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

by Mollie Hemingway

  Also on Monday morning, Debra Katz gave interviews to a number of television networks. She told NBC that Ford was willing to testify.12 On CNN, she revealed that Ford had spoken with Senator Feinstein soon after July 30 and retained counsel. “We were in touch” with Feinstein’s office throughout the following weeks, Katz said.13 On CBS she added that Ford was “willing to do whatever is necessary” to make sure the committee had the “full story” and, ominously, the “full set of allegations.”14

  Prior to the allegations, the judicial nomination process had been handled through the White House counsel’s office, with additional help detailed from other offices in the White House and Department of Justice. When the Ford news broke, other parties in the White House tried to intervene, and squabbles were soon breaking out. Some White House surrogates were telling the media that McGahn and his team were botching the response and that President Trump was losing confidence. That wasn’t true, but there was intense pressure to allow others to help. Shah and Kerri Kupec had handled communications prior to the allegations, but the broader White House communications team now began to be more involved.

  Only one large official moot was held after the Ford allegations broke, even before a hearing was officially scheduled. The White House director of communications, Bill Shine, and the press secretary, Sarah Sanders, along with a number of others, played the parts of various senators. It was important for those supporting Kavanaugh in the media to be convinced of his credibility if they were to do their jobs well. But the involvement of more persons made leaks more likely. The Kavanaugh team had been tight-lipped, priding itself on its discretion in a notoriously leaky administration. But those leading the confirmation effort thought that the advantages of broadening the team were worth the risk. To be safe, they warned Kavanaugh that he shouldn’t say anything that he didn’t want to be made public. He kept quiet about the existence of his calendars, therefore, so he could reveal them on his own timing. Shah had drafted intrusive questions for Sanders to ask, but she was too uncomfortable to do so. Another participant asked them instead.

  At the end of a moot, Kavanaugh ordinarily left so the participants could discuss his performance and decide on a single strategy. After he left the room, someone interrupted the discussion to announce that the media were already reporting that Kavanaugh was mooting with the press team. Later the Washington Post cited three sources who reported that “Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities.”15 They added that he declined to answer some questions altogether, which made it sound like he had something to hide. In fact, one of the goals of the moot had been to determine the right place to draw a line on invasive questions, and the only question he had ultimately declined to answer was when he had first slept with his wife.

  Their suspicions about the discretion of the broader group confirmed, the core Kavanaugh team resolved to get rid of any nonessential aides. Contrary to the press reports, they felt he had handled the moot so well that another moot could be counterproductive. They didn’t want him to go into the hearing sounding scripted.

  Kavanaugh also spoke by telephone to the Judiciary Committee staff under penalty of felony on Monday. He “unequivocally denied” the allegations. Democratic staff members could have asked any question they wanted, but they declined to participate in the interview. Kavanaugh requested a hearing right away, the next day if possible. He knew that with each passing day the media would elaborate on their portrait of a sexual predator and activists would redouble their search for dirt.

  The Judiciary Committee staff tried to talk to Ford on Sunday after her name was revealed and again on Monday when her attorney said she wanted to share her story with them. Ford’s attorneys refused the requests, according to a Senate report.16

  Grassley preferred a private information-gathering process to a public hearing, which was likely to become a circus. He had spent decades protecting whistle-blowers who made serious allegations, and in June he had held a full committee hearing on sexual harassment in the federal judiciary. He wanted to provide Ford a safe, comfortable, and dignified way to tell her story, even if he didn’t want the entire judicial confirmation process held hostage.

  But by late afternoon on Monday, nearly all the Republicans on the committee wanted to offer Ford a hearing. Kavanaugh also wanted a public hearing to clear his name. The White House had heard from Senator Ben Sasse, who advised them to take the allegations as seriously as possible, citing his experience as a college president.

  A committee business meeting had been scheduled for Thursday, September 20, the date they had expected to vote Kavanaugh out of committee, and some White House staff members hoped a second hearing could be held then. But because notice of the witnesses appearing had to be given a week in advance, Grassley could not schedule it earlier than Monday, the twenty-fourth. Katz had now repeatedly said on television that Ford wished to testify, so Grassley went ahead and scheduled hearings. Senator John Kennedy spilled the beans as he exited the meeting with Republican colleagues where the decision was made.

  Perhaps unknowingly, Republicans had called Katz’s bluff. She immediately shifted to a different strategy, demanding that the FBI investigate the allegation before Ford testified.17 Democrats, while boycotting the committee’s own investigative efforts, joined her in insisting that the FBI should be given time to do a full investigation. The Department of Justice explained on Monday that the FBI had not been called on because the allegation did not involve any federal crime and the letter had already been added to his background information file according to the usual procedure.18

  The Kavanaugh team’s worries about the dangers of delay were soon borne out. In contrast to the skepticism with which the press treated the supportive letter from Kavanaugh’s female friends and colleagues the previous week, it lavished favorable coverage on a letter signed by alumnae of Holton-Arms, described as a “response” to the first letter.19 The signatures had been collected quickly, as had the signatures to the letter in support of Kavanaugh, but this time there was no suggestion that such speed was suspicious. Unlike the pro-Kavanaugh letter, it was signed overwhelmingly by people who didn’t actually know the person they were vouching for, but their support was treated as relevant to her credibility nonetheless.20 The Washington Post’s report, under the headline “As Conservatives Attack, Hundreds Sign Letters Supporting Kavanaugh Accuser Christine Blasey Ford,” remarked that one of the letters of support “directly challenges the narratives being thrown at Ford—alleged political bias; the decades-long delay in making the allegations—to impugn her character.”

  The media, however, were not even reporting the “challenges to the narrative,” to the exasperation of many of Ford’s contemporaries in Washington. Nor were they reporting the dismay of Holton-Arms alumnae at the school’s public support of Ford. Sara Hayes, an alumna, said she had never “been more disappointed nor felt more detached from a school” she loved, decrying the “rush to judgment” and the “presumption of guilt” that the school was espousing.

  The next day, Tuesday, September 18, Ford’s lawyers finally responded to the many attempts by the staff of the Judiciary Committee to schedule an interview and prepare for a hearing. The attorneys complained that Ford had been forced out of her home by violent messages targeting her and her family, that her email had been hacked, and that she had been impersonated online.21 Kavanaugh, of course, was enduring similar problems but cooperated by telephone.

  Despite having called for a Senate hearing the day before, Ford’s attorneys angrily denounced Grassley for expecting her “to testify at the same table as Judge Kavanaugh in front of two dozen U.S. Senators on national television to relive this traumatic and harrowing incident.”22 Allowing Republican senators who had approached Ford’s account with skepticism to question her, they suggested, would be an outrage. “[N]o sexual assault survivor should be subjected to such an ordeal,” they declared,
as though the allegations should be believed without respectful investigation.23

  Democrats continued to demand an FBI investigation despite the lack of federal jurisdiction and Ford’s vagueness about the location and date of the alleged attack. The media joined in the call, raising no questions about the practicality of asking the FBI to investigate an allegation with so few verifiable details. A Democratic state senator in Maryland even asked the governor to have the state police investigate the attack. He declined, but the local police later said they would investigate if Ford filed a complaint.24 She never did.25

  In response to condemnations of the Republican men on the Senate Judiciary Committee for not accepting Ford’s allegations at face value, Grassley said on Wednesday the committee was “doing everything” it could to make Ford feel comfortable, and he offered her four different ways to deliver her testimony: an open session or a closed session, as well as public or private interviews.26 They even offered to send female Senate investigators to California to talk to her. The committee’s efforts met with no response from Ford and her lawyers and were ignored by the media and other senators.

  Grassley’s assertion that Republican committee staffers had done everything they could to reach Ford, said Senator Mazie Hirono, was “bulls—t.”27 By that point, the committee had sent nine emails and left two voicemail messages. The same senator would later tell the press, “And I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.”28 But Ford’s refusal to answer the committee finally began to hurt her case. Some conservatives were encouraging the Senate to proceed to a vote if Ford did not show up at the hearing.29 Even ABC News’s Cokie Roberts said Ford needed to stop delaying and testify.30

  Kavanaugh’s opponents still felt they held a strong hand. Democratic strategists began planning the campaign that would follow their sinking of the nomination, promising to “turn the midterms into a referendum not just on President Trump but also women’s rights, abortion and the future of the Supreme Court.”31

  A HuffPost–YouGov poll showed that only 28 percent of males and 25 percent of females found Ford’s allegations credible and that the allegations had not changed their positions on Kavanaugh’s confirmation.32 But other polls showed a decline in support for Kavanaugh.33 Vanity Fair reported that Ivanka Trump had advised her father to “cut bait” and drop the nomination.34

  The media continued to report that Ford’s allegation was bad for Republicans and good for Democrats, but there were reasons to believe that this message was at the very least overhyped. Democrats in high-profile Senate races were keeping their distance from the Ford story. Phil Bredesen, running for the open seat in Tennessee, even said that the Judiciary Committee should vote if Ford did not show up to testify.35

  Senator John Cornyn of Texas explained on Tuesday why Republicans were eager to have a hearing where questions could be posed: “The problem is, Dr. Ford can’t remember when it was, where it was, or how it came to be. There are some gaps there that need to be filled.”36 Cornyn had simply stated the facts. Those were enormous gaps in an accusation of sexual assault that was intended to keep one of the nation’s most distinguished judges off the Supreme Court. But the media responded as if Cornyn were maliciously sowing doubt about an account that anyone of sound mind must regard as unimpeachable. Referring to Cornyn’s statement, CNN’s Chris Cillizza tweeted: “Walking a VERY dangerous line here.”37

  By contrast, it was not considered a dangerous line to misconstrue jokes made by Kavanaugh. On Tuesday, liberal media outlets and Democrats began sharing an edited clip from a speech Kavanaugh had given at Catholic University’s law school in 2015. He had said:

  By coincidence, three classmates of mine at Georgetown Prep were graduates of this law school in 1990 and are really, really good friends of mine. Mike Bidwill, Don Urgo, and Phil Merkle, and they were good friends of mine then and are still good friends of mine, as recently as this weekend when we were all on email together. But fortunately, we had a good saying that we’ve held firm to this day as the Dean was reminding me before the talk, which is “What happens at Georgetown Prep, stays at Georgetown Prep.” That’s been a good thing for all of us, I think.38

  The audience laughed. MSNBC aired just the portion after the word “fortunately,” giving the impression that the prep school buddies covered up sexual assault with a code of omertà. Elizabeth Warren tweeted the truncated video with the comment, “I can’t imagine any parent accepting this view. Is this really what America wants in its next Supreme Court Justice?”39 When CNN aired the clip, its White House reporter Jim Acosta added, “There are portions of his childhood he’d rather not come to light.”40 Politico, USA Today, and the Washington Post all reported the remarks as if they were newsworthy rather than acknowledging an obvious jest based on Las Vegas’s familiar tagline.41

  By Wednesday, social media swirled with reports that a witness had finally emerged who could corroborate Ford’s account. “The incident DID happen, many of us heard about it in school,” wrote Christina King Miranda on Facebook. She repeated her story on Twitter: “The incident was spoken about for days afterward in school. Kavanaugh should stop lying, own up to it, and apologize.”42 It was a curious assertion, since Ford herself said she hadn’t told anyone about the assault for decades. The Senate Judiciary Committee’s Republican staff immediately asked Miranda for more information. She deleted her note within hours, admitting she had posted it because she had felt “empowered” and was sure the assault had happened, despite having no knowledge of it. “I had no idea that I would now have to go to the specifics and defend it before 50 cable channels and have my face spread all over MSNBC news and Twitter,” she told National Public Radio.43 She tweeted that the post had “served its purpose,” which apparently was to use a deliberate lie to make Kavanaugh “stop lying.”44

  Hours after Miranda had deleted her post and admitted that she had no knowledge of the attack, NBC published a story about her headlined, “Accuser’s Schoolmate Says She Recalls Hearing of Alleged Kavanaugh Incident.” It was modestly edited the next day, although the discredited headline remained the same.45

  Miranda’s wasn’t the only story that day to take off in the media but be quickly disproved. The HuffPost published an anonymous report that Amy Chua and her husband, Jed Rubenfeld, both professors at Yale Law School, had advised a female law student who was applying for a clerkship with Kavanaugh that the judge liked the women in his chambers to have a “certain look.”46 NBC News and The Guardian also picked up the story.47 Chua was said to have recommended that the woman, whose friends described her as “awkward,” work on professional dress. This tale of helpful woman-to-woman mentoring was presented as evidence of Kavanaugh’s inappropriate treatment of women.

  The dean of Yale Law School, wringing her hands, declared the allegation to be “of enormous concern,” and the school promised a full investigation.48 One of Chua’s former students, the writer Abigail Shrier, asked, “What McCarthyist hell are we living [in]?”49 Chua called the story “outrageous and 100% false.”50 “Yale law professor denies reports she groomed Kavanaugh’s prospective clerks,” wrote NBC.51

  As the media chased ephemera, the Judiciary Committee was slowly gathering testimony relating to Ford’s allegations. She had said that four persons were at the party with her. Kavanaugh had already categorically denied that he was there. Mark Judge had also submitted a statement to the committee saying he didn’t remember any such party and that Kavanaugh never behaved as described. On Wednesday a third person, Patrick “P.J.” Smyth, identified as having been at the party, submitted his own statement: “I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct [Ford] has leveled against Brett Kavanaugh.” He added, “Personally speaking, I have known Brett Kavanaugh since high school and I know him to be a person of great integrity, a great friend, and I have never witnessed any improper conduct by Brett Kavanaugh towards women.�
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  Grassley was determined to keep things moving. He announced that Ford had until Friday morning to provide prepared testimony for Monday’s hearing.53

  Late on Thursday, a prominent conservative judicial scholar posted a series of tweets that suggested a possible case of mistaken identity. Rumors had been circulating that Ed Whelan, the respected head of the Ethics and Public Policy Center (EPPC) and a friend of Kavanaugh’s, had exonerating information. Curiosity was high. In the tweets, he noted that none of the persons identified as being at the party lived close to the Columbia Country Club, which Ford said the party was near. None of them had homes that matched the description she had provided to the Post. And it was unlikely, he suggested, that no one at the party lived in the house where the party took place. He then posted a photograph of one of Kavanaugh’s high school classmates and the floor plan of the boy’s house, which was compatible with Ford’s description of the house where the party was. That house was within walking distance of the Columbia Country Club. Finally, the boy bore a resemblance to Kavanaugh.

  Even though Whelan had said he wasn’t accusing the other man, now a middle school teacher, of any wrongdoing, reporters and observers felt he had done just that. Supporters of Kavanaugh immediately distanced themselves from the tweets. The media pounced. Whelan offered his resignation from the EPPC, which was declined by the board of directors. He deleted the tweets within hours and apologized for “an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh’s Georgetown Prep classmate.”54 Reporters speculated that he had hatched the plan with Kavanaugh or the Federalist Society, but Whelan said he bore full responsibility.

  The commotion over Whelan’s imprudent decision to publicize the name and face of another classmate prevented many people from considering the other arguments that he made in the series of tweets. In fact, none of the persons who allegedly attended the party lived near Columbia Country Club. Since they had a common friend who lived only a half-mile from the club, it is implausible that someone two miles away would have been considered “near” the club. And it is also logical to assume that a small house party would have taken place at the home of one of the attendees.