The dictionary defines schadenfreude as "joy at the misfortune of others." To be sure, not something one should be proud of, but nevertheless a guilty pleasure in which we all partake now and then. Who among us hasn't at least silently cheered when a bad guy gets what's coming to him, like when a politician who loudly preaches "family values" gets outed as a child molester, or when the guy who raises the price of a life-saving drug from $17.50 a dose to $500 later gets sentenced to prison for unrelated securities fraud. Stuff like that. So I plead guilty to a mild case of schadenfreude when I read about the resignation of Judge Alex Kozinski, of the Ninth Circuit Court of Appeals. Current count of accusers is 15, but the word is "everyone knew." He was accused of a wide range of misconduct, all of which had the central theme of humiliating his female clerks, running the gamut from feeling up stunned young women, to sharing his private porno collection alone in his chambers with one of his clerks and asking her if the images turned her on. You get the picture.
Kozinski's name is familiar to many in the legal profession. He was criticized by a judicial panel in 2008 for maintaining a publicly accessible website containing pornographic images, but arrogantly ignored the message. He was outspoken and loved the camera, was revered by conservatives, and had been a very prominent person in judicial circles. Upon his recommendation, his clerks won sought-after Supreme Court clerkships.
My only direct connection to the judge was the opinions he wrote in a case we tried in Oregon in 1999. My firm took on the pro bono representation of a group of physicians who provided legal abortion services to their patients who needed or wanted that procedure. The doctors had been threatened by a group of anti-abortion extremists who targeted them with old-west-style "WANTED" posters after a nationwide pattern had been established that physicians who were so "postered" were soon thereafter murdered. The extremists applauded the killings and then not only published WANTED posters of our clients, they set up a website that published personal details of the targeted docs, including the names of family members, home addresses, etc. After a three-week trial, the federal jury found the posters to be a true threat, not protected by the First Amendment. The jury imposed upon the defendants the largest monetary verdict in the history of the State of Oregon, and the trial judge, affirming the correctness of the verdict, entered an injunction barring further threats.
In my memoir, The Client Decides, published earlier this year, I wrote about the appeal from that verdict:
"But two years after trial, a panel of three conservative judges of the Ninth Circuit did what we feared that particular trio would do. In a decision we thought motivated by abortion politics, not First Amendment jurisprudence, they voted to reverse the judgment and dismiss the complaint.”
Kozinski wrote the appellate court's opinion. My suspicions about his disrespect for a woman's right to choose were confirmed when he led his panel's reversal by an intellectual foray citing First Amendment cases involving claims of incitement. That was a straw-man argument. Our case was not about incitement. In fact, our leader, Maria Vullo, specifically avoided that claim because of extant First Amendment jurisprudence. Instead, we charged the posters were a "threat," which was a civil and criminal violation of federal law. Threats are not protected by the First Amendment. And under prevailing Ninth Circuit law, defendants' conduct fit the threat definition.
Kozinski nevertheless cited incitement cases and concluded,
"If the defendants' statements merely encouraged unrelated terrorists," to kill the doctors, it was protected speech. That would be the case, he wrote, even if, "by publishing the doctors' addresses, the defendants made it easier for any would-be terrorists to carry out the gruesome mission."
In that chapter of the book, I wondered aloud: Suppose:
a) ISIS had established a pattern of circulating WANTED posters featuring judges who had voted to affirm convictions of ISIS adherents, and
b) All the postered judges had thereafter been murdered, and
c) Kozinski and his two adherents had recently affirmed conviction of an ISIS adherent, and
d) ISIS thereafter plastered WANTED posters on neighboring fences, telephone poles, Facebook and Instagram, supplying the three judges' names, photographs, their home addresses, the names of their wives and children, the location of their children's schools, the place and time of school bus stop locations, etc. Would Kozinski have voted to protect that speech?
I doubted it. The evidence is overwhelming that a very large number of abortion providers have quit out of fear of violence to themselves and their families. Indeed, in many areas of the country there are no providers at all, and a woman's constitutional right of freedom to choose has thereby been nullified by the terrorists. A decision to permit domestic jihadists to threaten the lives of abortion providers is a decision that harms not the doctors, but the women who would be served by them. It is the reproductive freedom of women, the right of free choice to make decisions about their own bodies, that was totally disrespected by the Kozinski court.
An en banc Ninth Circuit panel later rejected the Kozinski panel's alarming views, and reinstated the trial court decision. Kozinski, of course, dissented. Not counting the two judges on the Kozinski panel on the first appeal, the final vote was 6-3 to reinstate the trial verdict.
Question I: Does the revelation of Kozinski's egregious disrespect for women support my cynicism about the motives that may have influenced his decision in the Oregon case?
Question II: Is it reasonable to inquire whether that disrespect is reflected in other Kozinski decisions as well?
Question III: Am I justified in reveling in my schadenfreude over Kozinski's public disgrace?
I'm anything but shy. The answer to all three questions is "Yes."