Time’s Person(s) of the Year for 2017 were “the Silence Breakers.” And as this tortuous year nears its finish line, the latest broken silence involves a Judge of the 9th Circuit Court of Appeals, the Hon. Alex Kozinski.

On Friday, December 8, the Washington Post, in an article by Matt Zapotosky, reported six women, “all former clerks [of Kozinski’s] or more junior staffers known as externs,” who have told Zapotosky that Kozinski engaged in sexually inappropriate behaviors. Two of the former clerks allowed the use of their names in the story: Heidi Bond and Emily Murphy.

In the following days, other women came forward with similar stories. By December 14, in what now seems a customary twist, the legal-profession themed website Above the Law was saying that harassing behavior by Kozinski had long been an “open secret” in the relevant corners of the legal profession.  

One distinctive feature of this case, separating it from many of the #MeToo cases that have come before it, is that this one doesn’t have an obvious left/right political valiance. The political right was happy to celebrate the downfall of Sen. Al Franken or Democratic Party donor Harvey Weinstein. Likewise, the political left is notably undismayed by the troubles of Judge Roy Moore or former Congressman Trent Franks (R-AZ).

Judge Kozinski’s partisan affiliation is sufficiently ambiguous that we can be confident reactions really are about the charges, the evidence, etc., not about the politics. In the remainder of this column, I’ll discuss the left and right wing aspects of Kozinski’s career. In Part II, I hope to come back to the specifics of these charges and the reactions thereto.

Right Wing View

Kozinski was appointed to the appeals court by President Ronald Reagan, who is often considered the touchstone of all things conservative by those who call themselves the same. He was nominated in June 1985 and confirmed by the Senate that November.

His nomination was controversial, and the debate in the U.S. Senate split down rather neatly along left/right lines. Senator Carl Levin (D-Mich.) said that Kozinski “lacks judicial temperament, is prone to anger and is lacking in compassion.” Senator Strom Thurmond responded that the criticisms of Kozinski involved “the puniest, most nit-picking charges ever raised against a nominee.”

In his tenure on the court he has exhibited in many respects a pro-free-market frame of mind. He famously ruled against the Winklevoss twins in a case arising out of their long dispute with Mark Zuckerberg over their contribution to the origins of Facebook. In that opinion, Kozinski wrote:  “The Winklevoss’s are not the first party bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace.”  They weren’t destined to get any help in that effort from him!

Left Wing View

But Kozinski has displayed an independent streak, so if there is such a creature as an ‘orthodox Reaganite,’ it surely hasn’t been him.

In a 2003 dissent, Kozinski argued in favor of the due process rights of a man who had been tried and convicted of smuggling illegal aliens across the Mexico/US border.  Nine witnesses who might have cleared the defendant were themselves deported to Mexico before his arraignment, and statements from witnesses who exculpated him were excluded at his trial as hearsay. An admirer of Kozinski has called his dissent in this matter a “stunning classic.”

The dissent may have persuaded the U.S. Attorney. For all charges were dropped and Lopez was set free (after serving three years of the 6 ½ of his sentence).

Kozinski has also written and spoken of the death penalty in ways that suggest, clearly though obliquely, that he would be happy to see it abolished. He says a firing squad would be more honest than the use of lethal injections. “The thing about the drugs is that it’s a mask – you’re not really shedding blood. [But] it’s just as violent, just as brutal.”

But enough about his jurisprudence! He faces a storm raised by his alleged improper behavior in the courthouse as a workplace, and that is what we will discuss in Part Two.

This column was written prior to Judge Kozinski’s retirement Monday morning, December 18.