Sen. Mazie Hirono, a Democrat from Hawaii, revealed this week, without fanfare or drama, a new series of questions she intends to ask every nominee who appears before the Senate Judiciary Committee: Anybody being vetted for federal judgeships will now be asked about sexual harassment and assault.
As Hirono explained, her decision is in response to the surge of sexual harassment and assault reports that started in Hollywood but have also touched those with lifetime appointments in the federal judiciary. Her intention going forward is to use some of her limited time to ask every nominee, judicial or otherwise, who appears before her in a confirmation hearing the two following questions: “Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?” and “Have you ever faced discipline or entered into a settlement related to this kind of conduct?”
She got her first opportunity on Wednesday, when she posed them to Kurt Engelhardt, nominated for a seat at the 5th Circuit Court of Appeals:
Engelhardt answered, “No Senator,” to both questions. But for Hirono, this is her way of creating a record. She is laying down a public marker that this matters and must be spoken aloud.
In her statement, Sen. Hirono noted that in his year-end statement on the state of the judiciary, Chief Justice John Roberts explicitly noted that “Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune.” Roberts was presumably referencing reports about Judge Alex Kozinski―a judge on the 9th Circuit—who retired after reports of inappropriate touching and comments directed at clerks and other women surfaced in December 2017. Roberts has convened a task force, named on Friday, to examine the problem.
But this isn’t sufficient for the senator from Hawaii, who wants to be clear that the on-ramp to the federal judiciary is not free from oversight on these issues. I asked Hirono, in a phone interview Wednesday afternoon, why she was choosing this moment to take this stand, in this way, at this time. She replied:
It was one of the moments of my life when I had to think about the behavior women have had to put up with from time immemorial, and suddenly we are in this moment and I just didn’t want all of it swept under the rug again. So I asked the question of every nominee, not just the judicial nominees, although they will have lifetime appointments, but every nominee should expect to be asked in future. Today the nominee said no and it was no, and that was that. And that is how it should be. I want them to know that this is about to become normal.
When I asked the senator whether it was fair that a woman in the Senate was shouldering the burden of systematically addressing this issue (Hirono was one of the first senators to call for Al Franken to retire), she replied, “Yes. I did think to myself that if a woman didn’t ask about this it wouldn’t get asked, yes.” She told me it is her intention to ask this question of all nominees, male and female, going forward.
Finally, I asked Sen. Hirono, who is a lawyer, whether this #MeToo moment and her confirmation-hearing questions can serve as an adequate substitute for actual legal and investigative processes needed to smoke out workplace harassment. Her response:
We are still very much in a development phase, yes. We still have Title VII which prohibits workplace discrimination. We have the case law and the statutes. But in today’s hearings, those words needed to be implemented, to be asked and answered, until we have case law that really covers what is happening. This is all still evolving. And as I said, women have been putting up with this behavior since time immemorial. What I am trying to do is keep attention paid to this issue right now. I know that as we go along, we will have more effective ways to prevent and even, if need be, to punish this behavior. And of course it will all have to start with education. But we are all part of the culture. So if we say it, we become aware, and we can become more aware as we develop processes and ways to fight back.
What Hirono is trying to do, and what everyone on the Senate Judiciary Committee should be striving to do, is simple but vitally important: If, as we learned last month, there is virtually no off-ramp for lifetime-appointed judges who behave in inappropriate ways toward women, serious scrutiny on the front end becomes even more crucial. This is particularly relevant because in recent months, we’ve seen a pattern of shoddy Trump judicial nominees with shocking records stacked up in panels without time for questioning, just as bipartisan systems to assess their fitness are jettisoned. And this is happening at precisely the moment when we learn that predation in the judicial branch can occur in plain sight over decades, without systems to report, investigate, and check it. Considering all of this, the Senate should not be abandoning its constitutional duty to confirm fit judges; it should be strengthening it. And yet, the nominees sail through because judicial fitness is a norm that has all but vanished.
Mazie Hirono has no illusions that her sequence of two questions will topple any nominee. That isn’t the point. She is laying down a moral marker, putting the nominees, and her colleagues, and the country on notice that the only way to change the culture of harassment, including on the federal bench, is by asking the questions, getting on-the-record answers, and making it clear that this will not be swept back under the carpet.