Patterico's Pontifications

10/28/2009

Kozinski Wins on Disabling Federal Court Filters; Scott Glover Worries Instead About Some E-Mail Gag List

Filed under: Dog Trainer,General,Kozinski — Patterico @ 6:44 am

Amazing. Scott Glover of the L.A. Times authors a story about a 20-page decision (.pdf) from the Judicial Council of the Third Circuit Court of Appeals, relating to significant issues of censorship and national security — and Glover focuses the entire story on an inconsequential footnote about an e-mail gag list. Why? Because Glover wrote a story about the gag list. So that’s what he cares about.

The opinion dismisses a complaint against Chief Judge Alex Kozinski for allegedly disabling electronic sensors (in effect content filters) from the computers for three federal circuit courts of appeals. The topic of the opinion was the subject of great controversy when the events in question occurred, with accusations and defenses appearing in the pages of the Wall Street Journal and the New York Times. The controversy pitted Kozinski’s libertarian views (that the employees of the federal courts must be trusted to access any sort of material without censorship) against security concerns raised by the former Director of the Administrative Office of the U.S. Courts (maintaining that Judge Kozinski’s actions created a security breach that potentially opened our country’s most guarded secrets to the scrutiny of any talented hacker with an internet connection). The opinion addresses the contentions at length and determines that the complaint must be dismissed because it was previously litigated and decided years ago:

The Complaint seeks to reopen a matter addressed and completely resolved in 2001 by the Judicial conference of the United States. No further review is warranted. Reopening this matter would disregard the finality of the resolution in 2001, and any new inquiry would not only be improper but would also be prejudiced by the unexplained and unreasonable delay in the filing of the Complaint. Accordingly, we will dismiss the Complaint.

Oh — and also, the Judicial Council drops a footnote — the last of 10 footnotes, in fact — mentioning Judge Kozinski’s e-mail gag list which he used to send “ribald jokes” over a few years. The opinion notes that Kozinski has discontinued the list and apologized — which, the Judicial Council says, is enough to conclude the matter. Reading the brief footnote, you can easily picture the judges shrugging their shoulders as they are forced to discuss this trivial issue. Yawn.

And yet . . . what does reporter Scott Glover see as the big story here?

The apology for the gag list.

I kid you not.

The story is titled “Judge Alex Kozinski apologizes for distributing crude jokes.” The deck headline reads: “A panel concludes its investigation of the 9th Circuit’s chief judge after he says he has stopped e-mailing his ‘gag list.’ No action is taken against him.” And the opening lines state:

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, has apologized for having maintained an e-mail “gag list” in which he distributed crude jokes and other humorous material, according to an opinion made public Tuesday.

Nowhere does Glover’s story mention that this momentous issue was decided via a footnote. Which is more than it deserved.

Paragraphs 8 and 9 of Glover’s 10-paragraph story mention the electronic filters issue, in passing (“The Judicial Council dismissed that complaint too . . .”). But what’s a story about disabling electronic filters to three federal courts of appeals, when there’s a footnote about an e-mail gag list to write about?!?!?!

Naturally, Glover considers the gag list story to be important, because he thinks he is the guy who broke that “story.” The fact that it is a stupid non-story does not trump that pride of ownership.

Actually, as I demonstrated in this December 2008 post, Glover didn’t even break the story; the Wall Street Journal Law Blog had already published about the gag list several months earlier. Nor was the story significant; in my post, I gave several specific examples of the silly jokes sent on the gag list. As I said in my post: “So the L.A. Times has published an old story, about humorous jokes sent to consenting adults. Again, how is this a story?”

Answer: it wasn’t. And a Judicial Council’s minor footnote addressing it doesn’t change that fact.

P.S. I just found Glover’s article for his student newspaper from July 21, 1969:

Yesterday astronaut Neil Armstrong was overheard cracking inappropriate jokes while eating cornflakes and Tang. Several shocked observers reported an inappropriate analogy from the normally reserved astronaut involving rockets and craters. Inquiries from the Los Angeles Times reveal that an investigation may or may not occur.

Also, Armstrong became the first man to walk on the moon yesterday.

He’s always had a nose for news!

42 Responses to “Kozinski Wins on Disabling Federal Court Filters; Scott Glover Worries Instead About Some E-Mail Gag List”

  1. What our faithful reader, Patterico, fails to realize is that we decide what is news and what is not and what is important in a story and what is not.

    The Editors of The LA Times (df76d4)

  2. Libs. Always terrified that somewhere, somehow, someone may be having fun.

    Bugz (29eca2)

  3. I think judges ought to be discreet and of sober temperament, and give every indication of same in any use of public resources or facilities, and/or those provided for their official use by the public.

    His “gag list” is not trivial to me, because it was vulgar, juvenile and even arguably mysogynistic. It exposed an inferior mind and temperament in someone supposed to have superior qualities, In his use of of resources he should have discretion to acts in ways that reflect positively upon his position and do not cast his office into a contemptible light.

    You don’t seem to have the opposite opinion, exactly, you just don’t think he did anything egregious enough to get worked up about. That is a matter of opinion, but I am nearly as sorry to see anyone excuse that lack of sense and discretion in a judge, as I am to have a judge reveal the same.

    I don’t disagree with your remarks about reporters and “ownership” of story elements, but I have to be very plain – it is also the aspect of this litigation of greatest interest and concern to person’s shocked by Kozinski’s trivial frat-boy pleasures indulged with use of public resources.

    The public is not necessarily as interested in a dismissal of an untimely or settled complaint about access as they are with the underlying issue of Kozinski’s actions that color opinions of his suitability for the bench.

    SarahW (692fc6)

  4. I’m hardly a liberal, btw, and I do think judges should have less fun on the job than their inner teenager would.

    SarahW (692fc6)

  5. I don’t worship Kozinski, either, Sarah, I would not want him as my judge, but it offends my sense of justice the way he has been treated by some people.

    nk (df76d4)

  6. This was a freaking dog-whistle for David Petranos Esq and MKDP. Thank you.

    JD (787a1f)

  7. P.S. I just found Glover’s article for his student newspaper from July 21, 1969:

    Is that SERIOUSLY something he wrote back in the day?

    Please, dear God PLEASE tell me that’s a joke…

    Scott Jacobs (445f98)

  8. SarahW,

    As far as I can tell the email list has absolutely nothing to do with public resources. Certainly the storage area that also became an issue was not using public resources.

    Soronel Haetir (2b4c2b)

  9. Hear, hear, Patterico.

    SPQR (26be8b)

  10. It’s a joke.

    Patterico (f062ae)

  11. That dog-whistle to the krazy people was no joke.

    JD (787a1f)

  12. I thought Michael Jackson took the first moon walk. And, btw, he sold a lot of records.

    Corwin (ea9428)

  13. Where’s Cyrus Sanai? :)

    h2u (dec0f9)

  14. It’s a joke.

    Thank god.

    Sadly, I had to ask… I put little beyond that idiot.

    Scott Jacobs (445f98)

  15. Where’s Cyrus Sanai?

    Chasing ambulances and filing lawsuits about how Crunchberries aren’t actually berries…

    Scott Jacobs (445f98)

  16. Chasing ambulances and filing lawsuits about how Crunchberries aren’t actually berries…

    LOL!

    h2u (dec0f9)

  17. I think Sarah might be afraid some male is having fun somewhere. Sarah, you weren’t a nun in 1951 when I had a really nasty seventh grade teacher, by any chance ?

    Mike K (2cf494)

  18. Actually, Patterico, you missed the real issue here.

    The order issued yesterday was the Judicial Conference of the United States declining to alter a decision that came out on May 28, 2009 by the Third Circuit Judicial Council. All of this relates to Ralph Mecham’s complaint.

    However, this decision does not clear Kozinski. To the contrary, the Judicial Conference of the United States wrote at page 16:

    “The Complaint, in addition to its primary focus on the
    events of 2001 pertaining to the computer gateway portals in San Francisco, also references allegations of possible misconduct
    against the Subject Judge that are the subject matter of the
    separate complaint before the Third Judicial Council in J.C. 03-
    08-90050. To the extent that the Petitioner brings issues to our
    attention that are the subject of that complaint, we decline to
    review them. The Complaint in J.C. 03-08-90050 was thoroughly investigated by the Judicial Council, resulted in a finding of misconduct, accompanied by corrective action consisting of a full admission of error and apology by the Respondent, and appropriate action by the Judicial Council against the Subject Judge pursuant to § 354(a)(1)(c) of the Act and Rule 20(b)(1)(D) and (E).”

    The J.C. 03-08-90050 complaint was, of course, Kozinski’s complaint on himself. Note the words “resulted in a finding of misconduct”. You and others contended that Kozinski had been cleared. That was false. He was found guilty of misconduct; however, under the federal practice, saying “I’m sooooo sorry” results in the complaint being dismissed. This is the second time Kozinski has had to do this, and thus second complaint dismissed after a finding of misconduct.

    So, the interesting feature of this opinion is that the Judicial Conference came out and stated what the Third Circuit Judicial Council buried–that Kozinski was guilty of misconduct.

    Mecham’s specific issues back in 2001 were found to have been (a) “resolved” and (b) barred by laches. This is a very strange result though, because if laches applies, then by definition it should not be possible to “resolve” the case.

    Anyway,these results have little to do with my complaint, which is still pending.

    Cyrus Sanai (3b1f29)

  19. #18

    I just learned that the May 28, 2009 decision was not publicly released until yesterday, which is why it was being written up yesterday by the LA Times, though I have had a copy for months.

    Cyrus Sanai (3b1f29)

  20. Aaaaaaaaaaaaand there he is folks…

    The Douche-meister being his douchy self.

    He never fails to disappoint.

    Cyrus, don’t you have lawsuits to file about how fruit-loops don’t actually have fruit in them?

    Scott Jacobs (445f98)

  21. I think Cyrus just sits at his computer all day typing…

    cyrus sanai site:patterico.com

    …into Google.

    Too funny!

    h2u (dec0f9)

  22. There is Cyrus the Virus. Now we are just waiting on David Petranos Esp and MKDP. Good day.

    JD (b09d7d)

  23. I’m pretty sure that Mr and Mrs “Totally-Fucking-Nuts” are banned…

    Scott Jacobs (445f98)

  24. Interesting point, Cyrus. However, I don’t recall saying Kozinski was “cleared” as you claim. I believe I said the opinion had no specific finding of misconduct. You argued that the apology in context implied a finding of misconduct, and it appears the passage you cite here corroborates your argument. I’ll have to look at this later when I have more time. However, you should not mischaracterize my reporting.

    Patterico (f062ae)

  25. However, you should not mischaracterize my reporting.

    Hey now…

    Does Cyrus try and prevent YOUR only form of argument? Not fair to remove his… :)

    Scott Jacobs (445f98)

  26. That being brazen exaggeration, misrepresentation and hypocrisy?

    SPQR (26be8b)

  27. That is the funniest thing I’ve read this week and maybe even this year. Thanks, Bradley.

    DRJ (dff2ca)

  28. Brother Bradley – That was quite funny. But true slant is where that douchebag Barrett Brown posts his drivel, when he is not driveling his drivel whoring for attention at HuffPo, so I do not like clicking on their links. But since you recommended it, I did.

    JD (9a8a4b)

  29. #24

    You wrote that there was no finding of misconduct. Others used the words “cleared”, swallowing the words put out by Judge Kozinski’s attorney. Writing that there was “no finding of misconduct” is the same thing as saying he was cleared. If there is a distinction, I have no idea what it is and I look forward to you explaining it.

    I have not mischaracterized your reporting. I accurately lumped it in with the other apologists. You advanced the demonstrably false contention that Judge Kozinski was not found to have committed misconduct, when the opinion makes clear he admitted to misconduct. You thus did something you have correctly complained about in the Polanski matter–willfully misrepresented black-letter legal proceedings. What you have done is not only similar to the Polanski apologists, but also tracks the online “rants” (not my words but those of the Volokh Conspiracy), of your frequent commentator Beldar, who contended on your site and elsewhere that Judge Kent had never been found guilty of sexual assault in the first investigation by the Fifth Circuit and that any inquiry into his crimes was an outrage.

    In both your defense of Judge Kozinski and Beldar’s defense of Judge Kent, you two advanced the most strained reading of the Judicial Council opinions to argue that the respective judges were innocent, when they are in fact guilty of misconduct, and in Judge Kent’s case, is serving time for one of his crimes. To add to the misleading representations of what happened that you personally made, legal mavens like your “juryman” Scott Jacobs, whose sole area of expertise appears to be the XBOX, throw random insults since he can’t parse the language of a legal opinion. A fine group of jury members you have here.

    The bottom line for me–as I have no dog in the dispute over filtering or direct knowledge of what happened–is that the Judicial Conference decision affirms that the “dismissals” arising from Kozinski’s apologies don’t vitiate the findings of misconduct contained therein. In particular, it confirms that the conduct I was responsible for publicizing constituted judicial MISCONDUCT under the law, though Judge Kozinski’s admissions and apologies to the court resulted in dismissal of the his own complaint against himself on grounds of corrective action being taken (i.e. Judge Kozinski promising to keep his porn collection under his bed).

    To sum up then–you were wrong to state that there was no finding of misconduct in the Third Circuit’s disposition of Judge Kozinski’s complaint against himself. Clearly, you should amend your post to present the true facts; if you don’t, you are no different from Anne Applebaum, except acting as an apologist for a federal judge as opposed to a film director.

    Cyrus Sanai (3b1f29)

  30. Comment by Brother Bradley J. Fikes, C.O.R. — 10/28/2009 @ 1:58 pm

    Well, that certainly explains their apparent disconnect from reality – these folks are soaring so high they probably show up on anti-missile radar.

    AD - RtR/OS! (ce9c93)

  31. Cyrus doubles down on his misrepresentations, even purporting to redefine terms and dare one to contradict his redefinitions.

    Better yet, now an off-color joke in email is equivalent to raping a 13 year old.

    This is of course consistent with the lack of integrity we’ve noticed before.

    SPQR (26be8b)

  32. Cyrus Sanai, you poor misguided bastard, you sacrificed your Big-Law job and your credibility to pursue a vendetta against your father on behalf of your mother–that mushroomed into a vendetta against Kozinski, J., long with state court judges in California and Washington State, which vendetta resulted along the way in sanctions against you and professional discipline against your lawyer brother.

    You have become a predictable caricature of yourself—rushing to post on any subject Kozinski like a bull to red.

    What ever child abuse at the hand of your (allegedly) abusive physician father led you to this graceless state of abandon-of-all-reason (and your formerly first tier legal career)–enough already!

    You found some innocuous ribald files on a prominent federal judge’s private, albeit non-password protected, web server after hacking into same, then convinced the LAT to go big with that man-bites-dog story which (fortuitously)l came along while Kozinski was presiding over a pornography trial bearing no resemblance to the greeting-card humor you unearthed through your cyber-dumpster-diving (the criminal trial was against a producer of fetish videos featuring women degraded with, putting it mildly, poop).

    OK, Cyrus, you managed to embarrass a judge whom you bated into a public debate following your irrational assertions of judicial corruption and bias toward your crackpot legal theories in support of reopening your parent’s decades old, over and done with divorce case—which you ridiculously and frivolously sought to revive in federal court for God sake!

    Do you intend to play the clown-foil to every reasonable point of view for the rest of your life?

    Good lords, man—get a hold of yourself!

    Stephen G. (540991)

  33. Do you intend to play the clown-foil to every reasonable point of view for the rest of your life?

    That question was answered long ago …

    SPQR (26be8b)

  34. You and others contended that Kozinski had been cleared. That was false.

    I specifically considered using the term “cleared” and rejected it because it did not appear to me to be accurate. Here’s what I said:

    The good news for Judge Kozinski is that the panel does not find any ethical violation in his handling of the Isaacs case. Nor does the panel specifically find any ethical violation in his handling of sexually explicit material on his server — although the judge does come in for some criticism for carelessness and embarrassing the judiciary.

    The panel “admonishes” Kozinski for failing to take safeguards to prevent the sexually explicit material from being distributed publicly:

    We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.

    Don’t be misled: this “admonishment” is not a finding of judicial misconduct. If the panel had made a specific finding of judicial misconduct, you would have seen language like “reprimand” or “censure” in the opinion — options available under 28 U.S.C. §§ 354(a)–(b). That is not what the panel does. Rather, the panel has chosen to conclude the proceeding without a finding of misconduct:

    We determine that the Judge’s acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding.

    Somehow I don’t think Cyrus Sanai will be pleased. I’m sure we’ll hear from him in short order.

    And, of course, we did.

    To me, “cleared” implied that the panel had no problem with Kozinski’s action. That was clearly not true, given the admonishment and other disapproving language. However, I did not see a “specific” finding of misconduct in the opinion and I still don’t.

    So, when you claimed that I “contended” that Kozinski had been “cleared,” you mischaracterized my reporting. You need to apologize for your misstatement or you are no better than a lying defender of a child rapist!!!!1!11!

    Patterico (64318f)

  35. What you have done is not only similar to the Polanski apologists, but also tracks the online “rants” (not my words but those of the Volokh Conspiracy), of your frequent commentator Beldar, who contended on your site and elsewhere that Judge Kent had never been found guilty of sexual assault in the first investigation by the Fifth Circuit and that any inquiry into his crimes was an outrage.

    As before, you are lying about what Beldar argued.

    You’re smart enough to understand what Beldar argued, and so you’re smart enough to know you’re misrepresenting it.

    To me, that’s a lie.

    Patterico (64318f)

  36. Yes

    [note: fished from spam filter. --Stashiu]

    JD (d71a7a)

  37. It is what Cyrus does, Patterico. It is what he does.

    JD (15293c)

  38. JD,
    Yes, I know true/slant has a high bogosity quotient, including a journalism prof who thinks quoting from newspaper articles and referencing Al Gore is conclusive scientific evidence for man-caused global warming.

    I presented some contrary evidence in the comments calling for caution in making such sweeping conclusions, but don’t think he quite understood it.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  39. In the world of Cyrus Sanai, his opinions are facts. In the world the rest of us live in, we can tell the difference. Once again Cyrus beclowns himself by misrepresenting the positions of others. That is not a good character flaw for an officer of the court.

    daleyrocks (718861)

  40. A chief judge must not work for pay at anything other than the business of the court, unless he/she has finished all pending matters, first. I believe this is the standard for chief judges. And, if they moonlight while work is left incomplete on their desks, what happens to them, if anything?

    silversplinters (9aae28)


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