Funny?

That is how Chief Judge Alex Kozinski of the 9th Circuit Court of Appeals reportedly defended the sexually explicit content of various postings on his personal Web site. There was a photo of naked women on all fours painted to look like cows, and there was a video of a half-dressed man cavorting with a sexually aroused farm animal. There was also one that reportedly chronicled, step by step, a woman shaving her pubic hair.

Maybe you just have to see them to get the humor.

Judge Kozinski didn't realize that his home server was publicly accessible. He only found out when the Los Angeles Times told him so. It was in connection with their coverage of a pornography trial that got under way this week with, yes, Judge Kozinski presiding. Kozinski immediately blocked access to the site and suspended the trial until Monday to give prosecutors the chance to seek his removal from the case. The press has been going nuts since. One of the judge's sons has taken blame/credit for uploading some of the most explicit images, if it matters.

Should the judge recuse himself from presiding over the trial? Not in my book.

Should the Justice Department move to disqualify him? I hope not.

If everyone who ever viewed or shared pornography were disqualified from judging the line between protected speech and criminal obscenity, we all would be in trouble. The problem facing Judge Kozinski illustrates what's wrong with the prosecution, not with the judge.

Hollywood "filmmaker" Ira Isaacs, who is described in press reports as portly and middle-aged, is charged with selling videos depicting bestiality and defecation. According to Isaacs, he was selling about 1,000 videos per month at $30 apiece before the FBI raided his office early last year, and sales have since dropped to between 700 and 800 videos per month. What is most stunning about this is that Isaacs himself is featured in the videos, although he admits that he wouldn't want to have to watch them for hours on end, as the jury will. "I think I'd freak out if I had to watch six hours of the stuff," Isaacs said before the trial opened.

Judge Kozinski is one of the smartest and ablest judges on the federal bench. The son of Holocaust survivors, he came to this country at the age of 12 from Romania, was appointed chief judge of the newly formed U.S. Court of Federal Claims at the age of 32, and, when President Reagan appointed him to the bench, was the youngest federal judge in the country. He is known as a staunch supporter of the First Amendment. He took on the Administrative Office of the U.S. Courts a few years ago for putting filters on the computers of the federal judiciary, which blocked their access to certain content. Kozinski won. He is presiding over the Isaacs trial under a new program that rotates appellate judges, who review trials but don't conduct them, into the district court to actually try cases periodically.

This latest episode is clearly embarrassing for a man who has been mentioned as a possible Supreme Court nominee. Last week, when I moderated a discussion between Kozinski and his colleague, the liberal Judge Stephen Reinhardt, I said publicly that I happily would support a Kozinski nomination should John McCain win the presidency. And I would. He may be a conservative, while I'm a liberal, but his genius, integrity and decency trump our political differences.

The only reason he is in this ridiculous position is because the Justice Department has brought a ridiculous case. The press would not be checking the judge's home server for pornographic content if the Justice Department weren't checking to see what kind of garbage adults are willing to pay for. I'm all for limits on child pornography, but there are no children involved here. This is the first case to be brought in Southern California by a task force created by the Justice Department in 2005 at the urging of Christian conservative groups. It should be the last.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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