Chief Judge Sidney Thomas has announced that a formal inquiry has been initiated into allegations of misconduct by Ninth Circuit Judge Alex Kozinski.
“In the past, when incidents of alleged misconduct have been reported in an accredited media publication, we have identified a complaint and initiated an inquiry,” wrote Chief Judge Sidney Thomas in an order issued Thursday afternoon.
The order indicated that Thomas was initiating a complaint himself based on a Dec. 8 report from The Washington Post that reported that six former clerks or externs at the court accused Kozinski of asking them to view pornography or subjected them to inappropriate comments. More women have since come forward with similar allegations.
C.J. Thomas has asked Chief Justice Roberts to transfer the complaint to another circuit “to ensure confidence in the impartiality” of the inquiry. This is both huge and proper. A wealth of allegations have been made, raising grave questions as to Judge Kozinski’s behavior, judgment and “handling” of the power and authority he wielded.
The inquiry will enable the alleged “victims” to assert their allegations against the judge, and the judge to address them. What comes of it will be whatever the Least Dangerous Branch decides, whether it’s admonishment or referral for impeachment.
It has also been reported that three of Kozinski’s law clerks have resigned. Not because they claim to have been abused or harassed, but because they’re embarrassed.
As one tipster noted, working for Kozinski went from a cocktail-party feather in your cap to an embarrassment.
Working in the chambers of a Supreme Court feeder was cool. Working in the chambers of a sex perv, not so much. A number of other virtues are implicated by a federal circuit judge clerkship, but they’re low value in comparison to prestige.
At PrawfsBlawg, Cassandra Burke Robertson called for Kozinski’s impeachment, replete with the litany of female oppression, having nothing specifically to do with Kozinski but required of any properly woke academic to set the tone, as well as her devotion to the genius of Heidi Bond’s romance novels.
But it’s hard not to count the loss to the legal profession when women lawyers find their careers derailed by harassment and discrimination—when they are treated, in Traister’s words, as “fundamentally erotic, ornamental; [and] have not been taken seriously as equals.” Even though men and women have been attending law school at the same rates for many years now, women still make up only 20% of law firm partners and 24% of general counsels. There is still a pay disparity.
As long as Judge Kozinski stays on the bench, the cost to the legal profession will be too high. It is time for him to go, whether voluntarily or otherwise.
It’s dangerous in academia to point out the fallacies of this argument, the worst of which is calling for his death sentence before his conviction. But shallow minds beget shallow argument, much as they appeal to the sensibilities of the unduly passionate. It comes as no surprise that the mob would “believe the women,” but that someone allowed to teach law would lead the mob is disconcerting. Then again, that’s become a thing among academics of late.
Even the New York Times is reluctant to go full Red Queen on Kozinski.
What is the right way to deal with unacceptable conduct over many years by a life-tenured judge? The Constitution says federal judges “shall hold their offices during good behavior.” By any reasonable measure, Judge Kozinski’s behavior has not been good for a long time, yet he has been able to skate by.
Well, one “reasonable measure” would be due process rather than untested allegations, some of rather dubious significance, even if from multiple women. As for “skate by,” that would be the passive way of saying because the accusers said nothing, but the New York Times doesn’t engage in victim blaming.
No longer, as the nation engages in a long-overdue moment of reckoning with the sheer breadth of sexual harassment and predation by powerful men, and its impact on the lives of working women. Some of these men have committed graver offenses than Judge Kozinski stands accused of. But sexual misconduct by a federal judge is particularly troublesome, both because the American public pays the judge’s salary, and because trust in the judiciary depends on judges being seen as not simply independent, but above reproach.
That Kozinski’s salary is paid by the public is weak sauce. That trust in the judiciary demands that judges be above reproach, on the other hand, is extremely important.
And then there are the very reasonable concerns about Judge Kozinski’s ability to hear a sexual-harassment or discrimination case; how could any plaintiff be confident the judge would give her a fair hearing?
A judge’s fairness is, indeed, a very reasonable concern, but it should be based on his rulings, not on assumptions about his personal life. At least not in a rational world.
There’s a good reason for keeping impeachment of judges very rare: The federal judiciary must remain as free as possible from intrusion by the political branches. But that is not a defense if the judiciary itself can’t meaningfully address unacceptable behavior in its ranks. Judge Kozinski’s case provides an opportunity to show that it can.
And this is very true, though perhaps not quite what the editors have in mind, particularly given that the Times has done everything possible to politicize the judiciary, to create the impression that they can’t be trusted and they’re just shills for their political patrons. So now they dare the judiciary to police itself, to “show that it can.”
In other words, conduct an inquiry. Use the mechanisms the law provides for the judges to judge themselves. Then hang the bastard.
Whether anyone is brave enough, or foolish enough, to come forward to defend Kozinski against the allegations is unlikely. His conduct was reprehensible, if true, even if a far cry from the allegations against Weinstein. Koz is a judge, and as a judge, is properly held to a higher standard. So let the inquiry happen. And let him get what he deserves, whatever that may be.