Bench Memos

Law & the Courts

Senator Mazie Hirono is Out of Line

The United States Constitution vests in the Senate the “advice and consent” power to prevent the President from appointing “unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity,” as Alexander Hamilton wrote in Federalist No. 76.

Never was this power intended to give Senators the opportunity to engage in cheap and baseless character assassination of highly qualified nominees, which is exactly what Senator Mazie Hirono (D-Hawaii) appears to be preparing for Supreme Court nominee Brett Kavanaugh.

Specifically, Hirono has stated that she will question Kavanaugh regarding the alleged sexual misconduct of former Ninth Circuit Judge Alex Kozinski, for whom Kavanaugh clerked over a quarter century ago.  Hirono wrote in an email, “Alex Kozinski’s relationship with Judge Kavanaugh is a legitimate area of inquiry and I plan to question Judge Kavanaugh on this topic.” She also intends to baselessly ask him whether he has ever sexually harassed women, as she does all nominees.

While Senator Hirono is concerned with creating a spectacle at the hearing next week, here are the facts:

Judge Kavanaugh has a sterling record of hiring, promoting, and mentoring women. 

A majority (25 of 48) of Judge Kavanaugh’s law clerks have been women.  Kavanaugh was also the first judge in the history of the D.C. Circuit to hire four female law clerks in one year.  He has been aggressive in mentoring women and promoting their careers, with the result being that 20 of his female law clerks have gone on to clerk on the Supreme Court.  His former clerks today include professors, prosecutors, public officials, and appellate advocates

Every single one of these highly accomplished women who is not precluded from doing so by her current employer has endorsed Kavanaugh’s candidacy for the Supreme Court, describing him as “oneof the strongest advocates in the federal judiciary for women lawyers.”

In addition to his former law clerks, prominent women, liberals, and feminists have endorsed Kavanaugh’s candidacy.

Kathleen Sullivan, a prominent liberal constitutional scholar, and the first woman dean of one of the nation’s top three law schools, signed a letter supporting Judge Kavanaugh, describing his “well-deserved reputation as an outstanding jurist” and his “unfailing courtesy.”

Lisa Blatt, a Supreme Court litigator and self-described liberal feminist, has endorsed Judge Kavanaugh’s candidacy and encouraged other liberals to as well.  Blatt wrote that her “standard” for an acceptable Supreme Court nominee “is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought.”  According to Blatt, “Kavanaugh easily meets those criteria.”

Amy Chua, a Yale Law School professor, wrote a Wall Street Journal op-ed praising Judge Kavanaugh for his mentorship of women and describing him as a “fierce champion of their careers.”  Chua, who has served alongside Kavanaugh for the past 10 years on the Clerkship Committee at Yale Law School is by no means a disinterested observer: Chua’s daughter, was set to begin a clerkship with Kavanaugh this summer before he was nominated to the Supreme Court.  Chua wrote, “for my own daughter, there is no judge I would trust more than Brett Kavanaugh to be, in one former clerk’s words, ‘a teacher, advocate, and friend.’”

Finally, there is no evidence whatsoever that Kavanaugh knew of Kozinski’s alleged misconduct.   

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.”

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.”

Since the conclusion of his own clerkship over 25 years ago, Kavanaugh has spent his career on the opposite side of the country from Kozinski, over 3000 miles away.  Many people in much closer proximity to sexual harassers are often completely unaware of the conduct.  Senator Hirono herself can tell you that, having served with former Senator Al Franken on the Senate Judiciary Committee for four years before allegations against him surfaced last December.

The Wall Street Journal wrote in July that these feeble guilt-by-association claims are simply smear tactics.  As his ample record demonstrates, Kavanaugh has worked hard to support and help advance women in a profession that is sometimes reluctant to do so.  Scores of individuals have attested to Kavanaugh’s decency as a human being.  He deserves better.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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