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In 2001 Chief Justice William Rehnquist Called Kozinski on the Carpet for Pornography

Los Angeles- Alex Kozinski’s Web-browsing habits have long been a touchy subject.

On Wednesday, the 9th Circuit chief judge was rapped by the Los Angeles Times for hosting sexually explicit material on a publicly accessible server.

Back in 2001, it was then-Chief Justice William Rehnquist who was sounding the alarm, according to the federal court system’s former top administrator.

In a statement submitted to a judicial discipline reform commission last fall, Leonidas Ralph Mecham — a longtime Kozinski nemesis — described Rehnquist as furious with Kozinski over the issue of court Internet usage.

“Tell Alex to watch pornography at home and not download it and watch it in the courts,” Mecham quotes the late chief justice as having said.

Mecham claimed that Rehnquist asked the U.S. Judicial Conference’s Executive Committee to “take firm disciplinary action” against Kozinski and others at the 9th Circuit — but the committee refused. Mecham called it “the worst example of failure by those responsible for disciplining judges that I witnessed during my 21 years as [administrative office] director.”

Mecham and Kozinski, now the chief judge of the 9th Circuit, have a history of bad blood. The two fought bitterly over the court’s Internet monitoring policy during the early part of the decade, with Kozinski at one point publicly calling for Mecham’s job. Mecham retired in 2006.

But Mecham’s declaration raises new questions about Wednesday’s report in the Times that Kozinski stored extremely graphic photos and video on his personal Web site,

The site, which is operated by Kozinski’s son, was taken offline sometime before Wednesday morning, just as Kozinski was scheduled to oversee a high-profile obscenity trial in Pasadena.

Kozinski told lawyers at a hearing outside the presence of jurors Wednesday that he had nothing to say about the Times article, but added that he would hear motions to take him off the case.

“I’m very sorry I didn’t know about this before the jury was sworn,” the judge said.

Los Angeles businessman Ira Isaacs is facing four counts of distributing obscene materials via sales of sexually graphic DVDs. Jurors are expected to watch hours of raunchy videos during the trial.

Attorney Roger Jon Diamond, representing Isaacs, told the judge he opposes recusal. The prosecutor, Department of Justice lawyer Kenneth Whitted, said the government was conferring internally about its options. He said he would have an answer about recusal by Thursday.

Kozinski is presiding over the case on assignment. He did not immediately respond to a request for comment Wednesday by The Recorder.

But Cathy Catterson, circuit executive for the 9th Circuit, told The Associated Press that the material on Kozinski’s personal Web site was stored on a home server that was accessible to family members. Kozinski told the Times that he did not maintain the site on his work computer.

“Most of it was jokes,” Catterson said, adding that she had not personally seen the material.

According to the Times, the racy images could only be seen by viewers who knew to type in a subdirectory address on the Web site.

“The contents are a private matter. It was not meant to be accessible by others,” Catterson said. “He would have been more careful of the contents had he known what was on it.”

Catterson said that after the story broke, the judge’s son called Kozinski to say he had been responsible for uploading some of the material onto the computer. However, she could not say how much or what material was involved.

The Times reported that Kozinski said he must have accidentally uploaded the images to his server while trying to upload something else. He also said he would delete some material including pictures of women painted to look like cows, which he called “degrading,” the Times said.

Kozinski said he began saving the sexually explicit material and other items of interest years ago, the Times said.

“People send me stuff like this all the time,” he said.

Ronald Rotunda, a legal ethics scholar at George Mason University School of Law, said the images’ posting raises questions about Kozinski’s judgment.

“I don’t think they should be posted any place, as they were described to me,” Rotunda said. “It’s not what I would recommend for a judge.”

Mecham’s October 2007 letter to the Judicial Conference Committee on Judicial Conduct and Disability added an awkward wrinkle to the federal judiciary’s highly publicized push to tighten its disciplinary procedures.

In a brief interview last year, Mecham confirmed that he had written the statement, but declined to discuss it in great detail, saying he had hoped it would be used by the judiciary to bring about reform internally.

Kozinski, a staunch conservative and strong First Amendment defender, has long been vocal about judicial discipline. He wrote a vigorous dissent against a 9th Circuit Council decision in the Manuel Real case, in which Kozinski saw the discipline as unduly light. And one of Kozinski’s first acts as chief judge was putting the 9th Circuit’s discipline opinions online.

The federal courts in 2001 undertook a study into courthouse Internet usage. According to Mecham’s statement, it was prompted by a major increase in the use of bandwidth on its computers.

“The staff was expressly forbidden to examine either e-mail or individual computers used by any judge or court employees anywhere in the country,” Mecham wrote. “This was done to ensure privacy.”

Kozinski didn’t see it that way. He led a ferocious public response, penning a Wall Street Journal op-ed accusing Mecham of a monumental invasion of privacy.

“Unbeknownst to the vast majority of judges and judicial employees, Mr. Mecham secretly started gathering data on employee Internet use,” Kozinski wrote. “When the Web sites accessed from a particular computer affronted his sensibilities, Mr. Mecham had his deputy send a letter suggesting that the employee using that computer be sanctioned, and offering help in accomplishing this.”

Kozinski acknowledged disabling the court’s security system as a way to protect privacy. Many prominent appellate judges, including Edith Jones of the 5th Circuit and J. Michael Luttig, then of the 4th, backed Kozinski.

Mecham fired back, telling The New York Times that Kozinski had a “great interest in keeping pornography available to judges.”

Ultimately the Judicial Conference adopted a model policy that allowed judicial employees limited personal use of the Internet, but that prohibited uses that bogged down the system, such as the downloading of music or video files. The policy also allowed any legitimate work-related Internet use.

Asked at the time about his relationship with Mecham, Kozinski told The Recorder, “I don’t expect him to be around for the next two weeks, as far as I’m concerned.”


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