Legal Ethics

Kozinski faces misconduct complaint initiated by 9th Circuit chief judge after women's allegations

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Alex Kozinski

Judge Alex Kozinski.

Updated: As more women come forward with allegations of inappropriate sexual conduct against Judge Alex Kozinski, the question arises: Will the complaints have any impact? A first step was taken Thursday when Chief Judge Sidney Thomas of the San Francisco-based 9th U.S. Circuit Court of Appeals filed an order initiating a complaint against the appeals judge based on a Dec. 8 Washington Post article.

Six former clerks or externs for Kozinski told the Washington Post that he subjected them to inappropriate sexual comments or behavior. Two former clerks said Kozinski asked them to look at pornography in his chambers, and others said Kozinski had made sexual comments.

Journalist Dahlia Lithwick, meanwhile, has written a column at Slate about uncomfortable interactions with Kozinski when clerking for another federal judge and during her career. “In so many of his interactions with me, and conversations around me, Judge Kozinski has always gone one step over the line of appropriate sexual discourse,” Lithwick wrote.

Thomas’ order said he was requesting that Chief Justice John G. Roberts Jr. transfer the complaint against Kozinski to another circuit for review and disposition. Thomas said he was making the request because of “exceptional circumstances” and “to ensure confidence in the impartiality of any proceedings.” The National Law Journal (sub. req.) and the Washington Post have stories on the development.

Roberts has transferred the case to the New York-based 2nd U.S. Circuit Court of Appeals, according to a letter (PDF) released on Friday.

A spokesman for the 9th Circuit, Assistant Circuit Executive David Madden, also released a statement saying he “can confirm that one or more of Judge Kozinski’s current law clerks has resigned.” Madden said he couldn’t comment further “as I do not know whether the separation(s) may involve a confidential personnel matter.”

Thomas took the action predicted by law professors Charles Geyh of Indiana University Maurer School of Law and Arthur Hellman of the University of Pittsburgh in a prior interview with the Recorder.

Judge Sidney Thomas

Chief Judge Sidney Thomas.
9th U.S. Circuit Court of Appeals photo.

Thomas initiated the complaint, but he could also have acted had the complaint been filed by a law clerk or by Kozinski himself. Kozinski took that tack when he was accused in 2008 of keeping pornographic material on a website accessible to the public. Kozinski received a public admonishment after Roberts referred the complaint to the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

So what could happen to Kozinski this time? Chapman University law professor Ronald Rotunda told the Careerist in a Dec. 12 article that because Article III judges have lifetime tenure, he’s unlikely to lose his job. The chances of impeachment are “very unlikely,” he said. Another possibility is for Rotunda’s colleagues to try to persuade him to take senior status and retire from the bench, he said.

Stanford law professor Deborah Rhode offered another possibility. “The court could decide not assign cases to him,” she told the Careerist, “and, I hope, word [of his alleged abuse] will get out to students who are applying for clerkships.”

The options are limited for law clerks with harassment complaints against federal judges because they are probably not covered by Title VII of the Civil Rights Act, according to University of Cincinnati dean of faculty Sandra Sperino, a harassment expert who spoke with the Careerist.

Sperino also notes that cases involving sexually explicit material in the workplace “depend heavily on the context of exactly what happened and how many times it happened,” she said. The Careerist interprets Sperino’s summary to mean that inviting a worker to watch porn once or twice might not satisfy Title VII.

Rotunda would like Congress to extend sex harassment laws to cover the judiciary. “If judges have to pay money damages out of their own pockets, that would get their attention,” he said.

The Careerist believes the chances that Congress will act are “bupkus.”

Lithwick describes Kozinski as “brilliant and wickedly talented,” but she says his interactions were an abuse of power.

The first time she met Kozinski, at a reception in 1996, Lithwick was clerking for a different 9th Circuit judge. Kozinski paid too much attention to Lithwick. The other clerk with her recalled the incident in an email to Lithwick. Kozinski “appeared to be undressing you with his eyes,” the other clerk told Lithwick. “I had never seen anyone ogle another person like that.”

In a second interaction, Lithwick called Kozinski’s chambers late at night to make plans with one of his clerks, an old college friend. Kozinski answered, and he asked Lithwick where she was, according to LIthwick’s account. Lithwick replied that she was in her hotel room. “What are you wearing?” Kozinski reportedly asked.

In meetings throughout her career, a kiss of greeting on the cheek “always lasted a few seconds too long,” Lithwick said. Talk was uncomfortable.

“To sit at a table with Judge Kozinski was to suspend rules for how judges talk and behave,” Lithwick wrote. “The swearing and the gleeful overt talk of sexuality wasn’t just part of the bargain of being around him. Our silence became tacit approval of that chambers’ gleeful rejection of the strictures of political correctness and of the social imperative to police oneself.”

Kozinski responded to the ABA Journal’s request for comment in an email sent before Thomas filed the complaint. “I’ve been advised not to speak to the press, so I have no comment,” Kozinski said.

He told the Los Angeles Times he did not remember showing pornographic material to law clerks. “If this is all they are able to dredge up after 35 years, I am not too worried,” he said.

He told the Washington Post that he has had more than 500 employees in his chambers during his 35 years as a judge. “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 said.

Related article: “Multiple women accuse 9th Circuit Judge Alex Kozinski of sexual misconduct”

Updated at 8:48 p.m. to note the misconduct complaint. Updated on Dec. 15 to report the ethics complaint was being transferred to the 2nd Circuit.

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