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

by Mollie Hemingway

  The theory—perhaps born of wishful thinking—that Ford could have confused Kavanaugh with this other young man was implausible, particularly since it turned out that Ford had dated the other boy at one point. But it was more reasonable to imagine that if Ford had been drinking heavily, as she was known for doing, her memory could have been clouded. And the one possibility the media refused to consider was plain: if Ford were fabricating a story, she could well have used details of locations she knew or parties she had attended. Whelan’s tweets were not the silver bullet they were advertised to be, but he did raise legitimate questions about Ford’s story, questions that were overlooked in the ensuing furor.

  That same Thursday evening, Katz said that Ford might testify if certain conditions were met. She told the committee staff that Ford needed time to secure her family and travel to Washington. She ruled out a Monday hearing and began pushing for Thursday. She also stipulated the following conditions:

  • Kavanaugh was not to appear in the same room as Ford.

  • Kavanaugh must testify first.

  • Only senators could ask the questions.

  • Mark Judge must be required to testify.

  • Ford must have unlimited time for her opening statement.

  • The number of cameras in the hearing room must be limited.55

  Ricki Seidman, a longtime Democratic operative and Clinton White House insider, was revealed to be part of Ford’s legal team as well.56 The Weekly Standard had reported in 1996, “Seidman’s resume reads like a fantasy of liberal and Democratic activism.” She had been the legal director for Norman Lear’s People for the American Way, where she was responsible for the vicious attack ad on Robert Bork. While at Ted Kennedy’s office, she was credited with persuading the reluctant Anita Hill to come out with her harassment story. When the Judiciary Committee failed to listen, according to contemporary sources, Seidman helped leak the story to the press. She figures prominently in HBO’s pro-Hill drama Confirmation.57 When Kavanaugh was nominated, she was bragging of having worked on one side or the other of every Supreme Court nomination since the elevation of Rehnquist to chief justice, the sole exception being the Gorsuch confirmation.58

  While they decided how to respond to Ford’s various demands, Republicans had one problem that required an unorthodox solution. Democratic senators had earlier complained that it was inappropriate for the Republican men of the Judiciary Committee to question Ford, so the Republicans were arranging for an outside lawyer to handle their questioning.

  That Friday, President Trump’s uncharacteristic Twitter restraint finally ended when he tweeted, “I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents. I ask that she bring those filings forward so that we can learn date, time, and place!”59

  Senator Susan Collins, whose support was indispensable, was appalled: “I thought that the president’s tweet was completely inappropriate and wrong.”60 Trump’s comments also dismayed his critics from the right who had grudgingly approved of his judicial appointments. Jonathan Last argued in the Weekly Standard that the nomination should be withdrawn and Kavanaugh replaced with someone who could be “portrayed” as more conservative. The Court’s rulings, he wrote, “would have more legitimacy in the eyes of the public if the deciding vote is cast by someone other than Brett Kavanaugh.”61

  Whatever its rough edges, Trump’s statement did signal the administration’s willingness to stand behind Kavanaugh. A more productive, if no less fervent, show of support came from the Senate majority leader the same day. McConnell told an audience at the Values Voters Summit: “You’ve watched the fight. You’ve watched the tactics. But here’s what I want to tell you. In the very near future, Judge Kavanaugh will be on the United States Supreme Court.” Senate Republicans, he promised, were going to “plow right through it and do our job.”62 The crowd went wild.

  Kavanaugh’s closest supporters were divided over how to proceed. The White House team wanted to fight, but his many friends from the Bush era encouraged an appeal to decency, rebutting the accusations but emphasizing his strong relationships with women. Such an appeal would be insufficient, the White House team thought, but it couldn’t do any harm, so they encouraged Kavanaugh’s friends to try it. On Friday, eighty-seven women who knew Kavanaugh throughout his life held a press conference. It received almost no media coverage.

  Kavanaugh supporters were facing the reality that most of the media were not merely biased against him but were full participants in the opposition. The conservative group Concerned Women for America (CWA) brought its Iowa state director to Grassley’s office. CNN’s Sunlen Serfaty said there was no time to talk to her, even as the cable outlet pulled protester after protester out of the crowd to interview. Another CNN reporter pretended to be on a phone call when hundreds of female Kavanaugh supporters came to visit Flake. One CBS reporter flat out told CWA that he wasn’t there to cover pro-Kavanaugh forces.

  One female Kavanaugh clerk who was doing extensive media in support of the nomination said she eventually realized that prerecorded interviews weren’t worth the time, since her statements in support of Kavanaugh would be edited out. The only way to break through was to do live interviews where producers couldn’t hide support for Kavanaugh.

  Conservative and alternative media became a lifeline for the nomination. Outside groups began streaming their own rallies and advocacy efforts on Facebook Live. With the New York Times and Washington Post serving as the public relations arm of the anti-Kavanaugh movement, conservative media began breaking stories and debunking false story lines. Later, Christopher Scalia, a son of the late justice, tweeted, “Imagine what these past few weeks would have been like without a strong conservative media presence to fight the bias and credulity of so many other outlets.” Robert Bork Jr. pointedly responded, “Yes. Yes, I can.”63

  Grassley kept extending the deadline for Ford to accept the offer to testify. He had initially set it for Friday morning, then Friday afternoon, then Friday night.64 Late Friday, after Ford’s attorney called the deadline “arbitrary” and an attempt to “bully” her, he moved it to 2:30 p.m. on Saturday. Unappeased, Katz told the committee in an email, “The imposition of aggressive and artificial deadlines regarding the date and conditions of any hearing has created tremendous and unwarranted anxiety and stress on Dr. Ford. Your cavalier treatment of a sexual assault survivor who has been doing her best to cooperate with the Committee is completely inappropriate.”65

  Senator Grassley, who believed he had been more than fair, grew exasperated. He tweeted, “With all the extensions we give Dr. Ford to decide if she still wants to testify to the Senate I feel like I’m playing 2nd trombone in the judiciary orchestra and Schumer is the conductor.”66 In reality, the people calling the shots were Republican senators who insisted they needed a public hearing to feel comfortable voting for Kavanaugh. Collins joined Judiciary Committee Republicans in insisting on accommodating Ford. She thought it silly to fight over which day of the week Ford would testify. If the Senate needed to send a plane or a private car to get her, that was fine as well.

  On Friday, the Judiciary Committee offered to move the hearing from Monday to Wednesday, one day sooner than she had requested. Some of Kavanaugh’s defenders saw the further delay as more time to dredge up outrageous charges, and they worried that Katz wanted to wait until Thursday so she could coordinate other allegations or witnesses.

  The committee staff felt they had bent over backwards to meet most of Ford’s conditions, but as they wrote to her attorneys, “Some of your other demands, however, are unreasonable and we are unable to accommodate them. You demanded that Judge Kavanaugh be the first person to testify. Accommodating this demand would be an affront to fundamental notions of due process. In the United States, an individual accused of a crime is entitled to a presumption of innocence.”67 They also insisted that the committee would designate
its own lawyer to conduct the questioning.68

  Just before midnight on Friday, Grassley tweeted that after five extensions, Ford needed to let him know if she would testify or not.69 In another tweet a few minutes later, he told Kavanaugh that he had granted yet another extension and that he hoped the judge would understand.70

  The media reported unquestioningly Ford’s assertion that she was so scarred by the attempted rape in 1982 that she required multiple doors and exit routes in rooms and was unable to travel by airplane, “the ultimate closed space where you cannot get away.”71 The Washington Post’s Jennifer Rubin lambasted the Republican senators: “They tell a woman who needs to drive cross country she can’t have one extra day. None of these people should be in office.”72

  That night, the Judiciary Committee’s communications advisor, Garrett Ventry, resigned after NBC published an anonymous report that he had been fired from a job in the North Carolina legislature after an allegation of sexual harassment, an allegation he denied. NBC reported that Republicans felt he “could not lead an effective communications response,” implying that Ventry’s colleagues did not support him. In fact, the “Republicans” referred to were not members of the U.S. Senate or of the judiciary staff but a source in North Carolina, as the reporter, Heidi Przybyla, confirmed to Grassley’s staff.73 Nevertheless, NBC refused to correct the story unless Grassley would agree to provide comment for the story.

  The environment in which the Judiciary Committee staff had to work was verging on the intolerable. “It was no longer like drinking out of a fire hose. It was learning how to grow gills at that point,” said Taylor Foy, the communications director for Grassley. When he had scheduled his wedding for October 4, he hadn’t dreamed how stressful the closing weeks of his engagement would be. His bride would wear a “Confirm Kavanaugh” button for her “something blue.”

  Thirteen minutes before Grassley’s final deadline on Saturday, Ford’s lawyers sent a harshly worded email in which they finally agreed to have her testify. On Monday of that week, Katz had declared that Ford was “willing to do whatever is necessary” for the committee to receive the “full story.” By Saturday her position was that although many of Grassley’s offers were “fundamentally inconsistent with the Committee’s promise of a fair, impartial investigation into her allegations, and we are disappointed with the leaks and the bullying that have tainted the process, we are hopeful that we can reach agreement on details.”74 Later that night they agreed to a hearing on Thursday, September 27, at ten o’clock.

  It was also announced on Saturday that Michael Bromwich had joined Ford’s legal team. An inspector general under President Clinton, he had recently represented Andrew McCabe, a former deputy director of the FBI and a harsh critic of President Trump who was fired for lying about leaking to reporters.75

  On Saturday night, the name of the fourth and final witness surfaced. Surprisingly, it was a female. All previous media reports had been based on Ford’s changing assertions regarding four boys. Ford had told the Washington Post’s Emma Brown that her close and lifelong friend Leland Keyser was one of the four other persons at the party. Though Brown had concealed this from readers, the Judiciary Committee had found it out. Keyser’s attorney, Howard Walsh, responded to an inquiry from the Judiciary Committee: “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”76

  Later that same evening, Kimberley Strassel, a columnist for the Wall Street Journal, obtained a copy of the email that Emma Brown had sent to Mark Judge hours before her explosive story was published in the Washington Post. In that email, Brown had referred to Keyser, using her maiden name, Ingham, as one of four persons Ford said was at the party. Yet Brown’s story in the Post reported that Ford said there were four boys at the party, an apparent attempt to reconcile Ford’s account with her therapist’s notes: “The notes say four boys were involved, a discrepancy Blasey Ford says was an error on the therapist’s part. Blasey Ford said there were four boys at the party but only two in the room.”77 Were there three boys and one girl at the party or four boys? It was apparent that Ford’s story had changed and that the Post was concealing that change, which would have weakened Ford’s credibility.

  The Post scrambled to update its narrative, explaining, “Before her name became public, Ford told The Post she did not think Keyser would remember the party because nothing remarkable had happened there, as far as Keyser was aware.”78

  Strassel noted on Twitter, “That is WaPo admitting that it had the name, and had Ford’s response to what would clearly be a Keyser denial, but NEVER PUT IT OUT THERE.”79 It was evident that the newspaper purposely declined to publish Keyser’s name, despite publishing the names of the other alleged witnesses. In fact, Brown had been inside Keyser’s house earlier that week, failing to get confirmation of Ford’s account. Readers were not even told her name or that Ford’s story about four boys was now about three boys and one girl.

  Katz rushed to dismiss Keyser’s statement: “It’s not surprising that Ms. Keyser has no recollection of the evening as they did not discuss it. It’s also unremarkable that Ms. Keyser does not remember attending a specific gathering 30 years ago at which nothing of consequence happened to her.”80 Whether a sixteen-year-old girl would forget being abandoned by her friend at a small party with three senior boys, including two varsity football players and the captain of the football team, was in dispute.

  It had been quite a week for Christine Blasey Ford. On Sunday, she had exploded onto the scene, identifying four specific persons as having attended that long-ago party. By the following Saturday, all four had denied knowledge of any such gathering.

  For Ashley Kavanaugh, life had become surreal. Though she had prayed that her husband not be chosen for the Supreme Court, she had supported him when he was attacked by conservatives who feared that he would be. After he was nominated, she had taken care of the children while he prepared for his hearings. She had quietly endured the indignities of those hearings and tried to protect her children from the ugliness and vulgarity of the protests. (The girls were not impressed by what they heard. Liza mocked one of the chants on the grounds that it didn’t rhyme.)

  Before the details of Ford’s allegation came out, the rumors had been so difficult on the family that Kavanaugh had wondered if a seat on the Supreme Court was worth it. Knowing that the story was about to break, Ashley went to stock up on groceries. The press had already been camped out in front of their house, and she knew it was about to get worse. The story broke while she was in the supermarket, and she read it on her phone sitting in the parking lot. It was a relief of sorts finally to have the allegation in front of them. Justice Thomas said the same thing about finding out the specifics of the allegations made against him.

  She told the girls what they needed to know, not wanting them to hear it from anyone else, and reassured them that they could ask her and their father anything, and they would be as honest as possible.

  Friends hurried to help, offering to bring meals and take care of the girls and making sure everyone was okay. They would take the girls for extended playdates to keep them entertained. One set of friends had taken Liza to the Columbia Country Club for lunch when news about the allegations came on the television in the restaurant. Someone rushed over to turn it off.

  Ashley prayed regularly and studied the Bible. After the attacks of 9/11, she had come across a verse in the scriptures about not being afraid. She wrote it on a sticky note and put it on her desk outside the Oval Office where she would see it frequently. It gave her the courage to support President Bush and others who had much more on their minds. Nearly seventeen years later, the day after her husband was nominated, she had come across a passage from Psalm 37: “Commit your way to the Lord, trust also in Him, and He shall bring it to pass.” Now, in very different but no less difficult circumstances, she wrote the verse on a sticky note and placed it on her bulletin
board at home where it would give her encouragement.

  The Monday after the Ford allegations broke, Ashley was incredibly tired. One of the verses for the day in Jesus Calling, a popular daily devotional, was Psalm 37:5.81 Coming across that familiar verse was profoundly comforting. She felt confident that her husband’s nomination was meant to be because she had prayed so hard that he wouldn’t get it, but the attacks on this good and decent man made no sense. They were hard to take.

  Leland Keyser’s announcement that she did not know Kavanaugh was gravely damaging to Ford’s already improbable account. This lifelong friend, a woman who had every incentive to blur the lines, was unable to corroborate the allegation. Hugely relieved, the Kavanaughs expected the story to be big news. When instead it was barely reported, they knew they were in trouble.

  CHAPTER SEVEN

  Too Big To Fail

  “ANOTHER WOMAN?” blared the headline, in all caps and all red for emphasis.1 It was 5:30 on Sunday evening, September 23, and the Drudge Report, which had famously broken the news about President Bill Clinton’s sexual relationship with Monica Lewinsky in 1998, teased the idea that an explosive new allegation against Kavanaugh was coming. The story would be told by Ronan Farrow and Jane Mayer of the New Yorker, the website said. Because Farrow helped kick off the #MeToo movement by breaking the Harvey Weinstein sexual harassment scandal a year before, his name gave the headline an air of credibility.