Libertarian Judges Rule!

by Corey Robin on December 9, 2017

Prominent libertarian jurist Alex Kozinski has been accused of sexual harassment by six women, all of them former clerks or employees. One of the women is Heidi Bond. In a statement, Bond gives a fuller description of Judge Kozinski’s rule, sexual and non-sexual, in the workplace.

One day, my judge found out I had been reading romance novels over my dinner break. He called me (he was in San Francisco for hearings; I had stayed in the office in Pasadena) when one of my co-clerks idly mentioned it to him as an amusing aside. Romance novels, he said, were a terrible addiction, like drugs, and something like porn for women, and he didn’t want me to read them any more. He told me he wanted me to promise to never read them again.

“But it’s on my dinner break,” I protested.

He laid down the law—I was not to read them anymore. “I control what you read,” he said, “what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”


The demands may seem peculiar, but the tyranny is typical. Employers control what workers read, when workers shit, all the time.

But Judge Kozinski has the added distinction of being one of the leading theoreticians of the First Amendment. And not just any old theorist but a libertarian theorist—he has a cameo in the film Atlas Shrugged: Part II—who claims that the First Amendment affords great protection to “commercial speech.”

Where other jurists and theorists claim that commercial speech—that is, speech that does “no more than propose a commercial transaction”—deserves much less protection than political or artistic speech, Kozinski has been at the forefront of the movement claiming that the First Amendment should afford the same levels of protection to commercial speech as it does to other kinds of speech. Because, as he put it in a pioneering article he co-authored in 1990:

In a free market economy, the ability to give and receive information about commercial matters may be as important, sometimes more important, than expression of a political, artistic, or religious nature.

And there you have it: Watching a commercial about asphalt? Vital to your well-being and sense of self. Deciding what books you read during your dinner break? Not so much.

Government regulations of advertising? Terrible violation of free speech. Telling a worker what she can read? Market freedom.

{ 37 comments }

1

Paul M Gottlieb 12.09.17 at 3:10 am

Never forget the motto of the libertarian movement: “But what if the child consents?”

2

Collin Street 12.09.17 at 6:39 am

Government regulations of advertising? Terrible violation of free speech. Telling a worker what she can read? Market freedom.

But of course, she’s a government worker. So it’s both a government and a workplace regulation… which wins? The answer, of course, depends on whether the individual libertarian sees themselves as the regulator or the regulatee: restrictions they impose or control are valid and reasonable, restrictions imposed upon them are intolerable.

[because it’s all rooted in empathy impairment. See also the tyrrany/absolutism: they have to dictate to get what they want, because they don’t know how to frame attractive offers.]

3

bad Jim 12.09.17 at 7:00 am

Ah, yes, the famous case of Prude v. Lewd.

4

bob mcmanus 12.09.17 at 7:17 am

That libertarianism can admire and promote interpersonal power and local hierarchies does not necessarily imply that in alliance with conservatism or traditionalism it also valorizes or institutionalizes social or corporate power or hierarchies. Quite the opposite; libertarianism almost defines itself as being in opposition to social and corporate hierarchies and power, and this is not any kind of internal contradiction. Both libertarianism and conservatism are OTOH in opposition to socialism and liberalism.

Libertarianism has more in common with liberalism than it does with conservatism; libertarianism wanting weak gov’t in order to enable interpersonal power and weaken corporate power; liberalism wanting strong gov’t in order to do the same. Their opposition coming from conservatism and socialism, both of which wanting strong gov’t to weaken interpersonal power and strengthen corporate power, for opposing examples, the Church and nobility for conservatism, unions and bureaucracies for socialism.

Corporatism in the more narrow sense of group business enterprises being viewed by libertarians as expressions of founders or imaginary persons with a single will.

5

Alex K. 12.09.17 at 8:28 am

Whatever his faults, Kozinski has been a consistent critic of the justice system’s faults in the past five-ten years, on and off the bench. Not many judges of his caliber speak out against prosecutorial misconduct as openly as he has lately.

6

rogergathmann 12.09.17 at 9:37 am

Larger issue is: why have we not corrected the abuse of lifetime appointments for federal judges? I’m pretty confident that both the GOP base and the Dems could get together on a constitutional amendment to limit all federal judgeships, including Supreme Court, to 8 years. It is an insult (and an intentional injury) to democracy to have a buncha senile white men lord it over us forever. And they are mostly men, mostly white, and often senile.

7

Matt 12.09.17 at 11:40 am

Good for Heidi Bond. When she and I were both law students (at different schools) I exchanged a couple of emails with her in relation to the blog she had at the time. (I doubt she’d remember – it was nothing special and we were not close by any means.) I remember she was super excited to clerk for Kozinski – he had a reputation of hiring the “best” and making the careers of his former clerks. I’d had a bit of experience with him – seeing him argue, in an en banc rehearing of an asylum case I did a bit of work on while in law school, that perhaps we shouldn’t consider female genital mutilation persecution, since the people doing it thought it was for the girl’s own good. (There was already clear precedent counting it as persecution, and holding that that particular argument was invalid, but he wanted to consider it anyway.) Another acquaintance of mine, who I knew because she had been (like me) a Peace Corps volunteer in the former Soviet Union, was an extern for him. She told me that she was glad to leave after a couple of months, in which time he regularly pulled her hair and called her “girl”, unable to remember her name, apparently. The last time I exchanged an email with Bond, I mentioned these things and suggested being careful. I’m sorry (but not super surprised) to learn that the need for care was genuine. Even though she no longer works in the legal field (I gather she’s quite successful as an author) this is still a very brave thing to do.

I will note that it’s not just libertarian judges who do this sort of stuff. A while ago I was also a law clerk for a judge who was notoriously abusive. (A not very good book was written on it. A really large number of her clerks quite mid-term.) When I clerked for her, she was an old woman, and as far as I know there was never any suggestion of any sort of sexual harassment, but every other sort of petty humiliation and abuse you could think of was vested on her clerks. It was one of the most miserable years of my life. I would have certainly quit during my last three months if I hadn’t been in the middle of some unpleasant and expensive dental work that I desperately needed to get done, and needing the insurance that came with the job. The particular judge was a well respected “liberal” figure, but still an utter tyrant to those working for her. There is some importance in the relative freedom that judges in the US have, but it does open up significant grounds for bad people to do bad things, beyond their legal rolls.

(Of course, in a larger perspective, the fact that the judge I worked for more often than not got the right legal answer, and Kozinsky very often got the wrong one is more important than how either one treated their clerks, though I hope that doesn’t mean this issue is not also a real one.)

8

ph 12.09.17 at 12:11 pm

He sounds like a difficult and unpleasant man. I’m not sure he should be removed, even if he did what he did and said what he said. He was clearly a grueling taskmaster. Those unwilling to commit to the workload, we’re clearly expected to quit. Impossibly long hours are a fact of life in many professions. I don’t approve of his comments, or of forcing people to work 16 hour days, but it happens. He’s not Weinstein and he’s not Conyers. Franken shouldn’t have been forced out and I’m not sure this clown needs to be fired either. From the <WP

“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.”

The Post reached out to dozens of Kozinski’s former clerks and externs for this report. Many of those who returned messages said that they experienced no harassment of any kind and that their experience — which entailed grueling work into the wee hours of the morning every day — was a rewarding one. They noted Kozinski’s wry sense of humor.”

9

engels 12.09.17 at 1:27 pm

libertarianism wanting weak gov’t in order to enable interpersonal power and weaken corporate power

Libertarianism wants strong government which is strictly limited in its functions to enforcing the rights of property-holders: not weak but stupid, brutish and obedient.

Matt: interesting comment.

10

monboddo 12.09.17 at 1:29 pm

I think this has less to do with libertarian judges than abusive judges; one judge on the 6th Circuit, for instance, is known as both a strong liberal and a petty tyrant to clerks. Also, readers should check out Heidi’s entire statement, which is even more damning than the excerpts published in the Post.

11

John Holbo 12.09.17 at 1:42 pm

Lewd and Prude!

This reminds me of the good old days.

http://crookedtimber.org/2009/02/09/lewd-and-prude/

12

rea 12.09.17 at 1:52 pm

The judge I worked for had a somewhat . . . motherly attitude toward me (I can remember her wanting me to eat more healthy food and we did an exercise class together) but never handed out orders along those lines.

13

William Meyer 12.09.17 at 2:10 pm

I must say I’m not at all surprised at reports of widespread judicial misconduct. Being a judge is a position of significant authority and essentially no accountability. Given everyone’s knowledge of human nature, how would you expect people to behave?

I’m not a lawyer, and I’ve only been in court 5 or 6 times, but I would say that at least 3 of the judges on my cases could only be described as bullies. They were definitely getting off on the fact that they wore the black robe and you didn’t.

The odd tendency of people to embrace judges as some sort of neutral technocrat or bulwark against tyranny is, in my opinion, almost completely fanciful. The law, by and large, clearly fights on the side of the monied and the propertied, and by and large the judges I have seen up close and personal are just fine with that. Even a highly idealistic judge most ascends no further in the moral hierarchy than a nice prison guard.

14

Jerry Vinokurov 12.09.17 at 4:33 pm

I’m not in the legal field, but I know a fair number of lawyers, and Kozinski’s retrograde attitude toward his female clerks has long been known within legal circles. I wouldn’t even say it was an “open secret,” so much as just “open.”

15

Layman 12.09.17 at 5:50 pm

rogergathman: “I’m pretty confident that both the GOP base and the Dems could get together on a constitutional amendment to limit all federal judgeships, including Supreme Court, to 8 years.”

Color me deeply skeptical. As it stands, with perpetually divided government, judicial appointments are the prize. At any given moment, one side or the other has the upper hand, and consequently no incentive to evict their own judges from the bench. I can’t see how any Amendment at all makes it through Congress, but surely not that Amendment.

16

Walter 12.09.17 at 7:21 pm

I have worked as a judicial staff attorney for 15 years in both state and federal courts. I’ve encountered dozens of judges and worked for a handful full time. I can tell you a judge’s chambers need not be anything but a civilized and professional workplace. The idea that a grueling taskmaster is a tough but admirable thing-what you must tolerate to be with the best of the best-is pretentious nonsense. I’ve been hearing reliable accounts that Kosinski is insufferable since I was in law school 20 years ago. His vileness is legendary and these new reports are worse than ever. That some of his clerks didn’t mind makes little difference. Many did. If his downfall comes, it will be richly deserved.

17

J-D 12.09.17 at 9:49 pm

ph

The Post reached out to dozens of Kozinski’s former clerks and externs for this report. Many of those who returned messages said that they experienced no harassment of any kind …
Are we playing ‘with notably rare exceptions’ again? With notably rare exceptions, Jack the Ripper did not murder Whitehall prostitutes. With notably rare exceptions, the parts of this egg are not bad.

18

Steve 12.09.17 at 11:51 pm

Following the link from 11, I know off topic, but as a homage to the great fun I’ve had reading this blog over the years
Lewd
And Prude
In Pulchasky’s series
Helped me rethink my liberal theories

19

Painedumonde 12.10.17 at 4:47 am

Libertarianism: Barbie for political junkies.

20

Scott P. 12.10.17 at 5:15 pm

At any given moment, one side or the other has the upper hand, and consequently no incentive to evict their own judges from the bench. I can’t see how any Amendment at all makes it through Congress, but surely not that Amendment.

The usual proposal is that you don’t have it apply to current judges, but to all judges appointed beginning, say in 2030. That’s far enough in the future that neither party can anticipate having control of the government, so neither should be inclined particularly to oppose it for that reason.

21

bekabot 12.10.17 at 5:45 pm

Quite the opposite; libertarianism almost defines itself as being in opposition to social and corporate hierarchies and power, and this is not any kind of internal contradiction.

Bah, humbug. A thing is what a thing does, and for the last forty years libertarian doctrine has been used to strengthen corporate power immeasurably. How libertarian doctrine would like to define itself in theory is of little importance when measured against how libertarian doctrine has defined itself in practice. The one record can be doctored, but the other can’t be.

Libertarians (in a similar way) might like to think they have more in common with liberals than with conservatives — and they might think it and feel that they’re right, because in a market economy a consumption pattern is actually a Thing. In a market economy, people who buy the same organic groceries and drink the same booze and smoke the same dope and read (to a certain extent) the same books really are part of the same community, in a way…or at least they’re part of the same demographic. Hence a partial state of truce may prevail between the two tribes and the members of the two groups may make a practice of backing one another up in cases where the stakes aren’t high enough to provoke a fight. (Though naturally, opinions will differ about where the line is to be drawn.)

All the same, this uneven peace should never be thought to be complete, because it’s not. The difference between human rights and property rights is a stark one and its sharpness isn’t set to diminish within the foreseeable future, so it’s much more likely that the differences between liberals and libertarians will grow more pronounced within the next few years than that the reverse will happen.

22

Pavel A 12.10.17 at 9:22 pm

Unregulated “Commercial speech” is basically just fraud, carefully-constructed lies and at best, sophisticated appeals to emotion. “Commercial speech” does not exist in good faith and is more akin to the most rank kinds of political propaganda than anything else.

So much for the value of the “free marketplace of ideas”.

P.S. Libertarianism was developed by John C. Calhoun and Pat Buchanan primarily as a white supremacist, racist and classist ideology, designed to allow slave-owners, segregationists and the wealthy to hold onto power and maintain the status quo. https://thebaffler.com/salvos/master-class-on-the-make-hartman

P.P.S. Guillotine Kozinski.

23

CJColucci 12.10.17 at 11:05 pm

Kozinski was once (or maybe twice) a contestant on The Dating Game. I don’t recall if he ever won.

24

Ebenezer Scrooge 12.10.17 at 11:06 pm

It’s important to point out that, if it weren’t for the gender hook, Judge Kozinski’s alleged behavior would be non-news and 100% legal. Jobforce tyranny is legally okay and socially accepted, as long as it isn’t discriminatory and the worker has the formal ability to quit.

I sometimes wonder if antidiscrimination law has turned into a distractor. It doesn’t protect all that many people, and blinds us to a gorgeous mosaic of diverse horrors.

25

Layman 12.11.17 at 1:24 am

Scott P.: “The usual proposal is that you don’t have it apply to current judges, but to all judges appointed beginning, say in 2030.”

Has Congress ever moved itself to solve a problem two decades in advance? Framing it that way doesn’t (in my view) make it substantially more likely to happen.

26

Mike Schilling 12.11.17 at 4:03 am

Re #5: I’ll bet he speaks out even more when he’s the one being prosecuted.

27

rogergathmann 12.11.17 at 10:22 am

15, you could be right. But I don’t think this is a moment in which the party elites are in control. Given that the right has been demonizing courts basically since I have been alive, I think term limits would plug and play well with the teabag set. And I think finally the center-left has had enough of the supreme court, and lost their idea that it is ever going to be Earl Warren’s court again.
That being said, inertia is always the better bet. At some point, though, it won’t be.

28

bianca steele 12.11.17 at 2:44 pm

Lends some interest to why the libertarians at BHL were so interested in nonstandard implied employment contracts, especially where women are concerned, doesn’t it?

29

Saurs 12.11.17 at 9:26 pm

It’s important to point out that, if it weren’t for the gender hook, Judge Kozinski’s alleged behavior would be non-news and 100% legal.

Well, sure, it’s sort of hard for observers to separate out gender from abuse when the abuse is both gendered and sexualized and the abuser selected his victims based on their gender. But, no, sexual harassment laws apply to everyone. That some people are disproportionately the victims of it and others disproportionately perpetrators is sad, but hardly cause for saying that without laws against it people would be better protected. I don’t know what “diverse horrors” are being neglected in enforcing it — as pointed out elsewhere,” nothing’s really being enforced and the investigation is merely theatre — but the onus isn’t on me to substantiate such a suggestion with anything so distasteful as a data set.

Incidentally, he doesn’t deny any of this.

30

Sebastian H 12.12.17 at 5:39 am

A much better example would be this.

It’s important to recognize that men like Kozinski — and there are obviously a lot of them in our society — are sadists. That is, they get off, metaphorically and no doubt literally, on being cruel to people who are relatively powerless. Power, sex, domination, hierarchy, cruelty — it’s all mixed up for these guys. They are bullies and perverts, and they are everywhere.

31

J-D 12.12.17 at 9:07 am

Ebenezer Scrooge

It’s important to point out that, if it weren’t for the gender hook, Judge Kozinski’s alleged behavior would be non-news and 100% legal. Jobforce tyranny is legally okay and socially accepted, as long as it isn’t discriminatory and the worker has the formal ability to quit.

I sometimes wonder if antidiscrimination law has turned into a distractor. It doesn’t protect all that many people, and blinds us to a gorgeous mosaic of diverse horrors.

Here where I am, there are laws against workplace bullying in general. I know none of the details, so I can’t comment either on how extensive their theoretical scope is or on how effective they are in practice; but the growth of anti-discrimination laws evidently did not forestall the introduction of more general anti-bullying laws. I would be inclined to guess, on the contrary, that the growth of anti-discrimination laws has been part of a broader change in social climate which also gave rise to more general anti-bullying laws.

32

CJColucci 12.12.17 at 10:37 pm

I have since checked. Kozinski did win on The Dating Game at least once.

33

Raven Onthill 12.13.17 at 9:59 pm

Slate’s Dahlia Lithwick, writing on being a reporter and a woman covering Kozinski. To judge by Lithwick’s account, Kozinski is an obsessed person with no sense of boundaries; to such people the whole world is their property.

I keep hearing about Kozinsky’s legal brilliance. Maybe so, but I wonder if he is not simply a brilliant criminal, shilling for ideas ungrounded in any sensible ethics.

34

F. Foundling 12.14.17 at 2:38 am

I (mostly) second Scrooge @24. All the sex stuff discussed recently is just one of many forms of abuse of power enabled by power disparities in various spheres (ultimately having to do with the insecurity of employment and thus of survival in a capitalist society). The only real solution is to decrease these power disparities and that insecurity.

@4
I don’t think that making a distinction between social and corporate hierarchies/power and interpersonal and local hierarchies/power is all that useful, and I don’t even see how a line can be drawn clearly between the two. Social strata and corporations are always made of persons. Persons are always elements of society. Attaching crucial importance to the involvement of some kind of institution or formalised collective is just part of the libertarian sham. As far as I’m concerned, the right seeks to maintain and increase hierarchies/power, the left seeks to decrease them (unions and state activity being merely a means to that end), and libertarianism is just a fraud, a right masquerading with leftish-sounding slogans. Believing libertarianism to be opposed to hierarchies, corporate or otherwise, because it says so, is like believing white nationalism to be a liberation movement trying to save the white race from oppression and genocide, because it says so. The context of the surrounding reality matters in the assessment of a given ideology.

35

Larrym 12.14.17 at 1:54 pm

Re #6, I don’t disagree with the point that we should pay attention to what libertarianism does rather than what it says, but in this instance I would go further and say that most libertarians don’t even pretend to oppose hierarchies as a general rule – they claim to oppose hierarchies that are imposed by force. One can doubt even the latter claim, of course, but they’ll happily admit to be perfectly okay with “natural” hierarchies.

36

Larrym 12.14.17 at 1:54 pm

#4 that is.

37

Roy L 12.14.17 at 4:03 pm

This is very belated, but one of the chief banes of Libertarianism (and anarchism) is that it appeals to patriarchal fantasies.

I believe this is not inherent but like anarchism it appeals to the sort of masculine mind that imagines tgemselves like the biblical patriarchs or some viking chieftain (I only pick these western examples because they are most common, but in my strange Libertarian Party (US) days I met Afrocentrist patriarchal “libertarians” as well). It helps to recall how the social world of Southern planters producing for export markets was not very different from that of those of the iron age variety that had to prepare annual tributes. The slaveholder Abrahamic fantasy was a response to an economic reality as much as a male wish fulfillment .

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