The Kozinski drama has been a tragic one on so many levels. Most importantly, if what is alleged is true–and given the nature of the reporting, I’ve seen no reason to doubt it–one of the most prominent judges in the United States has waged a multi-decade campaign of corrosive sexual harassment and assault on clerks, lawyers, professors, and others in his orbit. And it seems to have gone on with at least the implicit acceptance of many around him. There are no winners in the announcement of Kozinski’s resignation.
Besides knowing many Kozinski friends and former clerks, my one brush with the sordid affair was in the pages of this blog. Back in 2014, I debated Will Baude on the ethics of law clerks who disagree with their judges. David Lat’s novel, Supreme Ambitions, motivated the debate (you can read our back and forth and back at these links).
One of Lat’s heroes in the book is Judge “Polanski,” an obvious stand-in for Alex Kozinski, confirmed by the New York Times in their review, including with a quote from Kozinski himself in praise of the book and his place in it.
But Judge Polanski in the book is, by my lights, at least extremely creepy and at most sexually predatory. I wrote in my review that I hoped “Judge ‘Polanski’s’ constant and creepy attention to the beauty of female law clerks” was “Lat’s odd use of creative license.” But it wasn’t. Not by a wide margin.
To be more specific, Lat’s Polanski calls a female clerk working for a female judge, upon introduction, “a beautiful clerk for a beautiful judge.” He then calls her “flower of my heart.” They engage in what Lat calls “vaguely flirtatious” banter about meeting up in Polanski’s chambers.
Or, consider an exchange between a Polanski clerk and Audrey, the book’s protagonist. After discussing the merits of the notoriously hard-charging clerkship, Audrey and the clerk talk about the personal side:
“Judge Polanski sounds like an amazing boss,” I said. “What’s he like as a person?” Lucia paused. I guessed she preferred talking about the professional over the personal.
“As a person, he has his … quirks. He is not your typical federal appellate judge. For a judge, he crosses a lot of boundaries. His sense of humor can be … irreverent.”
“I sat next to him at the law clerk orientation, and he was very entertaining,” I said. “He regaled me with tales of his childhood growing up in Poland under Communism. Some judges can be distant, but Judge Polanski was so warm and friendly.”
“Of course he was— to you. You’re pretty.”
I could go on, but will stop there. Interested readers should get the book and look at each time Polanski’s name is mentioned. Most are either about what I would regard as predatory, sexualized behavior from Polanski toward those subordinate to him in a rigid hierarchy or about Lat’s (and his characters’) titular Supreme Court obsessions.
To put it differently, Kozinski’s misbehavior was so prominent that it was literally storied. The stories were written by someone who makes Kozinski one of the main heroes. And Kozinski read this–as did many judges on the Ninth Circuit–and thought it a flattering portrayal.
I don’t know David Lat, but hope he will write about this. I’d love to know more about his decisions to be so transparent about Kozinski’s behavior with subordinates in his book while still placing him at the heroic center of his novel.
Later, I’ll write about a central issue in this enabling that relates to the deeper question that confronts all of us connected to this world. And that is the mystique we attach to the federal judicial clerkship and whether those of us on the other side of these positions might do more to walk back some of that unbridled enthusiasm.