Revisiting David Lat’s “Supreme Ambitions” in light of the Kozinski scandal

by Peter Conti-Brown — Thursday, Dec. 21, 2017

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.

 

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Peter Conti-Brown

Conti-Brown is an assistant professor at The Wharton School of the University of Pennsylvania. A historian and a legal scholar, Conti-Brown focuses on central banking, financial regulation, and public finance.

3 thoughts on “Revisiting David Lat’s “Supreme Ambitions” in light of the Kozinski scandal

  1. A Lawyer

    Peter, as a lawyer who practices in the 9th Circuit I am dismayed over another aspect of Judge Kozinski’s career that is being overlooked: his behavior on panels during oral arguments. Admittedly, this is less important than the dozens of careers of brilliant young, female lawyers who he negatively impacted because of his apparent inability to refrain from abusing his immense power over female law clerks. Still, it seems like we are ready to move on from the Kozinski era without even commenting on what is and is not appropriate judicial behavior during oral arguments, in a time period when these proceedings are literally on full display on YouTube (the 9th Circuit has published all of its OAs there for a few years now). Judge Kozinski is widely described in the national media right now as “one of the nation’s most influential judges.” Why shouldn’t this matter?

    If one goes through the hours of video footage available on YouTube, they will notice numerous instances of Judge Kozinski berating appellate lawyers, insulting them, mocking them, and frankly wasting the panel’s time with what is affectionally called his “irreverent” style of questioning. In such instances, the judge is doing nothing to promote the rule of law, much less civility in the legal profession. And no one calls him out on it. Lawyers (like myself) are too fearful of consequences for their clients and cases to say anything, either during such an oral argument or afterward. (I do not wish to use my real name on your blog for that reason.) Not once did I ever hear a fellow panelist judge during such an oral argument speak up to shut Kozinski down during his rampage.

    Is it appropriate for appellate judges to behave disrespectfully toward lawyers during oral arguments? I don’t think it was a hundred years ago or fifty years ago, but I definitely don’t think it is in 2017 when oral arguments are on display to the public at large.

    Reply
  2. dontask me

    Most federal judges insult and mock lawyers on a daily basis. That’s why they don’t want cameras in the courtroom.

    Reply

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