Senate Democrats are gearing up to press Supreme Court nominee Brett Kavanaugh on his decades-long relationship with former Judge Alex Kozinski, who was forced into retirement last year by a mounting sexual harassment scandal.
It’s not just what, if anything, Kavanaugh saw during his time as a Kozinski clerk in the early 1990s that’s on Democratic minds. They also want to know how President Donald Trump’s high court pick would address the judiciary’s ongoing internal reckoning with sexual misconduct that was sparked by Kozinski — one of Kavanaugh’s early mentors who introduced the younger appellate court judge at his Senate confirmation hearing in 2006.
Story Continued Below
“Sexual harassment and workplace misconduct in the federal judiciary is a matter of concern to all of us, including Chief Justice [John] Roberts, who convened a Judicial Conference working group to assess the problem and propose solutions,” Sen. Mazie Hirono (D-Hawaii) said through a spokesman.
“Given Judge Kavanaugh’s close relationship with former Judge Alex Kozinski, the subject of numerous harassment complaints, we need to know what Judge Kavanaugh knew and his views on this serious problem,” added Hirono, who sits on the Judiciary Committee and will have a chance to directly question Kavanaugh at hearings planned for next month.
The topic is a particularly fraught one in the #MeToo era, and something the White House knew might be an issue going into the Supreme Court fight. Critics of Kavanaugh previously raised the Kozinski connection in an opposition research document passed around to try to persuade Trump not to nominate him to replace retiring Justice Anthony Kennedy.
The White House already has stated that Kavanaugh “had never heard any allegations of sexual misconduct or sexual harassment” before the claims against Kozinski began piling up last year. More than a dozen women shared incidents that date back to before the Supreme Court nominee clerked for him.
But whether Kavanaugh should have known about Kozinski’s behavior and was indirectly “complicit” has been much discussed in prominent legal circles.
No evidence has come out to disprove the broad denial on behalf of Kavanaugh, who has taken public pride in hiring a high number of female clerks. But Democrats plan to raise scrutiny nonetheless.
“By their own telling, Judge Kozinski and Brett Kavanaugh have a close relationship,” Sen. Dianne Feinstein (D-Calif.) said through a spokeswoman, noting that the two worked together on a panel that screened prospective clerks for Kennedy. One of Kozinski’s sons also clerked for Kavanaugh.
“The allegations against Judge Kozinski that led to his resignation were extremely disturbing,” added Feinstein, the top Democrat on the Judiciary Committee. “I’ve seen press reports that many of his clerks knew of his behavior and that he maintained an email list where he would distribute offensive material. Given all this, there are questions about whether Kavanaugh was aware of this behavior.”
Kozinski’s sharing of off-color and occasionally sexually explicit jokes through his so-called “Easy Rider Gag List” first became public in 2008, the same year that he requested a misconduct investigation into his reported maintenance of pornographic material on a publicly accessible website. A panel of 3rd U.S. Circuit Court of Appeals judges declined to further sanction Kozinski in that inquiry, however, and his long-term standing was not significantly diminished. He was chief judge of the influential 9th U.S. Circuit Court of Appeals for years.
Indeed, Kozinski and Kavanaugh sat side-by-side in 2015 on a panel hosted by the Federalist Society, where Kavanaugh praised a 1991 article Kozinski wrote about judicial clerkship selection, titled “Confessions of a Bad Apple.”
“I tell everyone still today to read that article because it describes it very well, and what judges are generally looking for — and the importance, frankly, of the hiring for the judge and for the law clerk and how to go through the process,” Kavanaugh said.
Kozinski’s mistreatment of women, according to former clerks and other professional contacts who have spoken out, included sharing explicit material, public unwanted touching and kissing, and squeezing the breasts of a now-retired federal judge after she turned down an offer of sex.
Liberal groups working to derail Kavanaugh’s nomination have also urged senators to delve during the confirmation process into his awareness of Kozinski’s actions, pointing to tweets from former Kozinski clerk Heidi Bond — one of several women to share their experiences of harassment by the now-retired older judge.
Bond, a novelist under the pen name Courtney Milan, said she had no insight into Kavanaugh’s knowledge but tweeted that “the more relevant questions are things like, did he witness anything? Did Kozinski use demeaning language about clerkship applicants as part of the screening process, and what did he do about it?”
Bond declined an interview request for this article through a representative. She is one of more than two dozen women, including several who shared allegations against Kozinski, who helped craft a recent column for The New York Times that laments the shuttering of the judiciary’s official investigation into his behavior following his retirement.
A law professor who also weighed in on the column said she expects Democrats to raise the issue with Kavanaugh.
“I would be shocked if they didn’t ask” Kavanaugh about the connection, said Nancy Rapoport, a law professor at the University of Nevada, Las Vegas, who shared two encounters with Kozinski in December after the allegations against him surfaced. Rapoport added at the time that she had declined to recommend “countless female law students” to clerk with Kozinski.
Asked whether Kavanaugh could have known on even an indirect level about Kozinski’s treatment of the female clerks who came forward against him, Rapoport said: “There are some people that presume that’s true. But I’ve been close enough to people I thought I understood to really not know and not have any predisposition” to knowing.
The White House is fully prepared for and expecting a Kozinski-related line of questioning, an official there said, and considers Kavanaugh’s record in supporting female clerks and colleagues to be exemplary. In remarks after Trump tapped him, Kavanaugh said he was “proud that a majority of my law clerks have been women,” and 18 of those former female clerks signed a letter last month that hailed him for making their industry “fairer and more equal.”
The White House has also collected public statements from three individuals who worked under Kozinski at the same time as Kavanaugh who say Kozinski exhibited no improper behavior at the time.
In fact, for some who want to see senators press Kavanaugh about Kozinski, the most important question isn’t what he knew but what he plans to do about harassment in the judiciary should he be confirmed to the high court.
“I haven’t seen him disavow this conduct. That’s a starting point,” Fatima Goss Graves, president of the nonprofit National Women’s Law Center, said in an interview.
Graves decried a culture within the law where “many people allowed basically generations of clerks to have similar experiences without meaningful consequences,” and a perpetrator like Kozinski could “operate with impunity in ways that really damage careers.”
Her group is opposed to Kavanaugh’s confirmation, but the broader push for stronger misconduct policing in the courts has an ally in at least one high-profile Kavanaugh backer.
Senate Judiciary Chairman Chuck Grassley (R-Iowa) held a hearing in June to spotlight reforms proposed by a Roberts-created working group to examine combating workplace harassment after Kozinski stepped aside.
Grassley praised Bond as “remarkably courageous” at that hearing, noting that “I still have not heard any apology from the Judiciary to these female law clerks who Judge Kozinski victimized.”
And it’s not just activists or Democratic senators who see Kavanaugh’s ties to Kozinski as worth raising.
Washington University law professor Daniel Epps — a Supreme Court expert who, like Kavanaugh, has also clerked for Kennedy — said he does not think that everyone who worked for Kozinski should be “professionally tarred forever.”
“I’m willing to believe that not all these people were aware of how he was treating his female clerks. But it is important to try to figure out the truth here,” said Epps, who has also offered favorable commentary about Kavanaugh. “Especially because Kavanaugh was someone who worked closely with Judge Kozinski for a number of years.”
Burgess Everett contributed to this report.