Mitch McConnell promptly summoned the Republicans on the Judiciary Committee to his elegantly appointed office in the Capitol to discuss the contours of the investigation. He also invited Susan Collins and Lisa Murkowski, since their votes were still up for grabs. The only non–committee members present, they felt a bit like they had been called to the principal’s office.
In his intimate red-walled conference room, the majority leader asked the senators what they needed to feel comfortable that the allegations were being properly investigated. They discussed the key witnesses they wanted the FBI to interview and when they could expect to receive the findings. The senators agreed that there was no need to waste time on Swetnick’s charges, but they wanted Ford’s and Ramirez’s allegations included. Later that day the Senate Judiciary Committee announced, “The supplemental FBI background investigation would be limited to current credible allegations against the nominee,” a generous description of Ramirez’s story and a subtle dig at Avenatti and his client, “and must be completed no later than one week from today.”15
Don McGahn, who planned to step down as White House counsel after Kavanaugh was confirmed, had to request the investigation, so the liberal media tried to discredit it by association with him. Eugene Robinson, a columnist for the Washington Post, said, “If it turns out, as we suspect, that on his way out, Don McGahn squashed the FBI investigation of his good friend Brett Kavanaugh so it wouldn’t find out anything bad, that will be another part of Don McGahn’s legacy and also a rallying point for Democrats in the midterms.”16
The view that McGahn was limiting the investigation was spread by an NBC report about the exclusion of Michael Avenatti’s gang rape allegations, which was depicted as a “significant constraint” that would “make it difficult to pursue additional leads” and was “at odds with what some members of the Senate judiciary [sic] seemed to expect.”17
In fact, McGahn had broadened the scope of the investigation beyond what the Senate requested. McConnell wanted it kept within narrow limits, but McGahn had heard that Flake and Coons thought the proposed investigation was too narrow. They wanted to make sure that the FBI would run down any leads that arose from the initial interviews. Coons had already announced his opposition to Kavanaugh’s confirmation, so his views carried little weight, and he had exaggerated what Flake had agreed to. But McGahn and Flake, who had known each other since Flake was in the House, wanted to be straight with each other. McGahn assured senators that the White House would not get in the way of any follow-up.
By demanding a one-week investigation, Flake had hoped to keep the confirmation on track, but some senators were not interested in abandoning their delay tactics. Bernie Sanders now demanded that the FBI also investigate Kavanaugh for perjury, charging that the judge had made numerous untruthful statements. Grassley responded sarcastically, reminding the once and future presidential candidate that he had called for a mobilization against Kavanaugh less than twenty-four hours after his nomination was announced. “Am I to take from your letter that you are now undecided and willing to seriously engage with the Senate’s advice-and-consent constitutional duties related to the nomination of Judge Kavanaugh to serve as an associate justice on the Supreme Court of the United States?” Grassley asked. “If so, we should have a conversation about what information you need to assist you in making your decision, and I look forward to that conversation.”18
As the senators waited for the results of the supplemental background investigation, the media began picking up Democratic talking points. Kavanaugh’s indignation at being accused of sexual assault and gang rape betrayed, said Senator Feinstein, a belligerent and intolerant temperament unsuited to the work of a judge. Nancy Pelosi, the House minority leader, pronounced him “hysterical” and temperamentally unfit to serve on the Supreme Court.19
The Associated Press took it from there, reporting the next day that “Brett Kavanaugh’s angry denunciation of Senate Democrats at his confirmation hearing could reinforce views of the Supreme Court as a political institution at a time of stark partisan division and when the court already is sharply split between liberals and conservatives.”20
Senator Collins thought it was completely understandable that a nominee would be emotional when accused of serial gang rape and other crimes, though she wished he had handled Senator Klobuchar’s questioning better. In contrast to some of her peers, Collins had paid attention to the first hearings and remembered that a representative from the American Bar Association had testified that a committee had evaluated Kavanaugh for “compassion, decisiveness, open-mindedness, courteousness, patience and freedom from bias.” They found that “lawyers and judges overwhelmingly praised Judge Kavanaugh’s judicial temperament,” attesting that he “is very straightforward,” “maintains an open mind about all things,” “is an affable, nice person,” “is easy to get along with and even has a good sense of humor,” “is really a decent person,” “is thoughtful, fair-minded—always fair-minded in his questions to counsel.” In fact, Kavanaugh had received the highest rating in the category. Still, temperament became such an issue that Kavanaugh was forced to respond with an op-ed column in the Wall Street Journal defending his temperament.
Kavanaugh’s opposition shifted its attention to “temperament” in large part because each of the three main allegations against him was crumbling. Ford had made her case publicly to a friendly press. From a prosecutor’s perspective, that was an outrageous way to handle allegations. When presented with information about a high-profile person, for example, allegations of corruption, it would be absurd to publicize the allegations without first going through extensive investigation to determine the credibility of the accuser, whether there was corroborating evidence, and whether there was contrary evidence. Rachel Mitchell had begun what typically would have been the first step in the process—determining whether Ford had a case. Even Mitchell’s mild-mannered inquiries were much tougher than anything that had been posed by a journalist to that point.
Mitchell spoke in a private meeting of all the Republican senators after Thursday’s hearing finished, announcing that she would have not been able even to obtain a search warrant, much less to have prosecuted a crime, with the minimal evidence offered at the hearing.21 Her by-the-book approach and analysis of the evidence prompted a round of applause. She was so well received, particularly by undecided senators, that she was asked to elaborate in a written report submitted to Republican senators on Sunday: “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.”22
Mitchell noted that Ford’s account of when the assault occurred was inconsistent, ranging from the early to the mid-1980s. She told a therapist she had been in her late teens but later told the committee that she was fifteen. While it is common for victims to be uncertain about dates, Mitchell said, Ford never explained why “she was suddenly able to narrow the timeframe” to a particular year, as memories would not typically become more precise over time.