Alex Kozinski is a judge, and the former chief judge, of the 9th U.S. Circuit Court of Appeals, the biggest circuit and the most liberal in the country. Judge Kozinski, known widely in the legal profession as just “Alex,” is a libertarian conservative, a prolific writer and a brilliant man.
I moderated a panel a few years ago with Alex and Steve Reinhardt, the most liberal judge in the 9th Circuit, and it was a wonderful dialogue, full of good humor, strong opinions and mutual respect. That is Alex. Though I can’t count him as a friend (I wish I could), he is someone I do know and respect.
He is also someone who happens to have, in his sense of humor, an apparent fondness for childish pornography. I don’t mean child pornography, God knows. I mean the kind of stuff where you have a deck of body parts and you create a woman, or photos in which some people are naked and some are dressed, but none are having sex.
It caught up with him in 2008, when the Los Angeles Times somehow got access to his private home server where he kept images of a similar variety that were sent to him. His sin there was not that he ever even visited the sites, or that the images were really shocking, but that he needed a better firewall to maintain his privacy. There was a full investigation, and Judge Kozinski apologized for the embarrassment he had caused by maintaining an email list to send private joke emails. At the time, I was told, clerks were called and asked if they had ever had uncomfortable experiences with the judge, but that got nowhere.
A clerkship with Judge Kozinski is a prize much sought after, a ticket to do almost anything you want next, often including a Supreme Court clerkship or entree to any law firm or public interest institute. But the real prize is the chance to literally work alongside a great and powerful judge, to see the cases from his perspective, to understand exactly why he rules the way he does. If you get to clerk with the right judge, it is a once-in-a-lifetime experience. I clerked for two amazing men, and they were probably the best years in my career. I have had a number of students lucky enough to clerk for Alex Kozinski, and they were treated like family when they did.
The Washington Post took on Judge Kozinski last week, and the entire media industry has now piled on. The “gotcha” is based on two on-the-record complaints and four anonymous claims. The first named clerk, and the focus of the story, says he showed her pornographic pictures like the ones I described above and asked if she thought they were Photoshopped. The other named accuser, who worked for a different judge, said she commented to a group including the judge that she enjoyed working out in the court gym because it was often empty, and he said if that were the case, she should work out naked. Four other women complained anonymously (for reasons one can understand, given that he is still a sitting judge) of being shown pornographic or similar images. No rape. No sexual assault. No trading jobs for favors. No forcing women to “put out” to keep their job. A child of Holocaust survivors, Kozinski is known for appearing on “The Dating Game” as a young man and giving a wet kiss on the cheek (Al Franken-like, I suppose) to the woman who picked him.
Don’t get me wrong. I do not think judges or anyone else should be showing pornographic images to those who work for them. I don’t think they should make comments — even as a joke — about young women being naked in a professional setting. I want my daughter, and all our daughters, to work in environments where they can flourish, free of what we — men and women — long accepted as par for the course and never complained about. My daughter has literally co-founded a group to elect women to office, Project 100, and I could not be prouder.
The new generation is complaining loud and clear, and that is the message. Men need to know and need to stop. But we should take care in bringing men down for conduct that, even if true, does not rise to the level of harassment, much less assault, and happened years ago, and never resulted in a complaint.
Judge Kozinski denied ever showing pornographic material to his clerks. It is sort of impossible to defend against anonymous accusations regarding things you allegedly showed people years ago. The most recent incidents in question are at least five years old. Is this really enough reason to persecute one of our most brilliant judges?