Editorials of The Times

Posted December 14, 2017 11:16 p.m. EST
Updated December 14, 2017 11:20 p.m. EST

Who Will Judge the Judge?

Alex Kozinski is one of the nation’s most respected and influential federal judges. Appointed by President Ronald Reagan, he has served more than three decades on the 9th U.S. Circuit Court of Appeals, the largest in the country. He is an outspoken and iconoclastic jurist with a quick, irreverent wit. A clerkship in his chambers, coveted by top law students, often leads to the biggest prize of all, a clerkship at the U.S. Supreme Court.

And if Kozinski were anything but a federal judge with life tenure, he’d most likely be out of a job by now.

Last week, The Washington Post reported the allegations of six women who had worked for the judge as clerks or staff members, and who accused the judge in detail of crude behavior and sexual harassment.

Heidi Bond, who clerked for Kozinski in 2006 and 2007, said he repeatedly called her in to look at pornography on his computer and asked if she was aroused by it. On her personal blog, she described how he privately showed her his “knock chart,” a list of women he had sex with in college.

Emily Murphy, who clerked for another judge in the same courthouse, recounted a comment by Kozinski, made in the presence of other clerks, that she should exercise naked. The accounts of Bond and Murphy were echoed by four women who told similar stories but asked to remain anonymous out of fear for their careers.

Kozinski responded by saying: “I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” He told the Los Angeles Times that he did not recall showing pornography to any of his clerks and added, “If this is all they are able to dredge up after 35 years, I am not too worried.”

It isn’t all, as it turns out. In an op-ed in The New York Times on Tuesday, Dara Purvis, a law professor at Penn State, also recalled being warned upon beginning her clerkship in the 9th Circuit. “The message was clear: As a female clerk, I should keep my distance from Judge Kozinski.”

In an article Wednesday, Dahlia Lithwick, Slate’s Supreme Court correspondent, described being ogled by Kozinski years ago, as a clerk for a fellow judge. One evening, she called Kozinski’s chambers in search of another clerk. The judge answered the phone and asked her where she was. When she told him she was in a hotel room, she said, he responded, “What are you wearing?”

These infuriating accounts come as no surprise to the many women who had heard of, or personally experienced, Kozinski’s penchant for sexual comments to his female clerks and other court employees. In what has become a painfully familiar phrase over the last two months, the judge’s conduct was an “open secret” in the federal court system, law schools and the legal profession at large. In 2009, when he was chief judge of the 9th Circuit, he was reprimanded for keeping pornography on a server accessible to the public. An opinion by the Judicial Council of the 3rd Circuit said Kozinski exhibited “poor judgment” that “resulted in embarrassment to the institution of the federal judiciary” — the equivalent of a slap on the wrist.

The new allegations, which Kozinski has not clearly denied, show far more than poor judgment. They point instead to repeated disrespect and harassment of women, the exploitation of the unique intimacy of the clerkship environment, and the abuse of the immense power a federal judge holds over the young lawyers who depend on him for professional advancement. Bond wrote that after one encounter with the judge, “I felt like a prey animal.” The stress of working under those conditions, she said, nearly led her to quit. It damaged her mental health and derailed a promising legal career, which she eventually gave up to write romance novels.

Yet no one spoke out publicly, until now, because the relationship between a judge and his or her clerks is “built on worshipful silence,” as Lithwick put it. This makes sense as a general rule of confidentiality protecting judicial deliberations. As a cloak of secrecy hiding degrading behavior, it looks more like a code of omerta. Kozinski was insistent that his clerks never reveal what went on behind closed doors — a tendency that went hand-in-hand with his well-known desire to dominate all aspects of his clerks’ lives. “I control what you read, what you write, when you eat. You don’t sleep if I say so,” he said, according to Bond. “Do you understand?”

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, Kozinski’s behavior has not been good for a long time, yet he has been able to skate by. 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 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. And then there are the very reasonable concerns about 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?

The judiciary has its own internal disciplinary process, which includes fact-finding and other due-process protections, and which can lead to sanctions as minor as a reprimand or as serious as a referral to Congress for possible impeachment proceedings. Federal judges are seldom impeached — it’s happened only 15 times in the nation’s history, less often than the Constitution has been amended. The last time was in 2010, when G. Thomas Porteous, a Louisiana district court judge, was impeached and removed for accepting bribes and lying under oath.

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. Kozinski’s case provides an opportunity to show that it can.

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