9th Circuit outlines post-Kozinski changes

ANAHEIM — Notably absent from the 9th U.S. Circuit Court of Appeal’s annual judicial conference this year has been Alex Kozinski, the court’s boisterous and outspoken former chief judge who retired last year amid published accusations of sexual harassment and misconduct.

But on Wednesday, the conference’s leadership addressed the circumstances surrounding his abrupt retirement and announced changes in the court’s workplace review committee that has been implemented since the scandal broke.

“The incidents that kicked this off took place here,” Judge M. Margaret McKeown said, in an acknowledgment that the 9th Circuit has been a ground zero of sorts for the federal courts in an era that has fundamentally reassessed what constitutes sexual harassment and how institutions should grapple with it.

“But I also want to say that this is not an Alex Kozinski issue,” she continued. “It’s broader than that.”

Chief Judge Sidney R. Thomas, who convened an ad hoc workplace committee, requested that the review of the issue focus on future potential changes rather than serve as a retrospective, McKeown said.

McKeown, who chairs that group and also sits on a similar national committee convened in December by Chief Justice John G. Roberts Jr., highlighted changes the committees have announced in recent months.

Those changes include a revision of the judicial confidentiality policy, the creation of a 9th Circuit director of workplace environment who can counsel judges and employees confidentially on harassment and discrimination issues, as well as a revamp of the court’s mediation process to make it less formal.

“When you’re in an institution like this, where you have judges appointed for life, you have a built-in power imbalance,” she said, foreshadowing a discussion about the unique position the federal judiciary in the midst of the #MeToo reckoning.

“Often I hear judges say, ‘I’m not Harvey Weinstein,’ and I say, ‘I hope not,’ but you don’t have to be Harvey Weinstein to be sensitive to what’s happening in the judiciary,” McKeown said.

McKeown said the committee plans to release a report on its findings within months.

Following McKeown’s remarks, the conference held a panel discussion about the #MeToo movement’s impact on the federal judiciary. Operating in a system built around concepts of deference and collegiality, federal judges are often unaware of objections clerks, employees and other attorneys have to their leadership style, panel members noted.

“We don’t get the constructive criticism we need,” said U.S. District Judge Jeremy D. Fogel, who heads the Federal Judicial Center and is soon leaving the Northern District bench to head the recently established Berkeley Judicial Center.

Though the Kozinski allegations are the only complaints against a sitting federal judge to have been aired publicly in the press recently, McKeown said that complaints of harassment have been reported to her committee and that those allegations are being investigated.

The complaints concern issues of “bullying,” she said, more than overt instances of sexual harassment.

The general problem of harassment in the federal courts is a complex and nuanced issue, observed Slate magazine writer Dahlia Lithwick, a former 9th Circuit clerk.

“This is a problem that should not have been smoked out in the press, because the press is good but not great at doing this kind of fact finding and arriving at conclusions,” she said, adding that it was incumbent upon institutions to observe due process while investigating the claims.

With increased confidentiality afforded to complainants, Central District Chief Judge Virginia Phillips said change can only happen if people speak up. “If I don’t hear about it, we can’t do anything about it,” she told the panel.