an author of some very important legal opinions. But sadly, I think this scotches any chance he might have of being nominated to the Supreme Court. Not so because of the real judicial propriety issue raised in my last paragraph (which I think is a real issue), but because any President who might otherwise have been inclined to nominate him will now shy away from doing so because he posted sexually-explicit material on the web at all, whether or not he was within his own rights to do so, and this will offend beyond repair the critical population of Prude-Americans who are likely offended by the idea of anyone, anywhere, having sex in anything other than the missionary position in a darkened room and/or actually enjoying it. There are plenty of other super-smart libertarian-leaning judges who could be nominated in Kozinski's stead.

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