#Metoo Movement Jolts the Judiciary

Posted in #MeToo,Sexual Harassment on December 19, 2017

By John D. Winer
December 19, 2017

With the recent resignation of federal appeals court judge Alex Kozinski, the rallying cry of the anti-sexual harassment and abuse movement is growing louder by the day. While it’s not surprising that the #Metoo movement has now reached the heights of the 9th Federal Circuit Court, its unrelenting message has sent a jolt through the judiciary.

Since sexual harassment is most often an abuse of power, there are few people more powerful than a Federal Court Appellate justice. Kozkinski was perhaps one of the most well-known and respected judges, who offered colorful opinions and embraced the media spotlight. However, after 32 years on the bench, Kozinski’s career and reputation unraveled in just 10 days, after 15 women came forward with personal stories describing incidents of his inappropriate sexual behavior.

As first reported by The Washington Post, several former female clerks and junior staffers accused Kozinski of making sexual comments to them, some alleged he touched them inappropriately and others claimed he showed them porn on his computer in his chambers. Two of the women went public, including Heidi Bond, one of Kozinski’s former clerks, and Emily Murphy, who clerked for another Ninth Circuit judge, Richard Paez.

In the wake of the news reports, the Chief Judge of the U.S. Court of Appeals for the 9th Circuit said there were grounds to initiate a review into the allegations against Kozinski. In a two-page order, Chief Judge Sidney Thomas said the inquiry is needed “in the interest of the effective and expeditious administration of the business of the courts.”

I told the Los Angeles Daily Journal in the story, “9th Circuit orders investigation into allegations of misconduct against Judge Kozinski,” “[O]bviously, we’ve seen worse conduct by men publicized recently but there is little higher power in the U.S. other than a federal appellate court judge.”

In a statement issued by his lawyer, Kozinski expressed remorse. “It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent,” he said. “For this I sincerely apologize,” continued Kozinski. He also stated that despite family and friends urging him to continue serving as a judge and fight the accusations he decided to retire immediately.

Adding to the growing list of accusers is Slate legal reporter, Dahlia Lithwick who wrote a personal essay about her interactions with Kozinski in 1996 when she was clerking for the chief judge of the 9th U.S. Circuit Court of Appeals. She wrote, “I cannot recall what we talked about. I remember only feeling quite small and very dirty.”

The allegations against Justice Kozinski indicate, that at least at moments off the bench, his behavior was less than judicial and clearly offensive to female subordinates. He claims that he never intentionally offended anyone, which is hypothetically possible, as we are all capable of being clueless sometimes. However, as a judge, you take on a higher standard of behavior than just about anyone in our society. It is critical that your behavior be beyond reproach.

According to Above the Law, three Kozinski clerks quit their jobs in the wake of the scandal. It’s unclear if any plan to pursue legal action against their former boss. Many of the older allegations directed at the judge could be barred by statute of limitations, which is usually 180 to 360 days from the date of the alleged incident. Current clerks who suffered similar types of misconduct by the judge may be able to file a successful civil case.

For those of us who specialize in representing victims of sexual harassment and abuse, it is no surprise that sexual harassment and abuse pervades every area of society and every profession. It is shocking that a Federal Appellate Court justice is accused of sexual harassment? No. Is it disappointing? Yes. Hopefully, the “Weinstein Effect” will teach all people who have been awarded positions of power by society, that the honor comes with a responsibility to be careful to treat subordinates with respect and a special duty to be careful not to cross a line where your behavior is sexually offensive.