Jurisprudence

I Received Some of Kozinski’s Infamous Gag List Emails. I’m Baffled by Kavanaugh’s Responses to Questions About Them.

Kavanaugh has said repeatedly that he does not remember whether he received inappropriate emails from the now-disgraced judge. Has he looked?

Brett Kavanaugh.
Supreme Court nominee Judge Brett Kavanaugh testifies before the Senate Judiciary Committee during the second day of his Supreme Court confirmation hearing on Capitol Hill on Sept. 5.
Chip Somodevilla/Getty Images

When I came forward in December about my experience in Judge Alex Kozinski’s chambers, I said that when he showed me pictures of naked people without my co-clerks present, I felt isolated. Had they been there, I explained, “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.”

Those chamberswide jokes that I alluded to have now become an issue in Supreme Court nominee Brett Kavanaugh’s confirmation hearings. Kavanaugh clerked for Kozinski in the early 1990s and has maintained a close personal relationship with the judge. When Kavanaugh was nominated to the U.S. Court of Appeals for the District of Columbia Circuit in 2006, it was Kozinski who introduced him to the Senate.

For years, Kozinski maintained an email list known as the “Easy Rider Gag List,” to which he would send sexually explicit and otherwise raunchy jokes; the existence of the list was first publicized in 2008. In his hearings, Kavanaugh was asked by Sens. Orrin Hatch and Mazie Hirono if he was aware of the email list, and if he had received emails from Kozinski with sexually explicit content. In response to these questions, he said he couldn’t recall anything like that. And, in response to a written question for the record—“Has Judge Kozinski ever made comments about sexual matters to you, either in jest or otherwise?”—Kavanaugh responded, “I do not remember any such comments.”

This last response leaves me wondering whether Kavanaugh and I clerked for the same man. Kozinski’s sexual comments—to both men and women—were legendary. When I first arrived in chambers, the outgoing clerks suggested that we should watch The Aristocrats, a documentary about a notorious dirty joke, to prepare ourselves for the upcoming year. Kozinski’s email list had hundreds of participants, and some of the jokes he shared were incredibly off-color. Kozinski has repeatedly said in interviews that he learned to write from reading Playboy (see this NPR interview from 2004, one of multiple public venues where he has mentioned this.) And in his statement announcing his retirement, which he released after 15 women had come forward with allegations of sexual misconduct against him, he said that he “had a broad sense of humor and a candid way of speaking to both male and female law clerks alike.”

Kavanaugh’s relationship with Kozinski started as a judge-clerk relationship—a relationship that Kozinski describes as “the most intense and mutually dependent one outside of marriage, parenthood, or a love affair.” In that same article, which Kavanaugh has approvingly referenced, Kozinski states that “[j]udge and law clerk are tethered by an invisible cord for the rest of their mutual careers.” Over the years, that invisible cord has been short for Kozinski and Kavanaugh. They have sat on panels together and co-authored books. (In the hearings, Hatch asked Kavanaugh questions about how frequently the two men spoke, and Kavanaugh answered “not often,” and went on to note that Kozinski worked in Pasadena, California, while Kavanaugh currently works in D.C.)

I did not have as strong a relationship with Kozinski. But having clerked in his chambers, I do not know how it would be possible to forget something as pervasive as Kozinski’s famously sexual sense of humor or his gag list, as Kavanaugh has professed to in his hearings. Kozinski regularly regaled his clerks with jokes from his gag list, and many list members were former clerks. During my clerkship, he forwarded me four gag list emails as teasers for what I could expect if I joined. (He also sent me one email after I left.) Some of the jokes he forwarded were innocuous; others were disturbing.

People on the gag list were identified by “handles.” Before I left chambers, Kozinski informed me of the handles chosen by those of my co-clerks who had joined the list and told me I needed to come up with my own. After the end of my clerkship, in an email exchange with Kozinski in which I told him to put me on the list, his emailed response was “You need a handle.” (For the record, I half-heartedly came up with a handle a few weeks later, and when he didn’t add me to the list, I sighed in relief and didn’t push the matter.)

Here is what I know about the Easy Rider Gag List, based on the emails that were forwarded to me by Kozinski. It has been around since at least 1995, the vintage of the oldest email that he forwarded to me during my clerkship, and it was run from the email address kozinski@mizar.usc.edu. The practice of identifying people by their self-chosen handles appears to have started sometime between 1995 and 1997.

Here’s one of the forwarded emails I received. As you can see, some of the jokes aren’t that bad:

Date: Tue, 27 Jun 2000 17:43:51 -0700 (PDT)

From: The Easy Rider

To: Easy Rider Gag List

Subject: Men are from Mars

 

From: The Immigrant Journalist

 

A man is driving down a road. A woman is driving down the same road in the opposite direction.

 

As they pass each other, the woman leans out the window and yells, “PIG!”

 

The man immediately leans out his window and replies, “BITCH!”

 

They each continue on their way and as the man rounds the next corner, he crashes into a pig in the middle of the road.

Other jokes were both sexist and sexual, like this 1997-era quiz, which I will excerpt (you can read the full email here, and another example here):

———- Forwarded message ———-

Date: Wed, 22 Oct 1997 01:00:27 -0700 (PDT)

From: The Easy Rider

To: Easy Rider Gag List

Subject: Rogue Male (P&T)

 

From: The Big Ukrainian

 

Are You an Unreconstructed, Right-on, Rogue Male Or a Delivery Boy of the New Male Order? Are You a Man or a Louse? Find Out Below.

 

1. A woman whispers “Do me now, big boy…” in your ear. She is obviously:

 

a) Short sighted.

b) Attempting to overcome a lack of self-esteem through meaningless sexual gratification.

c) Begging for it.

d) A recording.

 

2. In the company of feminists, coitus should be referred to as:

 

a) Sex.

b) Fucking.

c) Enclosure.

d) The pigskin bus pulling into tuna town.

Others were utterly disgusting. The reporter who broke the story of the gag list for the Los Angeles Times in 2008 must have had this email, as it’s described in relatively mild terms. I do not think the story conveys exactly how repugnant this email is. (You can read it in full here.)

The premise of the email is that a man is writing to his wife, Tina, who has recently left him, to tell her how much he misses her. It starts like this:

I know the counselor said we shouldn’t contact each other during our “cooling off” period, but I couldn’t wait anymore. The day you left, I swore I’d never talk to you again. 

It goes on to describe several explicit sexual encounters the man has had with other women, like this one:

She was young, Tina, maybe 19, with one of those perfect bodies that only youth and maybe a childhood spent ice skating can give you. I mean, just a perfect body. Tits you wouldn’t believe and an ass like a tortoise shell. Every man’s dream, right?

But as I sat on the couch being blown by this coed, I thought, look at the stuff we’ve made important in our lives. It’s all so surface. What does a perfect body mean? Does it make her better in bed? Well, in this case, yes.

Part of the joke is that the man doesn’t remember the name of the wife who he supposedly can’t forget:

Later, after I’d tossed her about a quart of throat yogurt, I found myself thinking, “Why do I feel so drained and empty?” It wasn’t just her flawless technique or her slutty, shameless hunger, but something else. Some niggling feeling of loss. Why did it feel so incomplete? And then it hit me. It didn’t feel the same because you weren’t there, Terri, to watch. Do you know that I mean? Nothing feels the same without you, baby.

It ends with a graphic description of an encounter the man has with his ex-wife’s kid sister:

And then it turns out Shannon’s really into the whole anal thing and that gets me to thinking about how many times I pressured you about trying it and how that probably fueled some of the bitterness between us. But do you see how even then, when I’m thrusting inside the steaming hot Dutch oven of your sister’s cinnamon ring, all I can do is think of you? It’s true, baby. In your heart you know it.

Alex Kozinski forwarded these emails to me while I was clerking for him—and they were so in line with the pervasive chamberswide environment that, when I wrote an account of the sexual harassment I experienced that year, I chose not to mention them beyond a single reference to “inappropriate” chamberswide jokes. Kozinski exposed us to this sort of material almost every day of the clerkship. The only way that Kavanaugh could not recall any comments about sexual matters would be if he had amnesia about the clerkship in its entirety.

I am less certain that he would have had to know about the gag list, but only slightly so. Kozinski pressured me to join; it’s hard to imagine that he wouldn’t have approached Kavanaugh. It wasn’t required that former clerks would join his gag list, but there was intense pressure to remain in the good graces of a boss who would still be needed for recommendations. Clerks were also asked to join at the end of a year in which we were repeatedly exposed to humor like what I have shared here, which desensitized us to typical norms of decency. Most importantly, unlike Kozinski’s harassment, those who participated in his gag list did so consensually. I would never condemn any of Kozinski’s former clerks on the basis of joining. (I strongly suspect some joined and just trashed the messages.)

But when asked directly and under oath whether he was on this list or whether he received any inappropriate emails from his former mentor, Kavanaugh has said that he can’t remember. Here are his written answers to even more specific questions on the matter, posed by Sen. Chris Coons, a Democrat from Delaware:

g. It has been reported that Judge Kozinski had a sexually explicit email list, called the Easy Rider Gag List. Did you ever receive an email from this list? If it is necessary to refresh your recollection, please review your email accounts before answering this question.

RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.

h. Have you conducted a search of your email accounts and/or correspondence with Judge Kozinski in an effort to provide an accurate response to the preceding question? If not, why not?

RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.

It really is a shame that, while being reviewed for a seat on the highest court in the land, and while framing himself as a champion of women, Kavanaugh could not find the time to search his emails to answer this question more precisely.

But since Kavanaugh won’t go looking for the answer, we can help him out.

After hearing senators question Kavanaugh about the gag list, I went back through the emails I received from Alex Kozinski. Those messages reveal that, for those correspondents who were on his gag list, Kozinski labeled them in his address book by their handles instead of their names—something I had noticed for those clerks whose handles he had disclosed to me.

But there’s a little quirk at play with his mailing program. Up until at least 2008, the handles he set for them would show up in place of their names on any emails Kozinski sent out—not just the ones he sent to the gag list.

Here is an email I was cc’d on after leaving my clerkship, along with other former clerks. I have blacked out email addresses and real names for privacy reasons; I have also edited handles (in blue) whose nature would easily identify the person in question. As you can see from the “to” list, some of the people just show up as email addresses in the address book, or, in one case, as the person’s real name. Others show up under their handles, e.g. “The Big Ukrainian,” “Tank,” and “Headboy.” Those, presumably, are the people who were on Kozinski’s gag list.

Meta-data featuring handles like Headboy, Cool Dude, and cujo, for an email sent to the Easy Rider Gag List.

There’s an easy way, then, to figure out whether Kavanaugh was on Kozinski’s Easy Rider Gag List. All we need is an email sent before 2008 from one of Kozinski’s personal accounts—either kozinski@usc.edu (which is listed in this Wall Street Journal op-ed) or alex@kozinski.com (which is listed in this blog post)—that went to Kavanaugh’s personal (not his court) email account. The header on that email will tell us what name Kozinski uses for Kavanaugh in his personal address book.

If there is no handle, or if Kavanaugh is listed under his real name, he probably wasn’t on the gag list. But if he has a handle, there’s a strong probability that Kavanaugh also received emails like the ones I’ve excerpted here.

Who could provide such an email? Given Kozinski’s prolific emailing habits, there are probably dozens of people who received messages from the judge in which Kavanaugh was cc’d.

Does it matter if Kavanaugh received these emails? Personally, I don’t think that the receipt of those emails should be disqualifying. Likewise, I don’t think it would be inherently disqualifying if Kavanaugh heard Kozinski speak about sexual matters.

This country is in desperate need of honest conversations about how sexual harassment thrives. I am more willing to support someone who has thoughtfully considered his past than someone who is unable, even in hindsight, to recognize ways in which he could have been a better ally to women.

What I find disturbing is that when faced with a few simple questions, Kavanaugh decided that evasion was a better path than introspection. We should demand more from a nominee to the Supreme Court.

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