The name Brett Kavanaugh has been on every news person's lips for nearly a month. In the midst of a heated Supreme Court confirmation process, Dr. Christine Blasey Ford came forward with allegations of sexual harassment and assault. She claimed Kavanaugh had tried to rape her when they were teenagers in the 1980s. Now the dust has settled and Kavanagh has been confirmed, leaving many wondering what do those allegations mean for the Court, and how will Kavanaugh rule when sexual harassment cases come before the Court?
In this blog post, I will review allegations of sexual harassment and sexual assault against Supreme Court Nominee Brett Kavanaugh. I will discuss how the Senate addressed these allegations. And I will review Kavanaugh’s position regarding sexual harassment and gender discrimination, as revealed in his previous federal court decisions.
Shortly after Federal Circuit Court Judge Brett Kavanaugh was nominated to fill Justice Anthony Kennedy's seat on the Supreme Court, Professor Christine Blasey Ford, a psychological researcher at Palo Alto University sent a letter to Senator Dianne Feinstein. In that confidential letter, she said Kavanaugh had sexually assaulted her at a house party in the early 1980s when they were both teenagers.
Dr. Ford's account, which later became public, described Kavanaugh and his friend Mark Judge as "stumbling drunk" when they pushed her into an upstairs bedroom and turned up the music to cover her yelling. She reported that Judge watched as Kavanaugh pinned her to a bed, groped her, ground his body into her, and tried to pull off her clothes. She reported trying to scream, but he put his hand over her mouth. She said:
“I thought he might inadvertently kill me. . . . He was trying to attack me and remove my clothing.”
Ford said she was able to escape when Judge jumped onto the bed where Kavanaugh held her, sending them tumbling to the floor. She fled to a bathroom and then left the house.
Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. Ramirez claimed he exposed himself to her while they were at Yale University. Swetnick said the sexual misconduct happened while they were at parties as teenagers.
Kavanaugh, "categorically and unequivocally denied" Ford's allegations, saying he didn't even attend the party. After considering the matter, and negotiating with Dr. Ford's attorney, Senate Judiciary Committee Chairman Chuck Grassley scheduled hearings for both Dr. Ford and Kavanaugh on Thursday, September 27, 2018. In an unusual move, the Republican senators on the panel brought in Arizona prosecutor Rachel Mitchell to question Dr. Ford, though they mostly questioned Kavanaugh themselves.
Dr. Ford, who is a psychologist with a history of writing on the long-term impacts of trauma (including sexual assault), testified to her own memory of the events and the reasons that memory should be deemed credible. When Kavanaugh read his prepared remarks his presentation was emotional, and oftentimes highly politically charged.
This isn't the first time a Supreme Court nominee has been accused of sexual harassment. In 1991, Anita Hill spoke out against the confirmation of Justice Clarence Thomas. Hill accused Thomas of sexual harassment while working as her superior at the Equal Employment Opportunity Commission. Hill faced invasive questioning about her allegations, her credibility, and what she had to gain by coming forward. Dr. Ford has faced many of those same questions, both from Senators and in the media.
The Senate Judiciary Committee advanced Kavanaugh's confirmation on September 28, 2018. But Republican Senator Jeff Flake, a member of the committee, said he would not vote to confirm Kavanaugh without an FBI investigation into all 3 sexual misconduct claims. The FBI completed a week-long investigation, including interviews with several named witnesses to the events. However, the White House directed that investigation to be "specific in scope" and some believe it was not enough to determine the truth of the women's claims of sexual harassment and assault.
Ultimately, on Saturday, October 6, 2018, Brett Kavanaugh was confirmed to the Supreme Court by a narrow vote: 50 to 48. He was then sworn in by Chief Justice John G. Roberts Jr., and retired Justice Anthony M. Kennedy, whom he replaces. He heard his first cases Monday morning, October 9, 2018.
Now that his is on the bench, Kavanaugh's history of alleged sexual assault may take a back seat to the power he has to affect the rights of women and employees going forward. As a federal judge, Kavanaugh has a history of writing opinions that favored the employer, narrowly interpreting worker protections and anti-discrimination laws.
In Miller v Clinton, Kavanaugh wrote another dissent saying mandatory retirement was not against the Age Discrimination in Employment Act when used against a safety inspector at a U.S. embassy overseas. He also dissented in Howard v Office of the Chief Administrative Officer of the U.S. House of Representatives. There he said the Constitution's speech or debate clause prevented a government employee from suing for discrimination and retaliation because the case would have to disclose legislative activities. He wrote a similar opinion in Rattigan v Holder, a Title VII case.
However, Kavanaugh does seem to stand behind some private employees facing workplace discrimination. In Ayissi-Etoh v Fannie Mae, he wrote a concurrence (agreeing with the main opinion) saying that "being called the n-word by a supervisor ... suffices by itself to establish a racially hostile work environment." In Ortiz-Diaz v. US Department of Housing and Urban Development, he also concurred saying denial of a requested job transfer should always qualify as an adverse employment action.
Together, these opinions seem to suggest that as a Supreme Court Justice Brett Kavanaugh's opinions will largely depend on which employer is doing the discrimination. While employees of private companies may be able to count Kavanaugh an ally, he seems reluctant to allow federal workers to bring claims against their government employers.
At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to argue in front of judges and justices who tend to favor employers. When the figures on the bench change, we can help you review your legal options, so you know what to expect. If you are facing sexual harassment or gender discrimination, contact us today to schedule a free consultation.
* Photo thanks to Ninian Reid, used with permission with some rights reserved.