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

by Mollie Hemingway

Contemporaries of Ford’s at Holton-Arms said the least believable part of her story was how she left the party. It was inconceivable to them that she would have left Leland Keyser behind and that Keyser would not have found her abandonment to be highly noteworthy. She had always filled a protective role for Ford, so it seemed quite unlikely that she would not have become worried and made sure her friend was well. The story of a fifteen-year-old tenth-grader leaving behind the only other female at a party and then finding her way home, miles away, in pre-cell-phone 1982, with no car, no metro, and no cabs readily available is difficult to believe.

  Ford’s partying and interactions with boys and young men and the attention they drew had dismayed her family. Some journalists noticed that a letter from “members of Christine Blasey Ford’s family” did not include the signatures of any blood relatives. In a story headlined “Christine Blasey Ford’s Family Has Been Nearly Silent Amid Outpouring of Support,” the Washington Post took her parents and brothers to task for failing to sign her in-laws’ letter. Her father, Ralph Blasey, responded, “I think all of the Blasey family would support her. I think her record stands for itself. Her schooling, her jobs and so on.” Later he added, “I think any father would have love for his daughter.”37

  The media tended to skim over Ford’s political views, which ran decidedly to the left and were at variance with most of her family’s. Facebook friends reported that she had regularly expressed her hostility to the Trump administration before she deleted her profile around the time of Kavanaugh’s nomination. After her retreat from social media, only a few references to her political opinions remained, one mentioning a hat she wore in homage to the anti-Trump “pussy hat” protesters, another protesting Trump’s policy on border security.38

  In one of the Washington Post’s deferential profiles of Ford, her husband had suggested that any strain in the family was due to those “differing political views” and misogyny: “It was a very male-dominated environment. Everyone was interested in what’s going on with the men, and the women are sidelined, and she didn’t get the attention or respect she felt she deserved.” The same article emphasized that Ford’s father and Kavanaugh’s father belonged to the same all-male golf club, Burning Tree.

  The Post suggested that Ford’s family was afraid to defend her, quoting her sister-in-law as saying that supporters of sexual assault victims have trouble coming forward. Hale Boggs III, the scion of a prominent Democratic family and a friend of the Blaseys, remarked, “It’s got to be such a difficult situation for that family. It’s a very close-knit community where a lot of families know each other.”39 Still, a number of persons close to the family reported that staying silent was actually the family’s way of supporting Christine.

  It was not fear of showing support for Ford that kept others in the community quiet but the opposite. While many high school acquaintances of Ford’s revealed unflattering details about her behavior in high school—some of them truly salacious—the media’s hostility to Kavanaugh made them fear for their livelihood if their names were attached to the stories. Some worried that their children’s college applications would be affected. And some were reluctant to expose Ford to the kind of ferocious public criticism to which Kavanaugh had been subjected, even if what they said was true.

  A person claiming to be an acquaintance of the Blasey family told the Judiciary Committee that several persons who knew Christine in high school had information regarding her drinking and partying, but none was willing to come forward. “I wish I could say all of the things I know,” the witness said, “but I don’t want to put myself out there.”

  The president and the Senate majority leader chatted by phone after Ford’s testimony to assess each other’s reaction. Neither was wavering.

  No Republican senator thought Ford had performed poorly in her testimony, but the reactions varied strongly. Some thought her attorneys had done her no favors. Others felt the gaps in her recent memory were disconcerting. And one staffer, early on, thought she was doing so well that he joked about calling in a bomb threat to stop the hearing.

  But some Republican senators were more fickle. One member of the Judiciary Committee went to Senator Collins with a plan. In light of Ford’s testimony, they should go to the White House and make an offer to confirm a different nominee if Kavanaugh’s nomination were pulled. Collins, whose diligence and regard for rule of law had remained intact throughout the process, declined. She never would have recommended withdrawing the nomination based on Ford’s testimony alone. She was determined to hear Kavanaugh out.

  CHAPTER NINE

  Miracle

  The unwillingness of nearly everyone to question Ford’s credibility publicly made the pressure on Kavanaugh before his testimony nearly unbearable. After the Fox News interview, Don McGahn encouraged Kavanaugh by reminding him there was a reason he had been nominated to the Supreme Court. His professional performance over three decades gave people confidence in him. Figure out what you want to do in Thursday’s hearing and execute it, he said. Too many people telling him too many things, McGahn thought, was making him come across as too rehearsed. Kavanaugh should just be himself.

  McGahn’s advice was a huge relief and exactly what Kavanaugh needed to hear. He was being pulled in two directions, which reflected the influence of two very different Republican presidents. His temperament was a perfect match with President George W. Bush, a man adored by those who worked closely with him. But Bush’s willingness to brush off slights and to discard conservative principles for the sake of political expediency made many Americans feel he had let them down. At the other end of the spectrum was the brash outsider President Donald Trump. Reviled by the Washington establishment, he had been brought to power by an American people worried about the direction of the courts, the rise of “social justice warriors,” and the corrosive influence of the media. Voters were seeking someone willing to stand strong against these forces.

  McGahn liked to remind Kavanaugh that he was a Trump nominee, but as Thursday approached, he didn’t need reminding.

  Kavanaugh and Ford were supposed to submit their written statements to the Judiciary Committee on Wednesday morning, twenty-four hours before the hearings opened, but Kavanaugh’s wasn’t finished. He had been thinking about his statement for a while, but because of the uncertainty of Ford’s appearance, he had not gotten down to writing in earnest until Tuesday. The Kavanaugh team realized that his statement would not be ready by the ten o’clock deadline, but they were not worried about that. Strategically, it did not make sense to submit his full statement in advance, for much of its power would be in the delivery. And given Ford’s cavalier attitude toward deadlines, they doubted she would submit her statement in time. They also knew that delivering a statement in a congressional hearing that differed from the written form previously submitted was common. So shortly before noon on Wednesday, the team submitted to the committee an early draft that they knew would need more work. It consisted of seven fairly dry, biographical paragraphs but ended with the promise of more: “Additional testimony to follow.”1 Ford submitted her testimony, a close approximation of the statement she would deliver the following day, at around five o’clock p.m.

  Less than two hours later, the Avenatti allegations of gang rape broke. A White House aide suggested to Chris Michel, the former clerk and Bush speechwriter helping Kavanaugh prepare his remarks, that he tear up what he had and start over. The campaign to keep him from being seated had just escalated to accusations of serial gang rape. It was time to get angry.

  Kavanaugh had already taken that advice. Michel had presented him earlier in the day with his rough draft of the speech, timed to last about ten minutes. The judge retreated into his office and spent the next several hours rewriting and dramatically expanding the draft. The White House kept asking to see it and he kept declining. Finally, he told them they weren’t going to see a draft. McGahn never insisted that he share it, choosing to trust him.

  Ford may have been the one wh
o insisted on unlimited time for opening statements, but it was Kavanaugh who took advantage of that opportunity, with a statement that stretched for nearly forty-five minutes. He knew that it would be his one opportunity to make his case directly to the American people, and he would take all the time he needed.

  By late Wednesday evening he had a draft he could practice delivering. Perhaps counterintuitively, rehearsal can be more important for an emotional speech than for a dry one. The first few times he practiced, it was almost impossible to get through it without breaking down. But for all its emotion, his remarks were essentially a presentation of the evidence for and against the allegations. This was a lawyer’s speech. By eleven o’clock, he had it where he wanted it, and he went home to rest.

  He spent the next morning making edits and practicing before going to Capitol Hill with Ashley shortly before noon. They waited for two hours in a holding room in Dirksen furnished with a table, a couch, a few chairs, and a TV tuned to the Golf Channel coverage of the Ryder Cup. They were not watching Ford’s testimony and had little to do while they waited, so Kavanaugh read his opening remarks to his wife. She told him they were good.

  The one change they made that day was adding a story about their daughter Liza’s saying that they should pray for the accuser, which Ashley had told him that morning. He added a note with a black Sharpie permanent marker, his editing tool of choice. Having learned from practice that some parts of the speech would be hard to make it through, he had indicated with his Sharpie where to stop to breathe.

  Kavanaugh had been deluged with advice until the end. His Bush friends, by and large, told him to not to show too much emotion. But he received calls from a few senators encouraging him to show his righteous indignation. They intimated that they found him too passive in the interview with MacCallum. There he had followed the advice of some friends to emphasize that he was a father and husband—as a “guilty politician would do,” one of his aides said dismissively.

  The news Kavanaugh received was mostly filtered through McGahn, who kept him positive but realistic, and Ashley. He knew from them that Avenatti’s accusations were striking most people as ridiculous. Though the allegations angered him, they gave him confidence going into the hearing. He had felt the attacks were crazy since the first allegation, but now he knew that the public was starting to see it that way as well.

  There were very few people who could understand what Kavanaugh was going through, and they were sitting on the Court. For some of the justices, watching the day’s proceedings, or even the first set of hearings, was too painful, even if their own confirmations had been easier.

  The drama of this day reminded everyone of Clarence Thomas’s reopened hearings in 1991.2 His nomination had barely made it out of the Democrat-controlled Judiciary Committee on a tie vote. Before it could come to a vote on the floor, Anita Hill’s allegations, which had been turned over to the FBI and were supposed to be evaluated by the committee confidentially, were disclosed to the press, putting Thomas in the position of having to prove a negative. A man who had played by the rules was now sabotaged by people who were trafficking in lies, leaks, and rumors. Thomas meditated on the words of the apostle Paul—the same words, it turned out, that Kavanaugh had read at Mass the day before his nomination: “Therefore I take pleasure in infirmities, in reproaches, in needs, in persecutions, in distresses for Christ’s sake. For when I am weak, then I am strong.”3

  As Ashley Kavanaugh would do two and a half decades later, Thomas offered a prayer of surrender to the will of God: “If it is possible, let this cup pass from me; nevertheless, not as I will, but as You will.”4 He focused on the second part of that prayer, knowing it was the most difficult.

  As in Kavanaugh’s case, Thomas’s hearings were reopened because it had become clear that the votes were not there without a public airing of the accusation. He had spent years reviewing precisely the type of employment discrimination and harassment allegations that Hill was making, and he knew that her unsubstantiated and contradicted charges would have been thrown out of court immediately. But the court of public opinion was another matter. “The mob was howling, and it wouldn’t be satisfied until it had tasted my blood,” Thomas would later reflect.5

  Choosing to testify before Hill, Thomas delivered a statement—seen beforehand only by his wife and his longtime friend and ally Senator John Danforth—in which he denied Hill’s allegations and spoke about the pain that the ordeal of intentionally burdensome document production, intrusive reporters digging for dirt in his own garage, and rumor-mongering had caused him and his family. “This is not American; this is Kafkaesque. It has got to stop. It must stop for the benefit of future nominees and our country. Enough is enough.” He didn’t intend to testify further after this. “There is nothing this committee, this body, or this country can do to give me my good name back. Nothing. I will not provide the rope for my own lynching or for further humiliation.”6

  The powerful statement appeared to have taken the room by surprise, and Thomas left to allow Hill to testify. After his wife, Virginia, relayed to him the specific charges Hill was making against him before the committee, Thomas felt relieved. He had been racking his brain for days to figure out what offhand comment she had misunderstood, but now he knew her charges were unrelated to anything he had actually done.

  Although Thomas had not planned on returning to the committee to respond to Hill’s charges, Danforth and Senator Orrin Hatch convinced him that the media would have a field day with her story if it was left uncontested. In Danforth’s office he lay down to think, settling on one phrase he felt crystallized his thoughts about the process. He wrote “HIGH-TECH LYNCHING” on the legal pad on which Danforth had listed suggested talking points. Thomas reflected on the parallels between his situation and the storyline of To Kill a Mockingbird, which dealt with both racial prejudices and a mob bent on short-circuiting the due process of law. That was the same book Kavanaugh had cited in his first round of hearings as teaching him not to prejudge others.

  Thomas returned to the hearing room and delivered a speech that would change the momentum of the confirmation process. He began by again “unequivocally” denying “each and every single allegation against me today.”7 Then he turned to the process, which he called a travesty. “This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee. It was then leaked to the media, and this committee and this body validated it and displayed it at prime time over our entire nation. . . . This is not a closed room. There was an FBI investigation. This is not an opportunity to talk about difficult matters privately or in a closed environment.” He continued, “This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kowtow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”8

  Justice Thomas described the moment in his autobiography, My Grandfather’s Son: “When I was done, my words seemed to hang in the air of the Caucus Room like the smoke from a bomb that had just exploded.”9 And their effect was truly explosive. By the end of his testimony, polls showed that more than twice as many Americans believed Thomas as believed Hill. And an overwhelming majority thought Thomas should be confirmed.10

  Now it was Kavanaugh’s turn. The war room was set up in the vice president’s suite in the Dirksen Building as it had been in the first set of hearings, but there was nothing much for people to do. Clever tweets and talking points were not going to save this nomination. A smaller number of aides and officials watched Ford’s testimony in the offices of Senator Thom Tillis of North Carolina and relayed necessary information to Kavanaugh. When Ford had finished her testimony, a few aides came and offered advice to the judge, one suggesting that he meekly talk about F
ord’s courage in telling her story. Don McGahn told them to leave—“Everyone!” he shouted. Even Ashley got up to leave the room, but she was told she could say.

  Kavanaugh and McGahn had strategized using sports analogies throughout the process. They shared a love of the 2004 film Miracle, which is about the U.S. hockey team’s improbable victory over the Soviet team in the 1980 Olympics. Kavanaugh was fond of quoting the line shouted by an exhausted team captain, “I play for the United States of America!” McGahn, wanting to reset the table after Ford’s testimony, thought of another scene from the movie. The U.S. coach comes into the locker room after the first period of a game against Sweden. His team is losing and dejected. The coach accuses an injured player of being a quitter, mocks a teammate who comes to his defense, and flips over a table to get everyone fired up. On his way out the door, he says under his breath to the assistant coach, “That’ll get ’em goin’.”11 McGahn had watched Ford’s testimony. He knew people believed her, but he knew Kavanaugh had it in him to fight for his honor.

  They had practiced for a moment like this. Over the previous week, in sessions with just Kavanaugh and a few others, they had tried to prepare the nominee for what he would face. The Gorsuch confirmation process had taught the White House that they could not fully script interactions with senators. Federal judges know what they’re doing and should be allowed to trust their instincts. Kavanaugh, a respected judge with a sterling reputation, was seeing his character and life’s work demolished. People were already saying he should not return to the court of appeals, let alone take a seat on the Supreme Court. He was being turned into a pariah. It was time for his own “miracle on ice.” He was down, he was injured, and he had to win.

  Kavanaugh entered the hearing room and sat down. He wore a dark suit and a blue tie. His brow was furrowed as he adjusted his microphone and papers. Ashley sat behind him next to her friend, Laura Kaplan.