Oh, my. It looks like esteemed jurist Alex Kozinski (above) has been very, very naughty.
But before I dive into what can be done about misbehaving federal judges (Kozinski serves on the U.S. Court of Appeals for the Ninth Circuit) let me first give him a big shout-out for enlivening my job. As someone who covers Big Law, I’ve been bemoaning the dearth of juicy #MeToo moments in the profession. But the judge is doing a spectacular job of filling that void!
In case you've been out of the loop, The Washington Post reported that six women (former clerks and externs) complained that Judge Kozinski showed them pornography in his chambers or otherwise made inappropriate, sex-laden comments to them at work. Two of them went public, including Heidi Bond, one of Kozinski's former clerks, and Emily Murphy, who clerked for Ninth Circuit judge Richard Paez.
Bond told The Post that Kozinski showed her pornographic images, then asked her whether she found them titillating. (She replied no, then dryly asked Kozinski, "Is there anything else you need?”)
Kozinski didn't share his porn collection with Murphy, but he did suggest that she exercise in the nude at the court's gym. "It wasn’t just clear that he was imagining me naked, he was trying to invite other people—my professional colleagues—to do so as well," Murphy told The Post.
As for the complaints of the other four women—well, you get the drift.
Although Kozinski's antics aren't quite up to the standards of Harvey Weinstein or Matt Lauer, I think he's more than holding his own, particularly for a muckety-muck judge. (Remember, Kozinski served as chief judge on the Ninth Circuit from 2007 to 2014 and is a feeder of clerks to the Supreme Court.) I'm no expert, but I'd say that showing female clerks pornographic images or making lewd comments to them about their bodies wouldn’t be considered best practices in most work environments.
Now, let’s go back to the main issue: How do you solve a problem like Kozinski? It'd be easy if he just crawl away in shame and resign.
So far, he's shown no inclination of doing that. In response to the charges by the six women, Kozinski told the Los Angeles Times: “If this is all they are able to dredge up after 35 years, I am not too worried.” (I’ve asked Kozinski for comment, but have not yet received a response.)
Kozinski is right: He can sit pretty. "Article III gives judges lifetime tenure, so it is unlikely he would lose his job," explains legal ethics expert Ronald Rotunda, a professor at Chapman University School of Law. “His colleagues could seek to persuade him to take senior status and retire from the bench.” Impeachment is a possibility, says Rotunda, but “very unlikely” given the cronyism of judges.
As for the women suing Kozinski, that’s also a nonstarter. Not only are their claims out of the statutorily required time period (usually 180 to 360 days from the date of the alleged incident) of Title VII, but federal law clerks are probably not covered by the statute, says harassment expert Sandra Sperino, who’s dean of faculty at University of Cincinnati College of Law. “Even assuming a claim would be brought by someone within the applicable coverage and time limits, the cases involving sexual explicit material in the workplace depend heavily on the context of exactly what happened and how many times it happened,” warns Sperino. In other words, inviting (forcing?) underlings to watch porn in the office once or twice might not pass muster for a Title VII claim.
So what’s the solution to getting rid of a bad apple judge? “Congress should change the law so that all of Article III [which governs the judiciary] and all of Article I [which governs Congress] are under the sex harassment laws that govern the Executive Branch and the rest of us,” proposes Rotunda. “If Congress extends the sex harassment laws to the judiciary, then court clerks and other employees can sue the judge personally for sex harassment. If judges have to pay money damages out of their own pockets that would get their attention.”
And what are the chances that Congress will change harassment laws to cover the judiciary and itself? That’s easy: Bupkis.
Are we then totally stuck with Kozinski and his sort? No, says Stanford Law School professor Deborah Rhode. While Rhode believes that there should be “a full and impartial investigation” into Kozinski’s alleged behavior, she says there’s now far less tolerance for abuse of power. “In this current climate—especially given his history with pornography—people will find it unacceptable.” (In 2008, Kozinski got an admonishment from the judiciary council of The Third Circuit for keeping porn and dirty jokes on a personal website that was accessible to the public.)
Though Rhode concedes that “it’s really hard to impeach a federal judge,” she suggests that there are other ways to skin the Kozinski cat: “The court could decide not assign cases to him, and, I hope, word [of his abuse] will get out to students who are applying for clerkships.”
Another effective weapon, says Rhode, is old-fashioned shaming. “There’s a general trend of taking abuse more seriously, and women are speaking out.” She adds, “there are shaming possibilities, and using blog posts and the press to get the message out [about abuse of power].”
So instead of “slut-shaming,” maybe we should all try some lech-shaming. Hey, it's worth a try.