This accused federal judge has no business sitting in judgment of others
WASHINGTON -- Of the deluge of sexual harassment stories gushing forth in recent weeks, one of the most disturbing -- one of the creepiest, really -- has also been one of the least noted: the allegations involving federal appeals court judge Alex Kozinski.
There are, certainly, more egregious fact patterns: Kozinski's alleged abuse was verbal, not physical, although that conduct alone took an enormous emotional toll on at least one of his asserted victims. But of the powerful and prominent men who have been accused of preying on powerless women, Kozinski occupies a uniquely troubling role: There are few jobs whose occupants are more insulated from scrutiny than that of federal judge.
That insulation is appropriate; indeed, it is constitutionally mandated. Yet as we have seen in case after case, Harvey Weinstein to Charlie Rose to John Conyers, it may be precisely that untrammeled power, that sense of invulnerability from consequences, that enables such abuse. When you're a star -- or a judge -- they let you do it.
Kozinski holds a lifetime appointment to the federal bench, where his duties include hearing appeals involving sexual harassment and sexual assault. That in itself would be enough to be alarmed by The Washington Post's description of how Kozinski allegedly called a female clerk into his chambers to show her pornography and ask if it aroused her; suggested to a clerk for another judge that she should work out naked; and made other court staffers uncomfortable through sexual innuendo or outright ogling. So would the uniquely intimate relationship between judge and law clerk, with its imperative of confidentiality and its inherent power imbalance.
But it would be wrong to understand Kozinski as just one among 179 federal appeals court judges. He is among the most influential and celebrated, an icon among conservatives and -- perhaps another explanation for why the reports about his behavior took so long to surface publicly -- a reliable "feeder judge" for those seeking Supreme Court clerkships.
Kozinski has always been known as a brilliant, transgressive provocateur. His willingness to push the boundaries not only of stodgy judicial writing but also of stodgy judicial behavior was part of his charm, or so it seemed.
After the Los Angeles Times reported in 2008 that Kozinski maintained a publicly accessible website that included pornographic images, a judicial investigation reprimanded him for "poor judgment ... that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary."
Now this. Kozinski dismissed the allegations, telling the Times, "If this is all they are able to dredge up after 35 years, I am not too worried."
It remains to be seen whether such insouciance is justified. Writing for Slate.com, Dahlia Lithwick recounted how, as a young clerk to a different 9th circuit judge in 1996, she called Kozinski's chambers to firm up drink plans with one of his clerks. Kozinski himself answered the phone: "The judge asked where I was. I said I was in my hotel room. Then he said, 'What are you wearing?'"
SMU law professor Joanna Grossman tweeted that during her 9th Circuit clerkship, 1994-95, "Kozinski sent a memo to all the judges suggesting that a rule prohibiting female attorneys from wearing push-up bras would be more effective than the newly convened Gender Bias Task Force."
And, most heartbreaking, former clerk Heidi Bond, one of two women who went on the record with the Post, elaborated on Kozinski in an essay on her website. She described how Kozinksi referred to her as his "slave" and asserted his complete "control" of her behavior. How, after an abusive outburst, he would ask, "Heidi, honey, do you still love me?" and kiss her cheek, expecting a kiss in return. How he showed her a "knock chart ... listing all the girls that he and his friends had banged while they were in college."
How she "felt like a prey animal." How the trauma of working for Kozinski almost dissuaded her from moving on to clerk for Justices Sandra Day O'Connor and Anthony Kennedy. How she "could not escape the notion that my career success was built entirely on my silence."
By week's end, one or more Kozinski clerks took the extraordinary step of resigning and 9th Circuit Chief Judge Sidney Thomas ordered a judicial misconduct review. Let the process proceed -- but if the behavior is anything like what has been alleged, this man has no business sitting in judgment of others.
Ruth Marcus' email address is firstname.lastname@example.org.
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