How the Supreme Court justices abetted Judge Alex Kozinski’s inappropriate behavior.

How the Supreme Court Justices Abetted Judge Alex Kozinski’s Inappropriate Behavior

How the Supreme Court Justices Abetted Judge Alex Kozinski’s Inappropriate Behavior

The law, lawyers, and the court.
Dec. 15 2017 12:35 PM

Blind Justices

The Supreme Court should’ve tried to put a stop to Judge Alex Kozinski’s behavior. Instead, the court abetted it.

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Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals looks on during a House Judiciary Committee hearing on March 16 in Washington.

Justin Sullivan/Getty Images

In 2015 and 2016, I clerked for the 9th U.S. Circuit Court of Appeals. This court is the home of Judge Alex Kozinski, who, as reported by the Washington Post and Slate’s Dahlia Lithwick, has a history of allegedly harassing women in the workplace, including showing them pornography and making repeated inappropriate sexual comments. (Kozinski has denied showing pornography to his clerks and has said he “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.”)

Judge Kozinski’s behavior was no secret when I was at the 9th Circuit. Although I did not clerk for him or even work in the same city as he did, his conduct was a frequent topic of discussion amongst my peers. I had heard about Judge Kozinski’s harassment even before I started applying for clerkships. After my first year of law school, I talked to a professor about my desire to clerk in the 9th Circuit. This professor spent five minutes warning me about Judge Kozinski. At the end of that lecture, the professor asked me, unironically, “Would you like to clerk for him?” (A spokesperson for the University of Michigan Law School says that while the school has no basis for commenting on this anecdote specifically, “we provide our students with as much information as possible about clerkships, including connecting them with faculty, alumni, and other people within our community who have first-hand knowledge of clerkship experiences. The accounts that [Kozinski’s accuser] Heidi [Bond] and others courageously are bringing to light are deeply concerning. Sexual misconduct is reprehensible, no matter the offender.”)

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Many articles written after the Post’s original report note that, much like Harvey Weinstein’s behavior was an “open secret” in Hollywood, everyone in the clerkship world knew about Judge Kozinski’s behavior. Given his reputation, and given that there are nearly 200 federal court of appeals judges, why do the top law students in the country continue to go work for him? The answer can be summed up in three words: Supreme Court clerkship.

Being a Supreme Court clerk is the ultimate gold star in a prestige-obsessed profession. Supreme Court clerks can do virtually anything they want in their careers. A SCOTUS clerk will also pick up a nice $300,000 bonus check from whatever law firm hires her after her clerkship is complete. As you’d expect, the battle for these clerkships is crazy competitive. To be considered, you have to graduate at the top of your class at one of the top law schools in the country (and preferably one of the top three law schools). And even if you make it that far, I’ve heard multiple times that getting a Supreme Court clerkship is like “being struck by lightning.”

If you do want to get to the Supreme Court, one of the best ways to improve your chances is to clerk for Judge Kozinski. The Supreme Court justices rely on a select few appellate court judges to feed them their best clerks. Judge Kozinski is one of them. Over the past 10 years, 30 percent of the clerks (12 out of 40) hired by Justice Anthony Kennedy are former Kozinski clerks. (Judge Kozinski clerked for Justice Kennedy before Kennedy was elevated to the Supreme Court. It is no coincidence that one of Kennedy’s newest hires is Clayton Kozinski, Alex Kozinski’s son.) There were four former Kozinski clerks at the Supreme Court at the same time in 2004, 2006, and 2014. (The justices who hired Kozinski clerks in those years included Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sandra Day O’Connor, Antonin Scalia, and Samuel Alito.) This is an astounding number considering that federal appellate judges get only four clerks each year.

There are a few other judges who “feed” to the Supreme Court at a similar or higher rate. (Judges Merrick Garland and Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit come to mind.) But Judge Kozinski is indisputably in the upper echelon of these feeder judges. As long as he continues to send his clerks to SCOTUS, law students will continue to line up to work for Judge Kozinski.

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This is why the Supreme Court bears some of the blame for Judge Kozinski’s continued behavior. I seriously doubt that the Supreme Court justices weren’t privy to the “open secret” of Judge Kozinski’s behavior. I knew about it my first year of law school, before I even applied to the 9th Circuit. The Supreme Court justices have hired dozens of former Kozinski clerks. A Supreme Court clerkship is an intense year of close work between four clerks and a justice. It’s hard to believe that, during this incredibly intimate working relationship, the justices never learned of Judge Kozinski’s behavior.

The truth is that the Supreme Court enabled Judge Kozinski by hiring his law clerks. If the Supreme Court suddenly stopped hiring Kozinski clerks, Judge Kozinski would have stopped getting the highest-quality clerkship applicants. Without the tantalizing possibility of a Supreme Court clerkship, elite law school students would have had much less incentive to work for Judge Kozinski. In short, if the Supreme Court had stopped hiring Judge Kozinski’s clerks a long time ago, it would have sent a message that the Supreme Court would not tolerate sexual harassment in the judiciary, and it would have prevented Judge Kozinski from acquiring the legal talent he needs to do his job most effectively. Maybe it would even have incentivized him to change his behavior.

The articles that have come out in the wake of the Washington Post’s article have placed blame on a number of actors who knew about Judge Kozinski’s behavior and did nothing: clerks, other 9th Circuit judges, law school professors. All of those parties (myself included) do deserve blame. But the Supreme Court deserves its share of blame, too. Unless Judge Kozinski is impeached or steps down—the latter of which seems unlikely given his defiant response to the allegations against him—the Supreme Court justices are in the best position to end his reign of terror. And the way for them to end that reign of terror is to stop hiring Judge Kozinski’s clerks.

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Claire Madill graduated from the University of Michigan Law School in 2015, after which she spent two years clerking in the federal judiciary. She currently works as a public defender in Florida.