Wednesday, May 15, 1996By Phillip Carter
Daily Bruin Senior Staff
Federal Judge Alex Kozinski once jokingly called himself a
member of OOPPSSCA Â the Organization of People Patiently
Seeking Supreme Court Appointment. If Bob Dole wins the presidency
in November, Kozinski’s jestful wish may come true.
Since being appointed in 1985 by then-President Ronald Reagan to
the 9th Circuit Court of Appeals, the former Daily Bruin columnist
has taken the judicial world by storm with his legal opinions and
political ideology.
As one of the court’s most prolific writers, Kozinski has
written nearly 300 opinions and dozens of newspaper columns on
topics ranging from affirmative action to tort reform to
snowboarding.
This Sunday, he will deliver the keynote address at the UCLA
School of Law commencement, causing consternation among affirmative
action supporters at UCLA. Members of various law student groups
have threatened to protest or boycott the event because of
Kozinski’s conservative views.
In a series of interviews with the Daily Bruin, Kozinski
discussed his controversial views on law and his meteoric rise
through the judicial system from UCLA Law School to his appointment
as the youngest federal judge this century.
Q: How would you characterize your judicial and political
philosophy?
A: Judicially conservative; politically libertarian. I have
respect for the legislature and the laws they write. But if I were
to write laws, I wouldn’t make many.
(My Libertarianism) comes from my growing up in Romania under
Communism. I saw too much of government when I was growing up. You
live in a place where government is on your back all the time (and)
you become really (protective) of people’s prosperity and freedom,
and you become very suspicious of the ability of government to do
everything.
Q: How do you blend your political ideology and judicially
conservative ethos when making decisions in cases?
A: There’s certainly a place for ideology. Constitutional
adjudication in particular relies, to some extent, on your personal
morality and your personal views of policy.
But you have to realize (that) when you’re doing that you’re
overriding the collective judgement of the elected representatives
of the people, and that’s an awesome thing to be doing.
Judges have to be careful when they’re doing that, and be sure
that they’re really exercising the power that the Constitution
gives them, and not just being a "Super Legislature." That’s a very
difficult line to draw  it involves a question of
judgement.
Q: So when you’re in your office poring over a case, how do you
develop your opinions?
A: It depends on the kind of case. Usually, you don’t write on a
clean slate  there’s usually a lot of (historic) law there.
You have to look to see what the state of the law is; next, what
(the problem is) you have to figure out. Next, how much is unclear
in the existing law, how much discretion you have in an
opinion.
What you want to do is reach a result that is consistent with
existing case-law rather than making a sharp turn in another
direction.
Q: Where does "justice" and "fairness" come into all this?
A: Strictly speaking, we’re not a court of justice. We’re a
court of law. The trial court is a court of justice. We review for
legal error  that’s our job. Discretion on matters involving
justice, if it exists at all, exists at the trial court level. But
you have to be careful because one man’s justice is another man’s
injustice, and there’s always two sides to a lawsuit. One party
usually likes whatever result you reach, and another party usually
says "That’s an unjust result." There’s no universal measure for
what’s just. These are useful concepts, to leaven an opinion based
on legal concepts. But it’s important not to rely too much on
them.
When you really look at the terms "justice" and "fairness," they
don’t have much content; they’re just conclusions. If you like the
result, you say "It’s just and fair." If you don’t like the result,
you say "It’s not just and fair." It expresses more about the views
of the speaker than about some sort of objective reality.
Q: In your McCalden dissent, you wrote that litigation has
become anything but speedy, efficient and just  the three
goals promised in the Federal Rules of Civil Procedure. How would
you change the system?
A: We need to make trials shorter, and force the lawyers to
present the cases more swiftly so you don’t have these month-long
jury trials. Judges need to exert more control over the kind of
cases that are sent to the jury.
That’s really the substance of our problem. We shouldn’t be
living in a culture where every time you have a disappointment or
some sort of unhappiness, it’s got to be somebody’s fault.
Sometimes life isn’t fair  there are general misfortunes that
are not anybody’s fault.
This focus we have on trying to put the blame on whoever has the
deepest pocket is very bad medicine.
Q: You’ve written in the Wall Street Journal and elsewhere about
the dramatic inefficiency of our legal system. Do you think that
it’s no longer a good system?
A: It depends on what you mean by efficient. It accomplishes
certain things very efficiently, but I think it is a drag on the
economy.
We litigate far too many things, and settle far too many things
(through) lawsuits. Lawsuits sap away productive resources and
creativity and from the real-life things people should be doing …
and channel them into the courtroom to talk about the past. It’s
not the best use of our creative resources.
* * *
Q: Federal judges used to remain hidden from public view; now
many  such as you  have come to the forefront of major
political issues.
For example: A federal judge in New York recently came under
fire from both Bob Dole and President Clinton for a decision which
nullified a drug conviction. Many called for his resignation. How
do you feel about the element of politics entering into the
judiciary and legal process?
A: I don’t think there’s anything wrong with that … we have
life tenure. That’s the most extraordinary protection of anyone I
know. So I don’t think there’s anything wrong there. People can
criticize our opinions, they can criticize judges, and they can
criticize the results of particular cases.
Part of your job as a civil servant is to take it. Judges are
not all that different from other government officials. If people
are unhappy with our performance, then they can voice it. Unlike a
lot of government officials, we don’t have to run for office, to
run for reelection, to worry about being fired … we’re here for
life. That gives us a lot of security  even the president
can’t make us resign.
I don’t see why judges shouldn’t be criticized just like
everyone else. People say nasty things about the president, the
speaker of the House, the mayor, the dog catcher  what’s so
different about judges?
* * *
Q: You’re known in the legal world as a judge with unusual
flair, who makes an extra effort to write legal opinions with
clarity and sometimes humor. Is this a simple reflection of your
personality, or do you make a concerted effort to be different when
you decide cases?
A: I’m tired of reading boring opinions  often, the reason
opinions are boring is because they’re unclear. We (my legal staff)
sometimes go through 50, 60, 70, 80 drafts before we get it right
 we keep whittling away at it.
FRED HE/Daily Bruin
Federal Judge Alex Kozinski will deliver the keynote address at
UCLA’s School of Law graduation ceremonies this Sunday.