Judge Kozinski Should Be Censured.  I Am Not Sure If He Should Step Down.

As a jurist, Judge Kozinski has always been one of my favorites.  Ever since law school, where I learned that many judges on the right and the left promote their own ideologies over fair-minded legal analysis, Judge Kozinski provided an inspiring counter-example.   His opinions on privacy rights and free speech particularly delighted me.  Of course, one might argue he decided cases using an ideological lens of libertarianism, but he grounded his analysis in constitutional theory, at a higher level of abstraction and removed from partisan crassness.

I knew Judge Kozinski worked his clerks very hard, and I always felt a bit sorry for his clerks (especially when considering my own, idyllic Sixth Circuit clerkship where we worked hard, but also had time to explore a new city).  However, I believed that the long hours his clerks were required to work were a testament to the seriousness and dedication Judge Kozinski brought to his task.  Again, I found this approach inspiring.

A few years ago, I began hearing rumors that Judge Kozinski took liberties with his female clerks that seemed, at the time we would discuss them, mostly just shockingly creepy and highly inappropriate.  I did not know if these rumors were true, but the buzz circulating was that he touched female clerks on the shoulders inappropriately and had a penchant for attractive clerks.  I did not know the extent to which Judge Kozinski was exerting his authority to bully clerks and force them into uncomfortable, horrifying sexual situations.  His behavior, even knowing the rumors and waiting for them to come out in the aftermath of #metoo, is extreme and surprising.


Some of the allegations against the Judge come from other judges’ clerks, and likely would not meet the severity and pervasiveness requirements for sexual harassment that give rise to civil liability. However, they are behaviors that stun me, as someone who has supervised employees at a law firm and taught students in a classroom for several years.  I cannot even fathom how Judge Kozinski could demean and mistreat the employees for the Ninth Circuit in the way that he did, abusing his power.

That said, I think we forget how much culture has changed – how a few years ago it seemed only wrong, and not horrific, for a male boss to be flirtatious with his employees.  At the time that Judge Kozinksi was engaging in what we would now label as horrendous behavior with his clerks and other judges’ clerks, my female lawyer friends and I delighted in Grey’s Anatomy, a show about a love story between an attending surgeon and his female resident.  That show appears very different fourteen years later.  For so long, it seemed merely unpleasant, and not criminally unacceptable, to be groped by strangers in a bar.  It certainly did not seem traumatic, to me.  I am sure I would have recognized some of Judge Kozinski’s behaviors as very wrong, even back in 2005-2006, when I was clerking.  However, some of the allegations are merely creepy and wrong, while others are pretty clear evidence of sexual harassment.  I understand that we must lump the allegations all together to add credibility to his accusers, but they are not all the same.

Judge Kozinski has responded dismissively to these allegations, and perhaps he never realized the gravity of their impact.  Perhaps he – like many – was waiting for a clear no, deluded in the sense that he wasn’t actually offending anyone.  Perhaps he thought, when showing a female clerk naked images, that he was exploring a topic intellectually.  Sexual harassment, although we do not treat it as such, often consists of mostly speech, and its impact is mostly emotional.  There are persuasive arguments that certain allegations of sexual harassment infringe on pure, protected speech.  Sexual harassment law was a victory for second-wave feminists, but its downside is the view that all discussions of sex are necessarily corrosive.  Of course, women subjected to sexual harassment, who do not wish to endure the indignity of being sexualized, leave their jobs and are often psychologically scarred.  These are real social harms.  Plus, many fear physical boundaries will be crossed, and then the harm is more than emotional.  But our views of what constitutes inappropriate workplace conduct have changed, and perhaps Judge Kozinski never adjusted properly, because of ignorance and maybe perversion, perhaps not malice.

Or perhaps not.  Perhaps Judge Kozinski relished exerting his power over vulnerable female employees of the court.  Perhaps he took pleasure in their discomfort.  Or, perhaps the truth is somewhere in between, that on a subconscious level, he enjoyed his power, and mistook that in his own mind for acceptable behavior.  His behavior with certain clerks is an indication that, at the very least, he felt empowered to dictate the terms of their lives.  Power corrupts. When he brought this into the sexual realm, we as a society draw lines – for good reason, but that was not always taken as a given.

Times must change.  To change behaviors, perhaps we have to exaggerate their impact.  Perhaps we cannot ask why victims never expressed their disapproval, especially when they were in vulnerable employment positions.  Perhaps it is obvious, as people have too much to lose, or objections are unheard anyway. I do wish we could have a bit more perspective, when considering dynamics from years ago and when using their behaviors to supersede entire careers decided to art, or public service, or brilliant jurisprudence.

Judge Kozinski is likely not a monster – he did not burn babies alive or lock people in dungeons.  He did likely violate the law, (although likely not the criminal law), and for that, perhaps we should conclude that he is unfit to decide how the law applies to others.  He may also have lied during an investigation of his accidental posting of pornography on a public server, and if that is the case, he again should not be serving as a court of appeals judge.

But I cannot say that a censure is insufficient, at this juncture. More information is needed.   I also think more nuance is needed in these conversations. Perhaps my view is skewed by the fact that I do not think Judge Kozinski will anymore be engaging in the sort of reprehensible behavior with which he treated some clerks at the Ninth Circuit.  If I could believe that he can change, and understand the gravity of his actions, I think a censure is appropriate.

Lifetime appointment of federal judges is an important way to ensure their independence from political will.  Judges are entrusted with great power over the citizenry, and Judge Kozinski abused this power.  His behavior shocks he conscience. But he committed no crime (as far as I can tell), and his misconduct has not been subjected to any sort of adversarial process.  I do not think we can yet say whether the remedy of impeachment is necessary- and asking a judge to step down is simply a way to bypass the actual process of impeachment.

I write, knowing my views are likely unpopular, because I think conversations of these charged, important topics benefit from nuance and perspective.  I write because, on certain topics, only people with the most extreme views feel comfortable expressing those views.  I write, not to excuse Judge Kozinski’s behavior, which is inexcusable, no matter what.  I write because I myself am torn about the appropriate remedy here, and I wonder if others are as well.