Alex Kozinski (Photo by Justin Sullivan/Getty Images)
The effort to rehabilitate the reputation of alleged serial sexual harasser, former Ninth Circuit judge Alex Kozinski continues a pace. In 2017, 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. But his retirement stunted any real investigation into the allegations.
Last year, the first step in the rehabbing his reputation began when he appeared as a co-author on an appellate 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.” Now it’s reported that he’ll be returning to the Ninth Circuit in an oral argument in that case.
Kozinski’s attempt to ingratiate himself back into the legal community — without any investigation — is what Kozinski accusers warned us would happen:
“Where formal processes fail or are subverted, the legal community should insist on informal reckonings before any rehabilitation, rather than turn a collective blind eye to allegations of harassment,” wrote Leah Litman, a professor now at the University of Michigan Law School, Emily Murphy, a professor at the University of California Hastings College of the Law, and Katherine Ku, a partner at Wilson Sonsini Goodrich & Rosati.
And some see this attempt as a deliberate flip of the bird:
“The issue right now that faces our sort of #metoo world is the issue of normalization after certain allegations have been made and after certain consequences have occurred,” said UC Hastings professor Rory Little, who is currently a visiting professor at Yale Law School this semester.
“My overall reaction is one of some sadness that [Kozinski] somehow feels it necessary to thrust himself back in the public eye,” Little said. “It seems like poking a stick in the eye of the community.
“You can just imagine this his return is going to upset some people,” Little said.
But there isn’t any formal process designed to hold Kozinski accountable. Once he retired, the investigation ended and, as a industry, there is not much that can currently be done. However, Fix the Court executive director Gabe Roth thinks it shows the need for congressional action:
“That a serial harasser is allowed to make a comeback without making amends is shameful. It’s also the exact reason we’ve called for an amendment to the judicial misconduct statute that would ensure judges can’t simply retire to make their misconduct cases disappear.
“Keeping complaints alive post-retirement would send a strong signal to current and former members of the judiciary that there are long-term consequences for their actions and that any attempt to return to public life may be marred by a thorough misconduct investigation — and not merely a banal dismissal of charges, as happened with Kozinski.
“Continuing the misconduct process would also signal to other legal bodies, like state bar associations, that they’d be welcome to act, as well.”
But until that happens there’s little recourse but good, old-fashioned shaming.
Kathryn 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).