Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
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The media also succeeded in tracking down Mark Judge, who was lying low on the Eastern Shore of Maryland. He had long been open about the serious alcohol problems of his youth, even writing a book about his experiences.49 Later, after a political conversion, he had become a conservative writer.50 The media were eager to publicize rumors of his wild youth. They showed much less interest in examining Ford’s background.51
While the media’s excavation of early-eighties Georgetown Prep could not have been more thorough, the culture of Holton-Arms, the toney girls’ school Ford attended (motto: “I will find a way or make one”), was scrupulously unexplored. Yearbooks from Ford’s era were filled with discussions of “Beer and Boys” and how they made parties better. Descriptions of drinking games such as quarters and beer pong, photos of teenagers drinking beer, and jokes about skirting drinking laws were a feature of every volume.
A two-page spread in the 1982 yearbook under the headline “Celebrate Good Times” was devoted to partying and drinking: “The party experience is definitely not to be missed. Few have experienced the joy of waking up to find their house creatively redecorated with bottles, cans, and kids. The bottles and cans even manage to find their way to the front yard and street. Your neighbors will love the additions as more and more are discovered by the spring thaw . . . then comes the infamous BEACH WEEK, where the supreme challenge is how much partying you can fit into 7 days. Who is going to win this year?”
The pages that follow contain references to “Playboy Bunnies” and things that are “X-rated” as well as pictures of beer and rum. The same volume boasts a cavalcade of off-color jokes about “furburgers vs. Cheeseballs,” “6 Caucasian females, one Caucasian male,” and “Halloween-whores,” as well as a lewd riff on the “tube snake boogie.”
The following year’s edition contained this description of a party: “As you descend into a family’s treasured basement, the muffle of parents locked in a closet can be heard from upstairs. A few shoves and one big push, and you find yourself in the center of things: things such as elbows, cigarettes, beers and noise. Unsticking your feet from marshy floor, you make your way towards the keg where one or two senior boys huff and puff but the tap only trickles.”
Among the memories enshrined in the 1983 yearbook (when Ford was a junior) are hanging out at a sex shop called the Pleasure Chest and drinking daiquiris. One student was said to have enjoyed “Peppermint Schnapps night at E.J.’s” when a group of juniors drove into D.C. Reflecting on a year of youthful high spirits, Ford’s classmates recorded for posterity: “Lastly, one cannot fail to mention the climax of the junior social scene, the party. Striving to extend our educational experience beyond the confines of the classroom, we played such intellectually stimulating games as Quarters, Mexican Dice, and everyone’s favorite, Pass-Out, which usually resulted from the aforementioned two.”
This depiction of Holton-Arms as Studio 54 on the Potomac may be nothing more than adolescent posturing, and only the alumnae can judge how accurately it reflects their social life in the early 1980s. But it is clear that a lack of vigilance by the yearbook’s faculty adviser and bacchanalian extracurricular activities were by no means unique to Georgetown Prep.
The media frenzy produced an almost violently partisan atmosphere. An anti-Kavanaugh mob chased Senator Ted Cruz and his wife out of Fiola, a D.C. restaurant. Claiming responsibility, a group called Smash Racism DC warned: “This is a message to Ted Cruz, Bret Kavanaugh, Donald Trump, and the rest of the racist, sexist, transphobic, and homophobic right-wing scum. You are not safe. We will find you. We will expose you. We will take from you the peace you have taken from so many others.”52
To spare the Kavanaughs that kind of abuse, friends brought them casseroles and other food. They couldn’t be in public without attracting protesters, or worse. One day, finding herself with more cupcakes from generous friends than her family could eat, Ashley took some to the marshals who were protecting the house. The marshals couldn’t eat them all, so she offered the extras to the press who were camped outside the house. News quickly spread on social media that she had handed out cupcakes from the posh bakery Sprinkles, a rare moment of friendly coverage. Ashley hadn’t put much thought into it, but she knew from her many years with President Bush that the cameramen and photographers don’t usually have a political ax to grind; they are just nice people doing their jobs. No one expected the two dozen flower arrangements that arrived from complete strangers expressing concern for the family or the mountains of supportive letters that Ashley would reread when she needed encouragement.
As the scrutiny escalated, the Kavanaughs looked forward to their chance to tell their side of the story. But it was not clear that Ford even planned to show up at the hearing on Thursday. Even Senator Feinstein said she had “no way of knowing” if Ford would appear, reluctant as she was to be questioned by the Republicans’ outside counsel.53
The Republicans said they were willing to keep the Senate in session all weekend to confirm Kavanaugh as quickly as possible, and the Judiciary Committee announced that it would vote on Kavanaugh’s nomination at 9:30 on Friday morning, just over a week after the vote was originally to have been taken.54 Republicans hoped that the aggressive schedule could put Kavanaugh on the Court in time for the first oral arguments of the 2018 term the following Monday.
Democrats and their media allies continued to call for an FBI investigation. Republicans got a public relations break when researchers found footage of then–Judiciary Committee chairman Joe Biden downplaying the significance of FBI investigations during the Thomas-Hill hearings. Anita Hill’s allegations, unlike Ford’s, had been duly submitted to the White House before being shopped to the media, allowing the FBI to investigate before sources were influenced by news reports. The FBI had conducted several interviews and within three days given its results to the White House, which shared them with the Senate. Both the White House and the Senate had concluded from the FBI’s report that the allegations were not worth pursuing, but then they were leaked to the media.
When Republicans cited the FBI report as a reason not to delay Thomas’s confirmation, Biden fired back, “The next person that refers to an FBI report as being worth anything, obviously doesn’t understand anything. FBI explicitly does not, in this or any other case, reach a conclusion. Period. Period. . . . So when people wave an FBI report before you, understand they do not, they do not, they do not reach conclusions.”55
He was correct, of course. As both Senator Grassley and the Department of Justice had already pointed out, the task of the FBI background checkers was not to identify crimes or other wrongdoing but to collect statements from acquaintances, colleagues, neighbors—anyone who might know something about the allegation.56 It was for the White House and the Senate to weigh the testimony collected by the FBI and decide what to do with it. And a Senate investigation carried the same assurances of confidentiality and criminal penalties for lying as an FBI investigation did.
But the powerful rhetorical value of appealing to the FBI was not lost on the Democrats, so as annoyed as they were for Joe Biden to be deployed again as the Republicans’ spokesman on judicial issues, they kept the FBI drumbeat going.
On Wednesday morning, September 26, the day before Ford and Kavanaugh were to appear before the Senate Judiciary Committee, Michael Avenatti released what he said was a sworn affidavit from his client Julie Swetnick.57 After stating her current and former security clearances, she detailed allegations against Kavanaugh and Mark Judge that were far worse than anything that had been alleged before.
She said she attended “well over 10” house parties in the early 1980s at which Kavanaugh and the ubiquitous Judge drank heavily and sexually assaulted women. Echoing Kavanaugh’s college roommate, she said she personally witnessed him behave as a “mean drunk” and sexually demean women. She said she also saw him behave this way in Ocean City, Maryland. Kavanaugh’s claims of sexual innocence in high school were “absolutely false and a lie.”
It kept getting worse: “I also witnessed efforts by Mark Judge, Brett Kavanaugh, and others to cause girls to become inebriated and disoriented so they could be “gang raped” in a side room or bedroom by a ‘train’ of numerous boys. I have a firm recollection of seeing boys lined up outside rooms at many of these parties waiting for their ‘turn’ with a girl inside the room. These boys included Mark Judge and Brett Kavanaugh.” Swetnick said she was a victim of one of these rapes in 1982 and had told at least two other people at the time it happened. Witnesses, she attested, would support each of her allegations.58
Ashley heard the news while she was getting her hair done. Her hairdresser had suggested, after seeing her Fox television interview, that she needed an update, and he and his partner immediately went into overdrive to finish her appointment when they sensed that she needed to get back home and out of the public eye.
Ashley and her friends continued to share scripture with each other. Two verses from the readings at Mass the day before the hearing seemed particularly apposite: “Put falsehood and lying far from me” (Proverbs 30:8) and “Falsehood I hate and abhor” (Psalm 119:163). While Ashley and her friends drew comfort from the music of the Christian artists Lauren Daigle and Julianna Zobrist, her husband found his mind returning to a song frequently sung in chapel at Georgetown Prep: “Be Not Afraid.” He and his friends used to make fun of the way their beloved music teacher Gary Daum sang the hymn. But the joke was on them, as the frequent repetition had the intended effect—Kavanaugh remembered the words and took them to heart. And when he needed them, those three words came back to him: “Be not afraid, be not afraid.”
Swetnick’s accusations were obviously ridiculous. No one could have hidden such crimes for decades, much less a man who went on to hold high-profile positions in the White House and then became a judge on the second-most prominent federal court. Her presence at any parties with Kavanaugh was implausible, because she attended the relatively distant Gaithersburg High School and then Montgomery County Community College, neither of which was represented among Kavanaugh’s circle of friends.
Swetnick, who graduated from high school in 1980, would have been a legal adult throughout Kavanaugh’s alleged career as a gang rapist. Her story, if true, was an admission that as an adult she had attended ten or more parties hosted by minors where other minors were raped yet did nothing to stop these child rapes and did not alert the authorities.
The accusations, though incredible, were horrifying, and Democrats seized on them. “In light of shocking new allegations detailed by Julie Swetnick in a sworn affidavit, we write to request that the committee vote on Brett Kavanaugh be immediately canceled and that you support the re-opening of the FBI investigation,” the Judiciary Committee’s Democrats wrote to Grassley.59
Journalists, more interested in publicizing the accusations than in probing their obvious holes, showed no restraint either. Just as Ramirez’s allegations shared details with Ford’s, Swetnick’s shared details with both of them. The inclusion of Mark Judge fit the pattern that Kavanaugh critics were looking for.
The charges were not only implausible but conveniently vague. Swetnick did not name any of the persons whom Kavanaugh supposedly abused, making the allegations impossible to disprove. Many of the alleged misdeeds she said she had heard about but had not witnessed. She mentioned that she had attended “Beach Week,” as if she were part of the same social group as Kavanaugh, but she did not bring it up until after the publication of Kavanaugh’s high school–era calendars, in which “BEACH WEEK” is written across one of the weeks. The media, nevertheless, dutifully reported the news with all the gravity they could muster: yet another woman had accused Kavanaugh of sexually abusive behavior. That was enough for Chuck Schumer, who called for Kavanaugh to withdraw on account of “another serious allegation of sexual misconduct.”60
The Washington Post liked this new accuser’s credentials: “Julie Swetnick, who Wednesday became the third woman to accuse Supreme Court nominee Brett M. Kavanaugh of sexual misconduct, is an experienced web developer in the Washington area who has held multiple security clearances for her work on government-related networks.”61 This was no psychologically fragile academic who was afraid to fly. This was a woman with “multiple security clearances.”
MSNBC promptly interviewed Avenatti, and CNN’s John King introduced the story by touting Swetnick’s security clearances, failing to mention that Kavanaugh himself had been repeatedly cleared at the highest levels. King talked to a sex crimes prosecutor named Julie Grohovsky, who said the allegations reflected on Kavanaugh’s ethical behavior and credibility. They needed to be fully investigated, she said.
Citing anonymous sources, CNN reported that Senator Susan Collins “appeared unnerved” by the Swetnick allegations.62 In fact, Collins had not found the accusations of serial underage gang rape particularly plausible.
Kavanaugh himself soon issued a terse statement: “This is ridiculous and from the Twilight Zone. I don’t know who this is and this never happened.”63
CNN’s Wolf Blitzer interviewed Kavanaugh’s attorney Beth Wilkinson and treated the Swetnick charges as a game-changer. He played a video clip of Kellyanne Conway from days earlier saying that there was no pattern of behavior that matched Ford’s allegation. Acknowledging that Conway had a “significant point,” Blitzer added, “But since then Deborah Ramirez has come forward and Julie Swetnick has come forward, and her allegations are very, very brutal in this sworn affidavit.” New York magazine’s Jonathan Chait warned, “As the number of accusations rises . . . the odds that a charge will be one of the rare hoaxes diminishes,” and he confidently concluded that Kavanaugh was finished.64
Democrats and the media had gone all-in on Swetnick before vetting her wild accusations, but by Wednesday evening it began to appear that they had made a serious mistake. She had unpaid debts and had been fired for lying on an employment application and for inappropriate sexual conduct toward coworkers. A frequent litigant, Swetnick had made false claims in a personal injury lawsuit against the Washington Metro system, claiming more than $420,000 in lost earnings and naming as her employer a friend for whom she had never worked.
Her ex-boyfriend Richard Vinneccy said that Swetnick threatened him after they broke up—even after he was engaged to someone else and had a baby. She had “harassed and stalked” him, threatening to kill him, his girlfriend, and their unborn child. She threatened to file a rape charge against Vinneccy and to have him, a U.S. citizen, deported. She made other bizarre and false statements, telling him that she wouldn’t grant him a divorce (they had never been married) and that she was pregnant with twins. He had filed for a restraining order against her but never completed the process for fear of having to see her in person and disclose his whereabouts to her. “I know a lot about her. . . . She’s not credible at all,” he told Politico. “Not at all.”65 In a statement to the Judiciary Committee he speculated that “[h]er motives may be for financial gain or notoriety but they are certainly not to expose the truth.”66
It became even clearer that Swetnick was unreliable, to put it mildly, when Dennis Ketterer, a former meteorologist in the Washington area, disclosed that he had had an extramarital affair with her in 1993. Their relationship had become physical but never led to intercourse, in part because she told him that she enjoyed group sex. When she said that she “first tried sex with multiple guys while in high school and still liked it from time to time,” Ketterer broke the relationship off, worried about contracting a sexually transmitted disease.
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sp; Years later Ketterer tried to get back in touch with Swetnick when he was running for Congress as a Democrat, but her father steered him away, warning that she had “psychological and other problems at the time.” Ketterer had gone public with his story after consultation with a church leader, deciding to reveal the affair to prevent Swetnick from misleading others. Taking “eternal considerations” into account and saying that “[m]y heart still feels heavy,” he concluded that “based on my direct experience with Julie, I do not believe her allegations against Kavanaugh.”
Now his high school friends moved quickly to defend Kavanaugh. Forty of them sent a letter to the Senate Judiciary Committee saying they had never met or heard of a Julie Swetnick, nor had they witnessed any activity that matched her description.
Swetnick’s allegations did far more damage to Michael Avenatti’s reputation (and to his short-lived presidential aspirations) than to Kavanaugh’s. The impression of a pattern of sexual aggression in Kavanaugh’s life was undone by a pattern of increasingly implausible false accusations. Ford could not back up her allegation, but at least it sounded plausible. Each subsequent allegation against Kavanaugh sounded more desperate and ridiculous.
Kavanaugh’s supporters warned that the country must not tolerate the political tactic of destroying people’s lives and reputations with unsubstantiated allegations and outlandish claims. Swetnick’s accusation, which people like Jonathan Chait took at face value but which proved to be absurd, reminded Americans why it is important to treat the accused as innocent until they are proved guilty. Ramirez, Swetnick, and Avenatti changed the course of the nomination. Kavanaugh was no longer on his heels.