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The Kavanaugh Fight Left Wounds That Will Never Heal

From the scorched earth of last summer's confirmation battle, nothing good can bloom.

Jim Bourg/Pool/Getty Images

It’s hard to see how The New York Times could have handled a new allegation against Justice Brett Kavanaugh any worse. Two of the Times’ reporters, Robin Pogrebin and Kate Kelly, wrote a book on last year’s corrosive confirmation battle. The paper published an essay adapted from it in its Sunday Review section. It included a previously unreported allegation that Kavanaugh exposed himself during a “drunken dorm party” at Yale and thrust himself at an unnamed woman classmate—which Kavanaugh subsequently denied.

That account, provided by classmate Max Stier, seems to bolster the story told by Debbie Ramirez, who said last year that she experienced similar behavior from Kavanaugh during her time at Yale. But the Times buried the account within the article and distributed it on social media with a bizarre, off-putting caption. Multiple Democratic candidates responded by calling for the justice’s impeachment. Then the Times updated the excerpt with additional context: “The book reports that the female student declined to be interviewed and friends say that she does not recall the incident.”

This is not an article about the Times’ bewildering editorial decisions. The raw emotions that they unearthed only underscore the wound that Brett Kavanaugh’s confirmation battle left in the American body politic. Republicans won, at least in the sense that Kavanaugh now sits on the nation’s highest court. But their victory came with immense costs. Conservatives’ zeal to confirm him deprived Americans of their best opportunity to get the fullest possible account of what actually happened. Without a baseline for consensus, that wound will only continue to fester.

This may have been inevitable. One of the great imbalances in American politics is how much more the right cares about the make-up of the federal judiciary than the left. Anthony Kennedy’s retirement gave the conservative legal movement the opportunity it had sought for more than 40 years: five reliably conservative justices on the Supreme Court, untroubled by swing justices or ideologically transient David Souters. The prospect that Hillary Clinton would name Antonin Scalia’s successor helped keep a fractured Republican Party largely united behind Donald Trump in the 2016 election. Their bet paid off in the form of Neil Gorsuch and Kavanaugh.

After Trump nominated Kavanaugh, Republicans built a confirmation process where placing him on the court took priority over scrutinizing his record. Kavanaugh had spent most of his career after law school working to advance conservative interests: as a staff attorney in the independent counsel’s office who investigated Vince Foster’s suicide and co-wrote the Starr Report; as a member of George W. Bush’s legal team during the Florida recount battle; as a lawyer in the White House counsel’s office who vetted prospective federal judges. In 2006, Bush nominated him for the D.C. Circuit Court of Appeals, one of the most influential courts in the nation.

Most of that work took place inside the federal government, which holds all the records from the Starr investigation and the Bush administration. By some estimates, Kavanaugh’s paper trail amounted to more than 1 million documents—a far greater mass of records than any previous nominee. Some of those records couldn’t be released under federal law. But many of them could be, and Republicans spent last summer ensuring that most of them would remain undisclosed during the run-up to his confirmation. Kavanaugh’s Bush-era records were reviewed for release by Bill Burck, a Bush attorney and longtime GOP operative. The Trump administration ultimately withheld more than 100,000 pages of documents on executive-privilege grounds alone.

Those disputes largely faded into the background after Christine Blasey Ford’s allegation became public. Her account—that Kavanaugh had pinned her down and drunkenly groped her during a high school house party in the early 1980s—resonated with women across the country who’d faced similar treatment at the hands of men. So did the story of Debbie Ramirez, who later told The New Yorker that Kavanaugh had drunkenly exposed himself to her at a party when they both attended Yale. Kavanaugh unequivocally denied both allegations.

Senate Republicans largely avoided direct criticism of Ford after she came forward, at least at first. Instead, they outsourced that process to others. When Ford testified before the Senate Judiciary Committee, the panel’s eleven-man Republican majority hired Arizona prosecutor Rachel Mitchell to question her, rather than do it themselves. When it was Kavanaugh’s turn to testify, the senators quickly discarded Mitchell’s probing inquiries in favor of delivering jeremiads about the injustice of the allegations. Ramirez did not testify before the committee before it narrowly voted in favor of the judge’s nomination.

Republicans’ efforts to confirm Kavanaugh also received help from an unlikely source. Michael Avenatti, the lawyer-turned-liberal-celebrity who once represented Stormy Daniels, upstaged the publication of Ramirez’s story by announcing an accusation of his own. He released a sworn affidavit from Julie Swetnick, who had attended a D.C. high school at roughly the same time as Kavanaugh. The affidavit claimed Kavanaugh was present at parties in high school where women were gang raped. Her statement didn’t accuse him of taking part in the attacks, but said he witnessed them and helped spike people’s drinks. Kavanaugh denied the allegation, and some Republican lawmakers denounced it as well. An unnamed supporting witness identified by Avenatti later said she hadn’t seen Kavanaugh spike any drinks.*

There was already a simmering belief on the right that the Kavanaugh allegations were some kind of Democratic ploy. But more than a few conservatives had kept cautiously quiet after Ford’s account became public. Would they have remained so if Avenatti—an unambiguously partisan Trump foe with, to put it generously, a penchant for hyperbole—hadn’t gotten involved? Maybe not. Regardless, his involvement gave them cover to defend Kavanaugh more aggressively in public. “This was a turning point,” South Carolina Senator Lindsey Graham told the Times last year. “That allegation was so over the top, it created a moment that was scary, quite frankly. But that moment was quickly replaced by disgust.” Some Senate Democrats later complained to reporters that Avenatti had helped get Kavanaugh confirmed.

To secure the last few votes, Republicans also needed a way to defend Kavanaugh without calling Ford a liar outright. The solution came from Ed Whelan, a prominent figure in the originalist-industrial complex. Using the real estate website Zillow and a high school yearbook, he posted a series of tweets that argued a classmate of Kavanaugh’s had been the real perpetrator. Whelan later deleted the tweets and apologized for effectively accusing a random person of sexual assault. But the doppelganger thesis—Ford had been attacked, just not by Kavanaugh—became the standard argument among the nominee’s defenders.

“I listened carefully to Christine Blasey Ford’s testimony before the Judiciary Committee,” Maine Senator Susan Collins said in a floor speech announcing that she would vote for Kavanaugh, assuring his confirmation. “I found her testimony to be sincere, painful, and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life.” Then she then recited the inconsistencies she found in Ford’s account and the lack of evidence to support her story. It was a very sympathetic way to call her a liar.

Raw political expediency drove the proceedings above all else. With the 2018 midterm elections looming later that fall, the White House imposed time constraints on the FBI’s supplemental background check and put limits on who agents could interview and what they could investigate. The bureau only contacted ten people about the allegations and delivered its findings in a week. Their haste left stones unturned: the Times story last weekend, for example, reported that Stier had attempted to contact the FBI about what he saw at the party without success. But the FBI’s probe, in any event, wasn’t designed to ascertain the truth, or at least come close to it. It existed only to provide a fig leaf for a handful of moderate senators to vote for Kavanaugh.

That may have been politically convenient for Collins and Joe Manchin. But the truncated, half-hearted investigation ultimately did more harm than good for the nation. For all the conservative claims that liberals were abandoning due process to bring down Kavanaugh, it was Republicans who denied him the opportunity for a full-fledged inquiry into the allegations. A more thorough FBI investigation could have turned up more witnesses to corroborate the accounts of Ford and Ramirez. Alternatively, it might have even turned up more witnesses who might have supported Kavanaugh’s version of events.

The result is a lingering wound for the nation, one that will never be fully healed. “It hurt to watch Christine Blasey Ford recount a traumatic incident to a panel of repugnant old men, then be questioned and disbelieved publicly and cast aside to be alone with her death threats,” my colleague Libby Watson wrote on Tuesday. “It was emotionally and physically draining to watch a woman go through what so many women go through, but at the hands of the United States Congress; at America’s hands.”

That wound also lingers for the Supreme Court itself. Last year, I wrote that a Kavanaugh victory would likely push the American left to destroy the court as we know it in order to save it. Court-packing is now gaining traction in liberal circles even though the American public isn’t eager to embrace it. “Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity,” The Times’ Jamelle Bouie wrote on Tuesday. “There’s also the risk to legitimacy, to the idea of the courts as a neutral arbiter. But Trump and McConnell have already done that damage. Democrats might mitigate it, if they play hardball in return.”

Liberals are also contemplating other drastic steps. Vox’s Ian Millhiser wrote earlier this week that Congress could create a process for removing federal judges from the bench without impeachment, which requires a supermajority in the Senate. Even if such an idea weren’t impractical and constitutionally dubious at best, it would deal an irreparable blow to judicial independence. Massachusetts Representative Ayanna Pressley has also announced that she would introduce an impeachment resolution against Kavanaugh.

Political appetite for any of these steps, at least for now, is lacking. But Brett Kavanaugh is only 54 years old. Every time he takes part in a 5-4 decision on major issues like abortion rights or health care, the wound left by his ascension to the court will reopen, stinging liberals anew. Democrats may decide against taking concrete steps against the high court for now. The question is whether they’ll keep making that decision for the next thirty years.

*This article originally mistook  Julie Swetnick with an unnamed witness who backtracked on their original claims. It has been updated to reflect that Swetnick did not recant her claims. We regret the error.