Brett Kavanaugh and his association with Alex Kozinski

Brett Kavanaugh and his association with Alex Kozinski
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Some opponents of Judge Brett Kavanaugh’s nomination to the Supreme Court have attacked Kavanaugh for having clerked for, and becoming friends with, former Ninth Circuit Court of Appeals Judge Alex Kozinski. Kozinski recently resigned his judgeship over claims that he sexually harassed women. The attack on Kavanaugh is one of guilt by association. It ignores the fact that Kavanaugh has hired more women law clerks than any other federal court of appeals judge with whom I am familiar.

Wikipedia defines McCarthyism as “the practice of making accusations of subversion or treason without proper regard for evidence.” It goes on to explain that: “During the McCarthy era, hundreds of Americans were accused of being communists or communist sympathizers and became the subject of aggressive investigations and questioning before government or private industry panels, committees and agencies. Suspicions were often given credence despite inconclusive or questionable evidence, and the level of threat posed by a person's real or supposed leftist associations or beliefs was sometimes exaggerated. Many people suffered loss of employment or destruction of their careers; some even suffered imprisonment.”

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Attacking Judge Kavanaugh because he clerked for, and became friends with, a man who sexually harassed women is a form of guilt by association. It is exactly like Sen. Joe McCarthy’s attacks during the 1950s “red scare” on those who knew or were friends with members of the Communist Party. It is contrary to the U.S. Constitution, which makes it crystal clear that guilt is not hereditary from one’s ancestors, nor is personal guilt to be inferred from the guilt of one’s friends.

 

Judge Alex Kozinski served for 32 years as a federal appeals court judge on the Ninth Circuit, and he fed a huge number of his law clerks to Supreme Court Justice Anthony M. Kennedy for whom Kozinski had been a law clerk. Justice Kennedy essentially put Judge Kozinski in charge of his law clerk hiring process, and no-one has impugned Justice Kennedy for having done so.

Brett Kavanaugh clerked for Judge Kozinski in 1992 after already having done a court of appeals clerkship with the widely respected Judge, Walter Stapleton, of the Third Circuit. The only reason why Kavanaugh would have done a second court of appeals clerkship with a “feeder judge” like Kozinski was in the hopes of getting a Supreme Court clerkship. Sure enough, Judge Kozinski, who again was in charge of hiring all of Justice Kennedy’s law clerks, got Judge Kavanaugh a clerkship with (surprise!) Justice Kennedy. Kavanaugh can hardly be blamed for wanting to clerk for Justice Kennedy on the U.S. Supreme Court.

The left is experiencing great angst at the moment over Justice Kennedy’s resignation because they agreed with much of his jurisprudence. What the left fails to recognize, however, is that the justifiably disgraced Kozinski may be, he hired almost all of Justice Kennedy’s law clerks, who in turn helped to write his sometimes liberal opinions, which the left liked! Indeed, liberal Ninth Circuit Judge Stephen Reinhardt openly praised Kozinski and a head of the ACLU praised him as being “one of the jewels of the federal bench.” I personally have never liked Kozinski, who I thought was sleazy, and obviously Kozinski was right to resign after multiple allegations of sexual harassment were made against him.

Brett Kavanaugh’s decision to clerk for Kozinski in 1992 was a career-advancing decision that was made by literally dozens of law school graduates during Kozinski’s thirty-two years as a judge. Students who chose to work for Kozinski knew that he way over-worked his law clerks and was at times rude and abusive. For this reason, I advised my own students not to work for Kozinski, but some did so anyway because they wanted to maximize their chances of getting a Supreme Court clerkship.

The fact that Kavanaugh became friends with Kozinski says more about Kavanaugh’s personal warmth, empathy, and capacity to love that which is imperfect in the world than it says about anything else. Kozinski was a monster who should never have been put in charge of Justice Kennedy’s Supreme Court law clerk selection process. This is especially the case because reports of Kozinski’s misbehavior must have filtered back to Justice Kennedy.

To refuse to confirm Brett Kavanaugh simply over his association with Kozinski is McCarthyism pure and simple. It is guilt by association. If you are friends with communists you must by virtue of your friendship be a fellow traveler. This is an un-American idea, and Kavanaugh’s opponents should be ashamed of themselves for advancing it.

Steven G. Calabresi is a co-author of “The Unitary Executive: Presidential Power from Washington to Bush” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.