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

by Mollie Hemingway

  At a rally in Mississippi, President Trump did the unthinkable: he made fun of Ford’s testimony, to which the media had ascribed almost biblical authority and which Kavanaugh’s defenders were terrified to attack directly. “Thirty-six years ago this happened. I had one beer, right? I had one beer,” the president joked. “How did you get home? I don’t remember. How’d you get there? I don’t remember. Where is the place? I don’t remember. But I had one beer. That’s the only thing I remember.”2 The press was predictably appalled at his off-teleprompter remarks,3 as was Senator Ben Sasse, who denounced the president on the Senate floor in an eighteen-minute speech about the #MeToo movement: “His mockery of Dr. Ford last night in Mississippi was wrong—but it doesn’t really surprise anyone. It’s who he is.” He added that he had previously urged the president to nominate someone other than Kavanaugh. “I urged the president to nominate a woman.” Nevertheless, it was clear that at this point, the president’s challenge to Ford’s credibility resonated with many Americans.

  The Republicans on the Senate Judiciary Committee had insisted that their investigators were as capable of investigating the allegations as the FBI background checkers. They had the same subpoena powers, and the penalty for lying to them was the same as the penalty for lying to the FBI. In fact, they had already referred Senator Whitehouse’s constituent for investigation by the FBI for his “rape boat” allegations. Now, as the FBI investigation began to wrap up, the Democrats realized that the Bureau had simply taken statements from witnesses and compiled them in a report, much as the Senate Judiciary Committee would have done. The report was expected Wednesday night, and McConnell set up a key procedural vote for Friday.

  It was time to move the goalposts again. That night, having received the hearing they asked for, as well as an FBI inquiry, Democrats attacked the breadth of the investigation. In another New Yorker article, Jane Mayer and Ronan Farrow complained that the FBI had not interviewed all of Kavanaugh’s Yale classmates.4

  Don McGahn, who received updates during the investigation, kept senators informed about its progress. When the investigation was completed, the report was kept in the Office of Senate Security, a secured room. The report could not be photocopied, and only senators and selected committee staff members from each party could view it.

  The unusual security measures were a response to the Democrats’ handling of confidential documents in the first hearings. Cory Booker’s “Spartacus” incident changed the way the committee handled secure information and caused many senators and their staff to worry that they might not be given access to sensitive executive branch documents for future confirmations. Despite the high security, the FBI files were more readily available than they usually are in judicial vettings. The Office of Senate Security was open around the clock for senators, and any senator, not only Judiciary Committee members, could see the file.

  Senators were guided in their review of the lengthy file by the Judiciary Committee staff. Time slots were divided between Republicans and Democrats, and many senators went through the documents with colleagues. Mike Lee, for instance, read from a single shared copy of the documents to a group of colleagues that included Jeff Flake, Susan Collins, and Ben Sasse. Flake and Collins returned many times to review the documents, each spending several hours looking at the supplemental information, including the notes from the “tip line,” which anybody could call to report information about the relevant parties. They were satisfied that there was no corroborating evidence to support the allegations. In fact, there was new information that cast doubt on the original accusations.

  Leland Keyser reportedly told the investigators that she had felt pressure to revise her statement about the alleged incident. After Ford testified, Keyser submitted an additional statement to the Senate Judiciary Committee indicating that although she did not remember the event that Ford described—as she had previously stated—she nevertheless believed Ford. She reportedly decided to amend her original statement after communications with persons who were friends of both Keyser and Ford. One of these persons, the Wall Street Journal reported, was Monica McLean, the retired FBI agent who had been identified in the letter from Ford’s ex-boyfriend as the person Ford coached on passing a polygraph when McLean was applying for a position with the FBI.5 (McLean told ABC News that she had never received assistance of any kind in connection with a polygraph.)6 The supplemental FBI investigation reportedly included text messages from McLean to Keyser encouraging her to amend her first statement with the statement of belief in Ford’s story, a charge McLean denied.

  The inclusion of Leland Keyser in the initial story caught the attention of high school friends, who remembered Keyser as a legendary and well-liked athlete. She and Ford had been good friends. If she had remembered the party, or anything approximating it, she would have said so.

  Those who knew the women thought it strange that Ford had thrust Keyser into the spotlight without any warning. Keyser reportedly felt “blindsided.” High school friends were particularly bothered that Ford had brought attention to Keyser’s health problems—neck and back surgeries and their pain management, which had sidelined her impressive career as the Georgetown University golf coach—in front of millions watching the hearings. Family members told the Daily Mail that the pressure to confirm Ford’s allegation and the slight in front of the Senate had upset Keyser.7

  These reports were not entirely accurate, and what actually happened was both simpler and more complex. Keyser simply could not remember anything like what Ford described, and saying so was difficult.

  Keyser, a registered Democrat, was opposed to Brett Kavanaugh’s confirmation to the Supreme Court. In 2018 she was developing a liberal podcast with Bob Beckel, the Democratic political operative who was her first husband and the father of her two children. She was completely taken aback when the Senate Judiciary Committee asked her about Ford’s allegation. She wished she could have corroborated the story but was unable to. She couldn’t recall even meeting Kavanaugh.

  Keyser and Ford, who met in seventh grade, were part of a close circle of friends at Holton-Arms who still keep in touch. In their youth, Keyser felt protective of Ford. She drove her around in a wood-paneled station wagon. Ford’s other regular driver was her brother Tom Blasey, who was only a year older but in the same grade.

  The summer of 1982 was one that Keyser remembered well. Her grandmother had introduced her to golf only the previous summer, and she immediately fell in love with the game and the life lessons it afforded her. She had gotten her dream job at Congressional Country Club, working for the renowned Bob Benning in the golf pro shop. The schedule was crazy—sometimes as many as sixty hours a week. Her free time was spent on the golf course, playing until dark. She loved the challenge of the sport, which would shape her life, her relationships, and even her career.

  That summer, instead of hanging out with her friends, she focused on golf and playing tournaments. Athletics and Holton-Arms were central to her life then. Her immediate family didn’t have much money, so her grandparents were paying for school. She appreciated the opportunity and didn’t want to squander it. After Holton, she attended the University of Virginia and became the first person in her family to graduate from college.

  Keyser had attended Ford’s wedding, but apart from a brief exchange at a gathering of high school friends, she had had little interaction with her in the ten years prior to the allegation about Kavanaugh. The past five years in particular had been difficult. Her health challenges included daily chronic pain and addiction, and she had recently had a knee replaced. Her second marriage had ended in divorce, she had moved twice, her mother and father had passed away, and two siblings had died from addiction. Keyser herself had been in recovery for years, and her twelve-step program kept her keenly aware of her daily challenges.

  On June 28, 2018, the day after Justice Kennedy announced his retirement, Ford sent Keyser a Facebook Messenger note out of the blue. It read, “Kinda freaking out that Brett K who trie
d to rape me in high school may be going on to the Supreme Court.” It was the first time Keyser had ever heard about the alleged assault, and she found the message both surprising and alarming.

  On Monday, September 17, the day after the Washington Post story about Ford was published, Keyser’s housekeeper came up to her bedroom to tell her that a friend was waiting for her downstairs. She came down to find Emma Brown, the reporter from the Post, sitting at her kitchen table. Brown identified herself and began talking about the night of the alleged assault. When asked, Keyser said she believed her friend Christine. When Brown indicated that Keyser herself had supposedly been at the gathering, however, Keyser quickly texted two friends of hers and Ford’s, letting them know there was a reporter in her kitchen and asking if they knew why. While the friends already knew who the reporter was, they told Keyser to speak to no reporters at all, so she asked Brown to leave.

  As interest in Keyser mounted, press vehicles blocked the road to her home, and she was forced to move into a hotel. Keyser had no idea she was going to be named as a participant at the gathering in question, had never spoken to Ford about it, and had not heard from Ford or her lawyer either before or immediately after the story was published. She tried to get in touch with Ford for help understanding why she was being targeted but couldn’t reach her until Wednesday, September 19, and then only briefly. Her greatest concerns were Ford’s current condition and trying to understand how she herself had been involved. She was also worried that she may have ignored Ford’s cries for help. Ford said she had never told her about what happened. She tried to talk some more about the alleged incident so she might recall it better. Other than suggesting Keyser was the driver that night, Ford had nothing else to offer. It later struck some friends of Keyser as strange, given the gravity of the accusation, that Ford’s lawyer, Debra Katz, never contacted her before she was named as a witness.

  Displaced from her home, Keyser was operating on the assumption that Ford’s account was correct. She spent the time in the hotel trying to remember anything about Kavanaugh, the night in question, her involvement, and the general geography of where the party might have taken place. She looked at photos of Kavanaugh from the internet and yearbooks to try to help her remember anything, but she kept coming up dry.

  The Senate Judiciary Committee, which by this point had heard that Keyser was one of Ford’s named witnesses, sent her an email requesting information. A friend of hers and Ford’s asked to see the email. After reading it, the friend was relieved it wasn’t a subpoena and hoped Keyser would not respond to it. At this point, Keyser thought she was expected either to support the entire account or to say nothing. She was loyal to her friends; she loved Ford and wanted to support her; and she did not want Kavanaugh on the Court for the next thirty years. She also felt bound to tell the truth. After much effort Keyser knew two things: she had no recollection of the event Ford described, and she did not know Brett Kavanaugh. She felt that it was important to say this, which she did, through her attorney, in her first written statement submitted to the Senate Judiciary Committee. After the statement went public, Keyser texted Ford on September 22, “I wish I could have been more supportive and that my statement was more helpful.”

  Keyser was upset that Kavanaugh repeatedly referred to her statement in his testimony to “refute” Ford’s account. Keyser did not recall this event and was convinced she did not know Kavanaugh. At this time, however, she did not doubt Ford’s account. She informed friends and her lawyer in text messages that Kavanaugh’s use of her statement angered her. She had already told a reporter that she believed Ford and felt this statement had been overlooked. While she did not want to reiterate her belief, she stood by her statement that she did not recall the event or know Kavanaugh.

  Perhaps motivated by Keyser’s texts, one of these friends, a woman, called Keyser’s lawyer and insisted that he and Keyser had both perjured themselves. She was certain that Keyser must have known Kavanaugh. After all, she reasoned, Keyser had dated Mark Judge, and Judge was always with Kavanaugh. In fact, however, Keyser had gone on only one date with Judge, to a very large house party, and she had no recollection of Kavanaugh’s being there or of ever meeting him.

  Keyser’s lawyer called for an immediate meeting, and he and Keyser went to the friend’s home the next day, Friday, the twenty-eighth. She again insisted that Keyser must have known Kavanaugh since she went out with Mark Judge, and had therefore committed perjury in her statement. Angered that her friend was pushing her to amend her statement, Keyser emphatically maintained that it was accurate. She really did have no recollection of Kavanaugh even after a very diligent effort to try to remember him. Getting another friend on the phone, Keyser reiterated that she stood by her statement and was not going to lie to the Senate Judiciary Committee. Nonetheless, while she would not change what she had said, Keyser decided to let the committee know she still believed her friend. That same night, when the supplemental FBI investigation was announced, Keyser submitted an additional statement through her lawyer to the committee indicating her willingness to participate in the investigation. She reaffirmed that she did not know Kavanaugh and had no recollection of the gathering, but she stated that she nonetheless believed her friend.

  Keyser told the FBI investigators the same thing: she didn’t know Kavanaugh and didn’t remember the event described by Ford. She felt relief at having followed through on her desire to cooperate with the legal process. And then she was able to do something she hadn’t done since the ordeal had started—sleep, recover, and reflect.

  Over the next few days, Keyser again carefully reviewed all available pictures of Kavanaugh, went through maps of the area, and retraced her steps based on Ford’s statement and testimony. In addition to remembering more details of the summer of 1982, she also paid more attention to the news and the information that had been revealed about Ford’s allegations. Adding up the facts, she lost confidence in Ford’s account of the incident and came to the conclusion that she had to supplement her statement to the FBI. She asked her attorney to set that up.

  During the second interview, Keyser described the summer with much more detail, adding that she didn’t believe there was any way she was at this gathering. She expressed concern at the pressure she had felt to go along with the story or to keep quiet and told the FBI about the meeting with her friends on September 28 in which she had felt coerced to change what she said. She detailed certain parts of the story that didn’t make sense to her. She also expressed her concern that her statement might be discounted because of her addiction problems throughout her adult life, but she made sure to reveal those problems so the FBI would have all the facts it needed. Saddened that her testimony might affect the lives of her dear friends, she nonetheless felt compelled to ensure that her accounting was completely accurate. Notably, she did not express any of these concerns publicly, only confidentially with the FBI.

  Pressure to corroborate Ford’s story also came from outside Keyser’s circle of friends. Sara Corcoran, a journalist who was several years behind Ford and Keyser at Holton-Arms, published an aggressive and tasteless open letter that recounted the paralysis of Keyser’s high school boyfriend, Bill, in the Columbia Country Club pool. “I still remember the chaotic scene, the paramedics, and the shock of what happened. Our parents often warned us about diving into the shallow end or at any depth.” After that gruesome opening, Corcoran continued: “It was incredibly unfair to both of you that Bill broke his neck and died shortly thereafter. You were an inspiration to those of us young members at the club and students at Holton-Arms School. I am asking you [to be] an inspiration to us again by coming to the defense of Dr. Christine Blasey Ford.” Playing on the trauma and guilt she had tried to stir up, Corcoran went on, “I know it seems like it is easier to turn away and revisiting the past is never easy, but your statements harmed the validity of Dr. Ford. . . . There was nothing you could have done to save Bill from the fate that awaited him, but you can save Christine.”8
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  Ashley Kavanaugh had two major events to run as town manager. The first was on Independence Day. Her husband had missed it because of an interview with the vice president about the Supreme Court appointment. Her second event was a big neighborhood block party, scheduled for Sunday, September 30. It had already been rescheduled from the previous weekend because of rain. Even with all she was going through, and with the FBI investigation again pushing back the vote on her husband, she was determined to run the event, which had its largest turnout ever. Hoping to spare her neighbors the public scrutiny her family had been enduring, she asked the press if they’d be willing not to camp in front of their home that day, promising they wouldn’t use the occasion to try to sneak out. They honored her request.

  Ashley had found a psalm that gave her confidence to be in public: “Those who look to him are radiant; their faces are never covered with shame.”9 Her neighbors provided a moment of relief from the intense pressure of recent weeks. To a person, they were supportive and friendly, including those whom the Kavanaughs hardly knew and who weren’t in their camp politically.

  While their neighbors and the press detail showed exceptional grace and courtesy, Kavanaugh was blindsided by criticism from a surprising source. Breaking with the political reticence typical of Supreme Court justices, particularly with respect to a pending appointment, the retired justice John Paul Stevens fanned the “judicial temperament” flames by telling an audience of retirees in Florida that Kavanaugh’s emotional defense of his reputation had caused him to change his view of a judge he had previously praised. The ninety-eight-year-old jurist, who had months earlier called for a repeal of the constitutional right to keep and bear arms, declared that “for the health of the court” Kavanaugh ought not to be confirmed.10

  That evening, Kavanaugh published an op-ed in the Wall Street Journal, another unprecedented act for a Supreme Court nominee. As the media echoed Democratic talking points about his demeanor at the hearing, Kavanaugh sought to assure the public that his temperament was sound: “I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad.” He further observed, “As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years.”11