Weekend Reading: Courtney Milan: Judge Kozinski: "Judge Kozinski had a way of summoning his clerks...
...He could make our phones beep by pressing the intercom button. Two beeps meant, “drop everything, grab pen and paper, and run to his office.” Sometimes he’d summon us all, or he’d summon some of us and not the others, or he’d just want one of us.
“Heidi, honey,” the Judge said one day, when he’d beeped me into his office alone, “you’re the computer clerk. I need your opinion on something.”
I was the computer clerk because I’d worked in a computer store, built several computers, run my research group’s computer cluster in graduate school before I went to law school. Once, being the “computer clerk” meant a software consult. Once, he’d shown me his own self-built computer that he’d brought into the office for emergency surgery.
This time, the thing he needed an opinion on was a set of pictures. He pulled them up from where he had saved them—a private server, run by his son, that he used as a massive external hard drive. Those pictures showed a handful of naked college-age people supposedly at a party where other people were clothed and drinking beer. In one of those photos, a man and a woman were sitting naked on a couch.
“I don’t think your co-clerks would be interested in this,” he said. “Do you think this is photoshopped?”
At the time, I didn’t know what to say. I remember thinking that I didn’t want to be there, not without my co-clerks. It would have felt entirely different if my co-clerks—both male—were present; it would have felt like I was being treated as one of the guys. Kozinski was not known for being terribly appropriate, but I could handle that. Inappropriateness directed solely at me felt very different than chambers-wide jokes.
His office in Pasadena overlooks the Colorado Street Bridge, more colloquially known as Suicide Bridge. I remember feeling like the sounds of the cars passing were very loud. I remember wanting to be so small I could disappear.
“Yes,” I said. “It’s photoshopped.”
I remember pointing out how the couch didn’t compress where the naked people were supposedly sitting, how the shadows weren’t right compared to the clothed party-goers. I tried to stay as factual as possible.
“Does this kind of thing turn you on?” he asked.
“No.” I remember feeling that I needed to not move, either physically or emotionally, that if I just treated this like this was normal it would stay normal and not get worse.
“They don’t look like they’re having fun.”
“It doesn’t do anything for me either,” he replied. “People just send me these things. I don’t know why. But I like to keep them as a curiosity. I don’t understand why people find this sort of thing arousing.”
It happened at least three times. I can’t remember exactly how many times it happened.
I was also alone the day he showed me what he called his knock chart. It was a typed piece of paper listing all the girls that he and his friends had banged while they were in college, tracking their conquests.
“Don’t tell your co-clerks about this,” he said. “It’s not something I want them to know about.”
I don’t remember everything he told me. I do remember him talking about how terrible the focus on STDs today was, because nobody was willing to just fuck anymore.
When this happened, I felt like a prey animal—as if I had to make myself small. If I did, if I never admitted to having any emotions at all, I would get through it.
Despite my best efforts, I continued to have emotions. Why was I alone? What was the purpose of not having the other clerks around? Most prevalent of all was this worry: Was it going to escalate? What could I do if it did?
The worry took its toll. I began waking from sleep, heart racing, hearing imaginary double beeps summoning me to his office. I started not being able to sleep at all. By the time I left the clerkship, there were nights I would lie in bed and watch the darkened ceiling until I had to get up and go back to work.
I stopped being able to complete even basic tasks—I left the clerkship as one of the most incompetent clerks ever to grace Kozinski’s chambers, and I’m fairly certain that when I started I was not one of his most incompetent clerks. I gained something like forty pounds over the last six months of the clerkship.
There are questions I ask myself, questions like, “If you were so uncomfortable, did you tell him to stop?” or “Why didn’t you tell him that you didn’t want to have these discussions alone?”
I’m not sure I will ever be satisfied with my own answers, but by the time this happened, I was not in the best place to say no to anything.
The day I started as a clerk in Judge Alex Kozinski’s chambers, he swore me in. After I read the words, he grabbed my arm and smiled. “It’s too late now!” he said. “She can’t escape any longer. She’s my slave.”
I knew (I thought I knew) all about the Kozinski clerkship—long hours, impossible expectations, in which you were pushed to become the best he could make of you.
I tried to make a joke of it. “I think you mean indentured servant,” I replied.
“No,” he said with a smile. “I meant slave.”
I want to be clear: There is absolutely no comparison between a job that pays reasonably well, that no law prevented me from walking away from, and that opened up career opportunities that most people will never have and slavery.
But over the course of the clerkship I learned very swiftly how impossible it was to say no to the judge.
As an example, 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?”
There was nothing to say but this: “Yes, Judge.”
This sort of diatribe was a regular occurrence. The judge had incredibly high standards, and when we failed to meet them, we were raked over the coals. I do not think a week passed without at least one such outburst; during bad times, they were a daily occurrence.
He also had an innate sense of when he’d gone too far. A few hours after a bad encounter, he’d call me into his office and tell a joke or a funny story or he’d show us Weird Al videos—anything to lighten the mood and show that he was still our friend. It was as close as he ever came to apologizing.
After he’d demonstrated that he had forgiven me for the misplaced comma or misspelled word that gave rise to his outburst, he would go up to me.
“Heidi, honey,” he would ask. “Do you still love me?” 
There was only one answer. To say “no” would be to invite the tempest a second time.
“Yes, Judge,” I would say. “Of course I still love you.”
He’d kiss my cheek, and I would kiss his.
If someone controls when you eat, when you sleep, what you dream, they control who you love, too. I said it and I told myself it was true, because it is easier to feel love than to tell yourself that you must lie for your own protection. It took me years afterward to understand that the relief I felt at the absence of pain was not love. It was not anything like love.
I thought about quitting during the clerkship. I calculated the fastest route between Pasadena and the city where my fiancé was living. I checked plane ticket prices and read my lease to see if I could afford to break it. I would look at my savings (meager) and calculate how long it would take me to get a job, a paycheck.
I wondered if I anyone would hire me if I said, “well, yes, I quit my clerkship, and I can’t talk about it for judicial confidentiality reasons, and… no, the Judge won’t give me a recommendation, and… yes, you have it right, I got through six months of this but I just couldn’t manage the last six.”
I had over a hundred thousand dollars in student loans. I couldn’t risk it.
I came close enough to quitting that I told Judge Kozinski that I didn’t want to clerk at the Supreme Court. The Judge prided himself on placing a majority of his clerks with Supreme Court Justices, and my opting out was a warning signal. He got me an interview with Justice O’Connor anyway.
I told him I didn’t want to go on the interview, and I meant it. At that point, the thought of spending another year with someone who could wield ultimate power over me sounded like a nightmare. I didn’t care about the career benefits; I didn’t care about anything except that I was going to be trapped once more. He told me that if I didn’t go, and do my best, I would have to leave his chambers.
I calculated how long it would take me to run out of money. I wondered if it would destroy my career to not have a reference from my Judge. I felt utterly powerless; I went on the interview.
When Justice O’Connor called and told me she wanted me to clerk for her, I realized that saying yes to her meant saying yes to finishing the clerkship with Kozinski, no matter what would happen.
So I stayed. There were no physical advances—just occasional porn, occasionally asking about my opinion on it, occasionally asking whether it turned me on. There were no physical advances, just endless worrying on my part about whether there would be one, and if there was, if I would be able to say no.
I remember almost nothing about my last two months there.
I do remember my last day.
Throughout the clerkship, the judge had instilled his view of judicial confidentiality in us. His views on the duties that law clerks owe their judge are public; eight years before I started my clerkship, he wrote an article discussing those views. While that article was in the context of Supreme Court clerks, he applied the same standards to his own clerks.
This is what he had to say in that article: “A Supreme Court clerkship is not simply a job, a great honor, or a stepping stone to plum jobs in the legal profession—it is membership in a family, with correlative rights and responsibilities…. The clerk has a duty of diligence, loyalty, and confidentiality, both to the Justice who appoints him and to the other Justices. He also has a duty of loyalty to his fellow clerks and to other Court employees. In exchange, the clerk gets to work in the headiest environment to which any young lawyer could aspire and enjoy the luxury of open, robust, and unbridled debate about our nation’s most pressing legal issues….” 
While the article was written as a book review of Edward Lazarus’s Closed Chambers, and thus refers to Supreme Court clerks, Judge Kozinski believes the same principles applied to the operation of his chambers in the Ninth Circuit as well. He repeatedly instilled these views in me.
While some judges take the view that law clerks only owe their judges confidentiality on the question of deliberations, Kozinski’s view is far more expansive: Clerks owe a bond of loyalty to their judges, and that means “that, under normal circumstances, whatever one learned inside the Court—whether or not it was covered by the duty of confidentiality—would not be repeated on the outside, especially if it tended to demean the Court, the Justices, or fellow clerks.” 
On the last day of my clerkship, he told me that the beauty of judicial confidentiality was that it went two ways. As long as I never, ever told anyone what had happened in chambers with him, he would never tell anyone what had happened with me.
At that point, aware of just how painfully bad I had been at stumbling through the clerkship those last months, I was grateful to think that I could forget the year entirely. It felt like he was telling me that all that incompetence belonged to someone else, not me.
I closed my fist on everything I couldn’t let myself feel and drove away as fast as I could. On the day I finished my clerkship, I left the office at seven or eight; I collapsed into bed just across the border in Nevada some time after one that morning, because I had promised myself I wouldn’t sleep in the same state as him that night. I got two speeding tickets the next day, trying to get away—one in Utah, one in Colorado.
I didn’t care. I was free, and I just wanted to not remember.
I told one person a little bit less than a year later. I didn’t think I should tell her; I felt I was violating my duty of loyalty. I told her because I didn’t know what my heart was doing anymore and I needed someone to help me find it again. I felt guilty about telling her what I did for years.
In 2015, at a friend’s wedding, I went on a hike with two other former Kozinski clerks. I told them in very barebones terms what had happened.
I did not tell anyone else, not for nine years.
I’m painfully aware that some people will find reason not to believe me. I deal with occasional depressive episodes that almost certainly exacerbated my emotional reactions. When I think back, parts of my clerkship are cloaked in a depressive fog. Details from that time can be elusive. But my depression has allowed me to (gratefully) forget portions of the clerkship; it has never added memories that did not exist.
In the first years afterward, I wished that I had been louder, more in control. I wished I hadn’t completely fallen apart.
My wishes changed gradually. I began to wish that a sitting federal judge—one who became the Chief Judge of the Ninth Circuit a few months after I left his chambers—had realized that bringing his sole female clerk into his office on her own, showing her porn, and asking if it turned her on, was beyond inappropriate. I wished that I had not had to wonder at night how far he really intended to take his slave metaphor; I wished he had never called me one. I wished that he had never told me that he controlled when I slept, when I ate, that I had never been given reason to worry about whether my bodily autonomy was at stake in other ways, too.
I spent almost a decade closing my fist on that clerkship, wishing that none of it had happened.
If you did not know about Kozinski, it would be impossible to understand my career choices. I applied for jobs as a law professor, but I pulled out of the UCLA interview a month before I was scheduled to visit—I couldn’t bear to be anywhere I might see him on a regular basis. I withdrew from the hiring process at the University of Michigan, my alma mater—when I did the campus visit, it reminded me too much of who I had been before the clerkship, and I couldn’t handle the memory.
I got job offers and warm congratulations, and they hurt so much I could barely acknowledge them. I could not escape the notion that my career success was built entirely on my silence, and it poisoned any joy I could have found in the job I did take.
In a private act of defiance, I didn’t just read romance novels—I began to write them. I wrote dozens of books where my characters had secrets that they could not tell. The secret varied—sometimes a heroine kept it; sometimes it was the hero.
I wrote books where women won, again and again.
I grappled with my own secret in fictional, changed form. Book after book, I wrote the happy ending I couldn’t quite reach myself. That the stories I wrote resonated with readers, I think, speaks to the fact that #metoo has been building for centuries.
I wrote about secrets for nine years, while I held onto my own.
What changed after nine years?
On June 5, 2016, I got this email from Alex Kozinski asking me to speak to a reporter about my experience as a clerk at the Supreme Court:
Heidi: Hope you're doing well.
A good friend of mine, David Kaplan, is writing a book about the Supreme Court. Here's his latest prior book
And this is his description of what he plans to write:
My book is an ideas book, asking the question whether Alexander Bickel might have been wrong in "The Least Dangerous Branch." But my book is not aiming to be a scholarly tome, but rather an accessible narrative of recent developments at the court against a larger historical backdrop. That's where talking to clerks can be vital. I've already talked to one justice. Again, I can't emphasize enough: nobody gets quoted or in any other way sourced.
Think you might talk to him? I've known him for 25 years and he's 100 percent trustworthy.
There are no words that can describe how it felt to receive that email. For years, I’d been hiding a secret because I had been told that judicial confidentiality protected the Judge—that it applied not just to chambers deliberations, but to his showing me porn in his office.
But here Kozinski was, asking me to breach my duty of loyalty to Justice Kennedy as if it were no big deal—as if I hadn’t upended my life trying to escape the memories Kozinski had given me.
I wish I had taken a little more time to think about my reply. This is how I initially responded:
I'm not sure what, if anything, I could say that would be useful in such a project without violating the code of judicial ethics. I'm happy to talk to him as long as he understands I might not be able to answer many of his questions.
I thought, at the time, this was a way to give a soft “no” that we would both understand. He had drilled it into me that confidentiality meant you don’t say anything. I was invoking the very thing that he’d used as a shield for years. I never forgot why I was keeping quiet.
He, apparently, had.
The judge’s response to my soft “no” was to treat it as a yes:
David, meet Heidi Bond.
I've explained to Heidi the nature of your project, and she's willing to talk, though she may not be able to answer many questions.
I'll leave the two of you to communicate. Please leave me out of the loop.
I felt both sick and angry. How dare he casually sell out the principle I’d been choking on for years? (For the record, I did not, in fact, talk to the reporter.)
After the anger passed, I started to wonder: I’d assumed that what he said about judicial confidentiality was correct, that I had no choice but to hold onto my silence—that I needed to feel guilt about the few instances when I’d slipped before.
Was he wrong? Could I tell people?
After weeks of turmoil, I decided to seek advice from the judiciary: What were the limits of judicial confidentiality? Were there any?
On the advice of two friends, I spoke to several people in the federal judiciary—first, Jeffrey Minear, Counselor to Chief Justice Roberts, then, at his referral, to Judge Scirica of the Third Circuit, in his capacity as the chair of the Committee on Judicial Conduct and Disability.
I wanted to know if I could tell some of those details to my husband, a therapist, or some close friends.
I want to be clear that Judge Scirica was warm, understanding, and kind. He also insisted that I not tell him any facts of the situation. I believe the reason he gave was that since the question was whether judicial confidentiality applied, there was no way to give specifics without potentially breaching confidentiality.
Initially, he told me that if what had happened was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn’t about a judicial matter.
That’s where I paused. “What,” I said, “if it’s not about a matter that my judge decided, but if there’s a nexus of facts that are relevant to another judicial matter? What if there’s a nexus of facts between what I want to talk about and the matter that arose from US v. Isaacs?”
Here I must digress. The porn the judge showed me was stored on his personal server, a computer in his house that he left entirely unsecured. A year after I left, a disgruntled litigant discovered the existence of this server, and, in light of the images on it, Kozinski asked that an official ethics investigation be made into his conduct.
A pause. “I know something about that matter,” Judge Scirica finally said. I knew he did. He’d written the opinion that ultimately exonerated Kozinski in that investigation. I had done my best to pay as little attention to the matter as possible.
“What then?” I asked.
It took him a while to think this through. Because of that investigation, the only way that he could tell me if the matter was covered by judicial confidentiality was if I told him the facts of the matter, but there was a possibility that the matter was covered by confidentiality, in which case I could not tell him.
I wrote down his next sentence, and so this is a direct quotation: “I cannot think of any person, persons, or institution that can give you an answer on this,” he said.
On the advice of another friend, I directed the same question to the chair of the Committee on Codes of Conduct, and was given the same answer.
I have decided that the events that I have described here cannot be considered by any reasonable person to be part of a judge’s official duties, and that attempting to shield those events from scrutiny by invoking the principle of judicial confidentiality is an abuse of judicial privilege.
There is, I am sure, some arrogance in my deciding this on my own, but I was told that no person, persons, or institution could help me answer this question.
The inevitable question I will be asked, I am sure, is this: What do you want?
I do not want to have to think about Judge Kozinski in any public capacity beyond what I have said here. Despite what I have related here, I also believe that the Judge is one of the most brilliant, capable legal minds sitting on the federal bench. I am sure that this revelation will spark a debate about Kozinski’s future; I do not want to have anything to do with it. Please exclude me from these discussions.
I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.
I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.
I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.
- Most of all, I want to break my own silence. I have held onto it for too long. So, you know—#metoo.
For the purpose of narrative flow, I’ve chosen to use quotation marks. I have only chosen to do this when my recall of the events is close enough that I am certain I am capturing the sentiment expressed. Except where noted, I do not recall exact phrasing.
This is a direct quote—one that I heard multiple times.
Nothing of the sort happened. I worked with both Justice O’Connor and Justice Kennedy during my year at the Supreme Court, and they both treated me with respect and dignity.
Alex Kozinski, Conduct Unbecoming, 108 Yale L.J 835, 875 (1999).
Id. at 846.