Bench Memos

Law & the Courts

Ruth Marcus Has Strong Opinions but Bad Facts

Supreme Court Associate Justice Brett M. Kavanaugh waits at the U.S. Capitol Rotunda on Capitol Hill on Monday, Dec. 03, 2018 in Washington, DC. (Jabin Botsford/Reuters)

Washington Post editor Ruth Marcus’s forthcoming book on the Kavanaugh confirmation has not been released to the public, but it has already come under fire in a report by Brian Flood for spreading fake news. I recently obtained a copy of Marcus’s book and can confirm that there are even more errors that have yet to be discussed, and since some of them concern me and my friends, I am in a position to correct the record.

A summary of the book by Robert Barnes suggested that Marcus’s book would seek to undermine the conservative legal movement, and especially Leonard Leo’s influence in the judicial nomination and confirmation process. Having made my way through the book, I can say that it is even more catty and obsessive about Leo than the excerpts suggest. The cattiness and obsession play out in the form of jabs at his personality, and anecdotes seemingly fabricated by sources with an ax to grind. For example, Marcus asserts that after multiple allegations were lodged against Kavanaugh, Leo started panicking and told a Senate staffer it was time to “pull the plug” on the nomination. The claim is laughable, which is why it was immediately debunked by Leo and the most senior officials involved in the process.

In the process of writing our own bestselling book on the Kavanaugh confirmation, Justice on Trial, Mollie Hemingway and I spoke to every single major official and decision-maker in the legislative and executive branches, up to and including the president. Our reporting lined up with Flood’s, showing Leo to have been one of the justice’s fiercest defenders, someone who never wavered. Marcus is fuzzy about her sourcing on the claims against Leo, but there may not have been more than one source, and that person must have been confused or driving an agenda.

So perhaps I shouldn’t have been shocked when I read Marcus making similar groundless allegations about me. She describes me as “surprisingly noncommittal” when asked on MSNBC on the day before the reopened hearings about whether Kavanaugh should be confirmed. Funny.

I encourage you to watch the interview to which she points. It focused on the Julie Swetnick allegations, which had been revealed literally immediately before I went on air, while I was waiting in the green room. Only an agenda-driven advocate would argue that I was running away from Kavanaugh.  I pointed out repeatedly that the new allegations did not yet have any corroboration and that Michael Avenatti’s pattern of releasing them via Twitter rather than to the FBI or the committee was suspect. I also described how the two previous allegations had followed a pattern of lack of corroboration and had eventually unraveled with alleged witnesses failing to remember the event at all.

This is the quote on which Marcus relies: “I think we have to look into this further. From what we know so far, we don’t have corroboration yet. If the Senate votes on this soon, I think they would have to go on what they know so far. I know the Senate Judiciary Committee is going to look into this before they would move forward to a vote.” So, while I said this brand-new allegation should be evaluated — I’ve never proposed that allegations should be reflexively dismissed — there wasn’t corroboration, and without corroboration, it shouldn’t impact the nomination.

At the time, MSNBC seized on this interview to temporarily halt JCN ads running in favor of Kavanaugh, claiming I had disavowed them. Also not true. At the time, I responded immediately with a tweet making my own and JCN’s continued support crystal clear. I clarified that the further investigation to which I had referred was the Senate looking into corroborating evidence and that I still fully supported Kavanaugh.

Despite the contemporaneous clarification that was included in the Huffington Post article Marcus cited, she suggested I was abandoning Kavanaugh — perhaps because that fit with her equally implausible narrative about Leo going wobbly.

It’s just laughably untrue. After MSNBC in the afternoon, I was on CNN again that same night defending him. I was on Fox News the next morning explaining that the Senate Judiciary Committee could take sworn testimony from the other accusers that has the same penalty as perjury and that there was no need to delay the Friday committee vote. I said the same thing on Fox again that night — that uncorroborated smears shouldn’t be allowed to delay a vote. Are those the actions of someone who is noncommittal about confirmation?

This sort of dishonest reporting is precisely why I refused to speak with her, and it might also explain why she was unable to access the most of the top officials involved in the process. Marcus is entitled to her opinions about the conservative legal movement, but she isn’t entitled to her own facts.  ​

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