"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?

Kozinski...

... admonished.

Alex Kozinski: ""Supreme court Justices are not bound by anything."

"You can never really tell how someone is going to be until they get into that position. There's a certain freedom that comes with being a Supreme Court justice that is like nothing else."

This is true. We are talking about highly ambitious individuals, who must win great favor if they are to make that last leap to the top of their profession. Who can know what they will do once they've snagged that spot? Their interests suddenly shift.

The L.A. Times goes after 9th Circuit Judge Alex Kozinski again.

Click the "Kozinski" tag if you don't remember the previous controversy. Now, the same reporter, Scott Glover, has a story about an email list run by Kozinski -- joined by accepting his invitation -- that sent out various humor items:

On the gag list, Kozinski periodically distributed jokes to a group of friends and associates, including his law clerks, colleagues on the federal bench, prominent attorneys and journalists. The jokes he sent ranged from silly to politically oriented to raunchy....

Do Kozinski's actions indicate a lack of judgment or are they merely the harmless expression of a free-spirited man who happens to be a highly regarded judge?

Patterico is not amused: Who cares what humor someone sends around to a willing group of friends? "To some, jokes like this are funny. To others, they’re annoying and tasteless... [I]t’s just not something that merits coverage in a newspaper," he says.

But wait. If the email went around to a lot of judges and it is truly offensive, I care! What if most or all of the recipients were men and much of the humor was demeaning to women? That would matter. What if it was full of racial and religious stereotypes? That would matter. You know people by what they think is funny. If there is insight to be had into the minds of judges, I want it! These people are trusted with immense power, and the federal judges have life tenure. Don't coddle them.

Now, let's go back to Glover's article and see whether he's found the kind of humor that I say matters:

The Times was given 13 jokes by three sources that were circulated on the gag list between 2003 and 2008.

One joke sent last spring poked fun at the Taliban, stating, "You may be a Taliban if ..." any of the following 12 statements are true. Among the statements: "You own a $3,000 machine gun and $5,000 rocket launcher, but you can't afford shoes" and "You wipe your butt with your bare left hand, but consider bacon 'unclean.' "...

The most graphic joke was set up as a three-page letter ostensibly written by a man to his estranged wife. The man sarcastically tells his wife that he still loves and misses her while at the same time detailing his recent sexual escapades with a young student, a single mother and his wife's younger sister. The single mom, the man says, acts like "a real woman . . . [who is] not hung up about God and her career and whether the kids can hear us."

Does this rise to the level that I've said matters? No.

But does that mean that the L.A. Times was wrong to publish this article? I'd say no to that too. I don't think it's important to publish this article. If federal judges were circulating racist jokes, it would be wrong to suppress it to protect these elite and insulated individuals. But that doesn't mean that it's wrong to share this insight into judicial minds. There was no prying into their private lives, no stalking or trickery.

Patterico places great emphasis on the fact that list membership was voluntary. There are 2 reasons why this doesn't make it all okay. The first I've already stated. The minds of judges affect the public, so it's good to have evidence of what those minds are really like. Just as I want news reports of things politicians accidentally say into a live microphone when they think they are speaking privately, I want to know what judges find funny when they talk -- or email -- amongst themselves.

The second reason appears in Glover's article:

Laurie Levenson, a professor at Loyola Law School and former federal prosecutor in Los Angeles, was skeptical that those who found jokes on the list offensive would necessarily complain, given Kozinski's commanding stature in the legal community.

"If you're ambitious, he's the last person you want to offend," she said.

It's just too hard to say no and, having said yes, to say take me off your list.

***

And, by the way, didn't sending jokes around to all your friends become completely uncool more than a decade ago? Why didn't Kozinski realize he was spamming everybody?

"'Sometimes funny has a sexual character.' Sometimes? Nearly always, according to Sigmund Freud."

"The whole point of humor, Freud thought, is to get around our inhibitions."

Jim Holt — author "Stop Me If You've Heard This: A History and Philosophy of Jokes" — reacts to the story of Judge Alex Kozinski, his personal (but on-line) porn, and his wife's defense of it ("Alex is not into porn — he is into funny — and sometimes funny has a sexual character.")

The very ability to enjoy such humor means that you must be investing a good deal of energy in keeping your animal side in check. You are at least trying to be civilized. A dirty joke is an uprising against the bourgeois morality that enslaves most of us most of the time (and a good thing too). We can rejoice in its defeat only because that defeat is brief and inconsequential. In fact, our laughter itself brings the little uprising to an end. As most of us have discovered, laughter's a pretty strong anti-aphrodisiac.

Holt goes on to discuss sex humor in ancient Greece and Rome, the Renaissance, and Shakespeare. (For some reason, there are were no paragraph breaks in his longish column, so you'll have to overcome your resistance to reading a long block of text.)

He quotes George Orwell:

"The modern emphasis on what is called 'clean fun' is really the symptom of a general unwillingness to touch upon any serious or controversial subject."

So should we be suspicious of people who don't laugh at sexual humor?

There are two other classic theories of humor in competition with his. One of them is the "superiority theory," propounded in various forms by Plato, Thomas Hobbes and Henri Bergson, which says that laughter is a way of crowing victoriously over the humiliation of others. This theory works well at explaining the appeal of ethnic and racial jokes, of jokes about gays and drunkards and henpecked husbands and lawyers and women ("Why do women wear perfume and makeup?" goes a classic of this genre. "Because they're smelly and ugly.") The superiority theory sees mockery, hostility and aggression at the root of all humor. Morally speaking, it puts sexual humor in a pretty bad light, making it tantamount to verbal rape.

"Verbal rape" sounds bad, but don't forget that comedians love to say "I killed" when they made people laugh. So that would be verbal murder.

I think some mockery, hostility and (verbal) aggression is a good thing. And it's funny. The real question is who are your targets? In other words, what ideas are you expressing? You deserve to be judged for that, not the mocking aggression per se. Judged... and then, perhaps, let off the hook. Because you were joking.

The other time-honored view of humor has a rather sweeter flavor, and a more intellectual one. It is the "incongruity theory," versions of which were held by Blaise Pascal, Immanuel Kant and Arthur Schopenhauer, which says that we laugh when the decorous suddenly dissolves into the absurd..... One of the images on the Kozinski website that the judge said he planned to delete -- it was "degrading," he said, "and just gross" -- was a depiction of women as cows. That's pure superiority theory, and as obscene as it is banal. But take this joke, reputedly a favorite of George H.W. Bush: "How do you titillate an ocelot? You oscillate its tits a lot." Ostensibly, it falls into the category of raunch, with its use of the not-ready-for-prime-time word for breasts and its winking allusion to bestiality. But it is essentially sheer nonsense, a sonic jeu d'esprit.

That reminds me, nobody supplied the comic answer to the George Carlin question I typed up for you last night (when I was watching hours of the HBO Carlin marathon). Carlin has a nice mix of wordplay and sex, and sometimes it's very funny just because the expected wordplay isn't there at all and it's just flatly sexual. But that the dissolution into the absurd that Blaise, Manny, and Artie were talking about, right?

"It may be that the blue noses will bring him down or knock him out of contention for the high court..."

"... but if so, it would be a loss for the judiciary."

A New York Sun editorial about Alex Kozinski.

"That's nothing. Have you ever seen the stuff on Justice Scalia's website?"

The Onion picks up the Kozinski story.

(Via Above the Law.)

Alex Kozinski's wife (Marcy Tiffany) explains it all.

In a long, very carefully written email to the Patterico blog.

First, what do we think of this use of one's wife to run interference for you in matters sexual? For me, it's a little too:



But let's look at some text excerpts:

[T]he LA Times story, authored by Scott Glover, is riddled with half-truths, gross mischaracterizations and outright lies. One significant mischaracterization is that Alex was maintaining some kind of “website” to which he posted pornographic material.

Obviously, Glover’s use of the word “website” was intended to convey a false image of a carefully designed and maintained graphical interface, with text, pictures, sound and hyperlinks, such as businesses maintain or that individuals can set up on Facebook, rather than a bunch of random files located in one of many folders stored on our family’s file server. The “server” is actually just another home computer that sits next to my desk in our home office, and that we use to store files, perform back-ups, and route the Internet to the family network. It has no graphical interface, but if you know the precise location of a file, you can access it either from one of the home computers or remotely.

Now, it is a website, though, isn't it? Tiffany avoids saying that Glover falsely identified Kozinski's site on the web as a website. She can only assert that that he meant for readers to picture something more elaborate and accessible than it was.

As to how [the tipster Cyrus] Sanai accessed our server and was able to rummage through our personal files, frankly we are still trying figure it out. Apparently, if a person is able to find a link to an item in the “stuff” file, and he knows what he is doing, it is possible for him to reverse engineer his way into other items stored in that file without our knowledge or consent.

But wait! Kozinski himself welcomed visitors when he promoted himself in the "Judicial Hotties" contest run on the conspicuous blog Underneath Their Robes and provided links to his server. And what is this "reverse engineering"? Clicking around within a site?

A newspaper – especially a major newspaper as the Los Angeles Times purports to be – is supposed to be a responsible member of the community, not a predator. If the presence of certain files on a judge’s computer is a truly a newsworthy matter, it would have been so months earlier, before Alex was assigned [the Isaacs] trial, and certainly a few days earlier, before a jury had been chosen and the trial had commenced. But what excuse is there for timing the story with surgical precision so as to do maximum damage to the judicial process? In doing so, the LA Times caused the effort of the court, the parties and the 150 citizens who answered the call of duty by reporting for jury service from near and far to go to waste, just to make a big splash. This strikes me as worse than irresponsible.

I certainly agree with that and with much other material in the letter. The LA Times shouldn't have published the idiotic attack, and Kozinski did nothing wrong.

Kozinski recuses himself.

In the obscenity trial.

"In light of the public controversy surrounding my involvement in this case, I have concluded that there is a manifest necessity to declare a mistrial."

And he's asked for an investigation of himself.

I read this all as taking a stand for free speech.

"This was a private file server, like a private room, hacked by a litigant with a vendetta."

Lessig thinks that accessing Judge Kozinski's on-line porn stash was an invasion of privacy "perfectly" analogous to entering his house through a badly locked window and looking through his belongings:

The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect....

In the comments, after a challenge — "I'm sorry, but there's no way that typing a URL into a web browser is analogous to jiggling a lock for 30 seconds" — Lessig backs away from the idea that the analogy is perfect:

I don't accept that this is a "public place" just because the public can easily get to it. But I'm also not arguing that someone should be treated as a trespasser because he or she wanders through a directory structure. My only point is that it was plain beyond doubt that this was not intended as a public place where anyone was invited to come and browse. Norms of privacy should therefore apply.

Another commenter — James Nightshade — pushes back:

Robots.txt is a voluntary access control mechanism, but it does not prevent resources from being "on the Web" in any sense. The document describing the robots.txt standard refers specifically to web robots. Robots.txt was not intended to apply to interactive web browsers. It is roughly analogous to a sign one might find beside a residential street: "No trucks except for deliveries." The street is still a part of the road network, even if some vehicles are asked not to visit.

Another example is the form I'm typing this into. It has an accompanying CAPTCHA form to identify robotic spam submissions. Blocking these robots doesn't effectively take the submission form off the Web. If one wants to avoid public access to a Web resource, there are access control mechanisms which can do that. Passwords are one example; robots.txt is not an example.

I'm not buying the analogy, but I get it that Lessig is trying to promote privacy on the web. Or not on the web. Whatever. I have a lot of trouble seeing what the "disgruntled litigant" did as "hacking" or trespassing.

Seems to me, when you're on line, you can poke around as much as you want and look at anything you can click to. Isn't that what most of us think? That's how we behave on line. In the physical world, we know we can't just go anywhere we can physically get to. Forget badly locked window. We won't even pull open an unlocked screen door to a house. I was going to say a "private building," which assumed the answer to the question about privacy, but that ordinary usage — public/building — shows that we have a deeply embedded expectation about privacy.

But Lessig's idea about privacy on the web is something I'd never even heard of. Lessig, of course, knows that. He prefaces his analogy with: "Cyberspace is weird and obscure to many people. So let's translate all this a bit." Are we just at the beginning of forming our expectations of privacy on line, or have we already decided we are free to look wherever we can go?

IN THE COMMENTS: MCG notes: "Alex Kozinski provided public links into his "stuff/" directory in the past." He points to this email Kozinski sent for publication on a high-profile blog. Kozinski thus eagerly invited the whole world into his back pages.

"I think it's odd and interesting. It's part of life."

Comments?

ADDED: Bainbridge asks some questions that indicate that he finds this rather funny. I don't. But I have to agree with some of these questions:

Who stashes their porn on the internet? Other than porn stars?

Kozinski long has been regarded as one of the smartest guys on the federal bench. Do we need to rethink that?

IN THE COMMENTS: Simon says:

One would think that so notoriously tech-savvy a judge would be more conversant with the technology - and more careful.

One could deduce that he wanted to be caught ... or got a thrill from risking getting caught. You know, it might be tiresome for a certain sort of person to be a judge. There you are, for life. Well set up, but restricted, restrained, forced to be sober — forbidden to be fully expressive. Oddly, I had a conversation with Alex Kozinski about exactly this subject 20 years ago. Kozinski was only 35 years old when he was appointed, and that was 23 years ago.

ADDED: Patterico says he has the images referred to in the linked article, obtained from the L.A. Times reporter. If you go here, you will be able to read detailed descriptions and click on links to see the images. I clicked on all the links except the one that would have required watching a video. I wonder why the L.A. Times published this article. Why humiliate this man? (I am reminded of this story of unnecessary humiliation from a couple months ago.) What made it news? Is the porn collection of every public figure newsworthy? Or is it special treatment for conservative judges? (I'm thinking of this precedent.)

These are pictures of naked people, all of them funny or interesting in some way, and there is absolutely nothing wrong with wanting to look at them and to show them to other adults. The photograph of the women painted as cows is just silly — nothing to be horrified by. Yes, you can see genitalia in these pictures. It's extremely common to want to look at genitalia. It doesn't do anything for me, but I understand the strong interest many men have in such views — repetitive and predictable though they are. (The transvestite slide show is a little unpredictable, but within an utterly predictable range.)

Now, it should be noted that Kozinski is currently serving as the trial judge in an obscenity case, so there is a special motivation here. One might object to the prosecution of Ira Isaacs. Maybe the government shouldn't be prosecuting such cases, and one might think that it is hypocritical or at least relevant that the judge in the case has his own pornography. I think that is absurd. The judge doesn't make the decision to prosecute, and the sort of material at issue in an obscenity case is quite extreme — far beyond the sort of pictures that we ought to assume many judges and jurors possess.

[Kozinski's] involvement in the case may be a stroke of luck for Isaacs. That is because Kozinski is seen as a staunch defender of free speech. When he learned that there were filters banning pornography and other materials from computers in the appeals court's Pasadena offices, he led a successful effort to have the filters removed....

Isaacs said he would testify as his own expert witness at trial and planned to lecture jurors on how perceptions of art have changed over the years. There was a time, he said, when the works of authors James Joyce and D.H. Lawrence were called obscene.

The point, Isaacs said, "is do we really want to throw artists in jail in America?"...

[The Obscenity Prosecution Task Force] has won convictions in more than a dozen cases, the vast majority resulting from plea bargains....

[Isaacs] said that prosecutors have made several overtures inviting him to take a plea in the case, but that he has refused every time....

"If I get convicted and go to prison now," Isaacs said, "I go as an artist."

I'd like to know what set of events led to the L.A. Times article.

Does the prosecution or the defense have more to gain from the revelation?

AND: The NYT offers more background:

In a telephone interview on Wednesday afternoon, Judge Kozinski ... said the Web site was meant to be private and that several people had contributed to it. “There is a ton of stuff on there,” Judge Kozinski said. “It’s not a porn site. There’s some funny stuff on there.”

Judge Kozinski said his son, Yale, maintained the site, which had the domain name of kozinski.com. Yale Kozinski, a film editor, confirmed that, as do Internet registry records for the site.

“This server is my private Web server,” Yale Kozinski said. “It’s owned by me. The domain is registered to me. The people who have access to put files up there are friends and family.” Among other things, he said, the site contained family photos and a collection of the judge’s articles.

The Los Angeles Times reported that Judge Kozinski had conceded posting some of the offensive materials. In interviews on Wednesday, neither Judge Kozinski nor his son could say who posted what, and Judge Kozinski said he might have uploaded some materials by mistake.

The site was never meant to be public, Yale Kozinski said. “The fact that it was publicly accessible actually is my fault, too,” he said. “I made a mistake in configuring it.”

Judge Kozinski said he was only moderately contrite.

“I guess I should be more careful about access and all,” he said. “I didn’t put anything on there I think would be embarrassing.”

Oh, well, if he doesn't think it's embarrassing, then maybe I shouldn't be critical of the press for publicly humiliating him.

UPDATE: How Appealing has info on the tipster, Cyrus Sanai, who emails (boldface added):

I discovered this information on Xmas Eve, 2007. * * * * I immediately downloaded so much material that his internet provider cut him off. When the site went back up, Judge Kozinski had removed some of the biggest video files. * * * * I pitched it to the Daily Journal, the Recorder, the LA Times and the WSJ through end of January 2008. I was interested in his site because of my renewed misconduct complaint against Judge Kozinski...

The LA Times reporter I contacted, Henry Weinstein (who extensively covered the Manuel Real stuff) said he would get to it, then he took the buyout. I contacted Scott Glover, the reporter on the obscenity trial, last Sunday, June 8, 2008. He knew nothing about my prior contact with the LA Times; but that institution is in disarray because of the well-covered restructuring. Therefore, it would not be fair to say that the LA Times "held it". The institutional knowledge of my prior contact disappeared * * * *

The NY Sun has this:

The judge's trouble with Mr. Sanai began in 2005, when the attorney wrote an article with examples of 9th Circuit judges allegedly ignoring circuit precedents. Judge Kozinski wrote a rebuttal that noted Mr. Sanai's personal stake in one of the disputed issues. The attorney, who had a motion pending in that case, filed a complaint alleging that the judge broke rules barring judges from commenting or lobbying on pending cases. The complaint was dismissed, but Mr. Sanai refiled it after the judge re-posted the article on the same site with the explicit photos.

Here's some analysis of the L.A. Times's journalism standards, from the Carnegie Reporting Program:

The key question is whether it would have been a story if Kozinski weren't presiding over an obscenity trial at the time...

I say yes. Kozinski is a high-ranking judge whose court hears more obscenity cases than the current one. Controversy over the line between erotica and obscenity is legal news, and Kozinski's misfortune provides a teaching moment to explore the current state of the law. Kozinski has a track record as a critic of government intrusion into personal use of the Internet. Publishing a story without the trial as a news hook would be extremely uncomfortable, but I would have green-lighted it and placed the revelations in the context of Kozinski's disputes with Sanai and over Internet use. As for the Times, there should be no question that it did the right thing under the circumstances.

AND: I got some of those links from Above the Law, which has lots of good discussion in the comments.

Four new Supreme Court opinions.

Howard Bashman has the links. I'll update soon with more detail.

UPDATE #1: Erickson v. Pardus is a per curiam opinion that rejects the too-strict pleading requirements the Sixth Tenth Circuit imposed on a pro se prisoner who alleged that depriving him of his hepatitis medication constituted cruel and unusual punishment. "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'"

UPDATE #2: Sole v. Wyner is a unanimous opinion, written by Justice Ginsburg, about what it means to be a "prevailing party" -- entitled to attorneys' fees -- in a §1983 civil rights case. The Court decided that winning a preliminary injunction is not enough if you go on to lose the case on the merits. The plaintiff, by the way, was fighting for the right to protest the war with a giant peace sign composed of naked people.

UPDATE #3: Uttecht v. Brown is a 5-4 opinion written by Justice Kennedy, with a dissenting opinion written by Justice Stevens and joined by Souter, Ginsburg, and Breyer and a dissenting opinion written by Justice Breyer and joined by Souter. This case concerns the degree of deference that is owed to a trial judge's decisions about when a juror should be excused based on an inability to follow instructions about the application of the death penalty. An excerpt from Stevens's opinion:

Today, the Court has fundamentally redefined — or maybe just misunderstood — the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot....

Judge Kozinski’s opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell’s opinion in Darden and by Justice Rehnquist’s statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.

I don't remember ever seeing the fact that a judge was a Supreme Court clerk used to bolster his opinion. Apparently, you're "entitled to assume" some things. I think that whole paragraph, the last paragraph of the Stevens dissent, is just screaming look at all the conservatives who agree with me. I've got Burger and Rehnquist and Powell... and Kozinski, who practically counts as a Supreme Court justice.

UPDATE #4: Safeco Insurance v. Burr is a case about the Fair Credit Reporting Act that I'm going to leave for someone else to untangle. My reticence and my use of the word "untangle" is based on this:

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined, in which Scalia, J., joined as to all but footnotes 11 and 15, in which Thomas and Alito, JJ., joined as to all but Part III–A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III–A, and IV–B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in part, in which Alito, J., joined.

On the bright side: No one dissented.

Why does Judge Kozinski hate blogs? (And does he, really?)

Everyone's blogging about Judge Kozinski saying -- joking? -- that he hates blogs:

ERIC GOLDMAN: So but what about blogs? . . .

JUDGE ALEX KOZINSKI: I hate them, hateful things.

ERIC GOLDMAN: Why do you hate blogs? . . . .

JUDGE ALEX KOZINSKI: I just think it's so self-indulgent, you know. "Oh, I'm so proud of what I'm saying, I think the world instantly wants to know what I'm thinking today." People wake up thinking, . . . . "I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can't really have breakfast — really enjoy my day — until I hear the great thoughts of Howard Bashman!" I don't think so. I go for months without ever knowing what Howard has to say. So I don't know. I find it sort of self-indulgent. And I find it grandiloquent. And I find it annoying, particularly if I'm in an audience and people are sitting there typing in their computers.

My first thought was: he's kidding. "I hate them, hateful things" -- that sounds so diva-ish. I'm reading the text and hearing -- oh, I don't know -- the voice of Camille Paglia? Or, I think of "The Pillow Book" of Sei Shonagon which has that great chapter "Hateful Things." Did you know that "The Pillow Book" is said to be "what blogs were like 1000 years ago"? Some of her hateful things actually sound like she was complaining about blogs 1000 years in advance:

A man who has nothing in particular to recommend him discusses all sorts of subjects at random as though he knew everything.

To envy others and to complain about one's own lot; to speak badly about people; to be inquisitive about the most trivial matters and to resent and abuse people for not telling one, or, if one does manage to worm out some facts, to inform everyone n the most detailed fashion as if one had known all from the beginning -- oh, how hateful!...

One is in the middle of a story when someone butts in and tries to show that he is the only clever person in the room. Such a person is hateful, and so, indeed, is anyone, child or adult, who tries to push himself forward.

One is telling a story about old times when someone breaks in with a little detail that he happens to know, implying that one's own version is inaccurate -- disgusting behavior!

Very hateful is a mouse that scurries all over the place.

But the second thing I, your scurrying mouse, thought was: Kozinski is jealous because he wants to blog. Over at Above the Law, they're talking in the comments, and I see that someone agrees with me: "Methinks he's jealous that his judgeiness means he can't blog." Someone else says: "Koz could blog if he wanted to, Posner does." But that misses the point. For a judge to blog, he has to blog in the stolid, somber, serious Becker-Posner Blog style. That's not the "hateful" thing described in Kozinski's quote. All that fun stuff, that "self-indulgent" stuff, that's what he wants to do.

You know, many years ago, about 20 years ago, I was at a conference with Judge Kozinski, and one night at dinner, he told me his formula for becoming a federal judge. Like he was clueing me in so I could get there too. I told him I thought it was better to be a law professor, and my reason was personal freedom. You have to be so sober and decorous all the time if you're a judge. So, see, Alex. I was right! Look at meeeee.... I'm blooooggggginggggg and you're not!