By the time Christine Blasey Ford took her first break from testifying to the Senate on September 27, it looked like Brett Kavanaugh was finished. “Unless something changes, I think we’re toast,” one woman, a guest and supporter of Kavanaugh, told me during the break inside Dirksen-226, the small, wood-paneled Senate hearing room that seated roughly 100 guests and reporters for an event watched by 20 million Americans on television.
It was obvious something would need to change, but following Ford’s testimony it seemed impossible that anything would suffice to secure his confirmation. With Kavanaugh having no way to disprove a wholly uncorroborated but unfalsifiable allegation, it appeared that Ford’s gut-wrenching and emotionally gripping testimony would convict Kavanaugh in the court of public opinion, or at least in the opinion of enough of the senators who would decide his fate.
Among Kavanaugh’s allies, there had been some second thoughts that Ford’s moving testimony might require a more subdued response from Kavanaugh, who had not watched Ford speak that morning. White House counsel Don McGahn nevertheless encouraged Kavanaugh to speak from his heart, as had been Kavanaugh’s intention going into the hearing, according to a source close to Kavanaugh who had spoken to the judge the day before the hearing. “I remember him saying something like: ‘If I’m going to go down, I’m going to go down fighting for my name and my integrity and the truth.’ ”
When Kavanaugh spoke, he mustered every fact he could to defend himself. But the entire sordid monthlong Democratic assault on Kavanaugh had little to do with truth. It was dominated by raw emotion and raw power politics. Kavanaugh saved himself by responding to emotion with emotion. He choked up as he recounted his 10-year-old daughter telling his wife they should pray for her father’s accuser. When he addressed the partisan motivations of the committee’s Democrats, the anger in Kavanaugh’s voice was outdone that day only by South Carolina senator Lindsey Graham’s pure, unbridled rage.
“I let ’em have it, and they deserved every bit of it and probably then some,” Graham said in an interview following Kavanaugh’s confirmation. “I was going to intervene, but I had no idea that I would do what I did.” Graham said Democratic Illinois senator Dick Durbin’s questioning “took it to a new level” with this “Star Chamber stuff.”
Kavanaugh’s remarks that day were only successful and justifiable because Senate Democrats and much of the mainstream media had abandoned all standards in their campaign to destroy him. The day before the hearing, lawyer Michael Avenatti released a sworn declaration from a woman named Julie Swetnick, who alleged that Kavanaugh had been a serial gang rapist when he was in high school. That outrageous allegation played a significant role in shaping the remarks that Kavanaugh drafted that evening.
Maine senator Susan Collins, the decisive Republican vote that secured Kavanaugh’s confirmation, cited the wild and implausible Avenatti-Swetnick allegations in her October 5 speech explaining her vote for Kavanaugh. “This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others,” Collins said. “That such an allegation can find its way into the Supreme Court confirmation process is a stark reminder about why the presumption of innocence is so ingrained in our American consciousness.”
In the days following Kavanaugh’s confirmation, there was an effort by some Democrats and the media to blame Avenatti alone for saving Kavanaugh. But this was revisionist history. Much of the media let Avenatti run wild, and every Democrat on the Senate Judiciary Committee signed a letter urging Kavanaugh to withdraw following the release of Swetnick’s allegations. “It is clear from reporting that there were others present or with knowledge of each of these shocking allegations who should also be interviewed,” the Senate Judiciary Democrats wrote on September 26. Susan Collins herself, minutes after the Swetnick statement was released, told reporters: “Obviously I take it seriously and believe that it should be investigated by the committee.” During the September 27 hearing, ranking Democrat Dianne Feinstein asked Kavanaugh about Swetnick’s allegations, which Kavanaugh angrily dismissed as a “joke” and a “farce.”
What most helped clear Kavanaugh’s name, to the extent his name could be cleared, was the one-week pause that Arizona senator Jeff Flake insisted on following the Ford-Kavanaugh hearing.
“I think it did a world of good,” Lindsey Graham says of the extra delay that allowed time for a supplemental FBI investigation. But when Flake first insisted on the delay, many Republicans feared it would only cause more harm. “I was concerned about whether or not it would end up just creating more of an opportunity for a combination of handwringing among people on the fence about whether to vote for him and perhaps the possibility that we could see more copycat allegations coming forth,” says Utah Republican and Judiciary Committee member Mike Lee. “Looking back, it may have been one of the better calls. So I have to hand it to Jeff Flake for making a judgment call that in the end, I think, made members feel more confident about voting for him.”
The FBI investigation not only confirmed there were no corroborating witnesses for Christine Blasey Ford’s allegation, it provided time for the other allegations against him to fall apart.
If Julie Swetnick’s claims were remotely plausible, then there must be many witnesses, many victims, and many perpetrators from the alleged succession of gang-rape parties she had allegedly attended as a college student with high-school students Brett Kavanaugh and his friend Mark Judge (Swetnick declared she had been to at least 10 such parties). On September 29, the Wall Street Journal reported that it had “attempted to corroborate Ms. Swetnick’s account, contacting dozens of former classmates and colleagues, but couldn’t reach anyone with knowledge of her allegations.” Swetnick told NBC on October 1 that “everybody in the county remembers those parties,” and she gave the names of four people to NBC: One was deceased, one said he didn’t know a Julie Swetnick, and two did not reply. In the same NBC interview, Swetnick backed off several key details of her allegations.
The third allegation Senate Democrats were focusing on, a claim from Yale classmate Deborah Ramirez that Kavanaugh had exposed himself to her as a college freshman, was dubious when it was first published in the New Yorker on September 23. Named witnesses of the alleged incident denied any recollection of it, and Ramirez herself wasn’t sure if Kavanaugh had done what she now alleged. “Ms. 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,” the New York Times reported. Ramirez was only willing to make the allegation, the New Yorker reported, after “six days of carefully assessing her memories and consulting with her attorney.”
The so-called corroborating source for Ramirez’s claim was anonymous, but he told the New Yorker he was “one-hundred-percent-sure” he heard about it from an eyewitness. On October 3, the day before the supplemental FBI report was released to the Senate, the New Yorker revealed the name of its second-hand source—Kenneth Appold—and the fact that Appold’s firsthand source himself “had no memory of the incident.”
Appold said that he initially asked to remain anonymous because he hoped to make contact first with the classmate who, to the best of his recollection, told him about the party and was an eyewitness to the incident. He said that he had not been able to get any response from that person, despite multiple attempts to do so. The New Yorker reached the classmate, but he said that he had no memory of the incident.
The collapse of the Swetnick and Ramirez allegations was important to Kavanaugh’s defense because every real predator taken down by the #MeToo movement had demonstrated a pattern of sexual assault or abuse. As Jane Mayer, coauthor of the New Yorker’s Ramirez story, told Elle magazine: “Having watched this before, I knew that key issues would be whether the judge had a pattern of similar behavior, since that helps establish who is telling the truth when there is a standoff, and whether there were credible corroborators on either side. Knowing this is why Ronan Farrow and I were so alert to the significance of other accusers, such as Deborah Ramirez. Her allegation showed that, if true, yes, there was a pattern of misconduct, and likely another side of the judge.”
Other journalists were even more desperate to establish a pattern of assault committed by Kavanaugh. When the Senate received a completely anonymous letter in the mail alleging Kavanaugh had assaulted an unnamed girlfriend in 1998, NBC News ran a story on September 26 about a “fourth accuser.” That same day, the New York Daily News ran a story about a “fifth accusation” against Kavanaugh, because Rhode Island Democrat Sheldon Whitehouse received a call from a man who said Kavanaugh had assaulted a close friend on a boat in Newport once. The fifth accuser seemed to be mentally disturbed, based on his social media posts. “Dear Pentagon, please save my country from the parasite that occupies the White House,” he wrote on Twitter. The “fifth accuser” quickly recanted. The New York Daily News never updated its story.
Throughout the Kavanaugh affair, the media and Ford’s legal team searched for any other plausible accusation of sexual assault but came up empty. On September 16, the day that Ford first stepped forward publicly in an interview with the Washington Post, a lawyer aiding Ford’s attorney Debra Katz sent out an email to dozens of women who attended high school in the D.C. area when Brett Kavanaugh did. “My friend Debra Katz (Katz, Marshall & Banks) is currently representing Christine Blasey Ford,” D.C. lawyer Andrea Caputo Rose wrote in the September 16 email. “Assuming that [Ford] is telling the truth, the odds are good that there may be other women who had a similar experience, and I am reaching out to you to help find out if this is the case.”
But in the weeks after Ford stepped forward, not a single credible claim of sexual assault against Kavanaugh emerged. It was firmly established, as Kavanaugh himself acknowledged, that he sometimes drank to excess in high school and college. If heavy drinking was typical for Kavanaugh in his youth, was it likely that once, and only once, he behaved in a sexually aggressive manner while drunk? That was one of the questions senators were left asking themselves by the time the FBI’s supplemental investigation was provided to them.
Ford said there were four other people at the alleged party besides Kavanaugh and herself: Kavanaugh friend P. J. Smyth, alleged accomplice Mark Judge, a boy whose name she couldn’t recall, and Ford’s classmate and friend Leland Ingham Keyser. All these alleged witnesses denied recollection of the party, but Keyser’s denial was the most important of all. The lifelong friend of Ford not only denied recollection of the particular party where Ford alleges she was assaulted by Kavanaugh, Keyser denied any recollection of ever meeting Kavanaugh. “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford,” Keyser’s lawyer said in a statement. While Kavanaugh’s 45 minutes of remarks are remembered for the emotion he displayed, he cited this fact in the first paragraph of his testimony.
In Ford’s telling, Keyser and two other boys downstairs had only one beer that evening, while she was assaulted upstairs “early in the evening” at a “pre-gathering” by an extremely inebriated Brett Kavanaugh and his friend Mark Judge. According to Ford, Kavanaugh and Judge shoved her into a bedroom, turned up loud music, and then Kavanaugh pinned her against a bed, ground his body against hers, groped her, and tried to disrobe her. Ford says she yelled, but Kavanaugh covered her mouth with his hand. She said that Judge jumped on top of them and sent them all “toppling,” which provided an opportunity for her to escape. The loud music, yelling, jumping, and toppling didn’t cause any of the three sober people downstairs to check what was allegedly going on upstairs.
Ford testified that Kavanaugh and Judge made their way downstairs “pinballing off the walls on the way down.” Ford dismissed Keyser’s lack of recollection because the small party was otherwise unremarkable. But Keyser was a star athlete at Holton-Arms. Kavanaugh was an older star athlete at Georgetown Prep. If a 15-year-old Keyser was sober at a small gathering with a 17-year-old Kavanaugh who was drunkenly bouncing off the walls, there’s a good chance she’d remember having met him once.
Keyser stood by her testimony despite pressure she says she felt from Ford’s other friends to change it. The Wall Street Journal reported on October 5 that Keyser told the FBI that “she felt pressured by Dr. Ford’s allies to revisit her initial statement that she knew nothing about an alleged sexual assault by a teenage Brett Kavanaugh, which she later updated to say that she believed but couldn’t corroborate Dr. Ford’s account, according to people familiar with the matter. . . . [Keyser] told investigators that Monica McLean, a retired Federal Bureau of Investigation agent and a friend of Dr. Ford’s, had urged her to clarify her statement, the people said.” McLean’s lawyer told the Journal: “Any notion or claim that Ms. McLean pressured Leland Keyser to alter Ms. Keyser’s account of what she recalled concerning the alleged incident between Dr. Ford and Brett Kavanaugh is absolutely false.”
Members of the Senate are limited in what they can say about the FBI’s investigation, but Senator Lindsey Graham says that Keyser was “unequivocal” in her statement that she had never met Kavanaugh. “Miss Keyser stood by her testimony that she was a friend of Dr. Ford but doesn’t ever recall meeting Kavanaugh. She was unequivocal in that.”
Another odd thing about the allegation was Ford’s testimony that her only known social connection to Kavanaugh and Judge was their mutual friend Chris Garrett. Ford said she and Garrett had begun socializing “maybe a couple months” before the alleged party occurred and that Garrett was someone she “went out with for a few months.” So in Ford’s telling, a 17-year-old Kavanaugh not only assaulted a 15-year-old Christine Blasey, he attacked a girl his good friend was going out with around that time without his good friend ever finding out. A member of Ford’s legal team later suggested to the media that Ford would rule out any party at which Garrett was present because she knew him and would recall his presence. That fact would significantly reduce the number of potential dates on which this assault allegedly occurred. Kavanaugh’s high school calendar already showed that he was out of town almost every weekend that summer, and Garrett’s was a name that frequently appeared on his calendar.
None of these facts disprove Ford’s allegation, but they do raise questions about it. And the same is true of the fact that Ford provided no detailed account of her allegation until a May 2012 couple’s therapy session. Two months before Ford first spoke about the alleged assault, Kavanaugh had been profiled in a New Yorker story that concluded: “If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh.” The Washington Post reported that the therapy “notes say four boys were involved [in the assault], a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.” Ford’s legal team never provided a copy of the therapy notes, even in redacted form, for the FBI or the Senate Judiciary Committee to review to understand how Ford first recalled details of the alleged assault.
With Ford’s allegation uncorroborated, and the other allegations rapidly falling apart, Democrats tried to sink Kavanaugh’s nomination by alleging that he had perjured himself by lying about his drinking habits or the meanings of specific words in his high-school yearbook and that his angry demeanor in answering the attacks on his character showed him to be lacking in the temperament expected of a Supreme Court justice. But one by one each accusation of perjury was debunked. And only one Senate Republican, Lisa Murkowski of Alaska, thought Kavanaugh’s temperament in the September 26 hearing was a good reason to defeat his nomination. In the eyes of Senate Republicans, the argument about temperament failed to distinguish between Kavanaugh’s conduct on the bench as a federal judge for the past 12 years and his angry response as a man accused on a national stage of being a gang-rapist. “Judges are people too, they’re human beings too,” says Senator Lee, the mild-mannered Mormon from Utah. “Anyone who had been treated the way he was treated and dragged through the mud as he and his family had been might have reason to feel some emotion, and in a moment like that, I think it speaks well of Judge Kavanaugh that there wasn’t more emotion that came out.”
One outstanding question is exactly how Christine Blasey Ford’s name was leaked to the media. Democrats say they sat on the allegation, rather than allow the FBI to confidentially investigate it back in July, in order to protect her identity. But only a small number of congressional Democrats knew of her allegation, and Republicans believe it is likely a Democratic staffer leaked Ford’s name to the media, with some calling for an investigation into the leak.
What is clear is that the battle over Brett Kavanaugh has likely done lasting damage to Congress, the Supreme Court, the media, and the country. “There’s judicial confirmations before Kavanaugh and after Kavanaugh. They’ll never be the same anytime soon,” says Lindsey Graham. “They’re going to be used for political hatchet jobs rather than trying to probe the qualifications of the nominee. They need to be constructed differently.”
Graham adds that when Democrats note Kavanaugh’s confirmation has hurt the Supreme Court that’s “basically an arsonist being disappointed there was a fire. There’s nothing wrong with Brett Kavanaugh. What’s wrong is the way he was treated.”
Whether the scars from this fight will affect Kavanaugh in any way as a Supreme Court justice nobody can say. On some level, everyone knows that the intensity of this battle, and of all the other fights over the Supreme Court for the last 45 years, has been due to Roe v. Wade—what dissenting justice Byron White in 1973 accurately called an “exercise of raw judicial power.” Whenever the American people have come close to taking back that power, so that their elected representatives might be allowed to weigh in on the right to life, Supreme Court battles have been particularly fierce: first Robert Bork, then Clarence Thomas, and now Brett Kavanaugh.
Lindsey Graham says he’s “sure” that one factor motivating Democrats was that even if they couldn’t defeat Kavanaugh, they might intimidate him or wound him as a justice. Graham, who voted for both Obama-appointed justices, Sonia Sotomayor and Elena Kagan, hopes that in his judicial philosophy and decisions Kavanaugh “would be as reliably conservative as Sotomayor and Kagan have been reliably liberal.” Susan Collins, one of the few pro-Roe v. Wade Republicans in Congress, said she voted for Kavanaugh because he demonstrated sufficient respect for judicial precedent, which she suspects will lead him to uphold the 1973 decision. But Collins justified voting for Samuel Alito, John Roberts, and Neil Gorsuch for that same reason. Kavanaugh, like those justices, has also proven himself to be an originalist and a textualist. But where that will lead him on some of the most important constitutional questions isn’t clear.
“I’m 100 percent confident it’s not going to make him timid,” a former Kavanaugh clerk says of the confirmation battle. “I don’t think it’s going to make him do anything he wouldn’t do otherwise.”