//  12/13/17  //  Commentary

Late last week, the Washington Post published a story about sexual harassment and noted federal appeals court judge Alex Kozinski, in which six clerks and externs reported that the judge had made “a range of inappropriate sexual conduct or comments” to them. One former Kozinski clerk (who was also my colleague at Seattle University) also published a blog post with a more detailed account of her time working for Kozinski. In it, she describes sexually harassing behavior and an atmosphere of total control; for example, she reports that Judge Kozinski once ordered her to stop reading romance novels, adding “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”

Lawyers were rightly shocked at these accounts, but it turns out that many weren’t surprised. In the aftermath of the Washington Post story, more former Ninth Circuit clerks have come forward with their own anecdotes about Judge Kozinski; one common refrain is that it is an “open secret” that Judge Kozinski behaves inappropriately, and that some women have been advised to steer clear. This is a troubling yet understandable response. It is troubling because the whisper network is not going to reach (much less protect) all potential clerks, and because – as Nancy Leong pointed out – women taking themselves out of the running contributes to gender imbalance in the legal profession. It is understandable because Judge Kozinski is a life-tenured Article III judge, and his “feeder” status makes him an unusually powerful one at that. Further, the federal judiciary is (at least for now) ill-equipped to handle reports of abusive judges; there is a censure mechanism within the federal judiciary and the possibility of impeachment by Congress, but those paths are unlikely to be reliably effective. 

If the federal judiciary is not up for the job, what other institutions might play a role in protecting judicial employees? In partial answer to that question, law professors are rightly beginning to ask what their responsibilities are in steering students to and away from clerkships in particular judges’ chambers. But we should also ask what role the Senate should play in refusing to confirm judges whose records suggest they lack the temperament required to manage their own staffs appropriately, particularly considering how little oversight exists over individual chambers.

It turns out that question was salient in Judge Kozinski’s case: his fitness as a manager was placed squarely before the Senate during his confirmation. The following are (lengthy) excerpts from affidavits sworn by employees at the Merit Systems Protection Board, where Kozinski had served as Special Counsel. They were read into the record by Senator Carl Levin: 

Laura Chin (Public Information Office for Office of Special Counsel):

Overall I perceived Mr. Kozinski as a man without compassion. I believed that he engaged in sadistic behavior, because at the time he appeared to enjoy mistreating individuals. He simply did not treat the human beings at the Office with dignity and respect. He did not exhibit a sense of fairness, of proportion, or of the rational implications of his actions. Most fundamentally, his behavior displayed no sign that he realized the law deals with people.

Beth Don (Attorney who served in the MSPB’s Office of Special Counsel) :

While I was serving at the Office, in 1980 or 1981, a female federal employee filed a complaint of sexual harassment against her male supervisor. . . . While Mr. Kozinski professed to have a strong commitment to prosecute persons accused of sexual harassment, his actions were the direct opposite. . . . Mr. Kozinski's decision not to prosecute in this instance was not just a decision involving one case but was rather seen in the Office as a statement of his view on sexual harassment cases in general – i.e., that he would not prosecute them in response to employees' complaints while he was Special Counsel. This decision made clear to the Office staff that if this case was closed without action, indeed no federal employee's sexual harassment case would ever stand a snowball's chance of being prosecuted by Special Counsel Kozinski. 

John Hollingsworth (Former Director of Administration & Programs for the Office of Special Counsel):

I was employed by the Office of the Special Counsel from 9/2/79-12/11/82. After Mr. Alex Kozinski was appointed Special Counsel in mid-1981, he took a number of adverse actions and humiliating actions toward many employees, myself included. . . . After 20 years of Federal personnel management experience, I cannot recall a more callous disregard for people than Mr. Kozinski exhibited. Incidents included demanding that a messenger be fired when one piece of correspondence could not be located; issuing a notice of farewell to an employee who had cancer and had not yet finalized plans to leave the office and retire; insulting/belittling staff in front of others in written comments; and similar incidents. . . . Besides derisive remarks on writing, Mr. Kozinski was prone to berate the staff for items over which staff had no control or influence. . . . Mr. Kozinski frequently directed and expected that I personally adjust or repair any of his furniture, move furniture or equipment, or clean-up areas. When I did this to avoid his wrath or castigation, he seemed to enjoy watching me do the manual labor as if he took pleasure in my subjugation. 

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TL;DR: Several of Judge Kozinski’s former employees stated that he was a demeaning and even “sadistic” boss, and one attorney reported that he refused to act on a key sexual harassment case in a way that suggested he would not take seriously any sexual harassment cases. Senator Cranston, explaining his decision to vote against Kozinski’s confirmation, summarized the record as follows:

There is no question in my mind about his intellect or his legal ability. But intellectual strength, like any God-given ability, can be misused and abused. When a highly intelligent judicial candidate exhibits qualities that can be described as overbearing, disingenuous, hostile, without compassion, and even sadistic, it is reasonable to question whether intellectual arrogance has diverted that individual from the pursuit of wisdom, which should be the foremost activity of any judge. 

It is impossible not to read the Senate record on Kozinski’s time at the MSPB as a precursor to last week’s Post story and subsequent reports about his behavior. That is, disturbing reports about Judge Kozinski are not just an open secret – they are also a matter of congressional record.

With the benefit of hindsight, we should ask whether the Senate failed in executing its responsibility to assess nominees’ temperament to serve, thereby failing the clerks and other employees who have now come forward reporting abusive behavior. There is a lesson here: The Senate’s confirmation process should be attentive to warning signs about nominees’ managerial temperaments; if a nominee’s track record shows a pattern of abusive intra-office behavior, the Senate should not confirm. 

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