My views about Ninth Circuit Judge Alex Kozinski’s conduct were expressed before any of the following. I point this out not to suggest my views are any more valuable than anyone else’s, but to show that this post isn’t influenced by bias. Koz was wrong.* His conduct was completely improper and reflects exceptionally bad judgment. This matters because he’s a judge, and as I wrote, “judgment is a jurist’s stock in trade.”
But what’s been put out since by people who are lawyers, lawprofs and putatively not blithering idiots, scares the living crap out of me. As Andrew King correctly called it, “knee-jerk.”
I am so deeply sorry for what your friend has had to endure, Will. This is a horrifying account. The broader legal community should be ashamed of having celebrated such a monster (who didn’t really do much to hide it).
Granted, I complain often about academics using moderated language that fails to convey any actual meaning, so Lederman’s word choice is at least clear. That said, a monster? Did Koz rape dozens of externs and eat their kidneys? The alternative to impropriety isn’t outlandish hyperbole. What would Lederman call Koz if he groped a female clerk, double literally Hitler? And as improper as Koz’s conduct was, does that suddenly make his work as a judge otherwise invalid?
And then there’s the Head Ally of the Appellate Twitter social justice scolds.
Kozinski should resign/retire.
— Jason P. Steed (@5thCircAppeals) December 9, 2017
Why? Come on, questions such as why are for misogynists. Proportionality is for haters. The answer to all wrongs is “off with their heads.”
But then, Steed’s proven allyship with the oppressed is nothing compared to the complicity of the truly passionate.
Glad to see another open secret in print. In law school, everyone knew, and women didn’t apply to clerk for Judge Kosinski despite his prestige and connections to the Supreme Court. I always felt the men who took their places were traitors. https://t.co/FhNQpZQ736
— Alexandra Brodsky (@azbrodsky) December 8, 2017
I hate to be the one pointing this bit of cishet logic out, but if Brodsky knew this “open secret,” if she “always felt the men who took their places were traitors,” then why didn’t she say anything until now? But wait! There’s more:
(Also, pssst, he’s not the only one. One friend was told she shouldn’t apply for a certain clerkship because the judge “likes leggy blondes.” Another judge is known for having a “pretty clerk” and an “ugly clerk,” and referring to them as such. They’re not all conservative.)
— Alexandra Brodsky (@azbrodsky) December 8, 2017
So not only was she consistent, albeit condemning, in concealing Kozknsky’s improprieties, but she knows about others as well? So where are the names of these evil judges? Why is Brodsky complicit in concealing this evil?
Of course, Brodsky is spreading rumors, because she doesn’t possess any actual information about improprieties. She’s heard stories, and that’s good enough for the shrews to take to the twitters and sow anger and outrage without being responsible for their words.
Brodsky may well be right, for all I know. I’m not defending any judge who engages in actual impropriety, but I will question wild, baseless rumors by people who get their jollies from the adulation they receive on social media from people even less rational than they are. But I expect no less from the likes of Brodsky. No one has ever accused her of being too deep a thinker.
There is a serious and important question of what to make of Judge Alex Kozinski’s conduct. Assuming it’s all true, does it impact his other writings, his circuit opinions, the otherwise broad respect for him? What consequences, if any, should there be? He isn’t accused of rape. Not even a grope or a tongue thrust, a la Al Franken. So that makes him a monster? So the only solution to every allegation is to throw the monster out?
The voices here aren’t the flaming nutjobs who graduated from twitter law school, but lawyers and academics who should have some small command of nuance and proportionality, but based upon their public statements, they’ve completely lost their shit.
Will every Warlock be burned at the stake? That seems to be the only answer the brightest of the legal woke have to offer. Nuance has died. Proportionality is gone. All that’s left is screaming for Kozinski’s head and pandering rumors to the outraged townsfolk. To the extent anyone thought lawyers were capable of rational thought, this puts an end to it.
*Edit: It was pointed out to me privately that I’m not using “alleged” or questioning whether the allegations against Koz are true. This is a valid complaint, and I have no clue whether they’re true. That said, Koz hasn’t denied them, and instead gave a flippant response. Given that he’s far too intelligent to to say he doesn’t recall, but not that he denies these things happened, I’m constrained to give his own words meaning. Then again, I could very well be wrong.