Analysis Law and Policy

After Kavanaugh’s Confirmation, Here’s How to Push Senators to Support Survivors

Jessica Mason Pieklo

With lifetime appointments and deep political ties, federal judges rarely, if ever, face consequences for any abusive behavior.

Just as white women voters pushed President Donald Trump to electoral victory, Sen. Susan Collins (R-ME) helped guarantee Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court. 

On Saturday, the Senate voted 50-48 to confirm Kavanaugh to the highest court in the country, with Collins’ “yes” vote and Sen. Lisa Murkowski’s (R-AK) withdrawn “no” providing Sen. Joe Manchin (D-WV) the political cover necessary to join his Republican friends. Depending on when he’s sworn in, Kavanaugh could begin hearing oral arguments alongside the other eight justices Tuesday.

Kavanaugh will be remembered as one of the most controversial Supreme Court justices in history, one whose confirmation was marked from start to finish by a lack of transparency from both the Trump administration and Senate Republicans. Even before Christine Blasey Ford and Deborah Ramirez and Julie Swetnick came forward with testimony accusing him of sexual misconduct, there was clear evidence that he was not being straightforward with the senators determining his fitness to be a Supreme Court justice. He misled Judiciary Committee members about his role in the selection of some of President George W. Bush’s most radical judicial nominees, including Judge William Pryor. He denied ever being accused of sexual misconduct as an adult and binge-drinking to the point of blackouts in high school and college.  He dodged questions about his knowledge of inappropriate emails sent by Judge Alex Kozinski while clerking for him on the Ninth Circuit Court of Appeals.

But at the end of the process, there were simply not enough senators who believe survivors, believe in the integrity of the judicial system, or both. 

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Blocking the Kavanaugh nomination was always a tall order, but not an impossible one. And I refuse to believe that millions of survivors laying bare their deepest trauma to try and prevent an accused abuser from ascending to power happened for nothing. I refuse to believe this work doesn’t matter. Because it does.

So. What can we do now? 

We can support efforts to elect candidates in the midterms and beyond who will resist Kavanaugh’s appointment. Should Democrats end up in the majority, they will have the power to issue subpoenas for all those documents Republicans kept hidden during Kavanaugh’s confirmation process. They will be able to call witnesses to testify about a whole host of matters, including the assault allegations, to determine if—and more realistically, how much—Kavanaugh lied or misled Senate Judiciary Committee members while under oath.

We can and should take a hard look at expanding the Supreme Court and the number of lower court appointments. There’s nothing in the Constitution that mandates only a nine-justice Court. Both the federal appellate courts and district courts are overworked and under-funded. Democrats, if they take power, should work to open more seats—but block every Trump appointment until he is out of the White House. We all know that if the situation were reversed, Republicans would do the same. 

We can also continue to believe and support survivors in real and tangible ways. I mentioned that Kavanaugh clerked for Judge Kozinksi, who retired in disgrace once a wave of sexual misconduct allegations against him surfaced. But as it currently stands, employees of federal courts, such as law clerks, have limited protections against sexual harassment in the workplace and the kind of sexist culture Kozinski allegedly promoted.

The federal courts are exempt from Title VII of the Civil Rights Act of 1964, which means their employees can’t bring a traditional sexual harassment lawsuit against them. Federal courts employment matters are governed by a different statute and by employee agreements that provide avenues of recourse for victims of abuse and harassment. Employees can file a complaint, which must be first deemed credible before being subject to an investigation that is conducted internally by the court itself. While workers in other sectors can turn to the federal courts when subject to on-the-job harassment, court employees effectively have to turn to their own bosses. It’s a classic fox guarding the henhouse situation. Alternatively, employees can file a complaint under their employment agreement and have their claims subject to an alternative dispute resolution process such as mediation. Either way, those remedies are insufficient.

As attorney Stacy N. Cammarano pointed out on an employment law blog for Katz, Marshall & Banks, “Even if a judicial employee successfully pursues an internal complaint, the possible outcomes are limited and provide no relief to the employee. Federal judges are appointed for life and can be removed only by Congress. Thus, if the judicial council conducts an ethics investigation and finds that the judge engaged in sexual harassment, the most it can do absent an act of Congress is redistribute the judge’s cases.”

With lifetime appointments and deep political ties, federal judges rarely, if ever, face consequences for any abusive behavior. Indeed, Kozinski retired but still draws a pension; his retirement effectively brought to a close any investigation into the claims against him, which means there will not be a full accounting of his behavior. And the federal judiciary as a whole is not required to disclose how many complaints have been filed. There’s no way for the public to know what kind of culture courts employees are subjected to, or whether we as taxpayers are paying the salaries of abusers.

In response to the Kozinski scandal, Chief Justice John Roberts ordered the federal courts to assess how they handle assault and harassment claims. In June, the working group released a report that, with a few exceptions, largely patted the federal judiciary on the back for doing a very good job of policing itself. But we know it took many allegations before Kozinski retired. That alone tells us the current protections in place for these employees are insufficient.

Kavanaugh’s confirmation makes the issue of protecting federal courts employees all the more important. After all, he reportedly liked to hire women clerks who “look[ed] like models,” and female candidates were encouraged to wear short skirts to their interviews. Self-regulating professions like the law only function properly if there is public trust and buy-in. Can we trust the Kozinskis of the judiciary to police the Kavanaughs? And when we do, who stands to lose the most when that trust is violated? Not the Kozinskis and the Kavanaughs, that’s for sure. 

So if members of Congress really believe Ford—and, for that matter, Kozinksi’s accusers—they could strengthen protections for federal courts employees. Implement a way for employees to report harassment that doesn’t rely on the judiciary to police itself. Make the judiciary disclose complaints. Require the federal courts to report to the taxpayers when a judge faces a credible allegation. And remove judges when they’re found guilty.

It would be a small, but important, step in bringing credibility back to the federal judiciary and letting survivors know they are, in fact, believed.

Until then, we have to face the reality that Trump and Republicans successfully appointed a conservative political operative to the Supreme Court, one with deep anti-Democratic resentment and a history of alleged abusive behavior and reckless drinking. In so many ways, Kavanaugh is the perfect Trump justice. The “grab them by the pussy” president put one of his own on the bench. And just like in the 2016 presidential election, it was all with the willing help of white women.

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