After 22 years playing the rebel with many causes, 9th Circuit Judge Alex Kozinski may finally have to join the establishment.
On Dec. 1 he will take the helm of the 9th U.S. Circuit Court of Appeals as chief judge, the first conservative in a decade to lead what is widely viewed as the nation's most liberal federal appellate court.
In 1985, at age 35, his appointment to the court by President Ronald Reagan made him the youngest federal appellate judge in the country, to the consternation of Democrats who put up a fight. He squeezed by on a 54-43 vote.
From the outset, he has reveled in tweaking the staid traditions of his black-robed colleagues, or generally shaking things up, both on and off the court. Off the bench, he's been a magician, snowboarder, paintball warrior, computer gamer and scuba diver and has kept 14 chickens at his Palos Verdes, Calif., home. In 2004, he lobbied for votes in an online blog competition as "super-hottie judge of the federal judiciary" -- and won.
The intellect and intensity he brings to his pursuits can also mean he tires of them and quickly moves on to the next new thing. His latest project: "I'm buying old copies of Playboy magazine on eBay, because everything I learned about writing I learned from Playboy fiction," he said in a recent phone interview.
And he wants to pass writing skills on to his law clerks, particularly the writing of Richard Matheson, he said. He readily shares copies of science-fiction author's stories with their tight, declarative sentence structure that moves action quickly.
'DOES IT SING?'
Professor Eugene Volokh of the University of California at Los Angeles School of Law, who clerked for Kozinski from 1992 to 1993, called it an incredible, invigorating experience, working 80 hours a week and "learning how to write clearly and eloquently without being grandiose," often through 50 or 60 drafts. "He always asks, 'Does it sing?'" Volokh said.
A judge who was supposed to be at the vanguard of the Reagan revolution, he may not have turned out quite the way former Attorney General Edwin Meese III expected when he pushed Kozinski's nomination.
On the bench, just a year after his confirmation, Kozinski stunned conservatives when he championed the rights of homosexuals, saying they should be allowed to use the term "Gay Olympics" even though Congress gave rights to the word "Olympic" to the Olympic Committee. It came in a dissent from denial of en banc review.
"When I run into Ed Meese he says he's pleased with my appointment," even though he may not always agree with the rulings, Kozinski said. "Meese expected a measure of independence from judges," he said.
His irreverence peeks through in opinions as well. He concluded one opinion with the unjudgelike suggestion that "the parties should chill," and once sprinkled an antitrust opinion involving a movie theater chain with the names of more than 200 movies.
But Volokh said Kozinski is not a rebel or iconoclast in the usual sense. "His opinions are entirely mainstream. He can't be neatly categorized politically."
Kozinski also visited California's San Quentin prison to meet with death row inmate Michael Hunter, who had written to the judge about a 1997 New Yorker article in which Kozinski expressed support for the capital punishment. The state attorney general's office went ballistic and asked the court to investigate Kozinski for impropriety.
Now, as a chief judge, he will have a seat on the Judicial Conference of the United States, the policy-setting body for the federal judiciary. But whether he will rein in his maverick instincts or push to challenge entrenched notions of correct judicial behavior on a national stage remains to be seen.
"I guess I'll have to see. There is a bit of a tension, and it has me concerned," Kozinski said of the conflict between leading and sniping from the sidelines.
"I am very comfortable on the sidelines. It is hard to be a renegade when you're in the establishment. I'm going to have to work that one out."
Judge Stephen Reinhardt, an ardent liberal who is philosophically Kozinski's polar opposite on the bench and a longtime friend, thinks he knows where this is headed. "Buckle your seat belts; it is going to be a bumpy ride," Reinhardt said, in a paraphrase of Bette Davis' famous line in "All About Eve."
Reinhardt offered some advice to Kozinski: " 'Be more restrained and careful not to alienate people.' Of course, it will be much more fun if he doesn't take the advice."
One case, however, strained their friendship -- the capital case of Thomas Thompson. Judges missed a deadline to call for an en banc vote to review inconsistent prosecution theories that convicted two men, one of them Thompson, for the same murder.
But Kozinski dissented, saying if the en banc call is missed, for whatever reason, "the error can be corrected in a future case where the problem again manifests itself. That this is a capital case does not change the calculus."
Reinhardt called the dissent "horrifying" and "unworthy of any jurist." The U.S. Supreme Court took the case and by 5-4 sided with Kozinski. Thompson was executed in 1998.
Kozinski responded to critics in a 2004 interview, "They say, 'Death is different.' I guess I don't buy that. Formalism is important."
The job of chief judge is largely administrative, often referred to by court staff as equivalent to herding cats.
Reinhardt said the only difference a chief judge makes is getting a vote on every 11-judge en banc panel, which automatically includes the chief judge. With Kozinski on every en banc "we will have one bad vote instead of one good one right from the start," he said.
Current Chief Judge Mary Schroeder, a Jimmy Carter appointee and the first woman to serve as chief of the circuit, also offered one bit of advice.
"He has more than enough brains for the job, but he should keep in mind we operate the best when we have the good will of all the judges in the circuit," Schroeder said.
Volokh doesn't see any problem with Kozinski at the helm. "The reason he will be an effective chief judge is that he's an affable fellow. He is charming and outgoing and knows how to deal with people with whom he disagrees."
Kozinski, a Romanian immigrant, was born in 1950 to parents who survived the Holocaust. His father ran a factory in Romania and gave the young Alex signals when he should keep quiet to avoid comments that could get the family in trouble. This may account for his love of the free market and deep distrust of government that runs through his conservatism.
The family came to the United States in the 1960s, first Baltimore and, ultimately, West Hollywood, Calif., where his father ran a grocery and Kozinski got his first exposure to reading copies of Playboy -- for the fiction.
If Kozinski plays hard, he also works hard.
Volokh said that clerks worked 9 a.m. to midnight on weekdays and often 9 a.m. to 6 p.m. on Saturdays. Kozinski does not participate in the general court practice of sharing bench memos on cases coming up for argument. Most three-judge panels divide duties for preparing bench memos so each will only have to write on one-third of the cases. Kozinski's clerks do them for every case.
But the career rewards of clerking for a judge with a national reputation like Kozinski's can pay off. He is a Supreme Court farm team franchise, having sent 42 law clerks up to the high court. Three of them have become judges, including Judge Brett M. Kavanaugh on the D.C. Circuit, Sandra Ikuta, a new member of the 9th Circuit, and Mark Holmes, who is now on the tax court.
Kozinski himself clerked on the Supreme Court. He first won a spot with Justice William O. Douglas, but Douglas retired in 1975 before Kozinski started so he interviewed with Chief Justice Warren Burger and got the job in 1976. Prior to that he clerked for Justice Anthony M. Kennedy, when Kennedy was on the 9th Circuit.
And it is not his first time as a chief judge. Kozinski served as chief judge of the newly created U.S. Claims Court in 1982, which hears cases against the government involving federal contracts.
Of his new responsibilities, he says, "I have no campaign promises and no platform. I don't want anything to happen during my tenure."