It's no fun to be the target of an angry appellate judge. At oral argument. In a published opinion. In a poker game. Whenever.
That's true even if the ire is justified. Even if it's not personal, but instead is directed at the policy or policies you're tasked with defending.
By contrast, to outsiders who share similar views to those of the judge, it's often a delight to see a judge go off. To actually say what they feel in a heartfelt matter that leaves no doubt whatsoever that the target will remember -- and likely not repeat -- their misconduct.
There are two judges on the Ninth Circuit who are most likely to be really, really harsh. One is Chief Judge Kozinski. The other is Judge Reinhardt.
This is what happens when you put them on the same panel.
The opinion happens to be written by Judge Kozinski. But it could easily have been written by the other. The only difference between the two is that an opinion written by the former is -- as happens here -- much more likely to repeatedly cite Judge Kozinski. Dissents, law review articles, etc. We'll call this one "Kozinski on Kozinski." Classic.
Count me as someone sympathetic to the Ninth Circuit's holding here, and to the substantive content of the opinion. As well as, in large part, its tone. Check out, for example, footnote 3. What Judge Kozinski says there seems entirely true to me. Is it necessary to the decision? Of course not. But it's nice, in my view, for judges to occasionally say to the parties: "We're not idiots, you know. We know the way things work. Even if you think we don't." Especially when the malefactors are government officials charged with keeping things fair and above board.
It's not that I don't see the other side. I do. Was it wrong that they deported the favorable witness? Yes. Judge Kozinski's exactly right. Is it possible that they did so through good faith bureaucratic means that were subjectively thought to be fair, and then felt obliged to defend this conduct, as well as convinced themselves that they were right. Sure. Very much so. That happens all the time. Even to the best of us. It's a part of being human.
It's nonetheless beneficial to remind people sometimes -- even in harsh, unrelenting language -- that we expect more. Your parents did it to you when you were a child. It doesn't mean they don't love you. It means they want, and expect, you to do better. And that, the next time you confront a similar situation, they want you remember what transpired last time and think -- really think -- about the lessons imparted from the previous experience. The harshness reminds you that, next time, if it's close to the line, stop and think, rather than simply do what you're used to doing almost all the time.
That's what Judge Kozinski does here to the U.S. Attorney's Office of the Southern District of California. It's a stern, and appropriate, talking-to.
