Ford’s displays of professional expertise alternated with expressions of childlike ignorance. In her opening statement, she professed that she had not known how to reach her senator, so she had called her representative’s office and the Washington Post instead. In response to a question from Senator Whitehouse, she said she didn’t know what “exculpatory” meant. He explained it referred to evidence helpful to the accused.
No matter what Ford said, the media lapped it up. Mimi Rocah, a legal analyst for MSNBC, observed that trial lawyers usually supplement the victim’s testimony with that of experts who can expand on the victim’s statements and explain any gaps in memory. But Ford, she said, was “everything bottled up in one. She’s really good at both [roles].” Rocah hoped that Mark Judge, who had previously said, under penalty of felony, that he had no memory of Kavanaugh’s acting the way Ford described, would “have a moment of conscience where he needs to tell the truth.”20
A former U.S. attorney, Joyce Vance, confident of Kavanaugh’s guilt, agreed. Judge needed to testify under oath—presumably because his previous statement, which was subject to the same penalty as perjury, was somehow less reliable. If he were to testify, she wondered, “Does he go ahead and confirm his friend’s version of events? Or does he finally complete the outreach that Dr. Ford tried to make with him during this event, where she says she locked eyes with him and thought he might help her. You know, will he finally, from across the years, come forth and tell the story and achieve some kind of redemption for what he did?”21
The Republican consultant Schmidt seemed to be in agony, tweeting: “The GOP members are putting on a clinic for political cowardice. Will not one of them, while watching a hectoring and minimally prepared Rachel Mitchell harass Dr. Ford, step up and take back their time and denounce this kangaroo court?”22 The absurdity of this characterization of Mitchell’s questioning was best demonstrated, fittingly enough, by a Saturday Night Live parody two nights later, in which a mild-mannered Mitchell is repeatedly cut off in the middle of a lengthy and methodically worded sentence by the expiration of her five minutes.23 The predominant criticism of Mitchell, especially from the right, was that she was too deferential to Ford and that her questioning was meandering and unfocused.
In the next round of questions, Ford’s lawyers admitted that they had paid for the polygraph. When Ford was asked who helped her work with Senate offices, she seemed confused. She did admit that Feinstein had recommended that she work with Debra Katz’s law firm.
It was no surprise that Feinstein’s office would recommend Katz. She had been considered one of the best litigators of sexual harassment claims for decades. But they also knew that Katz, a longtime Democratic donor and fundraiser, would be on their team politically. She represented the Feminist Majority Foundation—another beneficiary of the Arabella dark-money empire.24 And her feelings about the Trump administration were less than sympathetic: “These people are all miscreants,” she fumed on Facebook in March 2017. “The term ‘basket of deplorables’ is far too generous a description for these people who are now Senior Trump advisors.”25 Katz was the perfect person for the job.
Mitchell asked whether Leland Keyser had ever asked Ford why she had left the party so suddenly. She said she had not. Keyser, of course, had already said that she had no recollection of the party Ford described. Ford now suggested that Keyser’s denial was tied to “significant health challenges,” adding that she was “happy that she’s focusing on herself and getting the health treatment that she needs.” It was true that Keyser had health problems, but the remark was widely interpreted, including by some close to Keyser, as disparaging.26
Mitchell ended her questioning with an expression of admiration at how well-educated Ford was about the neurological effects of trauma, and she wondered if she knew the best way to plumb the memory and get to the truth when interviewing trauma victims. It was not, Mitchell noted, an interview cut up into five-minute increments, but a sustained interview with a trained questioner in a private setting—a technique called a “cognitive interview.” “This is not a cognitive interview. Did anybody ever advise you from Senator Feinstein’s office, or from Representative Eshoo’s office to go get a forensic interview?” Mitchell asked. No one had, said Ford. “Instead, you were advised to get an attorney and take a polygraph, is that right?” Mitchell asked. “And instead of submitting to an interview in California, we’re having a hearing here today in five-minute increments. Is that right?”
Mitchell referred to an article about the use of the cognitive interview, a technique that is considered effective at eliciting accurate statements. It is also useful for questioning subjects whose veracity is in question. Studies have shown that, properly conducted, cognitive interviews can distinguish between honest and deceptive witnesses with more than 80 percent accuracy.27 If the senators on the Judiciary Committee had truly been interested in determining whether Christine Blasey Ford was telling the truth, they could have done so more reliably in a private interview that also would have satisfied her professed concerns about privacy and convenience.
Instead, Mitchell was unable to ask Ford to give an uninterrupted narrative, to repeat it chronologically and in reverse, or to make a drawing of the scene. But she did employ several important features of the cognitive interview. For instance, she established rapport at the beginning by allowing the witness to offer an extended version of her story, only later going back to clarify inconsistencies. She presented her questions in collaborative terms, asking the subject to help her understand. She confronted Ford about inconsistencies in a piecemeal fashion, avoiding an opportunity for her to come up with a single comprehensive explanation for all her inconsistencies, as witnesses often do when they are lying. Mitchell had uncovered a number of problems with Ford’s testimony, but she had done so in such a gentle way that it was not clear that Ford had recognized what was happening.
The media certainly didn’t pick up on what Mitchell had revealed. The incomprehension that Cynthia Alksne of MSBNC revealed was typical: “You build a cross-exam to a crescendo and you spend hours planning it and you’ve had this witness for a lot of time. I’ve never seen a worse crescendo in my whole life. I mean, that was awful. To end on that. I mean, it was mind boggling that’s the way it ended about ‘this is five minutes’ or ‘you should have been in L.A.’ or ‘why weren’t you here?’ It didn’t even go out with a whimper. It went out with a simmer. I mean, I don’t even know what that was. That’s the worst cross-exam I’ve ever seen. Am I wrong?”28
The Republicans on the Senate Judiciary Committee, however, were not cross-examining Ford, nor were they playing to the cable news peanut gallery. Their only concern was a very small audience—the Republican senators whose votes were in question and which they could not afford to lose—in particular, Senators Flake and Murkowski.
These senators also cared deeply about the protocols of the Senate and suspected that the Democrats were simply using Ford as a weapon against Kavanaugh. They were dismayed by the revelation that Feinstein was responsible for Ford’s being represented by the political animal Debra Katz. In fact, the performance of Ford’s attorneys during the morning’s questioning was, for these senators, the most interesting part of the morning’s hearings. Katz and Bromwich had interrupted when Ford was asked about her legal representation and tried to keep her from talking about whether she knew about repeated offers of the Senate interviewers to come to her. Grassley had made that offer to her lawyers and even repeated it on television. If Ford was to be believed, they had kept this information from her, forcing their timid client into the spotlight of a Washington hearing. Republican senators, including some who were key votes, were appalled by Ford’s attorneys. They felt that people who cared for her should have told her about the repeated offers to travel to her. And the way they flanked her and interrupted her to keep from answering questions struck them as overly controlling.
The investigators on the staff of the Judiciary Committee were shocked
to learn that a polygraph test, which is generally not admissible in court and is of questionable value to begin with, had been administered while Ford was mourning her grandmother’s death and preparing for a supposedly terrifying flight. Because the polygraph measures anxiety in response to questions, polygraphers usually avoid administering it against a background of psychological distress. She seemed not to know if she had been recorded, although the state of Maryland requires consent of all parties for recording and American Polygraph Association standards require polygraphs to be recorded from beginning to end. It is typical to release the audio and video of a polygraph for second opinions, but Ford and her attorneys declined to do so.
The anti-Kavanaugh forces, then, had taken some serious blows that morning, but the damage was below the surface. The running commentary in the media coalesced around the theme of Kavanaugh’s now-inevitable defeat. The White House reporter Ashley Parker, appearing on MSNBC, declared that “by the end of the day [Trump] might be willing to cut Judge Kavanaugh loose. They don’t know. This is a moving situation but the outlook now is fairly grim.” The anchorman Brian Williams responded that Trump’s own instincts were damaging Kavanaugh’s prospects. In his “inability to read the room,” the president had reportedly encouraged the judge to be “ ‘hotter’ on camera—to ad lib more, get off his talking points.” But for Kavanaugh to come in “hotter,” after Ford’s “emotional” and “very organic” testimony, Williams warned, would be “off-balance.” “That’s such a smart point,” Parker told him. If Kavanaugh appeared “indignant, more outraged, and more defiant,” he might please the president but would not “win over the room” or the general public.29
The White House was enthralled by the testimony. Everyone was watching the proceedings on the Hill, leaving the normally bustling corridors of the West Wing oddly silent. The Kavanaugh team thought that Ford had done extremely well, and they were no longer confident that the Republican senators, a handful of whom were not conservative or were consumed by antipathy to Trump, would stick together. They were less worried about Collins than Murkowski and Flake, but they knew it would be hard for Republicans to vote for Kavanaugh unless he hit a home run that afternoon.
The situation at midday revealed the risk of their strategy of not attacking Ford’s character, even though they had information that was at odds with her testimony. The ex-boyfriend had told them about her frequent flying and her history with polygraphs. Fearing a backlash against himself, he had been reluctant to speak against Ford but had relented under the weight of an official Senate investigation.
The White House had expected Ford to perform well as a witness. While they believed Kavanaugh was innocent, many of them also believed that Ford had probably suffered an assault like the one she described and had, for whatever reason, come to believe what she was saying about Kavanaugh.
False memory has been an important field of research in psychology since the 1990s, when psychologists started turning up “recovered memories,” particularly of child sexual assault and ritual satanic abuse. The theory of recovered memory is that certain events may be so traumatic that they are blocked from one’s memory and can be recovered only with certain psychological techniques, including hypnosis.
When certain “recovered” memories were proved to be impossible, Elizabeth Loftus, now a professor at the University of California at Irvine, began to study the malleability of memory and whether certain techniques were more likely to produce false memories.30 She has since become the leading researcher in the field, receiving the American Psychological Foundation’s Gold Medal for Lifetime Achievement, and is one of the most frequently cited psychologists in the world.31 Loftus and others demonstrated the ease with which false memories could be suggested to research subjects who felt them to be true, and the reliability of “recovered” memories came under serious question.
While the number of therapists treating recovered memories as credible dramatically diminished in the wake of the research into the malleability of memory, at least into the 2000s there was a divergence of opinion between clinical psychologists, who were more likely to give weight to recovered memories, and researchers, who were skeptical of such memories’ reliability. The majority of research psychologists now believe that memory is malleable—that is, it can be contaminated, distorted, or transformed by external suggestions and even by a person’s own internal thoughts about what might have happened. Clinicians, however, along with the public, are more likely to believe that repressed memories can be accurately retrieved in therapy.32 One researcher firmly in the pro–recovered memory camp is David Spiegel, who collaborated on at least three different papers with Ford. They introduced one joint experiment by emphasizing the usefulness of hypnosis in therapy, including to “assist in the retrieval of important memories.”33
Loftus, herself a Democrat who professed to be frightened of the prospect of Kavanaugh’s joining the Supreme Court, nonetheless found Ford’s testimony problematic, particularly her use of scientific terminology: “We got a laugh out of that.” She added that “no memory person would say ‘indelible in the hippocampus,’ ” because “things aren’t indelible, period, and they aren’t indelible in just one part of the brain.” One would have to know more about the nature of the marital therapy sessions, she said, to determine how much weight to give those memories, because some techniques are known to produce images and ideas in the mind of a patient that sometimes solidify into false memories. “In this case the question is, when did the accuser attach Brett Kavanaugh’s name to the incident?” she said. “Was it right away or did it come much later, say, in therapy?”
Not only memories, but confidence about one’s memories can be malleable. Some witnesses may have low confidence when they initially identify someone—for example, picking a suspect out of a lineup—but when their choice is reinforced by police officers or others, they appear highly confident months or years later at trial. This confidence makes them compelling witnesses, even though they may have been initially unsure of their memory. Studies have shown that one’s ability to tell whether a witness is making an accurate identification is fairly good if one is judging the witness’s confidence of his initial identification.34 But if the judgment of a witness’s reliability is based on the witness’s confidence at trial, after he has been subject to the influence of others, then that judgment is less likely to be accurate.35 Ford’s testimony, of course, was given decades after the event, and there had been abundant occasions for her memory to be influenced by any number of people—her therapist, husband, “beach friends,” and lawyers.
Empirical studies suggest that Ford’s testimony could have been inaccurate even if she was fully convinced that the events occurred as she described them. In other words, she could have been telling the truth and nevertheless have accused Kavanaugh falsely. Polygraph experts have also identified this problem, pointing out that polygraphs can assess only a person’s subjective belief.36 If the subject of a polygraph test believes what he is saying to be true, the polygraph will rate him non-deceptive. This was illustrated by Blasey Ford’s own testimony in the hearing, when she stated that details in the statement she read at the polygraph exam were in fact inaccurate. Because she apparently believed them to be true at the time, the test showed no deception.
The Kavanaugh team stuck to its policy of not attacking Ford personally even though damaging information about Ford was being openly discussed by people who knew her, some who knew her quite well. Classmates were surprised by the media’s portrayal of her as an ingénue, which was very different from how they remembered her in junior high and high school. Female classmates and friends at area schools recalled a heavy drinker who was much more aggressive with boys than they were. “If she only had one beer” on the night of the alleged assault, a high school friend said, “then it must have been early in the evening.” Her contemporaries all reported the same nickname for Ford, a riff on her maiden name and a sexual act. They also debated whether her behavior
in high school could be attributed to the trauma of a sexual assault. If it could, one of them said, then the assault must have happened in seventh grade.
Although discussions along these lines were pervasive in the still-close Montgomery County community, none of these details was reported by the media, which were preoccupied with every emerging scrap of information about Kavanaugh’s youth.
Investigators on the Senate Judiciary Committee received communications from two men who claimed to have had (consensual) romantic encounters with the teenaged Christine Blasey. Each claimed consensual encounters with her that sounded similar to the assault she described. For instance, one man said that when he was a “19-year-old college student, he visited D.C. over spring break and kissed a girl he believes was Dr. Ford. He said that kiss happened in the bedroom of a house which was a 15- to 20-minute walk from the Van Ness Metro. Ford was wearing a swimsuit under her clothing, and the kissing ended when a friend jumped on them as a joke. [He] said that the woman initiated the kissing and that he did not force himself on her.”
Another person, claiming to be a college acquaintance of Ford’s, said that Ford used to purchase drugs from another student and regularly attended his fraternity parties. According to this witness, she enjoyed a robust social life in college. Other friends from college reported similar experiences and said Ford had never demonstrated fear of rooms with single entrances.
Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court Page 23