Judge Alex Kozinski, who sits on the Ninth Circuit Court of Appeals and is its former Chief Judge, has an outsized standing among members of the federal judiciary. A libertarian in terms of his judicial philosophy, he has been a staunch defender of due process for those accused of wrongdoing. That would have been his obituary. That is, until now.
He has now been accused by seven former, female court staffers of improper sexual comments or behavior (among others, asking a staffer if she thought specific pornographic images were photo-shopped and if they aroused her). And so, it seems, many of his good works (and often to-the-point, perhaps unique decisions) may well come second to how he deals with the accusations now brought against him. Will he resign? Will he insist on due process and let it take its course, as he has so admirably done for so many other litigants over his judicial career?
It is too early to answer, although his early statement in The Washington Post states: “I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” His later statement to the Los Angeles Times may say more: “If this is all they are able to dredge up after 35 years, I am not too worried.”
We live in a new era of how our society deals with allegations of workplace harassment and wrongdoing (#MeToo). Many commentators, feminists among them, fear a backlash over what they see as kangaroo courts, with final judgment in the hands of the investigators alone where the accused are being terminated with no semblance of conclusiveness—let aside an ability to defend themselves—whatsoever.
The mere accusation, although in truth it is often a pattern of accusations by many women once the floodgates open, has become virtually sufficient to result in a firing, a corporate distancing from the troubling employee. I need not, here, name names—we have all read about the publicized terminations of high profile individuals in the media. And I don’t for a minute defend the alleged misconduct. The claims against Charlie Rose, Matt Lauer, Kevin Spacey, as mere examples, seem so over the top that “due process”—innocent until proven guilty—in the court of public opinion seems beside the point. And, some might even argue, unnecessary.
Now, federal judges are appointed for life. And Judge Kozinski simply can’t be summarily thrown off the bench for his conduct. Yes, the Court of Appeals can convene a panel to look into the allegations against him—it has once before when it admonished Judge Kozinski for housing pornographic material on a court website (he has stated that he thought the folders were private). Notably he was, at the same time, presiding over an obscenity trial. In the wake of the allegations, he declared a mistrial and recused himself.
The court can take myriad actions after investigating a judge’s alleged misconduct, and can even ask the judge to retire. Indeed, the court’s Judicial Council can refer a matter to a Judicial Conference, which will have the right to refer the matter to Congress, which may vote to impeach the judge. It is a somewhat winding road but, upon such impeachment, the Senate will then hold a trial and, if convicted, the reported judge will be removed from his position. Fortunately we would not have to observe an impeachment and then trial of Judge Kozinski in the U.S. Senate with Roy Moore sitting as one of its members.
The jury is still out as to whether, or how, Judge Kozinski will respond to the editorials and reporting that will surely follow. Or whether his colleagues will publicly demand that he step down—as happened in the instance of Sen. Al Franken and Congressman John Conyers. Judge Kozinski has been a faithful defender of due process, not only for the wrongly accused, but for all accused. It is left to see whether he will change his position when his own conduct has been called into question. Indeed, the guilty, and no judgment here, need due process perhaps more so than the rest of us.
There is no question that if Judge Kozinski chooses to hang in there, the judicial discipline system’s inevitable investigation will take measured time. And because the investigation will take place behind closed doors, a skeptical public may well conclude that the judiciary is simply circling the wagons in secret to protect its own—conclusion that makes sense given the way things have been happening with record, maybe reckless, speed to non-judges accused of harassment.
Judge Kozinski, from the currently available one-sided accusations, may indeed have been a bad actor. But if the system put in place to adjudicate the issue is to work properly—assuming he chooses to fight—due process must remain as a bulwark against a rush to judgment against him and his conduct. It is ironic that a clarion for due process may need to use that clarion for himself.
Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School.