California is questioning a federal judge's ability to be impartial in death penalty cases--a judge whose record demonstrates his solid support for the death penalty. Here's the background:

The scene was a packed auditorium at UC Santa Barbara; the time, late last month. Two prominent legal figures were debating the death penalty.

Defense attorney Gerry Spence turned to federal appeals court Judge Alex Kozinski, an outspoken supporter of capital punishment, and accused the judge of being detached from the reality of death row.

I would urge his honor to go to a prison and see" how condemned inmates live, Spence said.

Kozinski did not respond to Spence's remark. The truth would have been far too complicated to reveal in a debate. Four months earlier, Kozinski had done just what Spence was demanding. After an on-and-off correspondence stretching over five years, he had visited an inmate at San Quentin, a man named Michael W. Hunter, a murderer and a fellow writer....

As a result, the 52-year-old judge -- a Reagan appointee and a leading conservative on the federal bench -- is now the subject of an investigation by the California attorney general's office.

Prosecutors have written to Mary M. Schroeder, the chief judge of the U.S. 9th Circuit Court of Appeals, on which Kozinski sits, questioning whether he "can continue to be a fair and impartial member of any 9th Circuit panel, now or in the future, deciding California capital cases."

Legal scholars say there is no precedent for the demand.

"In the history of the federal courts, they say, they know of no occasion when a federal appellate judge has been disqualified from hearing an entire category of cases even on a temporary basis."

Kozinski thus far has refused to answer the letter. Good for him. We think the investigation is baseless.

"I certainly don't think it will affect my judgment" on other capital cases, Kozinski said about his meeting with Hunter. The attorney general's actions, said Kozinski, are "crazy." In his 17 years as an appellate judge, 49 men have been executed in the seven states overseen by the 9th Circuit which have death rows; 10 executions were in California. Kozinski has not voted to block a single one.

The article details Kozinski's very interesting background, his politics and his judicial rulings. With the budget deficit in California being as high as it is, we think Attorney General Lockyear could find better uses for the state's limited resources than investigating Judge Kozinski.

For those not familiar with the Volokh Conspiracy, UCLA Law Prof. Eugene Volokh clerked for Judge Kozinski (before going on to clerk for Justice Sandra Day O'Connor.) We hope Eugene will post a response to the article.

Update: Eugene Volokh emails to say he agrees with us, is writing an op-ed on the matter, and in the meantime, has blogged a few thoughts here.