Courts

Judge Kavanaugh: What Does It Mean To Be Complicit In Sexual Harassment

Looking back, Judge Kozinski's downfall was entirely predictable and far, far too many people were complicit.

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(Photo by MANDEL NGAN/AFP/Getty Images)

When Brett Kavanaugh appears before the Senate Judiciary Committee to testify in support of his own nomination to the Supreme Court, he’ll face a lot of hard questions. He’ll have to answer for his views on presidential power, his cagey approach to curtailing reproductive rights, and his role in supporting torture. But one important subject that he should be asked about, given the events of the last several months, is his involvement with former Ninth Circuit Judge Alex Kozinski. Kozinski retired abruptly from the federal bench late last year amidst of a tidal wave of sexual harassment claims. Kavanaugh clerked for Kozinski and remained professionally tied to him throughout his career. Kozinski’s son was a Kavanaugh clerk. He probably will be again since he’s currently one of Justice Kennedy’s orphaned 2018-19 clerks.

Did Brett Kavanaugh know about Alex Kozinski? That’s certainly what some opposition research suggests. It’s also what some of Kozinski’s accusers believe.

And it’s an important question. It’s one thing to say that a recent law grad at the start of their career might be too blind, scared, dumb, or cowardly to speak out at the time — especially when institutions like their law schools offer little to help — but it’s another thing to continue to professionally embrace someone for decades after the fact if you have reason to believe harassment is taking place.

What Kavanaugh knew about his mentor’s behavior raises some critical questions about what it means to be complicit — if not legally, morally — in harassment. It’s also a timely addendum to the debate over the Federal Judiciary Workplace Conduct Working Group report that’s already prompted its own Senate Judiciary hearings.

Last week, Judge Kopf embarrassed himself attacking a group of current and former female law clerks for criticizing the Working Group — the ad hoc group of federal judges and judiciary executives assigned the task of addressing sexual harassment in the federal courts. Judge Kopf mocked the clerks’ critiques as an inquisition, even though most of their work boiled down to asking the Working Group to add detail to its otherwise vague musings. From the perspective of the clerks, the judiciary has already spent too many years discussing harassment in vague, aspirational tones that erode into loosey-goosey back-scratching enforcement in practice. Despite Judge Kopf’s persecution complex, concrete rules aren’t just for nailing misbehaving judges, but giving victims and witnesses the assurance that their concerns won’t be ignored.

Judge Kopf thinks it would be too burdensome to actually get the details of what Kozinski did, even though the Law Clerks For Workplace Accountability aren’t even asking for a punitive investigation of Judge Kozinski, just an inquiry into how the system failed in the past to inform future reforms.

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But now, several months after the downfall of one of the federal judiciary’s most prominent jurists — a “feeder judge” whose whims shaped careers — the red flags seem so obvious. As do the forks in the road where observers had the opportunity to put a stop to the misconduct but didn’t, becoming complicit actors themselves. It’s cliché to say that hindsight is 20/20, but rerunning just the public events of the last 20 years reveals exactly how much we can learn about complicity — intentional or not — and how to avoid it going forward.

In 2001, Judge Kozinski fought voraciously against new protections on the federal judiciary’s computer system that, among other things, established a firewall and monitored internet usage as part of cybersecurity. At the time, he cited privacy concerns, suggesting that a computer firewall might constitute an illegal wiretap and was “certainly of questionable morality.”

Kozinski said the administrative office of the U.S. courts began in December to examine use of the Internet by the U.S. judiciary and its employees without informing them, an intrusion the judge called possibly illegal under federal wiretapping laws and “certainly of questionable morality.”

Since then, the office has sent letters to chief judges of federal courts across the country about computers that had been signed onto Web sites offering music, pornography, stock trading or gambling. The letters suggested that employees responsible for the usage be disciplined, he said.

Leonidas Ralph Mecham, the former Director of the Administrative Office of the United States Courts, argued for the importance of website usage monitoring and a firewall:

He also contended that Judge Kozinski was “advocating his passionate views that judges are free, undetected, to download pornography and Napster music on government computers in federal court buildings on government time even though some of the downloading may constitute felonies.” He also said Judge Kozinski had shown “great interest in keeping pornography available to judges,” especially of what Mr. Mecham called “the more homosexual and exotic varieties.”

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So Mecham, who was appointed by Chief Justice Burger, was probably not incensed for the right reasons if his big beef was a brush with the gays. But he had already keyed in on the idea that Judge Kozinski was using his government computer to access pornography in the office. In fact, a 1998 Ninth Circuit memo identified 90K adult sites accessed on their system over a 28-day span. Not trying to slut shame anyone here, but porn “in the office” should raise a red flag or two unless you work at Penthouse.

That’s when Kozinski just went in and shut off the software himself, disabling the system for three circuits. Mecham and others cried bloody murder over the “destruction of government property.” And yet… no one did anything. Despite Mecham’s protestations, the Ninth Circuit rallied behind Kozinski. Judge Mary Schroeder, serving as chief at the time, declined to take any action. Mecham was not pleased:

“It is my strongly held view that this total absence of action is the worst example of failure by those responsible for disciplining judges that I have witnessed during my 21 years as AO director,” Mecham’s letter states.

In retrospect, Kozinski’s colleagues on the bench should have considered whether or not keeping a free flow of pornography in chambers contributed to a hostile work environment at the very least.

Ultimately Kozinski won the battle but lost the war, realizing that even without a firewall, there’d still be a record of accessing porn through government servers. So Judge Kozinski set up a personal server he could access without official oversight catching unfortunate domain names like hotteensex.com, hotteen.com, and hollywoodteens.com — all domains visited according to the monitoring system. It’s this personal server that Heidi Bond cites as the source of the pornographic video Judge Kozinski made her watch.

This server brought to light in a 2008 Los Angeles Times article that resulted in Judge Kozinski recusing himself from the “2 Girls 1 Cup” obscenity trial that he was running… for some reason. And, no, that link does not go to the video.

Judge Kozinski requested an investigation of his own conduct and Chief Justice Roberts sent the complaint to the Third Circuit. A lawyer named Cyrus Sanai, who apparently discovered the private server, filed an affidavit with the Third Circuit with a number of exhibits curating the entire history of the earlier web monitoring kerfuffle and connecting the dots between the previous web monitoring clash and the porn on the private server. He’d unsuccessfully try to get his complaints — which go beyond just the porn issue — before the Third Circuit (as did Ralph Mecham, who also had some thoughts he wanted the Third Circuit to consider) but was denied and ultimately filed a separate formal complaint over this with the Ninth Circuit that got unceremoniously shot down by Judge Reinhardt.

In the face of these allegations, people bent over backward to make excuses for the judge. Above the Law was among those defenders, getting caught seeing only the trees when there was so much forest to consider:

What we do think, however, is that the whole matter has become completely overblown. All it shows is that federal judges enjoy the occasional dirty joke and have risque material on their computers — in other words, “they’re just like us.” Considering that we launched a blog devoted to this very proposition four years ago, we find it hard to get that excited about it now.

Ted Frank also missed the trolley:

Kozinski can be criticized for indiscretion in failing to realize that his website was publicly accessible, and opening himself up to this politically-motivated silliness, but I fail to see why a judge’s e-mail habits should be a scandal.

Eugene Volokh, another former Kozinski clerk, put it this way:

Now the fruit of this disgruntled lawyer’s rummaging through someone else’s personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai’s discoveries are similar to someone’s finding that a judge who’s presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? …

Enough already. As Larry Lessig puts it, no-one should be put in the position of “hav[ing] to defend publicly private choices and taste” in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours.

Speaking of Professor Lessig, in the Wall Street Journal Law Blog (R.I.P.), he attacked the media for blowing the server out of proportion.

Parsing “the Kozinski mess”: Lessig says the real Kozinski mess is “the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective.” Lessig writes: “The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.”

Except it wasn’t garbage. Pornography isn’t a crime. And cruising pornography at work isn’t a crime per se either, but it should’ve raised concerns.

In the end, the Third Circuit responded with mild admonishment.

Perhaps the Third Circuit, which claimed to be investigating all instances where Judge Kozinski shared images from the server, would have issued a different report had they elicited the right testimony in their investigation. Instead, Judge Kozinski himself was the only real witness, along with some affidavits. As Heidi Bond recounts, in a passage curated on the CA3 Blog, Judge Scirica, who sat on that panel, didn’t talk to her back then and when he finally did, he made clear that he appreciates confidentiality over getting to the heart of the matter:

On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.

I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.

I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.

Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.

That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”

Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.

A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.

“What then?” I asked.

It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.

I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.

If the law supposes that, then the law is an ass. Yes, there is someone who can answer that question! Bond didn’t ask Judge Scirica these questions during the investigation, but if Judge Scirica and the Third Circuit really believed that “a matter of personal misconduct on the part of the judge” could be disclosed, their investigation into sharing porn should have led the Third Circuit panel to have at least considered the possibility that “porn in office” could’ve been shown to clerks and looked into it.

At every step of the way, there were warnings about possible improprieties in Alex Kozinski’s chambers. And at several steps along the way, there were people capable of intervening to stop it. It was not a partisan affair. Judge Schroeder and the late Judge Reinhardt are hardly committed conservatives, yet they also never took the logical leap to question the work environment in Kozinski’s chambers when confronted with red flags. Dahlia Lithwick probably put it best in her post in the immediate aftermath of the allegations against Kozinski:

Kozinski forced us all into this mess with him. And still, I am aware as I write this that I should have found my footing, that the women who came up after me, and who spoke up, are manifestly braver than I was. I am further aware that my failure to speak up over the course of my career is part of the reason why it was possible for the women who came after me to be treated as disrespectfully as they were.

Her title states that Kozinski created “accomplices,” and that’s a fair description. As she points out, she sat on panels with him that allowed him to continue to position himself as a legal luminary and important feeder judge all while knowing that his chambers weren’t safe. That’s why the clerks criticizing the working group have it right — we need a backward-looking inquiry into Kozinski’s actions not so much to punish Kozinski but to illuminate where relying on judges, academics, the legal press… all failed.

And they didn’t just fail the victims — the most important people here — but in a very real way, they also failed Judge Kozinski. If someone forced the issue and told Judge Kozinski to stop showing clerks porn in 1998 and adopt a more professional and respectful management strategy, he might still be on the bench today.

Perhaps Judge Kavanaugh never witnessed anything. As Lithwick’s article posits, that’s almost impossible. But maybe Brett Kavanaugh was entirely clueless. Or maybe he took Kozinski’s chambers as a learning opportunity and runs his chambers differently. We don’t know the extent to which Kozinski made Judge Kavanaugh an accomplice.

But that’s exactly why we should ask the questions.

Earlier: Did Brett Kavanaugh Know About Alex Kozinski?

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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