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Thursday, December 14, 2017

It's Time to Start Impeachment Proceedings of Judge Kozinski

Twelve years ago when I was considering going into academia, there were several must-read law blogs. Prawfsblawg, of course, and Volokh Conspiracy (which I am pleased to see is moving away from having a paywall). And also Letters of Marque, written by Michigan law student Heidi Bond, rightfully described here on Prawfs as being “astute and wickedly funny.” Years later I realized that Bond was also the best-selling author Courtney Milan, whose books I adore. Her characters are complex and well-realized, her plots engaging, unpredictable, and coherently structured, and her humor is still, always, astute and wickedly funny. Her books (along with law professor Alafair Burke’s legal thrillers), are some of the few insta-buys for me.

Reading about Heidi’s experience with Judge Kozinski made me feel equal parts sad and furious. It’s been decades since Catherine MacKinnon pointed out that sexual harassment is a form of sexual discrimination, but that point gets proved again and again when women’s careers are stalled or derailed.

As a recent article by Rebecca Traister explains very eloquently:

“What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equals; that they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving.  . . . It’s not that we’re horrified like some Victorian damsel; it’s that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.”

Judge Kozinski offered a perfect example of understanding women’s worth as erotic or ornamental when he reportedly sent a memo to his Ninth Circuit colleagues “suggesting that a rule prohibiting female attorneys from wearing push-up bras would be more effective than the newly convened Gender Bias Task Force.”

I don’t have a #metoo of my own. I was very lucky to clerk for judges who treated their clerks fairly and professionally and who were wonderful mentors. After I finished my clerkship I took a job as Assistant Solicitor General in Texas for the then-unknown Ted Cruz. There is certainly fair criticism of Cruz’s work as Solicitor General of Texas. I personally felt that he pushed the office in too partisan a direction, and then, as now, I disagree with nearly every political stand he takes. I ended up choosing to leave for a new job relatively quickly. But in the time I worked for Cruz, I saw him treat the male and female staff no differently. He looked for opportunities for junior lawyers to stretch their wings—I got to argue an appeal very early on, for example. And when I told him I was interested in academia, he went out of his way to introduce me to professors he knew. When I left the office I was ready to move on, but I felt happy to be a part of the legal profession and I felt confident that I had a place in it.

That is how mentoring is supposed to look. And it’s the opposite of what happened to Heidi, who ended her clerkship year feeling trapped, incompetent, and powerless. Journalist Vivia Chen points out that Heidi’s “rejection of what might have been—an illustrious future as a law professor, government lawyer, judge, law firm partner—seems to have its roots with her awful experience with Kozinski.” I’m selfishly glad that Heidi is concentrating on her career as a writer. And she is still generous with her intellect and her legal skills—her illuminating blog posts on the Ellora’s Cave litigation, for example, helped the community of authors understand the legal issues in a high-profile case, and she has also used her platform to advocate in favor of greater diversity in publishing.

But it’s hard not to count the loss to the legal profession when women lawyers find their careers derailed by harassment and discrimination—when they are treated, in Traister’s words, as “fundamentally erotic, ornamental; [and] have not been taken seriously as equals.” Even though men and women have been attending law school at the same rates for many years now, women still make up only 20% of law firm partners and 24% of general counsels. There is still a pay disparity.

As long as Judge Kozinski stays on the bench, the cost to the legal profession will be too high. It is time for him to go, whether voluntarily or otherwise. In Federalist No. 65, Hamilton wrote that impeachment is appropriate for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” Judge Kozinski’s mounting record of accusers suggests an incalculable injury to the legal profession and to society itself. It is time for him to go.

Posted by Cassandra Burke Robertson on December 14, 2017 at 03:01 PM | Permalink


The "men" who are screaming about sexual purity wars would say something completely different if men were groping them and requiring oral sex for work.

Posted by: Tony Smith | Feb 3, 2018 6:55:42 AM

His actions fell well short of impeachable offenses, although certainly worthy of some degree of censure. But, with his resignation, it is all academic as they say. But I dare say that those on the left will likely not be happy with whoever Trump nominates as his replacement!

Posted by: realrain | Dec 19, 2017 8:46:01 PM

i thought those resignations were unconfirmed. is there any update on that report? even if they resigned, at this time of the year i can't imagine it'll be easy landing new positions.

Posted by: anon | Dec 18, 2017 11:45:03 AM

Well, since three(?) of those clerks had already resigned ....

Posted by: JuniorProf | Dec 18, 2017 11:35:46 AM

O.k. so here's another problem: Kozinski resigned, now what will happen to his current clerks. I assume their careers, at least in the short term but perhaps for much longer, will be harmed.

Posted by: anon | Dec 18, 2017 11:11:42 AM

Here's my problem with this case: here, Judge Kozinski did NOT treat his clerk as “fundamentally erotic, ornamental; [and] have not been taken seriously as equals.” He treated her just as he would have treated a male clerk (based on what this clerk wrote). She does not allege that he showed her fake porn for the purpose of making her uncomfortable.
And there was no allegation that he berated her more than any other clerk; she just seems to have taken it worse than most others did. The main problem with this behavior seems to be that he did not treat her different than he would have treated a male clerk. Maybe bosses should be gentler when dealing with females, but is treating women the same as men really sexual harassment?

Posted by: biff | Dec 16, 2017 11:44:35 PM

As a society, we aren't very good at keeping behavior in line by monitoring and punishing small transgressions with small punishments. Instead, we allow small transgressions to build into big ones and we execute a big transgressor every so often "pour encourager les autres." For this system to work, it doesn't matter which big transgressor is executed but that a big transgressor is in fact executed. So, for those who don't think Kozinski should take the fall, do you care to nominate a substitute? All of us probably know of an "open secret" or two, but do we have the guts to speak aloud?

Posted by: anon | Dec 16, 2017 10:48:27 AM

You say that "[a]s long as Judge Kozinski stays on the bench, the cost to the legal profession will be too high," referring, I believe, to the derailment of women lawyers' careers by harassment. Retrospectively (by which I mean, evaluating this statement in terms of whether it would have been true had you said it before these allegations became public, with all the ramifications their publicity will entail), I find this claim difficult to assess, because I don't know how many careers he's derailed. I know that he's had a large number of female clerks, seems to have created an uncomfortable work environment for at least six of them and probably many more, that one woman clerk of which we know seems like she may have left the legal profession because of her experience with him (though I don't know what basis there really is in her account of her clerkship to say so, but I guess it's a plausible enough inference), and that others have had great legal careers, e.g. Judge Cheryl Krause. The fact that most of the allegations are anonymous suggests that most of his victims haven't had their careers so derailed that they've left law.

Prospectively, however, if Kozinski remains a judge, I suspect he will have a very difficult time hiring qualified female clerks, or getting away with harassing the few who chose to work for him. There's going to be a judicial-conduct investigation into this matter; if his behavior is as has been alleged and as you believe it to be, there will likely be a meaningful sanction, and he will likely avoid a repeat of the behavior that earned him that sanction. So the cost going forward, it seems to me, is that instead of nominating a replacement who women probably wouldn't mind working for, we'll have one overwhelmingly male hirer on the Ninth Circuit who doesn't harass the few female clerks he gets.

Is *that* cost too great to allow Kozinski to serve? It's a cost, certainly; you'd like to see equal hiring in clerkships. But I don't think that the small impact the reluctance of women to work for him will have on the overall composition of the body of clerks is too great a cost to pay for his continued service. I especially don't think so when the hiring disparity will be a product of self-selection on the applicants' part rather than discrimination on his. Of course, that isn't necessarily to say that impeachment's inappropriate; you could impeach for reasons besides the cost of his remaining a judge. I don't feel I know enough about what he's done (or when he did what he's said to have done, which matters to me) to say whether that's appropriate.

Posted by: Asher Steinberg | Dec 15, 2017 1:11:32 PM

After impeaching this guy, what we really need to do is impeach Trump because of the irrefutable and proven beyond a reasonable doubt charges of harassment and assault against him. As far as I am concerned, he is so guilty the Supreme Court should step in and order him removed, and order the real election winner, Hillary Clinton, be installed as President. America will continue to be a banana republic until the hate criminal Trump is President.

Posted by: Brian Grayson | Dec 15, 2017 10:25:21 AM

One may find great interest in this subject , here in SJ blog ( the post here , also mentioned ) :


Posted by: El roam | Dec 15, 2017 8:42:27 AM

Call me crazy, I think any talk of impeachment ought to be preceded by something resembling an investigation, rather than a blogpost and a tweet.

Posted by: Curmudgeonly Ex-Clerk | Dec 15, 2017 12:40:23 AM

I didn't say he would resign before the committee made findings. I said he might resign in response to a sanction from the committee (which, by definition, would come after it made findings).

Posted by: Howard Wasserman | Dec 14, 2017 11:55:06 PM

I'm puzzled about how the judicial committee that looked at Kozinski's porn on his server a few years back did not uncover what is being uncovered now. Did they pose the simple question: Judge, have you showed these images in the chambers, made your clerks and interns watch it?
Back then, Kozinski apologized before the judicial committee that convened to investigate the incident:
“I have caused embarrassment to the federal judiciary. I put myself in a position where my private conduct became the subject of public controversy. While this was painful for me personally, my greatest regret is that I was identified as a federal judge, indeed, as a Chief Judge of the nation’s largest federal circuit. And thus whatever shame was cast on me personally, it reflected on my colleagues and our system of justice as well.”
As I described in my book, You Don't Own Me, the site was found to be in contravention of the Code of Conduct for United States Judges but the judicial committee found Kozinski’s apology enough to warrant closing the investigation without further admonishment.
It makes me very worried about these kinds of judicial committee hearings - how much they miss; how much is going on just below the surface.

Posted by: Orly Lobel | Dec 14, 2017 11:26:57 PM

Re: Mr. Wasserman's comment, it's not clear whether impeachment is "the real hammer" in this context. If Kozinski resigns before the committee makes any findings, it will be due to public pressure, outcries in the liberal media, and (yes, a series of, but nonetheless no more than) allegations of improper behavior. That ought to be troubling, even to committed feminists who completely endorse the "I believe the women" slogan. On the other hand, if Kozinski is impeached after actual findings, it will be the result of genuine, substantiated findings of misconduct -- a far cry from many of the other removals and resignations to date in this country. The hammer -- the true bite -- of these allegations (which, understandably, have moved from legitimate sexual harassment to questionable/distasteful behavior) is their ability to force action *absent* the proper channels of due process (in its various guises).

Posted by: Former Editor | Dec 14, 2017 11:22:25 PM

A judicial-conduct inquiry has been opened. I would not be surprised if (assuming it finds misconduct occurred) the committee imposes a punishment harsh enough that it prompts Kozinski to resign. Thus avoiding the need for the real hammer of impeachment.

Posted by: Howard Wasserman | Dec 14, 2017 10:57:17 PM

Isn't it funny that, in academia, before you can say something decent about a conservative like, "I didn't see Ted Cruz harass female employees" you first have to establish your liberal bona fides by giving an irrelevant list of all the things about which you disagree with that conservative?

Posted by: YesterdayIKilledAMammoth | Dec 14, 2017 10:35:14 PM

And don't forget Kozinski's spat with Director Leonidas Ralph Mecham at the Administrative Office of the U.S. Courts over judicial chambers' access to porn over U.S. courts networks.

Posted by: Anon | Dec 14, 2017 6:29:18 PM

Hey James, how about a vow not to be a serial sexual harasser who turns his office into a 24/7 hostile work environment for any woman he finds halfway attractive? Is that just too high of a standard to apply to federal judges?

CBR -- thanks for a great post.

Posted by: Anon | Dec 14, 2017 4:52:56 PM

Thanks for that interesting post , the previous post , of Orly Loby , has also left me , with more than inconvenience perception concerning potential improper speech of that judge . However , you need more concrete and solid facts , evidences and arguments .Why don't you start with the :

" Code of Conduct for United States Judges "

See there for example Canon 2 and commentary followed :

" Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

In that link :


It may be useful as a start ….


Posted by: El roam | Dec 14, 2017 4:42:18 PM

If this is an impeachable offense, where does it stop? Feminists need to make perfectly clear the nature of their cultural end game because as I see it a sexual purity war is a war with the right the left is bound to lose and lose badly. American society really really doesn't want judges who must take vows of poverty, chastity, and obedience before approval by the Senate. That way lies dragons for anyone who approves of a secular culture. I comprehend the frustration with the logic that "boys will be boys" but that doesn't mean the slash and burn tactics of impeachment are the proper answer.

But mostly I'd like to know, where do we go from here, once he is gone? And I'd like something other than a vague pie in the sky answer.

Posted by: James | Dec 14, 2017 4:35:31 PM

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