Metropolitan News-Enterprise


Wednesday, January 14, 2009


Page 3


Ninth Circuit Judges Remain Collegial, Kozinski Says


By a MetNews Staff Writer


Relations among Ninth U.S. Circuit Court of Appeals remain collegial despite the judges’ divergent views on legal issues, Chief Judge Alex Kozinski reassured a conservative legal group yesterday.

“I can count on the finger of one hand [and have fingers left over] the number of occasions...on which it really got personal,” Kozinski told the local chapter of the Federalist Society during a luncheon meeting at the Omni Hotel downtown.

The judge fielded questions from society members and from moderator David Lat, a former federal prosecutor in New Jersey and the founding editor of the legal blog “Above the Law.” Lat previously edited “Under their Robes,” which ran a “Superhotties of the Federal Judiciary contest”—Kozinski sent them a letter complaining that he was not considered—and once clerked for Ninth Circuit Judge Diarmuid F. O’Scannlain.

The topic of the day was “A Judge in Full: Personality and Jurisprudence.”

The nature of an appellate court, the judge said, requires “a certain culture of accommodation” because “no case is worth creating hostility among the judges.”

One aspect of the Ninth Circuit culture, he explained, is that judges will sometimes modify a panel opinion to address the concerns of a judge not on the panel, in order to avoid having to vote on whether to take the case en banc. As a result, he explained, the court only has 20 to 30 en banc calls per year.

That is not the practice in all circuits, he noted.

He recalled an incident that occurred when he sat by designation on the District of Columbia Circuit early in his career. He was chief judge of the D.C.-based Court of Claims when President Reagan elevated him to the appellate bench, and sat with the D.C. court for a time because he was already based in the nation’s capital.

Kozinski explained that he was prepared to modify one of his opinions to satisfy a colleague who had called for an en banc vote—and had already circulated her intended dissent from the denial of rehearing en banc—but was told by the other panelists that this was not the way it was done.

On the Ninth Circuit, he said, the matter could have been resolved by changing “just a few words” in the panel opinion. And he defended that approach in response to a question from an audience member, who expressed concern that opinions might become watered down in the process.

“The nature of the collegial process is that sometimes you have to bend, and you cannot be as forceful as you’d like to be,” the judge responded. “I see that as a strength, rather than a weakness.”

Lat expressed surprise when Kozinski offered a practice tip for oral argument: never point out that the opinion you are citing was written by a member of the panel.

While the moderator suggested that judges might “like being buttered up,” Kozinski offered that he could not think of a single federal judge who enjoys having his own opinions cited to him.

“It’s not just gauche,” the judge said. “It looks like you’re trying to trap me with my own opinion.”

The only thing worse, he quipped, would be “telling Willie Fletcher that ‘this is something your mom said.’” Ninth Circuit Judge William Fletcher, a Clinton appointee, is the son of Senior Judge Betty B. Fletcher, a member of the court since 1979.


Copyright 2009, Metropolitan News Company