Courts

The Rehabilitation Of Disgraced Judge Kozinski Has Begun

Will the legal community welcome back Alex Kozinski?

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Judge Kozinski

Well, isn’t this just a kick to the ovaries?

Last week, the first step in the campaign to rehabilitate the reputation of former Ninth Circuit judge Alex Kozinski in the legal world began when he appeared as a co-author on an appellate brief in a high-profile case. For those who maybe somehow avoided all of the news last December (actually, exactly a year ago today), Kozinski retired amid a sexual harassment scandal that rocked the legal world. While the jurist was somewhat famous in legal circles for his bawdy sense of humor, the extent of the alleged harassment — asking women clerks to view pornography with him in his chambers, making inappropriate sexual comments, and verbal abuse heaped on females working in his chambers — was more hidden. However, the Washington Post’s exposé on the judge sparked an avalanche of over a dozen women coming forward to share their experiences with the judge.

As reported by Law.com, Kozinski recently co-wrote a brief on behalf of the heirs of Pulitzer Prize-winning author Paul Zindel, in their case claiming the Oscar Award-winning movie “The Shape of Water” stole copyrighted parts of Zindel’s “Let Me Hear You Whisper.” With all the awards both sides of this legal row have racked up, it’s no wonder that the case garnered press coverage well before Kozinski got involved.

And it’s not a coincidence that in his first appearance as a lawyer, Kozinski selected a case that was already getting attention. This isn’t about (or at least not solely about) Kozinski’s desire to get back to work, it is also about testing the waters of public opinion. This case isn’t a high risk proposition for Kozinski — he was always an insightful writer and he gets to come back to his former home appellate court, just this time as a litigator. What a perfect chance for him to see what his second act might look like.

Katherine Ku warned us this would happen. Ku is the partner at Wilson Sonsini who clerked for Kozinski, but came forward after he retired with her story. She said part of the reason she spoke out then was because she was concerned that when Kozinski’s retirement ended the investigation into his behavior, those determining when and if he gets to come back into the fold of the legal world will be doing so without the benefit of a full investigation:

Kozinski’s future in the legal profession almost certainly will be decided without the benefit of a robust investigation. At some point, a law school dean may have to weigh whether to place him in a position of trust over budding legal careers. Law firms may need to assess whether he’d be a fair mediator or arbitrator for their clients’ disputes. And the people making those decisions will have to do so without knowing the full scope of his misconduct.

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Now that the judge is taking high-profile cases, it’s only a short jump to the law school speaking engagements, conference appearances, and op-eds that once made him such a notorious judge.

The question remains for the legal community: what role will Alex Kozinski get to have now that he’s been accused of sexual harassment?

We’ll never have a full investigation, just the words of women strong enough to come forward. Unless Kozinski is willing to have an open conversation about the way he used the power dynamics of his chambers to create a toxic environment for women, the other moves in his comeback tour strike me as hollow. While I’m not suggesting all men accused of sexual harassment need to be thrown in the garbage pile of society (though a lot of them do), it should take more than just a waiting period to get back in our good graces. And remember, Kozinski isn’t someone who is struggling to make a living after he was forced to leave his position — he got to retire with full benefits.

Many people will defend Kozinski’s right to appear as a lawyer in this case. Of course he has the “right” to do so — he was never disbarred and never really faced any penalty for his actions. But we also don’t have to welcome him back with open arms.

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headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 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).

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