Supreme Court

Will abuse allegations change Kavanaugh’s work on Supreme Court? Justice Thomas might know.

Silent anti-Kavanaugh protest moves through Washington Senate offices

Demonstrators raised their fists and walked slowly and silently down the hallway in front of Senator Susan Collins’ office in Washington on September 24 to protest Supreme Court hopeful Brett Kavanaugh. Reports said dozens of protesters were arrested
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Demonstrators raised their fists and walked slowly and silently down the hallway in front of Senator Susan Collins’ office in Washington on September 24 to protest Supreme Court hopeful Brett Kavanaugh. Reports said dozens of protesters were arrested

Brett Kavanaugh may still eke out Senate confirmation to serve on the U.S. Supreme Court. But even if he does, the abuse accusations against him are certain to change the trajectory of his public life, his judicial career and possibly even his legal rulings.

Before two women stepped forward to accuse him of sexual assault when he was in high school and college, Kavanaugh could safely assume he’d continue his practice of teaching and lecturing at law schools, if he did not win a lifetime appointment to the nation’s highest court. On either the Supreme Court or the U.S. Court of Appeals, where he currently sits, he could rule on sexual harassment cases without second-guessing. He could be confident that top law school students, men and women, would want to serve as his clerks.

Now all of that is in doubt.

“If the worst of these allegations proven true, he will likely have to resign from the bench,” said Adam Winkler, a specialist in the Supreme Court at University of California, Los Angeles. “If he stays on the bench, these allegations could hurt him with clerkship applicants . . . especially among women.”

It could also affect what cases he’s assigned to write or what dissents he chooses to lead, if he reaches the Supreme Court.

“If there is a case involving some issue related to sexual harassment or sexual assault, perhaps Judge Kavanaugh wouldn’t be the first choice to write the opinion,” Winkler said.

One parallel to Kavanaugh is Clarence Thomas, whom law professor Anita Hill accused of repeated sexual harassment when the two worked together at the Equal Employment Opportunity Commission, leading to a tumultuous Senate confirmation hearing in 1991. Like Kavanaugh, Thomas depicted himself as a victim of partisan character assassination — calling the proceedings a “high-tech lynching.” Years after his confirmation, in a 2007 memoir, he revealed deep bitterness about the experience.

Since joining the court, Thomas has dissented from the majority on several cases that have shaped sexual harassment law. One of the most famous was Faragher v. City of Boca Raton, a 1998 decision in which the court ruled that employers can be held liable for creating a “hostile work environment” because of acts of sexual harassment by an employee.

Thomas wrote the dissent, with Antonin Scalia concurring. The two argued there was no proof that Boca Raton city officials were negligent in regards to Beth Ann Faragher, a lifeguard who claimed that male supervisors groped and harassed her and other female employees.

Legal scholars say there’s little evidence the confirmation fight altered Thomas’s jurisprudence, since he was already extremely conservative before joining the court. But some say Thomas became increasingly cloistered, fraternizing mainly with conservatives who share his politics, unlike Scalia, who kept a brisk public speaking schedule.

“The effect of that has been to harden his point of view and to make him more and more extreme and isolated in his ideas, because he more and more talks only to people who agree with him,” said Harvard law professor Charles Fried in a 2011 interview with National Public Radio. Fried, a conservative, served with Thomas in the administration of President Ronald Reagan.

Kavanaugh is a far different high court nominee than Thomas was in 1991. Kavanaugh has a history of public speaking, and reportedly enjoys mixing it up with students at Yale Law School and audiences of mixed political views. Will that change, with the anti-Kavanaugh protests that are erupting nationwide, including at Yale?

“It’s a really important question,” said Jon Michaels, a UCLA law professor and graduate of Yale Law School. “One trademark of Kavanaugh is the way he’s been packaged as individual well-integrated into liberal communities, such as Yale and Harvard.”

Now, Michaels said, “I am not sure how welcome he will be, unless there is some definitive vindication.”

Supporters of the #MeToo movement gathered at the California Capitol on Sept. 24, 2018, for a photo to show solidarity with the women who have accused Supreme Court nominee Brett Kavanaugh of sexual assault.

Some of Kavanaugh’s supporters disagree. Carrie Severino, former clerk for Thomas and now chief counsel for the Judicial Crisis Network, a conservative legal organization, said she expects the nominee to return to his old self if the Senate confirms him and the allegations against him remain unverified.

“Obviously, the reputational damage is done, and that is one of the travesties of how the Democrats have handled this,” said Severino, whose group has launched a $1.5 million advertising campaign in support of Kavanaugh’s nomination.

“Already a lot of Americans are looking at this and seeing this as a partisan smear campaign,” she added.

Severino, who clerked for Thomas from 2007 through 2008, said Thomas was a “happy warrior” who enjoyed public events, although not with the frequency of Scalia. She also pushed back at claims that Thomas has become inordinately cloistered since joining the high court, more so than other justices.

“I mean, how often does Justice (Ruth Bader) Ginsburg attend Federal Society meetings?” said Severino, referring to the conservative group that has helped President Trump pick nominees.

This week, Kavanaugh took the extraordinary step of agreeing to a Fox News interview, in which he declared his innocence and vowed not to withdraw his name from consideration. He is expected to testify Thursday to the Senate Judiciary Committee, along with one of his accusers, Christine Blasey Ford.

If he did ultimately withdraw, it wouldn’t be the first time a sitting federal judge has opted to abandon a confirmation battle and remain in his current judgeship. In 1987, Reagan nominated Judge Douglas Ginsburg to the Supreme Court, but Ginsburg ended up withdrawing his name. He returned to the U.S. Court of Appeals in DC, where he now serves with Kavanaugh.

In Ginsburg’s case, however, his nomination was torpedoed by past marijuana smoking. Kavanaugh is facing sex abuse accusations from at least two women in an era when #MeToo is redefining politics and bringing down numerous powerful public figures.

Kavanaugh’s supporters are trying to counter that momentum by arguing that more than a Supreme Court nomination is at stake, but a man’s reputation. “What am I supposed to do, go ahead and ruin this guy’s life based on an accusation?” South Carolina Sen. Lindsey Graham said.

Kavanaugh himself has argued the stakes are greater than his nomination. In a letter Tuesday, he said the “smears” against him “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.”

Michaels, the UCLA law professor, said the potential “chilling effect” goes two ways in the current controversy.

“If we are worried about people being chilled and deterred, I am more worried about victims of sexual abuse and violence,” Michaels said. “I hardly think he (Kavanaugh) is the best spokesman for that kind of victimization.”

Demonstrators raised their fists and walked slowly and silently down the hallway in front of Senator Susan Collins’ office in Washington on September 24 to protest Supreme Court hopeful Brett Kavanaugh. Reports said dozens of protesters were arrested

Stuart Leavenworth: 202-383-6070, @sleavenworth
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