The Shame of Resignation

Based on what I know of the case, I agree with the informed observers who say that Judge Alex Kozinski broke no law and didn't even do anything especially embarrassing in failing to secure his personal web server against people looking for dirt. (In the interest of full disclosure, I also should say that, even though I don't agree with all of his opinions, I have been an admirer of Judge Kozinski since the time he interviewed me for a clerkship nearly 20 years ago, and I got to know him during my clerkship with Judge Reinhardt, as the two Ninth Circuit titans are good friends.) Thus, I consider absurd the calls for Judge Kozinski's resignation (or impeachment!) by a small number of self-appointed moral guardians (like this one by the Concerned Women for America).

Here let me suggest that even if Judge Kozinski were terribly embarrassed by the fact that he finds some oddball (but non-obscene) porn amusing (and perhaps even titillating), the worst thing he could do to himself would be to resign. Consider the following short bipartisan list of actors caught in embarrassing sexual scandals in chronological order:

1. Clarence Thomas---Complete denial and defiance. Result: Some embarrassment, ongoing anger, but he continues to sit on the Supreme Court and the people who don't like him mostly don't like him because they disagree with his jurisprudence rather than because of the crude and inappropriate sexual remarks he allegedly made to female subordinates two decades ago. After all, Bill Clinton later raised the bar for inappropriate behavior by high-ranking federal officials.

2. Bill Clinton---Angry denial, followed by obfuscation, misleading or downright dishonest statements and attempted cover-up. Result: Impeachment, considerable embarrassment, probably costing Al Gore the 2000 election but Clinton himself survived and was politically popular long after his Presidency, at least until his outbursts during his wife’s Presidential campaign.

3. Larry Craig---Guilty plea, announcement of resignation, followed by refusal to resign and instead serve out his Senate term but not to run for re-election. Result: Craig is a laughingstock and reliable butt of late-night tv jokes.

4. Eliot Spitzer---Admission followed by resignation. Result: Spitzer is a laughingstock and reliable butt of late-night tv jokes.

From these examples, it appears that the worst thing a public official can do if caught in a sexually charged situation is resign or announce his intention to resign, because that tends to validate the shamefulness of the conduct. Sure, people remember and discuss Anita Hill and Monica Lewinsky, but that’s not ALL they remember about Clarence Thomas and Bill Clinton, respectively. One way to see this is to note that the relevance of Hill and Lewinsky to popular attitudes about Thomas and Clinton tends to track party loyalties (or at least they do for Thomas and did for Clinton prior to the 2008 primaries). By contrast, Craig and Spitzer are bipartisan laughingstocks.

Obviously there is a limit to the “don’t resign” principle. If a public official were conclusively shown to have committed rape or child molestation, then failure to resign would hardly shield him from the (wholly appropriate) damage to his reputation. But where, as in the Kozinski case, there isn’t any serious wrongdoing even on the worst version of events, resigning appears to be the worst possible course.

Posted by Mike Dorf