Only the sleaziest employer would dare ask a potential job candidate about their sex lives when such information is irrelevant to their position. Yet here we are.
Sen. Mazie Hirono (D-HI) stated back in January that she would begin asking those nominated to become federal judges about their sexual history.
At the time, she claimed such questions were relevant because at least one judge had been accused of sexual harassment. The judge in question was Alex Kozinski — on the 9th Circuit — while the first judge Hirono asked these questions to was nominated to the 5th Circuit Court of Appeals. Not that the difference matters, but it’s basically like someone from Facebook asking if you ever embezzled money because someone from Twitter was accused of doing so. Same industry, different companies, and using one incident to justify asking inappropriate questions.
Jerome Woehrle, a retired attorney and author, took up Hirono’s newish idea to play “gotcha” with judges on Tuesday, writing at Liberty Unyielding about the court opinions that show the senator from Hawaii is wrong to ask such questions.
Hirono in January asked Judge Kurt Engelhardt two questions about his sexual history designed to look like perjury if someone in the future accused him. Engelhardt was confirmed to the 5th Circuit despite Hirono’s questions, and has thus far not been accused of sexual misconduct.
During his senate hearing, Hirono asked Engelhardt the following:
Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assault of a sexual nature?
As Woehrle and attorney Scott Greenfield have pointed out, this is an incredibly leading question that has two unrelated parts.
“This question deliberately lumps together two very different things,” Woehrle wrote. “A request to your spouse for sexual favors is not illegal, even if your spouse says he doesn’t want sex; by contrast, assault of a sexual nature certainly is illegal, and should preclude anyone who commits it from ever being a judge.”
But as anyone with commonsense would know, there is no way to know something is unwanted until you ask.
“Defenders of Senator Hirono’s questions say they are appropriate because she is asking about unwelcome sexual advances, and sexual harassment involves unwelcome sexual advances,” Woehrle wrote. “But that is as illogical as saying that because Aristotle is a man, all men are Aristotle. To be sexual harassment, sexual advances or other behavior must be ‘unwelcome.’ But that does not mean that all, or even most, unwelcome behavior is sexual harassment.”
Woehrle points out that courts have up held that to be sexual harassment in the legal sense, the unwelcome conduct “must be ‘severe or pervasive’ enough to create a hostile environment for a ‘reasonable person,’ based on their sex, and be ‘objectively offensive,’ not just subjectively unwelcome.”
What Hirono is doing is setting someone up. Since he answered “No, Senator” to the question, if anyone in the future decides that something he said or did was “unwelcome,” he would have committed perjury, even if he currently has no idea that hypothetical person felt that way.
As Woehrle concluded: “you can’t violate one person’s rights in the name of preventing violations of other people’s rights.”
As of June, Hirono was still asking these questions of judicial nominees, and told NPR that she had two words for her critics: "F*** them!"