The Third Circuit Court of Appeals has issued its decision (.pdf) in the ethics complaint against Ninth Circuit Chief Judge Alex Kozinski.

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.

The panel says that “the Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent.” This seems fair. Nobody ever said it was prudent. As the judges note: “Some of the content of the stuff subdirectory — the sexually explicit material — is undoubtedly offensive to many.” This is true, as the judge himself has acknowledged. However, the material was kept for its humor or novelty value — something media reports from the L.A. Times failed to make clear at the time. See my posts for some examples.

The panel also makes it clear that the media did not take care to portray the matter accurately:

Some media reports in June 2008 suggested that the Judge maintained, and intended to maintain, a public website, as that term is commonly understood — a presentation of offensive sexually explicit material open for public browsing. This investigation has established, however, that such a characterization is incorrect. As explained in further detail, the computer files described in media reports in June 2008 constituted a small fraction of a vast aggregation of various items that the Judge had received by e-mail over many years and had retained in a folder, or “subdirectory,” on a personal computer in his home, which had been connected to the Internet using web server software.

Through a combination of improper security configuration and carelessness on the part of the Judge, the aggregation of retained files became accessible to the public.

It has always been quite clear to anyone following this controversy that Chief Judge Kozinski never intended that the general public be able to rummage through the contents of his server. This was not clear in the headline to the original L.A. Times article, which was titled 9th Circuit’s chief judge posted sexually explicit matter on his website.

This seems an appropriate resolution to the matter.

More at Above the Law and How Appealing.

[Guest post by DRJ]

ABC News reports the Supreme Court ruled today that the white New Haven firefighters were unfairly denied promotions because of their race, reversing an appellate decision by Supreme Court nominee Sonia Sotomayor. The firefighters’ attorney believes the case will have a significant impact on jobs that require an occupational test:

“I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups, or act to achieve racial quotas,” said Karen Torre, the attorney for the firefighters. “If the test is job-related, especially in a dangerous occupation, then the fact that more African Americans pass, or more Hispanics pass, or more whites pass, isn’t sufficient grounds to ignore the results of an occupational test.”

The decision split 5-4 along ideological grounds. ScotusBlog has links to the opinion, concurrences, and dissent.

Ilya Shapiro @ Cato notes that Ginsburg’s dissent talks of her sympathy for the white firefighters, which is reminiscent of the empathy Barack Obama says he wants in his judicial nominees. Here is Justice Alito’s response (at p. 54):

“The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”

I agree with Shapiro and Justice Alito: Americans deserve equal protection, not empathy.

– DRJ

[Guest post by DRJ]

ScotusBlog has a neat visual representation of the 2008 Term Supreme Court decisions sorted by case. Among other things, it illustrates how often Justice Kennedy is the crucial 5th vote in the majority — and some might even say the heart — of the Court.

– DRJ

[Guest post by DRJ]

Monday will see the spotlight return to Obama’s Supreme Court nomination of Sonia Sotomayor after Chief Justice John Roberts’ announcement that the Court will issue opinions in the last 3 cases on this year’s docket. One of those cases is the New Haven firefighter case decided by Sotomayor and 2 other Second Circuit judges:

“Sonia Sotomayor, nominated to take Souter’s place, was one of three appeals court judges who ruled that officials in New Haven, Conn., acted properly in throwing out firefighters’ promotions exams because of racially skewed results.

The city says it decided not to use the test scores to determine promotions because it might have been vulnerable to claims the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s prohibition on intentional discrimination.”

If the Supreme Court reverses the New Haven case as some expect, it will undoubtedly be the subject of many questions during Sotomayor’s Senate nomination hearings. It will also mean the plaintiff firefighters will have a chance to to prove their claims at trial.

– DRJ

UPDATE BY PATTERICO: I strongly predict a reversal and think it will be an issue in Sotomayor’s hearings, as it should be.

[Guest post by DRJ]

With Justice Thomas dissenting, the Supreme Court decided today a Texas case that could have eliminated the preclearance requirement under the Voting Rights Act. Instead, the Court narrowly ruled that a Texas municipal water district may be eligible to avoid preclearance under a bailout provision:

“The court, with only one justice in dissent, avoided the major questions raised over the federal government’s most powerful tool to prevent discriminatory voting changes since the mid-1960s.

The law requires all or parts of 16 states, mainly in the South, with a history of discrimination in voting to get approval in advance of making changes in the way elections are conducted.

The court said that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, can apply to opt out of the advance approval requirement, reversing a lower federal court that found it could not. The district would appear to meet the requirements to bail out, although the court did not pass judgment today on that point.”

I blogged on this case earlier here and (tangentially) here.

Justice Ruth Bader Ginsburg recently described this case as “perhaps the most important case of the term,” while one of the NAACP lawyers who opposed eliminating the preclearance requirement said, “The fact is, the case was filed to tear the heart out of the preclearance provision of the Voting Rights Act and that effort failed today.”

Is it fair to say the residents of these 16 states remain second-class citizens? It feels like it.

UPDATE 6/24/2009: Here’s an excellent Texas Observer article written in May 2009 after oral arguments that provides an overview of this case and its issues. The author also foretold the eventual decision to let MUD use the bailout provision, describing that result as the “best-case scenario for supporters of the act.”

– DRJ

[Guest post by DRJ]

Supreme Court Justice Ruth Bader Ginsburg has entered an order staying the Chrysler sale to Fiat “pending further order.” This appears to be a short-term hold, perhaps to give Justice Ginsburg and the Court more time to consider the law and pleadings.

– DRJ

[Guest post by DRJ]

A lot has been written about Sonia Sotomayor’s nomination as a Supreme Court Justice. Here are my two cents.

There are many viewpoints regarding what kind of legal training and experience a Supreme Court Justice should have but, in modern times, virtually all Supreme Court nominees have graduated from law school, are licensed attorneys, and have commendable experience as lawyers, teachers or judges. Thus, for all their differences – in geography, education, and experience – modern nominees are more alike than different when it comes to legal ability.

Furthermore, where there has been controversy about a nominee’s legal ability, it has largely come from intra-Party debates. Thus, conservatives challenged Harriet Miers’ legal skills, and liberals debate whether other candidates — like Judge Diane Wood or Solicitor General Elena Kagan — are more qualified than Sotomayor.

Democrats won the last Presidential election so instead of complaining about Sotomayor’s legal ability — something that will not impress a Democratic Congress or many Americans – Republican leaders should acknowledge Sotomayor has the legal ability to serve as a Supreme Court Justice and on that basis she should be confirmed.

At the same time, Republicans should highlight the different personal qualities Democrats and Republicans look for in judicial nominees. Barack Obama picked Sotomayor for two personal qualities: Because she’s a Latina and because she brings empathy to her decisions. Apparently the traditional legal quality of impartiality wasn’t a factor, and even Sotomayor acknowledges impartiality is overrated:

“The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

Unlike Obama and many Democrats, Republicans should clearly state that impartiality is more important than a nominee’s empathy or race.

Admittedly, I don’t know if this is a winning strategy. Americans just elected their first black President who is adept at connecting emotionally with people. It may be that empathy and race are the qualities today’s Americans look for in a leader or a judge. But I think most Americans realize a judge should be impartial and rule according to the law, not swayed by empathy or race. I hope Republicans will lay the groundwork that makes this difference clear now and will remind voters in future Presidential elections.

– DRJ

[Guest post by DRJ]

The Obama Justice Department has rejected Georgia’s voter ID system that requires voters provide Social Security numbers and driver’s license data in order to vote. The rejection letter cites the law’s disproportionate impact on “African-American, Asian and/or Hispanic voters” that burdens their right to vote.

The rejection resulted from a requirement that Georgia obtain “preclearance” of voting changes under the Voting Rights Act of 1965. Georgia and 16 predominantly Southern states, including Texas, are required to get “federal approval before changing election rules because of a history of discriminatory Jim Crow-era voting practices.” Section 5 of the Voting Rights Act of 1965 requires that the local government prove to federal authorities that the voting change is not discriminatory and will not adversely affect minorities.

The Georgia rejection may illustrate why a tiny Texas case brought by the Northwest Austin Municipal Utility District No. 1 — a case that was argued before the Supreme Court on April 29, 2009 — could have a big impact on the law:

“Texas is one of the states that is still subject to Section 5 of the Voting Rights Act. Thus, when the Northwest Austin Municipal Utility District No. 1 (”MUD”) serving 3,500 residents wanted to change a polling place from a garage to a school, it was required to get preclearance from the DOJ. “It took two months and cost $1,250 in legal fees.”

MUD sued the federal government claiming the Section 5 preclearance requirement is no longer necessary.”

As I understand it, the lawsuit will not affect the obligations under the Voting Rights Act but it could change the burden of proof under Section 5. Specifically, instead of a local government having to prove that the proposed change does not discriminate in order to obtain preclearance, it could eliminate preclearance and thus reverse the burden by requiring that any plaintiff(s) prove a voting change has a discriminatory effect.

– DRJ

[Guest post by DRJ]

Republicans are concerned about Supreme Court nominee Sonia Sotomayor, in part because of her statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Nevertheless, Barack Obama has called on Congress to treat her fairly:

“What I hope is that we can avoid the political posturing and ideological brinksmanship that has bogged down this process, and Congress, in the past.”

This from the “first President in U.S. history to have voted to filibuster a Supreme Court nominee.” Perhaps Obama learned about “political posturing and ideological brinksmanship” from Joe Biden who, as recently as last October, proclaimed how proud he was to have “led the fight against Judge Bork” and effectively invent the political “Borking” of a Supreme Court nominee.

– DRJ

[Guest post by Jack Dunphy]

The L.A. Unified School District has proposed laying off 2,300 teachers in an effort to close a $400 million budget shortfall. At some high schools in Los Angeles, students have engaged in impromptu walkouts and demonstrations at the District’s downtown headquarters. A watch commander at one LAPD station proposed to deal with the problem by citing the demonstrating students for truancy, as is ordinarily done when officers encounter students who have skipped school without authorization. The watch commander sought guidance from his captain, who in turn sought guidance from his deputy chief. The answer handed down should be no surprise to anyone who follows the LAPD: No enforcement action is to be taken against students who take it upon themselves to leave school and engage in the protests.

This reluctance to enforce the law fits neatly into the pattern displayed as recently as Tuesday night, when hundreds of LAPD officers were dispatched to Hollywood, where supporters of homosexual marriage were demonstrating against the California Supreme Court’s decision upholding Proposition 8. But what did those hundreds of officers do when they got to Hollywood? Did they enforce the law by ushering the illegal marchers out of the streets and allowing the thousands of inconvenienced commuters to proceed on their way? Of course not. That might have led to bad press, which we must avoid at all costs. Better to let the law be flouted than to enforce it at the risk of someone being offended. It was essentially a repeat performance of what occurred last November, when Proposition 8 was approved by the voters, and LAPD officers stood by while protesters clogged the streets. (I discussed it here, on Pajamas Media.) I would conjecture that if the protesters were instead speaking out against illegal immigration, abortion, or any the Left’s other sacred cows, the LAPD’s stance would be quite different.

By the way, if the police won’t be allowed to order students back to school, perhaps someone should encourage the student pictured above to spend more time studying and less time demonstrating. At least he spelled “students” correctly.

–Jack Dunphy

The L.A. Times today says of Supreme Court nominee Sonia Sotomayor:

Later, in a 2005 speech, she suggested that the federal appeals courts “is where policy is made” — although she quickly suggested she was joking.

I call B.S. on that characterization, and invite you to watch the (very short) clip to judge for yourself:

Here’s my transcript:

All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know this is on tape and I should never say that, because we don’t make law. I know. OK, I know. I know. I’m not, I’m not promoting it and I’m not advocating it. I’m, you know. OK. Um. [Laughs]

She’s not saying she was joking; she is actually saying: OK, I just realized that the truthful statement I just uttered is something I’m not supposed to say.

As I noted in an update to my initial post on this quote, when it’s understood in its proper context, it’s not quite as bad as it sounds. She was distinguishing between the role of district courts (which by and large don’t worry about the policy implications of their rulings) and that of appellate courts (which have to worry about how the principles they enunciate will apply to future cases). She worded the concept especially badly — something she quickly recognized. But that’s not the same as saying she was joking. She just said it really, really badly.

But I’m pretty sure that precision in speech is not a necessary attribute for a Supreme Court justice. Not when you consider the importance of empathy and group representation.

P.S. If there’s a silver living, it’s this: she appears to be OK on criminal law issues.

I am going to predict that Sonia Sotomayor will be Obama’s nominee to replace Souter. Conventional wisdom is that he “has” to pick a woman. He won the 2008 election on the strength of the Latino vote in the West, and no doubt feels that it will shore up his standing among Latinos to appoint the first Latina to the High Court. Sure, it would be a grander gesture closer to the next election . . . but who knows if he’ll get another chance?

With that in mind, savor this clip of Judge Sotomayor saying that “Court of Appeals is where policy is made” — followed by a quick “D’oh!” moment as she realizes she’s on tape, at which point she backtracks in a rather lame and insincere fashion:

Whoever it is will be liberal and will be confirmed. Still, I think it would be educational and enjoyable to watch a Senator confront her with this clip in televised nationwide hearings.

Until then, you can enjoy this: an article about her shortcomings, in which one of her supporters says: “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?”

Hooray.

UPDATE: Orin Kerr has a link to the entire video, which he says places the comment in context, as distinguishing the roles of district courts (which decide individual cases) and courts of appeals (which must consider the wider impact that their ruling will have on other cases). This explanation mitigates the damage slightly, but I think it’s a poorly phrased comment at best.