Courts

Could HHS Secretary Alex Azar Derail Brett Kavanaugh?

The HHS Secretary clerked for Alex Kozinski for six weeks, and was replaced by... Brett Kavanaugh.

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Health and Human Services Secretary Alex Azar

Politico Pulse was able to confirm a little nugget that we’ve heard a lot about over the past few weeks. Alex Azar, currently the head of Health and Human Services, used to clerk for Alex Kozinski. But only for about six weeks. He was replaced in Kozinski’s chambers by… Brett Kavanaugh.

We had been unable to confirm the news ourselves, because Azar’s brief stint with Kozinski appears nowhere on Azar’s public record. He left Kozinski, who served on the Ninth Circuit, to clerk for Judge Michael Luttig, who served on the Fourth Circuit. It’s the Luttig clerkship that shows up on Azar’s résumé, before he moves on to clerk for Antonin Scalia on the Supreme Court.

Here’s how Azar explained the move once Politico was able to finally confront him about it:

Why the departure? Yale Law professor George Priest, who placed Azar with Kozinski, recently told the AP that “there were problems in the chambers” and an unnamed clerk (who PULSE has confirmed was Azar) was fired. Priest then arranged for Brett Kavanaugh to replace Azar as Kozinski’s clerk.

Priest did not respond to PULSE’s request for comment. Requests to speak with Kozinski, who abruptly retired in December after multiple allegations of sexual harassment, were not returned.

HHS spokesperson Caitlin Oakley confirmed that “Azar clerked briefly for Judge Kozinski and when the opportunity presented itself, transferred to clerk for Judge Luttig.”

I don’t think I have to explain this to regular Above the Law readers, but leaving a clerkship after only six weeks is highly unusual. It is just not done. Azar’s explanation doesn’t even pass the smell test of something a person would actually do.

Azar clerked for Luttig (and Kozinski) in 1991/1992. By that time, Alex Kozinki was already a well-respected and established judge on the Ninth Circuit. Luttig, by comparison, was only confirmed in the summer of ’91. You don’t leave a rising star judge to go clerk for a rookie. You don’t move from the Ninth Circuit all the way across the country to the Fourth Circuit, just six weeks after moving all the way across the country from Yale to go to the Ninth Circuit. You just don’t leave a clerkship after six weeks absent extraordinary circumstances.

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But, this sneaky suggestion that Azar was “fired” also does not seem in the realm of plausibility. You’re telling me that this Azar guy was so bad as a clerk that he was fired (a thing which itself almost never happens) after just six weeks? But another rookie judge was willing to take him? And that a year later this “fired” federal appellate clerk would be clerking for Antonin Scalia on the Supreme Court?

No, I don’t believe that for a second. That story just as nonsensical as the story that Azar simply found a better opportunity, six weeks into his clerkship.

Only Alex Azar and Alex Kozinski know why Azar left Kozinski’s chambers. Whatever happened, the circumstances must have been extraordinary. Given the… extraordinary circumstances for why Kozinski himself was eventually pushed off the bench, it’s reasonable to ask Azar what could have possibly led to parting ways with his judge after just six weeks. If Azar had an issue with Kozinski then that made him willing to uproot himself and risk his budding career, is the moral strength of that man gone forever? If Alex Kozinski knows something about the current head of HHS that the rest of us don’t, will he tell the American people?

Well, one other person might know why Azar left, and that’s the man who replaced him: Brett Kavanaugh. Our sources tell us that Kavanaugh and Azar knew each other while they were both at Yale. Our sources tell us that Azar’s departure was a big enough deal that it was talked about in Yale Law Journal circles.

Did Azar mention anything to Kavanaugh about his time with Kozinski? Have the men ever talked since Azar left to go clerk for Luttig? Did Azar tell Kavanaugh why he left? Did they compare notes? What happened with Azar that evidently did not happen with Kavanaugh?

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Kavanaugh insists that he knew nothing about Alex Kozinski’s behavior. Did he ever wonder why a clerkship that was previously closed became available just six weeks into the term? Did he ever ask anybody? Did anybody ever tell him?

Are we going to give Brett Kavanaugh a lifetime appointment before we find out?

ALEX AZAR’s STINT WITH CONTROVERSIAL JUDGE [Politico Pulse]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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