On being a young federal district judge between a rock and hard place

I would not want to be U.S. District Judge Beverly Reid O’Connell of the Central District of California who became a federal district judge in April of this year. She is now confronted with the problem of whether she should rule that her Ninth Circuit Chief Judge, Alex Kozinski, is wrong and that his objection to a class-action settlement must be denied. Read below for the details as provided to me in an e-mail from a thoughtful correspondent:

“Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, made a rare move Monday in a federal courtroom in Los Angeles, speaking as an objector to a proposed class action settlement against an auto company. Kozinski and his wife Marcy Tiffany are 2011 Nissan LEAF electric car owners, and therefore members of a class alleging defects to the company’s lithium ion batteries. Representing themselves, Kozinski and Tiffany filed a scathing objection last month and added more arguments in a document last week. ‘The proposed settlement is a sham, benefiting only class counsel, named plaintiffs and Nissan,’ Kozinski wrote. ‘Class members are getting absolutely nothing of value, while having their rights abrogated.’ In a hearing Monday in front of U.S. District Judge Beverly Reid O’Connell [C.D. – CA], the judge heard the objections directly from Kozinski. She took the matter under submission.”

See also Alison Frankel, Lawyers’ nightmare: When 9th Circuit Chief Judge Kozinski is class objector, Reuters (November 20, 2013).

Speaking of Chief Judge Kozinski, let me tell you a story about the one and only time I “appeared” before him. Between 1982 and 1985, Judge Kozinski served as the Chief Judge of the U.S. Court of Claims. I am pretty sure that my case landed on the judge’s docket soon after his appointment at the ripe old age of 32. I was representing a small country bank. We sued what was then called the Farmers Home Administration (FmHA) over some cattle. Our claim was based upon a hyper-technical reading of Nebraska’s weird version of a section of the Uniform Commercial Code dealing with livestock. The facts were very complicated.

The government filed a motion for summary judgment. The matter was briefed, and the judge ordered oral argument. He kindly allowed me to appear by telephone so I would not have to fly to Washington. The government’s cocky lawyer went first. I listened as Judge Kozinski, speaking with a heavy accent, utterly destroyed the argument made by the government’s counsel.  Whether factually or legally, Judge Kozinski had the government’s lawyer on the ropes. When it came my turn, I was sure I would win because the judge had a good understanding of the facts and appeared to have bought our hyper-technical argument hook, line and sinker. Boy, was I wrong. The judge proceeded to make an exquisite argument, far different and better than the one advanced by the government, why my banker could not prevail.  I scrambled, and danced and bobbed and weaved, but to no avail. Quite correctly, we lost.

When I got off the phone, I walked into my partner’s office. I told, Ed, my partner that I had just appeared before a judge who was the smartest SOB that I had ever encountered or ever feared to encounter in the future. That was true, I said, even though I had trouble understanding him. I concluded our conversation by telling Ed that “I will never forget that Polack.”* And, as this post proves, I haven’t.

And so it is that I have great empathy for Judge Beverly Reid O’Connell as she endeavors to deconstruct what I am sure was a brilliant argument by the Chief Judge of the Ninth Circuit. As a federal trial judge with less than a year’s experience, she is definitely between a rock and a hard place.

RGK

*Don’t start on me. Yes, I know Judge Kozinski was born in Bucharest, Romania. Therefore, he isn’t a real Polack. By the way, if you don’t like the word “Polack” that’s your problem. Maybe you like “Polak” better.  I grew up with a bunch of Polacks. One of my dear friends was Pete . . .ski. He didn’t kick my teeth out when I referred to him as “the Polack,” so long as I didn’t throw a punch his way when he introduced me to new girls as “Dick Head.” (“Richard”=”Dick” and “Kopf”=”Head” in German.) Pete . . .ski particularly endeared himself to me and our entire senior class in high school when he did the monkey to the national anthem during an all-school convocation. Hands down, that was the funniest thing I have ever witnessed. Pete . . . ski went on to make a career in Navel (damn, I meant “Naval”) intelligence–pretty good for a Polack. Lastly, and sincerely, for a serious look at the “P” word see Polack, A Small Minded Movie.

PS. Special thanks to a bankruptcy judge, who shall remain nameless, for the tip on the doings in the Ninth Circuit.

18 responses

  1. Pingback: More commentary on class action settlement objector and Ninth Circuit Chief Judge Alex Kozinski | Internet Tax Lawyers

  2. I fail to see why this puts Judge O’Connell in a difficult position. Doesn’t Art. III mean she has nothing to fear? In fact, isn’t that what Art. III is all about? Now if she were a bankruptcy judge, on the other hand . . . !

  3. Dear Another BK Judge,

    Perhaps you are right as a theoretical matter. As a practical matter, I’m not so sure.

    All the best.

    RGK

  4. First, I am not offended. I grew up in Brooklyn in 1970s and 80s and it was not until I went away to college that I learned the correct term was “Poles” because in NYC Poles referred to themselves as Polacks. I met Judge Kozinski in law school. I am much more to the left of the judge and thought I would dislike him. To the contrary, we connected on our similar upbringing (working class and parents who spoke little to no English). Recently in an opinion the judge wrote about he lack of diversity on the federal bench. That is, the federal bench is made of persons from upper social economic backgrounds. Often poor persons appear before these judges and there maybe a “disconnect”. I thought it was an interesting.

  5. Richard,

    My dad sorta lived the life of Willy Loman. “Up and down” if you get what I mean. He was “down” when I was in my teens. Thus, I had the fortunate opportunity of growing up with kids whose parents came from Eastern Europe–Polish, Czech, Hungarians and so forth. Of course, we Germans had been in the Midwest for a long time by then. Additionally, I worked on the railroad for two summers and a third summer I worked in a UAW run auto plant. In both places, one saw a similar ethnic mix. Words like “Polack, Bohunk, Hunky and Kraut” were very common and, rightly or wrongly, not seen as offensive in the tiny taverns where I drank cheap 3.2 beer, consumed pickled eggs and told lies.

    Thanks for your comment. I appreciate it.

    All the best.

    RGK

  6. For those interested in seeing Kozinski’s verbal style in top form, see the oral argument from US v. Maloney before the en banc 9th Circuit.

    The juiciest bits start around 25 min in when the AUSA steps up to speak.

  7. Peter H.,

    Yes, indeed, I remember all too well. Except, my memory is that the judge spoke much faster in the early 1980s. But, that was probably a result of my mistaken senses and my inability to formulate a convincing response, in real time, to my ass whipping.

    Thanks so much for providing the clip. It is truly instructive. All the best.

    RGK

  8. Rich, as it turns out, I have a connection to Alex Kozinksy, which is that we both clerked for AMK. In fact, Kozinksy was in AMK’s first class of clerks on the Ninth Circuit and I was in the last. Kozinsky was on the Ninth Circuit by the time I clerked for AMK, which meant that we had a somewhat special relationship between our chambers. Kozinksy’s chambers were in Southern California and I’d hang out there sometimes when AMK sat down in Pasadena to hear arguments.

    He is exactly as you describe. He is frighteningly smart and in a way his accent makes it even more frightening. It occurs to you that he’s running circles around you and he’s not even using his native language.

    Watching Kozinsky destroy attorneys at oral argument was great sport. Because all of this happened in public, I can provide some more detail than I might usually. I recall one case where the I.R.S. had put a lien on a house bought by a couple. The tax debt was not theirs, it was that of the prior owner. The I.R.S. put it on while there was an executory contract and everyone conceded that they were innocent purchasers paying fair value with no notice. There was a statute that dead flat said that the I.R.S. had no authority to put such a lien on the house. All three judges beat them mercilessly on the merits. Really the only issue was how much the I.R.S. was going to owe these poor people in attorney’s fees. There was a statute that maybe applied to the I.R.S. in imposing frivolous liens, though it came with a $25,000 cap. The I.R.S. argued left, right and backwards as to why the statute didn’t apply in this circumstance.

    Kozinsky grows strangely quiet for a minute and lets the I.R.S. lawyer argue as to why the statute doesn’t apply. I thought to myself: “The bait is in the trap and it’s about to spring.” But I didn’t have any idea what the trap was, as it wasn’t my case.

    Then Kozinsky says with mock sweetness: “This is really such good news. It’s the first sensible thing you’ve said all day. Because if this statute doesn’t apply, the Equal Access to Justice Act surely does, and now we needn’t be bothered with this silly $25,000 cap.” The poor woman who had gotten stuck arguing this thing nearly seized. The trap door had slammed shut. To her great credit she knew and said: “Well, I guess we’re just feeling generous today.” That at least earned her a polite chuckle from the bench. Best, Pat.

  9. By the by, the government confessed error in that case the next day, heeding Judge Koszinski’s suggestion.

  10. A bit disappointed at the sucking up to a self-important buffoon like Kozinski. There’s no job in the law easier, or easier to abuse, than that of an appellate judge. Such judgeships should go to attorneys with significant records of accomplishment practicing law and/or on the trial bench, not precocious 32 year olds. The measure of a good judge is not making up self-indulgent legal theories out of thin air, or berating attorneys from the bench so blogs will post about your “benchslaps” and law students will fawn over you. A great many lawyers would suddenly appear to be “geniuses” if you gave them lifetime seats on a federal court of appeals. I can only imagine how excited Kozinski is to get yet another round of worshipful oh-what-a-rogue-he-is legal blog coverage because he filed this silly objection.

  11. Pat,

    Thanks for the great story. Good for the IRS lawyer too. Like a gladiator of old, saying “We who are about to die, salute you!” has a classy sound to it.

    All the best.

    RGK

  12. Peter H,

    Interesting, by the way, I can’t help seeing a parallel between Judge K’s suggestion to confess error (or else) and Judge S’s suggestion to file a “related” case. Was Judge K being “impartial?” I am probably being silly.

    All the best.

    RGK

  13. Jay,

    You have a good point. Being smart is not a license to be an ass. E.g., Ted Cruz.

    The best appellate judge I have ever known was Richard Arnold. Richard was every bit as smart as Judge K and then some. What distinguished Richard was his intellect and his humanity. He could ask pointed questions, but he was never a performer and he was never snide.

    I also have a theory about “bench slaps.” It is this: Those who bench slap other judges or lawyers tend to be nerds who got the shit kicked out of them in the playground because they were jerks even back then. Just once, during oral argument at the Supreme Court, I wish one of the Justices would turn to Scalia and simply say, “Quit being an asshole.”

    Thanks for reminding me about Richard Arnold. All the best.

    RGK

  14. Apart from the fact that I agree with Kozinski–class-action lawsuits have devolved into a sort of legalized extortion racket, benefiting only the racketeers (the attorneys) and the company (which buys protection for pennies on the dollar)–and a big fan of the guy despite his pomposity, RGK tacitly admits what I have been complaining about for all these years:

    ALL LITIGANTS ARE EQUAL BEFORE THE LAW
    BUT SOME ARE MORE EQUAL THAN OTHERS.

    If were to file the exact same objection as Kozinski, I would be ignored. Pro se litigants are the dirty n–, er– untouchable caste of the legal universe, routinely denied even the most basic of rights by imperious and unaccountable judges. As Judge Gertner admitted here, federal judges are TRAINED to commit felonies (denial of access to the courts, 18 U.S.C. §§ 241-42), slamming the courthouse doors in the face of hoi polloi.

    The real scandal here is that anyone thinks that the District Judge is between a rock and a hard place.

  15. RGK: “The government filed a motion for summary judgment. The matter was briefed, and the judge ordered oral argument.

    Imagine … a judge not only granting, but ordering oral argument! This is an indulgence no pro se civil rights litigant will ever enjoy.

    NO SHOES, NO SHIRT, NO LAWYER, NO SERVICE.

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