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.
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.