December 14, 2017 at 9:45 PM
The chief judge of the U.S. Court of Appeals for the 9th Circuit on Thursday initiated a review of misconduct allegations against Judge Alex Kozinski — the powerful jurist who has come under fire in recent days after former clerks and other lower-level staffers accused him of subjecting them to a range of inappropriate sexual conduct or comments.
Chief Judge Sidney R. Thomas wrote in an order that even absent a formal complaint, he could initiate a review "when there is information constituting reasonable grounds for inquiry into whether a covered judge has engaged in judicial misconduct."
He wrote that he would treat allegations in a Washington Post article that detailed six women's experiences with Kozinski — a former chief of the 9th Circuit who still works as a judge — as the basis for a complaint in the case. Thomas asked that the chief justice of the U.S. Supreme Court reassign the case to a different judicial council.
Meanwhile, at least one current clerk for Kozinski resigned, a 9th Circuit official confirmed Thursday. The reason was not immediately clear. Assistant Circuit Executive David J. Madden said in an email: "I can confirm that one or more clerks has resigned. I am unable to comment further as I do not know whether the separation(s) may involve a confidential personnel matter."
An administrative assistant for Kozinski said the judge was not available to comment.
Collectively, the steps represent the first tangible fallout for Kozinski after The Washington Post's report last week that six women — all former clerks or more-junior staffers known as externs in the 9th Circuit — had alleged that Kozinski subjected them to inappropriate sexual conduct or comments.
The chief judge's initiating the review is a first step, but could ultimately lead Kozinski to be reprimanded, asked to retire or blocked from taking new cases for a period of time.
Two of the women who talked to The Post, novelist Heidi Bond and law professor Emily Murphy, spoke on the record.
Bond, a former Kozinski clerk, described how the judge had showed her porn in his chambers on at least three occasions, as well as a chart that purported to list the women with whom he and college classmates had sexual relations.
"When this happened, I felt like a prey animal — as if I had to make myself small," Bond wrote in a first-person account of the encounter. "If I did, if I never admitted to having any emotions at all, I would get through it."
Murphy, a former 9th Circuit clerk, described how the judge had commented on how she should work out naked in a gym during a discussion with her and other clerks — pressing on as others in the group tried to change the subject.
"It wasn't just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well," Murphy told The Post. "That was what was humiliating about it."
Another former clerk, speaking on the condition of anonymity out of fear of possible retaliation, also said the judge showed her porn in his chambers. The others described various comments and inappropriate behavior.
Nancy Rapoport, special counsel to the president of the University of Nevada, Las Vegas, wrote that when she was clerking for another judge in the mid-1980s, Kozinski invited her for drinks with him and his own clerks. When she arrived, Rapoport wrote, Kozinski was alone, and at one point asked her, "What do single girls in San Francisco do for sex?"
Dahlia Lithwick, who clerked in the 9th Circuit in the mid-1990s, wrote in Slate that she had called Kozinski's chambers trying to reach one of his then-clerks about plans they had made, and Kozinski answered the phone. The judge, Lithwick wrote, asked where she was, and when she said she was in a hotel room, he responded, "What are you wearing?"
"I was taken aback, in part because nobody talked this way in real life," Lithwick wrote.
Kozinski has previously faced a judicial investigation, after the Los Angeles Times revealed in 2008 that he had a publicly accessible website that contained pornographic images. In that case, Kozinski initiated the complaint himself, and an investigation ultimately found he did not intend to allow the public to see the material and that, instead, the judge and his son were careless in protecting a private server from being accessible on the Internet.
Anthony J. Scirica, then the chief judge of the U.S. Court of Appeals for the 3rd Circuit, wrote at the time that Kozinski's "conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary."