Glimpses of Human Failings Harm Legal Legitimacy

Judge Alex Kosinski, Chief Judge of the 9th Circuit U.S. Court of Appeals, sitting as a trial judge on a case involving distribution of obscene material may have to recuse himself as he himself has been a regular contributor to a website containing questionably pornographic material. The NY Times article is available here . The article, and those put out by the wire services contain some unfortunate quotes from the judge (i.e. “It’s not a porn site. There’s some funny stuff on there.”) According to the Times, "the site, now disabled, included a video showing a sexually aroused animal, a photograph of naked women painted to look like cows and images of masturbation and public sex." Ouch!!

The legal system does not need this kind of publicity. Yet, as a legal educator, I see this incident as another opportunity to help students see judges as people, with all the capabilities and failings that are inherent in humanity. These types of incidents damage the legitimacy of the system by exposing one of its inherent potential weaknesses - it's humanity. One of the reasons why we retain certain traditions in our system, like robes for judges and the strange language of court openings ("oyez, oyez . . .") is an attempt to disguise the court's humanity in mystique. A college educated person should understand this.