On July 19, 2018, seven young female lawyers, with impressive educational credentials but little practical experience, founded an organization called Law Clerks for Workplace Accountability (LCWA). All (but perhaps one) appear to have served a year or two as law clerks to federal judges and all apparently had wonderful experiences.
The foregoing is a screen capture from the LCWA web site.
On July 20, 2018, they submitted a response (hereinafter Response)[i] to the Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference[ii] of the United States (June 1, 2018) (hereinafter Report) (available here together with the executive summary).[iii]
After the issuance of the Response, the group posted a “clarification” on Twitter which reads:
One clarification regarding the recommendations in our memo: we are not trying to make these changes/reforms by ourselves. While our members do bring a wealth of relevant experience to the table, we recognize fully that we may lack some institutional knowledge.[iv]
(Italics added by Kopf.)
After learning of the LCWA from How Appealing on July 20, 2018, I wrote a tweet regarding the LCWA’s Response that quoted Howard Bashman, the author of How Appealing, and added: “New Spanish Inquisition by SJWs? Thank goodness for Article III.” It also contained a pen and ink image of a man on the rack. My tweet generated near universal condemnation.[v]
At about the same time as I was largely being condemned, I offered, via twitter, to provide a respectful substantive critique of the Response if the LCWA would publish it in full on their web site. I wanted one place where the reader might compare the two papers side by side. I envisioned writing more than a blog post. After all the Response was 15 single-spaced pages long and it raised too many issues for discussion in a short form. To date, the offer has not been accepted. So, I have moved on.
In turn, our host wrote a post entitled “Another Fine Mess, Judge Kopf.” SHG reprinted the tweet in full. He captured many of my concerns but questioned whether this was a fight worth fighting and questioned whether Twitter was the place to do so.
In this post, I will elaborate upon my tweet.[vi] But given the constraints of space imposed by the short-form nature of a blog post, I must be brief. So, I concentrate on Part III of the Response, beginning at page 9, and particularly the two recommendations that I find the most troubling.
Special Pleading
According to their website, “Representatives of Law Clerks for Workplace Accountability attended, on an ad hoc basis, three meetings of this Working Group. We also submitted written proposals and suggestions to the group.” This was not good enough.
The LCWA complained about a lack of special access: “We repeatedly asked to see the report before it was published, but were denied that opportunity.” (Italics added by Kopf.) Then, in their Response, “We ask for a permanent seat” on the Working Group. Response at pp. 10-12.
Why are these bright, young, but inexperienced,[vii] female lawyers special? More generally, why would law clerks be entitled to formally participate in the decisional process of important judiciary-wide policy formation when other “stakeholders” are not?[viii]
What about the courtroom deputy (CRD) who was assaulted by Judge Kent? Shouldn’t CRDs have a seat at the table? What about probation officers who carry guns and literally risk their lives every day? What about administrative or clerical staff from the circuit executive’s offices or the various clerks’ offices or at the Administrative Office? What about pro se and death penalty staff attorneys? What about judicial assistants? We should not forget court reporters. How about the IT staffs at the district, circuit, and national levels who are tasked with maintaining the computers and other digital equipment that make the U.S. Courts a leader in court-related technology? And the list goes on.
I suspect that the LCWA wants a very special “seat at the table” because its seven members have an agenda about which I vigorously disagree. I turn to that agenda next.
The Agenda
The LCWA is not satisfied with Judge Kozinski’s forced resignation that halted an investigation by a special committee of judges and allowed him to keep his pension but resulted in the utter devastation of his reputation and an extraordinary public shaming.
The LCWA is not shy about wanting more:
The scandal surrounding Judge Kozinski provides a unique opportunity for the Judiciary to examine these issues. How did Judge Kozinski manage to engage in sustained harassment for such a long period of time? How many people, including judges, were aware of his harassment? Why didn’t his victims report him sooner? The Working Group does not appear to have interviewed any of the individuals involved, including victims and other employees at the Ninth Circuit, such as judges. By failing to address the fallout of the numerous allegations against Judge Kozinski directly—or further investigate allegations as to any reported harasser—the Working Group lost an opportunity to learn from its past mistakes and to craft future policies to avoid these mistakes. The Judiciary also missed the opportunity to publicly acknowledge its own failings that allowed this behavior to continue for decades, to demonstrate a genuine understanding of what should have been done in the past, and to commit to specific, meaningful changes that employees and members of the public can trust. Acceptance of responsibility is difficult, as judges know better than most, given their unique role in the sentencing context. But it is critical to ensure that victims feel heard and future victims feel comfortable coming forward.
Response at pp. 13-14 (Italics by Kopf).
First, let me be clear. If Kozinski did what many allege (not the least of which is the seemingly credible allegation of a claims court judge[ix]), then his behavior was intolerable and inexcusable. But that is all the Gertruding you will get from me.
Second, I see no purpose in attempting to further excavate the lurid details given that many, perhaps all, of those details are already in the public domain or are otherwise known to the Chief Justice’s working group members.[x] It is old, very sad news.
But even more importantly, the Report provides a long list of things that the Judicial Conference is likely to adopt to make sure this sordid story is less likely to repeat itself. For example, the Report proposes to create an internal Office of Judicial Integrity to provide counsel and assistance regarding workplace conduct for all employees of the federal judiciary. Id. at p. 37 & n.66.
Third, how in the hell can the LCWA’s call for further investigation be accomplished without harm being done to innocent bystanders who are likely to have been ignorant or unwilling to act upon law clerk gossip? Imagine for a moment questioning Justice Kennedy, with whom Kozinski served on the Ninth Circuit.
If I were asking the questions, here are three I would most likely ask:
Remembering you are under oath, Justice Kennedy, what did you know about Kozinski’s mistreatment of his law clerks, and when did you know it?
If you claim to have no knowledge on the subject, are you calling people liars who say it was common knowledge?
Fess up, Justice Kennedy, you knew about Judge Kozinski’s misbehavior and did nothing about it, isn’t that true?
After we get done with Justice Kennedy, then we should proceed to interrogate every judge or Justice who ever sat on the Ninth Circuit during the time Kozinski was also serving as a judge.
After we get done with judges, let’s proceed to the law clerks. Yeah, that’s the ticket. Let’s put Judge Kavanaugh, who clerked for Kozinski, under oath and grill him. After all, Elie wants to know:
What, if anything, did Kavanaugh know about Kozinski’s behavior? What, if anything, did Kavanaugh do to help the women being harassed by the judge?
This isn’t some guilt by association thing. Reports indicate that even after his time as a clerk, Kavanaugh and Kozinski remained close. He was there while harassment was allegedly occurring.
Elie Mystal, Did Brett Kavanaugh Know About Alex Kozinski, Above the Law (July 10, 2018) (Italics in original).[xi]
And, while we are at it, we should closely question Eugene Volokh, who clerked for Kozinski and who was very close to the putative monster. “The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he’s taught me a huge amount, and he’s helped me tremendously in my career, and not just by giving me a valuable credential.” Eugene Volokh, June 13, 2008 at 1:36pm. Surely, he deserves the third degree.
After we are done with the law clerks, we should cut a wide swath through the Ninth Circuit Executive’s office. Those folks had to know about Kozinski’s misbehavior. After that, let’s goose-step down to every district court where Kozinski served as a trial judge. While we are at it, let’s question under oath law professors Leah Litman and Rick Hasen as to why they stayed silent until the dam was broken by others.
Fourth, why would anyone except publicly proclaimed accusers of Kozinski cooperate? The LCWA explicitly wants to find judges and Ninth Circuit employees who might have suspected something yet decided to keep their own counsel, perhaps for very good reasons such as a lack of personal knowledge. Why would a sane person cooperate with this “investigation” knowing the LCWA wants to out those who appear to the LCWA to have been complicit? And, yet, if Judge X, knowing nothing about Kozinski’s alleged wrongdoing, told the LCWA headhunters to pound sand, what would be the result of such intransigence? Shall we name and shame the uncooperative judge?
Fifth, and very importantly, if one truly needs details of the federal judges who have allegedly misbehaved more recently and what happened to them so one can make good policy, read Appendix 4 to the Report (letter from James C. Duff, Director of the Administrative Office, to Chairman Charles E. Grassley and Ranking Member Dianne Feinstein, at pp. 9-17 (Feb. 16, 2018)). There you will find the details about the alleged misbehavior of Judge Walter Smith (alleged sexual harassment of clerk’s office employee); Judge Edward Nottingham (complaint involving allegations that he spent thousands of dollars at strip clubs and was involved in a prostitution ring); Judge Richard Cebull (accused of making racist jokes and disparaging statements about women); Judge Samuel Kent (indicted and convicted on three counts of abusive sexual contact); Judge Richard Roberts (accused of raping a 16-year-old witness while he was a prosecutor); and Judge Alex Kozinski (accused of sexual harassment and misconduct by several women).[xii]
In short, I resist with every fiber of my being the unnecessary spilling of more blood. L’affaire Kozinski has done enough harm to the federal judiciary. We don’t need to autopsy the corpse to understand the evident disease.
Richard G. Kopf
Senior United States District Judge
[i] The Response is in PDF form and must be accessed through LCWA’s website.
[ii] Presided over by the Chief Justice, the Judicial Conference of the United States comprised of judges is the national policy-making body for the federal courts. For more, see here.
[iii] I do not have the space to describe the extensive Report. But from my perspective—as a former federal appellate law clerk, as a former United States Magistrate Judge, as a former Chief Judge, as a former member of the Codes of Conduct Committee, and as a judge with over 30 years of judicial service—the Report is remarkably candid, thorough, and practical. The authors are distinguished and experienced. I applaud the Report, even though in spots I am frankly concerned that it goes too far. That said, there are prudential reasons why the Report should be adopted in whole by the Judicial Conference and without significant change. The Report is worth a close and careful review, including the appendices.
[iv] This belated “clarification” is an understatement of epic proportion.
[v] See also Max Mitchell, Judge Who Stirred Controversy With Tweet Unlikely to Face Discipline, Experts Say, Law.Com (July 23, 2018), Joe Patrice, Outspoken Federal Judge Launches Amazingly Dumb Twitter Tirade, Above the Law (July 24, 2018).
[vi] I have been told by people I admire and trust that my tweet and related responses on Twitter “lacked nuance,” “were inartful,” or appeared to “punch down.” I accept those criticisms and apologize for my errors.
[vii] None of these very bright women served in the judiciary for more than two years. None of them have publicly claimed to have experienced harassment at the hands of a judge or anyone else in the judiciary. Moreover, who appointed LCWA to represent anyone?
[viii] If law clerks are to be added as permanent members of the working group, then I suggest that career law clerks would be a much better fit due to their experience, as opposed to term clerks who spend much of their first year figuratively trying to find the courthouse.
[ix] “A former U.S. Court of Federal Claims judge said Kozinski grabbed and squeezed each of her breasts as the two drove back from an event in Baltimore in the mid-1980s, after she had told him she did not want to stop at a motel and have sex.” Matt Zapotosky, Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed them, The Washington Post (Dec. 15, 2017).
[x] Judge M. Margaret McKeown, from the Ninth Circuit, is a member. Judge McKeown chaired the Judicial Conference Codes of Conduct Committee, is chair of the newly formed Ninth Circuit Workplace Environment Committee, and served on various committees, working groups, and panels related to workplace and gender discrimination while on the bench and in private practice. She served as President of the Federal Judges Association. Judge McKeown, who I have been privileged to know personally, is one of the nicest, toughest, best and most highly regarded appellate judges in the country. See here, for example.
[xi] He will surely also face such questioning when he appears before the Senate. Would that suffice?
[xii] Should we do a retrospective investigation of all these judges to determine who knew what when? Maybe we ought also to investigate former Judge Mark Fuller. After all, he was allegedly a wife beater. You can find my thoughts on Fuller here, here, here, here, and here.
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