Balkinization: Justices Kozinski and Spitzer?

Justices Kozinski and Spitzer?

Jason Mazzone

Whenever a Supreme Court confirmation hearing is about to begin, commentators offer questions they would like members of the Senate Judiciary Committee to ask the nominee. Given that Senators don’t tend to ask particularly good questions themselves, it isn’t hard to come up with some useful alternatives. But the most bizarre suggestion in a very long time comes from Dahlia Lithwick in a “Jurisprudence” column at the website Slate. In short, Lithwick advocates turning the Brett Kavanaugh hearing next week into a sexual harassment trial of Alex Kozinski.

Lithwick’s theory is that because Kavanaugh clerked for Kozinski (in 1990-91) and since then they both helped screen law clerks for Justice Kennedy, it is “relevant” to find out what Kavanaugh knew about Kozinski’s mistreatment of women. The answer to that question will obviously be “Nothing, Senator.” Thus, Lithwick urges a broader inquiry. Among other things, she says, Senators should ask Kavanaugh what he thinks of the fact that there hasn’t been a “hearing” on the accusations against Kozinski, that Kozinski was able to retire with a pension, and that since retirement he has undertaken some speaking gigs and other public activities. Lithwick tells us that Kavanaugh should also be given an opportunity to say he believes the women who have accused Kozinski of harassment and to explain what he would do as an Associate Justice to remedy harassment in the judiciary. Lithwick’s apparent motivation is this: since there hasn’t been another adequate opportunity to put Kozinski on trial (and the White House has issued a statement that Kavanaugh knew nothing about any Kozinski misdeeds) why not use the Kavanaugh hearing to air the accusations?

Senators can, of course, put any questions they want to a nominee. We will see next week if there are any Senators willing to use up their limited question time with a focus on Alex Kozinski—and whether the resulting exchange gives the Kozinski accusers the “due process” Lithwick says they deserve.

Until then, it is useful to remember that one way to test the strength of an argument or proposal is to flip the underlying facts. Imagine, then, that during Elena Kagan’s 2010 confirmation hearing, a Republican member of the Senate Judiciary Committee had said this:

General Kagan, you have known Eliot Spitzer for many years. The two of you have been friends since 1977 when you were undergraduates at Princeton together and you were also in the same class at Harvard Law School. Spitzer has publicly rallied behind your nomination to the Supreme Court.

and then pursued the following line of questions:

When did you first become aware that Eliot Spitzer hired prostitutes?

Did you know before March 10, 2008, the date that the New York Times reported that Spitzer was a client of a high-priced “escort service,” that he had paid women for sex?

Since the time you first met in 1977, did you ever hear any rumors about Spitzer hiring prostitutes?

Do you believe Spitzer should have been prosecuted under the federal Mann Act?

Do you think it is fair that the only punishment Spitzer has ever faced is being forced to resign as Governor of New York?

You were Dean of Harvard Law School when Spitzer was forced to resign. As Dean, did you issue a statement condemning his behavior? Did you consider trying to revoke his degree?

Do you think it fair that Spitzer has re-entered public life with television appearances, paid public speaking engagements, law school teaching, and other activities?