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Letter Besmirching Kozinski Asks: Can a Chief Judge Be a Litigant?

By William Peacock, Esq. | Last updated on

I have a mailbox at FindLaw. I have never used this mailbox. For the entirety of my tenure, it has been absolutely vacant.

Until yesterday.

On my way to the snack room, I noticed, for the first time, a post-marked envelope in my box. I didn't know how to feel about this letter. Excited? A bit. Snail mail is a rarity nowadays. But it had no return address. Was it hate mail? I usually get that via email.

Nope, it was none of those things. It was a letter declaring that Chief Judge Alex Kozinski is an "embarrassment to the 9th Circuit, and to the judiciary in general."

This Person is Very Angry About the Nissan Case

Last month, Chief Judge Kozinski stormed into a lower federal court in his circuit to contest a proposed settlement over allegedly defective Nissan Leafs. He owns one, it doesn't go as far as he'd like, and the settlement seems to be a joke.

The best part, of course, was his letter objecting to the settlement. In typical Kozinski fashion, he compared the Nissan folks to Merck, who "sued over the people it killed while raking in billions selling Vioxx."

Today's anti-Kozinski open letter (here the full version, via Scribd) asks:

"What kind of a message is sent to the general public when the Chief Judge of the largest Circuit in the nation appears in person in a trial court within his own [c]ircuit to attempt to bully and intimidate a recently appointed subordinate District Judge into ruling in his favor? Will that judge now have to recuse herself due to Judge Kozinski's interference? And will Judge Kozinski now have to recuse himself in all future class actions coming before his court because of his now publicly expressed negative opinions about class action defendants?"

I wrote an entire rant mocking this concept. After all, the courts don't close to parties just because they wear a robe, do they?

Never mind. Apparently two judges have recused themselves from this very case (H/T Josh Blackman). Judge Harry Pregerson dropped the case because he is friends with Kozinski and had discussed the Leaf's battery issues with him previously. Judge Beverly O'Connell recused herself late last month, noting that, "if the court were to disapprove the settlement, a reasonable person might question whether the court's actions were a result of the objector's participation in the lawsuit."

Seriously though, what's the solution? Are they going to transfer the case to a different circuit? Should appeals court judges give up their rights to participate in litigation that directly affects them?

Kozinski's Past, Laid Bare

While some might argue that his conduct in the Nissan case was not improper, don't be mistaken -- the letter goes on to recap every event in the Chief's life, just in case you don't find judges defending their rights objectionable:

The letter forgot to mention the time he was on the Dating Game.

Trolling the Wrong Blogger

If it isn't obvious, I find this "open letter" nonsense to be hilarious. Seriously, if this person had read any of my past posts, he or she would know that I am an unabashed Kozinski fan.

Besides, if you have a problem with his conduct in the Nissan case, stick to that argument. Attacks on his character, especially the weak examples presented above, undermine what actually is a pretty interesting issue of judges as litigants.

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