Both are quoted often in the L.A. Times as experts on legal issues. Prof. Gillers specializes in legal ethics.
Since the time that Professors Levenson and Gillers were quoted, some new information has come to light concerning the material on Judge Kozinski’s server/website.
For example, I published a letter from Marcy Tiffany, the wife of Judge Kozinski, who argued that the facts were substantially different from what the L.A. Times had reported.
Certain aspects of her letter were corroborated by information in posts of mine, showing that the material described by the L.A. Times had a humorous component that the paper did not sufficiently describe. (See here, here, here, and here.)
I decided to send Professors Levenson and Gillers links to this material, and ask them whether the new developments have changed their mind.
For her part, Prof. Levenson decided to “defer to the Third Circuit committee investigating this matter for further comment.”
Prof. Gillers gave me a full response, asking only that I publish his remarks in their entirety. (I would have anyway.)
Prof. Gillers’s remarks are very thoughtful. The highlights are as follows:
- Prof. Gillers does not believe that Judge Kozinski needs to be disciplined in connection with this controversy.
- Although he believes Judge Kozinski could have judged the case fairly, Prof. Gillers continues to believe recusal was proper.
- Prof. Gillers says that, despite the fact that the material on Judge Kozinski’s website/server was largely intended to be humorous, many will still see that material as pornographic.
- Prof. Gillers continues to believe that Judge Kozinski was seriously negligent in allowing the public to access the material. Although Prof. Gillers does not defend Mr. Sanai, Prof. Gillers rejects the view that Mr. Sanai’s actions were analogous to the burglary of a private study.
- Prof. Gillers continues to believe that Judge Kozinski is a “treasure” on the federal bench, and that opinion has not been shaken by this controversy. He believes that this incident will pass.
I encourage every reader to read Prof. Gillers’s remarks in their entirety. Visitors to the main page should click “more” to read them.
I’ve been asked whether my views of this event have changed since the L.A. Times first interviewed me. Specifically, I was asked about the following additional developments:
a. The statement of Judge Kozinski’s wife that he’s into humor, not porn.
b. The fact that the Times article implied that some of the material on the website was more salacious or prurient than the material in fact turns out to be.
c. Some of the images are available on the web.
I told the Times that I thought the publicity about the website would be humiliating to Judge Kozinski, but that the incident would pass. I also said that I thought the judge would have to recuse himself from the obscenity trial then underway, which he later did. Finally, I insisted that as a condition of quoting me the Times add that in my opinion Judge Kozinski is a “treasure” on the federal bench, a view that this incident has not at all shaken. (Some of my quotes showed up on the paper’s website, some in print, some both places.)
Later, I told an AP reporter that while those of us who know Alex have no doubt he could try the obscenity case fairly, the public would think the justice system had lost its marbles if he remained on the case. I still believe that. Recusal issues must respond to the perception of the reasonable public, not only what the judge believes is true in fact. I can hardly imagine how it might sound to the jury to have the judge instruct them to disregard anything they may have heard or read about the judge’s own collection of allegedly pornographic images.
I continue to have these views.
The fact that certain of the images are less salacious or prurient than one might infer from the Times’ description is of little import to me. I have now seen many of the images on this website. Many focus on naked body parts, more women than men, more often below the waist than above, some closeups.
The fact that there is a humorous dimension to the images is, to my mind, largely beside the point. The fact that they are (or can be seen as) humorous doesn’t change what many will view as their pornographic character. That is, the categories of humor and porn are not mutually exclusive. I assume the explanation that Judge Kozinski’s motive was humor, not porn, is meant to exclude prurience and mitigate the conduct. I accept that explanation. But that doesn’t change my conclusions.
I disagree with Larry Lessig’s suggestions elsewhere that Mr. Sanai’s conduct is the equivalent of breaking into Judge Kozinski’s study. I do not defend Mr. Sanai one bit. Gratuitous acts of vindictive meanness should be scorned. But this was not a burglary. Judge Kozinski unwittingly facilitated the disclosure, which would not be true in a burglary. I believe, as I told the Times, that it was seriously negligent to leave these images on the web, even in a seemingly secret file. (Is anything on the web secret?) I think that, and only that, was Judge Kozinski’s mistake, not having the images in the first place, which he was free to do.
I do not believe that this mistake deserves discipline. Corrective action has been taken by closing the site. I understand the judge’s decision to refer himself for investigation but the consequence should be exoneration.
One last point, which I think is quite important. Judges have constitutional rights, too, of course, but on becoming a judge, a person necessarily accepts certain restrictions on his or her behavior entirely apart from what the law may require. We just went through a multi-year process of rewriting the ABA Code of Judicial Conduct. The committee drafting the revisions initially thought to omit the prohibition against the appearance of impropriety. State high court chief judges emphatically (and in my view correctly) rejected that proposal. The prohibition remained.
Comment  to Canon 1 of the new Code says “A judge should expect to be the subject to public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.” That is the situation here.
So I assume the worldwide publicity is humiliating. Recusal was unfortunate but necessary. That’s where it should all end. Anyone who has followed Judge Kozinski’s career knows how important to American law his sometime idiosyncratic perspective has been, not to mention his wonderful language skills. Against that backdrop, this incident is painful but insignificant and, as I say, will pass.
I thank Professor Gillers for his time and input.