Chief Judge Kozinski says: "You think I'm 'overwhelmed' with judicial miscondut complaints?! You couldn't be more wrong. They're easy. It only takes four paragraphs to dismiss 'em."
This is a pretty classic Kozinski resolution of a judicial misconduct complaint. To which I generally don't have an adverse reaction, in part because I agree that the vast majority of these claims are meritless and/or frivolous.
That said, having read all of these Kozinski resolutions for the past several years (thanks to his helpful decision to publish them all), I did have one brief thought I'd put out there. Which of the following is harder: (1) pleading a regular federal case under Iqbal and Twombly sufficient to avoid dismissal, or (2) pleading a judicial misconduct allegation for Chief Judge Kozinski sufficient to avoid dismissal?
The answer seems clearly to be (2), and given all the attention (and adverse reaction) that (1) has received, I wonder if I should be thinking a little more critically about (2) than I previously have. I mean, I have no doubt -- none whatsoever -- that there are bad federal judges in the Ninth Circuit. Really bad. I could even name you some. Like so bad its an embarrassment to the bench. Not many, admittedly. But they're there.
The question that I asked myself today is: What would it take to get Chief Judge Kozinski to actually do something -- or even open up an investigation -- into one of these judges? I think the answer is that it'd be virtually impossible, even if you weren't a disappointed litigant who's filed a million of these things. Short of an affirmative, on-the-record statement by the judge of bias, there seems little practical way for anyone to "prove" their allegations sufficient to satisfy the procedural hurdles that Chief Judge Kozinski routinely relies upon to dismiss existing judicial misconduct complaints. Which seems a problem. (The only other way I can think of that might satisfy these hurdles and cause a misconduct investigation is if the judge had a couple of softish-core pornography files on his home computer. But that situation seems more like Bush v. Gore; i.e., "good for this case only").
Am I objecting to the way Kozinski deals with these things? Not really. I'm sure I'd dismiss 'em as well.
But I do think we might be a little more sensitive to these things, and maybe be a little less hard core about imposing (and applying) high initial hurdles that might equally require dismissal of an (admittedly rare) meritorious complaint. We're pretty conscious of that tradeoff when we deal with standards of pleading and proof in regular civil cases. We -- and I include myself in this one -- should probably be equally conscious of it in dealing with misconduct complaints as well.
Such are my thoughts as we begin another wonderful week in beautiful California.
