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Brett Kavanaugh Failed the Alex Kozinski Test

The Supreme Court nominee shows you don’t have to be a sexual harasser to perpetuate a system of abuse.

Last January, Sen. Mazie Hirono announced her intention, in light of the #MeToo movement, to ask every nominee put forward for a federal judgeship about his or her history with sexual harassment and assault. On Wednesday night, the Hawaii Democrat got the opportunity to raise those questions to Brett Kavanaugh, who is currently being vetted for a Supreme Court seat.

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Although Hirono did ask Kavanaugh if he had ever sexually assaulted or harassed anyone—the nominee said no—the more pertinent questions centered on what he knew about former 9th U.S. Circuit Court of Appeals Judge Alex Kozinski, and what he could or could not have done about Kozinski’s behavior. Last December, 15 women came forward to accuse Kozinski of sexual harassment. Some of them clerked for him. Others were law professors, law students, and lawyers. One was a judge. One was Slate’s Dahlia Lithwick, who clerked on the 9th Circuit and recounted how the judge had asked her what she was wearing when she called his chambers. Following the accusations, Kozinski retired, precluding an official investigation into his behavior on the bench. He also released a statement noting that making clerks feel uncomfortable “was never his intent.”

Kavanaugh not only clerked for Kozinski in the early 1990s, he also maintained a long relationship with the judge. In the Cut on Wednesday, Irin Carmon succinctly summarized the professional ties between the two men:

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.

Given what can reasonably be described as their close working relationship, Hirono attempted to assess whether Kavanaugh had ever witnessed or heard about Kozinski’s behavior prior to December. She also followed up on questions posed by Sen. Orrin Hatch about whether Kavanaugh was on a notorious lewd email thread Kozinski ran during his time as a judge.

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There are several remarkable things about this exchange. For starters, Hirono refuses to accept the evasive answer Kavanaugh had already given in response to questions about whether he was on Kozinski’s email chain.

Hirono: Sen. Hatch asked you if you were on this Easy Rider Gag List where judge Kozinski would send inappropriate materials. Your response was that you don’t remember anything like that. Are you telling us that you may have received a steady diet of what people on the list have described as, quote, a lot of vulgar jokes, very dirty jokes, but you don’t remember it?

Kavanaugh: No. I don’t remember anything like that, and I’m not—

Hirono: So, the answer is no.

Kavanaugh: Well …

Hirono (interrupting): Have you ever …

Kavanaugh (interrupting): If I could elaborate?

Hirono: I think that’s a complete answer.

If Kavanaugh was not actually on the list, you would imagine he would want to state this plainly for the record. Given that he didn’t state it plainly, it seems plausible that he was on the list and doesn’t want to take any hits for it, so he’s going to go with “I don’t remember.” That’s the phrasing he repeats several times.

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In response to questions from Hatch earlier on Wednesday, Kavanaugh described the news of Kozinski’s behavior—which he claims to have learned about only last December despite its extreme pervasiveness—as a “gut punch.” And yet, even when that behavior became public, he did nothing about it. He didn’t speak up then, and he won’t say anything now. His exchange with Hirono makes this point painfully clear.

Kavanaugh’s attempt to argue that he and Kozinski were mere professional acquaintances falls flat in the face of the evidence. “He introduced you to the Senate in your 2006 nomination hearing and he called you his good friend,” Hirono said. “Yesterday, you called each of the people who introduced you a friend and I presume you felt that way about Judge Kozinski when he introduced you in 2006. You joined him for panels at the Federalist Society where you patted him on the shoulder and said, ‘I learned from the master about hiring clerks.’ ”

How could Kavanaugh have maintained such a close relationship with the judge for so many years—years during which abuse and harassment was alleged to have happened—without having any idea that his friend was routinely demeaning his employees and other women in the legal sphere? Slate contributor Rick Hasen says such a thing is essentially impossible:

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In response to Hirono’s questioning, Kavanaugh says he would’ve done three things if he’d heard the allegations against Kozinski:

I would have called Judge Tom Griffith on our court, on the codes of conduct committee for the federal judiciary appointed by Chief Justice Roberts. I would have called Chief Judge Garland, chair of the executive committee. I would have called Jim Duff, head of the administrative office of the U.S. courts. If for any reason I was not satisfied with that, I would have called Chief Justice Roberts directly and said …

But Kavanaugh didn’t call anyone, because he claimed he didn’t know anything.

Hirono attempted to home in on Kavanaugh’s professions of ignorance, and what they might tell us about how harassment persists. “This is why the #MeToo movement is so important,” she said, “because often in these kinds of situations where there are power issues involved, and certainly there are between judges and clerks, that often, you know, it’s an environment where people ‘See nothing, hear nothing, say nothing.’ And that’s what we have to change.” Kavanaugh’s reply: “I agree with you, senator. I agree completely. There need to be better reporting mechanisms. Women who are the victims of sexual harassment need to know who they can call, when they can call.”

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Based on everything we know, Kavanaugh is a man who does not harass or abuse women. Far from it—he is a man, it seems, who actively works to empower women. (For the sake of argument, let’s put aside for a moment his interest in restricting their ability to access reproductive health care.) The majority of his law clerks, it has been noted again and again, were women. All of the women who clerked for him (and whose current positions do not prevent them from speaking publicly) signed on to a letter of support for the judge. He has repeatedly invoked his mother’s career in law as part of his inspiration for working toward gender equity in the legal world. Is this really someone who we want to argue is not a champion of women?

I think it is. You don’t get to be a champion of women if you support some women while turning a blind eye to the sexual harassment your friend perpetuates for decades in his (and your former) workplace. You are a champion of women if you stop harassment. In the days after he heard the Kozinski claims, did Kavanaugh, one of the few people who even had the option of reaching out to the illustrious list of contacts he names, make any of those calls to suggest the judiciary take these women’s claims seriously? Did he urge the judiciary to act? Did he call the women who had spoken out and ask what he could do to help? We have no evidence that he did any of those things.

This is, admittedly, an extremely high bar, but it’s the exact right height for people who are in positions of power. As a federal judge who was part of a pipeline for Supreme Court clerkships, Kavanaugh had this kind of power. And as a nominee to the high court who has positioned himself as a champion of women, he should be held to the highest possible moral standard.

If people in power do nothing after feeling a “gut punch” upon hearing about abuse within their workplaces, nothing will ever be done to remedy harassment. Kozinski got away with harassing women for 30 years because, in basically every case, there was an enormous power differential between him and those women. When Kavanaugh says “women who are the victims of sexual harassment need to know who they can call, when they can call,” I have no idea what he is talking about. Even after the Kozinski revelations have been made public, there still is no good system for clerks to receive clarity on what they can and cannot share, based on the confidentiality rules to which they are still bound.

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More broadly, there is no universal hotline we can set up for women to call when they are abused by their bosses. There is a collection of human beings, people who are not abusers and who do not want abuse to happen, who have to perform the function we all wish we could outsource to anyone else. Kavanaugh claims he would have spoken up. It’s a nice sentiment. It’s also an extremely easy one to express once you think there’s nothing left to do.