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

by Mollie Hemingway

  That evening the story was published.2 Senate Democrats were investigating “a new allegation of sexual misconduct” that had been conveyed to them by an unnamed “civil-rights lawyer.”

  A Yale classmate of Kavanaugh’s named Deborah Ramirez alleged that during their freshman year, “Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.”

  After contacting “several dozen” classmates, the New Yorker was unable to find a witness to corroborate the story. One anonymous classmate said he had heard about the incident from another student at the time: “I’ve known this all along. It’s been on my mind all these years when his name came up. It was a big deal.” He said Kavanaugh was “aggressive and even belligerent” when drinking. Kavanaugh’s roommate at the time, James Roche, said that although he never witnessed any sexual misconduct, Kavanaugh was “frequently, incoherently drunk.”

  Senator Mazie Hirono, whose staff had aroused the suspicion of Republican staffers by arriving at work uncharacteristically early that Sunday morning, pounced: “This is another serious, credible, and disturbing allegation against Brett Kavanaugh [that] should be fully investigated.” An unnamed Senate aide was quoted as saying, “If established, they’re clearly disqualifying.” Ramirez herself “is now calling for the F.B.I. to investigate Kavanaugh’s role in the incident,” Farrow and Mayer reported.

  Ramirez acknowledged that she didn’t remember much except “laughter at her expense from Kavanaugh and the other students,” a detail curiously similar to one in Ford’s story. The New Yorker noted that Kavanaugh would have been eighteen years old, a legal adult, at the time, and that if the allegation were true, he would have perjured himself, having sworn that he had never “committed any verbal or physical harassment or assault of a sexual nature.”

  The article was written in a breathless style that gave it a sense of significance, even though it betrayed more than a whiff of desperation. Mayer even admitted that she and Farrow had pursued the story precisely to show a “pattern of misconduct,” since “that helps establish who is telling the truth when there is a standoff, and whether there were credible corroborators on either side.”3

  The writers included lurid stories about Kavanaugh’s friends and milieu without establishing any connection to Kavanaugh himself. Elizabeth Rasor, who had dated Kavanaugh’s friend Mark Judge, reported that Judge had “told her ashamedly of an incident that involved him and other boys taking turns having sex with a drunk woman.” Judge “categorically” denied the report. Another woman had told Ford’s lawyers that when she was in high school in the 1980s, “she had witnessed boys at parties that included Georgetown Prep students” get girls drunk with “jungle juice”—a mix of grain alcohol and Hawaiian Punch—and then try to take advantage of them. The four-thousand-word story ended with lawyers for both Ford and Ramirez calling for an FBI investigation, the same thing the Democrats were demanding.

  When the New Yorker article was published, the stories of group sex and spiked punch seemed irrelevant. They shed no light on Ramirez’s allegations and were only faintly relevant to statements in support of Kavanaugh in connection with an unrelated allegation. Mark Judge had previously been asked by the Weekly Standard whether he recalled any “sort of rough-housing with a female student back in high school” that could be “interpreted differently by parties involved,” and the New Yorker had noted his flat denial.4 Rasor’s story certainly did nothing to burnish Judge’s image, but it didn’t contradict his statement about roughhousing. Her story supposedly “undercut Judge’s protestations about the sexual innocence of Georgetown Prep,” but Judge, who years earlier had written frankly of his substance abuse struggles, never claimed such innocence.

  The “jungle juice” story was even weaker. There was no connection between what other Georgetown Prep students may have done at unspecified parties sometime in the 1980s and what Kavanaugh was alleged to have done at one particular party, let alone at Yale. But those stories would be cited again soon enough.

  At 7:33 p.m., shortly after the New Yorker story was published, a lawyer named Michael Avenatti tweeted: “I represent a woman with credible information regarding Judge Kavanaugh and Mark Judge. We will be demanding the opportunity to present testimony to the committee and will likewise be demanding that Judge and others be subpoenaed to testify. The nomination must be withdrawn.”5 His client was not Ramirez, he said.

  Avenatti, who had become an anti-Trump hero for his hardball representation of the porn star Stormy Daniels in her legal tangles with the president, promised “significant evidence of multiple house parties” in the 1980s at which Kavanaugh would “participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them.” Multiple witnesses would corroborate the allegation, he said, and they must be called to testify.6

  As far as the chattering classes of D.C. were concerned, if Kavanaugh’s confirmation had any life left in it before Sunday evening, it was indisputably dead now.

  For Kavanaugh, the moment was brutal. This was precisely why he had feared delaying a vote on his confirmation. Delays allowed his opponents to troll for people who’d be willing to say something—anything—to discredit him. Time was not his friend.

  He wasn’t worried that the White House would pull his nomination. There may have been no White House in history more temperamentally suited to this fight. But that was only half the battle. He knew enough about U.S. senators to worry about their commitment throughout a long and unrelenting smear campaign. In fact, Senator Rob Portman, who had served as a de facto adviser as Kavanaugh met with other senators, let him know that some senators were taking the Swetnick allegations seriously. It was one of the only times that Kavanaugh reacted loudly, incredulous that anyone could believe such ridiculous claims.

  He wasn’t reading the stories, not even the initial story in the Washington Post. Senator Orrin Hatch had advised him early in the process to turn off the news. But from the accounts he was given, he wondered who this person they were describing was. He had his flaws, but the media’s portrayals of him were simply unrecognizable.7

  Kavanaugh had to act, so he issued a response to Ramirez’s allegations: “This alleged event from 35 years ago did not happen. The people who knew me then know that this did not happen, and have said so. This is a smear, plain and simple. I look forward to testifying on Thursday about the truth, and defending my good name—and the reputation for character and integrity I have spent a lifetime building—against these last-minute allegations.”8

  “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary,” wrote Justice Edward White in Coffin v United States, tracing it from Deuteronomy through Roman Law, Canon Law, and the Common Law and illustrating it with an anecdote about a fourth-century provincial governor on trial before the Roman Emperor Julian for embezzlement:

  Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?”9

  The presumption of innocence survives in America’s criminal courts, but it seemed to have vanished from the court of public opinion by the time of Brett Kavanaugh’s nomination. The #MeToo movement had drawn attention to the serious difficulties women had experienced in reporting sexual assault and harassment, but activists were now demanding complete credulity in response to any accusation, despite the prominent and recent cases of fabricated sexual assault charges against the Duke lacrosse team and a fraternity at the University of Virginia. A small but significant portion of sexual assault allegations—between 2 and 10 percent
, according to empirical studies—are eventually deemed false.10

  When asked, Senator Hirono refused to say that Kavanaugh enjoyed a presumption of innocence, suggesting, remarkably enough, that his judicial philosophy made him somehow less credible. “I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” she said.11 Senator Coons was even more direct, stating the next day that Judge Kavanaugh “bears the burden of disproving these allegations.”12 Senate Minority Leader Chuck Schumer of New York said, “There is no presumption of innocence or guilt when you have a nominee before you.”13

  Senator McConnell pushed back against this abandonment of due process, citing as an authority a former senator who, as chairman of the Judiciary Committee, had presided over the confirmation hearings of Clarence Thomas. As the committee prepared to hear from both Anita Hill and Judge Thomas, Senator Joe Biden had told the nominee, “The presumption is with you. With me, the presumption is with you, and in my opinion, it should be with you until all the evidence is in and people make a judgment.”14 In fact, Hill’s testimony came nowhere near the standard necessary to credibly accuse, much less convict, Thomas of sexual harassment. She had no contemporaneous witnesses, was contradicted by contemporaneous witnesses, was caught in several lies under questioning, had a dramatically shifting story, and was generally viewed by the American public as lacking credibility. Almost three decades later, Biden, now a former vice president contemplating a run for president in 2020, reversed himself as soon as Ford’s allegations were made public: “For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.”15

  It wasn’t just senators. Faculty, students, and alumni of Yale, obviously unmoved by the collegiate connection, supported Ramirez’s call for an FBI investigation of Kavanaugh. Four dozen faculty members issued a letter demanding an immediate halt to the confirmation process.16 Professors in the law school canceled thirty-one classes to accommodate students busy with a sit-in.17 And more than one thousand female Yale Law School graduates signed a letter supporting Kavanaugh’s accusers.18 Corroboration of the accusations could wait; signatures were being collected even before the New Yorker published its article about Ramirez. Alumni reported furious efforts to assemble mass denunciations of Kavanaugh and to ferret out unflattering stories about him from college. Some were uncomfortable with the rush to judgment but felt it was too dangerous to speak up on Kavanaugh’s behalf.

  At the same time, it began to appear that Ramirez’s story might not hold up under scrutiny. The New Yorker article itself contained details that undercut its credibility. It acknowledged that Ramirez had “significant gaps” in her memories, that she was reluctant to speak with certainty about Kavanaugh’s role in the incident, that it took her six days of “assessing her memories” and consulting with an attorney provided by Democrats to name Kavanaugh, and that a robust effort to find eyewitnesses failed to turn up anyone who could confirm that Kavanaugh was even present at the party.

  Four other classmates, two of whom were allegedly involved in the incident and a third whose husband was allegedly involved, all said the story was ridiculous. “The behavior she describes would be completely out of character for Brett. In addition, some of us knew Debbie long after Yale, and she never described this incident until Brett’s Supreme Court nomination was pending,” said her classmate Dan Murphy.

  Karen Yarasavage said she was best friends with Ramirez at the time and had never heard of the incident. “We shared intimate details of our lives. And I was never told this story by her, or by anyone else. It never came up. I didn’t see it; I never heard of it happening,” she said. Perhaps most damaging to the credibility of the story is the effect heavy drinking may have had on Ramirez’s recollection of what took place in 1983 or 1984. Ramirez admitted she “quickly became inebriated” at the party, ending up “on the floor, foggy and slurring her words.”

  Acknowledging Ramirez’s extremely impaired mental state and never quoting her directly and plainly saying that Brett Kavanaugh exposed himself, Farrow and Mayer nevertheless draw surprisingly strong conclusions about Kavanaugh’s guilt. The facts that they actually present are that “a male student pointed a gag plastic penis in her direction” and that Ramirez remembered being on the floor flanked by that student and another male student. They go on to report that a “third male then exposed himself to her” and quote Ramirez as saying, “I remember a penis being in front of my face.” Kavanaugh was standing to her side, they write, and they quote Ramirez as saying, “Brett was laughing,” “I can still see his face, and his hips coming forward, like when you pull up your pants.”

  Anticipating that Ramirez “will inevitably be pressed on her motivation for coming forward after so many years, and questioned about her memory, given her drinking at the party,” the authors offer a preemptive rebuttal: “And yet, after several days of considering the matter carefully, she said, ‘I’m confident about the pants coming up, and I’m confident about Brett being there.’ ” Readers are again oddly left to connect the dots themselves about the defining event of the entire story.

  National Review’s Charles Cooke wrote that he was “struggling to remember reading a less responsible piece of ‘journalism’ in a major media outlet.”19 Even the New York Times admitted the story’s failures. Noting that the New Yorker had not been able to confirm with other witnesses that Kavanaugh was even at the party, the paper conducted its own interviews with “several dozen people” but “could find no one with firsthand knowledge” of the allegations. The Times learned that “Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.”20

  It was at this moment that a number of people on Kavanaugh’s White House team suspected the anti-Kavanaugh forces had finally overplayed their hand. The tide was turning.

  Farrow, who had become something of a folk hero for exposing other powerful male sexual predators, now had to defend his story. On CNN he said Ramirez’s story “exceeds the evidentiary basis we’ve used in the past in several cases that were found to be very credible,” bringing his previous stories into question as well.21

  “By discarding the basic standards of evidence and journalism, Ronan Farrow has set the Me Too Movement back,” wrote David Marcus in The Federalist (where one of this book’s authors is a senior editor).22 It did not help Farrow’s credibility that his co-author was Mayer, whose partisan record gave Republicans good reason to believe that her reporting on Kavanaugh was driven by her political agenda. By Monday evening, Drudge’s headline “ANOTHER WOMAN?” had given way to “RONAN MISFIRES?”23

  But the major media were less skeptical, flooding the airwaves and internet with stories of the drunken sexual predator about to become an arbiter of women’s rights on the Supreme Court. Although the New York Times poked holes in Ramirez’s account, two days later it published a lengthy report about an obscure anti-Trump Mormon women’s group that was joining the Democrats’ call for an investigation.24

  As if the Washington Post’s initial effort on behalf of Ford weren’t enough, it ran a 2,500-word hagiographical profile of her25 while publishing stories such as “How in the World Is Mark Judge Not Testifying?”26 That week, the Post also published a ten-thousand-word, multi-part investigative essay about a woman traumatized by rape in high school that acknowledged that she had misidentified one of her schoolmate rapists.27 The paper failed to acknowledge that Kavanaugh’s accusers might commit such errors.

  Kavanaugh, as he had done from the beginning, stayed on offense, sending a letter to Senators Grassley and Feinstein that made it clear he would fight back as a matter of principle to clear his name:

  These are smears, pure and simple. And they debase
our public discourse. But they are also a threat to any man or woman who wishes to serve our country. Such grotesque and obvious character assassination—if allowed to succeed—will dissuade competent and good people of all political persuasions from service. As I told the Committee during my hearing, a federal judge must be independent, not swayed by public or political pressure. That is the kind of judge I will always be. I will not be intimidated into withdrawing from this process. The coordinated effort to destroy my good name will not drive me out. The vile threats of violence against my family will not drive me out. The last-minute character assassination will not succeed.

  Kavanaugh’s defiant statement called to mind what Clarence Thomas said to Senator Orrin Hatch at his confirmation hearing: “I’d rather die than withdraw from the process. Not for the purpose of serving on the Supreme Court, but for the purpose of not being driven out of this process. I will not be scared. I don’t like bullies. I’ve never run from bullies. I never cry uncle, and I’m not going to cry uncle today, whether I want to be on the Supreme Court or not.”28

  Kavanaugh wasn’t going to cry “uncle” either, but would he make it to the Thursday hearings? The media, which had sided overwhelmingly with his accusers, were defaming him around the clock. Something had to be done, the confirmation team thought. He needed to be presented to the public as more than a judicial star with a twenty-four-karat résumé. For the first time in history, a Supreme Court nominee would sit for an interview on television, and his wife would join him.

  Supreme Court nominees used to stay silent and stay away during their confirmation process. Not only did they not testify before the Senate, they rarely spoke to the press.

  Even during Louis Brandeis’s contentious hearings, which attracted considerable attention from the press, much of it motivated by antisemitism, he said nothing on the record. When the New York Sun pestered him, the nominee said, “I have nothing to say about anything, and that goes for all time and to all newspapers, including both the Sun and the moon.”29 When Robert Bork Jr., a journalist at the time, went on television to defend his father during his confirmation fight, the elder Bork insisted that he stop: “It’s undignified, I don’t want you doing this, I don’t want my family doing this.” Official surrogates were one thing, but the nominee himself, and even his family, must remain aloof.