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Editorial: Alex Kozinski’s retirement doesn’t end the discussion about sexual harassment in the judiciary

Ninth Circuit Judge Alex Kozinski in his chamber with a collection of movies on April 21, 2015.
( Los Angeles Times)

Judge Alex Kozinski was stating the obvious Monday when he said that he couldn’t contest more than a dozen allegations of sexual misconduct and “be an effective judge.” As a consequence, the Pasadena-based jurist announced, he was retiring after three decades on the U.S. 9th Circuit Court of Appeals. His announcement brings an abrupt and embarrassing — but also appropriate — end to a distinguished career.

The Washington Post reported this month that six women who had worked for Kozinski had said he had subjected them to inappropriate sexual conduct or comments, including showing two of them pornography. The judge’s first reaction was dismissive: “If this is all they are able to dredge up after 35 years, I am not too worried,” he told this newspaper.

But last week the Post reported that nine additional women had made complaints, including four who said Kozinski had touched them inappropriately. A former law student said he touched her breast with “deliberateness” at a reception last year when he moved her lapel aside to read her name tag. A law professor said he pinched her and touched her leg.

It’s impossible to reconcile Judge Kozinski version of events with those of his accusers.

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Those allegations describe gross conduct beyond anything that could be characterized as mere irreverence or eccentricity, qualities for which the 67-year-old judge long has been known, along with legal brilliance. Nor can it be compared to the private perusal of pornography, a practice that is as legal for judges as it is for other Americans.

Still, Kozinski tried to explain away his predicament as some kind of misunderstanding. “I’ve always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike,” the judge said Monday. “In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”

It’s impossible to reconcile the judge’s version of events with those of his accusers. In fact, in an earlier statement, the judge had said that many of the accusations against him “are simply not true.” Unfortunately, it’s unlikely that the federal judicial system will now resolve the inconsistencies.

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Last week, at the request of the chief judge of the 9th Circuit, U.S. Supreme Court Chief Justice John G. Roberts Jr. asked the New York-based U.S. 2nd Circuit Court of Appeals to have its judicial council investigate Kozinski. But now that Kozinski has announced his retirement, the future of that investigation is in doubt. On Monday a spokesman for the Administrative Office of the U.S. Courts declined to comment on whether it would proceed. The law authorizing such investigations doesn’t specifically mention retired judges.

Yet even if there is no further investigation of the claims about Kozinski, the federal judiciary should rededicate itself to ensuring that the cloisters of judges’ chambers aren’t sanctuaries for sexual harassment or other forms of abuse and exploitation.

Last week, several law professors and the executive director of Fix the Court, a group that lobbies for greater Supreme Court transparency, asked Roberts to use his forthcoming Year-End Report on the Federal Judiciary to “assure those considering coming forward with complaints about members of the judiciary that they will be heard and that justice will be done.” The letter also asked the chief justice to add prevention of sexual harassment to the agenda of the next meeting of the U.S. Judicial Conference.

As the revelations about Harvey Weinstein reminded us, some influential people will abuse their power to take advantage of women (and men) who are dependent on them for their livelihoods and professional advancement. The judiciary is not immune, and its leaders should join the rest of society in making sure its workplaces are safe for all.

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