Judge Alex Kozinski made us all victims and accomplices.

How Judge Alex Kozinski Made Us All Victims and Accomplices

How Judge Alex Kozinski Made Us All Victims and Accomplices

The law, lawyers, and the court.
Dec. 13 2017 3:11 PM

He Made Us All Victims and Accomplices

For 20 years, I’ve felt it was too early to speak up about Judge Alex Kozinski. Now I fear it’s too late.

Natalie Matthews-Ramo

Natalie Matthews-Ramo

The first time I met Alex Kozinski was in 1996. I was clerking for the chief judge of the 9th U.S. Circuit Court of Appeals, and there was an orientation for new clerks in San Francisco. One of my co-clerks and I were introduced to the already legendary, lifetime-tenured young judge at a reception, and we talked for a while. I cannot recall what we talked about. I remember only feeling quite small and very dirty. Without my prompting, my former co-clerk described this interaction in an email to me this week. “He completely ignored me and appeared to be undressing you with his eyes,” he wrote. “I had never seen anyone ogle another person like that and still have not seen anything like it. Was so uncomfortable to watch, and I wasn’t even the subject of the stare.”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The first time I spoke to Judge Kozinski on the phone came weeks later, when I called his chambers late at night. Our judge had a sitting in the same city as Judge Kozinski, and I had made plans with one of Kozinski’s then-clerks, an old college friend, to meet late at night for a drink. When I called his chambers, Judge Kozinski himself answered the phone. I introduced myself and asked to speak to his clerk, explaining that we had plans to meet up. The judge asked where I was. I said I was in my hotel room. Then he said, “What are you wearing?”

Advertisement

I was taken aback, in part because nobody talked this way in real life. I surprised myself by reporting what Kozinski had said to my judge, who had always been kind and courtly and old-fashioned to the point of being almost saintly in my eyes. He looked horrified, as I am sure he was. But it was 1996. And the relationships between law clerks and their judges are mostly built on worshipful silence. There is no other work relationship left in America that is comparable. Which is, as it happens, part of the problem.

For the 20 intervening years, I have promised myself that if Judge Kozinski was ever to appear before the Senate Judiciary Committee for a Supreme Court confirmation hearing, I would testify about the dozens of conversations I’d had over the years with other clerks and lawyers about Kozinski’s behavior, about the strange hypersexualized world of transgressive talk and action that embodied his chambers. It turns out, it didn’t take a confirmation hearing to kick off this conversation. On Dec. 8, the Washington Post published the stories of six women—two of them, Heidi Bond and Emily Murphy, brave enough to go on the record—alleging that Kozinski had harassed them when they clerked or otherwise worked for him, or when they clerked for another 9th Circuit judge. Bond says Kozinski pulled up pornography on a computer in his chambers and asked if it aroused her. One accuser spoke of him looking “her body up and down ‘in a less-than-professional way.’ ” Another reported about his fixation on the idea that she should exercise naked.

In a statement to the Post, Kozinski said, “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” After the Post story was published, he additionally told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks,” and “If this is all they are able to dredge up after 35 years, I am not too worried.” He also noted that Bond had written a romance novel that featured “very torrid sex.” Kozinski has not replied to Slate’s request for comment as of publication time.

I never reported to Judge Kozinski during my tenure at the 9th Circuit, so my story is different. Nevertheless, I believe Bond and Murphy, because the pattern they describe is a familiar one. It is hard to put into words what felt off to me about Judge Kozinski’s behavior. To start, I would suggest you watch this infamous video from 1968 of the future judge delivering an egregious kiss to his prospective date on an episode of The Dating Game.

Advertisement

Nothing like that happened to me. But perhaps it helps you understand why, even though he never put his mouth directly on mine or clasped my throat, his consistent way of greeting me—with a kiss on the cheek that always lasted a few seconds too long, in front of colleagues I respected if not revered, so prolonged that others noted it—was unwanted.

And yet I still don’t quite know the word for it. In so many of his interactions with me, and conversations around me, Judge Kozinski has always gone one step over the line of appropriate sexual discourse. At the same time, he pushes a worldview that suggests there is no such thing as a line. Both personally and in his jurisprudence, I don’t think he believes that porn is porn, or that sex talk is problematic in the workplace. His acts of darting back and forth into deep sexual taboo became a natural experiment in who would live there with him. But because he is powerful, and because relationships with him are proximate to yet more power, those in his circle got dragged along into a world that diminishes and belittles women. For more evidence of this, you can read this diary entry he wrote for Slate in 1996, describing an outing with an unnamed clerk to attend a lingerie party.

Kozinski forced us all into this mess with him. And still, I am aware as I write this that I should have found my footing, that the women who came up after me, and who spoke up, are manifestly braver than I was. I am further aware that my failure to speak up over the course of my career is part of the reason why it was possible for the women who came after me to be treated as disrespectfully as they were.

I have seen Judge Kozinski dozens of times in the past two decades, moderated his panels, sat next to him at high-powered, high-status events and dinners. My husband will tell you he once fielded a call from the judge to my home, in which Kozinski described himself as my “paramour.” I have, on every single such occasion, been aware that part of his open flouting of empathy or care around gender was a show of juvenile, formulaic bad-assery designed to co-opt you into the bargain. We all ended up colluding to pretend that this was all funny or benign, and that, since everyone knew about it, it must be OK. It never was.

Advertisement

At a different reception in a different hotel in San Francisco this past summer, a friend was so shocked watching the judge greet me with yet another too-long, too-exuberant public kiss that he felt he had to check in with me later. I was mortified, as my texts that night reflected. The fact that I had simply acceded to this treatment, at age 50, with teenage children, took my breath away. I texted my husband and my two best friends. But this was our deal. I’d always agreed to it.

But now it’s 2017, and along with thinking about Heidi Bond, Emily Murphy, and those who came forward anonymously, I am also thinking about those who opted not to apply for clerkships with him, sidestepping an opportunity to get within close range of a coveted Supreme Court clerkship. Like others who have now come forward, I had told young female law students not to clerk for him.

I am thinking about the hundreds of plaintiffs in the discrimination and harassment suits he heard in the years he was on the bench. I am thinking of all the ways in which “open secrets” become their own spheres of truth, in which the idea that “everybody knew” something awful absolved all of us of the burden of doing anything. The former Kozinski and 9th Circuit clerks I’ve spoken to in recent days feel heartsick, as I do, that for the sake of our own careers and professional legitimacy we continued to go to the dinners and moderate the panels, all the while hoping this story would break someday and we’d be off the hook. Some of these clerks are still encumbered by the norms that constrained Bond, norms that stipulate that clerks must not speak out against or question their judges, norms to which Kozinski insisted strict adherence—and norms that, it must be said, are insane on their face if they prevent reports of open sexual harassment.

Everybody knew. This is the problem with a system of “open secrets.” All the clerks and former clerks in Kozinski’s ambit knew and understood that you assumed the risk and accepted the responsibilities of secrecy. Once you acceded to the poker games and the movies and the ritualized sex talk, you helped give it cover and license. To sit at a table with Judge Kozinski was to suspend rules for how judges talk and behave. The swearing and the gleeful overt talk of sexuality wasn’t just part of the bargain of being around him. Our silence became tacit approval of that chambers’ gleeful rejection of the strictures of political correctness and of the social imperative to police oneself.

Advertisement

This story really shouldn’t be about me. I never worked for Kozinski, and even though his behavior affected me, my future never depended on him. But here is the part that does implicate me: When a prominent journalist with a national platform chooses—year after year—not to report on an open secret, or agrees to slouch through yet another dinner or panel or cocktail party, how can it only be about the victims and the harassers? Because really, if you can’t tell a man to back off when you’re 50 and at the peak of your journalistic power, who is ever going to do it? Back in the ’90s, it was too early to report what I knew, what we all knew. And now it is too late. As my friend Rebecca Traister has put it, “the stink got on me anyway. I was implicated. We all are, our professional contributions weighed on scales of fuckability and willingness to go along, to be good sports, to not be humorless scolds or office gorgons.”

I take no joy in this reporting. Kozinski is brilliant and wickedly talented. He has done important work on police and prosecutorial misconduct in particular, and if he is to be replaced, it will likely be with a 35-year-old Trump pick who diminishes women systemically, if not recreationally. Not a net win, if we are even trying to keep score for women anymore.

But if this moment is going to mean anything, it has to make room for the realization that every last one of us who gave cover to this type of systematic degradation and abuse of power is at the very least responsible for calling it out for what it was. We are also responsible for apologizing, and figuring out how we can start to do better. I have written extensively about the gendered pipeline to Supreme Court clerkships. Until now, I have failed to mention that the pipeline sometimes demanded the ritualized humiliation of young women.

For years, I excused myself because I believed that the casual degradation of women that emanated from Judge Kozinski’s orbit was the death rattle of an old America: a symbol of the sad, broken longing for the world of Mad Men, a world that ended as soon as women reached parity with men in law school. Donald Trump and his foot soldiers are proof that this old America is very much alive, and that it’s in fact a full-scale project to treat women as trivial and ornamental and to hold them back. It keeps brilliant women from accessing power and dismisses other brilliant women as hysterics—the “nutty and slutty” character assassination used to trash Anita Hill. It’s disturbing to realize that, even today, the main markers I relied on to confirm Kozinski’s bad behavior were the shocked reactions of normal, good men: my husband, my friend, my co-clerk. Sure, I felt dirty after each interaction, but my feelings didn’t feel like enough.

I always figured I would feel better when Judge Kozinski’s #MeToo came home to roost. I don’t. His reactions to the accusers—belittling their allegations, shaming Bond for writing sex scenes in romance novels—were the reactions I was trying to avoid bringing down on myself when I failed to insist that Article III judges not talk to and about women this way, not at work, and not as we struggled to find purchase in the profession of our choosing. Somewhere along the way I managed to create a career for myself. In part, I did it by keeping secrets. I’d like to be done with that now.

One more thing

The Trump administration poses a unique threat to the rule of law. That’s why Slate has stepped up our legal coverage—watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more.

Our work is reaching more readers than ever—but online advertising revenues don’t fully cover our costs, and we don’t have print subscribers to help keep us afloat. So we need your help.

If you think Slate’s journalism matters, become a Slate Plus member. You’ll get exclusive members-only content and a suite of great benefits—and you’ll help secure Slate’s future.

Join Slate Plus