THE VOICE OF REASON
Courts

  JUSTICE AND HYPOCRISY

Susan Estrich teaches law and political science at the University of Southern California and routinely defends, in a voice that I am unable to distinguish from that of Broadway diva Carol Channing, leftist causes. Estrich's latest cause célèbre is the sordid episode recently involving Chief Judge Alex Kozinski, pictured on the right, who directs the United States Ninth Circuit Court of Appeals. The judge was to participate in adjudicating the case of a man accused of selling videos depicting bestiality and defecation. The problem is that Kozinski's personal web site recently beamed to the world sexually explicit images, one of a half-dressed man cavorting with a sexually aroused farm animal and another of a woman shaving her pubic hair. Perhaps naming the court over which Kozinski presides is enough said. This is the tribunal, you may remember, that declared the phrase "under God" in the Pledge of Allegiance an unconstitutional "establishment of religion." The court has been reversed more than any other, and for good reason!

Estrich's pleading in behalf of Kozinski does not, unfortunately, treat us to a rendition of "Hello, Dolly" as I wish it somehow had. That would doubtless have been more intellectually impressive than the logic with which she presents the judge's case. Listen to her: "If everyone who ever viewed or shared pornography were disqualified from judging the line between protected speech and criminal obscenity, we all would be in trouble. The problem facing Judge Kozinski illustrates what's wrong with the prosecution, not with the judge." We have heard such sorry reasoning on other occasions. One was when Estrich and those of her persuasion were busily defending President Clinton's lies to a federal grand jury. "Everybody," we were then assured, "lies about sex." Now, the same reasoning raises its head in another guise: "Since everybody has viewed or shared pornography, why should it matter whether the Chief Judge of the Ninth Circuit does so?"

Estrich's reasoning embodies the logical fallacy of tu quoque (Latin for "you too"). Because "you too" are a thief, it is permissible that I am as well. Because "you too" have viewed or shared pornography, don't blame the judge for doing the same." There will always be those like Estrich who, in the name of justice, drop the bar of acceptable conduct to its lowest common denominator. When a judge is guilty of helping to create a market for the product which the defendant standing before him is accused of selling, the appearance of judicial impropriety rudely surfaces, does it not? There is something about the judge's predicament that is not only morally outrageous, but also flagrantly hypocritical. It is analogous to an inebriated magistrate passing sentence on the town drunk for being intoxicated in public. Does this not do wonders for judicial credibility?  Duh.

The most tragic result of Estrich's faulty argument is where it leads. Look where she locates the source of the problem. It is not with Kozinski who, by his poor conduct has brought reproach upon himself and the court where he sits, but it is with the prosecutors who are confronting the problem of judicial hypocrisy. Estrich, in a way we have come to expect from the left, turns morality and professional responsibility on their head. As Arthur M. Schlesinger, Jr. once charged that former special prosecutor, Kenneth Starr, was "the nation's number one pornographer" for reporting to Congress on Clinton's debaucheries, Estrich unabashedly points a finger of condemnation at prosecutors who think Judge Kozinski's continued involvement in this case is improper.

I do not wish to be interpreted to mean that judges should be saints. As a trial lawyer for twenty years, I know better than that.  Judges too are clothed with humanity and cursed with all its vulnerabilities, foibles, and idiosyncrasies. Exhibit Number One is Justice William O. Douglas, whose penchant for young women and promiscuous sex was legendary, even according to Clintonian standards.  But having admitted this truth, there is another that is as important; viz., that the judicial calling is supposed to be a high and lofty one. Honor and nobility of purpose are essential to the judicial role. The people who assume this role are, with good reason, referred to as "Your Honor." When their conduct, on or off the bench, is in stark contrast to the higher reaches of their professional calling, they and their profession suffer a loss of credibility, giving rise to cynicism and disrespect. The loss may be at first invisible to the eye, but slowly begins coming into view, whereupon it eventually fulminates to promethean proportion. It is difficult for the judicial system to function as intended once the public perceives that there is a log in the judge's eye.

Chief Judge Alex Kozinski, notwithstanding the level of his legal scholarship and administrative abilities, did not conduct himself in an upright manner in this instance. He now finds himself on moral low ground.  He should, therefore, recuse himself from the case, make sure the public knows why, and resolve thereafter to act so as to enhance the citizenry's esteem for the court he serves.  

June 18, 2008