Kozinski and the number Six

This diatribe against 9th Circuit Judge Alex Kozinski's dismissive response to a Washington Post report which describes his alleged harassment is brought to you by the number Six. Six is the number of women who formerly clerked or externed for him, and who each claim the judge subjected them to demeaning sexual conduct or comments. Two former clerks claim that he asked them to view pornographic images while in his chambers.

Six is, of course, less than eight, the number of sealed agreements Harvey Weinstein or his company entered into with aggrieved women; or the number of women who accused Minnesota Sen. Al Franken of unwanted groping or physical contact. It is less than the nine women who accused the recently defeated Alabama U.S. Senate candidate Roy Moore of serious indiscretions. And it is less than 19, the number of women who have accused our current president of inappropriate behavior. Et cetera, ad nauseum.

In his statement, Judge Kozinski attempted to put Six in context by emphasizing that of the 500 or more employees who clerked or externed for him, whom he always treated as family and would never knowingly do anything to offend, only a "handful" were offended by something he had said or done.

"Handful," in the current environment, is an unfortunate choice of metaphor. If the current environment has taught anything about how many persons might have been exposed to a recently uncovered pattern of harassment or abuse, final conclusions should probably await final tally. More accurate than "handful," then, is "at least six."

Setting his statement aside, implied in the high quality of Judge Kozinski's judicial opinions and the eloquence of his essays, in the incisiveness of his questions during oral argument, and of his reputation for driving and honing the efforts of his law clerks, is that there is a payoff worth the effort. More than to merely call attention to and aggrandize the man, the careful craftsmanship, the sharp wit, and the legal scholarship, are designed both to render justice specific to the cases before him, and to generally define, promote and preserve amorphous, yet no less important values, such as equality and freedom.

It is a compelling purpose for someone with a compelling history, an immigrant born of parents who survived the Holocaust. And as judge on the 9th U.S. Circuit Court of Appeals, he has reached a lofty perch of prestige and influence, not least in propelling many of his law clerks to the Supreme Court and other positions of influence.

It also is a perch from which he frequently floats iconoclastic ideas. For example, when asked how courts should handle a president who lies, he cited The Prince for the proposition that it is the prince's duty to lie. The more conventionally educated might have replied that one of the specific purposes of the Federalist Papers and its arguments for constitutional government was to write Machiavelli's "Prince" out of our public institutions.

Broken down to basics, it is the job both of attorneys and judges to say the right thing to the right person in the right forum at the right time. The rhetoric employed functions on at least two important levels. The rhetoric of rules, analysis and decision provide the blunt edge dividing the rights of parties and actions which shall be enforced. The subtler forms of rhetoric inherent in language represent the shared reality on which legal reasoning floats.

This method and culture of legal reasoning and rhetoric is a double-edged sword. At its best, it inculcates a method and system of values among law students and clerks that provide uniformity. It provides a framework so that when attorneys and judges discuss the law, they efficiently and accurately predict and understand how each other will select and interpret facts and law, and reach consistent and objective legal conclusions.

At less than best, it is induction into a club disassociated from the uninitiated it should otherwise serve. For law students, the four-part process of issue spotting, rule, analysis and conclusion can often be reduced to two: tell the professor what he or she believes is law, then profusely congratulate them for knowing and teaching it. Those who master this process become, themselves, professors. And the process replicates.

Not that placement, law school and bar examinations entirely lack objectivity or purpose. At its core, the system is stable and works well. Even at the Supreme Court, justices on both sides of the political spectrum hasten to remind the public that justices usually unanimously or near unanimously decide cases. On its edges, what starts as a pursuit of excellence dissolves into doctrinalism, credentialism and arrogance; a systematic thought process for grinding axes on legal wheels; how those initiated come to dismiss and dispose of inconvenient facts, and reach self-serving and aggrandizing legal conclusions.

Nor is the rest of the profession on the lower levels of the pyramid immune. One professor warned his class, "there will be moments during the course of your career when you will become convinced everyone is an idiot. Everyone!" He's right. In one sense, that is a strength of legal studies and practice. It often affords attorneys a better perspective over how people should rationally behave in a functional society. It is why attorneys often end up taking charge of organizations and institutions, particularly following episodes of dysfunction and decay. It often requires attorneys to re-engineer their own experience to determine how they achieved a clearer vantage others might have missed.

When the law steps into the workplace to determine what constitutes an environment so fraught as to be discriminatory, as to be unlawful, the law brings with it these, its own strengths and weaknesses. In 1991, for example, Judge Kozinski wrote a forward to a tome, "Sexual Harassment in Employment Law," warning about the blunt instrument of litigation for working out issues in the work place.

Introducing the subject, he explained that, whereas there are no good sides to racism or fraud, evaluating sexual behavior in the workplace is more complicated. Setting aside, say, a boss demanding sex in return for work, much of what takes place between men in women is considered positive behavior in other settings.

His essay raises essentially five areas where he foresaw problems: 1. that romance in the workplace is inevitable, not least, due to propinquity, and to the extent law chilled such otherwise normal behavior, it exacts a real cost; 2. that the "she said/he said" nature of workplace disputes plays to the weakness of the adversary system, potentially deterring accusations because of the devastating consequences to the accused and potential ostracism of accusers; 3. much of what is said and expressed in the workplace is, in a different time, place and manner, protected speech under the First Amendment and, therefore, fraught matter for court review; 4. the employer can too easily be placed in the cross-hairs of coworkers, having to untenably balance the rights of each, resulting in outcomes unsatisfactory to all; and 5. litigation might retard women's effort to achieve equality in the work place because sexual harassment law drives a wedge between men and women raising suspicion that ultimately distorts hiring and management decisions, and employee behavior.

Judge Kozinski suggests five alternatives preferable to litigation: 1. moral suasion -- the employer making the case to employees that harassing and demeaning comments are "not cool"; 2. stringent policies against harassment, stated in simple language; 3. employee training; 4. fast, effective, grievance procedure; and 5. that men must exercise restraint and recognize boundaries of propriety, while women "must be vigilant of their rights, but must also have some forgiveness for human foibles: misplaced humor, misunderstanding, or just plain stupidity."

What immediately stands out about the two women who allowed their names to be published, and may be presumed of the other four due to the elite selection process that brought them to his chambers, is how obviously accomplished and brilliant they are. If not quite as famous or influential as their former boss, they all stand together as polished participants near the pinnacle of the legal pyramid. What also stands out is that, in these particular interactions, easy access to analytic prowess such as displayed by Judge Kozinski, and the hypertrophic analytic structures and accumulated case histories of Title VII failed all seven.

The account of one former clerk on #MeToo, Courtney Milan, signed under her pen name Heidi Bond, supplies some of the missing ingredients: her account of relevant facts, and her attendant subjective experience. As may be expected of someone who clerked at the highest levels, including the Supreme Court, but who lateraled into a career as a prolific author of romance novels, her words make for incisive, gripping reading. She reports at least three instances of the judge quizzing her about porn images and her reactions thereto. Regarding the power dynamic, she relates how he ordered her not to read romance novels, which he regarded as "a terrible addiction, like drugs, and something like porn for women," even if read only on her break.

When she pushed back, Judge Koziniski ordered her not to read them anymore. "I control what you read," he said, "what you write, when you eat. You don't sleep if I say so. You don't shit unless I say so. Do you understand?" In another instance, he implied that the correct metaphor for her employment relationship with him was not just that she was his indentured servant, but his slave. Judge Kozinski subsequently lamented that he wished this member of his professed extended family "could have talked to me about it." Her account gives compelling reason why one in her position could not, would not and should not.

One common way to dismiss such a portrayal of a hostile environment is to cast it as a high-spirited one. It is to admit the factual basis, but note the alleged victim's failures in filtering out the implied irony, humor and raillery. In one sense, an environment without ingredients such as sarcasm or tomfoolery makes for a bleak house. But cynicism and double entendre cut both ways. John Stuart Mill wrote in "The Subjection of Women," "Whether the institution to be defended is slavery, political absolutism, or the absolutism of the head of a family, we are always expected to judge of it from its best instances; and we are presented with pictures of loving exercise of authority on one side, loving submission to it on the other -- superior wisdom ordering all things for the greatest good of the dependents, and surrounded by their smiles and benedictions."

Given that, as Mill also famously remarked, "absolute fiends are as rare as angels," the task remains to distinguish right from wrong, permissible speech from impermissible coercion. Here, careful research, exegesis or, in Hamlet's words, drinking deep is unnecessary. People in the workplace want to work, then go home -- not look at porn with the boss. If one accepts this simple premise, Judge Kozinski is someone about whom the aforementioned professor warned his students.

After the story broke, Judge Kozinski told the LA Times, "I don't remember ever showing pornographic material to my clerks" and, "if this is all they are able to dredge up after 35 years, I am not too worried." Who "they" might be is left ambiguous. If his otherwise dismissed anxiety is for his job, he's correct. For 67 senators to pass judgment and impeach him, they would seemingly have to confront the far more serious allegations against the sitting president. As for loci where such heightened concern might be better placed, there are several. At least six.