The Washington PostDemocracy Dies in Darkness

Judge who quit over harassment allegations reemerges, dismaying those who accused him

Alex Kozinski, shown here in 2014, had largely retreated from public life since allegations of sexual misconduct prompted him to retire as a federal appeals court judge last year. (J. David Ake/AP)

Alex Kozinski had largely retreated from public life since allegations of sexual misconduct prompted him to retire as a federal appeals court judge last year. Even as his case sparked changes in how the judiciary handles harassment, the outspoken jurist remained silent — never addressing specific accusations that he showed clerks explicit images in his chambers or touched women inappropriately.

But earlier this month, Kozin-ski tiptoed back into public view, sitting for an hour-long interview with a public radio station in California and writing a tribute in a legal-industry publication to retired Supreme Court justice Anthony M. Kennedy. Then President Trump nominated Brett M. Kavanaugh, one of Kozinski’s former clerks and professional friends, to a seat on the high court.

Kozinski was suddenly back in the spotlight, and the legal and political worlds were left to wrestle with the aftershocks of his fall from grace.

Prominent appeals court judge Alex Kozinski accused of sexual misconduct

Kozinski’s media appearances made no mention of the accusations against him, and some former clerks and other women said they feared he was being allowed to reenter the legal community without a complete reckoning.

“I worry that it signals to women that our profession doesn’t actually care about harassment,” said Emily Murphy, a law professor who was among the first to describe her experience with Kozinski on the record. “And it substantiates a concern that several of us had after he resigned — that in the absence of an investigation or formal process, it would be easier to downplay his conduct and rehabilitate him from something we never got to the bottom of.”

The timing of Kozinski’s reemergence is notable, coming just as Kennedy retired and Trump nominated Kavanaugh to replace him. In recent weeks, opposition researchers and journalists have been exploring Kozinski and Kavanaugh’s relationship, trying to determine whether Kavanaugh knew of his former boss’s conduct. Kavanaugh clerked for Kozinski in the early 1990s, and the two men both vetted candidates for Kennedy clerkships. One of Kozinski’s sons worked as a clerk for Kavanaugh last summer.

Kozinski, 67, stepped down from the U.S. Court of Appeals for the 9th Circuit in December after The Washington Post reported on the allegations of more than a dozen women, including former clerks, law students and a fellow judge, who said he had subjected them to a range of sexual misconduct. His retirement effectively short-circuited a judicial investigation into the matter — though his attorney said he would not fear the results of such an inquiry.

“He was eager to defend himself but absolutely unwilling to put the people and the institution he cared about through that,” said the lawyer, Susan Estrich.

No one has come forward with evidence that Kavanaugh knew of the allegations against Kozinski. Murphy and other former Kozinski clerks said they had no specific knowledge of whether Kavanaugh was aware of Kozinski’s behavior.

White House spokeswoman Kerri Kupec said in a statement that Kavanaugh “had never heard any allegations of sexual misconduct or sexual harassment by Judge Kozinski” before the matter was publicly reported on last year.

The White House declined to answer other questions, such as whether Kavanaugh was on an email list Kozinski maintained to distribute jokes that were sometimes off-color, or what the Supreme Court nominee thought of the accusations against Kozinski. They also declined to make Kavanaugh available for an interview. A White House official said Kavanaugh is prepared to address the topics at his confirmation hearing.

The White House provided statements from three people who know the judges and said they did not believe Kavanaugh could have known about Kozinski’s behavior.

“I was shocked by the allegations that surfaced last year,” said Susan Engel, a former Kozinski clerk who also knows Kavanaugh well. “I would be astonished if Brett Kavanaugh had ever heard anything about this.”

Estrich said in an email that Kozinski “does not plan to take a public role” in Kavanaugh’s confirmation process and that he “certainly wasn’t using the nomination as a way back into the story, or anything else. She did not respond to a question about whether Kozinski and Kavanaugh had discussed the allegations. Kozinski has previously apologized and said it “grieves me to learn that I caused any of my clerks to feel uncomfortable.”

Kozinski was one of the most high-profile appeals court judges in the country, well known for his colorful written opinions and occasional media appearances. Former Kozinski clerks often went on to clerk for the Supreme Court and now hold prominent jobs across the legal industry. Some still support him.

“While I probably would not encourage my sons to talk like he does, especially in public, I would absolutely encourage my daughters to go work for him,” said Shelby Reitz, who worked as an extern for Kozinski in 2006 and reached out to the judge after the allegations emerged.

His downfall, however, brought the #MeToo movement to the federal judiciary. The allegations against Kozinski prompted Chief Justice John G. Roberts Jr. to order a broad review of how the judiciary handles harassment, and last month the group he commissioned recommended sweeping changes.

The first of Kozinski’s recent media appearances came in early July, when KALW, an NPR member station in the San Francisco area, aired an interview with him on a weekly show hosted by career coach Marty Nemko.

Nemko, who hosts the show on a volunteer basis, said in an email that he was looking for a judge for a segment that explores what it is like to work in a particular field and that “after getting nowhere with the U.S. Supreme Court,” he figured he would try the federal appeals court in the circuit that covers California. He said he searched on Google, found Kozinski through a Wikipedia entry and sent him an email.

Nemko said Kozinski told him in a pre-interview that his attorney had instructed him not to discuss why he retired. The radio host said he felt the issue was “not relevant” to the topic of his interview — what it is like to be a judge — and he “decided my listeners would be served by having him on even if I couldn’t ask him why he retired.”

In their hour-long conversation, Nemko never brought up the allegations that led to Kozinski’s leaving the bench — even as Kozinski talked at length about his career and how he planned to continue speaking and writing. Matt Martin, KALW’s general manager, said a listener complained, and he instructed Nemko to reference the allegations in his show the following week.

“I think at this point, when you talk about Judge Kozinski, that at minimum has to be mentioned as part of explaining why he retired from the bench,” Martin said.

Less than a week after the KALW appearance, the Los Angeles Daily Journal, a legal publication in California, published a first-person article Kozinski wrote about Kennedy. The piece made no reference to why Kozin- ski had stepped down.

David Houston, the Daily Journal’s editor, said that Kozinski wrote intermittently for the paper but that after the allegations against him emerged last year, he decided that “we’re not going to publish him for a while.” Houston said that around the time of Kennedy’s retirement, he reached out to Kozinski to see whether he would be willing to write about the justice.

To the dismay of some of those who say Kozinski victimized them, the judge’s work was included on a list of aggregated articles the 9th Circuit Court of Appeals library sent out to subscribers.

Assistant Circuit Executive David J. Madden said the article was selected through an automated search. He said the circuit “does not take any position vis-a-vis the viewpoints of authors of the articles.” The same digest, he said, previously included coverage of the allegations against Kozinski.

“Nothing anywhere suggests that the 9th Circuit endorses or supports the content of the links or the authors of the articles,” Madden said.

The column sparked a backlash from some women in the legal community, including those who said Kozinski had victimized them. More than a dozen wrote to the Daily Journal to voice their displeasure.

“Women hear the message loud and clear: If we come forward with credible allegations of deplorable conduct, nobody will care (at least, not in six months’ time),” the women wrote.

Heidi Bond, a former Kozinski clerk who said the judge showed her pornography in his chambers and was among those who signed the letter, said on Twitter, “It is enraging to think that the women who called out Kozinski will be remembered for having done so longer than he will be known for having harassed them.”

Houston said he considered extensively whether to print Kozinski’s work, even reaching out to lawyers to get their views. He said he reasoned that the newspaper’s sophisticated readers would understand that publishing an article by someone was “not an endorsement of bad behavior or an act of rehabilitation for a disgraced character.”

“In this case, they understand that Kozinski is a complicated figure, a man who could be crude, grotesque and hurtful and also a towering intellect who contributed much to the law and to the legal community,” he said.

Houston said he wrote a column addressing the matter but chose to scrap it, and he published the response of the women who had concerns.

“At the end of the day, I stand by writing it, publishing it,” he said.

Beth Reinhard contributed to this report.