Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court
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38. Eugene Scott, “The virginity defense is a reminder of our ignorance about sexual violence,” Washington Post, September 25, 2018, https://www.washingtonpost.com/politics/2018/09/25/virginity-defense-is-reminder-our-ignorance-about-sexual-violence/.
39. Aaron C. Davis, Emma Brown, and Joe Heim, “Kavanaugh’s ‘choir boy’ image on Fox interview rankles former Yale classmates,” Washington Post, September 25, 2018, https://www.washingtonpost.com/investigations/2018/09/25/ea5e50d4-c0eb-11e8-9005-5104e9616c21_story.html.
40. Andrew Cohen, “Brett Kavanaugh Has Already Disqualified Himself,” New Republic, September 24, 2018, https://newrepublic.com/article/151359/brett-kavanaugh-already-disqualified.
41. TicToc by Bloomberg (@tictoc), “Michael Avenatti says his yet-unnamed client ‘with credible information regarding Judge Kavanaugh’ has been fully vetted, and that he’s spoken to multiple other witnesses bloom.bg/2O65Xwq,” Twitter, September 24, 2018, 4:10 p.m., https://twitter.com/tictoc/status/1044363400808026112.
42. Tom Elliott (@tomselliott), “Avenatti: Kavanaugh saying he was a virgin in HS ‘shows he’s lying.’ ‘Does that mean he performed oral sex or had oral sex performed on him? . . . Does he want America to believe that the only thing he did until well into his college years was effectively kiss or French kiss?’ ” Twitter, September 24, 2018, 6:38 p.m., https://twitter.com/tomselliott/status/1044400627667881984.
43. Natasha Korecki, “Avenatti stars in ‘avenging angel’ role,” Politico, September 24, 2018, https://www.politico.com/story/2018/09/24/michael-avenatti-kavanaugh-2020-trump-838149.
44. Chris Woodyard and Jorge L. Oritz, “Third Kavanaugh accuser, a former US Mint employee, ‘100 percent credible,’ Avenatti says,” USA Today, September 24, 2018, https://www.usatoday.com/story/news/politics/2018/09/24/brett-kavanaugh-avenatti-third-accuser-emerge-48-hours/1416699002/.
45. Ben Domenech, “This is Just a Smear Campaign Now,” The Transom, September 24, 2018.
46. “Quotation of the Day: Court Vacancy in Election Year Jolts the Parties,” New York Times, June 28, 2018, https://www.nytimes.com/2018/06/28/todayspaper/quotation-of-the-day-court-vacancy-in-election-year-jolts-the-parties.html.
47. Kate Kelly and David Enrich, “Yearbook ’83: Football, Kegs and Innuendo,” New York Times, September 25, 2018, A1, https://www.nytimes.com/2018/09/24/business/brett-kavanaugh-yearbook-renate.html.
48. Mollie Hemingway, “New York Times Hid Multiple Key Facts in Kavanaugh Yearbook Hit,” The Federalist, September 25, 2018, https://thefederalist.com/2018/09/25/new-york-times-hid-multiple-key-facts-in-kavanaugh-yearbook-hit/.
49. Mark Gauvreau Judge, Wasted: Tales of a Gen X Drunk (Center City, Minn.: Hazelden, 1997).
50. Mark Gavreau Judge, If It Ain’t Got That Swing: The Rebirth of Grown-Up Culture (Dallas: Spence Publishing, 2000).
51. Gabriel Pogrund, Carol D. Leonnig, and Aaron C. Davis, “ ‘How’d you find me?’: Mark Judge has been holed up in a beach house in Delaware amid a media firestorm,” Washington Post, September 24, 2018, https://www.washingtonpost.com/investigations/howd-you-find-me-mark-judge-has-been-holed-up-in-a-beach-house-in-delaware-amid-a-media-firestorm/2018/09/24/9d4829aa-c041-11e8-be77-516336a26305_story.html.
52. Rachel Kurzius, “Protesters Confront Sen. Ted Cruz at Fiola, Changing, ‘We Believe Survivors,’ ” DCist, September 24, 2018, https://dcist.com/story/18/09/24/protesters-confront-sen-ted-cruz-fiola/.
53. Peter Doocy (@pdoocy), “NEW: Sen. Feinstein, D-Ca, just told me ‘I have no way of knowing’ if Dr. Ford is actually going to show up to Kavanaugh hearing Thursday – if outside counsel is asking the questions,” Twitter, September 25, 2018, 12:05 p.m., https://twitter.com/pdoocy/status/1044664321815515137.
54. James Hohmann (@jameshohmann), “Republican leadership planning to keep the Senate in session all weekend to confirm Kavanaugh as quickly as possible,” Twitter, September 25, 2018, 12:49 p.m., https://twitter.com/jameshohmann/status/1044675292999094272.
55. Bre Payton, “Watch Joe Biden Call FBI Investigation Into Sexual Harassment Worthless,” The Federalist, September 26, 2018, http://thefederalist.com/2018/09/26/watch-joe-biden-call-fbi-investigations-sexual-harrassment-worthless/.
56. “Grassley: Committee Can and Should Investigate Ford Allegations,” Chuck Grassley Senate website, September 19, 2018, https://www.grassley.senate.gov/news/news-releases/grassley-committee-can-and-should-investigate-ford-allegations; Matt Shuham, “DOJ Issues Statement On Kavanaugh Background Check,” Talking Points Memo, September 19, 2018, https://talkingpointsmemo.com/news/doj-issues-statement-on-kavanaugh-background-check.
57. The Declaration of Julie Swetnick will be quoted throughout this chapter. Office of the Chairman, Senator Chuck Grassley, “Senate Judiciary Committee Investigation of Numerous Allegations Against Justice Brett Kavanaugh During the Senate Confirmation Proceedings,” United States Senate, November 2, 2018, exhibit 33, https://www.judiciary.senate.gov/imo/media/doc/2018-11-02%20Kavanaugh%20Report.pdf.
58. Michael Avenatti (@MichaelAvenatti), Twitter, September 26, 2018, https://twitter.com/MichaelAvenatti/status/1044960428730843136.
59. Byron York, “Finally, a day of reckoning for Michael Avenatti?” Washington Examiner, October 29, 2018, https://www.washingtonexaminer.com/opinion/columnists/byron-york-finally-a-day-of-reckoning-for-michael-avenatti.
60. “Schumer Floor Remarks On The Need to Reopen Judge Kavanaugh’s FBI Background Investigation,” Senate Democrats website, September 26, 2018, https://www.democrats.senate.gov/schumer-floor-remarks-on-the-need-to-reopen-judge-kavanaughs-fbi-background-investigation.
61. Michael E. Miller, Steve Hendrix, Jessica Contrera, and Ian Shapira, “Who is Julie Swetnick, the third Kavanaugh accuser?” Washington Post, October 1, 2019, https://www.washingtonpost.com/local/who-is-julie-swetnick-the-third-kavanaugh-accuser/2018/09/26/91e16ed8-c1bc-11e8-97a5-ab1e46bb3bc7_story.html.
62. Phil Mattingly and Manu Raju, “Collins privately raises concerns about new allegations, lack of subpoena for Kavanaugh friend,” CNN, https://www.cnn.com/2018/09/26/politics/susan-collins-brett-kavanaugh/index.html.
63. Christina Wilkie, “Kavanaugh denies latest accusation: ‘This is ridiculous and from the Twilight Zone,’ ” CNBC, September 26, 2018, https://www.cnbc.com/2018/09/26/kavanaugh-denies-allegation-this-is-ridiculous.html.
64. Jonathan Chait, “Julie Swetnick’s Allegations Likely to Finish Off Brett Kavanaugh,” Intelligencer, September 26, 2018, http://nymag.com/intelligencer/2018/09/julie-swetnicks-allegations-brett-kavanaugh-withdraw.html?gtm=bottom>m=bottom.
65. Marc Caputo and Natasha Korecki, “Ex-boyfriend filed restraining order against third Kavanaugh accuser,” Politico, September 26, 2018, https://www.politico.com/story/2018/09/26/ex-boyfriend-filed-restraining-order-against-kavanaugh-accuser-845348.
66. The Declaration of Julie Swetnick will be quoted throughout this chapter. Office of the Chairman, Senator Chuck Grassley, “Senate Judiciary Committee Investigation of Numerous Allegations Against Justice Brett Kavanaugh During the Senate Confirmation Proceedings,” United States Senate, November 2, 2018, exhibit 42, https://www.judiciary.senate.gov/imo/media/doc/2018-11-02%20Kavanaugh%20Report.pdf.
67. Ibid., 3.
68. Kate Sullivan, “Kavanaugh accuser’s attorney says GOP staff blew off scheduled call,” CNN Politics, September 25, 2018, https://www.cnn.com/2018/09/25/politics/deborah-ramirez-attorney-kavanaugh-cnntv/index.html.
69. John McCormack, “The Lasting Damage of the Kavanaugh Confirmation Battle, Weekly Standard, October 12, 2018, https://www.weeklystandard.com/john-mccormack/how-the-kavanaugh-battle-damaged-the-court-congress-the-media-and-the-country.
70. Christopher Wray, Letter to Jeff Sessions, Committee on the Judiciary, September 29, 2018, https://www.judiciary.senate.gov/imo/media/doc/2018-09-29%20Grassley%20to%20DOJ,%20FBI%20-%20Referral%20for%20Criminal%20Investigation.pdf.
71. Kasie Hunt, Leigh Ann Caldwell, Heidi Przybyla, and Frank Thorp V, “Senate p
robed new allegation of misconduct against Kavanaugh,” NBC News, September 26, 2018, https://www.nbcnews.com/politics/supreme-court/senate-probing-new-allegation-misconduct-against-kavanaugh-n913581.
72. Joe Tacopino, “Man apologizes for making false allegation against Kavanaugh,” New York Post, September 26, 2018, https://nypost.com/2018/09/26/man-apologizes-for-making-false-allegation-against-kavanaugh/.
73. Ellis Kim, “Federal Judge Who Dated Kavanaugh Defends Character, Dismisses Anonymous Tip,” National Law Journal, September 27, 2018, https://www.law.com/nationallawjournal/2018/09/27/d-c-federal-judge-denies-anonymous-tip-alleging-kavanaugh-abuse/.
74. Matt Naham, “ ‘I was Angry’: Woman Referred to DOJ and FBI for Alleged False Rape Claim Against Kavanaugh,” Law and Crime website, November 2, 2018, https://lawandcrime.com/high-profile/i-was-angry-woman-referred-to-doj-and-fbi-for-making-false-rape-allegation-against-kavanaugh/.
75. Jenna Johnson and Robert Costa, “ ‘It’s the culture war on steroids.’ Kavanaugh fight takes on symbolism in divided era,” Washington Post, September 24, 2019, https://www.washingtonpost.com/politics/its-the-culture-war-on-steroids-kavanaugh-fight-takes-on-symbolism-in-divided-era/2018/09/24/15ccc792-c028-11e8-be77-516336a26305_story.html.
Chapter Eight: Fear of Flying
1. Lara Bazelon, “A Sexist, Cowardly Ploy,” New York Times, September 25, 2018, A27.
2. Niels Lesniewski, “Outside Counsels Never Steal the Spotlight From Senators, Except When They Do,” Roll Call, September 27, 2018, https://www.rollcall.com/news/politics/outside-counsels-never-steal-spotlight-senators-except.
3. The transcript of the hearing will be cited throughout this chapter. “Senate Judiciary Committee Hearing on the Nomination of Brett M. Kavanaugh to be an Associate Justice of the Supreme Court, Day 5, Focusing on Allegations of Sexual Assault, Part 1,” CQ Transcriptions, September 27, 2018.
4. Sam Reed, “Is There a Symbolic Meaning Behind Dr. Blasey Ford’s Blue Suit?” InStyle, September 28, 2018, https://www.instyle.com/news/christine-blasey-ford-anita-hill-blue-suits.
5. The term “victim” is a legal term of art that does not presume guilt on the part of the accused, but is used in sex crimes units for anyone alleged to have been assaulted.
6. Yvonne Wingett Sanchez, Michael Kiefer, and Ronald J. Hansen, “Who is Rachel Mitchell? A prosecutor who ‘comes from the point of view where you believe victims,’ ” AzCentral website, September 26, 2018, https://www.azcentral.com/story/news/politics/arizona/2018/09/26/rachel-mitchell-arizona-prosecutor-who-question-christine-blasey-ford-brett-kavanaugh-supreme-court/1432244002/.
7. MSNBC Live with Velshi and Ruhle, MSNBC via archive.org, September 27, 2018, https://archive.org/details/MSNBCW_20180927_150000_MSNBC_Live_With_Velshi_and_Ruhle/start/2025/end/2085.
8. Dan Merica, “Democrat apologizes for fundraising off Kavanaugh allegations,” CNN, September 27, 2018, https://www.cnn.com/2018/09/27/politics/mazie-hirono-brett-kavanaugh-fundraising/index.html.
9. Julie Bykowicz, “Sen. Kamala Harris Blankets Facebook With Anti-Kavanaugh Ads,” Wall Street Journal, September 26, 2018, https://www.wsj.com/livecoverage/campaign-wire-2018-midterms/card/1537991168.
10. Cokie Roberts, “Kavanaugh Confirmation Hearing,” Good Morning America, ABC via archive.org, September 27, 2018, https://archive.org/details/KGO_20180927_140000_Good_Morning_America.
11. Until 2007 the home belonged to Sylvia Randall, who listed it as her office address for her psychotherapy practice, including couples therapy. Her name is still listed in many directories for the property. Presumably Ford’s hosting of interns is done free of charge, given the local restrictions on subleasing. The minimum lot size for an attached second dwelling unit is at 9,450 square feet. The Fords’ lot is 7,000 square feet. 18.12.070(b)(2).
12. “Live ABC News Kavanaugh Confirmation Hearing,” Good Morning America, ABC via archive.org, September 27, 2018, https://archive.org/details/KGO_20180927_140000_Good_Morning_America/start/5400/end/5460.
13. “Questioning of Christine Blasey-Ford to Resume Shortly,” Today, NBC via archive.org, September 27, 2018, https://archive.org/details/KNTV_20180927_140000_Today/start/5820/end/5880.
14. Office of the Chairman, Senator Chuck Grassley, “Memorandum Re: Senate Judiciary Committee Investigation of Numerous Allegations Against Justice Brett Kavanaugh During the Senate Confirmation Proceedings,” November 2, 2018 (Exhibit 2, Resume of Dr. Christine Blasey).
15. Jeffrey Toobin, Inside Politics, CNN via archive.org, September 27, 2018, https://archive.org/details/CNNW_20180927_160000_Inside_Politics/start/2760/end/2820.
16. “Brett Kavanaugh, Christine Blasey Ford Testify At Senate Hearing,” NBC News, September 27, 2018, http://mms.tveyes.com/transcript.asp?PlayClip=FALSE&DTSearch=TRUE&DateTime=09%2F27%2F2018+12%3A43%3A00&market=m100&StationID=165.
17. Kyle Drennen, “Kelly Tells NBC Panel: ‘The Media is Not Exactly in Kavanaugh’s Corner,’ ” MRC NewsBusters, September 27, 2018, https://www.newsbusters.org/blogs/nb/kyle-drennen/2018/09/27/kelly-tells-nbc-panel-media-not-exactly-kavanaughs-corner.
18. James Poniewozik, “Two Voices with a Noticeable Contrast in Volume,” New York Times, September 28, 2018, A16.
19. Steve Schmidt (@SteveSchmidtSES), “Every GOP campaign strategist and Hill staffer wishes they had the button to open the trap door under Rachel Mitchell’s chair. What a total and complete Political disaster for Republicans,” Twitter, September 27, 2018, 9:16 a.m., https://twitter.com/steveschmidtses/status/1045346483564949506.
20. Mimi Rocah, Andrea Mitchell Reports, MSNBC, September 27, 2018, https://archive.org/details/MSNBCW_20180927_160000_Andrea_Mitchell_Reports/start/3000/end/3060.
21. Joyce Vance, MSNBC Live with Craig Melvin, MSNBC, September 27, 2018, https://archive.org/details/MSNBCW_20180927_170000_MSNBC_Live_With_Craig_Melvin/start/60/end/120.
22. Steve Schmidt (SteveSchmidtSES), “The GOP members are putting on a clinic for political cowardice. Will not one of them, while watching a hectoring and minimally prepared Rachel Mitchell, harass Dr. Ford, step up and take back their time and denounce this kangaroo court?” Twitter, September 27, 2018, 9:54 a.m., https://twitter.com/steveschmidtses/status/1045355909428531201.
23. Saturday Night Live, “Kavanaugh Hearing Cold Open – SNL,” YouTube, September 29, 2018, https://www.youtube.com/watch?v=VRJecfRxbr8.
24. Katz was an active Democrat. She and her law partner were slated to host a “Cocktails and Conversation” fundraiser October 1 for Senator Tammy Baldwin, with tickets going for up to $1,000, but she had to take her name off the invitations after the Blasey Ford story broke to avoid the suggestion of partisanship.
25. Fred Lucas, “The Political Pasts of the Lawyers Representing Kavanaugh Accusers,” Daily Signal, October 3, 2018, https://www.dailysignal.com/2018/10/03/the-political-pasts-of-the-lawyers-representing-kavanaugh-accusers/.
26. Laura Collins, “Exclusive: ‘Christine Ford threw her under the bus.’ Strained ‘sex assault’ witness Leland Keyser is seen for the first time as close family member confirms she did NOT corroborate school friend Ford’s story to FBI,” Daily Mail, October 4, 2018, https://www.dailymail.co.uk/news/article-6235463/Christine-Fords-high-school-friend-blindsided-named-corroborating-witness.html.
27. R. Edward Geiselman and Ronald P. Fisher, “Interviewing Witnesses and Victims,” UCLA Psychology, https://www.psych.ucla.edu/sites/default/files/documents/other/Current_CI_Research.docx.
28. Cynthia Alskne, MSNBC Live with Katy Tur, MSNBC, September 27, 2018, https://archive.org/details/MSNBCW_20180927_180000_MSNBC_Live_With_Katy_Tur/start/960/end/1080.
29. Ashley Parker and Brian Williams, MSNBC Live with Katy Tur, MSNBC, September 27, 2018, https://archive.org/details/MSNBCW_20180927_180000_MSNBC_Live_With_Katy_Tur/start/2040/end/2100.
30. Loftus is not only the author of a leading treatise on memory, she is frequently consulted as a legal expert on the malleability of memory. High-profile cases in which she consulted includ
e the cases of Rodney King, O. J. Simpson, and Ted Bundy.
31. American Psychological Association, “Gold Medal Award for Life Achievement in the Science of Psychology,” American Psychologist 68, no. 5 (2013): 331–33, https://pdfs.semanticscholar.org/4415/13f11e489b1478a326debb7720b74322c7fa.pdf; Steven J. Haggbloom et al., “The 100 Most Eminent Psychologists of the 20th Century,” Review of General Psychology 6, no. 2 (2002): 139–52.
32. Lawrence Patihis et al., “Are the ‘Memory Wars’ Over? A Scientist-Practitioner Gap in Beliefs About Repressed Memory,” Psychological Science 25, no. 2 (February 2014): 519–30, https://journals.sagepub.com/doi/abs/10.1177/0956797613510718.
33. Lisa D. Butler et al., “Meditation with yoga, groups therapy with hypnosis, and psychoeducation of long-term depressed mood: a randomized pilot trial,” Journal of Clinical Psychology 64, no. 7 (2008): 808.
34. John T. Wixted et al., “Initial Eyewitness Confidence Reliably Predicts Eyewitness Identification Accuracy,” American Psychologist 70, no. 6 (2015): 515–26, http://wixtedlab.ucsd.edu/publications/wixted2015/American_Psychologist_in_press.pdf.
35. Studies have shown that inaccurate but highly confident eyewitness identification is a serious problem in the criminal justice field, accounting for 70 percent of the more than three hundred exonerations of men and women based on DNA evidence. This has led some researchers to argue against the use of eyewitness information at trial altogether.
36. Others suggested that it is possible to “beat the test” if you are a psychopath or a highly skilled liar.
37. Jessica Contrera and Ian Shapira, “Christine Blasey Ford’s family has been nearly silent amid outpouring of support,” Washington Post, September 27, 2018, https://www.washingtonpost.com/local/christine-blasey-fords-own-family-has-been-nearly-silent-amid-outpouring-of-support/2018/09/26/49a3f4a6-c0d6-11e8-be77-516336a26305_story.html.