Courts

Above The Law's Dangerous Love Of Federal Judges

Did we help support sexual harassment?

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The abrupt retirement of Judge Alex Kozinski from the Ninth Circuit following a series of sexual harassment allegations against the noted jurist rocked the legal world. After the allegations became public, legal know-it-alls came out of the woodwork to explain how the questionable behavior of Judge Kozinski was an open secret. Though Kozinski left the judiciary months ago, the way he ran his courtroom is back in the news with the nomination of Judge Brett Kavanaugh. Kavanaugh, who claims he knew nothing about the alleged sexual harassment, clerked for Kozinski, and the two had a noted close relationship.

What Brett Kavanaugh did know, or should have known, and whether or not it matters is a question for the the political body about to give him a lifetime appointment to the country’s highest court (spoiler alert: it won’t matter). But now is the time for a little introspection on the question of Alex Kozinski and how much of a role Above the Law played in maintaining the cone of silence that allowed Judge Kozinski to allegedly harass his clerks.

Over the weekend, inspired by some aggressive tweeting in support of Brett Kavanaugh from Above the Law founder David Lat, Courtney Milan had some things to say. Milan, for those that don’t remember, is the pen name for former Kozinski clerk Heidi Bond, one of those to come forward with disturbing stories of harassment in his chambers. Milan notes that the coverage Kozinski enjoyed, particularly in this publication’s early days, raised him to the level of judicial superstar and that this reputation insulated him from criticism and was part of the reason why others didn’t come forward with stories about Kozinski earlier.

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This is harsh but fair criticism. As ATL’s most recently hired editor, I wasn’t here for a lot of the fawning judicial diva coverage Kozinski received and David Lat is a trusted colleague, but this has the ring of truth. There was a lot that was known about Kozinski even before the allegations of sexual harassment became official (like his creepy Dating Game appearance and penchant for using a courthouse server to house porn). So when someone plugged into elite legal gossip circles says they “didn’t know” about Kozinski, that has to be read very narrowly, because there were a lot of rouge-tinted flags.

When Above the Law — or any website that provides commentary along with the news — reports on a story, we come at them with our own biases. Frankly, those takes are a part of the job and what keeps readers coming back, so it isn’t a problem per se that Lat’s personal affection for Kozinski made its way into his coverage of the man. But we need to be aware and ever vigilant that the way our stories are framed do not do a disservice to the legal community, and as more information becomes available, updating and honing those takes.

So yes, old stories that joyfully tease why Kozinski reads Playboy, or support his takedown of “fat” or “chubby” legal briefs, or that announce ATL is cutting back on critical stories of the judge’s porn use in his chambers in favor of Federalist Society-funded talks celebrating the judge’s “outspoken” personality make me cringe. Those have have aged as poorly as a Donald Trump tweet.

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That’s always a risk in a medium that churns daily content in a relatively small sub-section of news, but Milan’s criticism of ATL is more than fair. As a news organization we must look critically at our own tendencies towards idolization of legal luminaries. Time has shown there was a lot of darkness under the “playful” personality Kozinski used, and while I think as a website our coverage of him has developed appropriately, when we uncritically sing the praises of a judge because we like them or because they’re a “good person”, we do more than risk looking foolish in time — we also risk stifling important criticism that needs to be heard.

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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