the law

Is the Judiciary Ready to Handle Harassment Charges?

Alex Kozinski. Photo: Gina Ferazzi/LA Times via Getty Images

For the better part of his esteemed career, Alex Kozinski, one of the top appellate judges in the nation, has been his own public-relations machine, fielding press inquiries and interviews with journalists, unlike any of his peers in the federal judiciary, who never talk to the press. But when the Los Angeles Times reached the longtime Ronald Reagan appointee this past week for comment on allegations in another paper that he’d been sexually improper with at least six women who had worked with him, Kozinski’s nonchalance with reporters may have gotten the best of him. “If this is all they are able to dredge up after 35 years, I am not too worried,” he told the Times.

That sounded like a challenge. And in less than 24 hours since the story broke, other women took Kozinski up on it. They didn’t hold back. “When I clerked on the Ninth Circuit, 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,” Joanna Grossman, a law professor at Southern Methodist University, wrote on Twitter, with this kicker: “His disrespect for women is legendary.”

The most eye-opening of these recollections came from Nancy Rapoport, a law professor at the University of Nevada who wrote in her personal blog about the time Kozinski invited her and other clerks out for drinks. She was clerking for another judge at the time, but she agreed to come along. The meetup turned out to be a setup: No other clerks were there. Just Rapoport and Kozinski. “What do single girls in San Francisco do for sex?” she recalls the judge asking her. During the same encounter, Kozinski offered to “comfort” her when he learned that Rapoport’s mother had just been diagnosed with cancer. Ever since, the law professor has made it a point to steer her own female students away from Kozinski’s judicial chambers by refusing to sign letters of recommendation to go work for him. The title of Rapoport’s blog entry: “There are likely several more stories to come.”

One of those stories came from Heidi Bond, a lawyer turned novelist who chose to break her silence about Kozinski after nearly a decade of agonizing silence. She was one of two women who were willing to go on the record with the Washington Post in its Friday report about Kozinski. But she also wrote her own account of her year with the judge on her website; every word of it matters. Beyond relating an incident in which Kozinski showed her porn on his own computer and then asked her whether it aroused her, Bond discloses a far more disturbing detail: That Kozinski, from the very moment he swore her in as his law clerk, had imposed a code of silence on her. “It’s too late now! She can’t escape any longer. She’s my slave,” Bond said Kozinski told her during the swearing-in. She thought it was all in jest.

The judge meant it. Even though Kozinski is a libertarian jurist who has spent decades on the bench extolling the virtues of freedom and the First Amendment — “The Constitution enshrines a fundamental right to be free of unwarranted restraints,” he wrote in a celebrated ruling earlier this year — he had deeply unpleasant ways of exerting control over his underlings, says Bond. She writes that Kozinski once forbade her from reading romance novels, even during her breaks, because they amounted to “porn for women” — a type of addiction she should avoid for her own sake. “I control what you read, what you write, when you eat,” Bond recalls Kozinski telling her. “You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?” As a young woman near the pinnacle of her legal career, with crippling student debt and a shot at the moon, including a second clerkship at the Supreme Court, Bond was in no position to say no to Kozinski. And so she didn’t.

Bond’s account is essential not just as a damning exposé of a leading light in American law — the federal judiciary’s #MeToo moment. It also raises serious questions about the structural failings of the system that judges and law schools rely on for deciding who does or doesn’t get to spend a year working in the chambers of a top federal judge — a cottage industry where the best and the brightest vie for limited spots that could then open up doors to greater glories. An overhaul of this cutthroat system, over which there’s little oversight and where each judge calls the shots over the hiring process, is perhaps Bond’s greatest wish — more so than seeing Kozinski go down in infamy or face impeachment proceedings, which some have already broached. “Please exclude me from these discussions,” Bond warns. In one footnote, she offers this prescription:

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst — and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

How many clerkship coordinators at top law schools knew about Kozinski’s sleaziness but didn’t say a word? How about fellow judges? Were any of them proactive and protective like Rapoport was with her students? That Kozinski is also a top feeder judge for none other than Justice Anthony Kennedy, for whom he once clerked, as well as others on the Supreme Court, adds a strange dimension to a tale that should send shockwaves through the entire regime. (Bond did move on to a clerkship for Kennedy and for Justice Sandra Day O’Connor, but she said she received nothing but respect from them.)

As it is, the pool of clerks that make it to the nation’s highest court is largely white and male, much like the judges that groom these rising stars for the gig of a lifetime, according to The National Law Journal. And Kozinski, it’s worth noting, was once a leading critic of reforming the highly competitive, who-you-know system of hiring law clerks, some of whom, as law students, began the frenzied process before they were even done with their first year of law school. Kozinski wanted no rules imposed on him. When asked how early he started looking at prospective clerks, he once joked to the New York Times: “At birth.”

More broadly, the Kozinski revelations probably have many a federal judge thinking long and hard about their demeanor and interactions with the young lawyers they once employed. Few, if any, environments in the federal government are as unique as the quiet confines of a judge’s chambers — that cavernous, secretive, and sacred space just off the courtroom where the judge gets to take off his robe and be himself. That these public servants are vested with lifetime tenure, are predominantly male, and hold significant sway over their workers’ futures should suggest scrutiny of the highest order. As Nancy Rapoport hinted, this is only the beginning.

Kozinski already got in trouble in 2008 and testified before a judicial ethics panel for storing pornography on a personal server that was readily accessible online — while conducting a criminal trial involving the distribution of obscene materials. The punishment at the time was only a reprimand for being “judicially imprudent” and embarrassing the third branch. If this new spate of accusations doesn’t lead to a different form of justice, for Kozinski and others from whom the Constitution demands good behavior, then nothing might.

Is the Judiciary Ready to Handle Harassment Charges?