Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court

by Mollie Hemingway

  The White House team began reviewing and tweaking the answers, sending them in batches to Kavanaugh when they were ready for him to review with his signature black Sharpie, sending edits to the clerks for incorporation into the final document. The last questions were on his desk by noon on Tuesday. That night, the White House group, including Talley, Murray, and Michel, returned to chambers, where they found Kavanaugh going over each answer in detail. To keep him from getting bogged down, Talley told the judge that if he divided the time left by the number of questions, he had only about two minutes per response, and that wasn’t allowing time for sleep or even a bathroom break. It was a grueling pace.

  Kavanaugh had run marathons before and knew the kind of focus that was needed. He reviewed the answer to every single question, ensuring not only its accuracy—the smallest slip might expose him to a perjury charge—but that it met his high standards. The task of responding to nearly 1,300 questions in two days was abusive, but there was no option but to complete it. The group ordered pizzas and settled in for yet another all-night work session.

  When Wednesday arrived, Kavanaugh was still working, and Talley was nervous about getting the final answers. They were starting to roll in late in the day when Raj Shah turned to Talley and said, “Hey, have you ever heard of The Intercept?” He hadn’t.

  The online news publication, which describes itself as “adversarial,” is owned by Pierre Omidyar, the billionaire founder of eBay, and edited by Glenn Greenwald. It gained notoriety in 2013 by publishing documents released by the National Security Agency whistle-blower Edward Snowden.

  On the evening of Wednesday, September 12, The Intercept published a report by Ryan Grim that Senator Feinstein possessed a letter from a California constituent that described “an incident involving Kavanaugh and a woman while they were in high school.” Committee Democrats wanted to view the letter, but Feinstein declined. The letter writer was a client of Debra Katz, a lawyer known for representing women who accused powerful men of sexual harassment.4

  The Kavanaugh team were so focused on answering the committee’s written questions that they first assumed this was a Democratic ploy to get them off track. And in any case, unsubstantiated allegations were a regular part of the confirmation process. Some members of the team recalled a rumor they had heard from a source close to liberal activists about a three-part plan to prevent Kavanaugh’s confirmation. First, someone would accuse him of sexual misconduct. Second, someone would accuse him of knowing something specific about Judge Kozinski’s sexual misdeeds. Third, someone would accuse him of improprieties with students at Georgetown Law School, where he had taught constitutional interpretation in 2007.

  No one wanted to bother Kavanaugh with the Intercept story because of the importance of finishing the questions. Besides, the screening process had already included sensitive questions about any episodes that needed to be addressed. With nothing more to go on than “incident,” “high school,” and “California woman,” there wasn’t anything to ask about. Still, McGahn called to check in. Kavanaugh was confident it was nothing to worry about.

  At eight o’clock, the team emailed the answers to the 1,287 questions to the committee and headed to the Justice Department to celebrate. It felt as if they had cleared the last major hurdle.

  At ten o’clock the next morning, September 13, the Judiciary Committee held an executive business meeting. Rumors had been circulating that Democrats might try again to delay the procedure, and Republican staff members were preparing for the possibility that Democrats would try to prevent a quorum by simply not showing up.

  They did show up, and Chairman Grassley immediately held over the nomination of Kavanaugh. Any member of the committee can issue a “hold” on a nomination for a week. It happens so regularly that it is built into the schedule. So as he gaveled the meeting to order and noted a quorum, Grassley announced that he himself was holding the nomination over, a procedure known as “burning the hold.” He was interrupted by Senator Blumenthal, who moved to adjourn on the grounds that they needed more time, documents, and—curiously—witnesses before Kavanaugh could be confirmed.

  Even though all the Democrats planned to vote against confirmation, they spent much of the meeting in parliamentary maneuvers to prevent the committee from setting a time to vote on sending the nomination to the full Senate. Their efforts failed, and a vote was scheduled for September 20.5

  As soon as the meeting adjourned, Feinstein and a staff member pulled Grassley and one of his staffers into the small lavatory off the committee’s anteroom and closed the door. In that awkward setting she told him for the first time about the letter that had been in her possession since July 30. She wouldn’t show it to him.

  News about the letter spread rapidly. BuzzFeed, confirming the Intercept story, reported that the Democrats on the Senate Judiciary Committee had huddled in a room off of the Senate floor the previous night to press Feinstein to do something with the letter.6 She had briefed them on its contents but had kept it hidden from the Republicans. Debra Katz, conveniently enough, had been on the Hill on Wednesday to testify before the Bipartisan Women’s Caucus on workplace sexual harassment.7 Reporters spotted her leaving the Hill Wednesday night.

  Feinstein confirmed the reports on Thursday afternoon, saying, “I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court. That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.”8

  Some members of the committee had learned about the letter many days earlier. Senator Dick Durbin later said that he had heard about it from a third senator on the Judiciary Committee around September 8.

  Reporters gathered for the hearings peppered the Democrats with questions about the Intercept story, but oddly enough, none of the senators responded. Not even Richard Blumenthal, who was known to deliberately walk past reporters two or three times hoping to attract an interview. After all his bluster during the meeting, he didn’t even offer a perfunctory comment about the need for a delay.

  A special division of the FBI, separate from the criminal investigation branch, conducts background checks on presidential nominees, looking for anything that suggests they are unsuitable for a position of trust. Acquaintances of the nominee are interviewed about whether he has used drugs, is susceptible to blackmail, or has sought to overthrow the U.S. government, and they are asked to suggest other persons whom agents might interview. The Trump White House followed the same procedure for FBI background checks that the Obama administration followed, in which the reports are given directly to the president, not the FBI or the Department of Justice.

  Senator Feinstein had given the letter to the FBI on Wednesday night, redacting the name of the writer, who had requested anonymity.9 Following the normal procedure, agents placed it in Kavanaugh’s background file without evaluating it. The White House received the redacted letter by noon on Thursday and sent it back to the Judiciary Committee, where only the senators on the committee and a total of six staffers were permitted to read it. This was the first time most Republicans on the committee learned about the allegations. All information in nominees’ background files is strictly protected, as if it were classified information. The White House, therefore, was gagged from talking about the letter.

  The White House and the Senate Republicans were puzzled that Feinstein had not followed this procedure, which was well defined and commonly used, to handle the allegations before the hearing. Doing so would have ensured that the relevant parties were informed and the matter investigated while protecting the anonymity of the accuser.

  The Trump administration had worked with Judiciary Committee Democrats on close to one hundred nominees by that point, and the background investigations of several of them had raised questions. They could be minor, such as a claimed residence for which no records could be found, or they could
be important, such as allegations of inappropriate behavior. But whether the matter was big or small, the Democratic and Republican staff members would hold a confidential call with the nominee in which both sides could ask questions. If the matter was resolved, the nominee would be cleared for his hearing. If it was not resolved, the senators would meet with the nominee in a confidential session in which any question could be asked. At that point senators who still had concerns could simply vote against the nominee. If the chairman decided on his own that the question was serious enough, he could choose not to hold hearings. This process routinely protected confidential information.

  Yet Feinstein had not shared the letter with Republicans or the FBI when she received it, and it had not been mentioned prior to the confidential call with staff before the hearing. Most of Kavanaugh’s confidential session with senators after the hearing was spent discussing committee business. Feinstein hadn’t even attended. Now the White House team, unable to discuss the letter and not knowing the name of the accuser, was at a serious disadvantage.

  On Thursday afternoon, the first details of the story emerged when The Guardian reported, erroneously, that a seventeen-year-old Kavanaugh and a friend were alleged to have locked a high school girl in a room at a party, but that she had been able to get out of the room.10 In fact, the letter alleged much more than that, but conservatives immediately made fun of the allegation as unworthy of so much concern.11 The White House press shop knew that if the real allegation came out, the conservative press’s dismissiveness would look bad. But there was nothing they could do if they were to respect the limits placed on information in a candidate’s background file.

  Waiting for details was the most stressful part of this ordeal for the Kavanaugh team. How could they respond to a charge about which they had no information? The unavailability of details did not discourage the media from speculating about what had happened, and the story was getting legs. Kavanaugh, having no idea where the allegation came from, skipped back-to-school night at his daughters’ school to keep his head down and prepare.

  On Thursday, a reporter found Scott McCaleb on Nantucket, where he was attending a conference with his wife, Meghan, and asked him about the Intercept and BuzzFeed reports. The McCalebs were high school friends of Kavanaugh, and Scott had already spoken publicly on his behalf. Kavanaugh had dated Meghan’s sister in high school. Meghan knew him well and wanted to support him against what she considered ridiculous smears. “I could count on one hand how many guys I would have come out for and defended against such allegations. In fact, maybe not even five,” she said. Kavanaugh was one of them.

  She came up with a plan to send a letter to the Senate Judiciary Committee from women who had been Kavanaugh’s friends in high school. She and Scott skipped dinner to compose it, and by 7:49 p.m. the letter was being sent around by text and email for review. Friends sent it to friends, and the distribution list kept growing.

  “For the entire time we have known Brett Kavanaugh, he has behaved honorably and treated women with respect,” the letter said. “Through the more than 35 years we have known him, Brett has stood out for his friendship, character, and integrity. In particular, he has always treated women with decency and respect. That was true when he was in high school, and it has remained true to this day.”12

  Some sixty-five women, with a broad range of political views, signed the letter that night, but they didn’t want to go public with it if doing so would fuel the interest in a story they thought should be dismissed as ridiculous. So they waited to send it.

  On Friday morning, the New Yorker published a story by Ronan Farrow and Jane Mayer providing more information about the allegation. Farrow, who had received a Pulitzer Prize for his reporting on the sexual assault allegations against the Hollywood producer Harvey Weinstein, had written about several other clients of Debra Katz, who had served as a source for him.13 Farrow and Mayer reported:

  In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.14

  Now that there were some specifics to respond to, Kavanaugh announced: “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

  The follow-up phone call that Kavanaugh and Senator Collins had agreed to have after their meeting at her office was scheduled for this day. At the end of the call, Collins dismissed her staff from her office so she could discuss the matter with him privately. He categorically denied the charge. The first thing Collins noticed was that the letter to Senator Feinstein was dated July 30. She was flabbergasted that such serious allegations had been held until the last moment.

  The New Yorker’s new details about the allegation provoked rampant speculation among Kavanaugh’s classmates and friends. Who might have a grudge against Kavanaugh? Who might have interpreted an interaction in such a way? Nobody in his set of friends believed that Kavanaugh had done what was alleged. An erroneous report that the accuser was a professor at Stanford University caused speculation briefly to focus on the wrong woman. But even with the meager details provided, reporters and investigators narrowed their search for the accuser to three women in the Bay Area who fit the profile of having graduated from a Washington-area high school.

  Once it became clear the story wasn’t being dismissed, the letter from women who knew Kavanaugh in high school was sent to the Judiciary Committee, which released it on Friday afternoon. The women were immediately bombarded with phone calls from reporters and harassed on social media platforms.

  John Bresnahan, the Capitol bureau chief for Politico, tweeted that the letter showed that Republicans “knew about this high-school rape allegation.” A half-hour later, he noted that committee Republicans denied knowing the substance of the Feinstein letter or the nature of the allegations. “But clearly it took some effort,” he insisted, to find “65 women who attended high school at same time as Kavanaugh 30-odd years ago. This took some time to round up signatures.”15 In fact, Meghan McCaleb had responded to public news reports, confirming that it had taken her only a few hours to compose the letter and collect the signatures.

  Kavanaugh’s friends and colleagues of both sexes had been appearing on television throughout the confirmation process, but now it was time for women to take the lead. On Friday evening, McCaleb appeared on Laura Ingraham’s television show with Helgi Walker, a colleague of Kavanaugh’s in the White House counsel’s office, and Porter Wilkinson, who had clerked for him. All four women vouched for his character and integrity.

  Walker and Ingraham, who had clerked for Justice Thomas on the Supreme Court, noted that his name had already come up in the coverage of the allegations against Kavanaugh. After the New Yorker story was published, Thomas’s accuser, Anita Hill, called for a “fair and neutral process.”16 Memories of Thomas’s contentious confirmation battle shaped many people’s reactions to the allegations against Kavanaugh.

  Clarence Thomas was nominated on July 1, 1991, by President George H. W. Bush to fill the seat vacated by Thurgood Marshall, one of the Court’s most prominent liberals. Because the appointment promised to shift the ideological balance of the Court, liberal activists prepared a reprise of the campaign that had prevented Robert Bork’s confirmation four years earlier. The Judiciary Committee hearings in September were brutal and prolonged. Thomas testified for more than twenty-four hours over five days, longer than any Supreme Court nominee to that point save Bork himself. The committee’s vote on his nomination was seven to seven, all Republicans a
nd one Democrat voting in his favor. The nomination was sent to the full Senate for consideration on September 27.

  Two days before his expected confirmation, Nina Totenberg of National Public Radio and Timothy Phelps of Newsday both disclosed allegations of sexual harassment against Thomas by a young law professor named Anita Hill, who had worked under him at two federal agencies. The accusation had been leaked from the FBI’s background investigation, probably by a Democratic staff member.17 (In fact, the confidential closed-door session with senators that Feinstein intentionally sidestepped was instituted in 1992 by then-chairman Joe Biden in response to the debacle, in which Thomas’s reputation was damaged by an unsupported allegation.) The confirmation vote was suspended, and the hearings were reopened. From October 11 through 13, the nation’s attention was riveted on the dramatic, often wrenching, testimony of the nominee and his accuser.18 Thomas was confirmed by a vote of fifty-two to forty-eight, the closest for a Supreme Court appointment since the nineteenth century. Opinion polls found that the American public, by a two-to-one margin, had not found Hill’s allegations credible. The balance of opinion was similar among both men and women and among both blacks and whites.

  Early Sunday morning, Emma Brown of the Washington Post left a voicemail for Kavanaugh. She was about to publish a lengthy story that would detail an allegation of sexual assault against him. This was the first time Kavanaugh heard the name of his accuser: Christine Blasey Ford.