Prominent Kirkland & Ellis white-collar defense specialist Mark C.
Holscher will defend Chief Judge Alex Kozinski in the pending
discipline investigation under review at the 3d U.S. Circuit Court of
Appeals, the 9th Circuit has confirmed.
Kozinski, who presides over the 9th U.S. Circuit Court of Appeals,
faces potential discipline for keeping sexually explicit photos on a
personal website, alex.kozinski.com, that he has said were for private
use.
The appointment of the 3rd Circuit special investigative committee also
triggered — for the first time since the 1980 judicial discipline law
was enacted — provisions that limit Kozinski's administrative authority
as chief judge until the issue is resolved.
Under the act, 28 USC sec. 359, Kozinski is barred from serving on the
9th Circuit Judicial Council, the policymaking body of the circuit, or
on the Judicial Conference of the United States, which sets policy for
the judiciary nationally.
Kozinski did not attend the 9th Circuit's council meeting last week,
according to Circuit Executive Cathy Catterson. The most senior active
judge, Sidney Thomas, presided in Kozinski's place and will likely
continue until the discipline issue is resolved.
He must also recuse himself from the long-running discipline
investigation of U.S. District Judge Manuel Real in Los Angeles, which
he has done, according to Catterson.
Kozinski cannot sit on a special investigative committee in discipline cases under the rules.
Whether Kozinski must also step aside from the role of initial reviewer
of all judicial discipline cases until his own case is resolved remains
to be seen. Catterson said that legal question is still under review.
The law does not affect Kozinski's ability to continue hearing and
deciding appeals. He presided over an 11-judge en banc argument in
Pasadena on June 23.
The national Judicial Conference of the United States meets only twice
a year and has not had a session since the questions were raised about
Kozinski's conduct.
The conference is composed of one chief judge from each circuit court
and the International Court of Trade, and one district judge from each
circuit.
"The statute is very specific about what it applies to and which
functions [Congress] thought were OK to participate in and which are
not," said Arthur Hellman, a professor at the University of Pittsburgh
School of Law who has studied and written about the 9th Circuit and
judicial discipline.
Hellman said when Congress limited administrative functions for judges
under investigation it may not have anticipated special investigations
of sitting chief judges, with a host of administrative duties unrelated
to discipline.
Holscher, with Kirkland & Ellis, was out of the country and could
not be reached for comment, but the firm and Catterson confirmed that
Kozinski brought Holscher in for his defense before a five-judge panel
designated to review the his conduct.
The disclosure of the contents of Kozinski's Web site June 11, forced
the judge to declare a mistrial in a Los Angeles obscenity case he was
overseeing in Los Angeles. Kozinski then recused himself from further
participation in the case.
Holscher is a former federal prosecutor in Los Angeles from 1989 to
1995 and was appointed a special attorney in the corruption
investigation of former Arizona Governor Fife Symington.
Holscher joined Kirkland in 2007 after 12 years with O'Melveny &
Myers in Los Angeles. He worked on the defense team for former
Congressman Randall "Duke" Cunningham and as one of the trial lawyers
for Jeffrey Skilling in the criminal case stemming from the collapse of
Enron Corp.
He also successfully defended Los Alamos Nuclear Scientist Wen Ho Lee against espionage charges.
-- Pamela A. MacLean
