Law & the Courts

The Kavanaugh Confirmation: What We’ve Learned One Year Later

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)
Several myths have been debunked.

One year ago today, Brett Kavanaugh was confirmed as a Supreme Court justice by a 50–48 vote in the Senate. The vote brought to a close a vicious, partisan month-long confirmation fight, but the battle over Kavanaugh has never really ended.

Just a few weeks ago, the New York Times Sunday book review section published an essay by Robin Pogrebin and Kate Kelly, two New York Times reporters and co-authors of a new book about Brett Kavanaugh, in which they claim that a Yale classmate of Kavanaugh’s named Max Stier “saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student.”

The bombshell headline that “NYT reporters’ book details new sexual assault allegation against Brett Kavanaugh” rocketed around Twitter on the evening of Saturday, September 14. Ronan Farrow, the muckraking journalist who played a crucial role bringing down Harvey Weinstein and other alleged sexual predators, tweeted that two New York Times reporters had “documented another serious claim of misconduct with an eyewitness.” The next day, several Democratic presidential candidates, including Bernie Sanders, Elizabeth Warren, and Kamala Harris, called for Kavanaugh’s impeachment in response to the article.

But anyone with a basic understanding of human anatomy and human behavior should have found the allegation published in the Times absurd on its face. A young Kavanaugh was standing around naked at a party when “friends,” plural, “pushed his penis”? He just stood there without recoiling when his genitals were grabbed and “pushed” into someone else’s hand? If this highly implausible scenario had occurred, wouldn’t both the female student and Kavanaugh have been victims of this alleged assault?

What remained of the very dubious accusation was shredded with a single tweet early in the morning on September 15, when Mollie Hemingway, who had obtained an early copy of the book, wrote that the Times essay failed to report that the alleged victim has no memory of the alleged incident, a fact included in Pogrebin and Kelly’s book. Omitting this crucial fact was one of the worst cases of journalistic malpractice in recent memory, an error the authors pinned in part on their editors. It took the Times until almost midnight Sunday to append an editor’s note informing readers that “the female student declined to be interviewed and friends say that she does not recall the incident.” They provided no indication they had any corroboration besides Stier’s claim that the alleged incident occurred, and they failed to report that Max Stier had done work for President Bill Clinton in the 1990s and that his wife’s judicial nomination died in 2016 because of the Republican-controlled Senate.

In their book, The Education of Brett Kavanaugh, Pogrebin and Kelly conclude that their “gut reaction” is that the uncorroborated allegations made by Christine Blasey Ford and Deborah Ramirez about a teenaged Kavanaugh “rang true.” But the authors strain to not see their own reporting in order to justify that conclusion. What the book reveals is that one year after Kavanaugh’s confirmation fight tore the country apart, the uncorroborated allegations against him have actually become less believable.

The only real bombshell in their book is the first on-the-record interview of Christine Blasey Ford’s lifelong friend Leland Keyser. Ford has claimed that when she was 15 years old, a 17-year-old Brett Kavanaugh assaulted her upstairs at a small gathering at which three other boys, Kavanaugh’s friends, and Keyser, Ford’s high-school classmate, were in attendance.

“I don’t have any confidence in [Ford’s] story,” Keyser told Pogrebin and Kelly. The details “just didn’t make any sense.”

As Ford’s only friend and the only girl at the alleged party, Keyser’s inability to corroborate any details of Ford’s accusation — and her insistence that she had no recollection of ever meeting Kavanaugh — was the most significant development in September 2018 that led to Kavanaugh’s confirmation.

But now the authors had Keyser, in her own words, going much further, to say that Ford’s description of the party didn’t make any sense to her. Among other problems with the story was the fact that Keyser had only gone on a date or two with Kavanaugh’s friend Mark Judge, and the party she recalled attending with him was very different from the one Ford described. Keyser told the authors that she spent 70 hours a week that summer in question working and practicing golf after her shift ended at the Congressional Country Club. Ford says she was at a different country club prior to the early-evening party where the alleged assault occurred, but Keyser only recalled helping Ford practice diving at that country club early in the morning.

In Ford’s telling, on the night of the alleged assault, she, Keyser, and Kavanaugh’s friend P. J. Smyth each had precisely one beer at the alleged party, while Kavanaugh and Judge, whom Ford alleges was a witness to the alleged assault, were so extremely inebriated at an early evening “pre-gathering” that Kavanaugh and Judge were “pinballing off the walls.” Yet Keyser insists she has no recollection of ever meeting Kavanaugh.

Keyser told the authors she set up a second meeting with the FBI in October 2018 after she had come to doubt Ford’s story, information first reported by Mollie Hemingway and Carrie Severino in their July 2019 book Justice on Trial. She also discussed how she felt threatened by Keyser’s friends to bolster Ford’s story, information first reported by the Wall Street Journal last year. “I was told behind the scenes that certain things could be spread about me if I didn’t comply,” Keyser said.

Pogrebin and Kelly didn’t even mention Keyser’s explosive comments in their New York Times essay introducing their book. They cast doubt on Keyser’s memory in the book because she developed substance abuse problems later in life and point out that Keyer’s statements obviously don’t disprove Ford’s claim.

In order to justify their conclusion that allegations against Kavanaugh “rang true,” the authors perpetuate several myths. For example, they write that Ford “has no apparent political motivation to bring down Kavanaugh.” But they report in their own book that Ford “participated in a local Women’s March protesting Trump administration policies in 2017” and donated a small amount of money to progressive Democrats. Ford’s lawyer Debra Katz said that Ford was partly motivated by a desire to put an “asterisk” next to Kavanaugh’s name.

Kavanaugh “will always have an asterisk next to his name. When he takes a scalpel to Roe v. Wade, we will know who he is, we know his character, and we know what motivates him,” Katz said in a speech at the University of Baltimore’s Feminist Legal Theory Conference in April 2019. “That was part of what motivated Christine.” Katz’s comments were first reported by Ryan Lovelace in his book Search and Destroy.

To bolster Ford’s credibility, Pogrebin and Kelly write, “We have seen no evidence of Ford fabricating stories, either recently or historically.” They make a passing mention of the fact that Ford said she has a fear of flying, but her ex-boyfriend said in a sworn affidavit he never knew of Ford’s fear of flying during their several years of dating.

But Ford didn’t merely claim that she had a fear of flying; her attorneys told Senate Republicans that her fear of flying was so great she needed the September 2018 Senate hearing delayed several days in case she needed to travel to Washington, D.C., by car.

“I was hoping that [the senators] would come to me, but then I realized that was an unrealistic request,” Ford said in Senate testimony. “So that was certainly what I was hoping, was to avoid having to get on an airplane, but I eventually was able to get up the gumption with the help of some friends, and get on the plane.”

The Senate Judiciary Committee had in fact offered to travel to California, and Ford’s attorneys have claimed she was informed of the request. Ford indicated she was unaware of the request at the hearing: “If you were going to come out to see me, I would have happily hosted you and had you — had been happy to speak with you out there,” she told Judiciary Committee chairman Chuck Grassley. “I just did not — it wasn’t clear to me that that was the case.”

Ford flew on a private jet to Washington, and at the September 27, 2018, hearing, prosecutor Rachel Mitchell, who interviewed Ford for Senate Republicans, asked Ford how she got to the mid-Atlantic just two months earlier for a separate trip. “Also by airplane. I come here once a year during the summer to visit my family,” Ford replied.

“In fact, you fly fairly frequently for your hobbies and . . . you’ve had to fly for your work. Is that true?” Mitchell asked.

“Correct, unfortunately,” Ford replied.

Mitchell then noted that Ford had mentioned interest in surf travel to “Hawaii, Costa Rica, South Pacific islands, and French Polynesia. Have you been all to those places?”

“Correct,” Ford replied.

“By airplane?”

“Yes,” Ford said.

The evidence is fairly strong that Ford herself perpetuated a falsehood — that her fear was so great she might need to drive across country — in order to delay the hearing, which provided more time for potentially damaging information about Kavanaugh to emerge.

As Democratic senator Richard Blumenthal said when interrogating Kavanaugh, “Falsus in uno, falsus in omnibus.”

“False in one thing, false in everything,” Blumenthal said. Meaning that jurors are instructed that “they can disbelieve a witness if they find them to be false in one thing.”

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Pogrebin and Kelly also ignore their own reporting in order to bolster a separate allegation from Kavanaugh’s Yale classmate Deborah Ramirez that Kavanaugh exposed himself to her at a drunken dorm party during their freshman year.

“The people who allegedly witnessed the event — Kavanaugh’s friends Kevin Genda, David Todd, and David White—have kept mum about it,” Pogrebin and Kelly write. Earlier in the book they acknowledge that David Todd and David White and another classmate issued a joint statement to The New Yorker when the allegation first emerged. Their statement said: “We can say with confidence that if the incident Debbie alleges every occurred, we would have seen or heard about it — and we did not. The behavior she describes would be completely out of character.”

Pogrebin and Kelly also conclude that their reporting suggests that the Ramirez allegation was “the talk of campus.” In fact, they name precisely one Yale student, Kenneth Appold, who says he was told Kavanaugh did what Ramirez now alleges. The New Yorker had already reported in October 2018 that the eyewitness who supposedly told Appold about the incident “said that he had no memory of the incident.” Only one other Yale student recalled that he heard about an incident similar to the one described by Ramirez, but he did not recall Kavanaugh’s or Ramirez’s name being associated with it. A few others who did not attend Yale later heard about Ramirez experiencing some sort of negative incident, but did not recall Kavanaugh’s name being mentioned.

The Ramirez allegation about Kavanaugh remains as dubious as it was when, in an attempt to establish a pattern of abusive behavior by Kavanaugh, it was published by The New Yorker in September 2018. “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 in September 2018. Ramirez was willing to make the allegation, the New Yorker reported at the time, only after “six days of carefully assessing her memories and consulting with her attorney.” As liberal Washington Post columnist Karen Tumulty wrote in September 2018: “The New Yorker’s decision to publish the story is questionable, given the paucity of corroboration for an incident that would have had so many witnesses and no doubt created a buzz in the gossip-charged environment of a college dormitory.”

What new supposedly negative information did Pogrebin and Kelly uncover during their year-long investigation of Kavanaugh? That in college Kavanaugh, after a night of drinking, allegedly banged his hands on the pick-up truck belonging to a fellow member of a Yale secret society. The pick-up truck, readers are informed, was not damaged. Really.

Another myth is perpetuated in the book by former Obama-administration official Ben Rhodes. “The only way this guy [Kavanaugh] could survive was to go full Trump,” Rhodes says. “His only lifeline was to become a full-on Trump Republican.”

The confirmations of justices Neil Gorsuch and Brett Kavanaugh certainly appear to be the most consequential conservative achievements of the Trump presidency, but to accuse Kavanaugh of going “full Trump” is to suggest that he embraced the worst aspects of Trump’s temperament and character to survive the Senate hearings.

This is false. Kavanaugh did not lie. He did not smear his accusers. He forcefully and accurately attacked the partisan motivations of Senate Democrats with righteous indignation, much like Clarence Thomas had once accused Senate Democrats of a “high-tech lynching.” Kavanaugh’s performance was extraordinarily emotional, but the anger and emotion that erupted that day occurred in response to Senate Democrats’ taking seriously the insane claim that Kavanaugh may have been a serial gang rapist in high school, the outrageous allegation pushed by Michael Avenatti’s client Julie Swetnick.

Looking at the available evidence one year after the bitterly partisan hearings, it is fair to say that Kavanaugh’s confirmation was actually a victory for truth over tribalism. The key witness, Leland Keyser, is a Democrat who owns a podcast with her ex-husband Bob Beckel, the veteran Democratic commentator and campaign official. She chose to tell the full truth as she saw it rather than win at any cost.

When Maine moderate GOP senator Susan Collins explained her decisive vote for Kavanaugh, she delivered a 45-minute disquisition on the importance of the presumption of innocence and the burden of proof. Ford’s answers to prosecutor Rachel Mitchell’s sober-minded and respectful questions were what cast doubt on Ford’s allegation. In a memo, Mitchell carefully explained the discrepancies in Ford’s story, and how Ford first discussed an alleged assault at a therapist session in May 2012, about a month after The New Yorker reported that Kavanaugh would be Mitt Romney’s most likely Supreme Court nominee. It was Arizona senator Jeff Flake — the retiring “NeverTrump” Republican who had no electoral motivation to confirm Kavanaugh — who insisted on giving the FBI an extra week to investigate the Ford and Ramirez allegations, an investigation that helped clear Kavanaugh’s name to the extent it could be cleared.

The simple fact remains that every other real villain taken down by the #MeToo movement has demonstrated a pattern of abuse. The absence of such a pattern and the lack of contemporaneous evidence is why the allegations against Kavanaugh did not sink him. And the actions of Leland Keyser, Rachel Mitchell, Jeff Flake, and Susan Collins demonstrated that Kavanaugh’s confirmation was ultimately a triumph for civility, decency, due process.

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