Judge's ‘Sickening Feeling’ and Racism Remarks Allowed, Kozinski Says

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A magistrate judge’s remarks about “institutionalized racism” and the potential for intolerance after the Sept. 11 attacks don’t violate the judicial conduct code, according to the chief judge for the San Francisco-based 9th U.S. Circuit Court of Appeals.

The opinion by Judge Alex Kozinski doesn’t name the judge, but it’s evidently Magistrate Judge Edward Chen, according to the Recorder’s Legal Pad blog. Opponents have cited Chen’s speech in opposing his nomination to the Northern District of California.

According to the opinion, the judge was accused of remarking in a speech after the Sept. 11 attacks that he “had a sickening feeling” about “about what might happen to race relations and religious tolerance.” He also asserted that the “criminalization of immigration laws” constituted “institutionalized racism.”

The judge also was accused of making jokes about a candidate for public office and criticizing a campaign finance investigation.

Kozinski saw no ethics violations. “A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure,” he wrote in an order (PDF) published Wednesday.

Nor are jokes misconduct, he said. ‘Humor is the pepper spray in the arsenal of persuasive literary ordnance,” Kozinski wrote. “It is often surprising, disarming and, when delivered with precision, highly effective.”

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