Mazie Hirono, senator from Hawaii and, lately, giver of no fucks, will have her chance to question Supreme Court nominee Brett Kavanaugh Wednesday, and one query in particular will come as no surprise. Since January, Hirono has asked each and every nominee, judicial or otherwise, whether they’ve ever sexually harassed or assaulted anyone, or been disciplined for doing so.
“Any time there’s a power situation, these kinds of behaviors can occur, and I just want to make sure that this does not get swept under the rug,” she told me last week. “Since time immemorial we women have been having to put up with this bullshit.”
Kavanaugh’s hearing presents both the highest-profile forum yet for this line of questioning, and an opportunity to complicate it. That’s because for all you heard on the first day of the hearings about Kavanaugh’s exemplary relationships with women — coaching them, mentoring them, hiring them, working on cases with them (anything but denying them an abortion) — Hirono is interested in hearing more about Kavanaugh’s longstanding ties to one disgraced man, his former boss Judge Alex Kozinski, who retired in December after being accused of touching or making unwanted sexual comments toward 15 women, some of them clerks. “I’d like to know what kind of awareness did Judge Kavanaugh have about Judge Kozinski’s behavior, which spread over years,” says Hirono.
A White House spokesman said in July that Kavanaugh “had never heard any allegations of sexual misconduct or sexual harassment by Judge Kozinski” before they were reported in the Washington Post.
Kavanaugh clerked for Kozinski, then on the Ninth Circuit Court of Appeals, from 1991 to 1992. Until recently, the two were part of an elite group that pre-interviewed law students for clerkships with Justice Anthony Kennedy, whom Kavanaugh seeks to replace. The two men sat on panels together; on one at the Federalist Society, Politico reported, Kavanaugh “praised a 1991 article Kozinski wrote about judicial clerkship selection, titled ‘Confessions of a Bad Apple.’” He even hired Kozinski’s son to clerk for him. Bill Burck, the lawyer who is charged with deciding which of Kavanaugh’s documents get publicly released, is a former Kozinski clerk who represented the judge after the accusations.
When Kozinski retired, he copped to a “broad sense of humor and a candid way of speaking to both male and female clerks alike,” and apologized for not having been “mindful enough of the special challenges and pressures that women face in the workplace.” His decision to leave the court also effectively killed an investigation into his conduct and ensured he could keep collecting retirement benefits; more recently, like more than a few accused men, he started tiptoeing back into the public eye, to the concern of the women who faced significant risks in going public about his behavior towards them.
Two former clerks have said that Kozinski asked them to look at porn on his server: “Does this kind of thing turn you on?” the judge asked, according to Heidi Bond, who clerked for Kozinksi from 2007 to 2009. Any judicial clerkship is walled by silence, ruled by the unquestioned power of the judge/boss, who has a lifetime appointment and enormous influence over the future of a young lawyer’s nascent career. But Bond wrote that Kozinski was explicit about their unequal relationship: “I control what you read, what you write, when you eat,” he said. “You don’t sleep if I say so. You don’t shit unless I say so. Do you understand?”
Then there was the law student who said Kozinski groped her breast while pretending to look at her name tag; the law professor who said he pinched her thigh while bragging about having just had sex; the other law professor who said that as a young clerk, Kozinski took her to drinks and asked her, “What do single girls in San Francisco do for sex?”
Would Kavanaugh have known about any of this? Perhaps Kozinski was on his best behavior around Kavanaugh, though law professor Dan Epps, who, like Kavanaugh, also clerked for Kennedy, told me even he had heard rumors about it: “People said things like, ‘You don’t want to clerk for Kozinski around women, he’s creepy around women.’ If [Kavanaugh] says he never heard anything, that’s where I raise my eyebrows. Why am I hearing this stuff? I’m nobody. I wasn’t a Kozinski clerk, I didn’t have that much contact with him. I don’t want to call a future Supreme Court justice a liar. But it strikes me as the kind of thing that requires asking a few more questions.”
Some of Kozinski’s conduct was made public long ago. For example, Hirono also plans to ask Kavanaugh if he was on Kozinski’s so-called “Easy Rider Gag List,” an email list that the Los Angeles Times reported on in 2008. According to legal blogger Patterico, it included a “joke” about a man bragging to his estranged wives about a blowjob from a 19-year-old, touting her “tits you wouldn’t believe and an ass like a tortoise shell” and “her slutty, shameless hunger.” The Times also reported that Kozinski had a personal server, which he said he believed to be private, on which he saved email-attachment memes such as “a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal.” Another federal court investigated Kozinski for the server and admonished him, but took no further action.
At the time, Kozinski was fiercely defended in terms that suggested his critics were humorless pearl-clutchers or enemies of the First Amendment. No one stopped to wonder about the fate of the workers subjected to Kozinski’s life-appointed humor. “In retrospect, Kozinski’s colleagues on the bench should have considered whether or not keeping a free flow of pornography in chambers contributed to a hostile work environment at the very least,” wrote Joe Patrice in a recent post on Above the Law.
Kavanaugh’s backers have devoted considerable energy to feeding the storyline that he’s an enthusiastic supporter of women and girls, down to having Condoleezza Rice and self-professed liberal feminist Lisa Blatt introduce him yesterday. So it’s no wonder, according to one Senate aide who was in a meeting with Kavanaugh ahead of his nomination hearings, that the nominee was downplaying his relationship with Kozinski, saying he wouldn’t characterize it as “close.”
One undisputed fact is that after his Kozinski clerkship, Kavanaugh’s legal career thrived, while Bond, despite also clerking on the Supreme Court, chose to leave the profession entirely.
“I just want him to respond under oath,” Hirono says. “And if there’s anybody who comes forward later to say, in fact, Judge Kavanaugh was present at a time when Judge Kozinski used certain kind of language, or expressed certain attitudes, et cetera, then that would be evidence that Judge Kavanaugh was not being forthcoming.”
There’s an argument to be made, offered even by opponents of Kavanaugh’s nomination, that it’s unfair to tar someone by association. Kozinski was such a visible and vocal part of the legal community that lots of people could be implicated for not objecting to what he said or did.
But that’s also what this reckoning is (still) about. When Slate’s Dahlia Lithwick wrote about her own experience with Kozinski as a clerk and, later, a journalist, she didn’t just disclose what he did (ogle her, ask her what she was wearing, alarm others with his physical affection toward her) but also what she did (sit with him at dinners and on panels, keep silent on his open secrets).
“If this moment is going to mean anything,” she wrote, long before Kavanaugh’s nomination, “it has to make room for the realization that every last one of us who gave cover to this type of systematic degradation and abuse of power is at the very least responsible for calling it out for what it was.”
Maybe Kavanaugh knew nothing. Either way, this week, it will be his turn to answer for it.