"We recognize that the complaint references grave allegations of inappropriate misconduct, which the federal judiciary cannot tolerate," the council wrote in its order, before adding, "Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under" federal law. A lawyer for Kozinski declined to comment.
Kozinski, 67, was one of the most well-known appeals court judges in the country. His colorful opinions on the U.S. Court of Appeals for the 9th Circuit drew national attention, and those who worked for him often went on to win prestigious Supreme Court clerkships.
But after The Washington Post reported in December on sexual misconduct allegations against the judge, his downfall was swift. He announced Dec. 18 that he was stepping down from the bench — 10 days after The Post published its first story on the accusations and less than a week after the judiciary initiated its review.
Fifteen women detailed what they said was the judge's sexual misconduct — including three former clerks who alleged Kozinski showed them explicit images in his chambers, a lawyer who said Kozinski kissed her without warning at a legal community event and a former U.S. Court of Federal Claims judge who said Kozinski grabbed and squeezed each of her breasts as the two drove back from an event in Baltimore. The incidents ranged in time from the mid-1980s to 2016.
The reporting on Kozinskispurred the judiciary to explore some changes. In late December, Chief Justice John G. Roberts Jr. announced an initiative to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, tasking James C. Duff, the director of the Administrative Office of the U.S. Courts, with creating a group to work on the matter. That group has been formed. The judiciary also updated the handbook for law clerks to encourage reporting of sexual harassment.
The judiciary, though, had repeatedly declined to clarify the status of its probe into Kozinski. That was frustrating to some of Kozinski's accusers, who worried that the judge might one day be able to return to the legal world in some capacity without having to undergo a full examination of his misdeeds.
"With his immediate retirement, it appears that he has essentially shut down the federal judiciary's investigation of his conduct and deflected further revelations in the press," former clerk Katherine Ku wrote last month in a first-person account of her experience with the judge. "That allows him to disappear, quietly receiving his pension, until the outrage dies down. It allows him a greater chance at redemption."
The judicial council wrote that it had been unable to decide on the merits of the allegations against Kozinski because he stepped down so early in the process, before even having submitted a preliminary response to the allegations against him.