Monday, December 18, 2017

Judges, Bossholes, and Coaches

by Michael Dorf

[*** Update: Judge Kozinski has apparently decided to retire (by which he appears to mean retire entirely rather than take senior status). Although my piece below discusses Judge Kozinski, its main points are more general and thus, I hope, continue to be relevant to our national conversation about sexual harassment, sexual assault, and, as is the focus here, workplace bullying regardless of its gendered dimensions. Now back to what I wrote before learning of Judge Kozinski's retirement.]

I do not have a #metoo story to relate of sexual harassment by Judge Alex Kozinski, at least nothing in which I figured as a victim of any sort of abuse. But I do have a story . . . or rather, I know some stories. In any event, I'll start at the beginning.

When I was a second-year law student, way back in the winter of 1989, I interviewed for a clerkship with Judge Kozinski. I interviewed the same day with Judge Reinhardt, who made me a clerkship offer that I took, so I did not clerk for Judge Kozinski, but as a result of that initial interview, he was familiar with me and ended up supporting me for a clerkship with Justice Kennedy. I was and remain grateful to him for that support. I also have friends, professional acquaintances, and former students who clerked for Judge Kozinski. Thus, I consider myself something like a distant relative of the Kozinski clerk extended "family."

Although many people now say that Judge Kozinski's completely inappropriate sexual statements and conduct were an "open secret," they came as news to me. I was aware of the fact that in 2000 and 2008, Judge Kozinski had acted inappropriately in ways that related to keeping (and, I assumed, viewing) pornography in his chambers, but I was not aware that he had subjected female (or male) clerks working for him to it or to other inappropriately sexual behavior.

I am not professing my ignorance of Judge Kozinski's sexual misbehavior as a means of exonerating myself, because I don't think I deserve to be exonerated. Although I was unaware of sexually abusive behavior--which was undoubtedly experienced as substantially worse by women than by men--I was aware of Judge Kozinski's generally controlling behavior. To use a term I learned from Robert Sutton's book The No Asshole Rule, I was aware that Judge Kozinski was a "bosshole," i.e., an asshole of a boss.

I heard stories of Judge Kozinski demanding that his clerks perform tasks that fell far outside of their job descriptions. He treated his clerks, I was led to understand, more or less as personal assistants, even as he professed what I continue to think was genuine fondness for the young lawyers he seemed to relish subordinating. I heard a story of a clerk who was told by Judge Kozinski to come into work late one Sunday, tried to resist by explaining this was the only brief window during the week when he could do his laundry, and was then told that if he didn't come back to work right then he would be fired.

So I didn't know about sexual harassment or other sexual misconduct but even knowing only what I knew, I should have been much more reluctant to send clerkship applicants to Judge Kozinski than I was. So why wasn't I? Part of the answer, for me, as for many other law professors who made the same calculation, was a kind of cost-benefit analysis: Sure, you'll work 100+ hours per week for a year when you're 25 or 26 years old, but you'll likely be rewarded with a Supreme Court clerkship and, even if you aren't so rewarded, the Kozinski clerkship alone will be extremely valuable as you build your career as a lawyer.

But I wasn't thinking only about a Kozinski clerkship as an extremely burdensome experience to suffer through because it would produce subsequent benefits. I was also thinking that the clerkship would be valuable as a learning experience, because clerks would develop into top-flight lawyers by learning from one. I would have agreed with what lawyer/law professor Susan Estrich recently wrote in an otherwise highly problematic essay that I intend to critique at length in a sequel blog post. The part of Estrich's essay I would have agreed with goes like this:
A clerkship with Judge Kozinski is a prize much sought after, a ticket to do almost anything you want next, often including a Supreme Court clerkship or entree to any law firm or public interest institute. But the real prize is the chance to literally work alongside a great and powerful judge, to see the cases from his perspective, to understand exactly why he rules the way he does. If you get to clerk with the right judge, it is a once-in-a-lifetime experience.
Actually, I still agree with the general point. Estrich gives a fair description of both of my professionally demanding clerkships (for Judge Reinhardt and Justice Kennedy) and clerkships with many other judges. I just don't think that she properly takes full account of how a Kozinski clerkship operates, even setting aside the sexually inappropriate behavior and focusing only on the other excessive demands.

There is a tendency to think that successful bossholes succeed because they are bossholes. People often cite Steve Jobs as an example, although Sutton disagrees. Sutton thinks that Jobs was most successful at Apple once he had mellowed, at least somewhat. But whether or not Jobs is a good example, the phenomenon surely is real. Even if there is added value in a boss being tough to a point, there must come a further point where added toughness--gratuitous cruelty, if you will--turns counterproductive.

High-level sports coaching poses a useful test case. Consider San Antonio Spurs head coach Gregg Popovich, who is the most successful current NBA coach and arguably the most successful NBA coach ever. Only Red Auerbach, Pat Riley, and Phil Jackson really belong in the same conversation.

Is Popovich a bosshole? If so, is he a success because of or despite his bossholery?

Popovich is notoriously rude to reporters, but one sometimes senses it's an act. After all, Popovich clearly has a conscience.

Popovich isn't just a (possibly play-acting) jerk to reporters, however. He's also notorious for yelling at his players--even Hall-of-Fame-caliber players--when they don't hustle or when they make selfish or foolish plays. Does that make him a bosshole? Not necessarily. He could just be a very demanding boss. If you mess up, he'll let you know; and conversely, if you make the extra effort, he'll praise you.

So which is it? Is Popovich a very demanding tough-but-fair coach who gets results? Or does he cross the line into gratuitous bossholery? Never having played for his or any other NBA team, I can't really say, but let's give him the benefit of the doubt.

Giving Popovich the benefit of the doubt does not mean concluding that he gets the best possible results from the players he has. Steve Kerr--who as a player won three championships with Jackson's Bulls and another two with Popovich's Spurs--seems to be as good a coach as Popovich is, having led the Golden State Warriors to three NBA finals and two championships in his first three seasons as a head coach. Kerr can be intense on the sideline, but from the outside at least, he looks less likely to berate a player than Popovich.

I do not claim any great expertise in coaching or management more generally, but one does not need much advanced training to see that a balance must be struck. Supervisees who shirk or make errors should be corrected firmly enough so that they get the message but not so firmly as to demoralize them. Knowing where to draw that line takes judgment and is often more a matter of art than science. Much of it is about knowing your personnel. When I've coached youth sports, I've erred on the side of positive reinforcement, sugar-coating any criticism. By contrast, when a law student says something in class that's clearly wrong, I'll simply say that's wrong, on the assumption that adults in their early 20s can handle having an error respectfully but clearly pointed out.

My own experience thus leads me to think that we don't really know whether Popovich might have been as successful as he has been by being a little less explosive. But, as I said, I'll give him the benefit of the doubt, because whereas Popovich is more of a yeller than Kerr, there is still method to Popovich's madness.

For a long time I believe I thought that Judge Kozinski was like Gregg Popovich: An extremely demanding boss, yes, but one who gets results. A federal appeals court judge doesn't have a win-loss record like a pro basketball coach, but I nonetheless agree with the consensus view that Judge Kozinski produced professionally first-rate work product (even when I didn't agree with it.) Sure, one could produce top-notch judicial product without working one's law clerks to the bone. Judge Posner is a useful comparison here. Like Kozinski, he was appointed by President Reagan and proved ideologically unpredictable in interesting ways. But a Posner clerkship was very different from a Kozinski clerkship. The former was essentially a 9-to-5 job.

Still, if Posner was Kerr to Kozinski's Popovich, who wouldn't want the opportunity to play for Popovich?

I now realize that that's the wrong question. Even without the sexualized misconduct, it should have been clear all along that Kozinski was not Popovich. He was more like Woody Hayes or Bobby Knight--very successful coaches who bullied their players (and others) gratuitously. Hayes (as the Ohio State football coach) and Knight (as the Indiana basketball coach) stayed on in their positions as long as they did because they won. It was widely assumed that they won because they were abusive. It's more accurate to say that their abusiveness probably made them less effective than they would otherwise have been. But even if not, the abusiveness was at best unnecessary to their success.


Shag from Brookline said...

Perhaps judges, especially on Federal Courts of Appeal, have too much time on their hands and are to some extent bored by their jobs, and have the benefit of serving subject to good behavior (however defined) without the need for "re-election." Such judges may have political instincts but are limited in how they can express such in an open fashion. Such judges may somewhat envy elected officials who are not constrained in expressing openly their political views, rather being limited to nuances in opinions. Elected judges have to engage directly in politics by seeking re-election. Perhaps serving judges write too many books and articles. Such writings might serve as clues on how such judges may rule. But can the public be assured of their judicial independence? Judges and justices appointed by the president or by governors may be determined by political considerations. Is there any doubt that SCOTUS is more than a tad political? And political can lead to celebrity for some judges, even justices. (Why even legal academia has been politicized to some degree, with some seeking celebrity status.)

An article in the NYTimes on the Kozinski brouhaha addressed some issues during his confirmation process in his management of employees as a government attorney. We didn't have the Internet and its social media back then and the confirmation process for nominees to a Court of Appeals was not that press-worthy (compared to Judge Thomas' confirmation as nominee to SCOTUS; Anita Hill is making a comeback with the recent sexual harassment/abuse issues that have surfaced).

Judge Kosinski and Judge Roy Moore seem like charter members of "HERE COME DA JUDGE" club. (Judge Thomas got promoted out with his confirmation as Justice.) Maybe there will be more revelations among jurists to emerge, as there are in Congress and the presidency.

This brings me back to queries at this and other legal blogs concerning the Equal Rights Amendment: Had the ERA been ratified on a timely basis, might there have been some diminishment of the long existing sexual harassment/abuse issues that have been exposed in recent years? Keep in mind that the 19th A only dealt directly with women's suffrage - not suffering at the hands of Bossholes.

Rearding basketball coaches, I had the pleasure of enjoying Red Auerbach's successful career as coach of the Boston Celtics. Red was there as the NBA was being integrated and Red did a great job with his players during a time in a Boston plagued with racial issues. (Keep in mind that Tom Yawkey's Red Sox were late with integration.) Times have changed in many sports. And so has the money.

Joe said...

A book on Barbie doll litigation recently was written by a feminist law professor. Kozinksi had a big role in two cases there, so he was profiled. He came off as a character who at times said outrageous things and got in trouble with his pornographic humor collection (maybe because he was a bit careless with keeping it offline).

The more troublesome stuff, including being an asshole, didn't come out. He comes off rather positively. I have noted this a few times online because I found this absence curious & underlines how this sort of stuff continues.

As to bosses, a quick personal comment. Where I am now has a range of supervisors, since it's a big place. They have a range of styles but overall the mid-range ones are pretty fair. One specifically is an asshole. In the long run, think it is an unproductive approach. Another is not an asshole but is really stressed out. Not being an asshole takes the edge off some. I take it that if the net result was the benefits of a clerkship, an asshole boss is something you in the long run might deem worth it. Not that you should have to deal with it, especially if it involves being alone with him and him asking you if such and such turns you on.

Asher Steinberg said...

"Still, if Posner was Kerr to Kozinski's Popovich, who wouldn't want the opportunity to play for Popovich?"

Could you elaborate on why you think that people would universally have this preference? It doesn't seem to follow from what goes before (that Kerr and Popovich are equally good coaches, which I disagree with--Kerr has been afforded absurd quantities of talent that it would be very hard to lose with, Popovich not so much so, especially in his last couple Finals appearances, by which time he may not have had a single top-10 or 15 player in the league and probably no more than one, depending on how good you think Leonard was by that point--and that Kerr is much more pleasant to play for). I think that, as between Posner and Kozinski, even if Kozinski had merely been demanding in a Popovichian sense, people could prefer Posner for a lot of reasons. It's not obvious to me that, for all the work Kozinski had his clerks do, they necessarily learned much more than Posner's clerks.

Shag from Brookline said...

The comparisons of certain judges with certain NBA coaches might be called out as double-dribbling. What certain judges do in chambers is a tad different from how these coaches behave in the course of a game. (Contrast with SCOTUS oral arguments.)

By the way, the fact that Kozinski has resigned from the bench should not make the discussion on how certain judges behave moot. Perhaps there should be an empirical study of Kozinski's former clerks to compare how males and females have fared post-clerking in the legal profession, including in academia.

Asher's closing sentence:

"It's not obvious to me that, for all the work Kozinski had his clerks do, they necessarily learned much more than Posner's clerks."

might invite former Kozinski and former Posner clerks to comment, here or elsewhere.

Back in my law school days here in the Boston area (1951-54), I don't recall much talk about either clerkships or "big law" as goals of fellow students. The number of clerks back then was quite limited in MA and in the federal judiciary. I recall being surprised by that tell-all book by a former SCOTUS clerk back when I was actively practicing. While NYC may have had "big law" back then, Boston did not. Many of us back then made arrangements with a practicing attorney while developing a private practice. Law schools and law practice changed considerably by the time I went into semi-retirement in 1998. Competition for clerkships was intensive as well as for "big law" what with the tiering of law schools.

Now via the Internet we have many legal blogs. I have learned from visiting such blogs of who clerked for whom. There have been psychological article on dogs looking like their owners. How might this apply to judicial clerks after they enter legal academia or big law with respect to their legal views compared to the jurist they clerked for? Some of this has been demonstrated following the demise of the late Justice Scalia with many articles by former clerks. Do jurists decide upon a candidate by how closely the latter indicates views similar to the former? Might a candidate express views that the candidate knows coincide with those of the jurist? (I'm thinking of views that are considered either liberal or conservative, or originalism versus living constitutionalism, or even religious views.)

I'm sure a lot of women check out this blog, even though few comment. Perhaps we'll hear from them.

Michael C. Dorf said...

Asher: Sorry, I was unclear. When I asked "who wouldn't want to play for Popovich?", I didn't mean "play for Popovich over Kerr." I just meant if one had a chance to play for the Spurs and Popovich (as opposed to a crappy team, not as opposed to the Warriors or some other championship contender), one would certainly take it.

As for Kerr's quality as a coach, I'm not strongly committed to saying anything about that. It's just an illustration of a type. There are tough-guy coaches and so-called "players' coaches." Some in each category are good or even great. Most are okay. Some are bad. These really are just types for my purposes here. Whether Kerr is a great players' coach doesn't matter to me. The point is that the type exists.