Stanford professor says judicial misconduct no longer tolerated

By John Breslin | Jan 11, 2018

An investigation into the activities of Alex Kozinski, a former judge on the U.S. 9th Circuit Court of Appeals, will not continue after he resigned from his position.

An investigation into the activities of Alex Kozinski, a former judge on the U.S. 9th Circuit Court of Appeals, will not continue after he resigned from his position.

Kozinski, who was on the bench for 32 years, retired after multiple women accused him of inappropriate sexual conduct and comments, including unwanted touching and showing them pornography.

Professor Deborah Rhode, the director of Stanford University's Center on the Legal Profession, said the allegations made against Kozinski did not surprise people in the legal profession. He was known to have created an abusive work place for his clerks and had a history of insensitivity, said Rhode. 

Rhode told the Northern California Record that Kozinski managed to get away with his conduct because he was able to intimidate those who clerked for him.

Alex Kozinski retired after multiple women accused him of inappropriate sexual conduct and comments.   File photo

"A judge has an enormous ability to retard your career; you cannot run the risk (of complaining)," Rhode said.

It has to be asked, she said, whether adequate structures are in place to protect clerks and others working for judges. 

"But in today's climate, this is sending a clear message that there may have been immunity in the past, but now it is completely different," Rhode said. "The message is out there and there is change, not only the climate but the ability to get it out, including on social media."

Rhode added that there is not a lot of evidence of unfounded allegations being made and that all complaints should be subject to a full and impartial investigation.

Ninth Circuit Chief Judge Sidney Thomas ordered an investigation into the allegations. In a statement, Thomas said he could initiate a review “when there is information constituting reasonable grounds for inquiry into whether a covered judge has engaged in judicial misconduct.”

That investigation was transferred to the 2nd Circuit, but now will not continue. In a blog post for the Sacramento Bee, Erwin Chermerinsky, dean and professor of law at the University of California, Berkeley said Thomas asked United States Chief Justice John Roberts to appoint judges to investigate Kozinski, a "process that was made unnecessary when Kozinski resigned."

Rhode also said the investigation will not continue after the judge resigned. She said she does not think these revelations will discredit his opinions as he earned an excellent reputation over many decades. 

In a statement issued through his lawyer, Kozinski said, "I've always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike."

He added, "In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For that, I sincerely apologize."

The 67-year-old said his family and friends had urged him to stay on, “at least long enough to defend myself." But Kozinski added that he “cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately.”

His initial reaction to the reports was more dismissive. 

"If this is all they are able to dredge up after 35 years, I am not too worried," he told the Los Angeles Times.

The Washington Post reported that six women who worked for Kozinski said his behavior was inappropriate. It later reported that nine more women made complaints about his actions, including four claiming he groped them.

Emily Murphy, a former law clerk who is now an associate professor at the University of California, Hastings, said in an interview with NPR that she affirmatively did not apply to clerk in Kozinski's office because "of what she understood to go on his chambers."

"Based on the accounts that I've read in The Washington Post and in other outlets, I think in some circumstances, yes. I think that the accounts of inappropriate touching quite clearly go to something that causes direct harm to people who experienced that," Murphy told NPR. "But I also think that to the extent such behavior was known and to the extent that people did not apply to work in Judge Kozinski's chambers, notwithstanding his ability to help place clerks into the chambers of Supreme Court justices, that I think that works a more systemic harm."

She added, "I don't think there's any winners here. I think this is a tragedy for everybody involved. I think Judge Kozinski -- his opinions being what they are, an important part of the legal canon. He's served this country exceptionally well."

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