Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, December 18, 2017

The Kozinski Problem(s)

UPDATE: Judge Kozinski announced this morning that he is retiring, effective immediately.

As Dan mentioned in the Weekly Roundup on Friday, Ninth Circuit Judge Alex Kozinski has been accused of sexual misconduct.  The story broke in the Washington Post on December 8.  According to WaPo, six former clerks and externs alleged to the paper that Kozinski "subjected them to a range of inappropriate sexual conduct or comments."  The article contains the account of former Kozinski clerk Heidi Bond, who claimed that Kozinski "called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually."  Bond, now a successful novelist, also published on her own website her account of her interactions with Kozinski. It is quite chilling.  She writes that Kozinksi once told her to stop reading romance novels during her free time, telling her that he controlled "what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so."

In the days since the sexual misconduct broke, other information has come to light.  None of it is good for Kozinksi.  Really no one has come to his defense, and few people seem surprised by the news. Noted journalist Dahlia Lithwick, who clerked for another Ninth Circuit judge, wrote for Slate of her own interactions with Kozinski.  Lithwick"promised [herself] that if Judge Kozinski was ever to appear before the Senate Judiciary Committee for a Supreme Court confirmation hearing, [she] would testify about the dozens of conversations [she'd] had over the years with other clerks and lawyers about Kozinski’s behavior, about the strange hypersexualized world of transgressive talk and action that embodied his chambers." 

On December 14, Law.com reported that the chief judge of the Ninth Circuit, Sidney Thomas, self-initiated a misconduct claim against Kozinski based on the WaPo story. That claim will be handled by the Second Circuit. That same day there were reports that some or all of Kozinski's clerks had resigned. 

Kozinski has denied the allegations, telling the WaPo:  “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. 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 also told the LA Times that he didn't recall "ever showing pornographic material to [his] clerks" and "If this is all they are able to dredge up after 35 years, I am not too worried."

The allegations against Kozinski are deeply troubling.  While they raise many questions, the one that I want to focus on is the issue of clerk confidentiality.  In her personal account, Heidi Bond discusses Kozinski stringent views on clerk/judge confidentiality.  She explains that Kozinski takes an expansive view on the issue--"Clerks owe a bond of loyalty to their judges, and that means 'that, under normal circumstances, whatever one learned inside the Court—whether or not it was covered by the duty of confidentiality—would not be repeated on the outside, especially if it tended to demean the Court, the Justices, or fellow clerks.'"  Because of this strict view of confidentiality that was drilled into her, she basically told no one what happened to her for many years. She didn't even feel comfortable sharing it with a therapist. After Kozinski reached out to her in 2016 asking her to share about her SCOTUS clerkship experience with an individual writing a book, she decided that it was time to explore in greater depths the topic of clerk confidentiality.

She ended up talking to several individuals in the federal judiciary, but ultimately never received a satisfactory answer. The Chair of the Judicial Conduct and Disability Committee did tell her that if her concerns were about personal misconduct by a judge she was not bound by confidentiality.  However, since she was concerned that her experiences with Kozinski could be considered related to a judicial matter (Kozinski had been subject to an ethics investigation instigated by a litigant about porn kept on a personal server but accessible in the office), he could not give her an answer. In fact, he told her "I cannot think of any person, persons, or institution that can give you an answer on this."

In writing about her reasons for speaking out, Bond writes, "I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem."

Regardless of what happens with Kozinski, I do hope that Bond's wish comes true.  The clerk/judge relationship is built, as Lithwick put it, "on worshipful silence."  This is especially true when you clerk for an extremely prominent judge known for sending clerks to the Supreme Court. For many people, myself included, a clerkship is a wonderful experience and your judge serves as a friend and mentor. But, if it isn't, there needs to be a place to turn to for help.  Heidi--thanks for sharing your #metoo experience.  I hope your wishes come true!

https://lawprofessors.typepad.com/appellate_advocacy/2017/12/the-kozinski-problems.html

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