As far as the chattering classes of D.C. were concerned, if Kavanaugh’s confirmation had any life left in it before Sunday evening, it was indisputably dead now.
For Kavanaugh, the moment was brutal. This was precisely why he had feared delaying a vote on his confirmation. Delays allowed his opponents to troll for people who’d be willing to say something—anything—to discredit him. Time was not his friend.
He wasn’t worried that the White House would pull his nomination. There may have been no White House in history more temperamentally suited to this fight. But that was only half the battle. He knew enough about U.S. senators to worry about their commitment throughout a long and unrelenting smear campaign. In fact, Senator Rob Portman, who had served as a de facto adviser as Kavanaugh met with other senators, let him know that some senators were taking the Swetnick allegations seriously. It was one of the only times that Kavanaugh reacted loudly, incredulous that anyone could believe such ridiculous claims.
He wasn’t reading the stories, not even the initial story in the Washington Post. Senator Orrin Hatch had advised him early in the process to turn off the news. But from the accounts he was given, he wondered who this person they were describing was. He had his flaws, but the media’s portrayals of him were simply unrecognizable.7
Kavanaugh had to act, so he issued a response to Ramirez’s allegations: “This alleged event from 35 years ago did not happen. The people who knew me then know that this did not happen, and have said so. This is a smear, plain and simple. I look forward to testifying on Thursday about the truth, and defending my good name—and the reputation for character and integrity I have spent a lifetime building—against these last-minute allegations.”8
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary,” wrote Justice Edward White in Coffin v United States, tracing it from Deuteronomy through Roman Law, Canon Law, and the Common Law and illustrating it with an anecdote about a fourth-century provincial governor on trial before the Roman Emperor Julian for embezzlement:
Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?”9
The presumption of innocence survives in America’s criminal courts, but it seemed to have vanished from the court of public opinion by the time of Brett Kavanaugh’s nomination. The #MeToo movement had drawn attention to the serious difficulties women had experienced in reporting sexual assault and harassment, but activists were now demanding complete credulity in response to any accusation, despite the prominent and recent cases of fabricated sexual assault charges against the Duke lacrosse team and a fraternity at the University of Virginia. A small but significant portion of sexual assault allegations—between 2 and 10 percent, according to empirical studies—are eventually deemed false.10
When asked, Senator Hirono refused to say that Kavanaugh enjoyed a presumption of innocence, suggesting, remarkably enough, that his judicial philosophy made him somehow less credible. “I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” she said.11 Senator Coons was even more direct, stating the next day that Judge Kavanaugh “bears the burden of disproving these allegations.”12 Senate Minority Leader Chuck Schumer of New York said, “There is no presumption of innocence or guilt when you have a nominee before you.”13
Senator McConnell pushed back against this abandonment of due process, citing as an authority a former senator who, as chairman of the Judiciary Committee, had presided over the confirmation hearings of Clarence Thomas. As the committee prepared to hear from both Anita Hill and Judge Thomas, Senator Joe Biden had told the nominee, “The presumption is with you. With me, the presumption is with you, and in my opinion, it should be with you until all the evidence is in and people make a judgment.”14 In fact, Hill’s testimony came nowhere near the standard necessary to credibly accuse, much less convict, Thomas of sexual harassment. She had no contemporaneous witnesses, was contradicted by contemporaneous witnesses, was caught in several lies under questioning, had a dramatically shifting story, and was generally viewed by the American public as lacking credibility. Almost three decades later, Biden, now a former vice president contemplating a run for president in 2020, reversed himself as soon as Ford’s allegations were made public: “For a woman to come forward in the glaring lights of focus, nationally, you’ve got to start off with the presumption that at least the essence of what she’s talking about is real, whether or not she forgets facts, whether or not it’s been made worse or better over time.”15
It wasn’t just senators. Faculty, students, and alumni of Yale, obviously unmoved by the collegiate connection, supported Ramirez’s call for an FBI investigation of Kavanaugh. Four dozen faculty members issued a letter demanding an immediate halt to the confirmation process.16 Professors in the law school canceled thirty-one classes to accommodate students busy with a sit-in.17 And more than one thousand female Yale Law School graduates signed a letter supporting Kavanaugh’s accusers.18 Corroboration of the accusations could wait; signatures were being collected even before the New Yorker published its article about Ramirez. Alumni reported furious efforts to assemble mass denunciations of Kavanaugh and to ferret out unflattering stories about him from college. Some were uncomfortable with the rush to judgment but felt it was too dangerous to speak up on Kavanaugh’s behalf.
At the same time, it began to appear that Ramirez’s story might not hold up under scrutiny. The New Yorker article itself contained details that undercut its credibility. It acknowledged that Ramirez had “significant gaps” in her memories, that she was reluctant to speak with certainty about Kavanaugh’s role in the incident, that it took her six days of “assessing her memories” and consulting with an attorney provided by Democrats to name Kavanaugh, and that a robust effort to find eyewitnesses failed to turn up anyone who could confirm that Kavanaugh was even present at the party.
Four other classmates, two of whom were allegedly involved in the incident and a third whose husband was allegedly involved, all said the story was ridiculous. “The behavior she describes would be completely out of character for Brett. In addition, some of us knew Debbie long after Yale, and she never described this incident until Brett’s Supreme Court nomination was pending,” said her classmate Dan Murphy.
Karen Yarasavage said she was best friends with Ramirez at the time and had never heard of the incident. “We shared intimate details of our lives. And I was never told this story by her, or by anyone else. It never came up. I didn’t see it; I never heard of it happening,” she said. Perhaps most damaging to the credibility of the story is the effect heavy drinking may have had on Ramirez’s recollection of what took place in 1983 or 1984. Ramirez admitted she “quickly became inebriated” at the party, ending up “on the floor, foggy and slurring her words.”