The delays also provided time for Kavanaugh haters to gin up more unfounded accusations. Right before a new hearing that would feature both Kavanaugh and Blasey Ford, The New Yorker landed a story in which a woman named Deborah Ramirez claimed that at a party in their freshman year at Yale—thirty-five years earlier—Kavanaugh had exposed himself to her. Ramirez admitted she had needed six days of “assessing her memories” to feel confident of the incident. She conceded to being so drunk at the time that she was “on the floor, foggy and slurring her words.” The New Yorker could not find a single other eyewitness who put Kavanaugh at the party. The New York Times separately reported it had interviewed several dozen other people but could not corroborate Ramirez’s story. It also reported that “Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.” Kavanaugh declared it “a smear, plain and simple.” It’s worth noting that one of the authors of The New Yorker story was the liberal Jane Mayer, who had spent a great deal of her career attacking Clarence Thomas with Anita Hill material.
Then, star-crazed lawyer Michael Avenatti (who had also represented Stormy Daniels) released a third accusation. The only benefit of this claim was that it was so monstrous, so fantastical, that it served to put the Kavanaugh spectacle into better perspective. Julie Swetnick, a Washington-area woman, claimed that Kavanaugh and Judge in high school had been part of a group that routinely targeted young women for gang rape at parties. Swetnick claimed to have been a victim of this abuse, but that she had attended more than ten such events—thereby suggesting she continued to show up at parties where she knew she’d be assaulted. Kavanaugh correctly called it “from the Twilight Zone.” Grassley, on the basis of information the committee compiled, would later refer both Avenatti and Swetnick to the Justice Department for a criminal investigation, claiming they had engaged in conspiracy, false statements, and obstruction of Congress.
Nonetheless, within hours of the Avenatti-Swetnick craziness, every Democrat on the Senate Judiciary Committee had called on Kavanaugh to withdraw. To Kavanaugh’s credit, he refused, saying he would not be “intimidated out of withdrawing from this process. The coordinated effort to destroy my good name will not drive me out.”
With its demand for Kavanaugh’s resignation, the Resistance formally threw over one of the fundamental precepts of American society: due process. That helped to weaponize every sexual assault allegation and further polarize the country. Schumer at one point attempted to suggest that Kavanaugh shouldn’t be accorded traditional due process, since this was a Senate confirmation and not a court of law. But that’s inane. We as a country accord due process in every realm. As the WSJ editorial board wrote: Due process “holds for charges of scientific fraud, legal malpractice, or violating the standard of a professional society. It even holds, tenuously, for sexual-assault cases on most college campuses where at least an accuser has to meet a 50.1% ‘preponderance of evidence’ standard.”
The Resistance made the argument that the accusations against Kavanaugh must be believed simply because they were made. And that it was up to Kavanaugh to prove his innocence. But this turns due process on its head. Americans are always innocent until proven guilty, and the burden of proof is always on the accuser. If we abandon this system, then anyone who makes an accusation, even on a whim, holds the power to destroy another’s life. Those accused are also afforded the right to cross-examine their accusers, to question their claims. Yet Blasey Ford’s lawyers and Democrats instantly moved to limit how and about what Blasey Ford could be questioned in her hearing with Kavanaugh.
Democrats would later come to see up close and personal the mistake of according Blasey Ford’s accusations special privilege. Within a few months, the Virginia Democratic Lieutenant Governor, Justin Fairfax, was hit with decades-old allegations of sexual assault. In February 2019, Vanessa Tyson accused Fairfax of sexually assaulting her at the 2004 Democratic convention, while Meredith Watson accused him of raping her in 2000 when they were both students at Duke. As was the case with Blasey Ford, neither woman had corroborating evidence. Democrats at that point would rush to try to reestablish some due process norms.
But that was later, and Democrats in September 2018 turned the Ford-Kavanaugh hearing into one of the lowest moments in the Senate’s modern history. I was in the hearing room that day, a guest of a Republican on the committee. I at one point glanced over to see that one of my closest seat mates was Alyssa Milano, the #MeToo Hollywood actress and advocate—and it gave the entire day a surreal, scripted feel. The mood within the hearing room was extraordinarily tense. Ford testified first, putting in a sympathetic but bizarre performance. She alternated between claiming not to understand the most basic questions, to answering others with technical lectures about neurochemistry. Asked at one point by Feinstein about how she could be so “sure” it was Kavanaugh, Blasey Ford responded that it had to do with “the level of norepinephrine and epinephrine in the brain that sort of, as you know, encodes—that neurotransmitter encodes memories into the hippocampus…” But the important point of her testimony was that she still couldn’t recall key details and still couldn’t muster a single witness to corroborate her claim.
Kavanaugh for his part was passionate in his defense of his innocence. He invoked his children and his parents in his opening statement, and was emotional in rejecting the accusations. He pointed out the significant number of former female colleagues who’d written that he had always treated them with decency and respect. He stated that any investigation would clear him. He pointed out the Democratic politics that were driving the assassination of his character. He called the process a “political hit” and a “circus.”
Democrats in their questions flat out called him a sexual predator; they didn’t even bother to use the word “alleged.” They spent hours grilling him about jokes in his high school yearbook, and whether they were, in fact, secret codes for sexual assault. Nobody came out of the hearing with any more information than they’d gone in with. Instead, the nation watched the Senate embarrass itself, and Democrats destroyed the last semblance of honor in that body’s “advice and consent” power. South Carolina Senator Lindsey Graham by the end was shaking with fury. When it came his time at the mike, he called the behavior of his counterparts the “most unethical sham since I’ve been in politics.” And he laid out a warning to American voters. Looking across the dais at Democrats, he thundered: “Boy, do you want power. And I hope you never get it.”
* * *
Most Republicans came out of the Kavanaugh hearing even more resolved to vote for his confirmation. They understood the consequences of a “no” vote. It would destroy due process, further weaponize sexual assault claims, legitimize the atrocious behavior of the Resistance, turn future nominations over to the mobs, and likely lose them a Supreme Court seat. It would potentially even lose them the Senate. Republican voters were furious over Kavanaugh’s treatment and were now making his confirmation vote a litmus test on senators up for reelection.
Democrats instead put their focus on the few Republican holdouts—in particular Arizona’s Jeff Flake. Flake the year before had announced he wouldn’t seek reelection, and he’d become ever more the grandstander. He’d never been a fan of Trump’s, and the Kavanaugh fight clearly conflicted him. He seemed torn between disgust over the process, and a desire to look #MeToo sympathetic. He hemmed and hawed, got chased into an elevator by a Resistance activist, released several tortured statements, and finally…split the difference. Flake agreed to provide the last vote to move Kavanaugh out of the Judiciary Committee. But he also succumbed to Democratic demands and said he wanted another FBI investigation before a full Senate floor vote. Alaska Republican Lisa Murkowski, who’d also been wilting under pressure, joined with Flake. Republican leaders agreed to a one-week FBI probe.
The probe would ultimately accomplish nothing. But it gave activists a last few days to p
roduce more controversy. In waded the liberal American Bar Association, whose head, Robert Carlson, sent a letter to the Senate also calling for an FBI probe and further delay. The ABA remained bitter that the Trump administration had demoted the guild from its primary role in evaluating judicial nominees. It was long the norm for presidents to submit candidates to the ABA before making nominations official, which gave the group an effective veto. But conservatives grew tired of the ABA bias, which often resulted in low ratings for conservative legal stars. George W. Bush became the first modern president to announce his nominations publicly before the ABA could pass judgment. His reward was seven “not qualified” ratings during his presidency. President Obama restored the ABA veto, and his “not qualified” count was, of course, zero. Mr. Trump reinstituted the Bush policy, and already in two years the ABA had rated six of his nominees “not qualified”—a record.
The ABA’s Standing Committee on the Federal Judiciary in August had unanimously awarded Kavanaugh its highest rating and expansive praise. But Carlson, a Clinton donor, saw an opportunity now to sandbag the nominee. Carlson’s letter had the deliberate effect of making it sound as though the ABA was running away from its recommendation, even though Carlson wasn’t on the standing committee and didn’t speak for that body. Utah lawyer Paul Moxley, the ABA’s Judicial Committee chair, felt compelled to write to the Senate Judiciary Committee to explain that Carlson’s letter had not been vetted by his members, and that “The ABA’s rating for Judge Kavanaugh is not affected by Mr. Carlson’s letter.”
Democrats also tried to use Kavanaugh’s defense against him—claiming his passionate Senate testimony proved he did not have the “temperament” to sit on the Supreme Court. “Judge Kavanaugh did not reflect an impartial temperament or the fairness and even-handedness one would see in a judge,” Feinstein tweeted. “He was aggressive and belligerent.” The haters maintained that while it was perfectly acceptable to accuse a sitting judge of gang rape, drunkenness, and violence, Kavanaugh had no right to defend himself, no right to show any emotion. The media quickly picked up this theme, and liberals started pressuring the ABA to reopen its evaluation on “temperament” grounds.
The FBI probe turned up nothing and McConnell rightly scheduled a Senate floor vote. The Republican holdouts kept the nation guessing about their vote to the very last. Yet when the most influential of the undecided—Susan Collins—finally spoke on October 6, she riveted a nation. In one of the more impressive Senate floor speeches in modern history, Collins berated a confirmation process that had “hit rock bottom” and slammed the special-interest groups that had spread outright lies. One portion of her speech is worth quoting in full:
Certain fundamental legal principles about due process, the presumption of innocence and fairness do bear on my thinking and I cannot abandon them. In evaluating any given claim of misconduct, we will be ill-served in the long run if we abandon innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.
She reminded the country that the Senate’s duty under the Constitution was “advice and consent,” and this meant an analysis of Kavanaugh’s competence to sit on the high court. She methodically and intelligently walked through his legal record on everything from health care to presidential powers to judicial independence. We at the WSJ editorial page wrote: “The speech was a U.S. Senator weighing a nominee’s objective, known record against her own beliefs and politics. This, presumably, is the practical meaning of advice and consent.” Only at the very end of this thirty-minute speech did Collins announce she would vote to confirm Kavanaugh. Minutes later, West Virginia Democrat Joe Manchin announced he’d also vote yes. The only Republican to bolt was the ever-confused Murkowski. Kavanaugh was confirmed the next day.
Not that the drama was over. Vicious in defeat, the Resistance moved to denigrate the entire court system. Feinstein tweeted that Kavanaugh’s confirmation “undermines the legitimacy of the Supreme Court.” Former Attorney General Eric Holder chimed in with the same sentiment: “The legitimacy of the Supreme Court can justifiably be questioned.” These were radical words and an unnerving departure from American political norms. The last time the country overtly flouted the Supreme Court’s authority was in the civil rights era, when states refused to abide by the high court’s desegregation ruling in Brown v. Board of Education. That revolt led to violence and the mobilization of the National Guard. To put these extremist Feinstein-Holder claims in perspective, imagine if Trump were to tell his millions of followers that they did not need to respect the authority of the high court. He’d be accused of fomenting a civil war.
Democrats also started to claim that Kavanaugh had “lied” during his confirmation hearings; New York’s Jerry Nadler, in line to run the Judiciary Committee if Democrats took back the House, vowed an investigation into Kavanaugh’s “perjury.” Booker suggested Democrats might commence impeachment proceedings against the justice. Does any of this strike most Americans as the political “norm”?
Democrats also chose to use Blasey Ford as a campaign prop for the midterms. That decision proved a double-edged political sword. Kavanaugh had certainly mobilized the Resistance. But as the ugly process ground on, it equally mobilized conservatives. They were used to their nominees getting harsher treatment but had never witnessed anything as revolting as the Kavanaugh teardown—and were enraged. Prior to Kavanaugh, Republican enthusiasm for the midterm election had been tepid. Post-Kavanaugh, it rivaled Democratic enthusiasm. The Democratic war on Kavanaugh not only saved the Senate for Republicans—it helped them add seats. Trump states took retribution on Democratic senators who voted against the nominee—throwing out Missouri’s Claire McCaskill, Indiana’s Joe Donnelly, and North Dakota’s Heidi Heitkamp.
Things were tougher in the House. Many of the suburban districts Trump had narrowly won in 2016 had since soured on the president. Pelosi wisely recruited dozens of “centrist” Democrats for these districts, who ran on center-left platforms. The conservative energy that came out of Kavanaugh saved Republicans from the “blue wave” the pundits predicted. But it didn’t save the House. Democrats made a gain of forty-one seats. Pelosi prepared to retake the gavel.
The assault on Kavanaugh was in many ways the purest expression of the motivations and tactics of the Resistance. Despite their claims, the haters did not oppose Kavanaugh on the basis of his qualifications, his temperament, or his history. While any nomination with the potential to change the direction of the Supreme Court would have been fiercely contested, the fact that Kavanaugh was Trump’s choice teed the judge up for barbarous treatment. The Resistance, in its passion to block the president, set a new low in the nominations process, destroyed Senate traditions, and undermined the judicial branch. The damage will prove far more lasting than Trump’s occasional jabs at individual judges or rulings.
Chapter 10
Crazy House
On May 8, 2019, every Democrat on the House Judiciary committee voted to hold Attorney General William Barr in contempt of Congress. Judiciary Chairman Jerrold Nadler had less than three weeks earlier issued a subpoena to Barr, demanding he turn over to Congress the entire, unredacted Mueller report, as well as all of Mueller’s underlying material, by May 1. Barr could not turn over the material without breaking the law. Federal statute makes it a crime to reveal grand jury material, even to Congress. The Justice Department offered to work with Democrats to get them as much material as possible within the confines of the law. Nadler instead abruptly shut down negotiations and moved to one of the quickest contempt votes in the history of the committee. Democrats wanted the contempt vote, to send a political message to its base that it was hammering the Trump administration. This was about the show, and it was yet another unfortunate abuse of power—done in the name of undermining Trump.
For all the Resistance’s initial anger over Trump, it came out of the election lacking any real authority to do much about the new presid
ent. Trump had brought along both a Republican Senate and House. The GOP controlled both the executive and the legislative branches.
That changed on January 3, 2019, as Nancy Pelosi was elected again as Speaker of the House. South Carolina Senator Lindsey Graham had warned during the Kavanaugh hearings of the dangers of giving the Resistance “power.” The country was about to witness the excesses firsthand.
We should take care not to include in that category of “excesses” the many things the 116th Congress has done that are completely normal. Republicans might not like Pelosi’s many bills that seek to impose her progressive agenda. But House Democrats have every right to put any legislation they want through the usual committee order. House Democrats’ refusal to provide Trump money for his border wall helped provoke the longest shutdown in U.S. history, but shutdowns aren’t, sadly, a new thing. Republicans complain that Democrats are refusing to work with them on even bipartisan proposals, so committed is the Resistance to denying Trump any victory. But nothing says a House majority has to work with the other party. Voters will get their opportunity to judge this strategy in the 2020 elections.
Resistance (At All Costs) Page 20
