Case Closed: Judge Kozinski's Retirement Stops Inquiry Into His Behavior
We may never know the full extent of what went on in the judge's chambers.
When the news broke in December that Ninth Circuit judge Alex Kozinski was being accused of sexual harassment by several former clerks, it sent shockwaves through the legal community. Though the judge’s… bawdy behavior was well known, the extent of the allegations surprised many lawyers, especially as more and more women came forward with their stories of working with the noted jurist.
But when a man with lifetime tenure is embroiled in a scandal, dealing with allegations of misconduct can be tricky. The Ninth Circuit identified a complaint pursuant to the Judicial Conduct and Disability Act of 1980, and it was referred to the Second Circuit. It looked, for a moment, as if there’d be an actual investigation into Kozinski’s behavior.
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A mere three days after the complaint against him was sent to the Second Circuit (but notably after clerks stopped wanting to work with him), Kozinski was out. Now the Second Circuit has closed the case against him, saying, “The Act is concerned with individuals who currently exercise the powers of the office of federal judge.” Which means there’s no statutory authority to continue their inquiry:
In sum, within the space of three days, the Chief Justice transferred the proceeding to the Second Circuit Judicial Council and then-Judge Kozinski resigned, completely relinquishing his office, placing himself outside the parameters of the Act and precluding any inquiry by the Judicial Council. Because the Judicial Council is without statutory authority to do anything more, we must close this matter.
This predicted result was exactly what concerned former Kozinski clerk and current Wilson Sonsini Goodrich & Rosati partner Katherine Ku. She wrote an op-ed for the Washington Post detailing her experiences working for the judge (she alleges Kozinski “regularly diminished women and their accomplishments” and even asked her to look at a picture of a nude man with him). She went on to warn the profession that retirement may well have been the easy way out for the judge, and without the benefits of a full investigation the extent of Kozinski’s conduct will never really be known. That means if and when the judge tries for a second act in the industry, those decision makers will not have the full information before them:
[I]t appears that 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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As for the Second Circuit, their hands are pretty much tied, though they do try to refer the matter to… anyone who might have jurisdiction:
Given the seriousness of the conduct alleged, however, the Judicial Council acknowledges the importance of ensuring that governing bodies with clear jurisdiction are aware of the complaint. Accordingly, the Judicial Council requests that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this order to any relevant Congressional committees for their information, and that the Secretary of the Judicial Council forward a copy of this order to all other judicial councils.
As of now, there’ll be no formal inquiry into the allegations against Alex Kozinski, so we’re robbed of shining a bright light onto the misconduct that allegedly went on in his chambers. That’s probably a bad thing for the entirety of the profession.
(Read the Second Circuit’s full decision on the next page.)
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Kathryn 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).
