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

by Mollie Hemingway

  Republican senators felt that Democratic senators had not been honest, and they were livid that Feinstein had not followed the rules for dealing with anonymous allegations. Nobody admitted leaking to the press, but clearly someone had. According to Ford’s own testimony, only her lawyers and Democratic members of Congress had seen the letter, but her friends also would have known the nature of the allegations. Whoever the leaker was, he or she had ensured that Ford’s claims would be addressed in the most public and sensationalized manner possible, despite Ford’s own stated wishes for privacy and confidentiality.

  Even though Feinstein was a staunch liberal, her Republican colleagues trusted her to play by the rules, in contrast to some of the other Democrats on the committee. Some senators and aides believed that the eighty-five-year-old Feinstein’s lucidity declined as the day progressed, an observation others strongly disputed. Either way, the consensus was that her staff took advantage of the situation and used her as a shield while they skirted the rules. The failure to handle the allegation in a timely manner through proper channels had disappointed some undecided senators and made them less likely to take it seriously.

  At that moment, Kavanaugh’s future was in the hands of Flake, not Collins or Murkowski. Even so, Flake had called Collins and asked for her support for reopening the background investigation. She agreed it was a good idea. If another investigation was necessary to get the nomination out of committee, Grassley would make it happen. It helped that they were confident that any investigation would go well for Kavanaugh. In fact, the White House had strongly considered ordering an FBI investigation when the first allegation broke, but after consulting with top brass at the Department of Justice, they worried that it would take more time than they could afford. The FBI, moreover, had a history of leaking against the Trump White House, engaging in bureaucratic delays, and generally resisting political accountability.

  If the price of Flake’s vote to send the nomination to the full Senate was going to be an FBI investigation, they would have to accept that. But Republicans wanted it limited in time, not open-ended. Democrats wanted Flake to hold his vote until the investigation came back, regardless of how long it took. In any case, senators had no authority to order a supplementary FBI background investigation, much less to define its precise contours. The request for an additional investigation would have to come from the White House counsel.

  Mitch McConnell’s chief counsel and “right hand man for every step of this process” was John Abegg.13 Summoned to the anteroom, he called Don McGahn to see if the supplemental investigation, building on the work the committee had already performed, could be limited to stipulated witnesses and completed quickly. Flake and Coons tried to talk to Christopher Wray, the director of the FBI, but he wasn’t available, so they called Deputy Attorney General Rod Rosenstein. Coons had followed Flake into the phone booth, which was so small that they couldn’t close its door. They made an absurd picture huddled around a cell phone, their limbs intertwined, trying to find out how long a thorough supplemental investigation would take. Flake understood the need for a reasonable limit to the investigation because of the Democrats’ propensity to keep moving the goalposts. President Bush tried to get through to Flake on the phone but was unable. Senator Cornyn, the Republican whip, was also leaning into the phone booth. He and Tillis kept making the point that nothing, including the FBI investigation, would be sufficient for recalcitrant Democrats.

  Grassley kept the committee meeting in suspension while the plan was hatched. Few senators were back in their seats by the time the vote was to take place, so Senator Whitehouse said, “Mr. Chairman, given what’s happening in the anteroom, I think if some more time is needed, I think you’d get a unanimous consent to push the vote back pretty easily if you needed a few more minutes.” Whitehouse was referring to the “two-hour rule,” which prohibits committees from meeting for more than two hours after the Senate floor opens or after two o’clock in the afternoon. The rule is routinely waived, but the Democrats in the anteroom were threatening to invoke it now. Lee and Cornyn were telling Flake that he could take as much time as he needed, even until Monday, but aides impressed on him the need to reach a decision quickly. As soon as he did, the Republicans ran to their seats. Democrats had decided to allow the rule to be waived at the last minute, but word didn’t get to Grassley in time. The Democrats, confused, were slower to reach their seats. “You just witnessed history,” one top Republican aide said to another staffer.

  Explaining the situation to the committee, Flake said that he had been talking with Democrats about the need for due diligence. It would be proper, he said, “to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation limited in time and scope.” While he would vote Kavanaugh out of committee that day, his final floor vote would be conditional on what the FBI found. And he clarified that he would not cooperate with further delays.14 Grassley had the roll called, and Kavanaugh was voted out of committee.

  The call for an additional investigation, Flake said, was “an effort to bring this country together.” He still expected to vote for Kavanaugh but only after a proper investigation, and he encouraged Democrats to accept his gesture in good faith.

  Flake’s detractors accused him of pandering to the liberal media. He would be leaving the Senate in January and was looking for a television contract. But Flake loyalists said he was genuinely moved by the distress of women like those who trapped him in the elevator that morning. The additional delay frustrated Kavanaugh’s supporters, but the investigation turned out to be a godsend.

  By the time Kavanaugh learned about the delay from McGahn, he had developed the habit of expecting the worst. A delay was disappointing, of course, but he told a few people that the investigation would be good for him. He knew that anyone digging deeply into the facts would be even more clearly on his side. He was comfortable. Senator Portman shared that confidence with a few others.

  Mitch McConnell promptly summoned the Republicans on the Judiciary Committee to his elegantly appointed office in the Capitol to discuss the contours of the investigation. He also invited Susan Collins and Lisa Murkowski, since their votes were still up for grabs. The only non–committee members present, they felt a bit like they had been called to the principal’s office.

  In his intimate red-walled conference room, the majority leader asked the senators what they needed to feel comfortable that the allegations were being properly investigated. They discussed the key witnesses they wanted the FBI to interview and when they could expect to receive the findings. The senators agreed that there was no need to waste time on Swetnick’s charges, but they wanted Ford’s and Ramirez’s allegations included. Later that day the Senate Judiciary Committee announced, “The supplemental FBI background investigation would be limited to current credible allegations against the nominee,” a generous description of Ramirez’s story and a subtle dig at Avenatti and his client, “and must be completed no later than one week from today.”15

  Don McGahn, who planned to step down as White House counsel after Kavanaugh was confirmed, had to request the investigation, so the liberal media tried to discredit it by association with him. Eugene Robinson, a columnist for the Washington Post, said, “If it turns out, as we suspect, that on his way out, Don McGahn squashed the FBI investigation of his good friend Brett Kavanaugh so it wouldn’t find out anything bad, that will be another part of Don McGahn’s legacy and also a rallying point for Democrats in the midterms.”16

  The view that McGahn was limiting the investigation was spread by an NBC report about the exclusion of Michael Avenatti’s gang rape allegations, which was depicted as a “significant constraint” that would “make it difficult to pursue additional leads” and was “at odds with what some members of the Senate judiciary [sic] seemed to expect.”17

  In fact, McGahn had broadened the scope of the investigation beyond what the Senate requested. McConnell wanted it kept within narrow limits, but McGahn ha
d heard that Flake and Coons thought the proposed investigation was too narrow. They wanted to make sure that the FBI would run down any leads that arose from the initial interviews. Coons had already announced his opposition to Kavanaugh’s confirmation, so his views carried little weight, and he had exaggerated what Flake had agreed to. But McGahn and Flake, who had known each other since Flake was in the House, wanted to be straight with each other. McGahn assured senators that the White House would not get in the way of any follow-up.

  By demanding a one-week investigation, Flake had hoped to keep the confirmation on track, but some senators were not interested in abandoning their delay tactics. Bernie Sanders now demanded that the FBI also investigate Kavanaugh for perjury, charging that the judge had made numerous untruthful statements. Grassley responded sarcastically, reminding the once and future presidential candidate that he had called for a mobilization against Kavanaugh less than twenty-four hours after his nomination was announced. “Am I to take from your letter that you are now undecided and willing to seriously engage with the Senate’s advice-and-consent constitutional duties related to the nomination of Judge Kavanaugh to serve as an associate justice on the Supreme Court of the United States?” Grassley asked. “If so, we should have a conversation about what information you need to assist you in making your decision, and I look forward to that conversation.”18

  As the senators waited for the results of the supplemental background investigation, the media began picking up Democratic talking points. Kavanaugh’s indignation at being accused of sexual assault and gang rape betrayed, said Senator Feinstein, a belligerent and intolerant temperament unsuited to the work of a judge. Nancy Pelosi, the House minority leader, pronounced him “hysterical” and temperamentally unfit to serve on the Supreme Court.19

  The Associated Press took it from there, reporting the next day that “Brett Kavanaugh’s angry denunciation of Senate Democrats at his confirmation hearing could reinforce views of the Supreme Court as a political institution at a time of stark partisan division and when the court already is sharply split between liberals and conservatives.”20

  Senator Collins thought it was completely understandable that a nominee would be emotional when accused of serial gang rape and other crimes, though she wished he had handled Senator Klobuchar’s questioning better. In contrast to some of her peers, Collins had paid attention to the first hearings and remembered that a representative from the American Bar Association had testified that a committee had evaluated Kavanaugh for “compassion, decisiveness, open-mindedness, courteousness, patience and freedom from bias.” They found that “lawyers and judges overwhelmingly praised Judge Kavanaugh’s judicial temperament,” attesting that he “is very straightforward,” “maintains an open mind about all things,” “is an affable, nice person,” “is easy to get along with and even has a good sense of humor,” “is really a decent person,” “is thoughtful, fair-minded—always fair-minded in his questions to counsel.” In fact, Kavanaugh had received the highest rating in the category. Still, temperament became such an issue that Kavanaugh was forced to respond with an op-ed column in the Wall Street Journal defending his temperament.

  Kavanaugh’s opposition shifted its attention to “temperament” in large part because each of the three main allegations against him was crumbling. Ford had made her case publicly to a friendly press. From a prosecutor’s perspective, that was an outrageous way to handle allegations. When presented with information about a high-profile person, for example, allegations of corruption, it would be absurd to publicize the allegations without first going through extensive investigation to determine the credibility of the accuser, whether there was corroborating evidence, and whether there was contrary evidence. Rachel Mitchell had begun what typically would have been the first step in the process—determining whether Ford had a case. Even Mitchell’s mild-mannered inquiries were much tougher than anything that had been posed by a journalist to that point.

  Mitchell spoke in a private meeting of all the Republican senators after Thursday’s hearing finished, announcing that she would have not been able even to obtain a search warrant, much less to have prosecuted a crime, with the minimal evidence offered at the hearing.21 Her by-the-book approach and analysis of the evidence prompted a round of applause. She was so well received, particularly by undecided senators, that she was asked to elaborate in a written report submitted to Republican senators on Sunday: “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.”22

  Mitchell noted that Ford’s account of when the assault occurred was inconsistent, ranging from the early to the mid-1980s. She told a therapist she had been in her late teens but later told the committee that she was fifteen. While it is common for victims to be uncertain about dates, Mitchell said, Ford never explained why “she was suddenly able to narrow the timeframe” to a particular year, as memories would not typically become more precise over time.

  Ford had never mentioned Kavanaugh before 2012, when his name was widely reported as a potential Supreme Court nominee, Mitchell noted. Ford had also described the attacks in varying ways when speaking to her husband, according to news reports. She told him before they were married that she had suffered a sexual assault, but after they were married she told him she had been a victim of “physical abuse.” Both comments referred to the same incident she described with Kavanaugh, she testified. But she never explained why she would have downgraded her description of an attempted rape to physical assault.

  Ford also had no memory of details that could corroborate her account, such as who invited her to the party, how she got there, whose house it took place in, or how she got from the party back to her house, a distance that would have taken twenty minutes by car but would have required a nearly three-hour walk in the dark if she did not have a ride. “Given that this all took place before cell phones, arranging a ride home would not have been easy,” Mitchell noted. The difficulty of finding such a ride would have likely made it a salient part of the evening in and of itself.

  Ford’s account had never been corroborated by anyone, including her lifelong friend and supporter Leland Keyser. All alleged eyewitnesses denied having any memory of the event.

  Ford had also not offered a consistent account of the alleged assault, Mitchell wrote, offering conflicting information about whether she could hear conversations taking place elsewhere at the party.

  Ford’s account of who was at the party had also varied. According to her therapist’s notes, four boys were in the bedroom in which she was assaulted—an error, according to the Washington Post, as there were four boys at the party but only two in the room where the assault happened. In her letter to Senator Feinstein, Ford described the party as including “me and 4 others.” Her polygraph statement said four boys and two girls were at the party. In her opening testimony, Ford said that four boys and her female friend Leland Ingham Keyser were at the party, but in response to Mitchell’s questions, she said that Leland was one of the four others at the party and she remembered no others. In her statement to the polygrapher and in a text to the Post, she asserted that Patrick “P. J.” Smyth was a “bystander,” but in her testimony she said that was inaccurate.

  She also had trouble remembering recent events presumably unaffected by the trauma of an assault or the vagaries of time, such as whether she had showed a reporter her therapist’s notes and whether her polygraph session had been recorded. She refused to provide the therapist’s notes to the committee despite relying on them for “corroboration.” She said she had wanted her story to remain confidential, but the “first person other than her therapist or husband to whom she disclosed the identity of her alleged attacker” was a person operating a tip line at the Washington Post. The college professor said she did not know how to contact a U.S. senator, but she did know how to contact her U.S. represe
ntative.

  Ford could not remember if her polygraph had been conducted the day of or the day after her grandmother’s funeral, an event that should have been significant to her. Regardless, it would have been inappropriate to administer a polygraph to someone in grief.

  Ford’s frequent flying was at odds with the assertion that she was afraid to fly, Mitchell noted. It was also noteworthy that her attorneys had apparently not told her about offers for a private hearing in California, a breach of duty to their client that Senator Cornyn suggested warranted a referral to their local bar ethics committee.23

  The measured report from Mitchell, based on facts, was completely different from the media coverage, which was focused on emotion. Mitchell’s findings were ignored by many media outlets or seriously downplayed. The findings were buried in the final two paragraphs of a New York Times story about the FBI investigation.24

  A supposed “fact check” by the New York Times cited no factual errors but pushed activists’ assertions that Kavanaugh had been “misleading” and that his statements were “disputed” or “required context.”25 The article was self-refuting. For instance, it reported that he denied drinking to excess immediately before quoting him as saying, “Sometimes I had too many beers.”

  At the same time, few media outlets were investigating Kavanaugh’s accusers. For example, Ford said that she had not told her husband the details of the assault until 2012. The occasion for her doing so, she said, was serious marital conflict arising out of her desire for a second front door on their $2.5 million house in Palo Alto, California—an escape hatch, as it were, for a woman traumatized by sexual assault. This odd story did not hold up under scrutiny. According to one of the only reporters to investigate, building permits for renovations on the home—which included an extra room and extra door—were completed by 2010. The door was not an escape route but an additional entrance. Ford said in her testimony she “hosted” Google interns in the additional space. And curiously, the woman who sold the house to the Fords in 2007, a marriage therapist, reportedly had continued to work out of the home, using the extra room, with its own door, for her practice.26 A web profile says she deals with “relationship issues” and “disturbing memories from the past.”27