Senator John Cornyn of Texas, following Whitehouse, stated, “I can’t think of a more embarrassing scandal for the United States Senate since the McCarthy hearings.”
Senator Amy Klobuchar of Minnesota stood out among Democrats for her respectful treatment of the nominee in the previous hearings and in her meeting with him, as he noted with gratitude at the start of her questioning. After pressing him to ask the president to launch an FBI investigation, she turned to the subject of drinking, asking if he had ever had so much to drink that he could not remember the previous evening. He said no. She asked again. Obviously annoyed, he rudely responded, “Have you?” Taken aback, she said, “Could you answer the question, judge? I just—so you—that’s not happened? Is that your answer?” In circumstances that, admittedly, would have strained anyone’s patience, Kavanaugh’s good judgment seemed to abandon him momentarily, and he doubled down: “Yeah, and I’m curious if you have.” Klobuchar responded briskly, “I have no drinking problem,” and Kavanaugh added, “Nor do I.” They smiled at each other, and the questioning paused for a recess.
The media had by now figured out how well things were going for Kavanaugh. It wasn’t just his testimony, but his confidence in handling hostile questions. Lindsey Graham’s surprising defense—the first defense of Kavanaugh since Senator Grassley’s at ten o’clock that morning—was cathartic for those Americans whose views had been sidelined by the media in the previous two weeks.
Kavanaugh’s one misstep was his cheeky response to Senator Klobuchar. As soon as they returned to the holding room, McGahn told Kavanaugh it was time to reel it in. Ashley told Kavanaugh to calm down and encouraged him to find a way to address what he had said. Kavanaugh had not intended to be disrespectful; of all the Democrats on the committee, she was the one he would least want to offend.
As soon as the break ended, he apologized to Senator Klobuchar publicly.
The team also realized that the hearing was going as well as could be expected. McGahn told Kavanaugh that he had befuddled the Democrats. His powerful punches were the last thing they expected and made them look foolish for asking about high school antics. It was a good time to cool things down, as he did when questioned by Senators Coons, Harris, Hirono, and Booker.
He did punch back when Senator Blumenthal brought up the “Renate alumnius” again. The senator had begun by condescending to Kavanaugh about jury instructions, stumbling over the common law principle Falsus in uno, falsus in omnibus (“False in one thing, false in everything.”) Blumenthal, trying to impeach Kavanaugh’s credibility, was the last senator who should have pursued this line of argument. He had previously misled the voters of Connecticut about his service in Vietnam.
Many Supreme Court nominees have referred to the galling indignity of having their character questioned by senators whose own characters are seriously besmirched. Joe Biden led the Senate Judiciary Committee’s Bork hearings at the same time his presidential ambitions were sinking because of his plagiarism. Ted Kennedy’s lengthy list of sexual improprieties never inhibited the “Lion of the Senate” from smearing nominees of exemplary character. Robert Packwood of Oregon, one of only two Republican senators to vote against Clarence Thomas, citing his concern for women’s rights, was forced to resign from the Senate four years later under threat of expulsion for a “habitual pattern of aggressive, blatantly sexual advances, mostly directed at members of his own staff or others whose livelihoods were connected in some way to his power and authority as a Senator.”
The rest of Kavanaugh’s hearing was relatively quiet. The Republicans put the Democrats on the defensive for playing games with Ford’s allegation. Pressed by Senator Cornyn, Dianne Feinstein found herself insisting that she was not responsible for leaking Ford’s letter, even though her office was the only one that had it. “I don’t believe my staff would leak it,” she said but admitted, “I have not asked [them] that question directly.”20 It was far from a convincing denial.
By the time the senators spoke to reporters afterward, it was the Democrats who were utterly deflated, while the Republicans spoke with optimism about the committee vote the next day.
The Kavanaughs left immediately. Both Presidents Trump and Bush called the judge to commend him for his testimony. The couple attended a gathering that evening at the McCalebs’ house. It would take time for Kavanaugh to appreciate the extent of his support, but that night he began to see how much his hearing had meant to people in his life. Text messages and emails poured in from people he knew in high school, college, law school, the independent counsel’s office, and the White House. He heard from people he knew during his clerkships and parents of children he had coached. It was a survey of his life’s work, and it was reassuring and encouraging.
CHAPTER TEN
The Anteroom Where It Happened
It had been a rough couple of years in the Senate for Jeff Flake. A conservative from the small-government and free-trade wing of the GOP, he couldn’t get over Donald Trump’s brash political style, even as the president remained popular with Republican voters. His anti-Trump manifesto, Conscience of a Conservative, sealed his electoral fate. Shortly after it was published in the summer of 2017, he announced that he would not run for reelection. John McCain, the senior senator from Arizona, died August 25, and the country had gone through weeks of remembrances of the former prisoner of war who had played a major role in politics for thirty-five years. McCain was particularly well regarded in Washington for his opposition to Trump, and Flake thought of him as a father figure and mentor.
Despite his conservative voting record, Flake could be contemptuous of Republican voters, and his visceral aversion to President Trump sometimes caused him, like McCain, to break from the Republican caucus. Nevertheless, he was considered a likely vote for Kavanaugh.
As the allegations piled up, however, Flake agonized about his vote, bristling at the pressure from his party’s leadership. Democrats recognized early on that he might waver. Senator Chris Coons, who was friendly with Flake and worked with him frequently, was a key to the effort to turn him. In the first hearing, Coons questioned Kavanaugh closely about executive power, which he knew to be a concern of Flake’s. Kavanaugh, for his part, seemed to reassure Flake by clarifying that he did not view executive authority as unlimited. After the accusations of sexual assault emerged, Coons shifted to emphasizing the need for a thorough investigation.
Republicans trying to secure Flake’s vote recognized his sympathy with Ford and other victims of sexual assault, so they did not rely solely on the lack of any evidence for the accusation. They reminded him that Brett Kavanaugh was a human being, a man with a wife and children. If Flake voted against him, he would not only keep a justice of sound constitutional principles off the Court but also destroy a man’s reputation. Senator Mike Lee, a former federal prosecutor, felt he could walk Flake, not a lawyer, through the legal analysis. In the United States, the accused is considered innocent until proved guilty. To be convicted of a crime, his guilt must be “beyond a reasonable doubt,” while in civil trials, the burden of proof is lighter—a “preponderance of the evidence,” that is, it is more likely than not that the defendant is liable. Kavanaugh was not on trial, of course, but the presumption of innocence—an essential part of what Americans mean by “due process”—ought to guide the senators as they evaluated Ford’s accusation.