One of the most prominent judges in the country is facing a misconduct inquiry after a raft of sexual harassment claims came to light in recent days. Chief Judge for the 9th Circuit Court of Appeals Sidney Thomas filed an order on Thursday beginning the process for an inquiry into the behavior of Judge Alex Kozinski.
Thomas cited “past practice” of beginning such a proceeding “when incidents of alleged misconduct have been reported in an accredited media publication.” He described, as the basis for the inquiry, the Washington Post’s recent reporting that six former clerks had alleged misconduct by Kozinski—including two who said that he had shown them pornography—along with “any other related articles.”
On Wednesday, Slate writer Dahlia Lithwick, who clerked for a different judge on the 9th U.S. Circuit Court of Appeals, published a personal account of Kozinski’s inappropriate behavior and described “the strange hypersexualized world of transgressive talk and action that embodied his chambers.”
Chief Judge Thomas requested that Chief Justice of the Supreme Court John Roberts transfer the proceedings to another circuit for review in order to ensure impartiality and said that the proceedings would be “subject to the usual confidentiality rules.” He added:
Pursuant to Judicial Conduct Rule 23(a), this order is publicly disclosed in order to “maintain public confidence in the Judiciary’s ability to redress misconduct or disability.”
The Rules for Judicial Conduct and Judicial Disability Proceedings lay out that an inquiry may occur if “a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct.” Misconduct is defined as conduct “prejudicial to the effective and expeditious administration of the business of the courts.” The rules say that such conduct “is not subject to precise definition,” and that “the responsibility for determining what constitutes misconduct under the statute is the province of the judicial council of the circuit.” It does lay out, however, some examples of possible misconduct. The closest example as it regards to this case seem to be “treating litigants, attorneys, or others in a demonstrably egregious and hostile manner.”
Here is some of what the Post reported Kozinski has allegedly done during his time on the bench:
A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually. …
[Emily] Murphy, who clerked for Judge Richard Paez, said Kozinski approached her when she was talking with a group of other clerks at a reception at a San Francisco hotel in September 2012. The group had been discussing training regimens, and Murphy said she commented that the gym in the 9th Circuit courthouse was nice because other people were seldom there.
Kozinski, according to Murphy and two others present at the time who spoke to The Post, said that if that were the case, she should work out naked. Those in the group tried to change the subject, Murphy and the others present said, but the judge kept steering the conversation toward the idea of Murphy exercising without clothes.
“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”
As the Post noted, “As a judge, Kozinski has addressed the topic of sexual harassment in important ways.”
As part of the process, a special committee with subpoena power will conduct an investigation and prepare a report with findings and recommended actions. Hearings can also be held and witnesses heard. The report would then be subject to review by a judicial council, which could determine any possible disciplinary action. Some potential disciplinary actions listed include “censuring or reprimanding the subject judge, either by private communication or by public announcement,” “ordering that no new cases be assigned to the subject judge for a limited, fixed period,” “in the case of a circuit or district judge, requesting the judge to retire voluntarily with the provision (if necessary) that ordinary length-of-service requirements be waived,” and making any recommendation to the Speaker of the House if “grounds for impeachment” are found.
Kozinski told the Los Angeles Times that he didn’t remember showing pornography to clerks. In response to the Post report, he said “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.”
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