Interview with Judge Alex Kozinski
Judge Alex Kozinski is a lawyer and jurist who served as Chief Judge of the United States Court of Appeals for the Ninth Circuit and Chief Judge of the United States Court of Federal Claims.
Be Average. Be Mediocre.
Contents
Max Raskin: Probably a lot more so than my average guest, your everyday life is going to differ from the average person in your caste.
Alex Kozinski: My mother would have been disappointed.
MR: Why?
AK: Her advice to me was: Be Average. Be Mediocre. That was her constant advice.
MR: Why do you think that?
AK: She was a Holocaust survivor. She says the guys who stuck their heads up got them shot off.
MR: But the people who left early to go to America or Israel…they were not average and they were the safe ones.
AK: I don't know whether they were average or not. They may have had other reasons to leave. She was talking about the ones who hadn’t left yet. If you’re in a population and something bad happens, they go after the people who stand out.
“Hoping to Persuade the World of Communism”
MR: Is the Holocaust or Soviet oppression a bigger impact on your psyche?
AK: Probably communism has been a bigger deal. I lived through communism. I left when I was 11, but I remember life under communism very well. I remember everything.
Both my parents were Holocaust survivors. They had different experiences. They met after the war in Bucharest. Growing up in Romania, I met many other Holocaust survivors to whom this was a living memory.
My earliest memories when I was four or five, the Holocaust would have been 10 years away. It’s like going back to 2013 which seems like just an instant ago, and to them it was a living memory. It was a constant.
My father had lots of tales of concentration camps, and my mother had lots of tales of the ghetto, and so in that sense to me it was a living memory because I heard about it constantly from people who had lived through it. But I didn't actually live through it, whereas I did live through communism. I actually saw it operate. I felt the effects of it.
I was actually happy with it when living in Romania. I didn't know what I was missing, so that was life as I understood it, and I left Romania hoping to persuade the world of communism, having gained an inside knowledge of it and what a great system it is. I left with aspiration to live in the West where people were crushed by capitalism and teach them the beauties of communism. It didn’t last long. I got to Vienna and I found plenty of bubblegum, and chocolate, and bananas, and I became a capitalist overnight.
MR: It wasn't a book or article or lecture or anything like that?
AK: I read about lots of stuff since, but then it was just experience. In just a matter of days I realized, “Wait a minute, this is so much better a system than what I had been used to.”
MR: Do you remember the first book that politically influenced you?
AK: I remember The Fountainhead, although by that time I was pretty far-gone already based on my life experience.
MR: So you have very distinct views on Covid and you carry a gun. Do you think having those views that are contrary to your caste comes easier to you after experiencing communism?
AK: I'm not in the caste of idiots.
MR: I mean you’re in the caste of Ivy League-educated federal judges who generally hate guns. They got vaccinated and wear masks, so in some ways you're not doing what is expected of you.
AK: Yes — probably living under communism and having grown up with Holocaust stories has made me more suspicious than other people about what the government tells you is true or good for you.
I wrote a dissent from a case called Silveira. I said, they couldn't have carted off six million Jews to the death camps in cattle cars if this had been an armed population. In the Warsaw Ghetto uprising, they had maybe a dozen guns and Molotov cocktails and their determination, and they held off the German army for weeks. So an armed population is obviously a population that is dangerous to the government; it's much harder to control an armed population. Which is why governments all over the world hate private gun ownership.
MR: Have you always owned a gun?
AK: No.
MR: Why not?
AK: I didn't have any particular reason to. It's a little difficult with moving around. I moved to Sacramento, and I moved to Washington D.C., and I moved back, and it's always more difficult. But mostly I just never thought of it.
I've never actually been in a situation where I have felt I needed a gun or I felt in danger, but then eventually it occurred to me that as a federal judge, I could probably get a gun. I could get a carry permit easily, and then I said, "Why not?"
Walking and Dissenting
MR: I want to ask you about is your vitamin routine and health. What kind of vitamins do you take?
AK: I started taking vitamins mostly since COVID.
I read up on turmeric, and I was taking that before Covid. It’s an anti-inflammatory, and that’s important in keeping healthy. I read up, and it seemed harmless and inexpensive and could be helpful in keeping healthy. Then when Covid came along I started taking D3. If you take D3, you should take K2. Then I read that zinc is good for warding off virus infections. All of these things are perfectly harmless if taken in the proper doses. My doctor always asks what I take and, so far, he approves of everything I take. He also wanted me to get the Covid shot and wear a mask, but I didn’t take that advice, and now I feel like he’s the one who got it wrong.
MR: What do you do for exercise?
AK: Nothing.
MR: Nothing? Why not?
AK: I mean other than connubial relations.
MR: Do you walk?
AK: No.
MR: Why not?
AK: I hate walking.
MR: Really? Why do you hate walking?
AK: It's boring and a waste of time I could use for something else.
MR: For someone who's never read an opinion of yours before, what is an opinion you'd show them that you think would give a sense of how you write and how you think?
AK: My Vanna White dissent is very good. Eugene Volokh helped me write that one. I mostly like my dissents. My Second Amendment dissent in Silveira is a pretty good read I think both in terms of being well-written but also reflecting my views and my style.
I had a dissent in a Fourth Amendment case that involved police tracking an automobile by attaching a tracking device to it [U.S. v. Juan Pineda-Moreno]. The Supreme Court took it up the same time as the Jones case. There was a driveway in front of the defendant’s home. One of the questions was whether this was part of the curtilage and therefore protected under the Fourth Amendment. The Ninth Circuit said no. It's an open driveway. Anybody can come there. A kid can roll a ball under there, and go and retrieve it, and all that. So it’s public, not private. Right?
One of the things that really bothered me about that is the classism of the majority opinion, and I said that in the dissent. I know my colleagues — I know who they are and where they live, and how they live, and how I live. My car is safely parked in my garage down a long driveway, and I think that's true of most of my colleagues. So when you have those kind of resources you don't care much about whether the curtilage extends to an open driveway in front of your house. It’s not your concern.
But for most people, the curtilage is an important concept. It’s something that's part of the house, part of your property as opposed to open fields, and you don't invite people to go under your car that’s parked there to attach things to it.
Sure, a kid might throw a ball under the car and retrieve the ball, but that's very different. I called them on the classism of that holding. It's really sort of pure class distinction. We don't take account of that kind of curtilage because, of course, we don't have to worry about it. I don't know all federal judges, but I think most live that way.
I talked about diversity on the bench. Presidents talk about diversity, but it’s mostly about race or ethnicity. Nobody talks about diversity in terms of wealth or class — what you called caste. No federal judge is appointed from poor castes. And that creates a particular kind of myopia about how our decisions affect people who are not of our caste.
Dick Posner
MR: If you could have clerked for any judge historically, who would it have been?
AK: John Marshall Harlan II.
MR: He’s a hero of yours, right?
AK: Absolutely.
MR: Why?
AK: Because I've never read a Harlan opinion I didn't agree with by the time I got finished reading it.
MR: What about clerking for a judge today?
AK: You know, I'd rather not say…I have too many clerks on the bench.
MR: I feel like you and Richard Posner had this reputation as being mavericks on the bench.
AK: He preferred Dick.
MR: Dick Posner.
AK: I called him Richard once or twice, and he said, "No. It's Dick."
AK: We were very different guys that way. I prefer to be called Your Worship, but nobody did that.
MR: Is it hard to be someone who's independent, fun, and a federal judge?
AK: No, no. Not at all, not at all. I think it's more work because you’re dissenting and concurring a lot. I was sort of a pain in the ass to my colleagues because I would cite check their opinions and send memos out asking for changes and the like, but they took it all in good grace. I don't want to suggest that they resented it, but it's certainly a lot more work, but I wouldn't know how to do it any other way. And I seldom faced any pressure to be different — almost never.
The Godfather v. Cabaret [Kozinski, J., dissenting]
MR: Is there a career that you think you would have been as successful at as law?
AK: It's hard to say; I don't think so, but it's hard to say. I might have been okay as a writer. I've never written fiction, and I don't know that I have the ability to write fiction.
MR: Your son Clayton writes excellent fiction.
AK: He does. And my wife writes excellent fiction too, so maybe that's where he got it, and maybe if I tried it, I would have been good at it and been very successful in it.
MR: Who is the first person that comes to your mind right now that had the biggest influence on your writing?
AK: Hugh Hefner.
MR: Really?
AK: I used to read those short stories in Playboy, which at the time, paid top-dollar for fiction. They got the best writers of the day — Roald Dahl, Richard Matheson, Warner Law, Calvin Trillin. My father used to get the magazine in the store, and when it came out, I used to filch a copy. Of course I'd look at the foldout first, and then on the back of the pullout were the jokes, and I'd look at that next, but then I'd sit down and read the fiction.
MR: You once sent me Matheson.
AK: Was it “Duel”?
MR: Yes.
AK: Yeah. Which I think is one of the three best short stories ever written.
I'm sorry. I take it back. If you want to focus on a writer…Asimov.
MR: What's the first Asimov that comes to your head right now?
AK: “The Last Question” — one of the other three best short stories ever written.
MR: What is the first episode of the Twilight Zone that comes to your mind right now?
AK: “The Old Man in the Cave,” starring James Coburn.
MR: What is the first episode of Alfred Hitchcock Presents that comes to your mind right now?
AK: I've seen so much Hitchcock Presents lately. “Man from the South.” It is based on a Roald Dahl story.
MR: You have a contrarian take on The Godfather
AK: I don't know that it’s a contrarian view. Is it?
MR: It's very a contrarian view that the Academy Award for Best Picture was wrongly awarded to The Godfather.
AK: Yeah. I think it's pretty good movie. I don't think it's a bad movie. I think it's a little long, but it's okay.
MR: But what did you think should have gotten it that year?
AK: Obviously Cabaret. Cabaret got every other major award. It got eight Academy Awards. It's still the only film in the history of the Academy Awards that has the all the major awards except best picture.
MR: Why do you think it's such a good movie?
AK: It's perfect.
MR: Do you think it's the best movie ever made?
AK: I think it is in a close tie with The Man Who Would Be King, but…yeah, I think I would give it to Cabaret. I like music, but I don't like musicals where people stop in the middle of the street and start singing and dancing…it's sort of a convention, but it's a little odd. It makes the experience divorced from reality. In Cabaret all the song and dance numbers are on the cabaret stage, except “Tomorrow Belongs to Me,” which is on a beer garden stage.
MR: What's your favorite song?
AK: “If You Could See Her.”
“Money” is a pretty close second. [Sings “Money”].
MR: My dad used to sing it to us.
AK: Cabaret is just perfect. It tells a gripping story, and it’s a morality tale. As you know, it's set in Weimer Germany as the Nazis are coming to power. It starts out with very little Nazi influence or presence, and it increases, increases, increases, and the beer garden scene is just my favorite scene. In three-and-a-half minutes — three-and-a-half minutes — it changes from this idyllic setting with this beautiful blonde boy singing a beautiful song to a menacing, angry mob…
Willkommen
MR: Are you worried about that happening in America?
AK: Well, to some extent it's already happened. Hasn't it?
MR: You think it was Covid?
AK: Not Covid; the response to it. I was really not worried about it until the last three years. I thought, "Well, that was Germany." The Germans tend to be very rules-oriented. They tend to be regimented and so on. Would never happen here.
And then it did. With the lockdowns, the mask mandates, social distancing, the vaccine mandates — you force people to inject something into their body and at the same time talk about “my body, my choice”? Talk about cognitive dissonance. And the demonization of the “un-vaxed,” friends and families torn apart, people yelling at other people in public for not wearing masks, people losing their jobs. It was mass lunacy. It showed me Americans could be every bit as intolerant and vulnerable to propaganda as the Germans.
MR: You must have looked into the research yourself before being so anti-lockdown and Covid vaccine. Do you follow medical literature?
AK: Well, I did some before these insane lockdowns, Warp Speed, and this whole insanity. But I've certainly become much more educated since then. But I didn’t need too much reading to be skeptical. We had never done anything like this in history and experience teaches me that doing something unprecedented is usually a bad idea — which is why it’s unprecedented.
My views on epidemics were formed long before this. I mean, I've lived through epidemics. I lived through the '57 Asian Flu in Bucharest. People were dying right and left…particularly small children. There were lots of tiny coffins. You would see them stacked up on the sidewalk. And my father got sick with it. We were a two-room apartment basically, and he got sick and survived. My mother and I never got sick. And I lived through the Hong Kong flu in '68 and never gave it a second thought. That was the year of Woodstock — piles of bodies crowded in and nobody gave the flu a second thought.
These things happen, and to me from day one Covid did not look any different. So the reaction of fear and hysteria that I saw so many people fall prey to was just very reminiscent of what I saw in Cabaret, what I remember happened in Germany. This was not natural. Governments and the press ganged up to drive people to hysteria. I assumed Americans were proof to that kind of thing but I was wrong.
MR: Did you try to inculcate in your children independence of thought?
AK: Not consciously. Maybe by example.
Clint Eastwood Shrugged
MR: Do you put a label on your political beliefs?
AK: Not really. I'm probably a libertarian because if you select the available categories, that's probably where most of my sympathies are. But I'm not completely a libertarian. There are many things that I disagree with libertarians about. I don't think we can have open borders, for example, which many libertarians believe.
MR: Have you become more culturally conservative in the last couple years?
AK: What does that mean?
MR: I think you strike me as someone who would want the government to get out of marriage, but you also strike me as someone who thinks that drag queen story hour in public schools is a bad idea.
AK: The question of marriage is a complex one because it is very difficult to keep the government out of it. In theory, I believe that relations between individuals should be a matter of personal choice, but lots of stuff flows from being married — life insurance benefits, inheritance, taxes, social security, immigration…
So the question of whether marriage should be a private decision or whether it needs a governmental imprimatur is a little bit academic; government involvement is a fact. So I decided a long time ago that if you're going to treat married people differently because of their relationship, which I think to some extent you should, you have to have the government involved, which means it has to decide who can get married to whom. But I've favored same-sex marriage going back to 1976. I had a discussion with a friend who was very conservative, and basically I expressed the view that people can’t change their sexual orientation, so they shouldn’t be penalized for it. People can't help being attracted to the same sex or the opposite sex and it's really not any business of the government. He said to me as sort of a trump card. “Well, if you believe that, you must think that people who are attracted to the same sex should be able to marry each other.” It was totally unthinkable at the time.
And it had never occurred to me before. So I thought about it, and I said, "You know? I think what you're saying is true. I think people should be able to marry whomever they are attracted to. People of the same sex should be able to marry each other, just like people of the opposite sex.” Basically, I believe in marriage as an institution and think the government should not stand in the way if two people want to start a nuclear family.
As for drag queen story hour in public schools, the problem is public schools. Children are required to go to school, which I support. But they go there to learn, not to be indoctrinated. If we want to have publicly supported education, which I also support, we should give parents the money and let them choose the school that provides the best education for their children and whatever indoctrination or non-indoctrination the parents choose. I’ve supported school vouchers since I was an undergrad in economics at UCLA — going back to 1970 or so.
MR: When you did the movie screenings at the court, what was your favorite experience?
AK: I think Clint Eastwood had to have been it. It was a big event — about 600 people. He spoke and answered questions for over an hour. He also joined us for dinner, and he was very gracious with the throngs of people who lined up for selfies and autographs. But I was also pretty happy with Easy Rider. Peter Fonda showed up, and then there's something to be said for The People vs. Larry Flynt. I showed it twice. I showed it once in San Francisco, and again in Pasadena, and Flynt made an entrance in his golden wheelchair right after we finished screening the movie and got a standing ovation both times.
MR: Have you ever met any of your heroes?
AK: No. You mean like Ayn Rand or something?
MR: Yeah.
AK: No. I used to listen to her live. She used to give a speech every year on something called the Ford Hall Forum, and I used to listen to that by radio. That's as close as I've come. Well, I shook Ronald Reagan’s hand a couple of times, but they were photo-ops and we didn’t really talk.
Independent Flosser
MR: Do you floss?
AK: No.
MR: Why not?
AK: I’m not convinced it does any good or is worth the effort. Maybe it is but I haven’t seen any convincing evidence of it — or any evidence at all. Mostly people say it’s good for you, the same kind of people who said for years that eggs are bad for you and you should never eat before swimming.
I use these guys. [Holds up interdental brush]. I use these all the time. They've got a little brush at the end, and I stick them between my teeth. I keep them in my car. I keep them in my desk. I keep it in my nightstand. But I use them to get out stuff that actually stuck between my teeth, not for some abstract notion of dental hygiene.
MR: So you have a more independent way of flossing.
AK: A lot of people think that things that are good for you have to be unpleasant — like flossing and exercise. I’ve done both and found them boring and pointless — a waste of life. I don’t do stuff like that unless there’s pretty solid proof that they’re worth the effort. I don’t live by bubbe meises.