Sen. Mazie Hirono, a member of the Senate Judiciary Committee, has announced that she will question Judge Brett Kavanaugh regarding the alleged sexual misconduct of former Ninth Circuit Judge Alex Kozinski, for whom Kavanaugh clerked 25 years ago. It’s a smart move, in this limited sense: The time Hirono spends on Kozinski will be time in which she does not embarrass herself by discussing substantive law with the brilliant Kavanaugh.
But, like so many other lines of possible attack the floundering Democrats have pursued, the matter of Judge Kozinski will almost certainly be a dry hole for Kavanaugh’s opponents. There is simply no evidence that Kavanaugh knew about Kozinski’s harassment of women and plenty of evidence that he was not in a position to know.
Leslie Fahrenkopf Foley, a summer extern in Kozinski’s chambers during the term that Kavanaugh clerked for Kozinski, has said of the Kozinski chambers that year: “It was a completely professional environment, and I never saw or experienced any harassment, nor did I ever feel uncomfortable.” As for Kavanaugh himself, Foley describes him as “a consummate gentleman.”
Although there is no doubt that Kozinski conducted himself improperly at times, it has not been established that he did so during every court term, much less that he did it in ways that would have been evident to clerks who weren’t targeted. Indeed:
Another former female law clerk to Kozinski, Susan Engel, also claimed that the atmosphere in the Kozinski chambers was professional during the year of her clerkship (2000-01). According to Engel, “At no time during my clerkship, or in the years since, did I see or hear Judge Kozinski sexually harass anyone.”
Sen. Hirono should know better than most that one can work with a sexual harasser without knowing about his inappropriate behavior. As Severino points out, Hirono served with Sen. Al Franken on the Senate Judiciary Committee for four years, presumably without knowing of his propensities.
Kavanaugh is poised to win big on the issue of how he treats female law clerks. Severino reminds us that a majority (25 of 48) of Judge Kavanaugh’s law clerks have been women, and every one of them not precluded from doing so by her current employer has endorsed Kavanaugh. The female former clerks cite the mentoring and support he provides not just during the clerkship, but as they advance in the legal profession. Indeed, according to Severino, 20 of Kavanaugh’s female law clerks have gone on to clerk at the Supreme Court.
No wonder all of his former female clerks (again, excluding the ones who can’t because of their employment status) signed a letter to Chairman Grassley and Ranking Member Feinstein describing Kavanaugh as “one of the strongest advocates in the federal judiciary for women lawyers.”
So fire away, Sen. Hirono. But be prepared to duck.
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