Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. Credit: Jason Doiy / The Recorder

In the normal judicial misconduct case, a federal appeals court would handle the complaint internally. But the sexual misconduct allegations against Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit pose complications for the courts, according to judicial ethics experts.

Chief Judge Sidney Thomas of the Ninth Circuit is expected to announce soon how his court will respond to accusations by six former clerks or externs that Kozinski asked them to view pornography or subjected them to inappropriate comments.

Charles Geyh of Indiana University Maurer School of Law called the claims “bloody serious.” Geyh and Arthur Hellman of the University of Pittsburgh School of Law said they expect Thomas to initiate a complaint against Kozinski if no complaint has been filed with his court or if Kozinski himself does not file one.

“This doesn't involve groping but something that could be construed as sexual harassment coupled with a repeat offense—behavior that gave the judiciary pause in an earlier pornography-related matter,” Geyh said. “Both at some level call into question the judge's integrity and ability to represent the judiciary impartially in relation to women when we've got these multiple allegations emerging.”

The allegations were reported by The Washington Post on Dec. 8. Heidi Bond, who clerked for Kozinski in 2006-07 and went on the next year to clerk for Justices Sandra Day O'Connor and Anthony Kennedy at the U.S. Supreme Court, was among the women who spoke about their experience.

Bond was one of two former clerks who said Kozinski called them into his chambers and asked them to view pornography on his computer. The second former clerk spoke on condition that her identity not be disclosed, according to the newspaper's report. The other women described inappropriate comments by the judge both before and after Bond's clerkship, up until 2012.

Kozinski said in a statement last week about the allegations: “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.”

Any complaint about a judge's behavior would trigger the judicial misconduct and disability process established by Congress in 1980 and revised in 2002. That process, according to Hellman, was improved by the adoption of rules recommended by the so-called Breyer Committee in 2008. “The process worked fine for routine complaints, which are the vast majority,” said Hellman, “but not so much for complaints in the public eye. That's what the Breyer Committee focused on.”

Thomas, the Ninth Circuit's chief judge, has three options to handle any complaint against Kozinski, Geyh said. He can dismiss it as outside the scope of the statute, which happens often when the complaint is filed by a disgruntled litigant who doesn't like the outcome of a case.

The second option, which happens regularly, is the chief judge takes the complaint to the targeted judge. The judge who's the subject of the complaint could agree to counseling, and that would close the matter. Geyh, who is not involved in the Kozinski matter, called the allegations against the judge “serious” and predicted they would not be resolved through any informal resolution.

Geyh and Hellman said they expected Thomas to take the third option—the same one followed in 2008 when Kozinski was investigated for keeping a publicly accessible website featuring pornographic photos and videos.

Kozinski, in that case, initiated the complaint process himself. U.S. Supreme Court Chief Justice John Roberts Jr. referred it to the U.S. Court of Appeals for the Third Circuit, which appointed a special committee to investigate and make recommendations to the circuit judicial council. At the end of that process, the council publicly “admonished” Kozinski for his behavior.

Kozinski has given no indication that he's planning to retire. Kozinski told the Los Angeles Times last week: “If this is all they are able to dredge up after 35 years, I am not too worried.”

Hellman called a resignation “extremely unlikely” given Kozinski's public statements about the allegations.

“None of these women has alleged unwanted touching or any kind of request or pressure to engage in sexual acts,” he said. “That distinguishes this from some of the other sexual harassment cases of recent years. It's hard for me to believe he would think these allegations warrant his stepping down from the federal bench.”

Hellman said any investigating committee will find itself in a difficult position because some of the allegations happened years ago.

“The climate of public opinion about this has changed so rapidly,” he said. “Part of the difficult task of those who investigate is to assess his behavior in light of the norms at the time. It would be unfair to say you did things that today would be improper but at that time, not necessarily.”

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Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. Credit: Jason Doiy / The Recorder

In the normal judicial misconduct case, a federal appeals court would handle the complaint internally. But the sexual misconduct allegations against Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit pose complications for the courts, according to judicial ethics experts.

Chief Judge Sidney Thomas of the Ninth Circuit is expected to announce soon how his court will respond to accusations by six former clerks or externs that Kozinski asked them to view pornography or subjected them to inappropriate comments.

Charles Geyh of Indiana University Maurer School of Law called the claims “bloody serious.” Geyh and Arthur Hellman of the University of Pittsburgh School of Law said they expect Thomas to initiate a complaint against Kozinski if no complaint has been filed with his court or if Kozinski himself does not file one.

“This doesn't involve groping but something that could be construed as sexual harassment coupled with a repeat offense—behavior that gave the judiciary pause in an earlier pornography-related matter,” Geyh said. “Both at some level call into question the judge's integrity and ability to represent the judiciary impartially in relation to women when we've got these multiple allegations emerging.”

The allegations were reported by The Washington Post on Dec. 8. Heidi Bond, who clerked for Kozinski in 2006-07 and went on the next year to clerk for Justices Sandra Day O'Connor and Anthony Kennedy at the U.S. Supreme Court, was among the women who spoke about their experience.

Bond was one of two former clerks who said Kozinski called them into his chambers and asked them to view pornography on his computer. The second former clerk spoke on condition that her identity not be disclosed, according to the newspaper's report. The other women described inappropriate comments by the judge both before and after Bond's clerkship, up until 2012.

Kozinski said in a statement last week about the allegations: “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.”

Any complaint about a judge's behavior would trigger the judicial misconduct and disability process established by Congress in 1980 and revised in 2002. That process, according to Hellman, was improved by the adoption of rules recommended by the so-called Breyer Committee in 2008. “The process worked fine for routine complaints, which are the vast majority,” said Hellman, “but not so much for complaints in the public eye. That's what the Breyer Committee focused on.”

Thomas, the Ninth Circuit's chief judge, has three options to handle any complaint against Kozinski, Geyh said. He can dismiss it as outside the scope of the statute, which happens often when the complaint is filed by a disgruntled litigant who doesn't like the outcome of a case.

The second option, which happens regularly, is the chief judge takes the complaint to the targeted judge. The judge who's the subject of the complaint could agree to counseling, and that would close the matter. Geyh, who is not involved in the Kozinski matter, called the allegations against the judge “serious” and predicted they would not be resolved through any informal resolution.

Geyh and Hellman said they expected Thomas to take the third option—the same one followed in 2008 when Kozinski was investigated for keeping a publicly accessible website featuring pornographic photos and videos.

Kozinski, in that case, initiated the complaint process himself. U.S. Supreme Court Chief Justice John Roberts Jr. referred it to the U.S. Court of Appeals for the Third Circuit, which appointed a special committee to investigate and make recommendations to the circuit judicial council. At the end of that process, the council publicly “admonished” Kozinski for his behavior.

Kozinski has given no indication that he's planning to retire. Kozinski told the Los Angeles Times last week: “If this is all they are able to dredge up after 35 years, I am not too worried.”

Hellman called a resignation “extremely unlikely” given Kozinski's public statements about the allegations.

“None of these women has alleged unwanted touching or any kind of request or pressure to engage in sexual acts,” he said. “That distinguishes this from some of the other sexual harassment cases of recent years. It's hard for me to believe he would think these allegations warrant his stepping down from the federal bench.”

Hellman said any investigating committee will find itself in a difficult position because some of the allegations happened years ago.

“The climate of public opinion about this has changed so rapidly,” he said. “Part of the difficult task of those who investigate is to assess his behavior in light of the norms at the time. It would be unfair to say you did things that today would be improper but at that time, not necessarily.”

Read more: