Contrition is Good for the Soul

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Guile is Not Always Good / Repairing the System

The cynical art of the “fauxpology” has entered the sacred precincts of the law.   Highly respected Judge Alex Kozinski of the prestigious Ninth Circuit Court of Appeals was accused late last year by several former female clerks and interns of improper behavior that included unwanted touching and fondling.  Kozinski at first denied the allegations, but soon resigned his judgeship and issued this “apology”:

“It grieves me to learn that I have caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”

Apologizing for causing  someone  to “ feel uncomfortable” when the behavior complained of is a physical sexual assault  qualifies as a good example of what is known as a “fauxpology”– a disingenuous statement in the form of an apology which implicitly  denies the improper behavior took place.

I think a comment  judge Kozinski made to a newspaper reporter when the scandal broke may better express his true state of  mind:  “If this is all they can dredge up after 35 years, I am not too worried.”  And while the conduct his clerks complained of was not as egregious as that charged against  Harvey Weinstein, there is an important parallel between the cases:  a federal judge has power to help or hurt the career prospects of his clerks very much comparable to that of a movie producer over  the careers of aspiring actresses.

The Ninth Circuit Judicial Council had a authority to hold a hearing on the allegations against the judge, but instead ruled that Kozinski’s resignation mooted the case before them.  You might call it a  judicial plea bargain;  Kozinski goes quietly and his colleagues minimize the damage to his reputation by  not making an explicit finding of wrongdoing.  The end result was that Kozinski leaves the bench with a 200,000 dollar a year pension and the ability to claim that the charges against him were never proven in court.

Now we find that Kozinski has begun to make a quiet “comeback.”   It started with writing an article for a legal journal, and included an interview on a public radio station. But these might  prove to be only the opening gambits.  Perhaps Judge Kozinski  (he retains the title)  will soon be appearing on academic panels or teaching courses at prestigious  law schools. Always known for his keen wit and intelligence,  I imagine Kozinski might well find many hospitable venues.

Now three of Kozinski’s accusers have written an op-ed to complain about this slow-motion rehabilitation.

https://www.nytimes.com/2018/08/02/opinion/sunday/alex-kozinski-harassment-allegations-comeback.html

His accusers object to the fact that Kozinski is being allowed to continue his legal career without either admitting his misdeeds or facing up to the charges in a judicial inquiry.  They believe this result disrespects his victims. I agree completely.

But I also think there are good reasons for Judge Kozinski to welcome a judicial determination of the truth or falsity of  the charges against him. Otherwise they will tar his reputation for he rest of his life –and after.  The Ninth Circuit’s silence also  diminishes the public’s respect for a prestigious court that has abnegated its duty to police the behavior of its members.

If the charges against Kozinski are false, it is in his interest and that of the legal system to have a judicial finding to that effect.  If they are true, it will be best for him to accept that judgment and make a sincere apology to the women he has harmed and the court system he has embarrassed.  Not only would this conclusion help restore public trust in the legal system, but Judge Kozinski might well find that a little honest contrition is good for the soul.

 

 

 

 

 

6 Comments

  1. Bravo! Well said, especially the observation about the power of judges over their clerks. “Go along with my conduct, or your prospects will suffer.”

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  2. Wendy LaRiviere says

    Trouble is, this judge’s evasion of consequences and slow rehabilitation has become part of the American Way. The alternative for the judge in this case would be a plea deal, possibly with loss of his retirement benefits. His victims are seeking to shame him further. Maybe that will suffice to encourage him to seek a lower public profile. Otherwise, I think we all know that going through a legal process in matters like this is a big commitment with risks for both sides.

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    • I think you are right. The price the judge pays must be great enough to provide a deterrent for other judges in the future. I do think that we have entered a new #MeToo era where women won’t say silent and their voices will be increasingly heard and acted upon. But we will have to see.

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  3. Have I missed something here? Do we know exactly WHAT misconduct and how extensive it was that the judge is accused of? (Is it all limited to inappropriate comments and ogling? once vs frequent? explicit demands for sex? exposing himself a la Weinstein?) — There is potentially a whole range of types of conduct, some of which might be considered gross and unbecoming, but less than legal harassment. Remember, it has to be conduct that the “victim” made clear was “unwanted.” Without knowing more, might there possibly be a bit of mob frenzy among the spectators?
    I always see red flags when people start talking about taking away pension and retirement benefits. It’s what I have thought was an unfair consequence for the soldiers whose drinking or similar problems earned them a dishonorable discharge. I know, I know, Kozinski was a judge and the alleged victims, his employees. But still . . .

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