What Will It Take To Get Alex Kozinski Off The Ninth Circuit?

What do we do about a problem like Kozinski?

(Photo by Justin Sullivan/Getty Images)

What can be done about alleged serial sexual harasser Alex Kozinski?

Since the allegations broke last week surrounding the judge’s behavior there have only been more women who have come forward with their own stories. To recap some of the (low)lights: a former Kozinski clerk, Heidi Bond, has alleged, among other unsettling behaviors, the judge showed her porn at work and asked if it aroused her; as a Ninth Circuit clerk Emily Murphy says she was encouraged by the judge to exercise naked; Nancy Rapoport describes an uncomfortable conversation where the judge asked “What do single girls in San Francisco do for sex?”; and just yesterday Dahlia Lithwick, who clerked on the Ninth Circuit in the 1990s, describes some downright creepy behavior of Judge Kozinski, including a phone call where he allegedly asked what she was wearing.

Throughout the stories that each of these women have told has been the acknowledgement by respected legal professionals that Kozinski’s attitude towards women — though not necessarily the details — was well-known. Emily Bazelon, legal writer for The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School, tweets about it:

Joanna Grossman, the Ellen K. Solender Endowed Chair in Women and the Law at SMU Law, describes the demeaning and sexualized way Kozinski discussed the Gender Bias Task Force with the entire Ninth Circuit:

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Anne Joseph O’Connell, a professor at Berkeley Law, tweeted about how, as a law student, she seemingly sacrificed career opportunities to avoid working with Kozinski (though her legal career worked out just fine):

And Kozinski’s behavior was referred to as “an open secret” by Alexandra Brodsky, a Skadden Fellow at National Women’s Law Center.

So, what do we do about a problem like Kozinski?

Unlike some of the other well-known cases of sexual harassment that have recently come to light, there is no board of directors that can demand his resignation and public opinion can’t stop him from doing his job. The Constitution frankly provides only a few options:

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“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.

It is true — actually losing his job is unlikely. The political will in congress to impeach… anyone seems pretty small. Politically, Kozinski also occupies an interesting space. A Reagan appointee, on many issues he is a conservative voice on the Ninth Circuit, but his libertarian views mean he has sided with liberals on the court on more than one occasion. As Lithwick notes, a Trump judicial pick is likely to be net worse for women, so this may not be the hill liberals want to die on:

[Kozinski] has done important work on police and prosecutorial misconduct in particular, and if he is to be replaced, it will likely be with a 35-year-old Trump pick who diminishes women systemically, if not recreationally. Not a net win, if we are even trying to keep score for women anymore.

Kozinski could, of course, retire or resign. In making that kind of a move he’d have to acknowledge, at least implicitly, that the behavior he flaunted for years was unacceptable. Given the dismissive way he has thus far responded to the scandal, that seems a remote possibility.

Perhaps then a censure or other administrative slap on the wrist. Kozinski received one of those before, when he publicly posted sexually explicit material on a personal website. There is some hope that the House Judiciary Committee could take up the issue, but Godot will probably come faster.

Now we turn the question over to you, dear readers. Take the two polls below and sound-off on what you think will happen to Judge Kozinski, and (maybe more importantly) what you think should happen to the jurist.

Kozinski may be the first prominent legal figure (other than that guy on the Supreme Court) to get called out by the #metoo moment, but he is unlikely to be the last. The legal industry needs to figure out just what can and should be done when men who were otherwise well respected turn out to be serial sexual harassers.

What WILL Happen To Judge Kozinski?

  • Nothing (55%, 817 Votes)
  • Censure/other punishment (32%, 481 Votes)
  • Resignation (12%, 173 Votes)
  • Impeachment (2%, 23 Votes)

Total Voters: 1,494

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What SHOULD Happen To Judge Kozinski?

  • Resignation (41%, 549 Votes)
  • Impeachment (25%, 335 Votes)
  • Censure/other punishment (24%, 325 Votes)
  • Nothing (10%, 129 Votes)

Total Voters: 1,338

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headshotKathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).