Spotlight: Freedom's Justice?


Last year, at the age of 35, Alex Kozinski became the youngest person in this century named to a federal appeals court (the Ninth Circuit Court of Appeals). He is mentioned as a candidate for the next Supreme Court vacancy. Married and with two children, Kozinski is described by most as a conservative, though a few say he is more libertarian. He calls himself a "classical Republican," his political philosophy being "to oppose totalitarianism, because I grew up under communism and I think it is an evil system."

Kozinski was born in Bucharest, Rumania, in 1950. In 1961, because they were Jewish, his family was allowed to leave Rumania. They traveled first to Israel, but soon went on to the United States.

The family arrived in Baltimore with $5 in their pockets, but various Jewish organizations found them an apartment and a job for Kozinski's father. The parents soon scraped together enough money to buy a small grocery store. But his parents, both survivors of Nazi concentration camps, found the Eastern winters hard, and the family moved to California.

They told their son his job was to learn, and Alex studied economics at UCLA, which "stands for University of Chicago at Los Angeles," he jokes. He went on to graduate first in his class from UCLA Law School in 1975.

For the next year, Kozinski clerked for a judge on the Ninth Circuit Court of Appeals. The following year, he clerked for Chief Justice Warren Burger. "I was fascinated with the process," he says. "Ever since then, it has been my ambition to be a judge."

After the clerkships, he joined a nine-member Los Angeles law firm, rather than a large, name-brand firm. Kozinski, who speaks four languages in addition to his moderately accented English, discovered that the firm's international specialty was "not all it's cracked up to be. It's a lot of domestic law with people who talk funny. I can do that all by myself," he laughs, displaying his characteristic humor.

He returned to Washington, D.C., in 1979 and became an associate at Covington & Burling. Retaining his ambition to be a judge, he says he "let people know whenever the occasion arose that that was my goal."

He let the right people know. In 1979–80, he devoted his spare time as a volunteer legal adviser to Ronald Reagan's presidential campaign. "Ed Meese would call and need research on a legal issue, and there would go my weekend," recalls Kozinski, who says he has admired Reagan since his gubernatorial days in California.

His volunteer work paid off. Kozinski served as deputy legal counsel to the president-elect's transition team, then worked in the White House until June 1981, when Reagan appointed him special counsel to the Merit Systems Protection Board, which handles cases brought against the government by its civilian employees.

His critics claimed that his service on the board indicated a "harsh and cruel" manner. During Senate debate on his appellate confirmation, Sen. Carl Levin (D–Mich.) charged: "He is exceptionally intelligent…but he lacks judicial temperament, is prone to anger, and is lacking in compassion." Kozinski responds, "When I came in, I cleaned up the office and made people start working or get fired. I demand a lot, and I felt I should be as discriminating with the taxpayers' money as if it were my own."

Next, when Congress reorganized the US Claims Court, Reagan tapped the 32-year-old Kozinski as its chief justice. Kozinski streamlined everything from the phone system to the way judges render decisions. He cut down on the number of written decisions and encouraged decisions directly from the bench. "My feeling is that if I can't look [litigants] in the face and say my judgment, there is something wrong," he says. Under his leadership, the court successfully handled a greater number of cases with one-third less staff. His controversial appeals court nomination (he was approved by the Senate 54–43) followed.

"I decide cases on the law and the facts," Kozinski says, "but when appropriate, I try to do justice." What happens when the law is antithetical to justice? "I believe in applying the law. But when there's latitude, I believe in taking it. I agonize over my decisions as a judge. I try as best I can to understand what the law is, to understand what my function is, what discretion I have available to me; and I have frequently reached results which I thought were necessary under the law…but which I thought were wrong from some philosophical or human point of view."

Contrasting his position with that of academicians like Richard Epstein and Bernard Siegan, who argue for judicial activism to counter decades of statist decisions, Kozinski says that as a judge he is strongly bound by precedent, and in a position to make only incremental improvements.

Bound as he may be by precedent, Kozinski at least alludes in his decisions to something of whose existence most judges seem unaware: the market. Whether his general sympathy for liberty in the abstract will translate into an advance for liberty in the concrete, only time will tell. In the meanwhile, it will be worth our applying to Kozinski the strongest test judges themselves apply to laws: strict scrutiny.

John Dentinger is a free-lance writer in Los Angeles.