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

by Mollie Hemingway

  Grassley’s experience investigating whistle-blower claims made him well-suited to pilot Kavanaugh’s nomination through his committee. The nominations unit handled it first. When the initial allegations were made public, the powerful oversight and investigations unit joined the work. Forty attorneys and law clerks were now deposing witnesses and investigating alleged crimes.

  Federal law enforcement officials with years of experience conducting government investigations had been detailed to the committee, where they worked with the committee’s attorneys and investigators to interview witnesses. A court reporter transcribed interviews. Witnesses were also warned that making false statements to Congress is a crime, carrying the same penalties as perjury and lying to the FBI—five years in federal prison.

  Working with whistle-blowers requires a high degree of concern for confidentiality, but the committee’s investigators had to warn those they talked to that confidentiality could not be assured. Some members of the committee might not have the same policy on confidentiality, as Senator Booker’s “Spartacus” outburst made clear.

  The committee staff interviewed people who knew Kavanaugh and people who knew his accusers, weighing their credibility. All told, they spoke to forty-five persons and collected twenty-five witness statements. Many of those providing testimony in support of Kavanaugh “asked that their names be redacted out of fear that their statements might result in personal or professional retribution or personal physical harm—or even risk the safety and well-being of their families and friends,” according to a Judiciary Committee report on the Kavanaugh confirmation.67

  As difficult as Ford’s attorneys had been to work with, Ramirez’s attorneys were even less responsive, rejecting seven attempts by the committee to obtain evidence or statements regarding the allegation. Despite his own lack of cooperation with the committee, Ramirez’s attorney John Clune complained to CNN’s Anderson Cooper that Senate Republicans were “game-playing” with his client’s testimony.68

  In a previous confirmation process, a statement like Clune’s might have stood unchallenged. But Mike Davis, Grassley’s chief counsel for nominations, had been unusually open with the media about his correspondence with the accusers’ counsel, so Clune’s own game-playing was also on display.

  Within minutes of the publication of Ramirez’s story in the New Yorker, Davis had asked her attorneys for any and all evidence she had to support her allegations. Over the next forty-eight hours, he repeated the committee’s requests for testimony and evidence six times. He also asked Ramirez to speak to investigators or provide a written statement, but she refused to do so.

  Even though the attorneys refused to provide evidence, Grassley’s staff still investigated. They interviewed seven witnesses, including James Roche, Ramirez’s friend and Kavanaugh’s freshman roommate at Yale, and other friends and classmates of Ramirez. They also interviewed Kavanaugh in a phone call, during which he denied that the alleged incident ever took place. In later testimony it was revealed that Roche’s relations with Kavanaugh and their third roommate were strained, and sources have suggested that Roche’s drug use was an irritant.

  A similar process unfolded with the Swetnick allegations. The committee contacted Avenatti ten minutes after he publicized Swetnick’s declaration. He responded via Twitter with a list of questions for Kavanaugh. While he claimed to have evidence to back up his client’s accusations, he refused to provide any to the committee despite repeated requests. He submitted a sworn declaration by Swetnick a few days later and posted a declaration from a purported witness whom he refused to identify. He refused an interview with the committee.

  Avenatti’s refusal to cooperate with the Senate backfired. On September 24—the day after he released Swetnick’s sworn affidavit—the Daily Beast ran an article headlined “Democrats to Michael Avenatti: You’re Not Helping in the Kavanaugh Fight,” which observed, “Democratic senators appeared to be low on patience with [Avenatti’s] tactic of dribbling out information before a dramatic big reveal.” Senator Coons, the article reported, urged Avenatti not to delay providing the information and witnesses he asserted would validate Swetnick’s affidavit.

  Still, as John McCormack reported later, “Much of the media let Avenatti run wild, and every Democrat on the Senate Judiciary Committee signed a letter urging Kavanaugh to withdraw following the release of Swetnick’s allegations.”69

  In two interviews with committee staffers, Kavanaugh denied knowing Swetnick, whose credibility was dealt a further blow when it was reported that she had been sued for defamation, had lied about her educational background, and had engaged in “unwelcome, sexually offensive conduct” at work.

  The allegations against Kavanaugh were getting stranger and stranger. Senator Sheldon Whitehouse of Rhode Island hand-delivered to the committee staff notes from a phone message from a constituent stating that two men named “Brett and Mark” sexually assaulted a woman on a boat in Newport in 1985; based on a yearbook photo, the caller thought one of the men was Kavanaugh. Whitehouse refused to provide the committee investigators with any contact information for the caller, but did refer the man to a reporter.70 NBC News and other outlets reported the allegation, leading many reporters to tweet about a “4th Kavanaugh accuser.”71 Kavanaugh strenuously denied the accusation, stating that he had never even been on a boat in or around Newport, Rhode Island, let alone assaulted anyone on one.

  Eventually, the committee was able to track down the caller, identified as Jeffrey Catalan. He had a Twitter account where he had also called for a military coup against Trump. He implored the Pentagon to get rid of the “parasite” Trump and accused the president of “manslaughter.” He later recanted his accusations against Kavanaugh on Twitter: “[T]o everyone who is going crazy about what I had said I have recanted because I have made a mistake and apologize for such mistake.”72 A few days later, the committee referred him to the Justice Department for perhaps making false statements to Congress and obstructing a congressional investigation—a warning to Democrats about recklessly slinging allegations to destroy Kavanaugh’s reputation.

  An anonymous report submitted to Senator Cory Gardner of Colorado charged that Kavanaugh had pushed a woman he was dating against a wall “very aggressively and sexually.” The anonymous woman said that her daughter was a friend of the victim. The committee determined that Kavanaugh was dating Dabney Friedrich at the time of the alleged push. Now a U.S. district court judge, Friedrich signed a statement calling the accusations “offensive and absurd” and saying Kavanaugh had always treated her with the “utmost respect.”73

  An anonymous letter sent to Senator Kamala Harris’s San Diego office recounted that Kavanaugh, with the help of a friend, sexually assaulted a woman while driving her home from a party. The same accuser also sent an email to the Judiciary Committee staff. She alleged that he physically assaulted her and forced her to perform sexual acts. Both men raped her repeatedly, she wrote, and Kavanaugh warned her that nobody would believe her. The letter stipulated neither a date nor a location for the alleged attack. Kavanaugh denied the allegations.

  A woman named Judy Munro-Leighton said she was the victim. She turned out to be a liberal activist who lived not in California but in Kentucky. In a phone call, she admitted that her accusation was “just a ploy,” made “because I was angry.” Asked if she’d ever met Kavanaugh, she said, “Oh Lord, no.”74

  As these other allegations came out, some Senate Democrats and their staff worried that the Republicans on the Judiciary Committee were releasing all the allegations they were getting to make Ford’s allegations look frivolous. And indeed, the allegations were being released strategically by Grassley’s aide Davis. While clerking for Justice Gorsuch, he had heard Justice Thomas tell a story from his youth in Georgia. When a dog killed a chicken, they would tie the dead chicken around the dog’s neck and let it rot there. The dog would lose its taste for chicken. Davis wanted Democrats to lose their taste for destroying people’s lives with unsubstan
tiated allegations. He would tie every reckless smear and false allegation around their necks so that they would face at least some of the consequences for what they were doing.

  Still, the committee was being discreet, even with an allegation made against Avenatti himself. For example, according to a public records request, on September 24, the committee’s whistle-blower hotline received an email with the subject line “Michael Avenatti Assaulted Me.” The text of the email asserted that Avenatti had sexually assaulted the sender of the email in 2012 at a private party in Seattle: “I’m nervous about what to do with this, as my family doesn’t know that I am bisexual. I would like it to be known but don’t know if I’m ready for my name and information to be public.” The sender added that “this isn’t a ploy and I would really like some advicement [sic].” The committee forwarded the email to a sergeant in the Seattle police force as “the appropriate local law enforcement agency.” The whistle-blower tip line, the committee noted, “receives a range of claims, ranging from legitimate issues to fabrications to statements from people who seem to be mentally ill.”

  The sergeant in Seattle wrote that she discussed the allegation and next steps with a lieutenant: “We both discussed the lack of information given for the alleged victim. The only information provided was the possible name of the victim, an email address, and an alleged sexual assault with no details of location aside from ‘a private party in Seattle.’ The allegation also stated that the alleged sexual assault was unreported and had occurred in 2012. I discussed . . . that if this crime had occurred, the statute of limitations for this incident would have expired.” She tried to reach the alleged victim by email but received no response and closed the investigation.

  The Senate Republicans had handled the allegation discreetly, sending it to the appropriate law enforcement authority upon receipt, and not contacting public relations teams or attorneys—in notable contrast to the way Senator Feinstein had handled Ford’s allegation. By the eve of the hearing, the conversation among senators and their staff had shifted from the possibility that Kavanaugh had attempted to rape multiple women to Kavanaugh’s having drunk more beer than people realized.

  Because newsrooms were structurally biased against conservatives, they didn’t realize the anger that their one-sided coverage was provoking. William Bennett noted that the “perfect storm of controversy” had turned the Kavanaugh hearing into “the culture war on steroids.”75

  CHAPTER EIGHT

  Fear of Flying

  After all the delaying tactics, Senate staffers still weren’t entirely sure that Ford was going to show up for the hearing on Thursday, September 27. Many assumed that she would be a no-show or that some new allegation would derail the proceedings again.

  Grassley had assured Ford’s attorneys that he would do everything in his power to “provide a safe, comfortable, and dignified forum.” The hearing would be held in the Dirksen building, with its smaller committee room. The large size of the room in Hart had contributed to the “circus atmosphere” of the first set of hearings.

  Grassley’s staff tried to accommodate the requests of Ford’s legal and public relations teams, acquiescing to the request for breaks during her testimony, allowing only one video camera at the hearing, excluding Kavanaugh from the room during her testimony, and providing security. They declined her demands that Kavanaugh testify first, that Mark Judge be subpoenaed, and that only senators ask questions.

  There were no female Republican senators on the Judiciary Committee, and the Republicans worried that the spectacle of Ford facing an all-male bank of GOP senators would be a public relations nightmare. The media would interpret questions that were in any way pointed as further harassment of a victim of a brutal sexual assault.

  The Republicans on the committee therefore pushed to hire a female attorney with expertise in such sensitive questioning. They did not need a hearing that scored political points but one that elicited facts to shore up the confidence of Republican senators. It wasn’t that they could not trust the senators to ask appropriate questions so much as that they knew the media would spin whatever happened as badgering of Ford, as they had done in Justice Thomas’s hearing.

  After interviewing candidates on the previous Saturday, before the hearing date was even set, they selected Rachel Mitchell, a respected sex crimes prosecutor from Maricopa County, Arizona. With her long and distinguished background working with victims, even teaching courses in how to interview victims compassionately to get to the truth, she was the perfect choice. She was a government attorney, so she had no law partners who had to approve her appearance. For political reasons, several attorneys had already been forbidden by their firms to participate. And it didn’t hurt that Mitchell was from Senator Flake’s state, since he was known to be uneasy about how to balance concern for Ford and fairness to Kavanaugh. When the committee staff interviewed Mitchell, they told her that a previous interviewee had described herself as a bulldog. She laughed and told them if that was what they wanted, she was not the right person. She had built up a career of dealing with sex crime victims and would be returning to that job. She had to be true to herself.

  Despite their previous outrage that male senators might ask Ford questions, Democrats and the media were outraged by the plan. “Handing off the questioning of Dr. Blasey to female staff members would be a gross departure from Senate practice and based on the risible idea that the questioning of sexual assault survivors is ‘women’s work,’ ” declared Lara Bazelon in a New York Times op-ed titled “A Sexist, Cowardly Ploy.”1 In fact, the Senate had hired outside counsel for important hearings on a number of occasions, including for the Watergate and Whitewater investigations.2

  Before the hearing began at ten o’clock, a half-dozen photographers sat in the well between the senators and the witness table. At an ordinary hearing, dozens of photographers might crowd into the well, approaching the witness table and moving around for better angles. Today the small group had been instructed to keep their backs against the dais, as far away as possible from Ford.

  PR for Ford was handled by Kendra Barkoff Lamy, who had been Joe Biden’s spokesman when he was vice president. She had moved on to the Democratic powerhouse public relations firm SKDKnickerbocker—the same firm used by the Sixteen Thirty Fund. The dark-money group had paid SKDK $7 million in 2017.

  Ford’s team tried to stipulate which media outlets could cover the hearings, including Getty, Bloomberg, and the Associated Press. Grassley’s staff had to explain that media passes were handled by the Senate press galleries, the nonpartisan liaisons between the Senate and the press. The most Grassley’s office could do was say how many press positions were allotted. Photographers went in the well, and there were daily, periodical, and radio-television galleries, which had forty-eight seats among them. C-SPAN was the only television outlet, and there were far fewer reporters than the two hundred who had covered the first set of hearings.

  The Judiciary Committee closed the hallway outside the hearing room. For the first set of hearings, there had been three stakeout positions for cameras and microphones. There was no press stakeout for the reopened hearings. In fact, the whole floor was closed when the witnesses were moving through the building. One of the accommodations for Ford was that she and Kavanaugh would never cross paths. When not testifying, Ford would wait in the Democratic offices on the second floor of Dirksen. Kavanaugh would wait in an office around the corner. After the hallway was cleared, she would be brought in, and when she had finished, the hallway would be cleared again so that she could be sent back to the Democrats’ holding room.

  There were only six seats for the public, controlled by Grassley and Feinstein. Since a guest’s disruptive behavior would reflect poorly on the sponsoring senator, protests were unlikely. Republicans had tolerated the protests in the first set of hearings because they made Democrats look unhinged. This hearing would be different.

  Anticipation for Ford’s appearance was high. Despite all the media interes
t in her story, pictures of her had been thoroughly scrubbed from the internet with the exception of one blurry surfing photo in which she was wearing sunglasses. Her story had been developed and carefully edited by friendly reporters. Tens of millions of Americans were watching as she walked in and took her seat, followed by her attorneys Bromwich and Katz. Viewers saw a middle-aged woman in a navy blue blazer gazing out from behind large glasses, her blonde hair freshly blow-dried and styled. She was accompanied by many attorneys, but her immediate and extended family were noticeably absent. Some of her friends sat in the front row.

  The room was more intimate than it appeared on television, giving the audience the sense of observing a private conversation rather than a hearing. Though emotions ran high, everyone was respectful. They shared cell phone chargers, and the actress Alyssa Milano handed out tissues to everyone around her before the hearing started.

  Grassley, who had stopped by Ford’s waiting room moments earlier to assure her he didn’t have horns, opened the hearing with his trademark expression of concern for witnesses, apologizing to both Ford and Kavanaugh for the “vile threats” they and their families had been subjected to during the weeks leading to the hearing.3 He reminded the audience that the last-minute revelation of a serious allegation that had been received months earlier had derailed the process. It was a sticking point for Republicans on the committee, who were appalled at how the allegations had been handled. Grassley noted that the letter had been kept “secret from July 30 . . . until September 13,” preventing the committee from investigating privately, which would have allowed senators to weigh the charges while maintaining the confidentiality that Ford said she desired.

  The moment he learned of Ford’s allegations, Grassley said, he began investigating them, just as he had investigated all the allegations that had come before the committee, noting that the Democrats declined to participate. When Ford’s name became public, the staff interviewed or took statements from all the witnesses she identified, as well as Kavanaugh. They tried repeatedly to interview Ford, offering every accommodation, even proposing to take her testimony in California, but her attorneys declined, insisting on a public hearing.