Sen. Howard M. Metzenbaum (D-Ohio) charged yesterday that judicial nominee Alex Kozinski had engaged in "red-baiting" by sending out a "smear piece" that accuses a group opposed to Kozinski's nomination of supporting terrorism.
The accusation came at a Senate Judiciary Committee hearing called to explore allegations that Kozinski, chief judge of the U.S. Claims Court, is unsuited to serve on the 9th U.S. Circuit Court of Appeals in California.
Kozinski confirmed that he had sent one or two supporters a copy of an editorial supporting him by Boston radio station director Avi Nelson. The editorial said the Government Accountability Project, which is fighting Kozinski's nomination, "is sponsored by the Institute for Policy Studies . . . a revolutionary group hostile to the U.S. and with ties to terrorist groups such as the PLO Palestine Liberation Organization ." Institute cofounder Marcus Raskin called the charge that his group supports terrorism and anti-Semitism "straight defamation."
Under questioning by Sen. Carl Levin (D-Mich.), Kozinski acknowledged that Nelson is married to one of his law clerks and that he had discussed his nomination with Nelson before the editorial was aired.
Kozinski said he had not checked the allegation and was not aware that GAP had severed its relationship with the Institute for Policy Studies, a liberal think tank. "I certainly do not mean to adopt every statement in every article I have ever sent," he said.
Levin described the incidents as part of a pattern of intemperate conduct and misleading testimony by the nominee. The hearing, however, was marked by minute details of and conflicting accounts of Kozinski's tenure as director of the Merit Systems Protection Board's Office of Special Counsel (OSC).
Since the committee has approved Kozinski and Republican members continued to support him yesterday, the 35-year-old Romanian immigrant remains likely to win Senate confirmation.
Much of yesterday's testimony focused on Mary Eastwood, a 21-year government veteran fired by Kozinski. Eastwood appealed her firing and, in a settlement, was awarded $22,000 in back pay and $10,000 in legal fees.
Levin charged that Kozinski misrepresented the settlement in a letter to the committee by not mentioning the monetary awards and saying that Eastwood had "repudiated" her suit. Eastwood testified that the settlement was "quite favorable to me" and that Kozinski had been "less than completely honest with the committee."
Eastwood disputed Kozinski's account that she had not explained why she refused a transfer to San Francisco, an action that led to her firing. Eastwood disclosed that she had sent Kozinski a memo explaining that she did not want to leave friends and family in Washington.
Asked whether he had misrepresented the case, Kozinski said: "No, Sen. Metzenbaum, I felt I was completing the record." He said he assumed the panel knew about Eastwood's award and that he was "simply pointing out parts of the record that might have been overlooked and might have been favorable to me."
Levin said Kozinski had erroneously testified that he had "an excellent relationship" with his OSC staff. He said affidavits from several former employes, which described him as an abusive boss, show that Kozinski had a "disastrous" relationship with the staff.
But Sen. Orrin G. Hatch (R-Utah) said Kozinski had not misled the panel. Three other former employes praised his tenure at OSC.