For the next three and a half minutes, Lindsey Graham was a volcano of indignation. With unconcealed contempt, he declared, “If you really wanted to know the truth, you sure as hell wouldn’t have done what you’ve done to this guy,” denouncing the proceedings as the “most unethical sham since I’ve been in politics.” He reminded everyone that he had voted to confirm Democratic nominees Sotomayor and Kagan.
Pointing out that Christine Blasey Ford was as much a victim of the Democrats’ machinations as Kavanaugh was, Graham exposed their true aim with stunning clarity: “Boy, y’all want power. God, I hope you never get it.”
To Kavanaugh he said, “Would you say you’ve been through hell?”
“I’ve been through hell and then some,” Kavanaugh replied.
“This is not a job interview. This is hell,” Graham said. He ended with a warning to his fellow Republicans that if they voted against Kavanaugh, they would be “legitimizing the most despicable thing I have seen in my time in politics.”
The moment was electric. Kavanaugh was overwhelmed and grateful. Senator Graham had changed the entire dynamic of the day. It was powerful because he was saying what everybody outside of newsrooms and other liberal institutions was thinking but couldn’t say. The catharsis was palpable.
Noting that Kavanaugh had interacted with professional women all his life without one accusation, Graham had ridiculed the Democrats for their relentless focus on his high school yearbook. As if to prove the point, Senator Sheldon Whitehouse, who followed Graham, devoted his entire five minutes to parsing the adolescent text on Kavanaugh’s high school yearbook page. Obviously intending to humiliate the nominee, the senator explored the meaning of the word “boofed”—“That refers to flatulence. We were sixteen,” Kavanaugh explained—revisited the references to “Renate alumnius,” which Kavanaugh had addressed fully in his opening statement, and inquired about “devil’s triangle,” a drinking game that Kavanaugh’s opponents had hoped was a reference to some sort of ménage à trois. (In response to Whitehouse’s questions, Senate Republicans would later release the sworn statement of four of Kavanaugh’s high school friends confirming that it was a drinking game and did not “refer to any kind of sexual activity.”)19
Senator John Cornyn of Texas, following Whitehouse, stated, “I can’t think of a more embarrassing scandal for the United States Senate since the McCarthy hearings.”
Senator Amy Klobuchar of Minnesota stood out among Democrats for her respectful treatment of the nominee in the previous hearings and in her meeting with him, as he noted with gratitude at the start of her questioning. After pressing him to ask the president to launch an FBI investigation, she turned to the subject of drinking, asking if he had ever had so much to drink that he could not remember the previous evening. He said no. She asked again. Obviously annoyed, he rudely responded, “Have you?” Taken aback, she said, “Could you answer the question, judge? I just—so you—that’s not happened? Is that your answer?” In circumstances that, admittedly, would have strained anyone’s patience, Kavanaugh’s good judgment seemed to abandon him momentarily, and he doubled down: “Yeah, and I’m curious if you have.” Klobuchar responded briskly, “I have no drinking problem,” and Kavanaugh added, “Nor do I.” They smiled at each other, and the questioning paused for a recess.
The media had by now figured out how well things were going for Kavanaugh. It wasn’t just his testimony, but his confidence in handling hostile questions. Lindsey Graham’s surprising defense—the first defense of Kavanaugh since Senator Grassley’s at ten o’clock that morning—was cathartic for those Americans whose views had been sidelined by the media in the previous two weeks.
Kavanaugh’s one misstep was his cheeky response to Senator Klobuchar. As soon as they returned to the holding room, McGahn told Kavanaugh it was time to reel it in. Ashley told Kavanaugh to calm down and encouraged him to find a way to address what he had said. Kavanaugh had not intended to be disrespectful; of all the Democrats on the committee, she was the one he would least want to offend.
As soon as the break ended, he apologized to Senator Klobuchar publicly.
The team also realized that the hearing was going as well as could be expected. McGahn told Kavanaugh that he had befuddled the Democrats. His powerful punches were the last thing they expected and made them look foolish for asking about high school antics. It was a good time to cool things down, as he did when questioned by Senators Coons, Harris, Hirono, and Booker.
He did punch back when Senator Blumenthal brought up the “Renate alumnius” again. The senator had begun by condescending to Kavanaugh about jury instructions, stumbling over the common law principle Falsus in uno, falsus in omnibus (“False in one thing, false in everything.”) Blumenthal, trying to impeach Kavanaugh’s credibility, was the last senator who should have pursued this line of argument. He had previously misled the voters of Connecticut about his service in Vietnam.
Many Supreme Court nominees have referred to the galling indignity of having their character questioned by senators whose own characters are seriously besmirched. Joe Biden led the Senate Judiciary Committee’s Bork hearings at the same time his presidential ambitions were sinking because of his plagiarism. Ted Kennedy’s lengthy list of sexual improprieties never inhibited the “Lion of the Senate” from smearing nominees of exemplary character. Robert Packwood of Oregon, one of only two Republican senators to vote against Clarence Thomas, citing his concern for women’s rights, was forced to resign from the Senate four years later under threat of expulsion for a “habitual pattern of aggressive, blatantly sexual advances, mostly directed at members of his own staff or others whose livelihoods were connected in some way to his power and authority as a Senator.”
The rest of Kavanaugh’s hearing was relatively quiet. The Republicans put the Democrats on the defensive for playing games with Ford’s allegation. Pressed by Senator Cornyn, Dianne Feinstein found herself insisting that she was not responsible for leaking Ford’s letter, even though her office was the only one that had it. “I don’t believe my staff would leak it,” she said but admitted, “I have not asked [them] that question directly.”20 It was far from a convincing denial.
By the time the senators spoke to reporters afterward, it was the Democrats who were utterly deflated, while the Republicans spoke with optimism about the committee vote the next day.
The Kavanaughs left immediately. Both Presidents Trump and Bush called the judge to commend him for his testimony. The couple attended a gathering that evening at the McCalebs’ house. It would take time for Kavanaugh to appreciate the extent of his support, but that night he began to see how much his hearing had meant to people in his life. Text messages and emails poured in from people he knew in high school, college, law school, the independent counsel’s office, and the White House. He heard from people he knew during his clerkships and parents of children he had coached. It was a survey of his life’s work, and it was reassuring and encouraging.
CHAPTER TEN
The Anteroom Where It Happened
It had been a rough couple of years in the Senate for Jeff Flake. A conservative from the small-government and free-trade wing of the GOP, he couldn’t get over Donald Trump’s brash political style, even as the president remained popular with Republican voters. His anti-Trump manifesto, Conscience of a Conservative, sealed his electoral fate. Shortly after it was published in the summer of 2017, he announced that he would not run for reelection. John McCain, the senior senator from Arizona, died August 25, and the country had gone through weeks of remembrances of the former prisoner of war who had played a major role in politics for thirty-five years. McCain was particularly well regarded in Washington for his opposition to Trump, and Flake thought of him as a father figure and mentor.
Despite his conservative voting record, Flake could be contemptuous of Republican voters, and his visceral aversion to President Trump sometimes caused him, like McCain, to break from the Republican caucus. Nevertheless, he was considered
a likely vote for Kavanaugh.
As the allegations piled up, however, Flake agonized about his vote, bristling at the pressure from his party’s leadership. Democrats recognized early on that he might waver. Senator Chris Coons, who was friendly with Flake and worked with him frequently, was a key to the effort to turn him. In the first hearing, Coons questioned Kavanaugh closely about executive power, which he knew to be a concern of Flake’s. Kavanaugh, for his part, seemed to reassure Flake by clarifying that he did not view executive authority as unlimited. After the accusations of sexual assault emerged, Coons shifted to emphasizing the need for a thorough investigation.
Republicans trying to secure Flake’s vote recognized his sympathy with Ford and other victims of sexual assault, so they did not rely solely on the lack of any evidence for the accusation. They reminded him that Brett Kavanaugh was a human being, a man with a wife and children. If Flake voted against him, he would not only keep a justice of sound constitutional principles off the Court but also destroy a man’s reputation. Senator Mike Lee, a former federal prosecutor, felt he could walk Flake, not a lawyer, through the legal analysis. In the United States, the accused is considered innocent until proved guilty. To be convicted of a crime, his guilt must be “beyond a reasonable doubt,” while in civil trials, the burden of proof is lighter—a “preponderance of the evidence,” that is, it is more likely than not that the defendant is liable. Kavanaugh was not on trial, of course, but the presumption of innocence—an essential part of what Americans mean by “due process”—ought to guide the senators as they evaluated Ford’s accusation.
On Friday morning, the day after the second hearing, Flake announced that he would vote to confirm Kavanaugh, assuring that the nomination would be voted out of committee and onto the floor of the Senate.1 He praised Kavanaugh, noting that in another era he would have been nearly unanimously confirmed, while acknowledging that after such persuasive testimony from both Kavanaugh and Ford he couldn’t be sure what had happened. Former President George W. Bush had quietly lobbied Flake and other undecided senators. Senator Lee’s emphasis on the burden of proof seemed to have been the decisive point.2 When CNN’s congressional correspondent Sunlen Serfaty broke the news to Senator Coons, he responded, “Oh f—k,” and began to choke up: “I deeply respect . . . We each make choices for our own reason. I’m struggling, sorry.”3
A group of reporters camped outside of Flake’s office met some female protesters who were there to lobby him against Kavanaugh. They all learned about his decision at the same time and gasped. The protesters cried. A few minutes later, when the senator left his office for the Judiciary Committee meeting, they ran after him. Ana Maria Archila, a professional activist with the Center for Popular Democracy (funded by the Arabella Advisors Network), and Maria Gallagher, a member of the liberal feminist group UltraViolet who was in Washington to protest against Kavanaugh, trapped Flake and an aide in an elevator.4 CNN’s cameras were rolling.
“I was sexually assaulted, and nobody believed me. I didn’t tell anyone, and you’re telling all women that they don’t matter,” cried Gallagher. “Look at me when I’m talking to you. You’re telling me that my assault doesn’t matter.”5 Archila shrieked, “You’re allowing someone who is unwilling to take responsibility for his own actions, and willing to hurl the harm that he has done to one woman—actually, three women,” indicating that even Ramirez and Swetnick must be believed.6 The exchange lasted for five long minutes, after which emotional CNN correspondents praised the activists uncritically.7
Following Thursday’s hearing, Senator Collins told the Senate Judiciary Committee that she would find it difficult to vote for Kavanaugh without a sworn statement directly from Mark Judge, not just the attestation of his lawyer. Just before midnight, the committee had released just that, and Grassley read it at the Friday morning committee meeting. Judge said he had no memory of what Ford alleged and added, “I am knowingly submitting this letter under penalty of felony.”8
Democratic senators and the media were now asserting that the American Bar Association had backed away from its earlier endorsement of Kavanaugh as “well qualified.” The truth was rather more complicated. On Thursday, Robert Carlson, the president of the ABA and a donor to Hillary Clinton’s political campaigns, had sent the committee a letter asking it to postpone the vote on Kavanaugh until an FBI investigation was completed. The ABA’s Standing Committee on the Federal Judiciary, which evaluates judicial nominees, sent its own letter to the Judiciary Committee the next day, clarifying that (1) it had not seen Carlson’s letter before it was sent, (2) the standing committee “acts independently of ABA leadership,” and (3) it “conducts non-partisan, non-ideological, and confidential peer review of federal judicial nominees.” The letter concluded, “The ABA’s rating for Judge Kavanaugh is not affected by Mr. Carlson’s letter.”9 By the time the clarification was received, however, the narrative was set. A story by CNN’s Manu Raju, for example, published five days later, presented Carlson’s letter as an act of the ABA itself and made no mention of the standing committee’s letter of correction, leaving the impression that Kavanaugh’s original “well qualified” rating was now in question.10
The American Civil Liberties Union also took part in the campaign against Kavanaugh, despite its ostensible policy against weighing in on Supreme Court nominations—a policy it had also broken to oppose Rehnquist, Bork, and Alito. Having strayed in recent years under the influence of progressive donors from its formerly zealous advocacy of free speech and religious freedom, the organization now abandoned two of its other core principles: the presumption of innocence and opposition to guilt by association.
At the Friday morning Judiciary Committee meeting, the motion to vote later that day was carried, but Senators Booker and Harris refused to respond to the roll call. Without explaining their objection, they walked out in protest, joined by Blumenthal, as Feinstein began complaining about Kavanaugh’s temperament. While the ranking member took issue with the nominee’s “belligerent” response to her invocation of the serial gang rape charge, her fugitive colleagues conducted a thirty-minute press conference with a group of reporters who had been waiting for them outside. As the trio left the hearing room for the press conference, Senator Harris was heard lamenting that the Republicans were beating the Democrats, liberally punctuating her complaint with f-bombs.
Grassley, meanwhile, informed the committee about various efforts to contact the last-minute accusers and noted that the attorneys for Deborah Ramirez were still refusing to communicate with the committee. He then reminded his colleagues that Ford, oddly enough, had testified that she had been unaware that the committee was willing to interview her in California, suggesting that her attorneys were not on the up-and-up. “This has never been about the truth,” Lindsey Graham observed. “This has been about delay and destruction. And if we reward this, it is the end of good people wanting to be judges. It is the end of any concept of the rule of law. It’s the beginning of a process that will tear this country apart.”11
Two hours into the committee meeting, Senator Coons delivered his prepared statement.12 He addressed all the members of the committee, but he had a specific target in mind—Jeff Flake. Before the hearings the day before, he said, he had prayed for Christine Blasey Ford, for Brett Kavanaugh, and for everyone involved in the process. After the committee’s failure to handle the difficult situation creditably, he said, he was now praying for the nation. Coons insisted that the release of Ford’s allegation to the press—for which he offered no explanation except to say that it was not the work of Senator Feinstein or her staff—was free of partisan taint, and he argued that an additional FBI investigation, limited to one week, would not occasion undue delay but would get to the bottom of the remaining questions about Ford’s allegations and perhaps others—even those of “varying credibility.” He closed by reminding Senator Flake of his continued concerns about the scope of executive power, and he warned that, after the previous day’s “testim
ony full of rage and partisanship and vitriol,” confirming Kavanaugh without a bipartisan investigation of the allegations would undermine the legitimacy of the Court, placing “an asterisk” after Kavanaugh’s name.
When Coons completed his speech, Jeff Flake left the room, motioning for Coons to follow him. White House observers watching on C-SPAN were texting frantically to figure out what was going on.
Over the next two hours, most of the dais cleared as senators vying for Flake’s ear began collecting in the anteroom, an L-shaped space off of the Democrats’ side of the hearing room with a small conference table and a lavatory. In the narrow corridor sloping down from the anteroom to the hallway is a booth for making private telephone calls.
The anteroom and corridor were so crowded with dozens of senators and staff members that the door from the hallway could not be opened, and the room became unbearably hot. A few noted with amusement that the senators were crammed into the corridor while the staff sat around the conference table, but the senators kept pairing off and retreating to the corridor for private conversations, displacing the staff who were there. Hatch and his counsel were in the lavatory on the phone with the American Bar Association, trying to sort out the confusion caused by its president’s anti-Kavanaugh letter. Coons had cornered Flake, trying to convince him to demand a supplemental investigation in exchange for voting the nomination out of committee.
In the epic, hours-long fight outside the meeting room, fistfights nearly broke out. One senator told another that he wanted to wring his neck. A staffer who was bringing lunch to her hungry boss found herself in the middle of the scrum, with Ted Cruz inadvertently standing on her foot and Sheldon Whitehouse spraying her with saliva as he debated a colleague. More staffers were huddled in the hallway outside as savvy reporters started to realize where the action was. Every few minutes a senator would suggest clearing the area of staffers, since the fighting between senators was getting so personal, but the configuration of the anteroom and the large number of senators and staff made that impossible. Veteran staffers had never seen anything so chaotic in the Senate.
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