How Do You Solve A Problem Like Kozinski?

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.

30 comments on “How Do You Solve A Problem Like Kozinski?

  1. B. McLeod

    “A Supreme Court feeder.” So. The Justices are dirty, rotten enablers who facilitated his recruitment of alleged victims.

  2. Richard Kopf

    SHG,

    For whatever they may be worth, I have several observations.

    First, even if one accepts all the allegations made against Judge Kosinski as true, nothing I have read comes close to an impeachable offense. One would have thought Cassandra Burke Robertson would have taken the time to articulate why she believes impeachment is warranted and provide some reasoning.

    For example, she might have consulted and tried to apply the following precedents:

    John Pickering, U.S. District Court for the District of New Hampshire.
    Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

    Samuel Chase, Associate Justice, Supreme Court of the United States.
    Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

    James H. Peck, U.S. District Court for the District of Missouri.
    Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

    West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee.
    Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

    Mark W. Delahay, U.S. District Court for the District of Kansas.
    Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

    Charles Swayne, U.S. District Court for the Northern District of Florida.
    Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

    Robert W. Archbald, U.S. Commerce Court.
    Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

    George W. English, U.S. District Court for the Eastern District of Illinois.
    Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; Resigned from office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

    Harold Louderback, U.S. District Court for the Northern District of California.
    Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

    Halsted L. Ritter, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

    Harry E. Claiborne, U.S. District Court for the District of Nevada.
    Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

    Alcee L. Hastings, U.S. District Court for the Southern District of Florida.
    Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

    Walter L. Nixon, U.S. District Court for the Southern District of Mississippi.
    Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

    Samuel B. Kent, U.S. District Court for the Southern District of Texas.
    Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles. (Kent was charged and convicted of the crime of lying under oath to the judicial committee that commenced an investigation and he was sentenced to prison.)

    G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana.
    Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury; Convicted by the U.S. Senate and removed from office, December 8, 2010.

    Second, the exception to my first point may be that Judge Kosinski lied to the special committee the first time around during cow-gate. But that is highly fact-dependent and no one on the outside has any way of knowing whether he lied or not. However, you can bet that the judicial investigating committee will look hard into that matter.

    Third, if one accepts Heidi Bond’s articulation of her experiences as true because she swore to them under oath, and other women attest to such an environment under oath, I am of the opinion that the Judicial Council of the Circuit to which this matter is assigned could and should do the following:

    The Chief Judge of the Circuit and the Circuit Judicial Council should strip the judge of his ability to hear cases for as long as the law allows. See 28 U.S. Code § 354(a)(2)(A)(i) (“ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint”). They should also publicly reprimand him and formally request that he resign. Id.§ 354(a)(2)(A)(ii-iii) & § 354(a)(2)(B)(ii).

    Finally, and as you say, under the law, judge Kosinski stands accused and not convicted. Simple justice requires more than lip service to that important point.

    All the best.

    RGK

    1. SHG Post author

      Imagine a law professor, or a great many law professors, seeking their answers in law, precedent and deliberate reason.

      1. Ross

        To many of the law profs making these bizarre arguments, acknowledging precedent and the writings of others would pop the bubble of “I am the greatest thinker ever, and don’t need to consult with historical losers and the drivel they spewed”. There are days when I start to think that some mandatory egoectomies are in order for certain portions of academia…

    2. TLN

      RGK,

      What role should the Constitution’s Good Behavior Clause (GBC) play in determining consequences for Kozinski’s alleged misconduct (assuming he receives due process & the allegations are proven)?

      Or, stated differently, if Kozinski refuses to resign can the judicial branch rely on the GBC to remove him from the bench, even if his misconduct does not rise to the level of a “high crime” impeachable offense?

      Best.

      TLN

        1. SHG Post author

          I left the link in (against my better judgment) and allowed your comment (even though you’re not a lawyer and what the hell are you thinking about answering a question to Judge Kopf, anyway?), but strongly suggest that you consider whether you want to be exiled to reddit if you can’t restrain this inexplicable new urge you have to overreach your grasp.

          1. Pedantic Grammar Police

            Sorry, Pedantic Grammar Police are mindlessly compelled to overreach our grasp. It’s a disability. Just imagine what I’m like at the karaoke bar.

    3. Pedantic Grammar Police

      Judges should be held to a higher standard than other professions because their job is to possess and display good judgment. They usually are not held to a higher standard. Many judges who clearly display poor judgment continue to be judges, and judges who should be successfully impeached are acquitted. This damages the credibility of our system. Maybe this is a good thing; maybe a loss of credibility will motivate change.

    4. Jim Tyre

      Judge Kopf,

      Thank you for the list of federal judges who have been impeached by the House. I knew of some, but not nearly all.

      Precedent would also include federal judges against whom impeachment proceedings were begun (referral to House Judiciary with the relevant subcommittee taking some action), but who neither resigned nor were impeached. I don’t have a complete list, but there are many. William O. Douglas would make two appearances on such a list. One of my local district judges, Manuel Real, also would be on it.

      Admittedly an aside, but Alcee Hastings has always been my “favorite” on your list. A few years after, he was elected to Congress and is still there twentysomething years later. He even survived a sexual harassment lawsuit filed against him by one of his Congressional staffers.

  3. ShelbyC

    If you don’t like porn, you ask him not to show you any more? That’s how we used to solve these problems.

    1. SHG Post author

      If you don’t want him to kiss you on the cheek “for a couple seconds too long,” you ask him not to kiss you on the cheek. I believe that’s now called victim blaming and it’s not allowed.

      1. Lee

        That’s because women are dainty, fragile flowers, prone to nasty feelings of fear and revulsion, that must be protected from the depredations of men. Except when they are strong, independent woman who can do anything a man can do.

        It is so confusing.

      2. wilbur

        I was raised in the Midwest where we didn’t do cheek or air kisses. You gave your mother or Aunt Alice a kiss on the cheek and a hug. And that was the extent of it.

        I’ve never felt comfortable with the whole routine of having to lean in and go through that charade. And I’m sure it shows.

        1. SHG Post author

          I despise it. While it’s common within my “crowd,” I don’t like being hugged or kissed by random women. But I do it or my wife kicks me, because reasons. I feel abused.

          1. Charles

            It’s not historically an American custom. Tell them that you’re offended by their cultural appropriation.

  4. John Barleycorn

    If this lands in the 5th Circuit, you just know that Tipper Gore is going to shows up and start playing Prince albums backwards on the court house steps right? So what then?! Trump nominates Tipper for that slot that Mr. Mateer was supposed to get in the Eastern District of Texas?

    And what happens if Grassley steps out of bounds here and starts doing doughnuts around the courts silage in the silo, and that turns on Feinstein so much that she rapes him?

    Sidney Thomas is a good guy and all but WTF?! Pawning off the business of your own woodshed is weak even if it looks “proper”. Alex can handle it and you guys can handle him. Stop acting like a bunch of children.

  5. MonitorsMost

    “It has also been reported that three of Kozinski’s law clerks have resigned.”

    Where do I send my resume? Oh, I’d have to live in Los Angeles? That’s a deal breaker.

      1. John Barleycorn

        You never saw the Judge’s speech on technology esteemed one? Long distance clerking is out.

        Besides MonitorsMost just isn’t up to it. Everyone has heard the rumors and can handle “what single girls do for sex in San Francisco” even the ones that work in the the AT&T building, but I heard, that when MonitorsMost heard, what the single girls in Pasadena do for sex he started having nightmares about what Rachel Brand has been whispering in the ear of Jeff sessions concerning the FISA Amendments Act Section 702 being enshrined forever come 12/31/17 and just chickened out.

    1. Lex

      Great learning experience, I’m told. Has some drawbacks, though:

      Kozinski: There aren’t that many hours in a year. How many?
      Bernstein: About 8,000….
      Kozinski: So you sleep 1,000, and that leaves you will 7,000 hours. It seems to me that if you take seriously the idea that you’re clerking in part to make the system better, you ought to spend those 7,000 hours working for a judge you disagree with.

      1. SHG Post author

        Nobody forces you to be a clerk. Why would it make you cry if someone else chooses to do something you choose not to do? You do realize others aren’t require to adhere to your feelz, right?

  6. Richard Kopf

    To all who have asked me questions regarding my comment,

    For a fairly liberal but very thoughtful and easy to read elucidation of the law and practice of impeachment, as it regards federal judges, I suggest that you refer to the Statement of Arthur D. Hellman to the House Committee on the Judiciary, (June 3, 2009) on the Kent matter. The Hellman piece is a good primer, although it is only a primer.*

    Finally, I don’t intend to comment further here or anyplace else about the Kosinski matter. In short, I have said all I want to say.

    All the best.

    RGK

    * As some of you may know, I tried the impeachment of the Republican Attorney General in front of the Nebraska Supreme Court (Nebraska has a one-house legislature). In preparation, I spent time researching impeachment on the federal level. Ultimately, I concluded that the act of impeachment and conviction is a political act in the best sense of the word “political.” But because it is “political” the process is hard to predict. That said, the historical precedents from the House and Senate provide a reasonable guide.

  7. Patrick Maupin

    Now I’ve got that stupid song stuck in my head. The company party starts in 10 minutes; maybe I can slam back enough alcohol to clean it out.

    “The hills are aliiiiiiiive, and it creeps me owwwwwwt.”

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