Law & the Courts

The Architect of the Latest Kavanaugh Smear Just Gave a Self-Damning Radio Interview

A police officer stands outside the New York Times building. (Brendan McDermid/Reuters)
Her approach to reporting the story is a textbook case of confirmation bias.

There is no substantiated evidence of any sexual misbehavior by Brett Kavanaugh at any point in his entire life. Several shaky claims have been made along these lines, but all of them are badly undercut by available evidence. None of them is more likely than not to be true.

Yet in a casual radio interview this morning, New York Times reporter Robin Pogrebin, a classmate of Kavanaugh’s at Yale, gave an unintentionally revealing report about her approach to the story. Following Christine Blasey Ford’s hard-to-believe testimony, which was undercut by all witnesses she placed at the party in question, including a lifelong friend of hers, and following Deborah Ramirez’s hard-to-believe story, which she herself admitted being uncertain about, Pogrebin obviously became subjected to confirmation bias. She had a narrative in mind and she pushed and pulled her writing to fit it.

Pogrebin is at the center of a discussion of gross journalistic malpractice after publishing a story Saturday night with colleague Kate Kelly that failed to mention that a woman who, according to a man named Max Stier, had Kavanaugh’s penis pressed into her hand at a campus party by multiple friends of his has said she recalls no such incident. That woman has also declined to talk about the matter with reporters or officials. Why even publish Stier’s claim, which was discounted by Washington Post reporters who heard about it a year ago, that he witnessed such an incident during a Yale party in the 1980s? Because of the narrative, Pogrebin says. “We decided to go with it because obviously it is of a piece with a kind of behavior,” she said on WMAL. Pure confirmation bias.

Though the woman at the center of the story wants no part of it, Kelly and Pogrebin published her name anyway (in their book, albeit not in the Times). “You’re kind of directing attention at a victim and she’s gonna be besieged,” Pogrebin said on the radio show, in explaining why the Times piece left the name out. “Even if people can ultimately find her name, it’s not necessarily important to make it easier for them to do so.” Oh, so publishing her name in a book does not constitute making it too easy for people to find this private citizen? It’s a separate but serious scandal. This woman has been made a public figure in a national story without her consent. Even if she were the victim of sexual misconduct, the Times would ordinarily take steps to protect her identity. Yet she has made no claim along these lines, and Pogrebin and Kelly outed her anyway. Is there no respect for a woman’s privacy? Is every woman in America to think of herself as potential collateral damage should she ever cross paths with any Republican whom Times reporters later tried to take down?

In her WMAL interview this morning, Pogrebin repeatedly refers to the woman as a “victim.” This word choice is instructive about Pogrebin’s thought process. Calling her a victim would be begging the question if the woman claimed this status for herself. She would then be only an alleged victim. But she isn’t even that. She has made no claim to be a victim, yet Pogrebin describes her as one anyway. This is a case of a reporter overriding her reporting with her opinion. Pogrebin then impugns the woman by saying she was so drunk that her memory can’t be trusted. She also says that “everyone” at the party was massively drunk and that their memories are therefore unreliable.

Does she hear herself talking? If this is true, it means Max Stier was also drunk and his memories also can’t be trusted. (Someone should ask Pogrebin whether she was present at this party about which she knows so much.) By what journalistic standard does a reporter discount what is said by the person with the most direct and relevant experience of a matter — the woman in question at the Yale party — in favor of a drunken bystander? If both the woman and Stier were drunk, why is his memory more credible than hers? If something like this had actually happened to her, wouldn’t she be more likely than anyone else to remember it? Maybe Stier is remembering a different party. Maybe he’s remembering a different guy. Maybe he made it up.

Moreover, if Stier saw this behavior at a party at which others were present, why is no one else backing him up? After a year of reporting, involving members of her own college class, Pogrebin has failed to locate any others to corroborate what Stier is saying. What she and Kelly have done instead is to whip up a smokescreen of random hearsay and vague allegations of bad behavior unconnected to Kavanaugh in any way, such as Ramirez’s mother’s recollection that her daughter once said “Something happened at Yale.” Pogrebin and Kelly call all of this “corroboration” of the Ramirez allegation (never mind the lack of contemporaneous hard evidence). This is outlandishly bad journalism. Something happened at Yale — that’s it, that is absolutely all Ramirez’s mother heard over the course of 35 years — somehow backs up this story? Here is the way the Pogrebin-Kelly piece overplays this: “At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge.” Shamefully misleading, as Byron York has explained.

That brings up a related question: Has Stier ever actually told this story under penalty of perjury? He seems to have carefully avoided doing so. Pogrebin and Kelly casually report that he contacted the FBI and multiple senators with the tale. That isn’t exactly what the Washington Post says, in explaining why it didn’t print Stier’s story last year: “As the FBI was wrapping up its investigation, intermediaries working on behalf of Stier delivered his account to agency officials.” (Emphasis mine.) Oh? Stier also talked to Delaware senator Chris Coons. a Democrat. The two are apparently acquaintances. Assuming Coons didn’t swear him in before they chatted, Stier would probably not have been speaking under penalty of perjury. Stier apparently kept himself at one remove from the FBI, to whose agents making a false statement would be a crime. The Post again: “Stier seemed optimistic he would ultimately be able to relay his information to the FBI by ‘reaching out through other means,’ Coons said.”

In her radio interview today, Pogrebin sounds exasperated that the Stier story has dominated the news since Saturday. But why would she be upset that her huge scoop got so much coverage? Is she herself entirely certain about this story? She sounds as though she wanted it buried. This is unusual, to say the least:

As you can see, we did not lead with this Max Stier allegation. Did not put a news story on the front of the New York Times saying “another allegation against Kavanaugh.” That was our decision. That was not the thrust of their book, that there is a new allegation . . . it’s two paragraphs in a, you know, almost 300-page book. We did not make a lot of this. The world is making a lot of this. We just put out every fact that we could find that hadn’t been reported previously, this was one of them.

While it is indeed a “fact” that this allegation was made, all sorts of other unsupported allegations (remember Julie Swetnick?) were also made. It falls to people like New York Times reporters to nail down the truth before they publish, not to simply pass along every allegation anyone ever made against Kavanaugh. The Post grasps this, which is why it didn’t publish Stier’s tale.

Pogrebin reveals her approach to fact in the final moments of the interview. Of the woman at the party, she says, “Remember that she was incredibly drunk at that party as was everyone. And so I think we’re talking about memory here as really kind of a questionable issue. There are plenty of things that are conceivable that could happen when people are too drunk to remember them.” So the standard here is not whether something is true, it’s whether it’s “conceivable.” If a story is “of a piece with a kind of behavior,” even if such behavior is itself not established, and if a story is “conceivable” when filtered through that confirmation bias, and even if it’s undercut by the person the story supposedly happened to, and even if the person telling the story was “incredibly drunk,” you just go with it anyway. Let’s hear it for the New York Times, home of All the News That Fits the Narrative.

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