The Corner

Law & the Courts

On The New Yorker’s Grossly Irresponsible Story

Supreme Court nominee Judge Brett Kavanaugh on Capitol Hill, July 10, 2018. (Leah Millis/Reuters)

Judge Kavanaugh labels The New Yorker’s report a “smear, plain and simple.” He should be applauded for his restraint. I am struggling to remember reading a less responsible piece of “journalism” in a major outlet.

The piece starts out not with a summary of the story, but with the news that Democrats in Washington are taking it seriously — a weaselly attempt to pass the buck if I ever saw one (“People are saying!”). After that throat clearing, it is acknowledged that the person making the accusation around which the piece revolves had not mentioned it until Kavanaugh was nominated, “was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty,” and agreed to make the charge on the record only after she had spent “six days [] carefully assessing her memories and consulting with her attorney.”

There are no corroborating witnesses. None. Of the “dozens” of classmates The New Yorker contacted, all either failed “to respond to interview requests . . . declined to comment, or said they did not attend or remember the party.” Indeed, we learn late in the piece that the authors could not establish that Kavanaugh was even there. “The New Yorker,” the tenth paragraph begins, “has not confirmed with other eyewitnesses that Kavanaugh was present at the party.” The only “evidence” provided comes from a “classmate” who was not at the party, but is certain he heard about the incident, and from “another classmate” who thinks he heard about an incident that could vaguely resemble the one alleged, but doesn’t know to whom it was done, or by whom. Or, as we would traditionally put it: The only proof provided is rumor.

There are a few quotes from figures who attest to the accuser’s character. And, cutting in the other direction, there is a classmate who suggest that the accuser’s accusation “may have been politically motivated.” But these contributions are so much gossip and should be treated as such. What matters is that there is no scaffolding beneath this story. As the New York Times reports:

The Times had interviewed several dozen people over the past week in an attempt to corroborate her story, and could find no one with firsthand knowledge. 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.

Which is to say that there is as much corroboration behind this accusation as there was behind the last one: None. In and of itself, this makes The New Yorker’s story irresponsible, albeit not out of character for Jane Mayer. But when one considers that the forces arrayed against Kavanaugh’s nomination have taken to arguing that the mere existence of an unsubstantiated allegation should be sufficient to cause a withdrawal . . . well, it looks reckless beyond all reason.

Which may, of course, have been exactly the point.