The past two years will almost certainly be remembered as a pivotal time when women fought back against institutionalized sexism. Both the Women’s March and the #MeToo movement, two landmark women’s empowerment efforts that gained global attention, shed light on a terrible truth that most women know all too well: Women in nearly every sector of society regularly face sexual violence or harassment.
Unfortunately, the U.S. judiciary also suffers from the scourge of sexual harassment. Recently, sexual assault allegations raised during the confirmation of U.S. Supreme Court Justice Brett Kavanaugh highlighted the need for the judiciary to rethink how it handles issues of sexual harassment as judicial nominees are considered, how it oversees individual judges’ conduct, and how the judiciary operates overall. Yet neither the Trump administration nor Senate leadership has taken concrete steps to combat sexual harassment and assault in the judiciary. Without measures in place to protect survivors, President Donald Trump’s judicial appointments—many of whom have disqualifying records or lack qualification at all—will only worsen the problem. This poses greater risk to survivors and threatens the fair enforcement of critical legal protections against sexual harassment.
Trump’s judicial appointments threaten women’s rights
Over the past 20 months, President Trump has confirmed more than 80 judges to the federal judiciary—nearly three quarters of whom are men. In fact, 1 out of every 6 judges on the federal appellate courts is now a Trump nominee. And dozens of these judges have records of hostility toward women’s rights, raising serious questions about the extent to which they are committed to taking comprehensive action to combat sexual harassment and other forms of sexual misconduct.
Many of President Trump’s judicial nominees have advocated for limiting the scope of employment discrimination laws in ways that would harm survivors of sexual assault. North Carolina District Court nominee Judge Thomas Farr, for instance, has defended employers accused of egregious sexual harassment, including one supervisor who was accused of berating, insulting, and sexually harassing several of his female employees. Judge Farr also supported a controversial 2016 North Carolina law that ended the right of workers to sue for employment discrimination in state court.
Other Trump nominees have outright denied that sexual harassment is a problem for women in the workplace. Judge Michael Brennan, who was confirmed earlier this year to the U.S. Court of Appeals for the 7th Circuit, wrote a law review article in 2004 implying that women do not face discrimination in the workplace. Judge Don Willet of the 5th Circuit Court of Appeals has denied the existence of inequality for women in the workplace and mocked the idea of “glass ceilings” and “pay equity.”
Several of President Trump’s judicial nominees have also demonstrated hostility toward women’s bodily autonomy, which can have extremely negative economic and employment consequences for women. For instance, Oklahoma Supreme Court Justice Patrick Wyrick—who the Senate Judiciary Committee recently recommended to the full Senate in an 11-10 party-line vote—once defended a restrictive law on medical abortion by falsely claiming that “sometimes healthy young women die” because of abortion drugs. In another extreme example, Alabama judicial nominee and current Solicitor General Andrew Brasher defended a law that would allow judges to appoint an attorney to represent the fetus in abortion cases. Brasher also defended a law that would require abortion providers to have admitting privileges at local hospitals—a measure proven to be an undue burden on a women’s constitutional right to access abortion care.
President Trump’s Supreme Court nominees also have problematic records that threaten to further tip the judicial scales against women. Justice Neil Gorsuch, for example, recently dissented when the Supreme Court overturned a lower court’s decision to throw out a woman’s lawsuit alleging discrimination by her supervisor and retaliation for reporting his misconduct. Justice Brett Kavanaugh also notoriously praised former Supreme Court Justice William Rehnquist’s dissent in the groundbreaking Roe v. Wade decision—which upheld the constitutional protections enabling women to access abortion services—and wrote an opinion that would have forced a young immigrant woman to carry her pregnancy to term against her will. Furthermore, the sexual assault allegations leveled against Justice Kavanaugh have cast serious doubt about his ability to approach any sexual assault or harassment case fairly.
Changes are needed to reduce sexual misconduct in the judiciary
Earlier this year, a CNN report detailed deficiencies in how the judiciary upholds justice for those who experience sexual harassment within its own ranks. A system for monitoring harassment exists in theory, but because judges are tasked with policing each other and reporting infractions when they see them, it has proven to be ineffective in practice. Consequently, judges who sexually harass their staff rarely, if ever, face disciplinary action.
The case of former 9th Circuit Court of Appeals Judge Alex Kozinski, a former mentor of Judge Kavanaugh, exemplifies this lack of oversight in the judiciary. At the end of 2017, Judge Kozinski retired early when news broke that he had sexually harassed several of his female clerks. While many powerful D.C. lawyers allegedly knew that Judge Kozinski was a serial harasser, nothing was done about it for decades. Notably, Justice Kavanaugh worked as a law clerk for Judge Kozinski, a serial sexual harasser, yet claims to have no memory of any of the judge’s despicable behavior, raising doubts about his sensitivity to the issue.
Following Judge Kozinski’s retirement, and in the wake of several other sexual harassment allegations involving judges, U.S. Supreme Court Chief Justice John Roberts announced the establishment of a working group to examine sexual harassment in the courts. The Federal Judiciary Workplace Conduct Working Group’s final report itemizes specific accounts of harassment and makes recommendations for how to improve accountability within the judiciary. After discovering a range of inconsistencies throughout the judiciary, the working group made three general recommendations: 1) Change the judiciary’s codes and standards of workplace behavior; 2) Improve and create uniformity in the existing reporting-complaint procedures; and 3) Add new educational and training programs to further decrease instances of discrimination and harassment in the judiciary.
While these recommendations are a start, their effectiveness will need to be evaluated going forward. Additional steps must also be taken to ensure that potential nominees with problematic records are weeded out of the judicial nominations process. This is the best way to reduce the likelihood of future judges perpetuating these existing problems.
It is critical to ensure that the overall review of potential judicial nominees is informed by the best available sexual misconduct research and knowledge. Decision-makers must understand how the imbalance of power between perpetrators of sexual harassment and their targets often makes it difficult for survivors to come forward, as well as the need for a culture shift in the judicial environment in how these power imbalances are addressed from a systemic perspective. Moreover, it is essential to examine factors that can lead to harassment—such as power imbalances, workplace culture, retaliation, poor reporting mechanisms, and unwillingness to hold perpetrators accountable—and assess how they play out within the judiciary.
Accomplishing this culture shift in the judiciary depends on a commensurate shift in the Senate’s review of all judicial nominees. This review process should question judicial candidates about whether they support the working group’s recommendations; whether they have been the subject of any prior allegations of sexual harassment or misconduct; whether they have undergone any sexual misconduct training or mandated training for their staff; and what steps they will take to protect against all forms of sexual misconduct in their workplace. Furthermore, it should closely scrutinize each nominee’s understanding of the relevant legal protections against sexual harassment and, where applicable, their record in implementing these legal protections. If the nominee’s record does not measure up, they should not be confirmed.
The hasty confirmations of President Trump’s judicial nominees failed to seriously and robustly scrutinize these judges’ records on sexual harassment. As more nominees are introduced each day, this poses serious threat to the rights of women—including those who work in the judiciary. Unfortunately, some senators’ laissez-faire attitudes toward sexual harassment and discrimination—both generally and in the judiciary—reflects what little priority they ascribe to women’s well-being.
If the Senate continues to support President Trump’s problematic judicial nominees without rigorously scrutinizing their records on sexual harassment, many people in the third branch of government will continue to face harassment in the workplace. Beyond the direct harms of sexual harassment, though, women’s rights more broadly are also at risk—including the right to make one’s own health care decisions, the right to equal pay, and the right to determine one’s own gender identity. The damage rendered by a judiciary insensitive and/or hostile to these concerns will last well beyond the current administration. Senators must commit to only confirming judges who will proactively work to eliminate the scourge of sexual harassment in the judiciary. Otherwise, the public will be forced to find senators who will.
Abbey Meller is the organizing associate for Legal Progress at the Center for American Progress. Joy Bagwell is a former legal intern for Legal Progress at the Center.
The authors would like to thank Jake Faleschini, Jocelyn Frye, Michele Jawando, and Billy Corriher for their contributions to this column.