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Senate Narrowly Confirms Kozinski as Appeals Judge

November 08, 1985|ROBERT L. JACKSON and PHILIP HAGER | Times Staff Writers

WASHINGTON — By a margin of only 11 votes, the Senate on Thursday confirmed Alex Kozinski, President Reagan's controversial nominee, to fill a vacancy on the U.S. 9th Circuit Court of Appeals in San Francisco.

The vote in the Republican-led Senate was 54 to 43, mostly along party lines. Sen. Pete Wilson (R-Calif.) voted to confirm Kozinski, while Sen. Alan Cranston (D-Calif.) opposed the action.

"I'm very pleased and humbled, and I'm anxious to return to California as soon as possible," Kozinski said after his confirmation.

Kozinski, 35, a UCLA alumnus who has been chief judge of the U.S. Claims Court in Washington for the past three years, now becomes the youngest federal appellate judge appointed in this century.

Western States

He will join the nation's largest regional federal appeals court, with 25 active and nine senior judges hearing cases involving California and eight other Western states. He will sit in Los Angeles, along with five other 9th Circuit judges.

During debate on the Senate floor, Democratic opponents of Kozinski described him as exceptionally bright but said his conduct as special counsel to the federal Merit Systems Protection Board in 1981-82 showed that he lacked the temperament and compassion judges should have.

Sen. Carl Levin (D-Mich.), Kozinski's leading opponent, charged that Kozinski harassed his subordinates in the special counsel's office, forcing them to move and repair his office furniture and writing deprecating remarks on drafts of their legal briefs.

"He is exceptionally intelligent and academically superior," Levin said, noting that Kozinski, a native of Romania, graduated first in his UCLA law class in 1975. "But he lacks judicial temperament, is prone to anger and is lacking in compassion."

Sen. Howard M. Metzenbaum (D-Ohio) declared that Kozinski "misled the committee in responding to objections raised to his confirmation." He said Kozinski told the committee that Mary Eastwood, a former employee of his, had repudiated earlier charges she made against him, while Eastwood told the committee that she held firm to her conviction that Kozinski had treated some employees in a "harsh and cruel" manner.

However, Sen. Strom Thurmond (R-S.C.), chairman of the Senate Judiciary Committee, which had approved the nomination, called criticism of Kozinski "the puniest, most nit-picking charges ever raised against a judicial nominee."

Sen. Orrin G. Hatch (R-Utah) praised Kozinski as "an outstanding legal scholar . . . fair and understanding."

Critics and supporters alike agree that Kozinski's abilities are exceptional, however, and acknowledge that his background--a childhood spent in the closed society of Communist Romania, where, he noted, typewriters must be registered with the state--has left him with a deep appreciation of the legal system.

Free Society

"You don't realize how bad it is in a country like that until you live in a free society like ours," he said in a recent interview. "People there live in fear of the secret police--fear that something they say may get them taken away in the middle of the night. I have seen people hauled off in their pajamas.

"I've seen what a system of government can do when it is not restrained by law. It's very important to have a system where the rights of minorities are protected--and the rights of the majority are protected from a small minority of oppressors."

Moreover, he contends that his youth can be a major asset.

"Certainly, in 10 years I hope to be a better judge than I am today," he conceded. "But to some extent, being young is an advantage. I may have a general philosophy, but there are very few things I have already made up my mind on. I can keep an open mind and put the time and energy into the job that it requires."

He is widely expected to bring a conservative voice to the court, now perhaps the most liberal in the country. He told the Senate Judiciary Committee that many federal and state courts "have abused the mandate given to them by the legislature and have embarked upon schemes to rewrite statutes, to impose far-reaching remedies and to undermine the traditional threshold requirements for adjudicating cases or controversies."

In the interview, Kozinski said: "It's wrong for judges to decide on a result they want in a case and then try to make the law fit. I think that you start at the other end--with the law--and come out wherever you come out. You may not like the result, but that's just too bad."

That view of the law, which is the sort Reagan is seeking from his judicial nominees, is becoming increasingly common on the federal bench.

Reagan Record

By the end of this year, it is expected that Reagan will have named nearly 300 judges to the nation's federal district courts and regional appeals courts, and he probably will have filled a majority of the 743 positions on those courts by the time he leaves office in 1989.

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