Lara A. Bazelon, to whose comments about judge Alex Kozinski I responded here, has replied to me publicly in Monday’s Los Angeles Times. I was kindly offered the final word on the matter by the Times, which I declined (I feel the news cycle has moved on and I’m not sure people are too interested anymore). But I’ll certainly respond here on my own blog, for entertainment value.

“In his response to my Blowback, which discussed the possibility of Judge Alex Kozinski facing discipline by a committee of judges for maintaining a website containing pornographic material, John Wright accuses me of joining the ‘Crucify Kozinski Brigade…’”

…which she did, despite her insistence to the contrary. Bazelon continues by saying she wonders where to begin, as though she has a mass of issue to take with my piece (in reality this is unlikely since I’m always Wright - it’s my name, you see).

She decides to start by saying that she never claimed Kozinski was a hypocrite, rather that she was pointing out the irony of his pushing for certain rules of conduct and then having them used against him. She thinks that’s ironic. But it isn’t, and here’s why. The rules of conduct Bazelon mentions have to do with misconduct involving “a substantial and widespread lowering of public confidence in the courts among reasonable people.” If I were a pornography-viewing judge, no matter what Bazelon or anyone else thinks about pornography, I would have no problem agreeing that misconduct involves issues which give cause for reasonable people to lack confidence in the courts system. Why? Because (and I repeat), reasonable people don’t get upset about the very common practice of people viewing pornography, and they certainly don’t believe that this aspect of their private lives affects what goes on in their courtroom any more than a bank manager possessing pornography affects their ability to manage their customers’ money. It would be ironic if Kozinski had pushed for rules of conduct barring judges from viewing porn in their spare time and then was found to possess porn - that would constitute irony - this…. does not. That was my point.

She goes on:

“Second, my invocation of the Judicial Conduct and Disability Act is not the wild overreaching that Wright implies. By arguing for a misconduct inquiry, I merely approved of the action that Kozinski had taken already…”

Oh, that’s right, she’s on Kozinski’s side! (I don’t think so.) As I said in my original critique, Kozinski’s attitude to this is one of confidence: he knows he isn’t guilty of judicial misconduct and he’s inviting an inquiry to prove it. Bazelon, on the other hand, thinks he is guilty of misconduct: that’s the difference (she implies as much later in the piece and earlier in the original). Why she thinks, then, that it is “overreaching” for me to lay out the case against a finding of misconduct is anyone’s guess. She goes on to say that she “has respect for” Kozinski, that Kozinski himself wants a disciplinary inquiry against him, that it’ll be in the hands of the panel, that, “If they do their job, they will find the facts, apply the law and reach a just result — whatever that result may be.” How wonderful. *Yawn.* She approves of the system and all but loves Kozinski. Come on, Bazelon. Is that the big point you wanted to make in your Times piece? Is this why her piece got published? Would her agreement with the judge on everything have attracted any interest at all?

Or is it instead that hers was an opinion piece alleging misconduct?

“The defense of Kozinski posted by his wife does not change my opinion. Whether the man-donkey video was wrongly described or not is beside the point.”

Beside what point? I would have thought that any misconduct inquiry on the basis of the judge’s possession of specific material should look at the specific material itself and characterize it correctly, something which the original Times piece and Bazelon herself appears to have no interest whatever in doing. Bazelon, a federal defender, says that inappropriately characterizing the material is “beside the point.” Yikes. Wouldn’t looking at the material with an eye for scrutiny be somewhat pertinent? She goes on to say she’s done just that:

“I’ve viewed some of the other pornographic material Kozinski posted, and it wasn’t ‘funny’ at all. I’m with Kozinski, who said the women-painted-as-cows picture was ‘degrading … and just gross.’ It’s also misogynistic. To me, that’s not ‘fairly harmless.’ Porn like that sends a message — that it’s OK for women to be treated like animals.”

Ah… finally an opinion. Bazelon finally reveals why she thinks Kozinski is guilty of misconduct. First, she says there was nothing funny about some of the material. Could it be that people disagree on what is humorous? I’d like to think that a judicial misconduct panel could understand that material intended to be funny is then subject to the audience ‘getting’ the joke, that a sense of humor is required to do so, and that some not ‘getting’ it wouldn’t change the fact that the intention of the material was comedy. I don’t want to say that Bazelon doesn’t possess a sense of humor, but I certainly don’t think that because she doesn’t find something funny, it isn’t funny at all.

Again, she says she’s “with Kozinski”, as though the two are likely to see eye-to-eye on which parts of his eclectic collection of internet tidbits are funny and which are not. It seems rather more likely that Kozinski’s statements in this case are the wise word choices of an intelligent, high-profile judge spoken under the pressure of a politically correct, oversensitive culture, of which Bazelon is a willingly devoted part.

The women-painted-as-cows picture was intended to be funny, and is for many, maybe even most people. That Bazelon sees it as misogynistic says more about Bazelon than it does about the picture. I won’t attempt to give you my interpretation of the picture. It wasn’t meant to be analyzed and it wasn’t designed to “send a message” (as if content producers should sit around thinking about every possible message that people could take from their content). It was meant to be looked at, laughed at and forwarded to others of both sexes who would enjoy the humor. Several of the people I asked from both sexes and a variety of political persuasions laughed the second I described it to them, and nobody was offended. If you want to be offended in this life, you’ll find it very easy to be, and Bazelon is not merely complicit in but responsible for her own offense at the image. The only “message” it sends universally is that freedom is a wonderful thing: of sexuality, of expression, of adult ability to have a sense of humor and of daring to use it.

But let’s imagine for a second that the picture is misogynistic, that Bazelon is right about that, and that it should be offensive to almost everybody. Asinine as that view is, mere possession of such a picture does not judicial misconduct make. Couldn’t the judge have had it for any variety of reasons? His sons or wife put it there, not himself. He had been sent it in a package of other files and hadn’t had a chance to browse through it yet. He put it there for review, as part of research on one of his many writing projects on issues like obscenity. The point is not to make excuses for Kozinski (because his owning a picture of any legal kind does not require explanation); the point is that the private life of a judge should be as protected as the private lives of other people - particularly when there’s nothing whatever disturbing about it.

She finishes:

“I don’t think it’s unreasonable for hundreds of Times readers…”

…who all agree with her…

“…to react with disgust when one of the most prominent and powerful jurists in the nation…”

…as though his behavior should thus be held to an arbitrary other standard because he is…

“…is so reckless as to keep and share degrading pornography…”

…degrading in her opinion…

“…on a private site that turns out to be not so private after all.”

The end.