The year was 2008, and the news was huge. It didn’t come at a time when there was a daily man in power being accused of sexual impropriety, so when it happened, it stood out. And lawyers took notice.
The blawgosphere is abuzz, awash, atwitter, about the Los Angeles Times revelation that 9th Circuit Chief Judge Alex Kozinski has a kinky side, revealed by “sexually explicit” images on his personal website. That he was currently presiding over an obscenity trial of Ira Isaacs, described by the WSJ Law Blog as “accused of distributing criminally obscene sexual-fetish videos depicting bestiality and defecation. (For background on the Isaacs case, click here for an AP story.)“
Some have seized upon this delicious opportunity to challenge Judge Alex’s ethics and called for his recusal from the case. Others have questioned whether the images are “crude and misogynistic — pictures of naked women as cows; pictures of womens genitalia with the caption, “Bush for President”; implied bestiality as humor.” And Howard Bashman asks whether this is newsworthy at all. After all, would we be writing about this if Judge Alex was spotted at the newstand buying Playboy?
I was not kind to then-Chief Judge of the Ninth Circuit, Alex Kozinski. This reflected incredibly poor, not to mention icky, judgment on his part, and judgment is a jurist’s stock in trade. Others shrugged it off, calling our criticism of Judge Alex’s peccadillo a “baseless smear.”
According to the WSJ Law Blog, Larry Lessig has taken the offensive by attacking the media, including the blawgosphere, for smearing Judge Kozinski.
Parsing “the Kozinski mess”: Lessig says the real Kozinski mess is “the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective.” Lessig writes: “The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.”
Well, hold on a minutes. Does Lessig suggest that we should ignore an article in the LA Times because we don’t have personal knowledge of all underlying facts and haven’t personally and individually verified each and every one?
But all of this happened back in 2008. Judge Kozinksi was admonished for his conduct and life went on. Now it’s back.
A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.
The former clerk, Heidi Bond, who is now a novelist under the name Courtney Milan, has now written about her experience at length, an acolyte of the #MeToo movement. There are five other clerks/externs from Judge Kozinski’s chambers who have come forward.
Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.
From her retelling, Bond makes clear that this was emotionally traumatic to her, sufficiently devastating that she passed on a lawprof interview rather than risk running into Kozinski.
If you did not know about Kozinski, it would be impossible to understand my career choices. I applied for jobs as a law professor, but I pulled out of the UCLA interview a month before I was scheduled to visit—I couldn’t bear to be anywhere I might see him on a regular basis. I withdrew from the hiring process at the University of Michigan, my alma mater—when I did the campus visit, it reminded me too much of who I had been before the clerkship, and I couldn’t handle the memory.
There is no right or wrong involved in assessing Bond’s response to her experience. She lived it, and she gets to decide for herself how it would affect her. Then again, her assessment doesn’t dictate an objective reaction to Judge Kozinski’s conduct. This is why we don’t let victims sentence offenders.
But Judge Kozinski’s reaction was too glib by half.
Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”
Saying “I don’t remember” is a far cry from saying “this never happened.” And showing a female clerk, or frankly any clerk, porn isn’t just bad judgment, but bizarrely inappropriate. Having the benefit of age, it should be clear that this wasn’t okay in context, given the norms of the day. It was pretty twisted then as well as now. Nobody did this. It was not acceptable to do this.
But now we reach Lessig’s point about proportionality. The English language lends itself better to hyperbole and hysteria than nuanced distinctions of offense, and reactions of the moment, particularly this moment, run deep into outrage mode. Lawyers have a more useful paradigm to consider this: offenses come in degrees.
Judge Kozinski’s 2008 offense, having porn on his personal, unsecured server that was released into the wild, was a misdemeanor. Showing it to his clerks, asking whether it aroused them, however, is a felony, as it should have been clear that it could do harm. But it’s a low-level felony, not because it’s insignificant, but because there are far worse offenses.
Kozinski never raped an extern, groped a breast or dropped his trou near a ficus. As Gail Collins says about Al Franken:
In the grand cavalcade of sexual assault charges we’ve been hearing lately, his list — from fanny-gropes to tongue-thrusts — is appalling but pretty minor league.
In this context, Judge Kozinski was playing little league, if not softball. But then, he’s a judge on the Ninth Circuit Court of Appeals, and how can such an appalling lack of judgment be ignored? Politicians are sleazy scum, and still they get elected. We can expect better of judges.