A Romanian immigrant born of fleeing Holocaust survivors, Kozinski came to America at the age of 12. In 1985, at the young age of 35, President Ronald Reagan appointed him to the Ninth Circuit, making him the youngest judge in the Federal Appeals Court.
Kozinski immediately set the tone of the lecture by taking off his jacket and urging everyone to “loosen their ties.” He began by emphasizing the influence the judiciary has over the lives of American citizens. “We have in America the most powerful judiciary [in the world],” he said. “Everyone considers a decision from [the Supreme Court] to be final and binding.”
According to Kozinski, much of the court’s power comes from the fact that the American public has an innate respect for the judiciary system. He illustrated this point by examining President Richard Nixon’s response to the courts in the 1970 Watergate scandal.
Kozinski explained that when the district judge ordered Nixon to release the tapes, Nixon did so, even knowing that it could, and eventually did, result in the first and only resignation of an American president.
Kozinski pointed out that Nixon really had no say in the matter of his impeachment because his compliance was rooted in the nationally-held idea that the court has the final say. “Direct defiance of a court order � is totally unthinkable,” said Kozinski. “[To ignore the court’s order would have been] a worse disgrace than resigning the presidency.”
“[Watergate] demonstrate[s] the elevated status courts have in the American public,” he continued. The judge then briefly discussed other countries such as Canada, Zimbabwe and even England in which the power of the judiciary is nowhere near as effective as it is America.
Kozinski described the tricky process of constitutional interpretation. “If the constitution was self-executing � judges would be like book keepers,” he said.
Kozinski explained that as soon as one begins applying words written over 200 years ago to modern America, one has what we call “[a] truly literal interpretation” of the Constitution. He worries that judges today are “applying words of the document to a set of institutions” rather than to an actual machine.
The ambiguous language of the Constitution causes many interpretation problems for judges. “The Constitution is chock full of things that aren’t clear,” he said. He specifically named phrases such as “due process” and “cruel and unusual punishment.”
According to Kozinksi, the relative vagueness of the Constitution’s words allows judges a great deal of leeway when interpreting. The provisions with unclear meanings give judges lots of power. “I like those,” he said.
These key phrases provide obstacles to interpreting the Constitution. Kozinksi went on to explain the first of these obstacles. “There is no way to ensure [absolute] continuity of interpretation,” he said. Much of this depends on how the judge, or judges, feels about the issue. “The first amendment � has been a subject of great judicial favor,” said Kozinski. “Judges like the first amendment, but they are afraid of guns.” The popularity or unpopularity of certain amendments often tends to color judges’ decisions.
Another problem in constitutional interpretation is the issue of those rights that are not specifically mentioned in the document. “Rights so far removed from textual anchor [are harder to justify],” said Kozinski. “If it is hard to determine how judges will interpret words that are there � it is much harder to tell how they will interpret the words that aren’t there.”
Kozinski went on to express his view about the role of judges. “The process of constitutional interpretation is not a mechanical process,” he said. “[It is a] process that requires judgment.” Kozinski said that this judgment will always be influenced by the philosophy of the judge.
Kozinski also enumerated upon the checks and balances inherent in our government. He reminded the audience that other branches besides the judiciary have the authority to check. “Judges can only hear cases Congress allows them to hear,” he said. “Congress continues to believe they can exercise this power.”
Kozinski highlighted Congress’ control of the budget. “Congress could � sit on our air pipe and limit the budget in various ways,” he said.
Congress can also control the judiciary through the confirmation process-a topic that has been in the media a lot recently because of the John Roberts’ confirmation hearing. “Supreme Court nominations have always been controversial,” he said. “If you pick the right judges, you can shift the law in any direction you want.”
As a final facet to his speech, Kozinski brought up the notion that there is no law but rather matters of interpretation. “[This idea] has become universally accepted by the judiciary,” he said. He claims this principal of judiciary realism has become widely accepted among the entire law community. “The only thing out there are people, people who interpret the law,” he reminded the audience.
“It is important for people to realize that if this process is pushed to its limits, the magic will wane,” he concluded. “We will be better off if those of us that have power will adhere to a concept of selflessness.”
A federal mandate passed in 2004 requires any educational institution receiving federal funding to have educational programming regarding the Constitution in the week preceding or following Sept. 17 of every year. Kozinski’s speech fulfilled this mandate.