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

by Mollie Hemingway

  The media continued to ignore community chatter, especially regarding the notable absence of Ford’s family from the ranks of her public supporters. Neighbors, friends, and country club members got the distinct impression that while Ford’s family supported her, they were relieved that her uncorroborated story hadn’t destroyed Kavanaugh.

  Things were going even worse for Julie Swetnick. NBC’s Kate Snow recorded an interview with her on Sunday, to be broadcast the following day.28 The delay was reportedly to allow the network to verify her statements and decide what to air, although NBC ultimately aired the interview despite not being able “to independently verify her claims.” The network acknowledged that “there are things that she told us on camera that differ from her written statement last week,” and that she was even “unclear about when she first decided to come forward.” Since the publication of her sworn allegation that Kavanaugh was part of a long-running gang-rape cartel, Swetnick’s credibility had been in doubt. Ex-boyfriends alerted authorities to her character problems; it was revealed that a former employer had fired her over falsified job history and her own sexual impropriety on the job; and curious ties to Debra Katz’s firm began popping up.

  The interview, conducted under soft lighting, began with Swetnick’s describing herself as “shy” and “private,” “not somebody who follows the news,” “not political at all.” Her allegation against Kavanaugh bore resemblances to the others. He was a mean and sloppy drunk. He tried to “shift girls’ clothing,” as Ford had previously alleged. Like Ford, she cited four witnesses, none of whom was able to corroborate her account.

  Swetnick’s story, like Ford’s, had changed, although Swetnick called her own earlier sworn declaration into question. She had earlier sworn that Kavanaugh and Judge were spiking the punch, but now told Snow that they were simply handing out cups and were near the punch. She had written under oath that she saw Kavanaugh and Judge waiting in line for their turn to rape a drugged girl. She now told Snow that she could be sure only that they were standing not in lines but in groups of boys outside rooms like the one she later was raped in, adding that “it’s just too coincidental.” She had previously sworn that Kavanaugh and Judge were present at her rape. She now told Snow only that she had seen them earlier at the same party, and she echoed Ford’s most salient memory: “I could hear them laughing and laughing.” She also called into question her own timeline of the events. In her affidavit, Swetnick stated that she had attended the parties from 1981 to 1983. Yet she told Snow that she stopped attending after being raped at one of the parties at age nineteen. She turned twenty in 1982, so if her NBC interview is to be believed, her earlier date range was incorrect. Swetnick also said that Kavanaugh and his classmates wore their school uniforms to the parties because “they were very proud” of Georgetown Prep. But that school had only a dress code, not a uniform, and the boys couldn’t wait to get out of their required jackets and ties.

  Swetnick also gave the network the names of four people she said knew about the gang rapes. The network found that one was dead, another denied knowing a Julie Swetnick, and the other two never responded to NBC’s inquiries. The next day, even Cynthia Alksne said that Swetnick was not credible and should go away.29

  Despite Swetnick’s obvious credibility problems, many in the media continued to air her accusation. Senate Democrats sent a letter to the FBI and White House stating that Swetnick’s allegations should be investigated thoroughly along with Ford’s and Ramirez’s.30

  As if Swetnick’s interview was not damaging enough, Avenatti’s other “witness” turned out to be a hoax. He had previously claimed to have additional witnesses of the conduct described by Swetnick, and tweeted a redacted affidavit from one on Tuesday, October 2, just in time to bolster Swetnick’s flagging credibility.31 In the affidavit, the witness stated that she had known Kavanaugh since 1980 and had attended at least twenty house parties with him, as well as Beach Week. She alleged that he would “ ‘spike’ the ‘punch’ at house parties I attended with Quaaludes and/or grain alcohol” to reduce girls’ resistance to sexual advances. She also said that, while drunk, Kavanaugh would be “overly aggressive and verbally abusive toward girls.” While Avenatti refused to give this witness’s name to the Senate Judiciary Committee, he had passed it on to NBC two days earlier. The network interviewed the witness who, as NBC delicately put it, had “apparent inconsistencies” with her earlier sworn statement.32 The inconsistencies in fact completely undercut the earlier statement.

  As for who had spiked the punch, she said, “I didn’t ever think it was Brett.” When NBC inquired about whether Kavanaugh had ever acted inappropriately with women, she said, “No.” While she described a heavy-drinking party scene that Kavanaugh and Judge were a part of, she also denied that Kavanaugh had been abusive toward women when she was there, adding, “I would not ever allow anyone to be abusive in my presence. Male or female.” She placed much of the blame for the false statements in the declaration on Avenatti himself, saying she had only skimmed it before signing and that she had been very clear with Avenatti about facts like not having seen anyone spike the punch. She finally decided to break with Avenatti altogether, telling NBC, “I do not like that he twisted my words.”

  This news should have been sensational, but as other outlets ran with the story of Avenatti’s apparently corroborative second affidavit, NBC stayed silent, not breaking the news of the witness’s disavowal until October 25, a baffling newsroom decision that suggests the network was loath to publish more exculpatory reports for Kavanaugh. The report was ultimately released the same day the Senate Judiciary Committee referred both Swetnick and Avenatti to the Department of Justice to be investigated for making false statements to the committee in violation of federal law.33

  The Ramirez story did not fall apart so much as it never held together to begin with. A woman, who by her own admission had been incoherently drunk during the incident she described, spent a week in September with lawyers coaching her, and the only assertions she could make were that what could have been a real penis was in her face and that Brett Kavanaugh was in the room and moved his hips. To bolster the threadbare story, the media ran stories of Kavanaugh’s other college hijinks.

  On the evening of October 1, the same day NBC ran the disastrous Swetnick interview, the New York Times ran a front-page story about a bar scuffle Kavanaugh got into while he was a college student at Yale that involved throwing ice.34 Senator Hirono declared the episode “very relevant” and demanded that the FBI investigate.35 Friends were aghast at the story told by Chad Ludington, saying that he was not close to Kavanaugh and that the event was overblown.

  The lead author of the piece was Emily Bazelon, a former Slate writer who had published numerous articles deploring conservative jurisprudence and had announced her opposition to Kavanaugh’s nomination earlier that summer. By normal journalistic standards, Bazelon’s personal opinions about Kavanaugh at least should have been disclosed. The Times later admitted the error; while it still stood by the story, it stated, “[Bazelon] is not a newsroom reporter. . . . In retrospect, editors should have used a newsroom reporter for that assignment.”36 But it was startling that the story was published at all, let alone on the front page of a paper whose own tagline suggests that some news is in fact not fit to print.

  On the same day the Times embarrassed itself by magnifying the trivial, NBC revealed the lengths to which the media were prepared to go to resuscitate Deborah Ramirez’s discredited allegation. Heidi Przybyla and Leigh Ann Caldwell reported that Kavanaugh and his team had attempted to refute Ramirez’s story before it was published.37 If a man is asked to comment on an allegation against him of egregious sexual misconduct, it might be considered normal for him to try to clear his name before that allegation is published. In NBC’s view, however, Kavanaugh’s “personally talking with former classmates about Ramirez’s story in advance of the New Yorker article that made her allegation public” was sinister. It would have been more see
mly, it seems, to stand aside while a coordinated campaign was waged against him, without even calling friends to see if they would be willing to go on the record with their own testimony. (Ramirez’s many calls to classmates and week of being coached by her lawyers did not raise an eyebrow.)

  Przybyla and Caldwell revealed a series of private text messages between Kerry Berchem and Karen Yarasavage. Berchem, a partner at the powerful law firm Akin, Gump, Strauss, Hauer & Feld, was a year behind Kavanaugh and Yarasavage at Yale. The women were friends in college as well as friends of both Kavanaugh and Ramirez. The messages, which Berchem revealed without Yarasavage’s knowledge, are a record of Berchem’s increasingly heavy-handed attempts to dissuade Yarasavage from going on the record, at Kavanaugh’s request, to undermine Ramirez’s allegation.

  Berchem thought the messages showed that Kavanaugh was trying to discredit Ramirez as early as July and that his statement in an interview with the Judiciary Committee staff on September 25 that he had no “specific recollection” of interacting with Ramirez at Yarasavage’s wedding in 1997 was a lie. She summarized the messages in a memorandum, which she presented to Senator Blumenthal, who submitted it to the Senate Judiciary Committee. She also submitted the memorandum directly to the FBI. Disappointed that the FBI did not respond, she gave the messages to the press.38

  Berchem’s interpretation of the text messages as damaging to Kavanaugh is strained at best. After the announcement of Kavanaugh’s nomination in July, Yarasavage shared a number of college photos with Berchem, including one from her wedding rehearsal dinner in which Ramirez and Kavanaugh appear with Berchem, Yarasavage, and three other persons. Berchem argued that the texts show that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez. But the texts from July consist of shared photos and discussions about a get-together in August; there are no discussions of Kavanaugh.

  The messages show that Yarasavage sent the wedding photo to “Brett’s team” on September 22. Berchem concluded that Kavanaugh was lying three days later when he said, “I am sure I saw [Ramirez]” at the wedding but did not “have a specific recollection” of interacting with her.39 But having seen a photo of Ramirez and himself at Yarasavage’s wedding would not necessarily prompt a “specific recollection” of seeing her there.

  In fact, the texts themselves are not particularly relevant to the Ramirez investigation. What they do show is Berchem furiously lobbying Yarasavage to speak out against their old friend Kavanaugh. Berchem repeatedly tried to get Yarasavage to change her statement that she did not remember Ramirez’s talking about someone exposing himself to her, or at least remain silent.

  Yarasavage said the allegations against Kavanaugh were laughable. She had apparently dated him briefly and described what a gentleman he had been. “Just really hard for me to reconcile any of this,” she wrote. “When I say Brett was vanilla with me, I mean it. He turned his back when I changed in his room.” She added that she didn’t want to hurt either Kavanaugh or Ramirez, but “I know what I know about both people and I can only speak the truth.” She hoped that if she told Ronan Farrow how implausible she found the story, the New Yorker wouldn’t run it.

  Yarasavage received a call on Sunday, September 23, from “Brett’s guy”—one of his former clerks—apparently letting her know the New Yorker story was going to run after all. She told Berchem that Kavanaugh asked her to go on the record about the story, and that she was having trouble reaching anyone to speak to at the magazine. Berchem responded by suggesting that Yarasavage not go on record defending Kavanaugh. If Ramirez was telling the truth about Kavanaugh, “maybe that’s why [Ramirez] has had so many issues?” Yarasavage replied that she assumed any issues Ramirez had were with her father, so Berchem tried another tack.

  “You know that will kill your friendship,” she wrote. Yarasavage replied, “What friendship? I haven’t spoken to her in 10 years.” Berchem then offered some speculative psychological explanations for why Ramirez had not stayed in touch with Yarasavage, including “your family’s friendship with Brett.”

  After Yarasavage repeated that it was “odd that I never heard a word of this,” Berchem replied, “All I am saying is we all figured out how to survive. We had different ways. [Ramirez] does not seem to have survived all that well or particularly strongly. . . . If she is making these allegations now, either she has conviction they happened or she might be crazy. But if it’s the latter, and your commentary publicly makes it worse, would you really want that? . . . Bretz career is on the line. Maybe her life is on the line?” “Just be careful,” she concluded. “There would be no going back.”

  The day after the New Yorker story ran, Berchem was back at it with a text reading, “I wish I had told you what to do.” Yarasavage did not respond right away, and in the evening Berchem started in again. This time she speculated that Ramirez’s behavior at the Yarasavage wedding was a result of the alleged exposure years earlier. “You know that at your wedding, she clung to me and [redacted]? Yeh, she was part of the group but not really. She never went near them,” Berchem wrote.

  By the end of the exchange, Berchem had resorted to fear. She warned that Yarasavage and her husband would be targeted for personal attacks if they publicly supported Kavanaugh—“you and [redacted] are going to get crushed”—advising her that “you guys have to get prepared” because “[redacted] and others have a goddamne[d] . . . Vendetta.” Later she added, “If he put you up to saying stuff, you should consider disclosing. Don’t be the fall guys for him. Your own life/lives are being impaired.”

  Despite all these red flags, the NBC story relied heavily on Berchem’s version of events, paying little attention to the striking differences in the women’s opinions of Ramirez.

  It is difficult to overstate the pressure that Yale classmates were under at this time. Yarasavage describes in the texts to Berchem the harassment she and her classmates endured from the press—in particular, her difficulties interacting with Robin Pogrebin, a Yale classmate and New York Times reporter. According to Yarasavage, she called and spoke to her without disclosing she was speaking to her as a reporter, rather than as a friend. Yarasavage also had to consult a lawyer to respond to Pogrebin’s attempts to publish Yarasavage’s photo with Kavanaugh, which the reporter had obtained on Facebook.

  Politics had always been the subtext among this group of friends. But when Kavanaugh was nominated to the Court, it felt like political concerns obliterated relationships that had lasted for decades. One classmate and friend of Kavanaugh’s refused to be included on an early letter of support because his jurisprudence might threaten abortion rights. After the allegations came out she went on TV to call him a liar, billing herself as a Republican and college friend of his, an identification the media accepted uncritically.

  Despite the media’s credulity, none of these wild allegations ever came close to being proved. But a lack of evidence never seemed to keep them from being taken seriously. A man named Tad Low, the producer of a television show called Pants-Off Dance-Off, alleged that he attended a particularly debauched party at the fraternity Kavanaugh had joined as an undergraduate. Kavanaugh was no longer in college when this party took place. While the accuser admitted he had no evidence Kavanaugh was anywhere near the party, much less participating in any of the objectionable activity, he thought the FBI should dig around in Kavanaugh’s calendars and expressed concern that the FBI hadn’t taken his statements seriously.40

  Senator Chris Coons forwarded Mr. Low’s correspondence to Senator Grassley, who wrote a blistering response: “We’ve reached a new level of absurdity with this allegation,” which he called a “guilt-by-association tactic” that deserved “unqualified condemnation.” He asked Coons to consider whether he wanted to waste committee resources with such frivolous letters in the future.41

  Senator Lindsey Graham told a protester, “You’ve humiliated this guy enough and there seems to be no bottom for some of you.�
� The protester said if Kavanaugh would take a polygraph, “This would all be over.”

  That was too much for Graham, who retorted, “Why don’t we dunk him in water and see if he floats?”42

  CHAPTER ELEVEN

  Mrs. Collins Goes to Washington

  “Their goalposts keep shifting. But their goal hasn’t moved an inch,” said Mitch McConnell as he took to the Senate floor to denounce desperate attempts to sink Kavanaugh’s nomination.1 The effort to obstruct Kavanaugh’s confirmation had started with preposterous demands for documentation and progressed to last-minute sexual assault allegations by accusers who supposedly couldn’t fly to Washington, followed by new hearings to evaluate those allegations, which then required a supplementary FBI investigation. Then there were more increasingly outrageous allegations.

  The public mood was shifting as well. Despite Kavanaugh’s conviction on all charges by the media, elected officials were facing pressure to vote for confirmation, and the public was showing signs of exasperation. Republicans were livid over the delays and obstruction.