Kavanaugh confirmation sparks debate on judicial mishandling of sexual misconduct claims

Ruth Green

Kavanaugh also testified, strongly denying claims he had assaulted Ford and two other women who had also come forward to accuse him of sexual misconduct after President Trump nominated him to replace Justice Kennedy, who retired from the bench in July.

By the tightest of margins, the Senate Judiciary Committee voted 11-10 on 28 September to send the nomination to the US Senate floor. Following pressure by Republican Senators, President Trump ordered the FBI to carry out further background checks into Kavanaugh in light of the allegations. This echoed a similar investigation in 1991 when the then Supreme Court nominee Clarence Thomas was accused of sexual harassment by Anita Hill. However, like Thomas before him, it didn’t take long for the nomination to reach Senators, who voted 50-48 to confirm Kavanaugh's position on the Supreme Court on 6 October.

The announcement sparked public outcry, particularly among those who felt the #MeToo movement had started to engineer some real social change. ‘I do believe that #MeToo has been a very important movement to help women feel empowered to speak out, but I could not believe what happened during the confirmation hearing in light of the one-year anniversary of the movement,’ says Elise Groulx Diggs, an Associate Tenant at Doughty Street Chambers and Vice-Chair of the IBA Business Human Rights Committee.

A rally supporting Dr. Blasey Ford and victims of sexual assault

She says Kavanaugh’s confirmation hearing delivered a sharp reminder that discussing sexual misconduct in public is still a cultural taboo in many quarters: ‘The law of silence was on graphic display the afternoon of the Kavanaugh hearing. The Republicans framed the simple voicing of the complaint as a violent ‘mobstyle’ attack on Kavanaugh. The male judge's right to due process was vehemently defended. What about Dr Ford’s right to make a complaint? It’s her right in a society led by the rule of law to exercise her civil duty. There was an egregious lack of due process for Dr Ford and this continues to be a problem for female victims.’

The Supreme Court was not designed to be a political branch of the US government, but there are concerns Kavanaugh’s confirmation will do little to restore public confidence in the court. In an attempt to allay such fears, less than two weeks later Chief Justice John Roberts stated unequivocally that the judiciary ‘requires independence from the political branches’ during a speech at the University of Minnesota Law School.

It’s understood that Roberts has already referred more than a dozen complaints filed against Kavanaugh to a federal appeals court in Colorado. These relate to statements Kavanaugh made during his testimony in the confirmation hearing. However, these are unlikely to go any further now he’s been confirmed. The Judicial Conduct and Disability Act – the 1980 federal ethics law that governs complaints against the judiciary – doesn’t stretch to Supreme Court justices, since there is no higher court to hear an appeal and lower-court judges are likely to determine they have no jurisdiction to proceed.

The complaints come as the US judiciary takes stock of how it handles reports of workplace harassment. In late 2017, dozens of allegations of sexual misconduct emerged against US Appeals Court Judge Alex Kozinski. He denied the allegations and retired from the bench soon afterwards. A formal complaint was filed but went no further as the rules only allow investigations of sitting judges.

Russell Wheeler, a judicial ethics specialist at the Brookings Institution is doubtful the complaints against either judge will gain traction. ‘The complaints against Kavanaugh won’t proceed, just as the complaint against Kozinski has been concluded,’ he says. However, he notes that the Kozinski case did prompt Roberts to establish a working group to examine the scale of the problem of sexual harassment in the judiciary.

In June, the group made recommendations to revise the judiciary’s rules surrounding investigating and processing misconduct complaints, as well as its general codes of conduct, guidance documents, education and training programmes. On 30 October, members of the public were invited to comment on the proposed rule changes, which aren’t expected to apply to the Supreme Court, in a day-long hearing. The Judicial Conference, the governing body for the federal court system, which is led by Roberts, will make the final decision on the proposals. ‘The changes won’t go far enough to satisfy critics,’ says Wheeler, ‘but they’re a step in the right direction. I think it shows that the courts realise they have to do something about behaviour that they once swept under the rug.’

There are concerns that Kavanaugh’s confirmation could deter other women from speaking out about sexual harassment. ‘Having seen what's happened in the last couple of weeks with Brett Kavanaugh, I think there's a pretty big feeling of a setback, but I don't believe it's insurmountable,’ says Zelda Perkins.

Perkins was one of several Miramax employees who lifted the lid on alleged historic sexual misconduct by US film producer Harvey Weinstein that precipitated the #MeToo movement. She hopes recent revelations will encourage more women to bring those who abuse their position of power to account. ‘I don't think this will go away now,’ she says. ‘The press needs to continue reporting responsibly – I think that's hugely important. The victim shaming and the disparagement of women's evidence and stories isn't helpful. But also for me this isn't just about gender. It's about power. It's about equality. It’s about the abuse of power.’

Groulx Diggs is hopeful female voters can find their voice in the midterms. ‘We felt we’d made progress with #MeToo, but at the same time the confirmation has certainly raised awareness of the inequalities between powerful men and the rest of society,' she says. ‘I hope women will come out and vote massively to show their disagreement with this kind of politics and attitude, which is so backward looking.’