Two days from now, Brett Kavanaugh will resume testimony before the Senate Judiciary Committee. As a confirmation vote looms as early as Friday or Saturday, the question of his credibility has never been more critical.
Throughout his confirmation process, Kavanaugh has consistently denied knowledge of his mentor Judge Alex Kozinski’s years of sexual harassment, for which he was finally brought down in December 2017.
The news, Kavanaugh told the Senate Judiciary Committee under oath, was a “gut punch.” Under follow-up questioning from Sens. Mazie Hirono and Chris Coons, Democrats from Hawaii and Delaware respectively, he expanded his denials to include any knowledge of the email list Kozinski used to distribute pornography and off-color jokes to court employees. That denial is crucial, because if it’s false, it demonstrates that Kavanaugh lied about what he knew of Kozinski’s behavior. And that he’s still lying.
And the answer is knowable. Following the hearing, Coons asked Kavanaugh a set of direct written questions that was met with a tellingly vague response.
Coons: It has been reported that Judge Kozinski had a sexually explicit email list, called the Easy Rider Gag List. Did you ever receive an email from this list? If it is necessary to refresh your recollection, please review your email accounts before answering this question.
RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.
Coons: Have you conducted a search of your email accounts and/or correspondence with Judge Kozinski in an effort to provide an accurate response to the preceding question? If not, why not?
RESPONSE: I do not remember receiving inappropriate emails of a sexual nature from Judge Kozinski.
Coons does not have the authority to order a search of Kavanaugh’s emails to prove that he did receive Kozinski’s emails. But if Democrats take control of the House or Senate in January, the chair of each judiciary committee would have such subpoena power.
New York Rep. Jerrold Nadler, the top-ranking Democrat on the House Judiciary Committee, however, said that he has no immediate plans to do so, and instead would wait for a referral of wrongdoing from the judiciary.
“[I]n no case since 1980 have we (Congress) initiated an impeachment inquiry without an official referral from the Judicial Conference,” Dan Schwarz, Nadler’s communications director, told The Intercept. It’s also “rare,” Schwarz says, for a complaint of misconduct to ever reach formal impeachment proceedings “because most judges accused of that kind of wrongdoing resign long before we see the file.”
Rep. Zoe Lofgren’s office did not respond to multiple requests for comment. However, Rep. Ted Lieu, a Democratic committee member, said Monday that the panel should indeed launch impeachment hearings whether or not Kavanaugh is confirmed. “Even if he is not confirmed, he will still be making decisions critical to American life in his current position on the U.S. Court of Appeals. The House Judiciary Committee has the power and authority to determine Kavanaugh’s suitability to serve as a federal judge at all. We should,” he said.
In a letter to the Senate Judiciary Committee on Monday, Kavanaugh reiterated his denials of two allegations of sexual misconduct, one while he was in high school at Georgetown Prep and the second while he attended Yale College. “There is now a frenzy to come up with something — anything — that will block this process and a vote on my confirmation from occurring.”
“These are smears, pure and simple. And they debase our public discourse. But they are also a threat to any man or woman who wishes to serve our country. Such grotesque and obvious character assassination — if allowed to succeed — will dissuade competent and good people of all political persuasions from service.”
Evaluated against a timeline, it seems unlikely that Kavanaugh could have been completely unaware of Kozinski’s behavior after allegations were made public in 2008.
Coons followed up with a simple legal question. “If a judge provides intentionally false testimony to Congress on an issue of significance, is impeachment the appropriate remedy?”
Kavanaugh demurred. “That is a question for the House and the Senate,” he said.
Top photo: Sen. Chris Coons, D-Del., speaks to reporters after his meeting with Supreme Court nominee Brett Kavanaugh on Aug. 23, 2018.
