On Friday Matt Zapotosky of the Washington Post reported that six former clerks and staffers have accused Ninth Circuit Judge Alex Kozinski of sexual misconduct. One of the accusers, former Kozinski clerk Heidi Bond, has posted a fuller account here, and it’s devastating.
Kozinski responded to the accusations both in the original Washington Post story and in this follow-up in the Los Angeles Times by Maura Dolan. Kozinski’s public response to date has been disturbing. First:
After Bond left the legal profession, [Kozinski] said, she sent him an email asking if he wanted an audio version of one of her novels. Kozinski described it as a romance novel with one chapter containing “very torrid sex.”
“I have been a judge for 35 years and during that time have had over 500 employees in my chambers. . . . [I]t is regrettable that a handful have been offended by something I may have said or done.”
“If this is all they are able to dredge up after 35 years, I am not too worried.”
This looks to me like a calculated strategy of attacking the accusers, and I hope judges condemn it.
Anyhow, this is a Third Circuit blog, and obviously Kozinski is not a Third Circuit judge, but this story has a surprising number of Third Circuit connections.
First, Third Circuit Judge Krause clerked for Judge Kozinski in 1993-94. Per How Appealing, she is one of four circuit judges who clerked for him. [UPDATE: to be clear, Judge Krause has not made any public comment regarding the accusations against Judge Kozinski.]
Second, it was the Third Circuit Judicial Council that adjudicated the misconduct allegation against Kozinski in 2009 for storing pornographic images on a publicly available website. (A link to the opinion is here.) The matter was transferred by Chief Justice Roberts to the Third Circuit–Professor Arthur Hellman believed that was done because of Roberts’s absolute confidence in then-Chief Judge Scirica. The investigation committee included Judges Scirica, Rendell, and Stapleton. The Council that ruled included Judges Scirica, Sloviter, McKee, Rendell, Barry, and Ambro. (I tweeted some thoughts about that proceeding here and here.)
Third, Judge Scirica also was involved in the current matter, as Heidi Bond recounts:
On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.
I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.
I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.
Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.
That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”
Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.
A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.
“What then?” I asked.
It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.
I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.
It’s an important story and I suspect it’s just getting started.