Jurisprudence

Kavanaugh’s Kozinski Test

The White House has painted Judge Kavanaugh into a very tight corner when it comes to his former mentor. But we deserve to hear how the SCOTUS nominee thinks about issues of harassment and the workplace.

Brett Kavanaugh surrounded by reporters and photographers in a hallway.
Supreme Court nominee Brett Kavanaugh walks to a meeting on Capitol Hill on Aug. 21.
Zach Gibson/Getty Images

On Tuesday, Supreme Court nominee Brett Kavanaugh will begin his confirmation hearings. Senators will have a chance to ask the nominee whatever questions they think will help them understand what kind of judge he has been on the federal appeals court and what kind of justice he will become as he takes his lifetime appointment on the highest bench in our country. Most predict he is a lock to be confirmed.

Several committee Democrats say they plan to ask Judge Kavanaugh what he knew about the juvenile and predatory behavior his former boss and longtime colleague, Alex Kozinski, directed toward women for at least three decades from the federal bench. It’s a relevant question, considering that the nominee clerked for Judge Kozinski in 1990–91 and later served with him on a judicial selection committee to pick law clerks for Justice Anthony Kennedy. And it’s a particularly timely one, because Kozinski, who retired in December after the allegations surfaced, was never formally investigated and is routinely described in terms of “alleged” misconduct, since no formal findings have ever occurred, nor will they. As we watch men who have been credibly accused of serious sexual misconduct plot their returns to positions of power, it is of course relevant to consider how the legal world—the one ostensibly responsible for adjudicating harassment and predation in our society—is handling the problem within its own ranks.

The reality is that our judiciary has not really had to decide how to handle this problem. There have been task forces dedicated to preventing future occurrences, but there has been no formal investigation into Kozinski’s past actions. In December, after the allegations became public, he released a statement saying: “I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” His retirement announcement reiterated the sentiment that making anyone uncomfortable “was never his intent.”

To reiterate: There never will be an inquiry on the record, and Kozinski will continue to receive his government-funded pension. And because journalism will never provide a conclusive substitute for due process and fact finding, the women who suffered at the hands of Alex Kozinski, like my friends Emily Murphy, Leah Litman, Heidi Bond, and Kathy Ku, must continue to use the fuzzy language of “allegations” when they talk about the abuse they or their colleagues experienced on their path to joining the legal world. As I wrote in December describing my own experiences with the judge, he had a specifically disorienting way of making it feel like he wasn’t crossing any lines, because he insisted that such lines didn’t even exist.

I, for one, am curious to hear what the nominee thinks of this state of affairs. Should there have been a hearing? What does it mean that the branch of government tasked with fact finding and rendering judgement has no conclusions to offer in this matter?

It’s particularly interesting because the White House is clearly of the opinion that Judge Kavanaugh is a champion of women. In July, it sent a letter to the Senate Judiciary Committee signed by 18 of Kavanaugh’s female former clerks attesting to “our uniformly positive experiences with the judge as a boss on issues of gender and equality in the workplace.” Indeed, in his speech on the night he accepted Trump’s nomination, Kavanaugh claimed that “My law clerks come from diverse backgrounds and points of view. I am proud that a majority of my law clerks have been women.”

In July, the women’s rights group UltraViolet issued a call for an inquiry into what Kavanaugh might have seen as a law clerk to Kozinski from 1990–91. This was an entirely reasonable request, given that for many of us, it was hard to sit on a panel or go to a dinner with Judge Kozinski and his law clerks without seeing or hearing some form of hypersexualized grotty dinner theater. In response to this request, the White House issued a statement. Rather than answer the question, it decided to take the approach of labeling this request an “attack,” attempting to “smear” the nominee, before noting:

As predictable as it is shameful, the left-wing partisan smear campaign against a distinguished, lifelong public servant has begun. Everyone who knows Judge Kavanaugh knows he believes all people deserve respect, including at the workplace.

In mid-July, perhaps to pre-empt any questions about what Judge Kavanaugh knew about the Kozinski claims, the White House came out with a remarkable blanket claim that stated flatly that Judge Kavanaugh “had never heard any allegations of sexual misconduct or sexual harassment regarding Kozinski until recently.”

Perhaps this is true. In the months since Kozinski stepped down, it’s become fashionable in some circles to cast doubt on the credibility of his (many) accusers. But at a minimum, the hearings that will open Tuesday offer a perfectly reasonable venue for asking Kavanaugh to elaborate on whether he believes his former boss and mentor, or the women who stepped forward last year. It provides Kavanaugh the opportunity to expand on whether he thinks the lack of formal investigation is a cause for concern, given the volume of accounts and the credibility of the women who have brought the accusations.

Perhaps unsurprisingly, the White House took the needless step of trotting out former Kozinski clerks and interns to make statements that the disgraced former judge was not inappropriate with females in his chambers. Exhibit 1 was Leslie Fahrenkopf Foley, a summer extern in Kozinski’s chambers while Kavanaugh served as a law clerk, who issued the statement: “It was a completely professional environment, and I never saw or experienced any harassment, nor did I ever feel uncomfortable.” Former 2001 Kozinski clerk Susan Engel made the same point to the Daily Caller: “At no time during my clerkship, or in the years since, did I see or hear Judge Kozinski sexually harass anyone. I was shocked by the allegations that surfaced last year. I would be astonished if Brett Kavanaugh had ever heard anything about this.”

It is depressing that it still has to be said, but: Testimonials from women—especially powerful women—do not exculpate accused harassers. As Heidi Bond has noted elsewhere, the fact that Alex Kozinski didn’t comment on Sandra Day O’Connor’s breasts each time he saw her doesn’t mean he didn’t do the same to the staff around him who weren’t powerful.

Let’s be precise and call that latter move what it is: The White House used the absence of any formal findings of fact about the many allegations advanced to counter the complainants who came forward last year. Judge Kavanaugh most certainly does not want to be asked by the Senate Judiciary Committee whether he believes all of the Kozinski accusers are liars. Now that is what he will be asked. To be sure, a confirmation hearing is almost as clumsy a process for getting to the bottom of these questions as is journalism, which is why there should be a meaningful process. But it falls to Kavanaugh, the nominee, to pick his way through it.

If Judge Kavanaugh claims to be a mentor and booster of women, his supporters should be extremely careful about even implicitly tarnishing the women who came forward in good faith with truthful complaints. Shaming accusers into silence is not the method or practice of the American justice system. I believe Judge Kavanaugh has worked hard in service of fair courts. He should not be confirmed on the backs and reputations of the good women who have worked equally hard to the same end. I believe these women are telling the truth, and I imagine many of you do as well. That they were not afforded a process to test their claims does not make them liars. Let Kavanaugh defend what he knew or didn’t know at his hearings. But insult and undermine the Kozinski accusers at the peril of the judiciary and due process itself. This has nothing to do with what Kavanaugh should have known or should have done decades ago. It has everything to do with what he knows and intends to do about it now.