Less than one month ago, the L.A. Times editorialized that Judge Kozinski should say “So what?” to the allegations the newspaper splashed all over its front page:
There’s a different statement we’d like to hear from him, and no, it’s not an apology, an expression of regret or even an explanation. It’s this: “So what?”
. . . .
Scolds who argue that judges should uphold a higher standard of decorum than the common citizen and should somehow be prevented from engaging in such private activity as gathering subjectively amusing or even appalling smut should recall that the 1st Amendment is not limited to high-minded endeavors.
The editors added:
[I]t makes no difference whether the person with the porn site is left or right, smart or dull, a judge or anybody else.
It is also true that judges are charged with administering justice and instilling public confidence in the law. Under the circumstances, it makes sense for Kozinski to recuse himself from the obscenity trial he was assigned to hear — not because there is any readily apparent conflict but because the website controversy has become a distraction and will undermine public trust in the verdict.
Now, they editorialize as follows:
A few weeks ago, Judge Alex Kozinski, an admired federal appeals court jurist, was revealed to have taken full advantage of his constitutional right to indulge his taste in prurient and demeaning material, which he maintained on a publicly accessible Internet server. We defended his right to do so but urged him to recuse himself from a case testing the limits of obscenity. He did, and has properly been praised for it.
That said, it’s alarming that he would have taken on such a case given his appreciation for squalid pictures and videotapes, a predilection that raises questions not about his right to have the stuff — have at it — but about his ability to consider certain kinds of cases. He has resolved the immediate issue by bowing out of the obscenity trial, but he’s far from finished with this. Imagine, for instance, that a woman alleging workplace harassment or discrimination comes before Kozinski in the future. Would she have reason to question his ability to impartially consider her complaints, given that he apparently enjoys material that demeans women? Seems like a fair bet.
My. All of a sudden, the editors sound like “[s]colds who argue that judges should uphold a higher standard of decorum than the common citizen.” Whatever happened to telling the judge that his response to the newspaper’s front-page article should be “So what?”
Note to the editors: y’all are sounding a little schizophrenic there. How’s about a touch of consistency?