Clearly, had the judge been, say, black and the compainants been white, there would have been a reckoning.
This is the Trumpian Trope of this cabal.
A smack on the wrist, then a past's-in-the-past, forgive and forget "going forward" mentality.
Byegones.
1
So what now, accusations alone are enough to crucify the man? So now he is denied the ability to make a living forever? He was never charged criminally, and the allegations Were never tested in a Court of Law and verdict was Never rendered by a neutral party. Until recently with the me too witchhunts, An accusation without trial which allegation was denied was not enough to destroy a man. Now the hysteria is apparently enough. What a travesty. This is not justice.
3
Opinion pieces like this will get our president re-elected: progressives such as myself are increasingly dismayed by the apparent bloodthirst of feminists and others on the left who seem to be encouraging taking the law into one’s own hands.
No, I’m not going to assume Mr. Kozinski is guilty just because there are allegations, corroborated or otherwise. He absolutely deserves to continue his life, accept speaking engagements, publish books, and receive his federal pension. Let the full force of our justice system proceed. Thank goodness it’s still mostly based on the tenet of innocence until proven otherwise.
The “reckoning” the authors want seems to be a public shaming resulting in driving the guy into hiding. Should every past sin – even ones admitted to – follow each of us for the rest of our lives, let alone allegations leveled at us? (See also NYT’s July 27 article on Mike Cagney.)
Dare I ask, Where is compassion? Where is a sense of acceptance that the legal system is imperfect, so let’s focus on what we can do to prevent such things in the future? I see only rage and intense polarization of the sort that discourages critical thinking and intellectualism – and drives potential supporters away.
I once identified as a feminist. I cannot in good conscience continue to do so. NYT, I know you occasionally have them, but please balance out such opinion pieces with more that question #MeToo’s fuzzy thinking & encourage us not to give in to this sort of desire for mob rule.
1
My experience with sex offenders is not that I couldn't believe it of them. On the contrary, in both cases I knew which blew up, I instaneously knew that they might be guilty. This is because I realized, after the fact and in the light of the accusations, that the offenders had inveigled me into accepting breaking of the rules, as normal. As in bathing first graders, or selecting 13 year old boys as clients for themselves while the rest of us did family therapy.
If workplace offenders are anything like pedophiles, I am certain that people are thinking, oh, that is why he had me make an appointment for her after work hours or send her flowers or who knows what. Why does everybody say, gee, I'm so surprised, he was so nice. Come on, plenty of people probably helped Bill Cosby, hopefully without realizing it, and they ought to have recognized it after it became public.
Always they are described as domineering at the office, but the rest of the workers don't seem to say they had been pressed into complicity. They say he was so nice. At least wrestling teams knew about the behavior, without bring able to intervene and bring it to a halt.
If untoward behavior can be documented and established it must be done firmly and publicly. The offender is not usually going to understand what he has done wrong and the rest of us have the responsibility of keeping him out of trouble.
Obviously the displeased attorneys lacked the evidence or courage to pursue civil and/or criminal complaints against the judge in a timely manner.
Having failed to act as reasonably prudent lawyers, they now cynically demand we accept their unproven allegations as true, deny the accused the presumption of innocence and due process, and engage in lynch mob “justice.” After all, he’s a white male - and so he must be guilty of accused by a female of anything.
Nothing is more grating than the sound of unsuccessful
lawyers whining.
Having seen 30 people claim injuries when a bus holding 15 crashed, I understand the “piling on” effect of accusations charging politically incorrect conduct.
I - for one - refuse to join in the lynching.
As always, liberals despise due process and presumption of innocence when it comes to allegations of political correctness.
1
The problem is that there was no due process and no place or anyone to go to.
1
This approach has been tried. Think if our judicial system goes the way of the Catholic church. Only sunlight will save us; lots and lots of sunlight. These women are the resistance heroes in a new war against the flow of information that indeed threatens society. And the reporters and the journalists of our amazing free press, the warriors.
3
I, for one, am sick of society's collective pearl-clutching.
Maybe we should find the woman who groped me at that wedding I was in. Or the two women who drunkenly walked up to my friend and me on Bourbon Street and fondled us through out blue jeans. My major concern was that they might pick my pocket. Or the one who groped me as I walked past her on the stairs in Paris.
None of that was consensual. My response was never cool and collected. Just flustered. None of that ever led to anything else. I've never returned the favor.
I've seen porn sites pulled up in workplaces (by women who joked about the images). I've had women in an office pull me aside to tell me how lucky I was to be working with a certain contractor because he was "so good-looking." He was a complete jerk, and because so many women were enamored with him in the office, I knew I couldn't get him sacked. I had to hire someone else to do his work properly outside the office.
Oh, the stories go on and on. To Ms. Litman, Ms. Murphy, Ms. Ku, I am sorry you and others had to endure whatever you endured. But if you want drop Kozinski down the memory hole, take a flying leap. Sue him if you were damaged. But I for one am sick of the puritanical public shaming.
1
This article is well written, well reasoned, well supported and an idealist must be swayed by the argument that the laws, rightly applied, will bring justice.
But you are appealing to those in power to let them join you in the circle of those protected by our legal system. Suppose they are not sufficiently swayed by your appeal, as I believe they will not be.
To advance and build on the #MeToo movement much further, you will have to get your selves and your own people to where they directly operate the levers of power. Build a system that directly and aggressively supports your interests; go further than petitioning to be included in the club under the current system.
"The arc of the moral universe is long, but it bends towards justice," said Dr. King. President Obama wonderfully deployed this quote many times, but the bend is not ordained by fate and has reached its limit unless and until we have more of our own people directly operating the levers of power, legislating and interpreting laws, shaping culture and influencing access to information that pertains to the pursuit of justice for all.
I chose to say "you" in the 2nd and 3rd paragraph because I am not, literally, one of your group; I chose to say "we" in the 4th because I am an ally.
1
Perhaps the victims of Kosinski’s alleged sexual misconduct should file a class action lawsuit against him, seeking money damages while keeping this matter alive in the public sphere. If not able to have this lawsuit certified as a class action, then file the most egregious individual cases against the former jurist. The resulting effects of any judgment(s) against him should make his post-bench career in any aspects of the law toxic.
Not only is he a known sexual predator, but he has used his power within the legal system to protect other predators. I know this for a fact.
5
There is little accountability in this society for all kinds of miscreants, Judge Kozinski included.
He should have been investigated criminally and if evidence was found, prosecuted and jailed if found guilty.
Instead, he walks free, and the women he wronged are left to wonder why.
There is no defense for this judge and those who try to defend him are on the side of misogyny.
2
There is a former Judge and DA in Georgia, Johnnie Caldwell, who had numerous sexual harassment charges against him. He was removed by a judicial watchdog group. After this he successfully ran for a house seat in the Georgia Legislature where he also successfully introduce a law to get rid of the same watch dog group. Not only do these men NOT go away, they are so used to their white male privilege they expect to get revenge and more rewards. Bad on the voters who put this creep back in power.
11
I wish the author of this piece had clarified precisely what Kozinski did, and did not, do. In the first paragraph, we are told that he "stepped down" and "resigned" from the Ninth Circuit Court of Appeals. These terms are misleading and inaccurate. From reading further into the piece, I see that he retired and is drawing a pension, which was my understand of what he had done. In other words, I presume that he "took senior status," which is usually what happens when a judge decides to cut back her workload and open a slot for someone else. But if Mr. Kozinski "took senior status," he would not be "Mr." he would still be "Judge." And if he "resigned" his position but did not take senior status, why is he still receiving his pension, which, by the way, is 100% of his income as a judge?
I also assume that a resigned federal judge, unlike a "senior" federal judge, no longer has an office, no longer has a law clerk and no longer can occasionally sit on a case. So my question for the Times is this: if he resigned because, if he were to continue as a judge in senior status, he could still be investigated, why should he get the best of both worlds -- no investigation and a lifetime salary at full pay?
1
@Blue State Commenter Why not? No one filed charges against him. Heck, just a few hours ago when I was driving, there were many folks speeding. Earlier today I saw someone texting and driving. I saw folks jaywalking. The list is endless.
We don't strip folks of their pensions just because they have been humiliated in the press. These accusers had the chance to speak up and file complaints when they were clerks. They did not. Years have passed. And now what? Seriously, now what?
Maybe you've never read about the blacklists in the 1950s that destroyed lives of those who joined the American Communist Party, often for a very short time in the 1930s during the depression. Livelihoods and businesses were destroyed because these folks were accused, often without proof, of harboring unsavory thoughts and ideas that shouldn't be tolerated in polite society.
Sound familiar?
"#MeToo is about more than stopping harassment. It should also be about addressing the ways society may allow men to get away with misconduct."
Says who? Then you're jumping from allegations and "reckoning" to McCarthyism and witch hunt. Because those are the very tactics that allowed the Red Scare to continue unabated for so many years... lacking proof of any tangible membership in the Communist party, the accused were judged to have "simply got away with it." Straw man, etc.
"Sexual harassment often persists because third parties are silently complicit in it. #MeToo requires some retrospection from people who are not harassers themselves."
No, it does not. Requiring people to be introspective about issues or events outside of their realm of knowledge or daily existence is dangerous and naive. It explains Twitter, e.g.
6
From having been stalked and noticing that those I spoke to about it often had no response, I concluded that the word sex and its variations distract people. When the distracting terminology was omitted, more people understood.
1
Isn't there a legal remedy for this? A law suit? A criminal prosecution? What are we really asking for here? I don't know whether the guy did it or not, but I think if we start assuming that certain kinds of accusations no longer require proof before punishment, then I think we're starting down a very dark road indeed.
4
I agree with the authors that once the accusations were made, the judiciary should have conducted a thorough review and released findings, notwithstanding that he resigned. If he committed criminal assault, he should be charged if the statute of limitations has not expired.
However, my hunch is even if had that happened, or happens in the future, Mr. Kozinski would still be on his way to quasi-rehabilitation. At this point, sadly, the sheer number of MeTOO inspired harrassment scandals, many of which involve actual rape and other criminal charges, is so large and horrific that the gross behavior of Mr Kozinski is going to seem tame in comparison. And there is the fact that he resigned under a humiliating cloud, which some will feel is punishment enough. Finally, people are going to say the ability to have a second chance at a good life is a virtue in our society, if there is at least a reckoning.
2
I see Kozinsky resigned from his judgeship but I wondered if he resigned as an attorney. I checked the California registry and he’s there, an active member of the Bar. I don’t understand why he isn't withering under a barrage of disciplinary complaints. I have no problem with dragging him through the mud in the media, but he should not be an attorney. It is obvious he has no appreciation for the gravity of his sins because he has the nerve to show his face in the public square. The attorneys who wrote this article should band together, file disciplinary complaints against him and support the women who chose to remain anonymous for this article to come out of the shadows and face this serial harasser as he is stripped of his license to practice law.
5
These women want his pension. They want to strip him of all capacity to make a living or retire. Other crimes call for jail and/or a fine but these people want to smash him, destroy him, so that he can never again show his face.
All of those acts of which he's accused are bad but none appear violent. Must he really walk the plank? The complainants seem to place special emphasis on his failure to properly apologize. Had he done so, would they have commuted or softened his sentence? And if that's the case, how do his actions count as crimes? (Of course, oil companies and banks pay their way out all the time, with no apologies).
Without dismissing the humility he caused, must every case of harassment be met with social banishment and eternal damnation?
8
@I Remember America I encourage you to re-read this article. The authors' point is not to argue for "social banishment and eternal damnation." They want—and sought—in their own words, "findings of an official investigation that establish validated, agreed-upon hard truths of what happened." They focus on his lack of apology because, without an investigation, his unwillingness to admit guilt fuels the perception that their allegations were unfounded and adds to the grey area of doubt that allows Kozinski to escape accountability. They notably do not go so far as to argue that Kozniski should be permitted to give media interviews or publish his writing. Rather, they point out, correctly, that perhaps those giving him a forum would treat him differently depending on whether they believe him to have committed the conduct of which he is accused. Let them decide whether or not to associate him with full knowledge of what he did or did not do, rather than being able to dismiss accusations as unsubstantiated simply because no one was willing to gather and objectively evaluate the facts. Accusing harassment victims of vindictive hysteria is counterproductive and a mischaracterization of their eminently reasonable points.
P.S. The "humility" he caused? As Inigo Montoya would say, "I do not think it means what you think it means."
6
@Julia
I appreciate your gracious reply. I disagree with these points:
You say the authors simply ask for “an official investigation” and that “they notably do not go so far as to argue that Kozinski should [not] be permitted to give media interviews or publish his writing.”
In fact, that’s exactly what they’re saying: “Mr. Kozinski has found it disappointingly easy to return to the public stage…Mr. Kozinski receives his federal pension…[No hearing] paves the way for a speaking engagement or panel at a conference or law school, or consulting with a law firm and interacting with junior associates…His plan to teach…The community’s seeming assent to Mr. Kozinski’s return to legal circles…”
All of those strongly call for blocking his return to the public stage as the means to address his alleged misconduct. No speaking engagements, panels, law firm consultations, no teaching…and no pension. As I said, they want to strip him of his income, and sentence him to eternal damnation.
That said, your and their position is that he was allowed to escape judgment by retiring, whereas sexual harassment charges should always be taken with the utmost gravity. You want a hearing in every case.
Maybe, maybe not. While his case is far more serious than Aziz Ansari or Al Franken or the Australian 60 Minutes interviewer who will likely never work again for gushing over the NZ PM, damnation seems to be the go-to verdict across the board. That's what I read in their letter.
Over the last several years, government employees have had their due process rights continually challenged and limited by the Courts. This issue finding justice for victims of harassment only makes sense in the context of a broader discussion about the rights of all employees, those who are accused and those who claim injury. The notion of workplace justice is valid and important, but it needs to go beyond addressing sexual harassment to workplace rights in general.
I know about this man. He has been a serial manipulator of female colleagues and subordinates since at least the 1980s. You simply can’t toy with the minds and emotions of so many people without their friends, families and coworkers eventually hearing the stories.
Imagine the numbers, growing for over 4 decades. Now imagine the kind of reputation that could keep so many mouths shut for so long. Then consider the courage it took for a brave few to meet their moment and finally speak out. They are entitled to be heard. They are not afraid, but Alex Kozinski has reason to be
8
As many have commented on, the article delivers an air of public shaming to compensate for what appears to be lack of appropriate due process. Granted, the reported behavior with its lack of investigation, legal loopholes etc... is very disturbing even if we don't know the details. However, I am not sure how I feel about how the authors used the media. Maybe its a clever way to educate readers about harassment in the judicial system while at the same time trying to inflict damage. But its a bit surprising given the intellectual power behind the piece that they would risk obfuscating the real goal: change.
2
The attorneys making the accusations are angry at the fact that the courts determined that with the resignation of Judge Kozinski, there was no jurisdiction to hear the charges against him. So be it! Let us remember all the people who were executed by their states after many judges and panels of judges determined that their appeal was defective because of some arcane procedure they had failed to do earlier in the appeal; some claim they had failed to make. That is what the law is like, but in this case there is still the criminal and the civil justice system available to secure justice. What they are complaining about is that right was not done. To quote a play called "The Winslow Boy," 'Easy to do justice, hard to do right." Remember always what my best professor at Brooklyn Law School, Joseph Crea, told us, "Never drop your briefcase and run."
4
maybe the "judge" has friends in the circle of power that prints and distributes the news. after all, he always seeks the lime-light and obviously considers himself above the law when it comes to his interface with women. another example of how the material world of Southern California has compromised the values of his working class parents. no wonder..... he was appointed to his post by that ultimate phony faker, Ronald Reagan.
2
It was not his intent to make his law clerks uncomfortable, he says. It is NEVER their intent. Their intent is manifestly only to pleasure themselves; the effect on the victim is not considered at all.
10
One would think that these highly educated attorneys should know that the Federal Courts do not issue advisory opinions. In addition, there is such a thing as the case and controversy requirement as well as the doctrine of "mootness." Once the Judge resigned, that is the end of the judicial conduct investigation. And no, I am not excusing his conduct. Shocking for such a high ranking judge.
4
It has been well known for years that Kozinzki is an individual who fostered a work environment replete with images and comments degrading to women, despite his esteemed legal opinions. If you were a female law student and wanted the highly coveted position of Circuit Court clerk, you would just have to put up with it. It's unacceptable. Just look at this 2008 LA Times article explaining how he had pornographic images of women and bestiality on his computer and website:
http://www.latimes.com/local/la-me-kozinski12-2008jun12-story.html#
10
Alan makes a good point. Because the law has limits, how do we (and should do we ) extend justice beyond the law? "The Scarlet Letter," indeed, comes to mind. The writer Richard Rodriguez once wrote that the common trait all Americans share is puritanism. I think these times prove his point.
2
Those elite circles also include academics. Several professors who were accused of serial harassment and who were either fired or resigned are now back at it, but in different universities. Just wait a year or two and someone will hire them. Shameful.
3
Clearly we have not yet completed the work of the #me too movement. The punishment for sexual harassment is difficult because it is the nature of sexual harassment is that it is done without witnesses, which makes proving the crime nearly impossible. Surely, once an investigation is begun it should be completed and a report filed stating the results of the investigation.
The question is what does the society do with sexual harassers once they are discovered. Many of them, such as this ex-judge, have valuable skills, but also they should not be allowed to work with the class of people they have harassed. They need to be given work in order to earn their living yet they are obviously a threat to society.
I disagree with taking away the pension a person has earned because of their misdeeds, because without a pension they will become a burden on society. Perhaps the pension could be reduced to a modest living as opposed to the excellent pensions most judges receive.
Maybe we need a sexual harassers list available to the public so people and check them out before hiring them or lauding them.
We already have too many people in jail, but these harassers must be somehow separated from their likely victims.
I am not writing this because former judge Kozinski once decided a case in favor of my company, just as an observer. He was a celebrity judge--photographed by Helmut Newton for his book Sumo, if I recall the publication correctly. He resigned over the accusations. There went his professional life and his reputation. And yet there has been no conviction. What are you suggesting? Ostracism? Should he wear a scarlet "A"? If he did wrong, the system, if it works, will uncover that. I've been groped. I am very sympathetic to other people who have experienced that. Let the system work, and don't begrudge the right, even of people you do not respect, to push on with their lives after a fall from grace.
27
@Alan Behr According to this article, both his professional life and his reputation have done just fine, and the reason there was no conviction was because he got the investigation terminated before its completion. It's important for him to be held accountable - something that, so far, has eluded him.
@Alan Behr I'm curious as to what you mean by "let the system work." The authors of this article are making the point that "the system" failed in this case, where the judicial panel's termination of its investigation of Kozinski left both the judge and his accusers without a fair and objective resolution. For Kozinski, this means greater opportunities off the bench, as folks who would perhaps be stymied by a finding of misconduct can hire/engage him, comforting themselves that, in fact, there really isn't anything to overlook. For his accusers, this means that they are less likely to be believed, and the personal and professional consequences they may have suffered in deciding to come forward publicly lack the validation that would come with their harasser truly being held accountable. They are not arguing that his punishment should be more severe, just that it should be more definite. Those who continue to associate with Kozinski should do so in full possession of the facts, which in this case, were never allowed a full adjudication. It is the authors who are arguing for "the system" to work as it should.
1
"What are you suggesting? Ostracism? Should he wear a scarlet "A"?" Yes, those and more. @Alan Behr
2
Our legal systems has a construct that is well defined, but certainly imperfect. The authors appear to be pushing for some kind of act of justice outside of the existing construct. But don't really make any kind of concrete suggestions/recommendations other than a "let's all stand together" type of thing.
Of course they, like any other human being, do have a right to justice so to speak. Meaning that having been subject to actions that may potentially be illegal the system should address this.
Given the system has acted in accordance with the existing constructs, which is imperfect, they are, understandably, dissatisfied with the outcomes. Given the vague nature of their comments it appears that they may favor justice by mob rule, with a life time sentence so to speak, over new defined constructs.
44
Publishing in a professional journal is not a reward to be withheld based on behavior. He was a judge, and his opinions were well-regarded. We can have contempt for some of his personal behavior, without forgetting that.
1
They were quite clear in their suggestions, the most important of which was continuing official inquiry to reach a reasonably objective truth, and have that truth on record. Thereby men like Kozinski, his apologists, his enablers, and all those who wish to avoid truth cannot hide behind the inconclusive alleged. I quite often wonder if some of you bloggers even bother to read beyond the headline, or do you just have comprehension deficits?
@Amanda It is a reward. A judge's personal behavior affects his opinions and can tarnish the reputation of all who come in contact with him.
Thank you for having the courage to speak up.
Alex Kozinski is a very clever man who has eluded ultimate responsibility for what would have - properly - ended the careers of most of us in public life.
His wit and intellect should not shield him. I co-authored a book with Kozinski that is still in use in classrooms on capital punishment, but his use of words should not now protect him from the accountability he dodged when he abruptly resigned from the 9th Circuit.
11
so those who judge and condemn us,the average
citizens,to,in some cases,draconian sentences,
are allowed to walk away from their own misdeeds without paying any price. as my
father always said:it's not what you know,it's
who you know. and these judges know some
very important people or they would not be
looking down on us from their august perches.
114
@Frank To coin a phrase, 'power corrupts' ... and there isn't much more power than judgeship.
2
@Frank "...so those who judge and condemn us... to,in some cases,draconian sentences,are allowed to walk away..."
Judge Kozinski was as much an opponent of those "draconian sentences" as anyone on the bench. Now, a Trump devotee, in his place, will hold life and death power over many other people.
So, I guess that "those people" really don't matter that much. More important that affluent, professional, powerful women not be offended what is admittedly boorish behavior in some contexts today (though perhaps less so in the time and place where he grew up and came of age).
Now, it's not enough that he's replaced on the bench. We need to make him an Unperson with no right to speak publicly on anything.
3
Assuming the allegations are true (which seems very likely), how was there not a completed investigation regarding his qualifications to continue in the law? Having short-circuited an investigation into whether he should be fired or not should never have kept him from being disbarred if that was in order. This is on the Bar at the very least. Very disappointing.
And it is ridiculous that someone who should lose their pension (if that is the case here) could just quit before such a determination was made and stop that from happening. Seriously?
2
Independent of the merits of their claims, if you review the authors’ current professional positions it is hard to argue that their experiences with the judge harmed their professional careers. Also why do we accept anonymous claims? I thought #metoo was all about how “courageous” the women are. The foregoing is not intended to diminish the importance of creating a safe work environment for everyone. But come on—-at least be honest with ourselves when we see an op-ed like this. It’s about revenge and nothing more.
11
Actually it’s about there not being any one responsible for investigating claims.
3
@Social Justice
Why should we care whether Kosinsk's actions damaged his accusers' professional careers? Aren't his actions themselves, intrinsically, awful enough?
5
@Social Justice
All the guest Op-Eds I read in the Times always seem to have one thing in common. They reflect the Times's own position on whatever matter is being discussed. Do these people write and then offer such things to the Times? Or does the Times specifically ask for such contributions?
Well, 'witch hunt' now has a dirty name, so will 'Female McCarthyism' suffice?
3
You mean, no public shaming? No scarlet letter? No lawsuits? No prison time? No retro yanking of law licenses, public awards, pension?
Why, if Hillary had won, we would be ignoring nukes from N.Korea and Iran and spending full time on this epidemic of #MeTooisms.
The situation is deplorable.
And this federal judge gets a pass?
Why not only is this unAmerican today, but somehow, one feels cheated.
No new season of House of Cards, but no jail time for Kosinski.
It is enough to make me doubt that witches were ever really burnt in Salem.
5
"We are committed to do what it takes to correct the failures that contributed to #MeToo. But #MeToo is about all of us. We ask others to think about what role they might have to play as well."
Well yes, but the public dialogue continues to be about the lack of resolution, and no concrete proposals for resolving the problem. Looks like public shaming will continue to be the norm. Maybe that's all there is.
1
Judge Koscinzki is a known serial sexual harasser and groper. He should be shunned by any and all reputable law schools and media. The KQED puff piece was a disgrace; and the attempt to justify it by noting that the subject was “what it was like to be a judge” only deepens KQED’s culpability. Why didn’t KQED ask the famous judge what it was like to have such power over young women at the outset of their careers that he could harass and even grope them without fear of reprisal?
35
Instead of litigating in the press as you have done, why not sue him? See what he says and what you and your colleagues say under oath. As to a statue of limitations defense, you and your law professor colleagues are bright enough to come up with a "work around." I do wonder why nothing was raised earlier or was it and covered up or ignored?
5
If we followed the example of a nation like Rwanda (not the example that probably comes to mind), then we would have a government which is basically comprised of half women and half men.
When representation in government begins to resemble the makeup of a nation’s populace, then the interests of that nation are inevitably going to be better served. For everyone.
10
This case is almost directly equivalent to those of clergy whose misdeeds were deliberately buried by the Catholic church.
It's almost inconceivable that those who neglected their responsibility to investigate Kozinsky failed to see this correlation; therefore, it's reasonable to conclude that they are *deliberately complicit* in preserving the system that enables abusers while silencing victims.
19
Many thanks for speaking up.
"Where formal processes fail or are subverted, the legal community should insist on informal reckonings before any rehabilitation, rather than turn a collective blind eye to allegations of harassment."
Part of the "informal reckoning" must include an active public voice reminding us of what this Alex Kozinski actually is: not a respected former judge, but a #MeToo predator who abused his position of power to take advantage of others.
And his willingness to abuse others also raises the question of just how many plaintiffs/defendants were denied justice by him over his sordid career on the bench?
Please continue to speak out. Kozinkski escaped a formal reckoning, he should not be allowed to escape the public's scrutiny and disgust.
16
Worthwhile article, as a reminder that a shameless and dishonorable man, abusing women's trust, can return to a most sensitive site of honor to go on abusing his power on the bench. How is this even possible, after he removed himself from the scene because of his flagrant behavior as a judge? No morals here? No lessons learned? This ex-judge ought to find a job that does not entail power over others, he lost that privilege long ago.
8
This case will have an effect no doubt. Imagine being a young lawyer full of ambition, and seeing what happened to this guy. Decades of basking in honor, power and professional esteem and now -- poof! -- he's just a washed-up groper. Disgraced and humiliated.
You have to think that young lawyer will now be very careful how he treats his female colleagues.
3
@Duncan Every lawyer, male and female, should always be aware of treating their counterparts with only the upmost respect. Period.
I am a Canadian woman, I can hardly find the words to comment. I will try to calm my outrage, that this sexual abuser of women, Kozinski, did an underhanded move to resign, avoiding investigation, and now slithering his way back in the underbelly of society. I understand the major concern these Women Judges have of him slithering his way back into speaking about the law. If I understand, it seems they can not have a reinvestigation, not being a Lawyer, I don't know why not. If that is the case, then disgraced Judge Kozinski is living above the law. That will not do.
I noted SOME of the comment authors. okay to sexually assault women if you apply good law for some.
4
@Connie Hayes
What article were you reading? There are no women judges involved here? If their original mission was to have Kozinsky leave the bench, then they were totally successful. They are now trying to administer some kind of coup de grace upon learning that he is trying to get back into the law business. As trained lawyers themselves, they must have known the "out" he could take at the time, as lawyers are well-trained to anticipate all unexpected consequences of their actions. Calm your outrage, Connie, for if Mr. Kozinski needs an attorney to fight his readmission case for him, and if the fee is high enough, I'm sure that any or all of these ladies will happily come over to the other side. It is what lawyers do, #MeToo notwithstanding.
5
Some of these posts are evidently by people who simply don't understand the difference between lawful retribution for proven misconduct and mean-spirited vindictiveness. What they want is to bring back the modern equivalent of the pillory but of indefinite duration.
Kozinski has been accused of conduct that is wholly inappropriate, particularly for a judge. But the emotional tenor of these accusations conveniently overlooks the behavior patterns of the times when some of these events occurred Which is but another way of saying that ideas have consequences, and bad ideas have bad consequences.
So what we is going on is the emergence of a form of neo-McCarthyism in which strident accusations become a de facto substitute for fact-finding. And that is another bad idea that if tolerated in this case will without a doubt rise up to bite us at a future time.
The other side of the scale is the fact that without a doubt Kozinski is a brilliant jurist and a witty lecturer who has contributed to the law and who has led a judicial campaign against prosecutorial misconduct. Surely, that should count for something in balancing the scales of justice in meting out justice.
Bottom line: Kozinski has been called out and the punishment inflicted on him is enough. Now leave the man alone and let him get on with what is left of his life!
12
@Maven3 He hasn't been "punished" nor has he had to answer for his conduct. When I was in law school in the early 1990s, it was well known that he was a tyrant who controlled every aspect of his clerk's lives. At least one I know had the courage to extricate herself by leaving the clerkship. Law schools continued to feed him clerks, however, because he was a feeder to the Supreme Court, so on it went. If he has done nothing wrong then he should want his name cleared. But he doesn't want any investigation because he knows it won't be.
4
@Percival: But Kozinski has not been punished for being harshly demanding with his clerks, which, like it or not, made them better lawyers, better able to withstand the rigors of quality private practice, including having to deal with demanding judges. Significantly, most of his accusers named in the Times post turn out to be law professors. Surprise, surprise!
What I read between the lines of your post is a resentment of his conservative/libertarian philosophy, more than a condemnation of his at times crude behavior. And if you think that being forced to give up a federal judgeship is not "punishment," then you and I operate on different moral wavelengths.
3
Thank you to the three women who wrote this. It's sad that even describing how the system has let them down may cost them. The system still protects men, turns a blind eye, and most egregiously considers women's testimony as unworthy and without credibility.
9
The #MeToo movement wants to bring back the pillory. Resigning while under investigation for inappropriate but not illegal conduct is not good enough for #MeToo.
If the authors of this opinion piece want the stocks of the colonial era they should just go ahead and propose this punishment.
Judges in the United States along with the larger cohort of law professors and lawyers have much to much influence in this country. I support any effort that will humiliate this entire class of "professionals."
9
I'm not a big fan of investigations for the sake of investigations. However, no punishment was issued. This seems to happen a lot in the legal profession --- from cops to judges. Lawyers write the laws and they insulate themselves and show their self-interest where the Bar Association is involved. It is not enough that a figure is disgraced and must step down.
3
This case depends critically on the specific nature of the accusations. If they involved something that was actually illegal, then presumably these lawyers would have formally accused him.
That leaves two options:
1. Without actually breaking the law with any one significant act, he knowingly created an atmosphere in which women felt intimidated, perhaps pressurised to "play along" with sexist behavior.
OR
2. He spoke and behaved in ways which may well have made some women feel uncomfortable, but without knowingly intending to do so - for example because he believed it as all in good fun or he believed they also enjoyed it.
Both of these are consistent with the limited information in this article. Yet in the former case, the offences are serious enough to warrant at least an investigation, while in the latter case, enforced retirement is probably sufficient punishment - since the offence is more or less that of being incapable of enabling a happy mixed workplace.
I believe that most of the resistance to #metoo cases like this comes from people who are assuming that we're dealing with a case like #2. If we want to avoid this, we need less indignancy and more facts - he allegedly did X and Y and Z. And if none of X, Y and Z are so serious, then don't expect people to get up in arms.
Giving the list of authors and collaborators on this article, it seems likely to have been more like #1, but why not provide some specifics to convince us?
11
@Denis...
A salient fact that gets overlooked is that when Judge Kozinski resigned, an investigation into his conduct by his judicial peers no longer had a person over whom they could exercise their legal power. The metaphor that comes to mind would be if, say O.J. Simpson had died during his trial, would Lance Ito have continued the proceedings?
I suspect the accusing women are most upset that the investigation was not able to lay out all of the facts of the case. I can understand their upset. I would be, too, in their shoes.
But to chose the method that they have, trying him in the press, is choosing a method that goes against some of the basic tenets of our justice system: 1. The right of the accused to confront and cross-examine his accusers, and 2) The presumption of innocence until proven guilty.
These individuals are not uneducated people, and given that they clerked for one of the judges on the 9th Circuit Court of Appeals, they are not illiterate in matters of law.
So, my analysis of their actions comes to the question of whether they are doing this for purposes of justice or for purposes of revenge.
If it is the latter, then they need to revisit the ethics of how they are going about things. If it is the former, they should be bright enough to know the legal ways that they can seek the justice that they believe that they are due.
Right now, they are not coming across as being the talented lawyers that their experience says they are.
7
@Denis I suspect it has to do in part with the NYT word limit and the fact that Kozinski's alleged misdeeds are not the crux of this article. Rather, the authors are using their case to argue for reforms in system and process. They aren't hiding the ball on specifics; paragraphs 2, 3, 7, and 8 contain multiple links to detailed descriptions of the allegations against Kozinski. This is also a relatively recent and high-profile story, so it's not unreasonable to think that they assumed a certain level of reader familiarity. Also, I think part of the point here is how ill-equipped we as the public are to make the sort of distinctions that you are trying to parse, based on what will inevitably be a limited set of facts (as compared to the full picture that would hopefully emerge in an official investigation). This article argues for process and accountability as the antidote for the fickleness of public opinion. Let's focus on that.
2
Kozinski was very often a thoughtful and judicious legal mind who stood up for the little guy. We will find his ilk in even shorter supply soon to our great grief. Having read many of his opinions, and having seen first hand his unwillingness to simply swallow whatever the government was handing out, all I can say is that if someone is doing their job, any allegations of "impropriety" need to be kept to the appropriate arena.
8
@Spook
Yes let's not worry about multiple accusations of rather gross sexual harassment of women which caused his precipitate resignation from the bench. And what would you say was the appropriate arena for sexual assault allegations?
Under the carpet by the sound of it.
33
To quote an unnamed New Jersey politician who was publicly humiliated by the press and thereafter acquitted, "Where do I go to get my reputation back?"
Kozinski had a justified reputation as a brilliant judge and scholar and an author of notable opinions.
Where indeed should Kozinski go if his accusers are found to be a collection of resentful individuals exaggerating minimal events, as seems likely?
1
@Spook And what do you consider to be the appropriate arena? I grant you that it's difficult navigate the contradictions when a person who has done good things—even made great societal contributions—is accused of private misdeeds. We certainly have a history of willingness to excuse. I consider it a sign of progress that we are now beginning to consider the nuances of these legacies, to understand that professional accomplishments should not be erased but that personal failings cannot be overlooked, especially where, those failings have public implications as well. Judge Kozinski was one skilled and respected legal mind. Over the course of his career, he was tasked with fostering numerous others. As a well-known SCOTUS feeder judge, the brightest rising stars came to him, at least at first. Many law schools and professors stopped sending him their promising female students, so widespread was the reputation of his misbehavior. There is no telling what impact his harassment had on the women who did clerk for them, but it's safe to say it's not something they should have had to endure for the sake of professional advancement. Lecherous gatekeepers like Kozinski contribute to the difficulties women face in advancing in competitive careers like law. Neither I nor the authors are suggesting that Kozinski wasn't a stellar jurist. But he failed his other obligation as a steward of the next generation of lawyers and judges, and professional consequences are absolutely appropriate.
It shouldn’t surprise us that #MeToo! would cause us to agonize over processes and outcomes regarding acts – even crimes and always outrages -- that we’ve only recently resolved to pursue legally and aggressively. We haven’t yet developed the layered wisdom that guides us in responding as a society to the full range of such behavior, and our biggest difficulties remain with casual yet deeply offensive liberties – we have far fewer problems knowing how to respond to rapists even if we have a way to go on the modalities for proving such crimes in courts of law.
Kozinski’s liberties clearly were the products of his notorious arrogance and suggest elements of the bully, as well. Then, there was the occasional fanny-pat indulged by George H.W. Bush, a fundamentally and profoundly decent man by all accounts with this one thoughtless exception. And was the penalty paid by Al Franken for a thoughtless and childish act appropriate given that much of his life had been spent as a professional clown? We’ll be parsing these questions for a long time.
We’re not going to easily or quickly do away with intellectual arrogance, a tendency to bully as a means of projecting insecure power, or clueless expressions of humor taking no account of the emotional effect they may have on the target. We may someday see near-perfect human beings who almost universally avoid such behavior because we recognize it as fundamentally wrong and we’re sufficiently enlightened, indeed sophisticated, to …
5
… avoid it for that reason alone; but it won’t be within the lifetimes of anyone reading this op-ed or response.
So, we’re left with how in the meantime to properly respond as a society to liberties taken well-below the intensity of recognizable and physically destructive crimes of violence, such as rape or other serious physical assault with sexual overtones.
And I’d respectfully suggest that we need to be careful. #MeToo! needs to entrench itself in our consciousness, in order to advance the general purpose of fully respecting women, in the workplace and in simple human interactions. While the superficial thrust of this op-ed is closure, it also has a sense of retribution frustrated against a man who already has surrendered a lifetime tenure as a federal judge, irrespective of the fact that he could be an arrogant prig and a bully to boot. If perceptions build that #MeToo! is becoming a vehicle for expressing and imposing unreasonable power by women, particularly one based on vengeance, there will be a massive reaction that could destroy it; and certainly such a reaction could frustrate attempts to equalize opportunities for women, as men, in simple defense, will take fewer efforts to advance women for fear that they might someday become the victims of their sense of responsibility.
4
Revenge, they say, is a dish best served cold.
A good follow-up to this article might be a lawsuit followed up by some picketing.
8
It's uncceptable that the relevant Act applies only to sitting judges. Far too often, judges, cops and others avoid censure simply by resigning. This must change.
On the other hand, the women who have complained about this judge are all experienced lawyers, judges and litigators. If they can't obtain civil justice and amends, then nobody can.
Hence, the solution is obvious. Band together. Bring multiple actions for the torts of sexual battery etc. Sue the pants off this sexual predator in the civil courts. And don't settle for a confidential payment. Make sure the actions go to trial so that all the facts of this man's repeated misconduct are then in the public realm.
13
@Colenso
A sound slap on the face--perhaps publicly--would often be the best approach.
These clever lawyers should have thought of that.
I'd bet it would work.
3
Despite his “tepid” apology, Alex Kozinski clearly feels not a scintilla of guilt about his predatory behavior over the years, and if he had a shred of decency, he would disappear from public view. How dreadful that his victims must watch as he worms his way back into a certain respectability only 8 months after his hasty, pension-saving resignation. And to those who now give him a public platform- Shame on you!
17
The question is : What is the objective here? Lets face it this guy was nearing retirement. His options were to stand and fight the allegations (which in all likelihood would result in lots of details coming out and likely more victims) or make a deal and retire on a full pension ( which is not chump change). So he can walk away feeling like he lost something, yes, but in the long run, he comes away a winner. And the victims? What do they get for their courage and willingness to come forward? No acknowledgement that what they said happened is true. If, as a society, we are going to give guys like this the nod, nod, wink wink, and just hope enough anger gets vented to go back to business as usual, nothing will be accomplished. If what we want is real change, we have to stay vigilant and have zero tolerance. Racism is alive and well in America because we "said" we had addressed it. But we created lots of wiggle room in the laws white men created to address racism. As long as men like Kozinski and Trump feel "What have I got to lose?" and they can offer token consolation to their victims like weak apologies and back door payoffs, this will not be addressed. So, I say, women need to keep the pedal to the metal. Many men are hoping for just what is expressed elsewhere here: that women will get tired of the chase. Women need to not let that happen. Otherwise their efforts become meaningless.
26
Judge Kozinski's alleged "transgressions" included once having stared at a woman's breasts. For this he was forced to resign in disgrace. But this, it seems, is not enough for the authors of this article. It seems they want him to never again be allowed to speak in public and otherwise be banished from society.
Enough is enough. Leave this man alone.
20
@J.
No he wasn't forced to resign for staring at a woman's breasts he chose to resign to avoid investigation of multiple charges of sexual assault.
36
@J. HE was not forced or even strongly coerced, unlike some of the women he harassed.
Staring is boorish and may be inappropriate under certain circumstances but it doesn't appear that it was the only issue here. The judge could make that clear by taking these allegations head on, but he'd prefer not to because it's easy to ride his now unofficial high horse of judicial status off into the sunset while others live with the consequences of his behavior.
7
@J. There was a lot more to the allegations that merely "staring at a woman's breasts." You should read the article before you make a comment like this.
10
A judicial panel began an investigation, but when Mr. Kozinski resigned, it closed its inquiry, concluding that once the judge stepped down from the bench, it lacked the “authority to do anything more.”
If the Pope has authority to act in the case of such as ex-cardinal McCarrick (sp), you have to have fallen very recently from the turnip truck to accept that a judicial panel of a federal court of appeals is without requisite authority to take action on the allegations made, even if such action were favorable to this judge's reputation, which appears to be ... highly improbable.
The immediate disappearance from their lines of work in entertainment and news gathering of individuals similarly accused, need not have occurred in the judge's case. But he did resign promptly. And he appears unrepentant.
Still, even if there be a possible straight-faced reading of the judicial panel's authority under which it acted, not to have found a legitimate way - something courts and judges do all the time - to have fully reviewed this matter is an embarrassment to the court and shameful in the context of women's rights in the 21st century.
It is not at all tangential for the panel or regulator of federal pensions to inquire into reduction or forfeiture of the judge's pension based on findings the panel ought to have made.
If Harvey Weinstein could not go quietly into the night or the former chief judge of New York's Court of Appeals, Sol Wachtler in 1992, why should this man today?
10
Not sure what these women want. He has already left one of the most prestigious, most important jobs/courts in the land. No doubt something he much loved.
He has not been charged with any crimes nor convicted.
Missing from this piece is mercy and redemption and the punishment bestowed.
14
@Marty O'Toole
The first step to redemption is acknowledgment of transgression. Kozinski has not accepted that he did anything wrong, blaming the women for not getting his "broad" sense of humor.
The women are objecting to the fact that the legal profession seems to be welcoming him back without qualification. He wasn't made an object lesson on why it is wrong to subject subordinates to sexual harassment.
7
@Marty O'Toole
We seem to invariably conflate consequence and forgiveness. Judge Kosinski can be forgiven for his predations by his victims, should they choose to do so. That does not absolve him from any consequence that we, as a just egalitarian society have a moral obligation to pursue to conclusion. While one might forgive the drunk driver who accidentally kills his or her spouse, that offender still is convicted in a court and sentenced to prison. He is not able to apologize and retire, away from public opprobrium and consequence. Sexual predators that stop short of rape have a “Get-Out-Of-Jail-Free” card? I believe Judge Kozinski, Senator Franken, and any other person in a position of power over others should be required to participate in a full review and fact finding on such allegations. Some will be exonerated, others (likely most) not. The adage that the best disinfectant is sunshine is true in healthcare AND in law.
1
@MaArty O'Toole
And he did much justice for the less powerful in this land.
Justice will suffer his absence.
Yes, he was apparently (now) not without sin, but there should be some corrective steps short of banishment.
1
Judge Stephen Reinhardt wrote the concurring opinion in Thompson v. Calderon, 120 F.3d 1045, 1060 – 1063 (1997), in which he admonished the now-retired Judge Kozinski for his dissenting opinion. It was this dissenting opinion by Judge Kozinski which ultimately led to the execution of Thomas Thompson, who I believe was an innocent man. On a five-four vote of the U. S. Supreme Court, and in a majority opinion written by Justice Kennedy, who adopted Judge Kozinski’s argument in essence, California’s death penalty order for Thomas Thompson was reinstated and he was executed on July 14, 1998. I was there at San Quentin State Prison in the first early morning hour of that day demonstrating in protest of the UNCONSTITUTIONAL EXECUTION of Thomas Thompson.
Judge Reinhardt wrote of Judge Kozinski:
“One might think that some of us had forgotten that we are construing a Constitution, examining the question whether a fair trial was held, considering whether a strong possibility of actual innocence exists, and determining whether under our system of law a man should live or die.”
Judge Kozinski had written:
“If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself. . . . That this is a capital case does not change the calculus.”
Reinhardt responded: "We cannot correct the error of an unconstitutional execution in the next case. Surely no responsible judge could believe otherwise."
Thomas Thompson is dead.
15
@David Lockmiller Good cite, as often these two tended to agree on broad policies and areas of law. Blaming Kozinski for Kennedy's waffling is a bit unfair, though. Kennedy's true colors are on full display with his recent retirement.
3
@Spook
Justice David Souter wrote in the four-justice dissenting opinion: "Whatever policy the Court is pursuing, it is not the policy of AEDPA. Nor is any other justification apparent. In this particular case, when all else is said, we simply face a recall occasioned by some administrative inadvertence awkwardly corrected; while that appellate process may have left some unfortunate impressions, neither its want of finesse nor AEDPA warrant the majority's decision to jettison the flexible abuse of discretion standard for the sake of solving a systemic problem that does not exist" Calderon v. Thompson, 118 S.Ct. 1489, 1507 (1998).
The "Kennedy" majority also rejected a plea made in a brief submitted by seven former California state prosecutors, including the man who wrote the state’s death penalty: “This is a case where it appears that our adversarial system has not produced a fair and reliable result.”
Where are the "metoo" supporters on this issue of justice and due process of law? Is only the issue of "sexual harassment" important?
1
Judicial retirement turns out to be just a rip cord away, exoneration? A get-out-of-jail card doled out [could it be?] by longtime benchmates.
As for Justice?
Just ask Donald Trump.
It's all about suckering and poseuring and good ol'boying: boing, boing, boing...
There is no justice in life, no equal treatment under the law, no great nation ready to rise up from the dead like some Second Coming preparing to "make things right."
It's all about The Right. The wealthy. The empowered. The liars in the room with us who grope us for power and self-gratification, whether it arrive I'm our laps via a faux golden hairdo or a black, rustling robe.
And you can't even go back to childhood for comfort. There may be a Judge waiting there, patting his lap for you to sit upon and...
...and
It's human beings who are our torturers. Mommy's and Daddys. And School teachers. And belts that are yanked from around someone's waist and wielded with the precision of the practiced, the experienced, our fellow abused.
And in that hall of mirrors, reside all our nightmares. You can see them just slipping one eye out from behind one of them mirrors.
They are always there, aren't they?
12
Read his opinions and you'll see a guy who's full of himself and probably cracks himself up while he's writing. He should not be allowed to hide his boorish behavior under the rug.
10
@RAC Links, please. Also link to some/any opinions written by yourself for comparison.
To the authors: I read the Daily Journal. The horrible things many lawyers do receive but a slap on the wrist. You need to discipline creepy attorneys at every stage of the game. Not just when it suits YOUR purposes. The State Bar of California coddles wrongdoers. It protects those who pay the dues. I hate your profession. I spent thousands of hours in law libraries pursuing civil cases and watched lawyers pervert justice in the courtroom. Clean up your profession in general and then maybe you have standing to attack the judge.
5
There is so much to be done on this topic. First, we need the ERA amendment. Second, much more education for boys and girls. Stop arbitration and provide victims and perpetrators counseling. I am sure Kozinski has paid almost nothing for his bad behavior. Those who know need to keep up the pressure for him to fade from public view.
11
A Federal Appellate Court justice who floats above the law. Only in America. Says a lot when you take the time to think about it.
17
Perhaps this is exactly the appropriate course.
He was "forced" to resign. The authors and their supporters contend that his rehabilitation is an offense in that his resignation curtailed the investigation and full justice was not realized.
If there is no civil or criminal avenue to continue seeking justice, then women affected by his behavior must seek whatever exposure they can to keep his misdeeds in the public eye and, hopefully, keep him from any position where he might again offend.
So, they submitted an Op-Ed which was published by the New York Times.
It seems that this is just right.
9
Wondering if he could be disbarred if a complaint to the bar was found to be validated.
4
@TrenchCoat
Trench Coat raises an alternative forum that I was also thinking about.
I am not a lawyer but to me, there is a serious issue of whether he possess the requisite character to hold a legal license. A formal complaint to the relevant state bar association or court should provide for a forum that can carefully review how valid, degree of harm, and length of period in which these alleged actions occurred. If he is disbarred (or at least suspended from the bar), I think most reporters, law schools, etc., would be hesitant to give him a forum, or at least prominently state his disbarment.
@Paul Fox If we disbar all lawyers who do not "possess the requisite character to hold a legal license," the courts will be empty and the lawyers will all be politicians.
The accusations against Kozinsky were comparatively mild. He took responsibility and resigned. What else do these people want of him?
12
I want to point out one other way that Kozinski is inching toward "return." Kozinski was an Anthony Kennedy clerk. Justice-to-be (?) Kavanaugh was a clerk first for Kozinski and then for Kennedy. It is widely reported that the two of them collaboratively acted as a screening committee for subsequent rounds of Kennedy clerks. This is all part of the who-you-know men's club of which Kozinski was clearly such an influential member.
3
I applaud the authors, their critics, and their defenders, for exalting vilification and silencing as the way to a more humane world. And the Times, for permitting reader comments on a select few of its articles, unlike the unhindered colloquy hosted by the Washington Post. How different we are from QAnon!
8
@Keith Your comment is too subtle; nobody will get it ;D
I have two thoughts.
One is the incredible sameness in all the statements by those accused of this kind of behavior. "I am so sorry I made anyone uncomfortable. I sincerely apologize" (Is it possible to copyright those weaselly sentiments?)
The other is how pictures on social media showing a college student acting like a college student will be found by potential employers and cause for not getting a job. Yet somehow much more inappropriate behavior gets a pass in cases like these
8
How is he getting a pass? He resigned in disgrace.
7
The #MeTooers are determined to utterly destroy every man who has ever been accused of misbehavior. What are we to make of these highly successful professors who recognize no statute of limitations, demanding extreme vengeance for every accusation, no matter the evidence, no matter how long ago, no matter the gravity, or not, of the alleged offense, no matter the mores of his time?
No decent human being trivializes sexual assault. Nor should decent human beings hound an old man who could not predict decades ago that he could be destroyed today for behavior which was accepted, even expected, in his time. Political sensibilities shift quickly- today's lust for revenge may be seen as wanton cruelty in a few years time, incurring the same outrage and righteous indignation which is oh so satisfying to the #MeTooers today.
12
@Jeremy Bounce Rumblethud
I've only been on the planet for 56 years but never in that time was I taught that it was OK to forcefully kiss someone against their will or thumb their breast without permission. He IS an old man, that much we can agree on. But he knew decades ago that this type of behavior was not acceptable nor that it was ever "expected." Cultural norms HAVE shifted over time, you're right, but this type of behavior has always defined a creepy individual who hoped to use their position of power to intimidate. And his behavior was not just a one-off from 70+ years ago. It continued into an era that includes awareness that such gross actions were highly inappropriate and would subject him to potential disbarment. Yet he continued to make these choices. These are his consequences.
12
@Jeremy Bounce Rumblethud
Oh, my! “…an old man who could not predict decades ago that he could be destroyed today for behavior which was accepted, even expected, in his time.”
If this behavior was “expected” in his time, why was it occurring behind closed doors, away from public view. Did Judge Kozinski blandly update his wife on his occasional peccadilloes at dinner that evening? If not, I submit that he knew his behavior was inappropriate and contrary to his professional standards and personal moral obligations.
6
Someone can be imperfect, or even have done some gross or disgusting things in their past life, without it changing the fact that they have expertise or useful information to convey.
Perhaps there should be further hearings on what he did.
But there is nothing wrong at all with someone publishing work by him on what it is like to be a judge, or his views on a legal matter. It is totally appropriate.
4
He should be disbarred, period.
2
This nation is in the midst of a self righteous frenzy. The best lack all conviction, while the worst are full of passionate intensity.
11
Alex Kozinski has been well known for his bizarre and irrational behavior for many years. He has caused considerable damage to many people who deserved justice. It took the MeToo movement to finally cause him enough embarrassment to go off the bench. Those who consider rehabilitating his reputation should look at his rulings and his courtroom behavior, not just his apologia regarding women.
8
Missing here is any mention of whether these allegations have been lodged with the police; and if so, whether the police investigated them and referred them to the district attorney; and if so, why there's no mention of any pending or resolved criminal case or cases involving former Judge Kozinski. The op-ed alleges a number of incidents of sexual battery under California law (Pen. Code, § 243.4, subd. (e)(1)). Has the statute of limitations run? Or did the alleged victims not file police reports? Just curious and would welcome any answers. Thanks.
10
@Cyclist apparently the statute of limitations in CA for "normal sexual assault" is 6 years. https://www.legalmatch.com/law-library/article/california-statute-of-lim...
1
Let's see if I understand this: Because people alleged that he is guilty of sexual harassment, he supposed to be shunned for ever. The authors' bitterness is so acute that they are upset that he was interviewed on an issue unrelated to sexual harassment.
The term sexual harassment is extremely malleable. On one extreme, there is non consual intercourse; obviously that should be actionable in a court of law. But when people start talking about fondling, my suspicion is aroused. I am sure that some women with ice water in their veins will claim that a momentary hand on the shoulder is sexual harassment.
Traditionally, allegations must be proved before they are given legal effect. But in our zealously feminist world -- which is quite content to see the status of boys continually undermined -- we are told that we must "believe the women." No one is going to make me automatically believe anything.
11
I was going to say that institutions should be googling this guy before they give him a position of authority but apparently the NPR guy did google him and decided it wasn't "relevant." That just stinks. Any institution that would invite him to speak should google first and then find someone who doesn't have a history of harassment and then lying about it: "Just joking."
6
There was a day when I was sympathetic to MeToo allegers. At this point, you got him to quit merely on your say-so. His actions, as alleged, however, do not override the fact that he was a highly respected jurist. You've done enough. Stop your whining and do something worthy like going after Trump
14
" ...got him to quit merely on your say-so"
he quit to avoid investigation... does that sound like he's innocent?
1
These allegations are why all complaints about assault, battery, and harassment of all kinds, including sexual and workplace, need to be made to the authorities for immediate investigation, and why there are statutes of limitation on both criminal and civil misdeeds. The further we get from the time the alleged acts happened, the more difficult they are to document and investigation. Who's telling the truth here? We'll never, ever know. We can say "Believe the women" all we want, but slogans are not reality.
7
What can those of us reading this article do to make sure these men get the consequences they deserve, and do not slip back into public life?
1
The Judge has lost a lifetime appointment.
He has lost his income. He has lost his reputation. Friends and family have deserted him.
He was not accused of committing a crime.
No one is above the law. If he has committed a criminal offence arrest him and jail him.
Simply put he has suffered enough.
But I guess to the authors this is NOT enough.
Once again he has not been accused of, arrested, or charged with a criminal offence.
Please NY Times the accusers have had more than enough justice.
6
@Nose Igbin
There are plenty of actions that are unethical and an abuse of power that do not rise to the level of a criminal offense. You seem to be saying that anything below that level does not merit continuing sanction. The writers of this op-ed disagree.
5
@Nose Igbin Judges retain their full salaries for life. He lost absolutely nothing. The women,however,did. They are the ones who have had to live with his abhorrent behavior.
Most internal investigative panels require that the "accused" being investigated also be "internal". The internal investigative panel derives its internal authority from that.
If the accused is no longer internal, then no authority.
Mr. Kozinski played the system.
That is his right, as long as that is the system and frankly expanding power of internal investigations to external accused is ludicrous.
So Profs. Litman, Murphy and Adv. Ku have responded in kind. They too use the system. Trial by op-ed. That too is their right. Just as Mr. Kozinski uses the press and similar tools.
I tread on thin ice here, but it was not clear if the authors accuse Mr. Kozinski of illegal behavior and not just immoral or unethical.
If his behavior was illegal, then perhaps an official complaint to the police?
If just unethical, then they can continue to thrash it out in op-eds and the like.
8
Thank you.
Failing to use the honorific, Judge, instead Mister, is most telling.
What astounds me is that these lawyers are aghast that they cannot get justice within the system.
Instead they seek justice outside of the legal framework and the judiciary, and want to ruin the judge by any means necessary.
As smart as they lawyers / law professors were, they got bested.
But seeking redress-especially by 15 women who do not want to be identified as seeking it-by any means necessary is just wrong. Knowing that you are using means that cannot vindicate the judge is despicable.
Just as you who allege the acts want a scarlet letter of sorts on the judges head, in this scurrilous attack in the NYT you should also bear a scarlet letter marking you as an accuser in the same arena. Consider it the marking of the plaintiffs and the defendant.
One more thing. You opine for informal reckonings. You want vigilante justice in an extrajudicial setting. Some group of ethical lawyers you and your cohort (including the 15 anonymous) are.
12
@WorkingGuy
Actually they are complaining that no action was taken against him in a formal setting or didn't you understand the article?
11
There was no action against him in a single forum that is necessarily limited. Fair or not, the only way to get legal recourse is via our court system. These women, for any number of reasons, didn't want to go through what the legal system requires of plaintiffs (I think any of the alleged victims would be hard-pressed to find any criminal conduct here). They are asking Times readers to unquestioningly take them at their word, which isn't what happens when seeking legal recourse. You can't have it both ways.
@John Seriously??? They are some 20-odd LAWYERS - members of one of the privileged classes in our society. They literally sweat money, and can clearly afford to undertake legal action with some big-name barrister in the proper venue(s), both as a group, and/or individually if they don't want to act on their own. These aren't poor people on welfare used by the powerful. WorkingGuy's comment is spot on.
1
Has Alex Kozinski committed a crime? If so, he should be reported. If not, we need to treat him as innocent until proven guilty.
Our justice system is based on the rule of law. These women flaunt that. This kind of call for public shaming is shameful. It truly is a witch hunt.
23
@John Smithson
Thanks for statement of your moral values. Very enlightening.
3
@John Smithson You clearly have no idea what this issue is about. Until you have a wife’s or daughter’s career ruined by someone like Judge Kosinski - you will never know.
7
@John So is yours. The willingness to suspend due process and other associated rights by vigilantes is why those rights are enshrined in our Constitution.
4
We've also heard, elsewhere, that some of the bad actors forced out of their jobs by disclosure of bad conduct - but who have never owned up - are now trying to make comebacks. America has no memory, and some will succeed.
3
There are two very separate issues raised here, and i agree strongly with one and disagree, almost as strongly, with the other:
It is wrong that we, here and elsewhere, allow the neutral fact-finding triggered by accusations such advice these to be abruptly curtailed when the accused simply walks away from the problem. We should work to fix that. Directly and also indirectly using levers of continuing relevance like the pension system.
It is not made right by demanding that those external to the investigation must accept the allegations as true, or arrogate to themselves the power to decide and exclude/punish based on a scattershot public record.
16
We crossed this bridge a long time ago, in far more serious ways, when we let now-Professor John Yoo and now-Judge Bybee go from pushing the Feds into torture into their new honorable and lucrative positions.
50
@julia. The court of public opinion is real and the effect of condemnation there is painfully so for some people, even when that court has passed judgment without all the facts. Our judicial courts and other official decisional bodies generally don’t decide disputes or issues that are removed from their jurisdiction. Law professors know why. Of course, there are professional disciplinary bodies. But even when people are adjudicated as guilty or liable in courts for their wrongs, they sometimes still earn acceptance or redemption. Our appetite even for the infamous is insatiable.
2
@Jack Levin I certainly understand public wariness of the reliability of the court of public opinion. And I'm not denying that our justice system is limited and imperfect. I bring up courts because of the article's original subject. I understand that a judicial panel convened to investigate the conduct of a colleague is more analogous to an internal workplace investigation than an actual trial (and I believe that investigatory bodies other than courts have an obligation to search for truth as well). I was trying to make the point that our legal system, of all places, should honor its own tenets of thorough inquiry and adjudication. You say that even guilty verdicts don't dissuade comebacks; you may be right. However, it seems intuitive that objectively determined guilt might give society more pause than unsubstantiated rumor. At the very least, an investigation carried through to its conclusion would give others what they need to make the most informed decision about whether or not to look past confirmed (or disproved) transgressions. For example: there's a huge difference between the comfort level of those who support Justice Thomas, believing that Anita Hill's accusations were false (or at least never proven true) and the collective reckoning we would need to have as a nation if her allegations had been formally substantiated (i.e. by a contemporaneous EEOC investigation). In short: I still believe investigations (and as-objective-as-possible conclusions) matter.
27
Thanks to the authors of this piece for not letting this go quietly. It's important that Judge Kozinski's actions are investigated and a judgement and appropriate consequences are delivered if he is found to have harassed co-workers.
70
Please continue to spotlight this judge's behavior. If he desires to return to a public professional life, he needs to have the investigation fully completed and receive discipline for the sake of judicial integrity. I suspect he "retired" in order to safeguard the pension.
90
If an accuser feels that an accused -- especially a judge -- is wrongly able to regain his status in the community because there has been no official proceeding, then a good approach might be a sworn and published account by each accuser who has already come forward -- something more than statements reported in news articles. In that way the accused might have a more difficult time re-establishing him or herself without directly countering the accusations. Without this sort of specificity, it may be easy, and perhaps understandable, that time will dull the sting of the accusations.
19
@Museman I'm unsure how your suggestion of "a sworn and published account" would solve issues of specificity. Several of Kozinski's accusers have published, with painful detail, the specifics of his harassment. Others have reported the specifics of his behavior directly to the judicial panel tasked with investigating the allegations. The problem here, as I see it, isn't sufficient detail. Rather, it is sufficient credibility. This may be something else you were trying to address with the idea of a sworn statement, but I'd contend that reporting serious accusations to a panel of Ninth Circuit judges would give anyone making a false statement just as much (if not more) pause as "swearing" anything. Despite the #MeToo movement, we as a society remain uncomfortable with these types of accusations and eager to avoid the unpleasantness that comes with them; too often, the result is a denial of justice for victims courageous enough to speak out. If the court of public opinion is willing to welcome Kozinski back right after multiple detailed accusations from respected members of the legal community, I doubt a sworn statement (or anything else these women could do) would make a difference. It's time we stopped putting the onus solely on survivors to make us believe them; that's an impossible bar. A better way forward is to insist that the systems designed to find facts and weigh evidence (most especially the courts) do their job. That, I believe, is the authors' point.
60
Unfortunately I believe this speaks to the misogeny and patriarchal nature of our country which has only worsened after electing a president who has sexually abused countless women and Congressmen who have sexually exploited women and paid them off with taxpayer money. I don’t believe that the Me Too movement has any power to it anymore under our current political environment. Remember Mitch McConnell and his chosen white men who were determining women’s health care needs and rights behind closed doors with no consequences.
6
@Museman As a lawyer, myself, I am wondering if something could be brought up to whatever State Bar Associations this lawyer is a member.
I admire your courage and believe your stories and won’t attend or support any of his events. Thank you for drawing attention (again) to this.
87