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

by Mollie Hemingway

  He was shocked to hear his name used in the same sentence as the term “sexual assault,” and when he heard the woman’s name, he realized that her accusation was not about something misinterpreted on a date. He did not remember who she was or what high school she had attended, so he called a high school friend to ask if the accuser’s name rang a bell. Kavanaugh went to Georgetown Preparatory School, an all-boys school in North Bethesda, Maryland, and he and his schoolmates had socialized with students from several other single-sex schools in the Washington area. His friend remembered Blasey, who had attended the all-girls Holton-Arms School, also in Bethesda, and immediately shared some of his unfavorable impressions of her from her high school days.

  Kavanaugh went downstairs to tell Ashley about the phone call from the reporter. It was possible that he had met his accuser when they were in high school, he said, but he never went out with her and had never been in an intimate situation with her. It went without saying that he had never attempted to rape her. Ashley responded calmly and expressed her support. Believing that everything happens for a reason, she assured him that they’d get through it.

  Kavanaugh also called McGahn and Shah to tell them about the Post story. Shah, who was in Connecticut, where his mother was recovering from a brain aneurysm, spoke with Emma Brown from the hospital. She shared a few details, such as the names of Ford and others she said were present at the incident.

  Brown had been working on the story with Ford since early July, when Kavanaugh’s name was still on the short list of potential nominees.19 Just a few hours after Brown’s call to Kavanaugh, the story was published. It was explosive.

  The angle chosen by the reporter was that Ford did not want to go public, but that the Intercept and New Yorker stories had exposed her allegation without her consent. Amid the intense speculation about the identity of Kavanaugh’s accuser, she preferred to tell the story herself.

  That story was a remarkable combination of vagueness and specificity:

  [O]ne summer in the early 1980s, Kavanaugh and a friend—both “stumbling drunk,” Ford alleges—corralled her into a bedroom during a gathering of teenagers at a house in Montgomery County. While his friend watched, she said, Kavanaugh pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth. “I thought he might inadvertently kill me,” said Ford, now a 51-year-old research psychologist in northern California. “He was trying to attack me and remove my clothing.”20

  She said she had not told anyone about the incident until 2012, during couples therapy with her husband. She provided excerpts from what she said were her therapist’s notes, which recorded that four boys at an “elitist boys’ school” attacked her. The discrepancy in the number of boys involved was the fault of her therapist, she said.

  Brown described Ford, “a registered Democrat who has made small contributions to political organizations,” as “a professor at Palo Alto University who teaches in a consortium with Stanford University, training graduate students in clinical psychology. Her work has been widely published in academic journals.” The article included but downplayed evidence that contradicted Ford’s insistence that she wanted to keep quiet, noting for example that Ford had “engaged Debra Katz” more than a month previously and that she had taken a polygraph test in early August to buttress her credibility.

  Ford’s memory was foggy, Brown reported. She thought the incident might have happened in 1982. She wasn’t sure whose house they were in, how she got there, or where exactly it was. She had drunk only one beer, she said, but Kavanaugh and his friend, Mark Judge, were heavily intoxicated. Brown mentioned that Kavanaugh’s yearbooks made references to drinking and that Judge was public about his own heavy drinking in high school.

  Ford managed to flee from the house where she was assaulted, Brown reported, but she wasn’t sure how she got home. The attack deeply affected her for the next four to five years and later induced anxiety and post-traumatic stress. The story could not have been more sympathetic to Ford.

  The worst part of the day for Kavanaugh was calling his mother. He knew she would be devastated. The hearings and follow-up questions had been abusive, but a public accusation of sexual assault showed how much worse it could get.

  McGahn reassured Kavanaugh, reminding him that they had always known something like this might happen. Was it a case of something “going south” with someone he’d dated? Kavanaugh flatly denied he had ever sexually assaulted anyone, much less this woman, whom he didn’t even remember meeting. McGahn had already talked to President Trump, who showed no interest in abandoning Kavanaugh. That show of support was an important first step, but in the wake of the Post story, it would be difficult to convince others.

  Then, pondering the newly revealed details of the accusation, Kavanaugh realized that crucial evidence of his innocence might be sitting in his basement. His father had started keeping detailed daily calendars in 1978. Kavanaugh followed suit in 1980, continuing the practice with more or less diligence ever since. These detailed daily records, almost like a diary, provided contemporary evidence of where he had been and what he had done almost every day of his life since high school. He went to the basement and pulled out his calendars for the summer of 1982 to see what they showed.

  Reviewing those calendars was like traveling back in time to high school. He was preoccupied with colleges, basketball camp, going to the beach with his friends, and visiting his “Gramy” in Connecticut. Above all, he was focused on sports, which had been an obsession since he started playing basketball in the fourth grade and football and baseball in the fifth grade.

  He would continue with basketball and football throughout high school. When he wasn’t playing or practicing sports, he was thinking about them or watching games on television. He went with his father to Redskins football games, Washington Bullets basketball games, Baltimore Orioles baseball games, and Washington Capitals hockey games. They’d also attend University of Maryland basketball games.

  Sports focused his competitive instincts, taught him how take a hit and get back up, and provided camaraderie. He broke his collarbone in the ninth grade in football practice. The pain was brutal, but even worse was missing the last two games of the season and half the basketball season. Being sidelined so long drove him crazy, but it taught him patience.

  His own coaches taught him lessons he’d later impart to the athletes he coached—keeping things in perspective and being sure you could say you gave it your all even if you lost. He learned about the importance of practices, workouts, and summer preparation. And he learned about the bonding that comes from being on a team with a great work ethic.

  Usually he took more from the losses than the wins, but some of the wins were unforgettable. In seventh grade, his football team crushed a rival, twenty-six to nothing. On the bus ride home, the boys were screaming with excitement. Their coach, who was driving the bus, pulled over and put the flashers on. They prepared to get yelled at. Instead, he stood up and shouted, “I’m so proud of you guys!”

  Besides the endless practices and games, Kavanaugh’s calendars noted social activities and parties. After an event, he would return to its entry to add the score of a game or note who was at a party. Neither Christine Blasey nor a party like the one she described was mentioned. In fact, the calendars showed that he had been out of town almost every weekend that summer. By 1982, girls were on his radar, but he was known among his female friends as the opposite of what Ford described. He would talk on the phone with his many female friends, help them with their homework, and lightly discuss the girl he was interested in at the time. One woman said he was like a gay friend you’d feel comfortable having your daughter hang out with, except he was not actually gay. His girlfriends from high school reported that he was fun to go out with and had demonstrated nothing remotely close to the aggressive beha
vior Ford had asserted. He was confident that he could convince any fair-minded observer that he was innocent.

  CHAPTER SIX

  Delay, Delay, Delay

  Within hours of the publication of Emma Brown’s story in the Post, senators called for the vote on Kavanaugh’s nomination to be delayed. Calls for delay were nothing new, but this time it wasn’t only the Democrats or members of the Judiciary Committee. Jeff Flake told a reporter that he didn’t want to vote until the committee heard more from Ford, and his Republican colleagues Bob Corker of Tennessee and Lisa Murkowski of Alaska also pushed for a delay.1 Flake’s undisguised dislike for Donald Trump was so unpopular with Arizona Republicans that he had decided not to run for reelection in 2018. Journalists now speculated that Flake’s support for a delay was an act of revenge against the president.2

  Mitch McConnell was opposed to reopening the hearings, and he initially thought he could keep the committee from doing so. Grassley also opposed reopening the hearings. Both felt that giving Kavanaugh’s opponents a televised platform would be a mistake. Nobody wanted a reenactment of the melodramatic Clarence Thomas–Anita Hill hearings. And nobody wanted to establish the precedent of an uncorroborated allegation against a nominee triggering a full Senate hearing. Reopening the hearings would also invite additional unverified accusations. McConnell and Grassley preferred to conduct a responsible investigation—as they would have done had the information been properly disclosed to the committee and the FBI—and leave it at that. But now other Republican members on the committee were calling for more hearings, and with a one-vote majority there was no room for error.

  Leonard Leo, still on leave from the Federalist Society to help with the confirmation, began collecting intelligence on how seriously senators were taking the matter and what they would require to move on. As a way of gauging their sentiments, he asked them if they thought the administration needed a “Plan B”—that is, an alternative nominee. As soon as the Intercept story had hit, some people thought it would fade away. By the time Ford’s name was public, it was clear to Leo that they faced a replay of the attack on Clarence Thomas and an aggressive battle plan was needed. He began raising money for the ads that would be run between the anti-Kavanaugh “news” segments dominating the airwaves.

  The reaction to Ford’s accusation was intensified by the ongoing #MeToo movement, which encouraged women to disclose their experiences of sexual harassment or assault. In the past year, powerful men in the entertainment industry, government, academia, and business had been brought down by such accusations.

  One dogma of the #MeToo movement, which by now commanded the allegiance of the press, progressive activists, and most Democratic politicians, was that every woman who makes an allegation must be believed.3 Supporters of due process rejected the slogan “Believe Women” and the presumption that no accusation of sexual harassment is ever malicious or mistaken, arguing that accusers should be treated with respect but that charges must be investigated.

  Soon after Ford’s allegations were made public, Senator Susan Collins was asked if she believed her. “I don’t know enough to create the judgment at this point,” Collins replied.4 But other prominent women were less modest about their grasp of the facts. An article in The Atlantic by Caitlin Flanagan was headlined, “I Believe Her: When I Was in High School, I Faced My Own Brett Kavanaugh.” Flanagan believed Ford’s accusation because a different boy had tried to rape her when she was in high school.5

  Within hours of the publication of Brown’s story in the Post, journalists began speculating that the nomination might be withdrawn. Roll Call, citing concerns for the judge’s young daughters, said, “Kavanaugh might decide to spare his family what inevitably will be a few weeks of scrutiny and discussion about Ford’s charges.” And if he didn’t, the story added, the White House might pull his nomination anyway.6

  Reporters were hounding those who had spoken on behalf of Kavanaugh, particularly the women who had known him in high school. Many had to turn off their social media accounts to avoid the deluge of phone calls and emails. But not responding to reporters was treated as a tacit admission that one no longer believed in Kavanaugh’s innocence. The HuffPost tried to ask scores of friends and students who had expressed support for Kavanaugh’s appointment if they still supported him. The “vast majority” did not reply, and the HuffPost acknowledged that it did not know how many had even noticed its request for a comment. Almost all who did reply said they continued to support him. (Such support was becoming costly; nearly a third of the former students who still voiced their support did not want their names published.) Nonetheless, the story’s headline ran, “Brett Kavanaugh’s Supporters Now Far More Reluctant to Speak Up Publicly.”7 In fact, people working on the nomination cited Kavanaugh’s incredible base of support among friends as one of the reasons they were willing to fight for him. Raj Shah had worked on other confirmation battles that had heated up and noticed that some nominees’ friends would back out. But Kavanaugh’s friends and colleagues were unflinching.

  One former clerk who wrote and spoke publicly on Kavanaugh’s behalf said she felt she had a moral imperative to do so: “You couldn’t not say anything. What if everyone who knew and cared about him decided that this is just too controversial or too contentious, or I have too much to lose, and didn’t speak up? It would have been a real tragedy.”

  Despite the revelations, Grassley pushed for the committee to follow the ordinary procedure for an update to a nominee’s background file, which would have meant staff calls with Ford and Kavanaugh. But by Sunday evening, the ranking member, Senator Feinstein, had rejected the standard procedure, saying, “The FBI should have the time it needs to investigate this new material. Staff calls aren’t the appropriate way to handle this.”8

  On Monday morning, the White House team gathered to prepare a response to the allegations. Most assumed that something had happened between Kavanaugh and Ford but that the details were in dispute. This would be their first chance to find out exactly what had happened so they could figure out how to craft a message in response. Their early assumptions evaporated after talking to Kavanaugh.

  McGahn had already talked to Kavanaugh on Sunday, but now he joined Annie Donaldson and her husband, Brett Talley, in questioning Kavanaugh, who showed them the calendars. They were astonished that he had preserved that kind of documentation. From the beginning, Kavanaugh had been punctilious about avoiding even a whiff of perjury. He had responded to Kamala Harris’s questions with caution despite her contemptuous accusations of evasion. He had just pulled multiple all-nighters to make sure none of the 1,287 written answers he submitted to the Judiciary Committee was marred by the slightest inaccuracy. After weeks of such lawyerly precision and attention to detail, Kavanaugh’s unequivocal statement that the story was not true made a deep impression on his team. They believed him.

  Everyone, including the president, wanted to fight back on every front, including in the media, in the committee, and with a hearing. Nobody considered withdrawing the nomination. They knew they might not win in the midst of a #MeToo media frenzy, but they would go down fighting. President Trump’s eagerness to fight had previously irritated Republican leaders, but now even they were thankful for it. Other Republican presidents might not have shown the same fortitude.

  The battle ahead would be ferocious. Normally, the burden of proof is on the accuser, but the media were not even paying lip service to that principle. “Kavanaugh Bears the Burden of Proof,” wrote the legal journalist Ben Wittes, a former defender of Kavanaugh.9 The team also understood that any criticism of Ford would be treated as a smear. It wasn’t that they didn’t have damaging information about her. Reports had poured in as soon as her name was known. The Blaseys were well known in their community, and people who knew her in high school and afterwards remembered her or had kept in touch with her. The details they were sharing about Christine’s behavior in high school and college were dramatically at odds with her presentation in the media. Som
e of the reports dealt with her consumption of alcohol, others with her interactions with boys and men.

  While the Post had suggested that Ford was politically moderate, acquaintances reported that her social media profile, which was completely scrubbed in July, had been notable for its extreme antipathy to President Trump. It also became clear that she had previously gone by her maiden name, but the press was now careful to use her title, “Dr.,” and her married name. Some suggested that she was following sophisticated public relations advice to emphasize her relationship with her husband.

  The confirmation team knew that mentioning any of this information in public would be depicted as “victim shaming,” however relevant it might be to the question of her veracity. Instead of focusing on her, the team would focus on Kavanaugh’s lifelong good reputation and the harm his opponents were inflicting on him and the country. Their instincts were right. Even though Kavanaugh’s supporters scrupulously declined to go after Ford, the media treated any skepticism about her allegations as a personal attack. “The right-wing smear machine has been lying about Christine Blasey Ford for the past two days,” wrote CNN’s chief media correspondent, Brian Stelter, after the Wall Street Journal and Fox News’s Tucker Carlson observed that memory is notoriously fallible.10

  Kavanaugh’s stand-and-fight strategy was nearly stopped before it could start. On Monday morning, September 17, Kellyanne Conway, the counselor to the president, told Fox News that Ford “should not be insulted, she should not be ignored. She should testify under oath and she should do it on Capitol Hill.”11 That’s exactly what Kavanaugh and his advisors had decided to ask for, but they were frustrated when Conway got ahead of them, fearing that their statement now would look less like a display of confidence than a concession to a skeptical White House. Still, everyone had to adapt. Even President Trump’s comments for most of the week were restrained, essentially echoing what Conway said.