Editorial Law and Policy

Kavanaugh’s Confirmation Has Become an Anita Hill Moment. Female Senators Owe It to All of Us to Stop It. (Updated)

Jodi Jacobson

Kavanaugh is a misogynist and may have committed sexual assault. Women senators must vote against him on behalf of all of us. And we must make sure they do.

UPDATE, September 16, 3:45 p.m.: Since publication of this article, Sen. Dianne Feinstein (D-CA) has stated she will vote “no” on Kavanaugh. Christine Ford, a professor at Palo Alto University, has come forward to publicly share her story of alleged assault by Kavanaugh.

As far as I am concerned, there are now more than enough reasons for any senator to vote against the confirmation of Brett Kavanaugh to the U.S. Supreme Court. And it’s not just because I disagree with his legal philosophy, which I do. Adamantly. Nor is it because I think he would not hold Trump accountable, about which I am also deeply concerned.

It’s because in his confirmation hearings, Kavanaugh lied and was evasive when he should have been straightforward and honest. This is conduct unbefitting of a justice of the Supreme Court (or any court for that matter). Moreover, outside of those hearings, we’ve learned he almost certainly tolerated abusive and misogynistic behavior toward female colleagues by his mentor, disgraced Judge Alex Kozinski.

And now Kavanaugh himself has been accused of sexual assault. The allegation was first reported by Ronan Farrow and Jane Mayer in the New Yorker, with additional details later added by CNN. According to his accuser, who has not yet spoken publicly, “Kavanaugh physically pushed her into a bedroom …. Along with another male, Kavanaugh locked the door from the inside and played loud music that the accuser said precluded successful attempts to yell for help.” The CNN report continues:

Both men were drunk, she said, and Kavanaugh attempted to remove her clothes.

At one point, Kavanaugh was on top of her laughing as the other male in the room periodically jumped onto Kavanaugh. Kavanaugh held his hand over her mouth at one point, and she said she felt her life was inadvertently in danger.

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She reportedly sought medical attention after the alleged assault.

Kavanaugh has vehemently denied the charges. He may be innocent. But these charges nonetheless deserve a full and open hearing, especially because we already know he’s lied on other issues. And because his main defender and the other male alleged to have been in the room, conservative commentator Mark Judge, writes of being a blackout drunk during high school.

I realize that even in 2018 our standards for men in leadership remain very, very low. Disgracefully low. I realize we have Donald Trump as president. I realize Trump has surrounded himself with liars, misogynists, and abusers. I realize Ohio congressman and professional conspiracy theorist Jim Jordan continues to wander the halls of the House with dreams of becoming Speaker, having so far escaped any censure for what appears to be complicity in the sexual harassment and assaults of college wrestlers he coached. I realize Clarence Thomas is on the Supreme Court. I realize that men who have assaulted women are ubiquitous in our society and often ascend further up the ladder of power, while women suffer.

But this has got to stop at some point. And that time is now. A higher level of responsibility rests with those in power to protect others. And there are enough women in power in the Senate to delay or outright kill this nomination. In fact, it is the responsibility of every woman in the Senate to stand up for all of us and say: “No. Brett Kavanaugh cannot sit on the Court.”

That means that the five women senators who now remain on the fence must take a stand. Immediately. They include Sens. Susan Collins (R-ME), Heidi Heitkamp (D-ND), Claire McCaskill (D-MO), and Lisa Murkowski (R-AK), all of whom astoundingly remain “neutral” or are waffling, according to Indivisible’s tracker.

This group also includes Dianne Feinstein, the ranking member of the Senate Judiciary Committee. Feinstein has not made her final position known, likely in part because of her role on the committee. But she held onto a letter from Kavanaugh’s accuser for nearly two months, during which the person in question first wanted to go public but then decided against it, perhaps due to inaction, disinterest, or dissuasion from Feinstein and her staff. The accuser then changed her mind when she began to perceive Kavanaugh’s confirmation as “inevitable.”

But his confirmation is not inevitable. No. It is on all of us to make sure these women senators know that they must act in the interests of all women in this country now and for decades to come. I am not absolving male senators of responsibility. But it happens that right now we are facing the possibility of having a radical anti-rights jurist, a tolerator of misogynistic behavior, and an alleged attacker on the Supreme Court, and it is time for female legislators to step up, collectively.

Something is very, very wrong with the Kavanaugh nomination, and it seems clear the GOP knew it from the get-go. Recall that Mitch McConnell was against nominating Kavanaugh from the beginning, because, as the New York Times reported McConnell believed that Kavanaugh’s “lengthy paper trail … would pose difficulties for his confirmation.” But Trump chose Kavanaugh anyway. In what now clearly is an intentional strategy of “obstruct-and-rush,” the GOP has withheld documents relevant to Kavanaugh’s background so that the paper trail is not public. And they’ve fast-tracked his nomination process, acting like they are looking over their shoulders all the time at what might otherwise come after them.

Maybe now we know what that was.

Within hours of the first reporting on the letter from Kavanaugh’s accuser, Iowa Republican Sen. Chuck Grassley miraculously pulled from his back pocket a testimonial to Kavanaugh-as-perfect-gentleman from 65 of his closest female friends from high school. That Kavanaugh went to an all-boys school seems not to have been a deterrent to finding all these women overnight. I’m guessing the GOP knew about the accusations all along and was “prepared” should they come out. That alone is vile and disgusting and should be grounds for every senator to vote against this man, although that would also require Republicans to admit their party is engaged in vile and disgusting behavior. I will continue breathing.

We now know that Kavanaugh’s paper trail contains damaging materials because the few documents that have become public have in fact proved damaging. First, there is the case of the emails, about which I wrote here. Emails belatedly made public during Kavanaugh’s confirmation hearings reveal that he appears to have lied about handling of information stolen from the Senate Judiciary Committee during the George W. Bush administration. Lisa Graves, co-director of the corporate watchdog Documented and a former chief counsel of the Senate Judiciary Committee, is certain Kavanaugh lied under oath about these documents and should be impeached.

Then there is his dissembling about other work he did in the Bush administration. For example, Kavanaugh was at best cagey about his role in handling the nomination of controversial conservative judicial nominee Charles Pickering. He misled under oath on whether he considers Roe v. Wade “settled law,” a meaningless term in any case, but one on which Kavanaugh dissembled. He’s conveniently “forgotten” about email chains containing racist comments and emails in which, after a weekend away with a group of men, he cautions his pals to be “very, very vigilant w/r/t confidentiality on all issues and on all fronts, including with spouses.” There’s the continued mystery of large debts. And as Vox details, he has provided concerning responses to a number of written questions submitted to him by senators last week.

What really turned my stomach, however, was an article further detailing the alleged abusive behavior of accused sexual harasser Judge Alex Kozinski, for whom Kavanaugh clerked and with whom he remains very close.

Kozinski has been accused of sexual harassment by at least 15 former clerks, who reported being subjected to “unwanted sexual comments or physical contact, including kissing, hugging, and groping.”

“The allegations spanned decades and included colleagues as well as women who met him at events,” according to the New York Times.

In fact, virtually all available reporting on Kozinski’s behavior makes clear that sexual innuendo, sexual harassment, pornography, and lewd behavior were a mainstay of his chambers. His behavior was also often public, widespread, and well known.

Writing in Slate, Heidi Bond, a former Kozinski clerk and victim of his harassment, details the distribution and contents of an email list created and maintained by Kozinski, known as the “Easy Rider Gag List.”

According to Bond, Kozinski would “send sexually explicit and otherwise raunchy jokes; the existence of the list was first publicized in 2008.”

Kavanaugh has claimed not to have known about this list or any of Kozinski’s behavior. Bond is incredulous:

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,” Bond writes, “leaves me wondering whether Kavanaugh and I clerked for the same man.”

“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.”

“Kavanaugh’s relationship with Kozinski,” she continues, “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.’” And:

In that same article, which Kavanaugh has approvingly referenced, Kozinski states that “[j]udge and law clerk are [in fact] 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.)

But Kavanaugh remained close to Kozinski. Mother Jones‘ Stephanie Mencimer writes:

Kavanaugh clerked for Kozinski in the early 1990s, and both Kozinski and Kavanaugh clerked for Supreme Court Justice Anthony Kennedy—Kozinski when Kennedy was serving on the 9th Circuit, and Kavanaugh at the Supreme Court. The pair also worked together to vet potential clerks for Kennedy, whose seat Kavanaugh seeks to fill. One of Kozinski’s sons clerked for Kavanaugh on the DC Circuit. In 2015, Kavanaugh and Kozinski appeared together on a panel organized by the Federalist Society, the conservative judicial organization supporting Kavanaugh’s nomination.

In her article, Bond goes on to describe in very graphic detail some of the emails sent to the “Easy Rider” list by Kozinski, which I will not repeat here. She maintains—and she makes a compelling case—that Kavanaugh almost certainly received those emails. In fact, she’s clearly laying out a trail of crumbs for reporters to follow.

“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,” Bond writes.

It is one thing for consenting adults to engage in sharing sexually explicit materials. It’s another thing altogether to make the circulation of such materials by a boss (in this case, Kozinski) a de facto condition of your job.

And it’s yet another thing to elevate a man, Kavanaugh, to the Supreme Court who almost certainly participated directly or indirectly in the daily sexual harassment of his colleagues by their boss and was silent in the face of abusive behavior. The prospect that he allegedly assaulted at least one person makes his nomination untenable.

We are in an Anita Hill moment. It is 2018, but it might as well be 1991. Only this time, the role of Joe Biden is potentially being played by five female senators.

That is not acceptable. It is not inevitable. Female senators can stop this. They must vote no. And we must make them.

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