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

by Mollie Hemingway

  He began by noting that he had denied the allegations against him “immediately, categorically, and unequivocally.”12 He quoted from the witness statements saying that they had no recollection of anything like the episode Ford had described. He reminded the committee he’d asked for an immediate hearing to clear his name, demanding a hearing the next day. Their ten-day delay had allowed his family and his name to be “totally and permanently destroyed by vicious and false additional accusations.”

  Kavanaugh said he had welcomed an investigation into the charges and had cooperated fully, knowing that any investigation would clear him. He reminded the committee of the myriad witnesses who all testified to his character.

  “This confirmation process has become a national disgrace,” he said. “The Constitution gives the Senate an important role in the confirmation process, but you have replaced ‘advice and consent’ with ‘search and destroy.’ ” He reminded the senators that the moment his nomination was announced, left-wing activists had launched a frenzied search to “come up with something, anything,” to block his confirmation. He threw statements of Democratic senators back at them, reminding everyone that the minority leader, Chuck Schumer, had said he would oppose him with everything he had. He reminded the Democrats on the Senate Judiciary Committee that one of them—it was Senator Booker—had publicly referred to him as evil. “Evil. Think about that word. It’s said that those who supported me were, quote, complicit in evil,” he continued, driving his point home. He rehearsed a few more of the reckless and extreme statements by Democratic senators and political leaders.

  “I understand the passions of the moment,” he said, but he reminded them that people took their words seriously, issuing vile threats against his wife and friends. “You sowed the wind. For decades to come, I fear the whole country will reap the whirlwind.”

  The behavior of the Democrats on the Judiciary Committee was an “embarrassment” when it was still at the level of a “good old-fashioned attempt at Borking.” But when it began to look like he would be confirmed, “a new tactic was needed.” He noted that a Democratic member and her staff had kept Ford’s allegation a secret for weeks, waiting to unveil it when it was needed and making it public against Ford’s wishes.

  There followed a “long series of false, last-minute smears” designed, he said, to drive him off the stage:

  Crazy stuff. Gangs, illegitimate children, fights on boats in Rhode Island. All nonsense reported breathlessly and often uncritically by the media. This has destroyed my family and my good name—a good name built up through decades of very hard work and public service at the highest levels of the American government. This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.

  He lamented the effect the confirmation process would have on others who might seek to serve the country. But though he feared for the future, he would not be intimidated into withdrawing from the confirmation process. “You’ve tried hard. You’ve given it your all. No one can question your effort, but your coordinated and well-funded effort to destroy my good name and destroy my family will not drive me out. The vile threats of violence against my family will not drive me out. You may defeat me in the final vote, but you will never get me to quit. Never.”

  Then he turned to the allegations against him. He said he had never sexually assaulted anyone, emphasizing how seriously he took sexual assault. He reminded the senators that due process requires hearing from those who make allegations and from those who are the subject of allegations.

  He repeated something he had said in the East Room at the announcement of his nomination—that his mother’s trademark line was, “Use your common sense. What rings true, what rings false?” A good reminder, he said, for the decision before the senators. The last-minute accusations, flung at him by a campaign that had promised to do everything in its power to stop his nomination, was utterly inconsistent with the reputation he had built over decades and did not ring true.

  Christine Blasey may have been sexually assaulted, he said, but not by him, adding that he intended no ill will to her or her family. “The other night Ashley and my daughter Liza said their prayers, and little Liza—all of ten years old—said to Ashley, ‘We should pray for the woman.’ That’s a lot of wisdom from a ten-year-old. We mean no ill will,” he said, choking up. The hearing room was full of people crying. Kavanaugh’s parents were there to support him and could barely maintain their composure. Watching their anguish over their only son’s ordeal was brutal for the other members of Kavanaugh’s team.

  He cited the six FBI background investigations he had undergone in the previous twenty-six years and cited the positions of responsibility he had held that put him under public scrutiny. He noted that he and other members of Kenneth Starr’s Whitewater independent prosecutor’s office were researched “from head to toe, from birth through the present day,” and that while others had been exposed as having engaged in sexual wrongdoing, nothing was alleged about him. He reminded senators that he had served three years in the West Wing and traveled around the world with the president, having been thoroughly vetted. He had sat through two confirmation hearings, in 2004 and 2006, before being confirmed to the second-most important court in the country.

  “Throughout my fifty-three years and seven months on this earth until last week, no one ever accused me of any kind of sexual misconduct. No one ever. A lifetime,” he said.

  More specifically, he said, he had never had any sexual or physical encounter of any kind with Ford and never attended a gathering like the one she described. He said that if he socialized with girls, they tended to be at the Catholic schools, not Holton-Arms. All of the persons named as witnesses said they did not recall anything that matched Ford’s account.

  “Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers,” he said, noting that none of the witnesses lived near Columbia Country Club.

  Then he pointed to his calendars. He explained why he kept them, choking up as he talked about his father keeping detailed calendars. Ashley, crying, kept supportive eyes on Brett from behind. Noting that while the calendars had “some goofy parts, some embarrassing parts,” they documented the summer of 1982 well. He said the only weekend nights he was in Maryland and not grounded were Friday, June 4, and Saturday, August 7. He noted how he listed the names of people with whom he attended parties. His calendars were full of sports camps, summer trips, and hanging out with friends. He talked about his summer business of cutting lawns.

  “And as my calendars show, I was very precise,” said Kavanaugh, noting that they included the precise list of whom he gathered with. They weren’t dispositive on their own, he acknowledged, “but they are another piece of evidence in the mix for you to consider.”

  Finally, he noted that the charges were inconsistent with his record and character from youth to the present day. He referred to his many women friends. “I remember talking almost every night it seemed to my friends Amy or Julie or Kristin or Karen or Suzanne or Maura or Meghan or Nikki, the list goes on. Friends for a lifetime built on a foundation of talking through school and life starting at age fourteen. Several of those great women are in the seats right behind me today,” he said.

  He acknowledged that he drank beer in high school, noting that the drinking age in Maryland was then eighteen. And he acknowledged that his yearbook was “a disaster.” Students had taken their cues from popular movies of the time, such as Animal House, Caddyshack, and Fast Times at Ridgemont High. He said what he saw in his yearbook made him cringe, particularly the reference to Renate.

  “One of our good female friends who we would admire and went to dances with had her name used on th
e yearbook page with the term ‘alumnus.’ That yearbook reference was clumsily intended to show affection and that she was one of us, but in this circus, the media’s interpreted the term as related to sex. It was not related to sex,” he said. He apologized to her and said that one thing he wanted to make sure of in the future was his friendship with her. “She was and is a great person,” he said.

  He also went through the women who had sent letters on his behalf. After quoting three text messages he had received in the past two days from female college friends, he recalled that in his opening statement at the first hearing, he had said, “Cherish your friends, look out for your friend, lift up your friends, love your friends. I felt that love more over the last two weeks than I ever have in my life. I thank all my friends. I love all my friends.”

  Turning to his record with women in the professional sphere, Kavanaugh said, “Throughout my life, I’ve devoted huge efforts to encouraging and promoting the careers of women. I will put my record up against anyone’s, male or female.” Then he turned closer to home: “I love coaching more than anything I’ve ever done in my whole life, but thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.”

  Finally, he thanked God for Ashley and his family and concluded:

  We live in a country devoted to due process and the rule of law. That means taking allegations seriously, but if the mere allegation, the mere assertion of an allegation, a refuted allegation from thirty-six years ago, is enough to destroy a person’s life and career, we will have abandoned the basic principles of fairness and due process that define our legal system and our country. I ask you to judge me by the standard that you would want applied to your father, your husband, your brother, or your son. My family and I intend no ill will toward Dr. Ford or her family. But I swear today under oath before the Senate and the nation, before my family and God, I am innocent of this charge.

  After his emotionally powerful opening statement, Kavanaugh first answered some perfunctory questions from Rachel Mitchell about how he knew the people whom Ford had identified as witnesses. But soon enough he had to respond to pointed questions from his accusers on the committee. When Senator Feinstein asked him why he didn’t want the FBI to investigate the accusations against him by Ford, Ramirez, and Swetnick, Kavanaugh reminded her forcefully that he had wanted a hearing immediately, instead of waiting ten days while allegations were “printed and run breathlessly by cable news.”

  She said the committee needed an outside authority to interview witnesses. Kavanaugh replied that it wasn’t for him to tell her how to do her job, but that the committee had the same authority to interview witnesses as the FBI, and the FBI would simply turn over its interviews without offering a conclusion. Feinstein, boldly, then brought up Avenatti’s rape allegations, saying she understood Kavanaugh was denying them. “That is emphatically what I’m saying. Emphatically,” he said, calling the gang rape claim a joke and a farce. “Would you like to say more about it?” Feinstein asked. “No,” he responded immediately, eliciting laughter from the room. Some of Feinstein’s colleagues, including some whose votes were in play, were surprised and appalled that she gave the outlandish allegations credence.

  Mitchell then asked him some more factual questions about his drinking, sexual behavior, and his calendars. Just three questioners in, the team from the White House counsel’s office realized that Kavanaugh needed time for his emotions to cool.

  Everything had changed in the previous hour. And everyone involved in the confirmation effort, whether at the White House or on the Hill, knew it. All of them were surprised at the tearful reaction they had to his emotional testimony.

  After so many years of seeing conservatives give in, Kavanaugh’s supporters were moved by his bold defense of his life, his reputation, and the of rule of law. The display of courage and righteous indignation moved nearly everyone to tears. Men and women in the war room, in the hearing room, and at the White House were crying. And social media reflected the dismay of people throughout the country at the climate of mob justice that could tear down their honorable husbands and sons. Kavanaugh was fighting not only for himself but for everybody who had been unfairly attacked.

  Media personalities, on the other hand, were struggling to accept what they had just witnessed. NBC’s Lester Holt said Kavanaugh “still seemed to be trying to find his composure and his footing as he once again continues to deny all the accusations made by Christine Blasey Ford.”13

  “I mean, where do you even begin?” asked NBC’s Andrea Mitchell, criticizing Kavanaugh’s reference to the 2016 campaign and President Trump. Chuck Todd said that the speech might have played well with the president but might not play well in the rest of America. Because Rachel Mitchell was asking tough questions of Kavanaugh after her apparent gentleness with Ford, Todd concluded that Republican senators had “made that decision to protect themselves, not the nomination, which tells you what they’re really probably most concerned about, which is election day. Because this is not how you help him, this is how you help the Republicans.”14

  Savannah Guthrie said, “He put it all out there, made a political argument, local argument, personal argument. How could you as a human not watch that and feel gut-wrenched.”15

  Jeffrey Toobin of CNN reacted emotionally to Kavanaugh’s assertion that the smears against him were, among other things, “revenge on behalf of the Clintons.” Toobin interpreted that remark as a comment on Bill and Hillary Clinton. “This was a deeply political statement designed to appeal to Republicans,” he said.16

  A reliable defender of the Clintons who had written a defensive book on President Clinton’s impeachment, Toobin misinterpreted Kavanaugh’s remark. He was talking about the Clinton supporters behind the groups that were fueling the attacks on him. Many of these people were clearly motivated in part by his participation in the independent counsel’s investigation of the 1990s. Kavanaugh did not say, or even suggest, that the Clintons were themselves orchestrating the campaign against him, even if Hillary Clinton had spoken publicly against his nomination. But the main movers in the campaign against him included Clinton aides Ricki Seidman and Brian Fallon, who were ringmasters in the anti-Kavanaugh circus. And there were Clinton aides and campaign staff at all levels of the effort. That night Fallon would ominously tweet, “Kavanaugh will not serve for life.” In the months to come, he would organize efforts to impeach Kavanaugh, harass him with ethics complaints, and get him kicked off campuses.17

  The hearing reconvened with Senator Leahy’s asking Kavanaugh if he wanted Mark Judge as a witness. Kavanaugh responded by criticizing how Ford’s allegation was sprung on him at the last minute. As the senator and the judge talked over each other, Leahy’s staff hoisted pictures from Kavanaugh’s yearbook onto an easel and started confronting him with its entries and interrupting his answers. The hostile exchange was going nowhere, and eventually Grassley cut Leahy off, reminding the Democrat how polite Republicans had been to Ford.

  Mitchell then asked Kavanaugh about the summer of 1982 as well as his treatment of women during his professional life and whether he had given sworn statements in response to various allegations.

  When it was Senator Dick Durbin’s turn, he urged Kavanaugh to “turn to Don McGahn and tell him it’s time to get this done. An FBI investigation is the only way to answer some of these questions.” He hectored Kavanaugh, “If there is no truth to her charges, the FBI investigation will show that. Are you afraid that they might not?” Kavanaugh stopped responding, just looking at the senator as if he were disappointed in him.

  Ordinarily, nominees are deferential to senators, as Kavanaugh had been in his first hearing, politely telling them he understands their concern and respects their wisdom. He wasn’t going to do that now. Kavanaugh was not going to take their belittling, mocking, and mischaracterizations without going right back at them. This time his career was on the line, his family was on the line, and his reputation was on the line. H
e did not know if he was going to make it through to confirmation, and he did not want to destroy his chances needlessly, but he was intentionally firm and forceful. He thought of Miguel Estrada, a qualified nominee whose confirmation was derailed by Democrats who didn’t want Republicans to place a Hispanic on a high-profile federal court. After Estrada lost his brutal confirmation fight, his wife died prematurely.

  Kavanaugh was fighting not only to vindicate his judicial philosophy and the reasoning of his opinions, but also to vindicate his reputation as a man. He had endured the indignity of having to respond to the most sensitive and embarrassing questions he could imagine. He was not going to let his opponents destroy his life.

  After Durbin’s questioning, Senator Lindsey Graham asked for the floor.18 No one was expecting what followed. As he began to speak, Graham’s tone was matter-of-fact. “Are you aware,” he asked the nominee, “that at 9:23 the night of July the ninth, the day you were nominated to the Supreme Court by President Trump, Senator Schumer said—twenty-three minutes after your nomination—‘I will oppose Judge Kavanaugh’s nomination with everything I have. I hope a bipartisan majority will do the same. The stakes are simply too high for anything less’? Well, if you weren’t aware of it, you are now.

  “Did you meet with Senator Dianne Feinstein on August 20?”

  “I did meet with Senator Feinstein,” Kavanaugh answered.

  “Did you know her staff had already recommended a lawyer to Dr. Ford?” Here the senator shifted in his chair, hunched his shoulders slightly, and pursed his lips, the first indication of his rising anger.

  “I did not know that.”

  “Did you know that her and her staff had this allegation for over twenty days?”

  “I did not know that at the time.”

  And then, turning to the Democrats arrayed to his left, Graham snarled, “If you wanted an FBI investigation, you could have come to us. What you want to do is destroy this guy’s life”—pointing at Kavanaugh—“hold this seat open, and hope you win in 2020. You’ve said that!”