A Loophole For Sexual Harassers In The U.S. Judiciary

Alex Kozinski on The Dating Game in 2006.

An upcoming book chronicles a loophole that allows federal judges to not only evade accountability for sexual harassment and bullying but to go on to enjoy a full salary for life and future professional acclaim.

Martha C. Nussbaum, in Citadels of Pride, to be published May 11 by W. W. Norton & Co., explores the tainted career of a former appellate judge who was celebrated for his brilliance, Alex Kozinski, a one-time chief judge of the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

Nussbaum, a professor of law and ethics at the University of Chicago, says the Kozinski case shows the “structural weaknesses” of judicial codes of conduct. “E]van an egregious abuser can survive for twenty years if he is bright, flamboyant, well-connected and shameless,” she writes.

The loophole that worked for Kozinski – and others – is that he was permitted to resign in 2017 after more than a dozen women accused him of sexual harassment. Because he was retired, he was eligible to receive his pension – which was his full salary – for the rest of his life.

U.S. Supreme Court Justice John C. Roberts had called for an investigation into the allegations against Kozinski but that didn’t take place, ostensibly because he was retired and the federal courts now lacked jurisdiction over him.

There is no indication the state bar association of California challenged the reactivation of Kozinski’s law license so he is still practicing law, and he has even appeared before the 9th Circuit appellate court.

Now for the icing on the cake – Kozinski is occasionally interviewed by the media regarding issues involving ethics and the law, a subject that he failed miserably.

Malefactors Lurk?

“The case invites us to imagine that many malefactors less shameless and more selective in their abuse may be lurking in the shadows, unpunished and undeterred,” said Nussbaum, who is a well known public intellectual and author of more than a dozen of books.

She noted that no other federal appellate judge and only five U.S. District judges have ever been impeached and all “escaped sanctions by choosing to retire.”

Kozinski was an especially egregious case, so much so that female law professors refused to refer outgoing students to work as clerks in his chambers. His victims say he constantly forced sexual conversations, engaged in groping, humiliated them by making them look at and discuss porn, etc. Nussbaum writes that Kozinski’s male clerks suffered from bullying and “an enforced atmosphere of misogyny that many surely deplored.”

Nussbaum quotes a former Kozinski clerk as stating that he told her: “I control what you read, what you write, what you see. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

See No Evil

Despite Kozinski’s brutalizing conduct, many former clerks remained loyal to him, possibly because federal judges hold tremendous power to make or break law clerks’ careers.

Nussbaum expressed disappointment with U.S. Supreme Court Justice Bret Kavanaugh, a former Kozinski clerk, who stated under oath at Kavanaugh’s confirmation hearing that he had never heard of Kozinski’s misbehavior toward women. She said Kavanugh’s “see no evil” stance is “regrettable, and it undermines his credibility with respect to everything else he said.”

She notes that Kozinksi’s appalling treatment of staff was widely known at the time of his confirmation to the 9th Circuit after three years as a district court judge in the mid-1980s.

The Senate Judiciary Committee was forced to reopen Kozinski’s confirmation hearing after former staffers who worked for Kozinski at the Office of Special Counsel submitted whistleblower affidavits calling him “harsh, cruel, demeaning, sadistic, disingenuous and without compassion.” Yet, Kozinski was confirmed.

Nussbaum tracks Kozinski from his younger days, when he appeared on a TV show called The Dating Game. Upon being selected from a panel of three men, Kosinski emerged from behind a curtain and planted an aggressive kiss on the mouth of the woman while “grabbing the back of her neck in a pretty ominous fashion. Today it just seems creepy and an omen.”

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