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

by Mollie Hemingway

  The chairman then explained the limitations of FBI investigations, which would simply take witness statements in the same manner the committee had done, with the same legal penalty for making false statements. He noted that the attorneys for those making the other high-profile accusations against Kavanaugh had not cooperated either, nor had they made any attempt to substantiate their claims.

  The ranking member, Senator Feinstein, followed with her own opening statement, admitting that she had kept Ford’s letter a secret for six weeks but then complaining about the speed with which the committee moved once the allegation was public: “What I find most inexcusable is this rush to judgment.”

  Noting Ford’s blue suit, Feinstein said, “Twenty-seven years ago, I was walking through an airport when I saw a large group of people gathered around a TV to listen to Anita Hill tell her story. What I saw was an attractive woman in a blue suit before an all-male Judiciary Committee speaking of her experience of sexual harassment.” The media began discussing the “symbolic meaning” of Ford’s blue suit, comparing it to the teal suit that Hill had worn.4

  With that, Ford began her opening statement: “I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.” She spoke in the high-pitched, almost childlike voice that friends remembered from high school—the voice that earned her the nickname “Baby Love” from some of her classmates.

  Ford talked about her childhood in suburban Washington and how she came to know Kavanaugh, “the boy who sexually assaulted me.” One evening in the summer of 1982, she said, after a day spent swimming at the Columbia Country Club in Chevy Chase, Maryland, she attended a “small gathering at a house in the Bethesda area.” There were “four boys I remember specifically being at the house,” along with her friend Leland. She did not remember how the group came together, though she surmised it was, like many other such gatherings, spontaneous. She did not remember where they were, whose house it was, or how she got there, but she would never forget the details of the assault. “They have been seared into my memory and have haunted me episodically as an adult.”

  She had consumed only one beer, she said, while Kavanaugh was “visibly drunk.” She was on her way to the bathroom when she was attacked from behind and pushed into a bedroom. Kavanaugh and Mark Judge “came into the bedroom and locked the door behind them.” Kavanaugh got on top of her on a bed and manhandled her, she said. “I yelled, hoping that someone downstairs might hear me, and I tried to get away from him, but his weight was heavy.” Kavanaugh put his hand over her mouth, she testified, and she feared he was going to kill her.

  Kavanaugh was laughing and having a good time, she said, while Judge was alternatively urging him on and telling him to stop. Judge jumped on the bed, causing Kavanaugh and her to tumble off. That was when she ran out of the room and locked herself in the bathroom. The two boys left the room, loudly “pinballing off the walls on the way down” the stairs. She left the house, she said, relieved that they didn’t follow her.

  Ford said she told no one about the incident at the time. Before sharing the story with the Washington Post and her congresswoman, Anna Eshoo, in July, she had given only a vague account to a few persons in recent years. She told her husband she had experienced a sexual assault before they were married and discussed it more fully in marital counseling in 2012. More recently, she had mentioned the attack in other therapy sessions and to friends.

  “My hope was that providing the information confidentially would be sufficient to allow the Senate to consider Mr. Kavanaugh’s serious misconduct without having to make myself, my family, or anyone’s family vulnerable to the personal attacks and invasions of privacy that we have faced since my name became public,” she said.

  She struggled with whether to come forward, eventually deciding not to. But “once the press started reporting on the existence of the letter I had sent to Senator Feinstein,” reporters started showing up at her home and leaving messages. That was when she decided to continue conversations with Emma Brown, the Washington Post reporter who wrote her story.

  While thousands of people had thanked her for coming forward, Ford said, she had also received death threats and had been “called the most vile and hateful names imaginable.”

  “It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court,” Ford told the committee. “My responsibility is to tell you the truth.” Then she asked that committee members address her directly and not only through a “professional prosecutor.”

  At this point, Ford reiterated a request for caffeine she had made before she began reading her testimony. Bromwich, seated next to her, added, “a Coke or something.” As they walked out of the hearing room during a later break in Ford’s testimony, multiple staffers heard Senator Hirono tell Senator Harris that it was a great idea to have Ford wear a blue suit and ask for a Coke as a throwback to the Thomas-Hill hearings. One of the unsubstantiated claims Hill had made against Thomas involved a Coke can. Senator Hirono had also mentioned Hill repeatedly in her media appearances as soon as the initial Post report was published.

  Rachel Mitchell was not brought in because she was a professional prosecutor, but because she was one of the nation’s foremost forensic interviewers of sex crime victims. She designed and taught a course to detectives, child protection workers, and other dedicated forensic interviewers on how to interview victims of trauma, including victims of sexual abuse and child abuse.5 An attorney who had defended cases against her for decades told Arizona journalists that she was “extremely meticulous” and “not a zealot in any way.” In fact, he said, “I’m surprised they’d pick her. She’s not the junkyard-dog type at all.”6

  Mitchell did not hear that Republicans were interested in hiring a sex crimes prosecutor until the Friday before the hearing; they interviewed her twice the next day. She proposed making the questioning of Ford as close to a forensic interview as possible. It would be nothing like a cross-examination of a hostile witness. In a forensic interview, the key is to ask open-ended questions that will elicit the most information. Peppering a victim with questions might elicit responses, but at the expense of the larger narrative. She said she would not criticize Ford for waiting decades to tell her story of sexual assault, as most victims delay disclosure. When Ford finally made her allegation and under what circumstances was relevant, but the delay in and of itself was not. The committee was in complete agreement.

  Mitchell flew to Washington on Sunday morning and began work on Monday. Because the committee had already obtained information from all the alleged witnesses, she was able to review their statements as well as the sworn interview with Kavanaugh. She reviewed all the information the committee had put together about the alleged assault. She even read through academic articles in which Ford was named as an author. While the media and other opponents of Kavanaugh insisted that law enforcement interview witnesses immediately, a typical investigation begins with an interview of the victim. Because Ford was so vague on details, the committee had also put together a map showing where every witness lived and the Columbia Country Club.

  Mitchell did not know when she accepted the assignment of questioning Ford that she would have to conduct the questioning in five-minute increments on behalf of each Republican senator. She learned of that limitation only the day before the hearing. A standard forensic interview consists of open-ended questions. Under the rules imposed by the Judiciary Committee, Mitchell’s questions would have to be more direct. Ford’s public relations team tried unsuccessfully to get C-SPAN to turn its camera on the senator on whose behalf Mitchell was asking questions instead of on Mitchell herself, hoping to give the impression of a line of old men attacking a woman.

  Mitchell’s approach was not what anybody in the media was expecting.

  She began by offering words of comfort to Ford. “The first thing that struck me from your statem
ent this morning is that you are terrified, and I just wanted to let you know I’m very sorry. That’s not right.” She offered some guidelines to alleviate the stress, encouraging her to ask for clarification and to let her know if she got any details wrong.

  The questions could not have been milder. Mitchell asked Ford to make her best estimates regarding dates of the alleged attack, and to confirm details she had provided about the attack. As soon as she got going, though, her time was up.

  Mitchell’s five-minute increments were separated by the Democrats’ questioning, which consisted in the main of offering Ford praise and making political speeches about the importance of the #MeToo movement.

  The media immediately declared the format of the questioning a disaster for Kavanaugh. MSNBC’s Garrett Haake said, “Stopping and starting between emotional testimony, and piece by piece going back through” her allegations “is having a similar effect to what they were worried about—making it look like they’re trying to pick apart Dr. Ford’s credibility.” Mitchell had not “laid a glove on Ford,” in the opinion of NBC’s Megyn Kelly. Her colleague Chuck Todd said, “They didn’t think the five-minute thing through. This is not working for them.” These commentators did not realize that this format was an unwelcome condition demanded by Ford and the Democrats. It seemed to be working in their favor.

  By the time the committee took its first break at 11:30 a.m., Kavanaugh’s situation was considered dire. Republican senators were described as “stone-faced” as they filed out of the hearing room, while the Democrats were already raising money off the hearing.7 Senator Hirono sent out an appeal within a half-hour of the opening of the hearing, for which she later apologized.8 Senator Kamala Harris’s campaign had dropped 3,600 different ads about Kavanaugh on Facebook by the time the hearing began.9

  The media had already reached their verdict. ABC’s George Stephanopoulos, a former Clinton spokesman, praised Ford’s “emotional” testimony and relatability. Cokie Roberts agreed. “We know women just like her. She certainly doesn’t seem to be somebody with an agenda as she is putting herself in this very difficult position.” Ford was “highly credible.”10

  Her credibility, if anything, was viewed as stronger because of her lapses in memory and because of the odder parts to the story, such as her description of how she came to tell her husband about the assault. One of the reasons they were in couple’s therapy in 2012, she said, was a disagreement over a home remodeling project. She insisted on a second front door, even though it was not “aesthetically pleasing from the curb.” The purpose of the door, which was not readily visible from the street, was purportedly to assuage her claustrophobia, although others pointed out that her home had been used as a therapist’s office, for which a side door would be helpful, and she acknowledged that it now made it easier to “host Google interns.”11 Despite the holes in her story, the media clung to these details. “You can’t make that stuff up. It is so unusual,” said ABC’s legal analyst Sunny Hostin. “I found her to be one of the most credible witnesses I think I’ve seen.”12

  NBC’s Kasie Hunt noted that Jeff Flake looked “pained” during Ford’s testimony. The Republicans, she said, knew that Ford’s perceived credibility was so high that it did not “bode well for Judge Kavanaugh ultimately sitting on the Supreme Court.”13

  Outside of newsrooms, the view was much different. “You know that woman is lying, don’t you?” Melania Trump said to her husband, echoing a perspective held by millions of other women and men who were silenced in media discussions that day.

  As much as the media loved Ford, they hated Mitchell, often faulting her for the procedure, over which she had no control. After the fifteen-minute break, Mitchell resumed her questioning along the same lines as earlier. Kind and deferential, Mitchell asked where she lived, how she had obtained therapy records, and about her reported fear of flying. Someone close to Ford had tipped off a government attorney that she flew “all the time,” including on single-propeller airplanes over the ocean. This person had flown with Ford for years and never heard about her fear of flying. That information was passed along to the Senate Judiciary Committee before the hearing.

  “May I ask, Dr. Ford, how did you get to Washington?” Mitchell said gently. “In an airplane,” Ford replied, smiling.

  Mitchell explained she was asking because of reports that she was afraid to fly. Ford responded that she was “hoping that they would come to me, but I realized that was an unrealistic request.” She said she was “hoping to avoid having to get on an airplane, but I eventually was able to get up the gumption with the help of some friends.” It would seem, then, that her fear of flying was a legitimate reason to delay the hearing, as the press, relying on anonymous reports from the Ford camp, had reported. It also highlighted her fragility.

  Mitchell asked how Ford came to the East Coast in the summer. “In an airplane,” she answered. “In fact, you fly fairly frequently for your hobbies, and you’ve had to fly for your work. Is that true?” Mitchell pushed. “Correct, unfortunately,” Ford replied.

  Then, citing a consulting position Ford had with a company in Australia, Mitchell asked about travel there. Ford was quick to say she had never been there, suggesting it was too long a journey for her to endure in an airplane. “I don’t think I’ll make it to Australia!”

  Mitchell kept going, noting that Ford had indicated an interest in “surf travel,” specifically identifying Hawaii, Costa Rica, the South Pacific Islands, and French Polynesia as places where she had pursued this hobby.14 Asked if she had ever been to those places, Ford said “correct.” Mitchell also asked if Ford had traveled by air in pursuit of her interests in oceanography and in Hawaiian and Tahitian culture. Ford admitted she had. The more than four-thousand-mile flight from Palo Alto to French Polynesia is completely over the Pacific Ocean.

  Mitchell also inquired about Ford’s seeming not to know about the repeated offers to interview her in California: “Was it communicated to you by your counsel or someone else that the committee had asked to interview you and that they offered to come out to California to do so?”

  At that point, Ford’s attorneys jumped. “We’re going to object, Mr. Chairman, to any call for privileged conversations between counsel and Dr. Ford.”

  Grassley asked if the counsel could confirm that the offer had been made. Ford interjected that she “wasn’t clear on what the offer was” and would have been happy to have them come out.

  Mitchell then turned to the polygraph test that Ford had taken on August 7, asking how she had decided to take it. Her attorneys again objected, “You’re seeming to call for communications between counsel and client.” But Ford answered that she’d done so on the advice of attorneys, that she had no idea who paid for it, and that she had taken the polygraph on the day of her grandmother’s funeral or maybe the day after, just before a flight to New Hampshire. She could not remember many details from the August 7 polygraph.

  Continuing with that subject, Mitchell asked, “Have you ever had discussions with anyone, beside your attorneys, on how to take a polygraph?” Ford: “Never.”

  “Have you ever given tips or advice to somebody who was looking to take a polygraph test?” Ford replied, “Never.”

  As the Judiciary Committee recessed for lunch, the media continued in the same tenor as earlier. On CNN, Jeffrey Toobin reminded viewers that Mark Judge had written a book about his notoriously drunken youth and surmised that Republicans didn’t want him to testify because he would be such a bad witness. “It just underlines how badly this has all gone for the Kavanaugh side in this hearing so far,” he said, inviting viewers to “dwell for a moment” on how “ineffective this cross-examination has been.”15 Gloria Borger noted that the procedure allowed for no defense of Kavanaugh; it would be “all on” him to repair the damage that was being done.

  NBC’s Savannah Guthrie acknowledged that Mitchell had “scored some points here and there,” including the shocking admission that the woman the media had depict
ed as afraid to fly actually flew regularly.16 Megyn Kelly, repeating the maxim that prosecutors should never ask a question to which they do not already know the answer, was critical of Mitchell, who had “gone fishing a couple of times and come up with nothing.”17

  Kelly was mistaken. Mitchell knew more than outsiders realized, and the committee staff could see what she had caught. The question about polygraph coaching might have looked like a fishing expedition, but investigators had already talked to a witness—a former boyfriend of Ford’s—who said she had coached a friend preparing to submit to a polygraph test. If that witness was telling the truth, Ford had just lied under oath. Interestingly enough, the woman he had identified as the recipient of the coaching—Monica McLean—was not only in the hearing room but had walked in from the holding area with Ford and her attorneys.

  Still, Kelly said, “There has been no Perry Mason moment.”18

  Outside observers were convinced that the day was already a disaster for Kavanaugh. Steve Schmidt, an advisor to Republicans such as George W. Bush and John McCain, said, “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.”19

  Media analysts were dazzled by Ford’s professional explanations of how memory works. When Senator Feinstein asked her how she could be so sure it was Kavanaugh who attacked her, she answered, “The same way that I’m sure that I’m talking to you right now. Just basic memory functions and also just the level of norepinephrine and the epinephrine in the brain that, as you know, encodes that neurotransmitter that codes memories into the hippocampus, and so the trauma-related experience is locked there, whereas other details kind of drift.” When Senator Leahy asked what her strongest memory was, she replied, “Indelible in the hippocampus is the laughter, the uproarious laughter between the two, and they’re having fun at my expense.”