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In Re Complaint of Judicial Misconduct (9th Cir. - June 24, 2009)

By Shaun Martin

The thing about people like Chief Judge Kozinski is that they're so smart, and subtle, that it's sometimes hard to figure out if they're being deliberately sly or merely stumbling into saying something that may have a broader ramifications than they intended.

So take this opinion, for example. It's a facially simple one, and is one of the legions of opinions in the Kozinski Era in which he's quickly (and publicly) dismissing an entirely meritless complaint against a judge.

It contains the usual stuff: we have no jurisdiction since you're complaining about a decision on the merits of the underlying suit, you only have allegations rather than any actual evidence of bias, part of your complaint is about a state court (rather than federal court) judge over whom we have no power, etc. etc. This is par for the course.

But then there's this seemingly -- and perhaps actually -- innocuous line. The complaint in part whines about some things the trial judge did when s/he was a state court judge. We know, of course, that the federal courts have no statutory power to adjudicate such misconduct complaints for a wide variety of reasons, all of which Chief Judge Kozinski discusses (or discusses by implication by incorporating a lengthy 1986 opinion by then-Chief Judge Browning's opinion on the same point). No problem with that.

But the brief paragraph on this point ends with the following line: "It would be incompatible with this constitutional principle to sanction a judge for conduct preceding confirmation."

Now, if all that Chief Judge Kozinski means by this is that it would be improper for the judiciary to sanction a judge pursuant to the existing misconduct statutes for such conduct, I totally agree. Which, after all, is all we need to say in order to resolve the complaint here. So one way to read this sentence by Chief Judge Kozinski is to impart the missing words by context. And, normally, I'd be absolutely confident that's what he -- or anyone else -- meant.

Why did my ears nonetheless perk up at this statement? Because, at least facially, it also says something about the merits of an ancillary, high-profile dispute. Let's not forget that there's someone on the Ninth Circuit who's keenly interested in whether it's indeed permissible "to sanction a judge for conduct preceding confirmation." Particularly in one of the contexts that Chief Judge Kozinski expressly discusses: Impeachment.

And, no, I'm not talking about Judge Kent. His conduct was post-confirmation. Think pre-confirmation as in putting your name on a memorandum saying that waterboarding isn't torture. For which a wide variety of people have indeed called for this judge to be sanctioned, and potentially impeached.

I honestly have no idea whether this was in Alex's mind when he wrote that line. But it was definitely in mine when I read it.

Full post as published by California Appellate Report on June 24, 2009 (boomark / email).