Dahlia Lithwick, one of my favorite legal writers, is backing up the stories of the law clerks who have accused Judge Alex Kozinski of the 9th Circuit Court of Appeals of all manner of sexual harassment. She used to clerk for another judge on the same circuit and experienced it herself.
The first time I met Alex Kozinski was in 1996. I was clerking for the chief judge of the 9th U.S. Circuit Court of Appeals, and there was an orientation for new clerks in San Francisco. One of my co-clerks and I were introduced to the already legendary, lifetime-tenured young judge at a reception, and we talked for a while. I cannot recall what we talked about. I remember only feeling quite small and very dirty. Without my prompting, my former co-clerk described this interaction in an email to me this week. “He completely ignored me and appeared to be undressing you with his eyes,” he wrote. “I had never seen anyone ogle another person like that and still have not seen anything like it. Was so uncomfortable to watch, and I wasn’t even the subject of the stare.”
The first time I spoke to Judge Kozinski on the phone came weeks later, when I called his chambers late at night. Our judge had a sitting in the same city as Judge Kozinski, and I had made plans with one of Kozinski’s then-clerks, an old college friend, to meet late at night for a drink. When I called his chambers, Judge Kozinski himself answered the phone. I introduced myself and asked to speak to his clerk, explaining that we had plans to meet up. The judge asked where I was. I said I was in my hotel room. Then he said, “What are you wearing?”
I was taken aback, in part because nobody talked this way in real life. I surprised myself by reporting what Kozinski had said to my judge, who had always been kind and courtly and old-fashioned to the point of being almost saintly in my eyes. He looked horrified, as I am sure he was. But it was 1996. And the relationships between law clerks and their judges are mostly built on worshipful silence. There is no other work relationship left in America that is comparable. Which is, as it happens, part of the problem.
Kozinski forced us all into this mess with him. And still, I am aware as I write this that I should have found my footing, that the women who came up after me, and who spoke up, are manifestly braver than I was. I am further aware that my failure to speak up over the course of my career is part of the reason why it was possible for the women who came after me to be treated as disrespectfully as they were.
I have seen Judge Kozinski dozens of times in the past two decades, moderated his panels, sat next to him at high-powered, high-status events and dinners. My husband will tell you he once fielded a call from the judge to my home, in which Kozinski described himself as my “paramour.” I have, on every single such occasion, been aware that part of his open flouting of empathy or care around gender was a show of juvenile, formulaic bad-assery designed to co-opt you into the bargain. We all ended up colluding to pretend that this was all funny or benign, and that, since everyone knew about it, it must be OK. It never was.
This is what I wrote about a few weeks ago, that one of the common threads in almost all of these stories of men engaged in routine sexual harassment and assault is that it was an open secret. Lots and lots of people knew. And I understand why the women don’t go public with it at the time and then feel regret later. Accusing powerful men of sexual wrongdoing rarely works out well for them. Kozinski was a major powerhouse on the federal bench. He was a feeder judge who controlled whether his clerks would go on to clerk for Supreme Court justices, something that can make an entire legal career. Or he could bury your career if he chose to.
But it isn’t just women and those who worked under him who were aware of this. At least some of his fellow judges must have known about it, seen it, joked about it. And none of them have ever spoken up, even after a few brave victims did come forward. The old boys club protects their own. And that’s one big reason why this is so prevalent in virtually every field.