A television interview with the nominee would be such a break with tradition that the White House wanted to clear it with the Senate. McConnell said to go ahead.
Several interviewers were considered, the leading contenders being Jan Crawford at CBS and Martha MacCallum at Fox News (a cable channel for which one of this book’s authors is a contributor). They wanted someone who would conduct a serious interview but who would be fair and let Kavanaugh speak—neither a series of softball questions nor a game of “gotcha.”
MacCallum won out, in part because, as much as the team respected Crawford’s integrity, some worried that CBS’s editors would slice and dice the interview to make Kavanaugh look bad. Also, the Fox News audience included conservatives whose support needed to be shored up. The interview would be broadcast in the seven p.m. hour, but clips would air throughout the day, and it would be discussed throughout Fox’s prime-time lineup. As soon as the interview was announced, the major media tried to write it off as a joke. The caustic reaction of Margaret Sullivan, a media columnist for the Washington Post, was typical: “Female interviewer, check. Fox News, check. Bill Shine approved, check. When an ‘exclusive interview’ promises to be a challenge-free infomercial.”30 Dismissing Ashley’s presence, she wrote, “Wife at your side, check,”31 and “Unquestioning adoration would probably be the right look.”32
In fact, MacCallum asked tough and probing questions—eliciting, for instance, the revelation that Kavanaugh “did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter”—and she won praise for her interview.
Kavanaugh’s own performance was hotly debated. He did not seem comfortable, and his answers came off as over-rehearsed. Shortly before the interview, a few members of the White House team met with him at the house where he was staying. At the moot the previous week, he had seemed natural and righteously indignant, but now, they noticed, he seemed cautious and over-prepared. “The Bushies had gotten to him,” said one of the White House advisers.
When the White House team stopped holding moots with Kavanaugh, a kitchen cabinet of sorts—including friends who ran communications efforts for President Bush—took its place, providing advice and guidance as he prepared for the next round of hearings. The White House team found Kavanaugh’s forceful denials convincing, but many in this group favored a softer, more sympathetic—even hand-wringing—approach, one that emphasized his relationships with women and affirmed that accusers have to be taken seriously. Kavanaugh himself was memorizing lines that were perfectly reasonable sentiments but would come across as verbal tics during the interview. More than ten times he returned to some variation of the phrase, “I’m just asking for a fair process where I can be heard and defend my integrity.”33 The scripting from advisors extended to encouraging Ashley to wear a necklace with a cross, a suggestion she bristled at and declined.
The White House team realized what was happening and tried to encourage more of what they had seen the previous week, but the interview was looming. It was filmed in a Washington hotel, which was supposed to provide a warm, personal atmosphere without invading the privacy of the Kavanaughs’ own living room. But the room was a disappointment. It was so unattractive, in fact, that someone ran to buy plants so the setting wouldn’t be completely lifeless. The interview was awkward for the typically private Kavanaughs, forced to discuss intimate issues on national television in a room full of cameramen and producers.
Whatever its shortcomings, the interview served its purpose, even if key senators found Kavanaugh a bit robotic. It put him back in the news on his own terms, reminded the media that the man they were accusing of rape was a human being instead of a caricature, and taught him how to respond more effectively. The kinder, gentler Kavanaugh could take him only so far. McGahn would remind him that while he may have worked for Bush, he was a Trump nominee. And Trump fights. For his part, Trump tweeted out his support of Kavanaugh before, during, and after the interview.
Kavanaugh was vexed by the image of him as a crazy drunk. In his mind, he had been a top athlete and a top student who liked to drink on the weekend. He also resented his friends’ being dragged into the controversy. People who wanted to score points on Kavanaugh were painting a caricature of privileged and out-of-control prep school boys with no regard for the collateral damage to innocent people.
It was painful for him to see Georgetown Prep’s reputation unfairly tarnished by ideological zealots in the media, who demanded to know everything from the school’s current enrollment to the details of its sex education curriculum. The Jesuit school took the religious and moral instruction of its students extremely seriously, knowing that adolescent boys would occasionally disappoint, sometimes grievously. And such problems as Georgetown Prep had with sex, drinking, and other teenage failings were hardly unique.
Throughout the ordeal, school officials remained tight-lipped, but their terse and carefully worded statements seemed only to inflame the media’s passion for dirt-digging. New York Times reporters were showing up at football games and peppering alumni with questions. Eventually, the school’s director of marketing and communications, Patrick Coyle, denounced the smear campaign in a letter to the Washington Post’s metro reporter, Joe Heim: “The Washington Post’s coverage of Georgetown Prep in recent weeks has been marred by shoddy reporting and slanted, agenda-driven framing within those stories. Numerous articles were composed and published, for example, without the Post ever offering us the opportunity for reaction or comment.”
Coyle wasn’t exaggerating. A few days later, the paper ran a gossipy report about Georgetown Prep’s search for a new director of alumni relations, playing up the Kavanaugh controversy and asserting that the “listing went up after Georgetown alumni were very much in the news.” Coyle had previously informed the newspaper that the job had been posted since July, long before the Kavanaugh controversy. In response to a correction from Coyle, the Post altered the article as subtly as possible without acknowledging the error.34
Kavanaugh saw that more was at stake than his own career. For the sake of the people at Georgetown Prep and everyone else in his community, he wanted to fight the charges against him.
While the nominee waited to have his say before the Senate and the nation, the president traveled to New York for the annual session of the United Nations General Assembly, where he expressed his opinion of the allegations with characteristic bluntness: “She thinks maybe it could have been him, maybe not. Admits she was drunk. She admits time lapses. This is a person, and this is a series of statements that is going to take one of the most talented intellects from a judicial standpoint in our country, keep him off the U.S. Supreme Court?” He added, “I think it’s horrible what the Democrats have done. It is a con game; they really are con artists.”35
The media were fixated on Kavanaugh’s revelation about his sex life. While it helped explain why he was so confident in his denials of the claims against him, it also exposed him to brutal attacks and ridicule. The news that he was a virgin for “many years” after high school “makes sense since the alleged behavior was disgusted, juvenile, emotionally stunted,” wrote the Washington Post’s Jennifer Rubin.36
Jimmy Kimmel relentlessly mocked him, playing the clip about his high school and college virginity to audience jeers. After rehearsing all the unsubstantiated allegations against him, Kimmel said, “I think there’s a compromise here; hear me out on this. So, Kavanaugh gets confirmed to the Supreme Court, okay. Well, in return we get to cut that pesky penis of his off in front of everyone.”37
The Washington Post declared, “The virginity defense is a reminder of our ignorance about sexual violence.”38 “Kavanaugh’s ‘choir boy’ image on Fox interview rankles former Yale classmates,” read the headline of yet another Post piece.39 The New Republic argued that by his defiance in the face of the allegations against him, Kavanaugh had “already disqualified himself” and could no longer be a judge.40
The media had no
t forgotten Michael Avenatti, doing their best to keep his still unspecified charges before the public eye. His client had been fully vetted, he said, and he had spoken to multiple witnesses.41 In a lengthy interview on CNN, Avenatti said Kavanaugh was “lying” about being a virgin.42 Politico called him an “avenging angel,”43 while USA Today reported his assertion that the as yet unrevealed accuser was “100 percent credible.”44 Not everyone was impressed by Avenatti, however. Grassley’s staffer Mike Davis thought the absurdity of his charges emphasized the injustice of what Kavanaugh was having to endure. He called Avenatti “manna from heaven.”
Conservatives also began explaining the seriousness of the battle to senators. They had a simple choice, wrote Sean Davis of The Federalist: stand up to the smear campaign or lose their majority in the Senate. “The mood among GOP voters right now is unmistakable: they are out for blood,” he wrote. “If Kavanaugh is confirmed, they’ll eagerly turn out in November to defeat Democrats and their lies. But if Kavanaugh is jettisoned, they’ll gleefully sit back and let the GOP get destroyed in November,” he wrote.45 As one of Grassley’s aides put it, Kavanaugh had become “too big to fail.”
The media were lined up against Kavanaugh; left-wing activists, having drawn blood, were newly energized; and Republican senators were wobbling—Kavanaugh needed help. Some of that came from outside organizations.
On the day Justice Kennedy announced his retirement, Penny Nance, the president of Concerned Women for America (CWA), announced, “We plan to devote considerable resources to this effort, and we expect to win. Our happy warrior/activist ladies relish the fight and shine in these historic moments.”46
Since the nomination of Robert Bork, CWA, with its half-million members, thirty-five state directors, four hundred chapters, and forty-two college chapters, had made the confirmation of Supreme Court justices a priority in its grassroots political work. The group’s core issues were “sanctity of life, defense of family, education, religious liberty, national sovereignty, sexual exploitation, and support for Israel,” and the Supreme Court played a role in almost all of them.
The conservative CWA was not a rubber stamp for Republican nominees, however, having come out against Harriet Miers. But Trump’s list of potential Supreme Court nominees had enabled the group to vet the names and be prepared to step up immediately when one of them was chosen. CWA’s prompt endorsement was enormously helpful for Kavanaugh’s cause. The American Family Association and other conservative organizations had raised objections. CWA made plans for a “Women for Kavanaugh” bus tour in August in Iowa, Missouri, Indiana, North Dakota, Alabama, Florida, and West Virginia. Trump had carried all these states in 2016 and most of them had competitive Senate races in 2018.
The midterms loomed large for both sides in the Kavanaugh confirmation battle. Republicans held a razor-thin majority in the Senate. Donald Trump’s improbable victory had roiled the political classes. Democrats had picked up two Senate seats in 2016 and another one in a special election the following year. The numbers in 2018 were favorable for the Republicans—of the thirty-five seats in the election, twenty-six were held by Democrats—but this would be Americans’ first chance to register their opposition to Trump at the polls, and surveys showed many Democrats and disenchanted Republicans were eager to do so. The Republican base, by contrast, wasn’t eager to vote in the midterms, particularly for members of Congress, who had accomplished little while in power and weren’t seen as supportive enough of Trump.
CWA had shown up for the first round of hearings and for every business meeting held by the Judiciary Committee. Their women had been praying for senators, as they had done in previous confirmation battles. While the media focused on the often-colorful liberal activists, the polite and modest women of CWA sat quietly in the hearing rooms or gathered in small groups to pray in Senate buildings. The Kavanaugh team, afraid of unduly politicizing the confirmation process, had discouraged CWA from busing in women from out of town for the initial hearings, and it was too late to make such plans for the second set of hearings.
CWA was not surprised when the allegation against Kavanaugh came out. The day of Kennedy’s retirement, Nance had told colleagues in a staff meeting as well as contacts at the White House that the nominee, whoever he was, would face an allegation of sexual assault, probably from his distant past, such as high school. Nance didn’t take sexual assault lightly. She had spoken publicly about the sexual assault and attempted rape she endured when pregnant with her daughter. But she knew that the political incentives were aligned to weaponize #MeToo allegations. One of the reasons she preferred Amy Coney Barrett for the nomination was that it would be more difficult to make a #MeToo accusation against her.
The women of CWA analyzed the allegation and Kavanaugh’s response and concluded that there was no reason to drop their support of the nominee. It was a risky move for a women’s group, and they worried about their credibility if they were found to have made the wrong decision. They meditated on the biblical story of Jeremiah, who was falsely accused of treason yet trusted in God. When they decided to stick with Kavanaugh, they found that their members rushed to support him. And they added new prayer intentions: the protesters who were testifying to their own pain and brokenness and the women around the world who are victims of abuse and sex trafficking.
Like CWA, Tea Party Patriots (TPP) had been working to change the Senate, with judicial appointments in mind, well before the current vacancy. Though they were not shy about promoting outsiders and rebels in the primaries, they often endorsed and assisted Republicans they had opposed in the primaries because of the overriding importance of judges. They may not have agreed with those candidates on every issue, but they knew that a Democratic senator was a guaranteed vote for Obama’s judges or, later, against Trump’s.
That decision originated among the membership, not the leaders. As much as they hated “establishment” politicians, these Tea Partiers demonstrated more sophistication than they ordinarily get credit for. They appreciate the importance of the courts because they know their other goals all depend on having judges committed to the rule of law.
TPP had been active during Neil Gorsuch’s confirmation process, engaging in its signature brand of person-to-person outreach to build support. They hosted hundreds of house parties, to which activists could invite their friends to learn about Gorsuch and then take some form of action—from writing or calling their senators and writing letters to the editor to collecting signatures on petitions and hand-delivering them to a local senator’s office. For Kavanaugh’s nomination there wasn’t time to organize house parties, but they distributed “how-to” guides to their members, tapping into people’s excitement about having specific tasks they could carry out.
When the allegations against Kavanaugh broke, TPP evaluated the evidence and the statements on both sides before proceeding. They had painful experience of unfounded allegations’ being deployed as political weapons, as when TPP was blamed for a mass shooting perpetrated by someone completely unaffiliated with the group. “I know how it feels to be accused of something that I did not do and could imagine what Brett Kavanaugh would be thinking and feeling,” remarked Jenny Beth Martin, the group’s co-founder. Beyond the “he said–she said,” all the evidence supported Kavanaugh, and that was enough for their decision.
Susan B. Anthony List (SBA), an organization that supports pro-life politicians, was another group that took a pause after the allegations broke. Senate races were important to them because of the decisive role of judges in abortion policy. They had also switched from opposing Trump to enthusiastically supporting him when he signed—and even added to—their pro-life pledge. That support meant engaging with nearly 1.5 million people in the 2016 campaign, a number that went up to 2.7 million for the 2018 campaign. After evaluating the evidence, SBA resumed its efforts on behalf of Kavanaugh in states with Senate seats in play, sending more than one thousand people to knock on doors by mid-September. The middle-aged women who account f
or most of SBA’s local directors were outraged at the presumption of Kavanaugh’s guilt, and they saw that in key states such as Missouri there was actually an increase in support for Kavanaugh following the allegations.
The Koch network, particularly its flagship organization Americans for Prosperity, saw that its activists were fired up by the unfair attacks on Kavanaugh. Volunteers put their families and work on hold to man the call centers late into night. Americans for Prosperity had not seen such engagement since the groundswell of opposition to Obamacare.
Media coverage continued to be brutal. The New York Times, scrutinizing inside jokes in Kavanaugh’s 1983 Georgetown Prep yearbook, declared, “Kavanaugh’s Yearbook Page Is ‘Horrible, Hurtful’ to a Woman It Named.”47 To interpret Kavanaugh’s cryptic description of himself as a “Renate alumnius” (sic), the Times relied on his classmates Richard S. Madaleno Jr., a Maryland state senator and unsuccessful candidate for governor, whose campaign ads featured him kissing his male spouse and telling voters that he would “deliver progressive results and stand up to Donald Trump,” and William Fishburne, a political associate of Madaleno’s.48 The article strongly suggested that “Renate alumnius” was a boastful—and highly disrespectful—claim to have had sex with a girl who was in Kavanaugh’s circle of friends.
The classmates implicated by the New York Times strenuously insisted that the reference was not sexual and that none of them had had sexual relations with Renate. They said that they attended each other’s dances and prep school functions and had maintained the friendship through the ensuing decades. The men the Times relied on to decode the yearbook references, they said, would have had no idea what they meant.
Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court Page 19