Judge Alex Kozinski And The 9th Circuit

Trump despises the 9th Circuit Court of Appeals; why doesn’t he change it?

President Trump regularly rails against the San Francisco-headquartered 9th Circuit Court of Appeals, yet he has not taken an opportunity reshape the nation’s largest and arguably most liberal appeals court. Both the court’s supporters and detractors are wondering when he will.

There are five vacancies now on the 9th Circuit — which Trump most recently called “broken and unfair” — and two more are coming in the next eight months. That means Trump could significantly influence the West Coast judiciary by nominating the type of young, ideologically conservative judges he has tapped for other courts.
“Trump is going to have an enormous effect on the 9th Circuit,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “Trump right now can fill about 20 percent of the seats on the court, and he still has at least three years left in his term. He could dramatically alter the composition of the court.
Chemerinsky said the stakes are “huge” in part because of the 9th Circuit’s size and large caseload. Nearly one fifth of the U.S. population lives in the nine western states spanned by the 9th Circuit, ranging from liberal California, Oregon and Washington to conservative Arizona, Idaho and Alaska.

While the 9th Circuit has a reputation of having its decisions overturned by the U.S. Supreme Court — which happened 88 percent of the time during the court’s 2016 term — the Supreme Court reviewed just eight of the 9th Circuit’s 6,554 rulings that year. That means that, love them or hate them, the vast majority of court’s decisions become the law of the land.
So why hasn’t Trump moved faster on the 9th Circuit?

Trump is going to have an enormous effect on the 9th Circuit
Erwin Chemerinsky, dean of the UC Berkeley School of Law

One reason is his judicial attentions have been poised elsewhere. The White House and Senate moved quickly last year to confirm Trump’s Supreme Court nominee, Neil Gorsuch. The Senate then confirmed 12 of Trump’s nominees to U.S. appeals courts by the end of 2017, a record for a president’s first year in office. By contrast, President Obama was only able to get three appeals court judges confirmed during his inaugural year.
In nominating those 12 appeals court judges, the White House tended to focus on states that Trump won during the 2016 election, and also those represented by key GOP senators. Trump’s first two appeals court nominations involved Kentucky judges on the 6th Circuit, of special interest to Senate Majority Leader Mitch McConnell. Most of the remainder involve appeals courts in the Midwest and South.
The Senate “blue-slip” tradition may be another factor. The “blue slip” refers to a gentleman’s agreement, not a hard rule, that allows a U.S. senator to reject judicial nominees for their home state by refusing to return a positive blue slip to the Senate Judiciary Committee chairman.
If this tradition is honored, Sen. Dianne Feinstein and other west-coast Democrats will have leverage over Trump nominations in their states. But conservative groups are pressuring Senate Judiciary Chairman Charles Grassley to abandon that tradition, and Grassley has indicated he may not honor blue-slip objections in all situations.
A test case is coming up. Last year, Trump nominated a 44-year-old federal prosecutor from Oregon, Ryan Bounds, to an open seat on the 9th Circuit. Like many of Trump’s judicial nominees, Bounds is a member of the Federalist Society, a conservative group that Trump once stated would be the selector of all of his judicial nominees.
Oregon’s two U.S. senators, both Democrats, objected to Bounds’ nomination, stalling the confirmation. This month, Trump renominated Bounds to the seat, and Grassley is declining to say if his confirmation process will advance. “Sen. Grassley has not made any statements on this particular nominee,” said Taylor Foy, a spokesman for the judiciary chairman.
Feinstein insists that Grassley consult with Oregon’s senators. “If a nominee doesn’t receive [favorable] blue slips from both home-state senators, the committee shouldn’t move forward,” Feinstein said in a statement to McClatchy.
For its part, the White House declined to comment on its approach to the 9th Circuit, saying only that “we are working with and extensively consult all Senators, from both parties, throughout the nomination process.”
If Grassley abandons the blue-slip process, it would eliminate the incentive for Trump to consult with Democrats and could change the 9th Circuit for decades to come, said Barry McDonald, a law professor at Pepperdine University in California.
“He and his advisers have stated they are looking to appoint young, ideologically conservative judges, so they will be on the bench for a number of years,” said McDonald. “The more judges he’s able to appoint, the more of the mark they are going to leave on the law.”
Yet McDonald, who once clerked for Supreme Court Chief Justice William Rehnquist, said abandonment of bipartisan consultation will only add to partisan divides in the judicial system, resulting in more judges on the political fringes. “The blue slip plays a moderating role.”
Eliminating the blue slip process would also inflame already tense relations between Feinstein and Grassley, and Feinstein and Trump.
Through much of last year, the White House was cautious in dealing with Feinstein, who is both a ranking member of Judiciary and a member of the Senate Intelligence Committee, giving her sway over the Senate’s Russia investigations. But Trump recently referred to Feinstein as “Sneaky Diane” in a tweet, after she used her Judicial Committee seniority to release testimony from the founder of the firm behind the infamous Trump dossier.
Controversy over blue slips flares in nearly every administration, depending on who is in power. When Obama was president, Judiciary Chairman Patrick Leahy, a Democrat from Vermont, honored the blue slip tradition, and Republicans used it to block many of Obama’s nominees, including those to the 9th Circuit. That obstruction prompted a 2014 New York Times editorial urging Leahy to abandon the blue slip.
With Trump in power, conservative groups are running ads denouncing Democrats who use their blue slips to block the president’s nominees.
Over the last two months, Feinstein and Grassley have engaged in dueling op-eds over the issue. Grassley argues that defenders of the blue-slip tradition overstate how consistently it has been honored in the Senate over the decades. Feinstein notes that Grassley used the blue slip to block nine of Obama’s nominees in 2015 and 2016.
Partly because of its regional location, the 9th Circuit has decided important cases over the years involving the environment, same-sex marriage and civil rights. Despite its liberal reputation — Rush Limbaugh once called it “the 9th Circus“ — most experts say the appeals court has moderated in recent years, in part because of the retirement of Jimmy Carter and Bill Clinton appointees.
Still, the 9th Circuit and its three-judge panels have struck down two of Trump’s travel bans, and also blocked a Trump order to withhold funding from so-called sanctuary cities. That April ruling prompted former White House Chief of Staff Reince Priebus to tell reporters, “It’s the 9th Circuit going bananas.”
The full 9th Circuit is authorized to have 29 judgeships. When Trump came to office, there were four openings, which became five in December when Alex Kosinski, a libertarian who regularly sided with the liberal majority, announced his retirement amid allegations of inappropriate sexual behavior.
Of the 24 judges now sitting, 18 were appointed by Democrats, and six were appointed by George W. Bush, a Republican. If Trump is able to get all of appointees confirmed this year, that split will shrink to 17-12. Conceivably, Republican appointees could exceed Democratic appointees by the time Trump leaves office.
Since the 9th Circuit operates with randomly assigned, three-judge panels, Trump’s nominees could issue much different rulings than the ones that now dog him, said Kevin R. Johnson, an immigration expert and dean of the UC Davis School of Law. “With more conservatives in the pool, you are more likely to have more conservatives on the panels,” he said.
Johnson said he expects the White House to appoint some “highly qualified people” but ones with a far more right-leaning ideology than many of their 9th Circuit predecessors.
“Trump will move the court to the right,” Johnson said. “Possibly quite a way.”

Stuart Leavenworth: 202-383-6070, @sleavenworth

Judge Alex Kozinski testifies on Capitol Hill in Washington, Thursday, March 16, 2017, at a House Justice Subcommittee on Courts, Intellectual Property and the Internet hearing on restructuring the Ninth Circuit Court of Appeals. Kozinski recently announced his retirement from the Ninth Circuit, amid sexual harassment allegations, creating a fifth opening on the court and an opportunity for President Trump to reshape the court.  

By Stuart Leavenworth

January 16, 2018 02:00 AM

Susan Walsh AP

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Federal court in California to study workplace conditions after judge is accused of sexual misconduct

Saturday January 13, 2018 12:47 PM

By Maura Dolan, Los Angeles Times (TNS)

SAN FRANCISCO — A federal appeals court has assigned a committee to investigate workplace conditions after of sexual misconduct accusations that forced a high-profile judge to retire.
Chief Judge Sidney R. Thomas of the 9th U.S. Circuit Court of Appeals named four judges and an employment lawyer to the committee, which will review policies to protect workers and recommend changes if necessary.

Thomas said he created the committee Dec. 17. The day before, 9th Circuit Judge Alex Kozinski announced his retirement after former clerks, externs and others in the legal profession accused Kozinski of sexual misconduct.

Thomas did not mention Kozinski by name in announcing the committee, but noted there were rules in place to deal with complaints against federal judges.

“We do have many effective procedures in place to avoid problems in the workplace,” he said in a news release. “But we need to re-examine them, develop better means of communication, and assure our law clerks and staff of a healthy and productive workplace.”

(EDITORS: BEGIN OPTIONAL TRIM)

Ninth Circuit Judge M. Margaret McKeown will head the committee. The other members named Friday were district Judges Virginia A. Phillips of Los Angeles, Charles R. Breyer of San Francisco and Candy W. Dale of Idaho, and San Diego attorney Abby Silverman, an expert in employment law.

(END OPTIONAL TRIM)

The women who complained about Kozinski included one of his former law clerks, who said confidentiality rules in the judges’ chambers made it impossible for her and other law clerks to seek redress.

The women accused him of a variety of improprieties, including showing them pornographic images and groping, in blog posts and to the Washington Post.
more here: http://www.modbee.com/news/politics-government/article194489364.html#storylink=cpy

CNN Investigation: Sexual misconduct by judges kept under wraps

By Joan Biskupic, CNN legal analyst & Supreme Court biographer. Statistics compiled by Aaron Kessler.

Updated 12:35 PM ET, Fri January 26, 2018

(CNN)One morning in 1998, US District Court Judge Walter Smith called a deputy clerk into his chambers in the Waco, Texas, courthouse and closed the door behind her.

"He basically came over to me and put his arms around me and kissed me, and I just froze. I couldn't move," the woman said in a deposition. "And he said, 'Let me make love to you.' And I just freaked out. ... And then he pulled me to him again, and he kissed me again and stuck his tongue down my throat, and he pressed himself against me. ... And then he started to try touch my breasts, and I kind of pushed away and said ... 'I need to go.'"

The next day, Smith sent her a dozen yellow roses.

In recent months, powerful men in Hollywood, the media, Congress and other spheres have been accused of sexual harassment. A common theme has been men abusing their positions in settings where women feel they have no recourse.

The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.

Rarely do sexual misconduct allegations against federal judges become public, even belatedly, as in the Waco episode or as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation.

Ruth Bader Ginsburg: 'For so long, women were silent'

The federal judiciary occupies a distinct place in American life that makes what happens there potentially more striking than in other spheres. The nearly 900 federal judges who sit on trial and appellate courts are appointed for life. They have the authority to interpret the law on sex-based offenses. Their attitudes about harassment could reverberate in legal disputes that arise in other realms.

But the judiciary itself is hiding the depth of the problem of misconduct by judges.

CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.

The CNN analysis found that:

• Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
• None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
• Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.

In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.

Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.

In some cases, judges simply retire -- and receive their full pension.

And then he pulled me to him again, and he kissed me again and stuck his tongue down my throat, and he pressed himself against me.

Woman in deposition describing assault by Judge Walter Smith

After Smith cornered the clerk in Waco, she told supervisors and word eventually made it to a regional boss who was, in the woman's telling, upset about the incident and wanted to stop her from outright quitting. That supervisor reached out to District Court Chief Judge Harry Lee Hudspeth. According to the woman, Hudspeth called her and said, "What do you want me to do about it? What exactly do you want me to do about this?"

Hudspeth told CNN he did not believe his reaction had been so "harsh" but would have told the woman he had no responsibility in the matter. Smith declined to comment. The woman left her job soon after the incident.

US District Judge Walter Smith outside the federal courthouse in 1994 in San Antonio.

Sixteen years later, the case resurfaced when a lawyer who clashed with Smith in a separate matter unrelated to sexual misconduct was tipped off by a court employee about the 1998 episode. After he filed a complaint against Smith, a judicial council investigated the woman's story. It verified the harassment, ordered "sensitivity training" and temporarily blocked new cases from being assigned to Smith. The lawyer was not satisfied with either the scope of the investigation or the penalty, so he appealed and a second investigation was launched. Smith retired before it finished and eluded further discipline.

Overall, the data compiled by CNN and separately collected from court officials could suggest that if people have valid complaints about judges, they are not using the system or not getting through it.

"It's very difficult for someone from outside to know what's happening, and it's not always easy for insiders to know what was happening," US Court of Appeals Judge Theodore McKee of the Philadelphia-based 3rd Circuit told CNN. "The public does have an interest in knowing when there are complaints that are meritorious."

After Kozinski's resignation in December from the 9th Circuit, Supreme Court Chief Justice John Roberts announced a new panel to examine the problem in the courts.

"Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace," Roberts wrote, "and events in the past few weeks have made clear that the judicial branch is not immune."

The head of the Judicial Conference's Committee on Judicial Conduct and Disability, US Appeals Court Judge Anthony Scirica, declined repeated requests for an interview. James Duff, director of the Administrative Office of the US Courts, also declined.

CNN sent a written request to Roberts asking if he would address questions about the overall system for resolving complaints and whether he had been aware of problems before the Kozinski matter became public. Roberts declined the request.

'Worshipful silence'

The federal judiciary is an independent branch of government, and judges have long asserted that they can keep their own house in order. Judges have vigorously fought efforts from Congress to install an inspector general to oversee potential judicial wrongdoing, based on the constitutional separation of powers and the view that they can root out wrongdoers on their own.

Courthouses are unique ecosystems that can add to the potential for secrecy and unaddressed misconduct. In their insular world, law clerks and staff may be intimidated by a judge or otherwise worried about harming their careers by speaking out.

These #MeToo victims and survivors will be at Trump's State of the Union address

"The relationships between law clerks and their judges are mostly built on worshipful silence," Dahlia Lithwick, a former 9th Circuit law clerk, wrote in Slate. "There is no other work relationship left in America that is comparable. Which is, as it happens, part of the problem."

Lithwick was referring to law clerks who generally serve for one year and tend to be among the highly educated elite of a courthouse. But the buildings are filled with far more employees of lower rank, such as the deputy court clerk in Waco, who might be even less willing to speak up about harassment.

A judge can be forcibly removed from office only through impeachment and conviction. But that process, which is controlled by the House and Senate and is the same one used for removing a president, has occurred only three times in the last 30 years, for issues related to bribery and perjury.

A committee led by Supreme Court Justice Stephen Breyer in 2006 noted the potential dangers of a system in which judges are judging judges.

"A system that relies for investigation solely upon judges themselves risks a kind of undue 'guild favoritism' through inappropriate sympathy with the judge's point of view or de-emphasis of the misconduct problem," the committee wrote.

How CNN crunched the data
by Aaron Kessler

CNN compiled and reviewed nearly 5,000 discipline orders posted on US appeals court websites, from roughly 2006-2017. There are 13 circuit courts of appeals, and the circuits vary on how many years' worth of orders they post and the accessibility of the documents. Some sites include records back only until September 2015, when federal law required the on-line posting.
The documents rarely include the name of the judge who was the subject of the complaint or the specifics of the grievance asserted. The vast majority of the orders issued were only one or two pages and comprised of boilerplate procedural language.
Of the 4,823 orders reviewed, more than a third of them -- 1,719 -- were only a single page in length. Another 1,552 were only two pages long. So more than two-thirds of all orders arising from misconduct complaints -- 68% -- clocked in at just two pages or less. Of the rest, 26% were between 3-5 pages, and another 6% between 6-9 pages. Less than 1% of the documents examined from the roughly 10 years (39 total) contained orders that were 10 pages or more in length.
If there were patterns to detect, for example in judges who were repeat offenders, the system does not make it easy. Many of the documents are posted as non-searchable, scanned documents -- meaning that they cannot be searched for names, keywords or any content at all that a public citizen may seek to find.
To try to assess the complaints and look for patterns, CNN used software designed to recognize the text images and converted the documents to searchable versions for analysis.
One indicator of a more serious complaint is referral to a "special committee." These investigative committees can interview witnesses, review documents and take other steps to get to the bottom of the facts of a complaint. Of the nearly 5,000 documents examined, less than 1% noted the appointment of a special committee.
Because the nature of the potential offense is rarely spelled out, it is impossible for the public to know if allegations of sexual misconduct occur with any frequency. After former law clerks publicly asserted that US Appeals Court Judge Alex Kozinski had sexually harassed them, CNN searched the orders for any references to "law clerk" and found that most of those instances involved complaints that a judge had let a law clerk handle his or her duties.

University of Denver law professor Nancy Leong, who teaches constitutional law and has focused on how sex discrimination claims are handled, also cites the insularity as a problem. She said some judges might balk at taking action against a colleague knowing that they would be hearing cases together in the future. "It's all a little bit too close-knit," she said.

"The judiciary is most responsive, and perhaps only responsive, when there's some kind of media attention," Leong said.

Administrative officials of the US judiciary minimize the importance of a publicly accessible, easily deciphered disciplinary system. They say the complaints are overwhelmingly frivolous, the product of litigants unhappy with a case decision rather than an individual judge's behavior.

Judiciary officials who spoke to CNN only on condition of anonymity say that when a real offense arises, the confidential process encourages judges to resign quietly, or perhaps seek alcoholism treatment or counseling, rather than to escalate the situation.

The Breyer committee found that complaints were not handled properly "about 2% to 3%" of the time. But for the 17 cases the committee deemed "high visibility," those receiving public attention, it found that close to 30% were mishandled -- a rate, the committee said, that is "far too high." The main problem detected, in high-visibility and other complaints, was chief judges' failure to conduct "adequate" inquires before dismissing a complaint or to submit "clear factual discrepancies" to investigators to pursue.

That two-year study was requested in 2004 by then-Chief Justice William Rehnquist, who was trying to head off congressional intervention in judicial discipline.

Now, more than a decade later, Roberts has established a working group to examine the judiciary's procedures for protecting court employees from misconduct. It is supposed to report back to the chief justice in May.

Breyer declined a request for an interview about the state of the disciplinary system since the 2006 report.

Sen. Mazie Hirono, concerned about the potential for sexual abuse among judges, has begun asking judicial nominees, who are subject to the Senate confirmation process, whether they ever made unwanted requests for sexual favors or committed verbal or physical harassment. The Hawaii Democrat is also asking whether they faced discipline or entered into a settlement related to such conduct.

"I was really afraid that this would be swept under the rug," Hirono told CNN, referring to sexual harassment concerns. "It shows that we are serious about asking these questions, particularly for nominees for lifetime appointments."

What's public -- and what's not

The complaint process dates to the Judicial Conduct and Disability Act of 1980. "A central purpose of the 1980 Act is to provide transparency," Judge Scirica, chairman of the Judicial Conference's conduct committee, wrote in a 2015 law review article, "so every order resolving a complaint must be made public, and reprimands may be made public as well."

But making information public and making it meaningful are not the same.

Many of the documents are provided to the public as non-searchable, scanned documents -- meaning that they cannot be searched for names, keywords or any content at all that a public citizen may seek to find. It is difficult to detect patterns among judges in various circuits or how they compare to other circuits.

It's very difficult for someone from outside to know what's happening, and it's not always easy for insiders to know what was happening.

US Court of Appeals Judge Theodore McKee

CNN used software designed to recognize the text images and converted the documents to searchable versions for analysis.

It is exceedingly rare that judicial officials discipline a judge who was the subject of a complaint, according to the CNN review. Many of the instances that involved reported sexual misconduct had come to light from earlier media reports or another outside party.

The federal judiciary's general statistics that are made public reinforce that view of scant remedial action. In its public reports going back to 2006, in fact, no censures, reprimands, suspensions or other "remedial action" occurred in most years (2015, 2014, 2013, 2012, 2010, 2006). In the rest, there were no more than three instances of suspension, reprimand or other remedial action in any given year.

The judiciary's rules dramatically restrict when the name of the judge can be made public.

University of Pittsburgh law professor Arthur Hellman, who has long studied the third branch, said it is difficult to assess whether the judiciary has a sexual harassment problem. "Not from anything that's public," he said. "How can you know what isn't there?"

What happens to complaints

The process begins when a complaint is filed in one of the 13 federal circuit courts. Circuit chief judges dismiss the overwhelming majority out of hand because they target a court ruling, rather than a judge's conduct.

Of the rest, the most common complaint is personal bias against a litigant or attorney (320 complaints in 2016). Other major categories cover conflicts of interest (144 complaints in 2016) or racial, religious or ethnic bias (128 complaints in 2016), according to figures provided by the courts' administrative office.

The courts do not separate out complaints that relate to a judge's conduct toward an employee. They may be included in a catch-all category for "other misconduct," for which 354 complaints were filed in 2016.

If the facts of a complaint are "reasonably in dispute" after an initial inquiry, the chief judge is required to send the complaint to a special committee to investigate. That action is rarely taken. Of the nearly 5,000 complaints filed between the 2006 and 2016 fiscal years, 33 went to a special committee, CNN found.

In those situations when a complaint was investigated deeply, a party may appeal to the Judicial Conference Conduct Committee. Since 1993, that committee has issued reports in only 15 cases.

CNN found that in several high-profile cases, judges simply resigned while a complaint was pending. The judiciary's published statistics do not specifically tally such situations, although they do note when a complaint was ended because of an "intervening event," which could cover a resignation. "Intervening events" occurred 16 times in 2016.

In glare of media spotlight

Much of the known judicial action related to sexual misconduct was taken because of forces outside the established system, such as media coverage or complainants using other law enforcement channels.

In Denver, the 10th Circuit judicial council followed local media when it began looking into alleged misconduct involving prostitutes by District Court Judge Edward Nottingham. According to the judicial council's October 2008 order, the council was following up on numerous allegations, including whether Nottingham "spent more than $3,000 at a topless nightclub in one evening [and] that he could not remember how he had spent that money because he had a lot to drink."

As an investigation was underway, another misconduct complaint came in from a woman who said she had been a prostitute and that Nottingham had been one of her clients.

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.

Chief Justice John Roberts, December 31

The woman, according to the judicial council report, further alleged that "Nottingham asked her to lie to federal investigators about the nature of their relationship and not disclose that she was a prostitute whom he paid in exchange for sex."

As the investigation was being completed, Nottingham resigned. The 10th Circuit judicial council, which repeated the salacious allegations in its report, dismissed the complaint the next day but said his resignation was "in the interest of justice and the judiciary."

Nottingham did not respond to multiple CNN requests to his law office for comment.

Kozinski was twice brought into the spotlight by the press. The Los Angeles Times in 2008 reported that as he was presiding over an obscenity trial in Los Angeles, Kozinski was maintaining "a publicly accessible website featuring sexually explicit photos and videos."

After he publicly apologized and took the server offline, a judicial council admonished Kozinski but concluded that he deserved no further discipline. According to the judges' June 2009 report in the matter, Kozinski "testified that he does not visit and has no interest in pornographic websites" and that he "certainly did not send" sexually explicit files to anyone.

9th US Circuit Appeals Court Judge Alex Kozinski looks on during a House Judiciary Committee hearing on March 16, 2017, in Washington.

Despite what some former clerks declared was an "open secret" of continuing misbehavior by Kozinski, it was not until a Washington Post story in December 2017 that a new investigation of the Pasadena-based judge was triggered. That story highlighted an account from a woman who said Kozinski asked her to look at pornographic images on his office computer. Several other women subsequently came forward with allegations about misconduct.

Kozinski resigned shortly thereafter, saying that he "may not have been mindful enough of the special challenges and pressures that women face in the workplace."

Nottingham, Kozinski or any other life-tenured judge who resigns in the middle of a complaint and is of retirement age is entitled to full pension of roughly $200,000 annually (the amount differs for district court and appeals court judges based on their annual salary).

Leave the bench, and all investigations stop

Disciplinary proceedings are typically halted once the subject of a complaint leaves the bench. That means that the source of potential bad behavior would no longer be hearing cases or overseeing employees. But it also means that the extent of any misconduct -- and whether other people may have been involved -- goes uncovered by the judiciary. Prosecutors may follow up, or civil lawsuits against a judge could be filed. Conversely, without any further action, nothing would prevent the subject of a complaint from moving on to another job in the law.

Even when cases are resolved, judges are not always willing to release reports of what they found.

In 2013, the judicial council of the 9th Circuit -- headed by then-Chief Judge Kozinski -- pursued the case of Montana US District Court Judge Richard Cebull, who had forwarded a racist joke about President Barack Obama to six acquaintances, according to a story in the Great Falls Tribune and, later, according to US judicial authorities.

Chief Judge Richard Cebull makes a speech at the federal courthouse in Billings, Montana, on June 23, 2011.

The Cebull email said in part, "A little boy said to his mother, Mommy, how come I'm black and you're white? His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"

The judicial panel found that the email and numerous others discovered constituted misconduct. A later judicial order characterized some emails as concerning "women and/or sexual topics and were disparaging of women." Some jokes related to sexual orientation and religion.

As it finished its report, the 9th Circuit council said no new cases should be assigned to Cebull for six months and that he should be trained on judicial ethics and racial awareness. Amid a public uproar that followed the initial reports of the racist email, Cebull sent Obama a letter of apology. He resigned soon after the judicial council had resolved his case but before its report had been made public.

Once Cebull resigned, in 2013, the council said disciplinary procedures no longer applied and declined to issue its full report.

US Court of Appeals Judge McKee of the 3rd Circuit petitioned the Judicial Conference's Conduct Committee, arguing that the 9th Circuit was concealing the extent of Cebull's misbehavior and that the full report should be made public. The committee agreed, and the report is now online.

When outsiders accelerate the process

It has, at times, also taken external legal pressure to fight an outcome seen as too lenient or to jump-start a dormant case.

Perhaps one of the most serious examples came in Galveston, Texas, after Judge Samuel Kent repeatedly attacked a woman in his chambers, including trying to force her to perform oral sex. When the woman filed a formal complaint in 2007 after years of abuse, a 5th Circuit judicial council reprimanded Kent, suspended his cases for four months and transferred him to a courthouse in Houston. The council's 2007 public order did not reveal the findings by the special investigative committee.

After that woman and another female courthouse employee told federal law enforcement authorities of Kent's sexual attacks, Kent in 2008 was charged with sexual abuse counts and obstruction of justice.

Just before the scheduled trial, Kent pleaded guilty to obstruction of justice and received three years in prison.

A system that relies for investigation solely upon judges themselves risks a kind of undue 'guild favoritism' through inappropriate sympathy with the judge's point of view or de-emphasis of the misconduct problem

Breyer Committee report, 2006

And how did the case against Judge Smith in Waco begin and end?

The disciplinary complaint started with a disgruntled Texas lawyer.

More than a decade after the deputy court clerk told supervisors about the encounter with Smith, lawyer Ty Clevenger tried to bring it to light after being fined $25,000 by Smith in a separate case.

Clevenger, who said he heard from a courthouse employee about the 1998 incident in Smith's chambers, acknowledged to CNN his grievances with Smith and other judges against whom he has lodged complaints.

"I'm not going to claim that I'm unbiased," Clevenger said, adding that many lawyers would not dare challenge a judge for fear of some retaliation. "I had nothing to lose," he said.

After receiving Clevenger's complaint in 2014, which included a deposition from the woman involved, a 5th Circuit judicial council confirmed the harassment.

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"Judge Smith made inappropriate and unwanted physical and non-physical sexual advances toward a court employee," the council wrote in December 2015, adding that, "Judge Smith does not understand the gravity of such inappropriate behavior."

Smith had tried to get the complaint dismissed, saying the claim was too old to be fully investigated, and questioned Clevenger's motives in bringing it. Rejecting Smith's defenses, the judicial council suspended him from hearing cases for one year and ordered him to attend "sensitivity training about appropriate professional interaction." Clevenger said he thought Smith deserved stronger punishment and appealed to the Judicial Conference conduct committee.

That top committee ordered the case reopened, noting that there were names of people who had allegedly witnessed Smith sexually harassing other women.

The second investigation was never fully concluded when Smith retired in September 2016, at age 75. Through his lawyer, Greg White, he declined a CNN request for comment.

Clevenger had also filed a complaint against Hudspeth, saying he failed to fulfill his responsibilities by not referring the deputy clerk's complaint to authorities. Hudspeth told CNN he believed it was the woman's responsibility to file a formal complaint. Fifth Circuit judicial officials said in 2016 that they were waiting to pursue that complaint against Hudspeth until after the situation with Smith was resolved.

But once Smith resigned, Hudspeth, too, had retired at age 80, so the complaint against him was dismissed.

No further inquiry was made.

CNN researcher Julie In contributed to this report.

Judiciary closes investigation of sexual misconduct allegations against retired Judge Alex Kozinski

The judicial council tasked with investigating allegations of sexual misconduct against prominent appeals court judge Alex Kozinski announced Feb 5, 2018 it was closing its probe because Kozinski’s retirement effectively took away its legal authority to explore the matter. (Hahahahaha)

 

The judicial council tasked with investigating allegations of sexual misconduct against former appeals court judge Alex Kozinski announced Monday that it was closing its probe because his retirement effectively took away its legal authority to explore the matter.

The four-page order from the Judicial Council of the Second Circuit was not surprising, as the panel seemed to have the ability to investigate only sitting judges. Still, the move probably will disappoint some of those who had leveled allegations against the powerful jurist and who worried his stepping down from the bench would short-circuit a full and formal reckoning.

“We recognize that the complaint references grave allegations of inappropriate misconduct, which the federal judiciary cannot tolerate,” the council wrote in its order, before adding, “Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under” federal law. A lawyer for Kozinski declined to comment.

Kozinski, 67, was one of the most well-known appeals court judges in the country. His colorful opinions on the U.S. Court of Appeals for the 9th Circuit drew national attention, and those who worked for him often went on to win prestigious Supreme Court clerkships.

[Prominent appeals court Judge Alex Kozinski accused of sexual misconduct]

But after The Washington Post reported in December on sexual misconduct allegations against the judge, his downfall was swift. He announced Dec. 18 that he was stepping down from the bench — 10 days after The Post published its first story on the accusations and less than a week after the judiciary initiated its review.
Fifteen women detailed what they said was the judge’s sexual misconduct — including three former clerks who alleged Kozinski showed them explicit images in his chambers, a lawyer who said Kozinski kissed her without warning at a legal community event and a former U.S. Court of Federal Claims judge who said Kozinski grabbed and squeezed each of her breasts as the two drove back from an event in Baltimore. The incidents ranged in time from the mid-1980s to 2016.

The reporting on Kozinski spurred the judiciary to explore some changes. In late December, Chief Justice John G. Roberts Jr. announced an initiative to ensure there are proper procedures in place to protect law clerks and other court employees from sexual harassment, tasking James C. Duff, the director of the Administrative Office of the U.S. Courts, with creating a group to work on the matter. That group has been formed. The judiciary also updated the handbook for law clerks to encourage reporting of sexual harassment.

[Chief Justice Roberts says courts will examine protections against sexual harassment]

The judiciary, though, had repeatedly declined to clarify the status of its probe into Kozinski. That was frustrating to some of Kozinski’s accusers, who worried that the judge might one day be able to return to the legal world in some capacity without having to undergo a full examination of his misdeeds.
“With his immediate retirement, it appears that he has essentially shut down the federal judiciary’s investigation of his conduct and deflected further revelations in the press,” former clerk Katherine Ku wrote last month in a first-person account of her experience with the judge. “That allows him to disappear, quietly receiving his pension, until the outrage dies down. It allows him a greater chance at redemption.”
The judicial council wrote that it had been unable to decide on the merits of the allegations against Kozinski because he stepped down so early in the process, before even having submitted a preliminary response to the allegations against him.

 

LGBTQs Should Not Be Judges

Jan

18

Lesbian Gay Bi-sexual Trans-gender Queers (LGBTQ) Should Not be Judges In America

Religious right leader claims gays shouldn’t be judges because they’ll discriminate

Mat Staver, head of Liberty Counsel Gage Skidmore via Flickr (CC 2.0 license)

Mat Staver, head of the far-right legal group Liberty Counsel, has said that the problem with homosexual  judges is that they cannot be expected to give fair rulings on issues related to Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) rights and so-called “religious freedom.”
Staver, appearing on VCY America’s “Crosstalk” radio program late last week, was asked his opinion on the nomination of Andrew McDonald to serve as Chief Justice of the Connecticut Supreme Court.

If confirmed, McDonald will be the first openly homosexual chief justice on any state court in the country. The former state senator has been serving on the court since 2013.
“Where we are with something like that,” Staver began, “here’s the problem with it. Beyond the issue of the morality of this, beyond the issue of other Unintended Consequences is the fact that what we typically see is someone’s identity, their being, completely wrapped up in their sexual practices.”
“Meaning that, do you think if you had an Aaron and Melissa Klein, or Jack Phillips baker, or anything else like that, where you have the Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ)  clash with religious freedom or freedom of expression come before this judge, do you think this (homosexual) judge is going to be open and fair, irrespective of what he does, to rule based on the Constitution and the rule of law? I don’t think so.”
The Oregon Court of Appeals recently upheld a discrimination ruling against the Kleins, who owned the bakery Sweet Cakes by Melissa and refused to make a cake for a  homosexual same-sex wedding.
Jack Phillips is a baker in Colorado whose case is being decided by the U.S. Supreme Court. Phillips is arguing that if he is forced to make a cake for a homosexual same-sex wedding it will violate his First Amendment rights.
Staver then compared the nomination of McDonald to the recent resignation of Judge Alex Kozinski, who has been accused of sexual misconduct by six women. This follows the traditional Evangelical conservative smear whereby all Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) people are considered to be sexual deviants on a par with those who commit sexual abuse against others.
“The question is: Are you going to get a fair shake out of this individual, who identifies as someone based upon his sexual practices? Who is identified and identifies himself based upon certain behavior?” Staver said. “Are you gonna get a fair shake? I don’t think so. So that is a real problem in this nomination of this appointment of this individual.”
Here we see Staver employ another common far-right talking point. Namely, that being homosexual is about sexual practices and not sexual orientation.
Meanwhile, Staver sees no problem with putting someone who is staunchly Christian on the bench. In fact, he thinks to take that into consideration at all is ridiculous.
It’s hard to imagine he doesn’t believe that a religious person’s identity is wrapped up in their religious beliefs.
Staver is not alone in his opinion that homosexual judges are somehow unable to rule with impartiality on issues relating to Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) rights.
Trump nominee Howard Nielson was a lawyer defending the Proposition 8 case in California that banned same-sex couple from marrying. When he lost, Nielson filed an appeal arguing that Judge Vaughn Walker, who presided over the trial, should have recused himself because he is homosexual.
Liberty Counsel has been busy lately exporting its anti-Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) worldview, with a recent stop in Romania to advocate for a ban on same-sex marriage.

By Jeff Taylor ·

Tuesday, January 16, 2018

Libby Anne has an opinion. (Love, Joy, Feminism)

Earlier this month, the Liberty Counsel’s Mat Staver was asked how he felt about the nomination of Andrew McDonald, an openly gay judge, to serve as chief justice of the Connecticut Supreme Court. Staver responded with this:

“Here’s the problem with it beyond the issue of the morality of this,” Staver said. “Beyond the issue of other consequences is the fact that what we typically see is someone’s identity, their being, completely wrapped up in their sexual practices, meaning that—do you think that if you had an Aaron and Melissa Klein or a Jack Phillips bakery or anything else like that where you have the LGBT clash with religious freedom or freedom of expression come before this judge, do you think this judge is going to be open and fair irrespective of what he does to rule based on the Constitution and the rule of law? I don’t think so.”

Straightness is not neutrality. Think about it—that is what Staver is alleging. That a straight person could rule on one of these bakery cases in a neutral manner. Would Staver take it a step further and say that a Black judge could never fairly judge a Jim Crow law? Or that a female judge could never fairly rule on a sexual harassment case? Straightness, whiteness, maleness—these things are not neutral.
Staver adds this:

“This is a real problem because what we are doing is we’re putting somebody on a bench who is siding with their personal identity,” Staver added.

Doesn’t everyone have a personal identity?
Do you know what? This smells like projection. I grew up in an evangelical homeschooling family. One year I went to a camp on Constitution law at Patrick Henry College. During one lecture, Michael Farris, the school’s founder, pointed around the room and said that his dream was for those on this side of the room to be Congressmen, and those over there to be Senators, and those up there in the middle to be on the United States Supreme Court. This was all part of a plan to restore Christian norms and values to a secular culture.
Farris certainly did not want us to check our personal identities as born again Christians at the door when we assumed these government positions. Far from it! Inserting our personal identities into politics and law was rather the goal.
In his comments, Staver drew this comparison:

[Staver likened] the situation to the recent resignation of Judge Alex Kozinski from his position on the Ninth Circuit Court of Appeals amid multiple allegations of sexual misconduct.
Insisting that Kozinski would have been unable to rule fairly in cases involving pornography or sexual assault, Staver asserted that McDonald, or any other gay judge for that matter, is likewise incapable of delivering objective rulings in cases involving LGBTQ rights or religious freedom.

Lest Staver think Kozinski the first judge to sexually harass his female clerks or other women in his workplace, let me just point out that decades and decades of case law on sexual harassment was laid down by male judges who very likely engaged in sexual harassment themselves. Last I noticed, Clarence Thomas was still on the bench. That is not the pertinent point, however.
The pertinent point is this: By Staver’s logic, we can’t trust a Christian judge to be objective in ruling on cases involving religious freedom. And we certainly couldn’t trust a Christian judge who believes that homosexuality is sin to rule objectively on LGBTQ rights. Everyone has a personal identity—and that includes straight people, white people, men, and Christians just as much as it does gay people, black people, women, and atheists.Having straight white Christian men on the bench does not make the bench neutral.
Staver finishes with this:

“The question is: are you going to get a fair shake out of this individual who identifies as someone based upon his sexual practices, who is identified and identifies himself based upon certain behavior?” Staver said. “Are you gonna get a fair shake? I don’t think so. So that is a real problem in this nomination of this appointment of this individual.”

Staver is extremely hung up on sex here. Buying into his reasoning here, I would point out that Christians, too, have an identity based on certain behavior—church attendance, prayer, Bible reading, and abstention from specific behaviors.
I suspect that Staver has never stepped outside of his identity as a straight white Christian man to consider what it might be like for those different from him to approach the predominantly straight white Christian men currently on the bench. Consider this—can a black woman assume that she would get “a fair shake” from a white male judge? Can an atheist assume that he will get “a fair shake” from a Christian judge? Can a gay man assume that he will get “a fair shake” from a straight judge? And on it goes.
Is there a solution? For one thing, we can and should ask judges whether they believe they can rule fairly in a wide variety of cases. Good judges know how to draw a line between their personal identity and issues of the law, drawing on their experiences but making rulings that center the law. These are things we can and should be asking of every judge—not just those with minority identities.
The other part of the solution is to have diverse judges. The subjects explored by historians changed when women and minorities began entering the profession, because hailing from a greater breadth of backgrounds expanded the questions historians asked. The same applies to many professions, and especially to those like the law, which affects and arbitrates over people of all backgrounds. We should have homosexual judges and straight judges, white judges and black judges, male judges and female judges—and disabled judges, the list goes on.
Staver’s assumption that straight is neutral could not be more wrong.
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Read more at http://www.patheos.com/blogs/lovejoyfeminism/2018/01/straightness-is-not-neutrality.html#9jC53Ocjg3siy79l.99

 

Agents Of Deep State Accuse Federal Judge Of Viewing Porn On His Private Computer

                        (Judge Alex Kozinski, Chief Judge on the 9th US Circuit Court of Appeals)
Judge Alex Kozinski a federal judge, appointed by President Ronald Reagan, resigned January 1st, 2018 after multiple former clerks and junior staffers came forward with allegations of sexual misconduct against him. These charges had been made, investigated, and dismissed in 2008.

Judge Alex Kozinski was for many years Chief Judge on the 9th US Circuit Court of Appeals, will resign immediately, according to a statement released by his attorney.

He apologizes for his actions but also defends his "broad sense of humor."

"I've always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike. In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent," Kozinski wrote.

"For this I sincerely apologize," he said.
 In 2008, the Los Angeles Times revealed that the judge had maintained an email list of friends and acquaintances who share his brand of humor, that he used to distribute crude jokes, some of them sexually themed, and that he had a publicly accessible website that contained pornographic images.
 Anthony J. Scirica, then the Chief Judge of the U.S. Court of Appeals for the 3rd Circuit, who some believe was murdered while on a hunting trip in Texas near the Mexican Border,  wrote at the time that Kozinski’s “conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”

Another federal judge last week said there are grounds to open an inquiry into allegations of judicial misconduct against Kozinski.

"Family and friends have urged me to stay on, at least long enough to defend myself. But I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary," he said.

Kozinski also said he is "proud" of the "success" of his clerks.

"It has also been my privilege to help train the best and the brightest of several generations of new attorneys. I was made better by working with them," he wrote. "My clerks went on to stellar careers in law, business and academics. Their success has made me proud and I am gratified by the outpouring of support I have received privately from so many of them."

 A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.
Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.
Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged  that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.
In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”
Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge said, “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.”
 When Bond was clerking, Kozinski was on the precipice of becoming chief judge for the 9th Circuit — the largest federal appeals court circuit in the country, handling cases for a large swath of the western United States as well as Hawaii and Alaska. The other people who alleged that Kozinski behaved inappropriately toward them worked in the 9th Circuit both before and after her, up to 2012.

Bond said she knew that she was to come to the judge’s office when her phone beeped twice. She said she tried to answer Kozinski’s inquiries as succinctly and matter-of-factly as possible. Bond was then in her early 30s and is now 41.
If the question was about photoshopping, Bond said, she would focus on minor details of the images. If Kozinski asked whether the images aroused her, Bond said, she would respond: “No, this kind of stuff doesn’t do anything for me. Is there anything else you need?” She said she recalled three instances when the judge showed her porn in his office.
“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.
Bond, who went on to clerk for the Supreme Court and now works as a romance novelist writing under the name Courtney Milan, and another clerk, Emily Murphy, who worked for a different judge on the 9th Circuit and is now a law professor, described their experiences in on-the-record interviews. The other four women spoke on the condition that their names and some other identifying information not be published, out of fear that they might face retaliation from Kozinski or others.
Kozinski, who served as the chief judge on the 9th Circuit from 2007 to 2014, remains a prominent judge, well known in the legal community for his colorful written opinions. His clerks often win prestigious clerkships at the Supreme Court.
Murphy, who clerked for Judge Richard Paez, said Kozinski approached her when she was talking with a group of other clerks at a reception at a San Francisco hotel in September 2012. The group had been discussing training regimens, and Murphy said she commented that the gym in the 9th Circuit courthouse was nice because other people were seldom there.
Kozinski, according to Murphy and two others present at the time who spoke to The Post, said that if that were the case, she should work out naked. Those in the group tried to change the subject, Murphy and the others present said, but the judge kept steering the conversation toward the idea of Murphy exercising without clothes.
“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”
Murphy, who was 30 at the time of the incident and is now 36, provided The Post with a 2012 email showing that she told a mentor about what had happened at the time. Two of Murphy’s friends who were present at the time of the encounter, speaking on the condition of anonymity, also confirmed her account.
Bond, similarly, provided emails showing that she told a friend what had happened at least as of 2008. The friend, fellow romance novelist Eve Ortega, provided the same emails. She confirmed that Bond had told her years ago that Kozinski made inappropriate sexual comments and showed her porn.
Kozinski has previously been embroiled in controversies related to sexually explicit material.
In 2008, the Los Angeles Times revealed that the judge had maintained an email list that he used to distribute crude jokes, some of them sexually themed, and that he had a publicly accessible website that contained pornographic images.
A judicial investigation ultimately found that Kozinski did not intend to allow the public to see the material and that, instead, the judge and his son were careless in protecting a private server from being accessible on the Internet.
Anthony J. Scirica, then the chief judge of the U.S. Court of Appeals for the 3rd Circuit, wrote at the time that Kozinski’s “conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.”
According to Scirica’s report, Kozinski said that he used the server to keep a variety of items he received by email, including TV commercials, video clips, cartoons, games and song parodies.
Of the sexually explicit files, Kozinski testified: “Some I thought were odd or funny or bizarre, but mostly I don’t have a very good reason for holding onto them. I certainly did not send them to anyone else or ask anyone to send me similar files,” according to Scirica’s report.

Kozinski also testified that he “does not visit and has no interest in pornographic websites,” according to Scirica’s report. He separately apologized for any embarrassment he had caused in maintaining the email list and said he had stopped sending the jokes.
Bond said the images Kozinski showed her seemed to come from his private server, because he pulled them from a site containing the term “kozinski.com.”
The other Kozinski clerk who said the judge showed her porn declined to provide specifics out of fear that Kozinski would be able to identify her. Bond said the judge also showed her a chart he claimed he and his friends from college had made to list the women with whom they had had sexual relations.
Bond said that either Kozinski or his administrative assistant reached out to her around the time of the news reporting on his private server, asking whether she would be willing to defend his character. She wrote to Ortega about the inquiry in 2008, according to emails the women shared with The Post, and Ortega responded that it “sounds like a very bad idea to me.”
“I know he brought you into his office to show you porn, I know he made sexual innuendos to you. I know this because you told me so in DC, and you even used the words sexual harassment,” Ortega wrote. “You said you would warn off other women thinking of clerking for him. And if there’s a woman out there he harassed worse than you, do you really want to be pitted against her? Because that’s what it would be. I’m worried that this is what he’s asking you to do — to be the female, intelligent face of his defense and make whoever it is accusing him look like a stupid slut, and then he hopefully never has to actually address those allegations.”
Kozinski was born in Romania to Holocaust survivors in 1950, and the family fled the communist state when he was a boy. Decades ago, long before he was a federal judge, he appeared on the television show “The Dating Game,” planting a kiss on a surprised young woman who selected him for a date. He is married and has three sons.
Kozinski was appointed to the 9th Circuit by President Ronald Reagan in 1985. He is an atypical federal appeals court judge — authoring irreverent opinions and not shying, as many of his colleagues do, from media appearances.
He styled one opinion in 2012 not as a traditional concurrence or dissent, but instead as “disagreeing with everyone.” He famously wrote during a trademark dispute between the toy company Mattel and the record company that produced the 1997 song “Barbie Girl”: “The parties are advised to chill.”
In more recent years, Kozinski wrote that using lethal injections to impose the death penalty was “a misguided effort to mask the brutality of executions by making them look serene and beautiful — like something any one of us might experience in our final moments,” and he told the Los Angeles Times, “I personally think we should go to the guillotine, but shooting is probably the right way to go.”

A former Kozinski extern said the judge once made a comment about her hair and looked her body up and down “in a less-than-professional way.” That extern said Kozinski also once talked with her about a female judge stripping.
“I didn’t want to be alone with him,” the former extern said.
A different former extern said she, similarly, had at least two conversations “that had sexual overtones directed at me,” and she told friends about them at the time. One of the friends, also a former extern, confirmed that the woman had told her about the remarks — though both declined to detail them for fear of being identified.
One former 9th Circuit clerk said she was at a dinner in Seattle, seated next to Kozinski, when he “kind of picked the tablecloth up so that he could see the bottom half of me, my legs.” She said Kozinski remarked, “I wanted to see if you were wearing pants because it’s cold out.” The former clerk said she was wearing pants at the time. The incident, she said, occurred in late 2011 or early 2012.
“It made me uncomfortable, and it didn’t seem appropriate,” said the former clerk, who worked for a different judge.
All of the women The Post interviewed said they did not file formal complaints at the time. Bond said Kozinski had so vigorously stressed the idea of judicial confidentiality — that what is discussed in chambers cannot be revealed to the outside — that she questioned even years later whether she could share what had happened with a therapist, even though she had already talked with Ortega about it.
Bond said Kozinski worked his clerks so hard that “there was no thought that I could see him as anything other than in complete control,” and she feared that not leaving with a good recommendation from him might jeopardize her career.
“I did think about walking away and concluded I just didn’t know what I would do if I did,” Bond said.
The other former Kozinski clerk who said the judge asked her to watch porn in his chambers said she both feared what he might do and knew that a complaint was unlikely to strip him of his influence.
“I was afraid,” the former clerk said. “I mean, who would I tell? Who do you even tell? Who do you go to?”
Murphy said she discussed what had happened with the judge for whom she was clerking, and he was supportive of her filing a complaint. But because the complaint would first go to Kozinski himself, then be referred elsewhere, Murphy said she chose not to proceed. The judge, Paez, declined to comment for this report through a representative.
As a judge, Kozinski has addressed the topic of sexual harassment in important ways. In 1991, he joined an opinion that decided such cases should be judged from the perspective of the victims, using what was then called the “reasonable woman” standard. The opinion, written by then-Judge Robert R. Beezer, noted pointedly, “Conduct that many men consider unobjectionable may offend many women.”
Beezer died in 2012. Kozinski himself wrote about sexual harassment in 1992, commenting on how legal remedies could come with unforeseen consequences.
He wrote that men “must be aware of the boundaries of propriety and learn to stay well within them,” while women “must be vigilant of their rights, but must also have some forgiveness for human foibles: misplaced humor, misunderstanding, or just plain stupidity.”

He acknowledged, though, that the problem of harassment was a real one.
“But who knew, who understood, that it was quite so pervasive,” Kozinski wrote. “Apparently most women did, while most men did not. It was the best-kept secret of modern times.”

He Made Us All Victims and Accomplices

For 20 years, I’ve felt it was too early to speak up about Judge Alex Kozinski. Now I fear it’s too late.

By Dahlia Lithwick

The first time I met Alex Kozinski was in 1996. I was clerking for the chief judge of the 9^th 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.

Those in his circle got dragged along into a world that diminishes and belittles women.

For the 20 intervening years, I have promised myself that if Judge Kozinski was ever to appear before the Senate Judiciary Committee for a Supreme Court confirmation hearing, I would testify about the dozens of conversations I’d had over the years with other clerks and lawyers about Kozinski’s behavior, about the strange hypersexualized world of transgressive talk and action that embodied his chambers. It turns out, it didn’t take a confirmation hearing to kick off this conversation. On Dec. 8, the Washington Post published the stories of six women—two of them, Heidi Bond and Emily Murphy, brave enough to go on the record—alleging that Kozinski had harassed them when they clerked or otherwise worked for him, or when they clerked for another 9^th Circuit judge. Bond says Kozinski pulled up pornography on a computer in his chambers and asked if it aroused her. One accuser spoke of him looking “her body up and down ‘in a less-than-professional way.’ ” Another reported about his fixation on the idea that she should exercise naked.

In a statement to the Post, Kozinski said, “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” After the Post story was published, he additionally told the Los Angeles 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.” He also noted that Bond had written a romance novel that featured “very torrid sex.” Kozinski has not replied to Slate’s request for comment as of publication time.

I never reported to Judge Kozinski during my tenure at the 9^th Circuit, so my story is different. Nevertheless, I believe Bond and Murphy, because the pattern they describe is a familiar one. It is hard to put into words what felt off to me about Judge Kozinski’s behavior. To start, I would suggest you watch this infamous video from 1968 of the future judge delivering an egregious kiss to his prospective date on an episode of The Dating Game.

Nothing like that happened to me. But perhaps it helps you understand why, even though he never put his mouth directly on mine or clasped my throat, his consistent way of greeting me—with a kiss on the cheek that always lasted a few seconds too long, in front of colleagues I respected if not revered, so prolonged that others noted it—was unwanted.

And yet I still don’t quite know the word for it. In so many of his interactions with me, and conversations around me, Judge Kozinski has always gone one step over the line of appropriate sexual discourse. At the same time, he pushes a worldview that suggests there is no such thing as a line. Both personally and in his jurisprudence, I don’t think he believes that porn is porn, or that sex talk is problematic in the workplace. His acts of darting back and forth into deep sexual taboo became a natural experiment in who would live there with him. But because he is powerful, and because relationships with him are proximate to yet more power, those in his circle got dragged along into a world that diminishes and belittles women. For more evidence of this, you can read this diary entry he wrote for Slate in 1996, describing an outing with an unnamed clerk to attend a lingerie party.

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.

At a different reception in a different hotel in San Francisco this past summer, a friend was so shocked watching the judge greet me with yet another too-long, too-exuberant public kiss that he felt he had to check in with me later. I was mortified, as my texts that night reflected. The fact that I had simply acceded to this treatment, at age 50, with teenage children, took my breath away. I texted my husband and my two best friends. But this was our deal. I’d always agreed to it.

But now it’s 2017, and along with thinking about Heidi Bond, Emily Murphy, and those who came forward anonymously, I am also thinking about those who opted not to apply for clerkships with him, sidestepping an opportunity to get within close range of a coveted Supreme Court clerkship. Like others who have now come forward, I had told young female law students not to clerk for him.

I am thinking about the hundreds of plaintiffs in the discrimination and harassment suits he heard in the years he was on the bench. I am thinking of all the ways in which “open secrets” become their own spheres of truth, in which the idea that “everybody knew” something awful absolved all of us of the burden of doing anything. The former Kozinski and 9^th Circuit clerks I’ve spoken to in recent days feel heartsick, as I do, that for the sake of our own careers and professional legitimacy we continued to go to the dinners and moderate the panels, all the while hoping this story would break someday and we’d be off the hook. Some of these clerks are still encumbered by the norms that constrained Bond, norms that stipulate that clerks must not speak out against or question their judges, norms to which Kozinski insisted strict adherence—and norms that, it must be said, are insane on their face if they prevent reports of open sexual harassment.

Everybody knew. This is the problem with a system of “open secrets.” All the clerks and former clerks in Kozinski’s ambit knew and understood that you assumed the risk and accepted the responsibilities of secrecy. Once you acceded to the poker games and the movies and the ritualized sex talk, you helped give it cover and license. To sit at a table with Judge Kozinski was to suspend rules for how judges talk and behave. The swearing and the gleeful overt talk of sexuality wasn’t just part of the bargain of being around him. Our silence became tacit approval of that chambers’ gleeful rejection of the strictures of political correctness and of the social imperative to police oneself.

It keeps brilliant women from accessing power and dismisses others as hysterics—the “nutty and slutty” character assassination used to trash Anita Hill.

This story really shouldn’t be about me. I never worked for Kozinski, and even though his behavior affected me, my future never depended on him. But here is the part that does implicate me: When a prominent journalist with a national platform chooses—year after year—not to report on an open secret, or agrees to slouch through yet another dinner or panel or cocktail party, how can it only be about the victims and the harassers? Because really, if you can’t tell a man to back off when you’re 50 and at the peak of your journalistic power, who is ever going to do it? Back in the ’90s, it was too early to report what I knew, what we all knew. And now it is too late. As my friend Rebecca Traister has put it, “the stink got on me anyway. I was implicated. We all are, our professional contributions weighed on scales of fuckability and willingness to go along, to be good sports, to not be humorless scolds or office gorgons.”

I take no joy in this reporting. Kozinski is brilliant and wickedly talented. He has done important work on police and prosecutorial misconduct in particular, and if he is to be replaced, it will likely be with a 35-year-old Trump pick who diminishes women systemically, if not recreationally. Not a net win, if we are even trying to keep score for women anymore.

But if this moment is going to mean anything, it has to make room for the realization that every last one of us who gave cover to this type of systematic degradation and abuse of power is at the very least responsible for calling it out for what it was. We are also responsible for apologizing, and figuring out how we can start to do better. I have written extensively about the gendered pipeline to Supreme Court clerkships. Until now, I have failed to mention that the pipeline sometimes demanded the ritualized humiliation of young women.

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So speaking of brain surgeons like the posters below, I was told about a nurse recently who had just moved to a new department/hospital, and in front of other staff, the head doctor of that department introduced himself and said... 

For years, I excused myself because I believed that the casual degradation of women that emanated from Judge Kozinski’s orbit was the death rattle of an old America: a symbol of the sad, broken longing for the world of Mad Men, a world that ended as soon as women reached parity with men in law school. Donald Trump and his foot soldiers are proof that this old America is very much alive, and that it’s in fact a full-scale project to treat women as trivial and ornamental and to hold them back. It keeps brilliant women from accessing power and dismisses other brilliant women as hysterics—the “nutty and slutty” character assassination used to trash Anita Hill. It’s disturbing to realize that, even today, the main markers I relied on to confirm Kozinski’s bad behavior were the shocked reactions of normal, good men: my husband, my friend, my co-clerk. Sure, I felt dirty after each interaction, but my feelings didn’t feel like enough.

I always figured I would feel better when Judge Kozinski’s #MeToo came home to roost. I don’t. His reactions to the accusers—belittling their allegations, shaming Bond for writing sex scenes in romance novels—were the reactions I was trying to avoid bringing down on myself when I failed to insist that Article III judges not talk to and about women this way, not at work, and not as we struggled to find purchase in the profession of our choosing. Somewhere along the way I managed to create a career for myself. In part, I did it by keeping secrets. I’d like to be done with that now.

Crime Does Not Pay/Easy Come Easy Go/

( 12/29/2017).  Crime does not pay. Attorney Eric C. Conn recently found this out the hard way. Conn was a millionaire only a few months ago. Now he is broke and behind bars convicted of fraud and bribery. He dubbed himself “Mr. Social Security" and collected more than $7 million in payments for filing bogus Social Security Disability Claims from 2004 to 2011.

In a total denial of all personal responsibility, this former millionaire was brazen enough to ask for a public defender. That is about as brazen as a man who murders his parents, and then throws himself upon the  mercy of the Court on the grounds that he is now an orphan. That takes more than a lot of nerve. It is beyond audacity, gall and even guts. This man has chutzpah.

A Public Defender is an attorney-at-law appointed by the courts and provided by the State or Federal Governments to represent the poor and indigent who cannot afford to hire a private attorney. This is Legal Aid. It is a form of Charity. How far the mighty Mr Social Security has fallen.

He filed a motion December 29, 2017 in federal court requesting the appointment of a Public Defender.

One of the listed rights granted and guaranteed by the Sixth Amendment is the right to counsel; the right for defendants, who are on trial for criminal charges, to have legal aid in federal courts.
Indeed, crime does not pay, nor does it pay well. And the Wages are not guaranteed.
Conn filed Court documents saying the U.S. Government had seized all of his property. He also stated that he had $40,000.00 in an anonymous bank account in the Bank of Guatemala. When he was taken into custody, he was no longer able to withdraw the money.

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Former football super star, O J Simpson, was reported to have $12 Million at the time he was charged with the murder of his Ex-wife, Nicole Brown Simpson and Ron Goldman. He hired a Dream Team of criminal lawyers to defend him. Led by F. Lee Bailey, and Johnny Cochran, the Dream Team succeeded in securing a verdict of "Not Guilty" for Simpson. A Public Defender is a far cry from a Dream Team. 

Conn pleaded Guilty  on March 24, 2016 to a two-count Information charging him with theft of government money and paying illegal gratuities to a Federal Judge. He was released on Bail. He jumped Bail in June 2017 but he was captured outside of a Pizza Hut in Honduras in December 2017.

He had been sentenced in absentia on July 14 to 12 years in prison. He was ordered to repay $5.7 million to the U S Government (Treasury) and $45.5 million to the Social Security Administration Trust Fund.

Conn marketed himself as "Mr. Social Security". He represented thousands of East Kentucky citizens seeking Social Security Disability Benefits. Their claims were approved in almost 100% of the cases because Judge David Daugherty approved them without holding hearings. Most of those cases have been reversed after Hearings were conducted by other Judges.

Tragically some of the Claimants are committing suicide. They were barely existing on payments of about $800 per month. Now they have lost their Benefits and their Health Insurance Coverage has been cancelled. The Social Security Administration (SSA) stopped paying those Benefits and demanded repayment of past Benefits.The average Demand is for $100,000.00

A judge ruled that Conn violated the terms of his Bond when he escaped to Honduras. He has been  forced to forfeit the property put up for his Bail. That includes his Floyd County law complex, valued at $659,100.
How the mighty have fallen. Like Humpty Dumpty, Eric Conn has had a great fall.Surely a man with such  chutzpah. will be able to put himself back together again. "Since Crime Does Not Pay" perhaps he will pursue a legitimate business next time.

Psychologist In SSA Fraud Case Sentenced

Adkins gets 25 years, $93M in fines

 A Pikeville, Kentucky, psychologist's involvement in disgraced former Attorney Eric Conn's $550 milion Social Security fraud scheme and rejection to take a plea deal will cost him 25 years behind bars and more than $93 million in fines, the U.S. Department of Justice announced September 22, 2017.

Doctor Alfred Bradley Adkins (PHd), 46, was sentenced by Lexington-based U.S. District Judge Danny C. Reeves of the Eastern District of Kentucky after a jury found him guilty of one count of conspiracy to commit mail and wire frauds, one count of mail fraud, one count of wire fraud and one count of making false statements after a June 2017 trial.

The $93 million in restitution will be paid to the Social Security Administration and other agencies. He was also ordered to forfeit $187,600 in fees.

While Adkins was the final defendant to be sentenced in the case, the book on the largest Social Security fraud case in the nation may never close with its ringleader Conn missing after he absconded from supervision prior to his own sentencing.

As part of the complex scheme, former Huntington-based SSA Administrative Law Judge David Black Daugherty would seek out pending disability cases claimants represented by Eric Conn and assign the cases to himself.

From 2004 to 2011, Conn solicited Adkins to sign medical evaluation forms his office had previously prepared, without reviewing or even evaluating claimants. He received $350 for each approval. Conn subsequently sent the forms to Daugherty, who in turn approved the claimants' requests for disability.

Their scheme obligated SSA to pay more than $550 million in lifetime benefits to claimants. Of at least 3,149 disability cases filed by Conn, more than 1,700 have been deemed fraudulent by government investigators.

Conn paid Daugherty more than $609,000 for granting benefits and nearly $200,000 to Adkins for signing the forms. For his part, Conn received more than $7 million in attorney's fees.

Conn fled from the area prior to his sentencing and was last spotted in July at a gas station and a Walmart in New Mexico, according to the FBI, citing photos from surveillance cameras.

Despite his absence, Reeves sentenced him to 12 years in federal prison, the maximum allowed for stealing from the government through fraudulent disability claims and paying bribes to a Social Security judge.

Conn was ordered to pay more than $100 million in restitution to Social Security and Medicare, along with $5.7 million to the U.S. Department of Justice. He also received a $50,000 fine.

Daugherty, 81, was sentenced last month to a four-year federal prison sentence and to repay more than $93.8 million in restitution to the government agencies

A fourth man involved, Charlie Paul Andrus, 67, who was the chief administrative law judge in the Huntington Social Security Office, admitted to retaliation against an office whistleblower, was sentenced to serve six months in prison.

A $20,000 reward is being offered to information leading to Conn's arrest. Those with information are asked to call the FBI's Louisville, Kentucky, office at 502-263-6000.

(By COURTNEY HESSLER, Sep 24, 2017)