Ik is seven o'clock on a late- ward 12-year-old Romania Jowibh iamigran¢ ito, at 3 ete ae ay quietly in the background. % Sheen Jit macoon. drapes : I alice Ui ty claborste aa is lay hol elas Lal fugless chandeliers, the esta Kozinski clerked at the US. Teovbas te genie aunosphere Con of Appeals al it fo fan exclave Baglsh “ Giet fan amblence enhanced by the ce ederal P Kozinski in A snowboarding libertarian and bungee-jumping intellectual, Alex Kozinski is one ‘of the most provocative and influential Federal judges in the country today. As he ~ leads his one-man charge to remake American law in a conservative mold, he's als keeping his eyes on another prize—a seat on the Supreme Court. By Robert S.Boynton 3 youngest person. appointed tothe Federal bench in this con ish Tnke man, Kozioska tury Dr blue windbreaker, a sirped ten-year, itwas an apen sec tis shirt and jeans, which indi- fate his unceremonious atstude roward ifeoffthehench: Aftera —pointment many think will day of bslinicing the scales of occur if a Republican wins the justice, the eschews all White House next Ni by night. The recent Suprem: discrepancy between himself — qominees, Kozinski doesn't hesitate to trumpet his julie da: “E want co change ‘of American jurispri= Spent most of his life standing dence,” he has declated. apart fiom the cre jen his considerable Sipping fom says—indeed, Kozinski has sion, energy and imellecusal DAVIS FACTORcociousnes, one might think of Kozinski as the Newt Gingrich ofthe judicial branch—a preter naturally youthful, superspatsi- otic libertarian, who believes that the combination of ad- vanced technology, small gov= femnment and fice markets will steer America twvantits loro manifest destiny, Kozinski ideas have found fertile soi in the Newtonian era, his engage ing prose popping up in a dizey- ing array of Supreme Court decisions, la jouemals, newspa- pers, textbooks and legal brie ‘The conservative judge Richard Posner als him “one ofthe best and smartest judgesin the coun- ‘ry and Harvaed constitutional scholar Laurence Tibe consid- cershim “one ofthe few genuine ly interesting minds in the Federal judiciary.” Clint Bolick, the litigation director of the con: servaive Institute fr Justice and the man who helped torpedo Lani Guinice’s nomination for assistant attorney general, says if he were “advising a peesdenton the Supreme Court, Alex would bbeon the top of my is.” Much of Kozinski’s wide ap- peal stems from his relentlessly commonsense approach to lav He believes in simple princi ples: Cantraets should be bind ing; people who take stupid ‘sks shoulda’t win millions of| dollars in damages; the cones should follow the language of the Constitution, Ever skeptical about governmental interference, he possesses an unbridled ‘enthusiasm for property rights and the free ‘market. “Economie liberty isa civil Uber.” he writes, “as fian- damental as voting, travel, reli- gion or speech.” In one address, he jokingly envisions American history through the Piece by piece, Kozinski offers up artifacts from his life—videotapes of himself bungee- jumping, and the program and some pictures from his son's bar mitzvah eee lens of present-day litigious ness: “Asked whether he cut down his father’s cherry tre, George Washington would have taken the Fifth” ‘But Kozinski doesn’t always ‘come across like a Gingrich in black robes: Because he sees ‘the Constitution as primarily document that limits govern ‘ment, his postions on criminal Jaw and defendants’ rights aze notably liberal. He is no rmoralist, and believes thar gov. cemment should have as bile power in the private sphere as inthe publicone, He has ruled for pomographers who “incor- rectly guess” the age of an un- erage actress, and has argued that the First Amendment protects flag burners, “Alex is one of the true conservative libertarians in public life today.” says Harvard Law School professor Alan Dershowitz. “He shakes his fin ger at fellow conservatives and tells them to scrutinize govern ment tall levels noejustwhere ithelps their wallets” Another reason for Kozin- skis influence and popularity is that he presents his ideas with clarity and—believe it oF nor—humor. Refreshingly fice ofthe mangled legaese fi vored by most jurists, his best opinions read like pieturesque shore stories, complete with sharply drawn characters and pithy morals. “Every market hhas ite dreamers and ite crooks,” he concludes in one cease, and “occasionally they are fone and the same.” A film fi atic, he once covertly weaved 215 movie titles into an opinion, about a Nevada cinema owner In a Yale Law Journal article fon Yiddish and law titled “Lawsuit, Shmawsuit,” he pondered the fact that the hhame Schmuck is more com- mon than the name Mensch “Pethaps this is because there are more schmucks than men- sches,” he suggests ‘Kozinsk’s literary produe- som doesn’e stop at leg opin fons: While he has ambitions to write a novel, he is more ex- cited about his screenplay, which chronicles the bitter war being waged on America’s slopes herween skiers and snowboarders. An avid snow- boarder himself, Korinski sides with the latter, “The chase scene would be lke something from On Her Majesty's Secret Service,” he says."“nd ofcourse, Td work in a nice Endangered Species Actangle.” When he isn’t snowboard- ing he's been known to bungee- jump off 13-story cranes, He reviews video games for the Will Seeet Journal and books for the New Republic and the New York Times, He interviews potential lw clerks aver poke and since the ones he hires ‘work like dogs for him, he'll oc- casionally take them to Las Vegas to gamble. He is an ac- ‘complished amateur magician and ofien practices new wicks in his chambers. He has even been known to break out in song during his lectures. tone symposium, he announced he had unearthed the song Reagan ‘composed for Justice Antonin Scali’s nomination, which he then sang to the tune of Leonard Bernstein's “Mari “Scalia, I just picked a judge named Scalia. But some coure-watchers be- lieve that Kozinski wields the gavel offustice like a magician’s ‘wand, obscuring reactionary poli~ (continued on page 24) DAVIS FACTORWise Guy {continued from page 174) tes with rhetori- caleloquenceand personal appeal. "Kezinski gets away with a lo because he isso funny ‘and chatming,” says Nan Aron, president of the liberal Alliance for Justice. “But he is also very dangerous, especially with regard to the rights of immigrants, workers and the poor. Property rights always trump Ihumaa rights for him.” ‘The possbiltythat Kozinské mightend up ‘on the Supreme Court adds urgency to liber al’ criticisms. ‘They note that even fom bis ‘seat on the appeals court, Kozinski takes an ‘extremely broad view of his role as a judge, approaching each case with an eye toward changing the law—and society —asa whole. ‘Some colleagues gromble about what they describe as bis arrogance and grandstanding, ‘one going so faras to call him “a smare-aleck. pain in the ass" The more serious criticisms, however, suggest that Kozinshi, beyond hav ing litle sympathy for the welfare state, is de- liberately undermining it. Fellow Ninth Circuit judge Stephen Reinhart, a passion- ate liberal and close friend of Kozinsk also one of his harshest crt think of his views? Not much ly ‘Alex is one of the bvightest of the right Wing, but he focuses too narrowly on proper- ty and is tere on affirmative action and other civil rights. I would hate to see him on the Supreme Court, where he could do some really serious damage. [don't know if our ffieadship could withstand that.” Were Korinski nominated for the Court by «a Republican president backed by a Repub- lican Senate, cis fir fom certain he would be confirmed. Culturally iberarin while polit- cally conservative, Kozinsl isbalanced along. the fault line dividing the GOP Whether he could woo both camps is not clea, but he seems determined to try: Only balf joking’ Kozinski is the founder and sole member ‘of his own advocacy group, OOPPSSCA— the Organization of People Patiently Secking Supreme Court Appointment. rounded by lavish flower gardens and carefully manicured lawns, the peach-colored stco Pasadena cour of appeals building looks more hike the vacation resort once was than a place where layers and judges meet to battle overthe ate ofthe acted Teas usual—a loriously sunny day in southern Califor snd Kozinsl is showing me the magisterial views fom his enormous, window-wrapped ofc. The walls ae covered with oficial doc ‘uments from his presidential appointments, punctuated by photographs of Supreme Cou justices and Ronald Reagan. In one 2s cece ‘omer stands a postr from the Spencer Tracy film Inkeie the Wind—a monic that has 9 ‘prominent place on the “KER” (Kozinski’s Bavorite Flicks) ist, whieh the judge urges fon me while he oversees every detail of the preparation of our eoflee and bagels A blue of activity, Kozinski is pathologically charming and helpful. Piece by piece, he offers up artifacts From his hile videos of him snowboarding and bunge jumping with his wife and three children; hundreds of opinions, book reviews, speeches and articles; lists of the books on tape he listens to while driving to work; the program and pictures from his soo's bar ‘mivavah; the phone numbers ofall his past clerks, a5 well as of half the judges in the country. He points to one name, chuckling. “Make sure to call him—he really hates sme." Forget paper tails—Kozinski is fol- lowed by a superhighway of information. Kozinski was so outraged by Jane Fonda's stance on Vietnam, he boycotted Barbarella Even at9 AM, the judge's chambers are buzzing with setviy as his clerks —who are ‘on 24-hour call and frequently spend entice nights responding to faxes sent from home by their insomniac boss—wandercasuallyin and out, trading snippets of legal gossip and consulting about eases, "T realize that they hhave to eat and sleep, although I'm not hap- fy about it,” he says with mock indignation. ‘The judge is a famously demanding boss, and it is not unusual for « decision (0 go through 40.0r50 versions. “My dissent in the libel ease against [New Yorker writer] Janet Malcolm was very complicated, so ve had to ddocighty-thrce drafts,” he notes offhandedly, His clerks are reputed to be among the best- ‘rained lawyers in the country and regularly move on to plum jobs clerking for justices, including Antonin Scalia, Anthony Kennedy and Sandra Day O'Connor Leaning back in an oversize leather chai, Kozinski forms a steeple with his hands, switches into a lecturing tone—wvhich he drops shen he gets excited—and launches into a: monologue about the kind of society he's tying to create through his opinions: “Look, we have o realize that ideas havecon- sexquences, and legal ideas have more serious consequences for society than most.” The las in his view, hasan ineradicable moral ‘mension that we ignore at our peril. When, for example, “courts tell us that someone else is always to blame for whatever misfortune happens to befll us, pretty soon we start to belive ita denial of personal responsibil ty that Kovinski devides with his Toyota Principle (oamed for the company’s “You asked for it, you got it” ad campaign), “Lawyers must see the aw as“ method forre- solving legitimate disputes rather than 2 ‘means of extortion.” Kezinsks concern for the creation of an ordered community tem- pers his lisse-fuie approach to economic ‘and socal issues. Thus, in Layman. Combs, heblasted profesional investors who reneged fon a contract, “These weren't mom-and-pop investors who mortgaged their retirement to ‘buy palladium mines in Zanzibay,” he wrote “Ifthese subscribers can'tbe held tothe terms ofthe contract they signed, who ever can? “In an older legal tradition,” Kozinski ex plains, “lawyers were primarily crusted ad- visers who offered clients their wiscdom; they advised their lients about long-term interests, not just the problem at hand ‘Sometimes a lawyer might tell you that you shouldn't ste because itis more important tofind yourself the right kindof help than it isto get money for your injury. Fis remedy for “hate crmnes” exemplifies this ant-ltigious, communitarian approach, “Ou focus on paiishing the speaker dives attention rom. the things we can do to re= pair the damage,” he argues. Society’ first responsibil, Korrinski says, is w reassure vietims of thie rightful place in the commu to tell ther that, despite the wrong suf fered, they are not outcasts Asan illustration, he points to the token war reparations mother sill receives from Germans, which, she values asa symbol oft citizens’ respon: sibility for crimes against the ews. Indeed, Kozinskt isnot shy aboutbringing hie experiences to bear on hie legal formula tions, He particulaey auinbutes his sensitiv ty to fee speech and defendants’ rights to his time in Romania. “I know what it means for police realy to run amok,” he says. "Seeing people hauled away in their pajamas in the ‘middle ofthe night stays with you.” he grandson of a sivovitz bootlegger and a grocery store owner, Kozinski was born in Bucharest on Tuly 23, 1950, His fithes, Moses, spent most of World War I in the ‘Tansnistsia concentration camp, where inmates were systematically worked 1o death. His mother, Sabine, survived the war in a Jewish ghetto, and met Moses in Bucharest in 1946, A ‘weaver by trade, and a Communist agitatorWise Guy ced a real skill co fall back on in case of a catastrophe. But L was terrible at math and Ina less than a C average ovinski was more diligent in hisextracur- ticular Tie: He began dating seriously and xwrote a column in the Daily Brain, holding, fom on everything from libertarian polities te the graft in campus bathsooms. It was 1968, and as rallies against the Vietnam War scaled, Kozinsli, who had just become a naturalized citizen, chafed a his fellow stu- ‘dens’ polities, “Most ofthe protests were real- ly about people justifying the fac that they were chicken,” he says. “Students were se- dduced by alltheanti-American rhetoric, They hnadn’tlived under truly repressive regime” ‘So outtaged) by anti-American seatiments was Kozinski that he boycotted (and still fuses to ee) Jane Fonda movies —a stance shout which he has only one regret “I wish Thad seon Barbarella,” he says wistfully "Maybe one day I'l watch the video—if someone else pay’ fort Unsuited for engineering or medicine, he decided 10 cy his hand at law He squeaked into UCLAS School of Law, where his casual attitude toward work changed after he read fan article that painted bleak picture of the legal job market. “It std that ifyou were in the top ten percent of the clas, you could swrite yourown ticket. But ifyou weren' they suggested that you could become an’ PBL agent. That scared the shit out of me. Here T was, a lite Jewish id with an accent ig- sured that Pd never get jabs, Sol decided that if was going to be employable, Pd havetobe firstin my class. Noc second or third. Firs.” Kozinski was managing editor of the baw review and yas indeed graduated first in a class of 300, With these credentials, he baad his pick of jabs. One professor, however, en- couraged him to clerks, suggesting he tll co Anthony Kennedy, « new Ninth Circuit Federal appeals judge. (And now, ofcourse, a Supreme Court justice) The tsa hititoffin- stantly: Kovinski loved his subsequent yearas 4 clerk and applied to the US. Supreme Court for another clerkship, where he wa eventually hired by Chief Justice Warten ‘Burger. Work had become hie pasion, Following that clerkship, Kozinski prac- ticed corporate law for dhe years ist in Los Angeles snd then back in Washinggon at the bic blooded firm of Covington & Burling Buthe soon found that he wasn't cutout to be a rainmaker; when the firm assigned im an important client, Kozinski spent their entire first meeting explaining why the cient dida’t really have a ease. "Afr that” he says, “they lee me stayin the law libra Ronald Reagan was Kozinski’s salvation, 25 Coorg: Ihe couldn't yet beon the Supreme Court, well, for a conservative lawyer who wanted to change the world, a post in the Reagan administration was the next bes thing. And. in the summer af 1980, with the hostages stuck in Tehran and Jimmy Carter stuck in the White House, a Reagan administration seemed imminent, and Knzinsk's desire eminently plausible except for one fac He had no political experience or contacts ‘Then, while riding the Mecto t0 work one day, he read a newspaper article titled “Reagan's Lawyers.” As soon as Kozinski got t his office, he called one of the lawyers ‘mentioned. “My name is Alex Kozinski” he said in the forthright manner that had become his trademark “I was first in my class at UCLA, clerked for the Supreme ‘Court and want help Ronald Reagan.” Soon enough, Kozinski was writing legal memos for the campaign, After the clec- tion, hie diligence was rewarded with a po- sition in the White House Counsel's fice Kozinski says of the death penalty, “Once the sentence is carried out, the recidivism rate is low” 1 was a heady time for a conservative young lawyer a bein Washington, Present Reagan had brought with him a group of Tawyersintent on rolling back liberal excesses and deregulating the country. "It was une liewably exciting, like storming the palace during a South American revolution,” Kozinski remembers, We were taking ver” In 1981, Kozinski was made special eoun- sel to the Merit Systems Proveetion Beard, a Federal agency charged with, among ether things, protecting whistle-blowers from retribution, His time there ws marked by turbulence; several employees were forced ‘out as the ambitious 30-year-old Reaganive tied to reinvent a Federal bureaueracy from the top down. Socially, however, Kozinski fit right in, “Schmoozing and gessiping at all those cocktail parties and receptions ‘was completely superficial,” he says with feigned disgust. "And Iloved it.” ‘A year later, Kozinski spotted an opening: Congress was ereating the U.S. Claims Court, which would hear financial suits against the government. "T called my friend at Justice and told him, “I want to be chief judge.” He just laughed and said, ‘Alex, you aren't even thiry-two yet. We can’t make you a Federal judge." Afer three months of pestering, Kozinski received the appoint- ‘ment and was confirmed by the Senate When a new group of Federal appeals jndgeships were created in 1984, nobody ‘was surprised that Kozinski wanted one Although noc yet 35, Kozinski had by this time developed a strong group of support- cers-who were eager to aul his name to the growing ranks of young conserva transforming the judiciary. But Senate Demoerats—who were being steamrolled while Reagan attempted @ replace more than half the Federal beach—chose this ‘opportunity to fight back. "Their aim is plain,” complained then senacor Alan Cranston. “To pur the gavel of justice firm lyin the ist ofthe New Right.” Still, Kozinski's confirmation prospects initially looked good: He was banlly a rigid ideologue, and he was qualified, which led the Judiciry Committee to send his eomina- tion to a Senate vote with unanimous sup- por. Then a grup called the Govemment Accountability Project got into the set, accu ing him of having politicized the Merit ‘Spstoms Protection Boar Distraught by the attack, Kozinski tried to fight back. He submitted in his defense a radio editorial that had been broadcast on Boston's WEEI praising him and attacking the Government Accountability Project as linked with anti-Semitic supporters of tee- rorism, ‘The editorial baekired, however, when itemenged that its writer was married toone of Kozinski’s clerks and had consull- ced with the judge in writing the piece "Nevertheless, he was confirmed on a 5443 pany Tine vote. “Tm humbled,” ‘Kozinsi told the Netw York Times hese days, Kozinski wants Amold Schwarzenegger to play him in enc-man, his prospective cre play about a heroic, suit-sealing juudge. A cross berween a “vigilante Oliver Wendell Holmes” and “Learned th brass knuckles,” Bench-mar is ‘Kozinskis judicial i, a postmodern super- hhero dedicated 10 the fine art of conflict ar- Ditration. Te is a joke, of course, but Bench-mman is also vintage Kozinski: He is making a serious point with humor The morning afier he tells me about -Benoh-man, Kozinski whisks into the smal, ‘modern courtroom of San Francisco’: US. Gourtof Appeals, his black robes wishing, ‘mischievous smile on his face. Alkernately offering folksy, offhand summaries of com- plex cases and. challenging lawyers with ‘mind-bending hypothetials, Kozinshs has a Handin his youth, Moses was made viee-prescent cof a textile factory when the Soviet-backed _zoveiniment took over after the war Life in postwar Romania was not easy for the Kovinskis, even with Moses's party exe lentils. Nor was the gulf berween commu- nisms theory and its reality lost on Alex: At age eight, the boy got his father into trouble by publidly asking him how a govenment with so many political prisoners could poss- bly publish a newspaper called Free Romania "Thereafier, Moses use hand signals to indi. ‘cate when Alex should keep quiet A difficult life became even harder when the Kozinskis applied to leave Romania in 1958, Moses was immediately fired from his executive position and sent back to the looms; Sabine lost her job as a government typist and was reduced to taking dictation at home. “She would type on a small portable typewriter with three fingers,” Kozinski remembers. “She made eight copies of each page and I would stack the carbons for her. We were so poor that every afternoon, Fd melt the graphite in the sun 0 she could use them again. Permission to eave was finally granted in 1W6l. Allowed only one suitease each, the Kozinskis arrived in Vienna on Christmas Day and spent the next ten months debating whether to settle in Israel or the United ‘States. Aer visting relatives in Tel Avy Alex ‘was desperate o goto Israel, bur Moses, fear= fil about the wars he knew his son would have to fight there, decided on Amesca. To rmollify his distraught son, he promised two things: They could go to Issel if ie in the US. didn’t work out, and upon arriving in America, Alex would get his own television “One taste of chocolate and bubble gum and [was capitalist,” remembers Kozinski T spent the first several years glued to the television, sucking up American culeare.” The Kozinskis had always been firm be- lievers in the importance of education, and in Baltimore, asin Bucharest, Alex was sub- ject to a series of language and music lessons. "My mother told me that every thing you learn is another weapon in the battle for life.” Sabine attached a wai typical of Holocaust survivors mediocre, don't stand out, don’t be differ ‘ent-or something might happen to you." ‘Alex was happy to comply: “Inever studied. [followed her instructions to the letter.” Five years alter coming to Baltimore, the family moved to Los Angeles, where ‘Moses opened a small grocery store. After high school, lex enrolled at UCLA to study engineering, “My parents pushed me into i,” he says, “They believed you need- No RESEMBLANCE WHATSOEVER, Auuilable 01 CD and Casese from Giams Records (81995 Gi Rear Sia. Special _ Edition 203courtroom demeanor informed by playful borscht-ele humor. But beneath the come dy, Kozinshi keeps the litigants focused on the fundamental issues at hand, probing weaknesses witha surgeon's skill In one of this morning's cases—against a bookkeeper accused of absconding with company funds—Kozinski wants to know ‘mony. The hookekeeper's defense is that she simply botched the numbers. The proseeu- tion argues that she was corrupt rather than incompetent. "The whole ease comes down to this question,” Kozinski concludes, “Wis the bookkeeper confused, or was she el? ‘The proscentor breathes a sigh of rele: ‘The bookkeeper, it seers, had managed the bbooks well enough until the money's disap- pearance, so surely “confused” isthe wrong, answer. But with his nest question, Kozinski gently hegins to tug at a thread that could unravel the prosecution's case “L guess i all boils down to the issue of whether beingan accountant iean essential characteristic or not. Let's say we had something like a DNA test, where you could take a blood sample and say: Yap, that’s a bookkeeper, of, that’s not a book keeper Then our problem would be saved, ‘wouldn’cit?” Kozinski asks pointedly. The prosecutor shifts nervously fom foot to foot. If he pursues Kozinska’s analoy hell be forced to admit that—ualike with Fingerprints or DNA—there is no scientific method with which to tell the difference be- tsvecn a bad bookkeeper and a dishonest ‘one, But fhe admits that, he discredits his ‘expert witness. So the prosecutor dodges Kozinski's question. “But, uh, then that ‘would be a diflerent case,” he offers lecby. “Ofcourse itis different ease,” Kazinski says testy, “but iF yon answer my question, Tl show you how the two are relate.” Tn an attempt to delay the inevitable, the prosecutor switches the subject and stam mers on fora few minutes about other ix sues before slinking back to h Rejuvenated, the defense springs up for his rebuttal, apparently confident chat Kozin ski as swung the ease his way. Remember,” cautions the judge, luxur- antlycoling his Transylvanian 1s, “eases are ‘more alien loscthan won on rebuttal.” ‘Stunned by Kozinsk’s bluntness, the de- fense lamyerstandk silent fora few seconds." take that into consideration,” he says meekly and sts down without utering a word. The ‘entire courtroom dissolves into laughter thong Kozinski brings a certain informality to the courtroom, his constitutional philosophy—the compass guiding his vast array of decisions —is anything bot lax. It revolves, he explains, around thrce pring ples: textual fidelity (interpretations should be grounded in the actual words of the Constitution), completeness (provi sions in the Constitution should not be is- nosed or emasculated) and consistency (similar phrases should be construed in similar ways). “The Constitution is com plicated, old thar is meant to have some play in the joins,” he says. “Buc ie must have limits to ad multilayered document its interpretation or else you are simply taking advantage of its flexibility for your ‘own purposes, You ean’ just find anything you want co find ini.” There are some, however, who believe Kozinski applies his intezpretive principles in as inconsistent a fashion as the liberals he criticizes. “I don’ think i is possible 10 ict theory of constitutional interpretation,” says University of South- ern California lav Chemerinsky. “Kozinski follows his theo have such professor Erwin Fics ia some areas and not in others. His Volumes One and Two Includes two new songs recorded exclusively for Volume Two. “featuring she fre single and video Kingston TownWise Guy opinions involving the takings clause [the portion of the Fath Amendment that re- quires that citizens be compensated when the government “takes” or reduces the value of their property|, for instance, tend to be very broad and don't square at all with his decisions involving criminal law! “However one evaluates Kozinski’s con- sistency his libertarian vision is having a tremendous impact on all levels of lave in America, from the Supreme Court to legal textbooks. That’ not accidental: Kozinski ffien consciously crate decisions wid eye tovward getting them into vexthooks, thereby bringing the next generation of lawyers around to his views, “Those first years of law school are very forma: tive," Kozinski says, “and although T may not get a hundred percent or even fifty percent of them to see things my way, I will get owenty-five pereent.” ‘Kozinski’s influence can also be seen in the debate over capital punishment: When a jury deliberated over whether to exe cute convicted child-killer Susan Smith, Kozinski’s writings were widely cited Capital punishment, he argued in a much liscussed article excespted by the New York Times, is essentially a problem of resource (Continued from page 201) theatrical _is most evident to Smith in ‘wo presidential performances that have entranced her foras long as she can remember: One is John E, ‘Kennedy's Bay of Pigs speech and the other is Franklin Delano Roosevelt’s fireside chats “Tas fascinated by how someone in 1 postion of power uses language to sway people,” marvels Smith. “With FDR, those chats—which Pve he ally them very early in my interest in language sand identity and I saw wat you have todo, T said co mysel You have to say something from such a profound place that it has a music which intoxicates people.” rd, never readies we the rhythm ofa walezT listened to mith often tells the story of a feminist critic who deseribed her acting the role of a white woman asacritique of white women. "Up ‘until that time I'd thought that if try to give these accurate accounts, then that’s enough,” Smith remembers. “But I realized that no matter what I'm doing, the fact of my race and my gender is going. to be really present, and once I embraced that and stil played everybody, my work 25a Goerge. allocation, and should be analyzed acconi- ing to market principles: We give the death penalty to too many people for too many crimes and without killing enough of them, creating a backlog that would require one ‘execution every day for 26 years to clear up. “The death penalty isa public good we all pay fr,” he wirote, “0 we should find out whether we are getting our money's worth Kozinski suggested we construct a moral hieraechy of esl in onder to decide whom to execute. “Everyone on death row is. ver bad,” he wrote, “but even within that de praved group, it’s possible 10 make moral judgments about how deeply someone has ‘stepped down the eungs ofl.” Dismissing arguments that innocent defendants are sometimes put to death and that capital pun- ishment is given disproportionately to African-Americans, Kozinski defended its derorent value. “Once the sentence is carsied ‘ot, the recidivism rateis low” he concluded. Grisly sentiments like these would surely shore up Kozinski’s conservative credentials should he ever fae the Senate's scrutiny fora Supreme Court appointment. But his nomi- nation would prove a dilemma for the Republicans: Kozinsl’s passionate defense of First and Fourth Amendment rights became political. As my onetime teacher, the poet Diane Wakoski, said: ‘Your ene” ‘mies make a hero out of you. Although she hasn't always recognized iat the time, race has been an issue in ‘Smith's life since her early years living with her parents and four sibli black middle-class neighborhood in ‘more. She grew up thinking her neighborhood hal never been different, “You have to say something from such a profound place that it has a music which intoxicates people” but recently discovered otherwise. "My parents were the first black people to move in, They busted that block!” she says. “Being black and middle-class is a dif. ferent thing from white middle-class,” Smith continues. "I's a community that's trying to create itself as an institution at the same time that those in it are tying 10 would give the far right reason (0 pause. “He's too unpredictable, he isn'ta Seaia ora Thomas, says New York University law pro- fessor Stephen Gilles. "Kozinsli is a truly independent thinker, and we are ata point where presidents want only ure things.” Kozinsk is perfectly happy on the Ninth Cineuit he insists. "Besides i'm running for a seat on the Coust 'm probably not doing it the right way,” he says, “Pm not saying that T haven'tthougheaboutit,butifT censored my- self in hopes of influencing a confirmation hearing that probably won't ever happen, Pa be Kimiting myself erly: Here on the Ninth Gieuit Fan think about legal issues lke a professor. Iewould bea shame to give that up alli the name of sme vain hope. Lofiy sentiments indeed. ‘The judge cer tainly seems content with his if on the na- tion's second highest court—safe from lizmus texs and probing senators. Bur might this be ploy, the subtle political ruse of announcing your don't want a jab inthe hopes of thereby bettering your chances of geting it? “Okay” T ask him, “iFyou're not running forthe Cour, then where do you stand on Roe Made?” Kozinla’s eyes dart back and forth."Well, you see’ hesays,an enormous, sy grin taking ‘over his ace, “Te never sead it?” c get away, Baltimore was very segropated. 1 knew had to getaway from it,but hadn't realized how much my mother wanted me to as well until I visited recently with the ncipal of my high school, who told sme.” Growing up asablack female in segre- gated Baltimore, Smith fel lost. “There's this fecling of unworthiness, and atthe same time you're tld you're not supposed to have feelings of unworthiness,” she remembers. ein Baltimore through her ens then graduated in 1971 from Beaver ollege in Pennsylvania—at that time sn all-female institution, naw coed, San rancisco is where Smith says she really ‘grew up. She stayed with an aunt who had intrigued her since childhood. “She wore furs and had been rumored to have been ‘4 kept woman,” says Smith, What Smith found was someone to admire: a strong ‘and wonderful married woman who, like her, had gotten away from the nest. Now, almost ewo decades later, Smith stands in font of the unoccupied gra four-story building downtown that for- merly housed the American Conservatory Theater. This ie where she discovered her calling, and its clear that the place still hholds profound meaning for her. She got her MRA. here in 1977, when it was