The downfall of Alex Kozinski was stunning. From adored Ninth Circuit judge to pariah, even at the hands of the same people who were all too happy to bask in his reflected glory until they turned on him in outrage, Koz deserves no sympathy, as he brought it on himself, even if he might have thought his brilliance as a jurist would excuse his awfulness as a person.
When he resigned from the federal bench, the complaints about his conduct as a federal judge came to their natural end. Its outcome, at worst, would have been the end of his position as a judge, and since he was no longer a judge, there was no purpose to be served in pursuing an investigation. Or was there?
Last year, the first step in the rehabbing his reputation began when he appeared as a co-author on an appellate brief on behalf of the heirs of Pulitzer Prize-winning author Paul Zindel, in their case claiming the Oscar Award-winning movie “The Shape of Water” stole copyrighted parts of Zindel’s “Let Me Hear You Whisper.” Now it’s reported that he’ll be returning to the Ninth Circuit in an oral argument in that case.
Kozinski’s attempt to ingratiate himself back into the legal community — without any investigation — is what Kozinski accusers warned us would happen:
“Where formal processes fail or are subverted, the legal community should insist on informal reckonings before any rehabilitation, rather than turn a collective blind eye to allegations of harassment,” wrote Leah Litman, a professor now at the University of Michigan Law School, Emily Murphy, a professor at the University of California Hastings College of the Law, and Katherine Ku, a partner at Wilson Sonsini Goodrich & Rosati.
What, exactly, did Leah Litman expect to happen? Had the formal investigation continued, despite there being no potential for any official sanction, did she suspect Koz would be disbarred? That would be odd, as even Litman has to know that’s not how disbarment works. Imprisoned? No, she must be aware that imprisonment happens only after a criminal conviction, and since no one ever made a criminal complaint against Koz, there was never any prosecution brought.
Since Litman is a law professor, one would hope that her desired outcome wasn’t that Koz would simply disappear from the face of the earth. Granted, her use of the phrase “informal reckoning” is the sort of meaningless gibberish one would expect of a gender studies grad student, but what did she anticipate happening? Was Kozinski to be seized by a group of militant women from his home, dragged into the street and stripped naked, while women in red nun costumes surrounded him chanting, “shame, shame, shame”?
Words like reckoning are all the rage with people who have no actual thought about how their feelings are to be vindicated. If Koz committed crimes, and had a victim, any victim, ever gone to the police, to a prosecutor, to complain, perhaps he would be convicted and punished. And had he been convicted, he would likely have been disbarred. Maybe then he wouldn’t have his name on a brief or appear for oral argument.
But no one ever sought to have Koz prosecuted, and so he was never convicted. While he resigned from the bench, he remains a member of the bar. Was he supposed to never again practice law? Why not? In their fertile imagination, was he to be so ashamed of his conduct that he would hide in some squalid shack with the lights off and never be heard from again until his obit appeared in the New York Times, “Disgraced former judge found dead, alone in his dark room”?
For reasons that must make sense to deep legal thinker Kathryn Rubino, Kozsinki’s reappearance in court is characterized as his “rehabilitation.”*
The effort to rehabilitate the reputation of alleged serial sexual harasser, former Ninth Circuit judge Alex Kozinski continues a pace [sic].
Kozinski may no longer be a judge, but he’s still a lawyer, just as he would have been had the formal judicial complaints been fully investigated and adjudicated. As a lawyer, he can still practice law, including writing briefs and arguing orally, just like any other lawyer. As Rubino is no academic like Litman, it might be understandable that if Litman can’t figure out how any of this works, Rubino didn’t stand a chance. But they have an ally in “Fix The Courts.”
Fix the Court executive director Gabe Roth thinks it shows the need for congressional action:
“That a serial harasser is allowed to make a comeback without making amends is shameful. It’s also the exact reason we’ve called for an amendment to the judicial misconduct statute that would ensure judges can’t simply retire to make their misconduct cases disappear.
What “amends” does this non-lawyer feel should happen? If Roth and the putative victims want Koz disbarred, file a grievance against him with the bar. But nobody did that either. If they want him burned at the stake, they’re going to be disappointed under the current state of the law.
Kozinski’s accusers have told their stories at length and without defense, as is the nature of the #MeToo “reckoning” they so desperately demand. That Koz has the audacity to not disappear from the face of the earth in the wake of their tears and outrage doesn’t translate to “ingratiate himself back into the legal community.” It’s what the legal community would call “practicing law,” even if that phrase is wholly unfamiliar to Litman and Rubino.
So what’s the point of these pointless shrieks and meaningless hyperbole?
But until that happens there’s little recourse but good, old-fashioned shaming.
Well then, shame away.
*It’s not as if Kozinski was given real estate in the New York Times to try to rehabilitate his sexual misconduct because there were naked pictures published and he was a she.