"When public life means the ransacking of people’s private lives even when they were in high school, we are circling a deeply illiberal drain."

Writes Andrew Sullivan in "Everyone Lost at the Ford-Kavanaugh Hearings" (New York Magazine).

A civilized society observes a distinction between public and private, and this distinction is integral to individual freedom. Such a distinction was anathema in old-school monarchies when the king could arbitrarily arrest, jail, or execute you at will, for private behavior or thoughts...The Iranian and Saudi governments — like the early modern monarchies — seek not only to control your body, but also to look into your soul. They know that everyone has a dark side, and this dark side can be exposed in order to destroy people....

The Founders... carved out a private space that was sacrosanct and a public space which insisted on a strict presumption of innocence, until a speedy and fair trial. Whether you were a good husband or son or wife or daughter, whether you had a temper, or could be cruel, or had various sexual fantasies, whether you were a believer, or a sinner: this kind of thing was rendered off-limits in the public world....

[In totalitarian societies], the private is always emphatically public, everything is political, and ideology trumps love, family, friendship or any refuge from the glare of the party and its public. Spies are everywhere, monitoring the slightest of offenses. Friends betray you, as do lovers. Family members denounce their own mothers and fathers and siblings and sons and daughters. The cause, which is usually a permanently revolutionary one, always matters more than any individual’s possible innocence. You are, in fact, always guilty before being proven innocent. You always have to prove a negative. And no offense at any point in your life is ever forgotten or off the table.

On the subject of family members denouncing each other, remember that ad we were just talking about, with 6 siblings telling people not to vote for their brother. "I couldn't be quiet any longer," one sister said with emotive intensity. I predict that the day is coming when a Supreme Court nominee's own children come forward and report random sexist microaggressions heard over the dinner table.

I remember long ago when I was a young law professor sitting next to a federal judge who wanted to tell me how to become a federal judge. (Weirdly, the Judge was Alex Kozinski.) I told him I didn't want to be a judge, because it's better to be a law professor: You have more freedom of speech and behavior — freedom to be an individual. You don't have to continually present yourself as sober and conventional for years and years and years. Who wants to live like that? But now, a quarter century later, the standard of how constrained you need to be is unfathomably strict. Who will be left to aspire to such a cold, lifeless prize? And we, the people, are the losers, because these Justices of the Future will have little to do with the rest of us fallible humans. How will they understand what is at stake?! Why would they value freedom of speech, when they let theirs go when they were 10?

I'm reminded of President Nixon's nomination of G. Harrold Carswell. There were a few reasons why this was a bad nomination, but what was so memorable about it was one Senator's effort to defend him against the charge that he was "mediocre":

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.

We don't need a mediocrity on the Court, of course. We don't want the representation of mediocrity, but we do want flesh and blood people, not nine abstemious, over-careful, controlled strivers who've excluded all daring and fun from their lives going back to the age of 10.

"Brett Kavanaugh said Monday he was a virgin in high school and college..."

The full Kavanaugh interview will air at 7 Eastern on Fox News.

And, I'm listening to Fox News now and hearing Brit Hume saying something very close to what I said this morning. I said:

The new allegations — from Avenatti and The New Yorker — are, I think, helping Kavanaugh's case.... After all the careful work creating credence and empathy for Christine Blasey Ford, we now have an onslaught, a piling on, and it's making Kavanaugh into a sort of hero, who must stand his ground. 

There was a problem when there was only Blasey's accusation, and it did seem that you'd need multiple accusations to take down Kavanaugh. Multiple accusations were needed to take down Weinstein, Matt Lauer, Charlie Rose, Alex Kozinski, etc. But this new material doesn't seem like more Blasey-like allegations, but something different and much more questionable and more noticeably unfair.

There's a real contrast to the carefully built up Blasey incident, and while the conflict with Blasey seemed to be too much of an unresolvable he said/she said, to say he said/she said was to elevate Blasey to equal status: her word against his. There was dignity in that, and Kavanaugh supporters were being circumspect and allowing that dramatic confrontation to unfold. Now, Kavanaugh antagonists have escalated the attack and seem willing — some of them, anyway — to use anything. I think more sober Kavanaugh antagonists — such as the NYT — rue this development.

ADDED: If the allegations are not true, Kavanaugh must stand his ground. If this effort to take him down works — if the allegations are not true — the same strategy will be used against the next nominee and the one after that. It will never end. If the allegations are true, he should have done something long ago. Either he should have have withdrawn, or he should have conceded his past wrongdoing, apologized sincerely, and said tactfully what he could to minimize the relevance of the incident to the question of his qualification to serve on the Court.

Judge Kozinski announces his retirement... effective immediately.

WaPo reports.

In a statement provided by his lawyer, Kozinski apologized, saying that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike,” and that “in doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent"....

Kozinski, 67, said although family and friends had urged him to stay on, “at least long enough to defend myself,” he “cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately"...

Sad but true. He could no longer be effective.

There are distinct limits to life tenure.

Political pressure really is a check on power.

It will be interesting to see what Kozinski does with himself now. Presumably, he will take his phenomenal writing and speaking talent and become an important voice in The Reckoning. He's freed from the burden of behaving like a judge at long last. Even as he pushed the limits on how a judge could speak, we can see that the limits were real, and that means that by setting aside the government power he once held, he gets a new power of freer speech, and I want to hear what he says.

Nevertheless, he persisted.

From "Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them" in The Washington Post:

Christine O.C. Miller, 73, a retired U.S. Court of Federal Claims judge, said that around early 1986 — shortly after Kozinski was appointed to his seat in the 9th Circuit — he invited her to attend a legal community function in the Baltimore area.

As the two drove back together, Miller said, Kozinski asked if she wanted to stop at a motel and have sex.

Miller, then in her early 40s and married, said she had considered Kozinski, who had served as chief of the Claims Court, “an ally and a professional friend” but harbored no romantic feelings for him.

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

Nevertheless, he persisted....

"[H]ow many of the men who were able to clerk for Judge Kozinski without having to worry about their own safety... concluded that their female colleagues fell behind because they just didn’t have what it takes..."

"... not because they had been effectively cut off from certain opportunities? I have heard countless people, over the years, conclude that women don’t occupy as many senior positions because they just don’t 'try as hard' as men, or have the 'ambition' to reach the highest-level jobs, or because they care too much about 'work-life balance.' Maybe sometimes. But these accusations should remind us that some doors that look like they’re open to everyone are really closed to some. And that the consequences of that reach far beyond the individual victims."

Writes Amanda Taub at "The #MeToo Moment: How One Harasser Can Rob a Generation of Women" (NYT).

"For 20 years, I’ve felt it was too early to speak up about Judge Alex Kozinski. Now I fear it’s too late."

"He Made Us All Victims and Accomplices," by Dahlia Lithwick (at Slate).

I have seen Judge Kozinski dozens of times in the past two decades, moderated his panels, sat next to him at high-powered, high-status events and dinners. My husband will tell you he once fielded a call from the judge to my home, in which Kozinski described himself as my “paramour.” I have, on every single such occasion, been aware that part of his open flouting of empathy or care around gender was a show of juvenile, formulaic bad-assery designed to co-opt you into the bargain. We all ended up colluding to pretend that this was all funny or benign, and that, since everyone knew about it, it must be OK. It never was....

But now it’s 2017....

You don't want to be thought of as a cog in a complicity machine.

Get out!

"I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career."

"They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge. I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say 'yes' without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason."

That's one of 4 proposals at the end of the compelling narrative written by Heidi Bond (AKA Courtney Milan), which is the background to "Prominent appeals court Judge Alex Kozinski accused of sexual misconduct" (Washington Post). I had not seen Bond's full statement when I wrote about the WaPo article 2 days ago, and if the link is in there, I'm still not seeing it. I got the link from Paul Campos at Lawyers, Guns, and Money, who begins "Heidi Bond’s account of her interactions with Alex Kozinski needs to be read in full...." I agree. Please read the whole thing. It made a very different impression on me than the WaPo article... and from the things Paul Campos goes on say.

Here's Campos:

It’s important to recognize that men like Kozinski — and there are obviously a lot of them in our society — are sadists. That is, they get off, metaphorically and no doubt literally, on being cruel to people who are relatively powerless. Power, sex, domination, hierarchy, cruelty — it’s all mixed up for these guys. They are bullies and perverts, and they are everywhere.

Before taking the time to read Bond's direct account, I was inclined to say that I agree with the generality about some men, but didn't think it was fair to conclude that Kozinski belonged in that category and that we should only be saying that he might and that we only know what Heidi Bond says happened and how it made her feel. It's some evidence, and even if we take it as true, we still need to make an inference to get to Kozinski's mental state. It seemed wrong and unfair for Campos to present that inference as a known fact.

But now I want to step back from a critique of the Campos rhetoric and direct you to Bond's excellent narrative. To encourage you to read Bond, let me extract the part that relates to her career path into writing romance novels:

"I know he brought you into his office to show you porn, I know he made sexual innuendos to you. I know this because you told me so in DC..."

"... and you even used the words sexual harassment. You said you would warn off other women thinking of clerking for him. And if there’s a woman out there he harassed worse than you, do you really want to be pitted against her? Because that’s what it would be. I’m worried that this is what he’s asking you to do — to be the female, intelligent face of his defense and make whoever it is accusing him look like a stupid slut, and then he hopefully never has to actually address those allegations."

Wrote "fellow romance novelist Eve Ortega" to Heidi Bond, who clerked for 9th Circuit Judge Alex Kozinski and "who went on to clerk for the Supreme Court and now works as a romance novelist writing under the name Courtney Milan," quoted in the WaPo article "Prominent appeals court Judge Alex Kozinski accused of sexual misconduct."

Bond is now saying that the judge "called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.... One set of images she remembered was of college-age students at a party where 'some people were inexplicably naked while everyone else was clothed.' Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman."

The "pornography" wasn't related to any legal case. I'm putting "pornography" in quotes because I don't think of photographs of a naked person as "pornography." Is this Renoir painting pornography?

It's bad — it's atrocious! — but it's not pornography. If I ask you whether you find those Renoir women sexually attractive, am I sexually harassing you? Is the workplace hostile if X lets you see that he's looking at a picture of a naked person and asks if you find that naked person sexually attractive? I mean, anybody can see from the vantage point of today that it's a bad idea to interact like that in the workplace, but I think a proportionate reaction would be to agree that we shouldn't be doing that and move forward.

A few personal footnotes:

1. I've met Judge Kozinski and like him, though I haven't seen him in a long time. I think he's more casual, freewheeling, and individualistic than most judges. In fact, what I remember most about talking to Judge Kozinski is that when he attempted to tell me how to become a federal judge, I said I didn't want to be a federal judge: it's better to be a law professor, precisely because you have more personal freedom and can express yourself in a less conventional, more individualistic style.

2. The only time I've ever watched actual pornography was in the chambers of the federal judge I was clerking for. A box of VCR tapes had been seized by the U.S. government en route to some man whose wife actually showed up in court to argue that those tapes were good for her relationship with her husband. So the videos needed to be watched to determine if they reached the level of "obscenity" within the meaning of First Amendment law. I have a vivid image of seeing "my" judge reading legal briefs next to a TV screen closeup of well-lit genitalia.

3. My idea of the meaning of "pornography" is grounded in the 1980s and early 90s when feminists set aside the concept of "obscenity" and spoke instead of "pornography," which they defined as "the graphic sexually explicit subordination of women through pictures and/or words." That idea for legislation had a lot of problems and never got very far, but the point is, it was an effort to get at the real problem of the subordination of women. I was a law professor when those things were happening and I wrote and taught about some of these subjects, and the ideas about subordination and inequality still affect what I think about claims relating to seeing pictures of people naked.

And...

Here's the Amazon page for Courtney Milan. People seem to like her books. I've never read any of them. I don't look at pornography and I don't read romance books. Just my personal preference. But I was amused by the biographical statement on that Amazon page:

Before she started writing historical romance, Courtney got a graduate degree in theoretical physical chemistry from UC Berkeley. After that, just to shake things up, she went to law school at the University of Michigan and graduated summa cum laude. Then she did a handful of clerkships with some really important people who are way too dignified to be named here. She was a law professor for a while. She now writes full-time.

I too was a law professor for a while and now write full-time. I'm impressed by her background and her career choices, including the earlier sloughing off the lawprof persona and recreating herself as a freely expressive writer.

ADDED: Here's an article from 2015 on Heidi Bond/Courtney Milan. This seems to be from the University of Michigan Law School, presenter her as a successful alumna. We're told that her romance novels, set in the 19th century, include details about "judges, lawyers, and courts as well as epidemiological studies and complex calculus."

“Everything that happens and everything that I learn or think or feel is fair game for ending up in a book,” she says. “All these things are tools that can be used.”...

Her encounters with Judge Kozinski are part of "everything that happens," and perhaps she has used that somewhere in her writing, which sounds high-level (and I'm not going to look down my at romance novels (to the extent that I'm an art snob, it's not about sticking to the high side of the high-art/low-art distinction)).

Bond/Milan also seems to have done very well financially:

In early 2014, Yahoo Finance ran a story featuring Bond among a handful of other writers with the headline: “These Romance Writers Ditched Their Publishers for E-Books-and Made Millions.”

“Some of the most exciting entrepreneurs in the U.S. today aren’t hoodie-wearing app developers,” the article says, “they’re women writing books for women and making millions in the process.” The article quotes Bond as one of the pioneering authors who decided to stop selling her books to mainstream publishers and instead launch her novels independently. The result yielded more control over what she was producing while successfully targeting e-book readers who wanted to buy digital copies of books often for less money and more frequently than traditional publishing could produce them....

Which judge made the sua sponte request for an en banc review of the 9th Circuit panel's decision in the Trump immigration case?

Power Line wants to know:

The Ninth Circuit per curiam opinion authorizing the continued injunction prohibiting enforcement of President Trump’s executive order is a farrago of nonsense. The court should be embarrassed by its decision. Indeed, it appears that at least one of the Ninth Circuit judges may actually be embarrassed by it.

The court filed an order this afternoon stating: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” In other words, no party moved for the rehearing; one of the court’s many judges did so on his own (i.e., sua sponte). I’m guessing it might be Judge Kozinski or Judge Bybee. I would love to hear from a knowledgeable court watcher on this point....

The Ninth Circuit is insanely liberal. Evidence of its insanity is all over the oral argument of the case and the opinion on which the vote for rehearing has been called. The Ninth Circuit gets a lot wrong in its 29-page opinion, but can it be rectified by this court? Not bloody likely....

Yes, but it keeps the subject in play and forces us to keep looking and taking different perspectives on it.

Even the New Yorker is conceding "The Vulnerabilities of the Ninth Circuit's Executive-Order Opinion." It's a modest little piece by Jeffrey Toobin, but the important thing is that it exists at all. For the "farrago of nonsense" take, we'll have to look elsewhere.

("Farrago" is a great word. It just means a medley, mixture, hotchpotch.)

Judge Alex Kozinski says the guillotine would be better than the lethal injection, but the firing squad is "the most promising."

Dissenting today from the denial of rehearing en banc in the lethal injection secrecy case of Joseph Wood:

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful... But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf. 

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

Via The Guardian.

Judge Alex Kozinski, dissenting in a decision that upheld the ban on political and commercial advertising on public TV and radio stations.

"... I would set public television and radio free to pursue its public mission to its full potential. We'd all be better off for it."

The 11-judge panel of the 9th Circuit rejected arguments that were based on the First Amendment free speech guarantee.

Who was first to say that it's good if a judge "keeps easy cases easy"?

We're very familiar with the old expression "Hard cases make bad law," from which one can infer that easy cases make good law and, perhaps, an idea that judges should make an effort to keep easy cases easy.

In today's case about drug-sniffing dogs, Justice Scalia said that using a property-rights analysis (rather than discussing the expectation of privacy) "keeps easy cases easy." Justice Kagan picked up the phrase in her concurring opinion to say that using both forms of analysis "would make an 'easy cas[e] easy' twice over."

Should we credit Justice Scalia with the new aphorism "kee[p] easy cases easy"? (Note that I'm using the Kagan approach to brackets as I drop the s on "keeps.")

The only near example I found in the state and federal courts database was Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), in which Judge Alex Kozinski said that something "illustrates that easy cases are easy, however one analyzes them." But that's not the same as proclaiming it a virtue to keep easy cases easy, so I give the aphorism to Justice Scalia.

By the way, Scalia loves to talk about easy cases. For example, last fall:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

Sometimes when one lawyer says a case is easy, you want to say — as I once heard Professor Henry Monaghan say — "Yes, but which way is it easy?"

"When a prosecutor loses a criminal case in America, there are no remedies."

"It's gone. It's dead as a doornail. If they try the case badly and they lose, it's double jeopardy — you heard of it? So there are no post-trial motions, it's gone. Why? Because we had a rookie prosecutor, and if he had done a better job... Too bad, it's gone. Can you then go ahead and sue the DA and say, 'Boy you should have put your ace prosecutor on there'?"

Does the Stolen Valor Act violate free speech rights?

The Supreme Court has decided to answer that question in the case involving Xavier Alvarez, who was prosecuted for claiming — while running for office — that he'd won the Medal of Honor. The 9th Circuit overturned the conviction on First Amendment grounds.

Chief Judge Alex Kozinski... said people often tell lies about themselves in day-to-day social interactions. He said it would be "terrifying" if people could be prosecuted for merely telling lies....

"Saints may always tell the truth, but for mortals living means lying."

Said the judge:

"Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes," wrote Chief Judge Alex Kozinski, concurring with the federal appeals panel's denial of the government's request for an en banc hearing of the case. "Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as 'rational basis review.'"

Faced with a criminal indictment, Xavier Alvarez pleaded guilty to violating the Stolen Valor Act by telling his colleagues on a water district board in Los Angeles that he had been in the Marines for 25 years and had been awarded the Medal of Honor in 1987.

Judge Kozinski to federal prosecutors: "This is not the way criminal law is supposed to work."

"Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction—including disenfranchisement, incarceration and even deportation—but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society.... When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted."

"The concept of depicting a young, fashion-forward female with exaggerated features, including an oversized head and feet, is... unoriginal as well as an unprotectable idea."

Writes 9th Circuit Judge Alex Kozinski, giving the victory to Bratz over Barbie.

Mattel argues that the sculpt was entitled to broad protection because there are many ways one can depict an exaggerated human figure. It’s true that there’s a broad range of expression for bodies with exaggerated features: One could make a fashion doll with a large nose instead of a small one, or a potbelly instead of a narrow waist. But there’s not a big market for fashion dolls that look like Patty and Selma Bouvier. Little girls buy fashion dolls with idealized proportions —which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature. But these features can be exaggerated only so much: Make the head too large or the waist too small and the doll becomes freakish, not idealized.

(PDF of opinion here. Short news article here.)

Have Patty and Selma Bouvier ever been mentioned in a court case before?

"Those offended by Kehowski's ideas should engage him in debate or hit the 'delete' button' when they receive his e-mails."

"They may not invoke the power of the government to shut him up."

We need cameras in the courtroom, because of the "long, slow decline of the newspaper industry" and the rise of "pseudo-journalist."

Says Judge Kozinski.

"[I]nvasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes."

"No other circuit allows entry into the home on less than reasonable suspicion," writes 9th Circuit Chief Judge Alex Kozinski, in United States v. Lemus (PDF)

Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it.

... There was absolutely no reason for the detectives to enter [Lemus's house] except to try to find contraband in "plain view." So, the detectives went in and, while there, Diaz thought he saw "something sticking out from the couch" that "looked like the butt of a weapon." Longoria then lifted the couch cushion "to make sure" and found a gun. Under what theory of "plain view" may police lift cushions off a couch to make sure something is contraband? Why weren't the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?