Supreme Court

How Did the Democrats Step on This Rake? Again?

Anger over the rightward shift of the Supreme Court and the misguided “Believe Women” campaign are a combustible mixture.
September 20, 2019
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Justice Brett Kavanaugh. (Photo by Chip Somodevilla/Getty Images)

Last Saturday night, the Ghost of News Cycles Past blew in with a bizarre new twist in the year-old Brett Kavanaugh Supreme Court confirmation drama. A New York Times essay by staff reporters Robin Pogrebin and Kate Kelly, adapted from their about-to-be-published book, The Education of Brett Kavanaugh, trumpeted shocking revelations about the sexual misconduct charges that nearly torpedoed the Kavanaugh nomination in the fall of 2018. Pogrebin and Kelly wrote that one of the two main accusers, former Yale classmate Deborah Ramirez—who claimed that Kavanaugh thrust his exposed genitals in her face at a boozy dorm party—had much more corroboration for her account than previously known, with at least seven people attesting to some knowledge of the incident. More shocking still, there was now talk of a second alleged victim at Yale: A male alumnus, Max Stier, had reportedly witnessed an incident at another party in which a very drunk Kavanaugh had his pants down and some other male students pushed his penis into a female student’s hand.

A blue tsunami of outrage rose on Twitter. The hashtag #ImpeachKavanaugh exploded. (As of Thursday morning, it was still going at more than 800 tweets an hour.) Several Democratic presidential candidates, including Sens. Elizabeth Warren and Sen. Kamala Harris, called for impeachment proceedings.

And yet by Tuesday, when Rep. Ayanna Pressley filed a resolution urging the House Judiciary Committee to start aprobe into the Kavanaugh allegations, the story’s momentum had not only been lost but reversed, with the Times under fire for publishing the sensational material while omitting the rather important caveat, found in the book, that the alleged new victim wasn’t talking, and her friends said she did not recall such an episode. (This fact was added to the story as a “clarification.”) Meanwhile, the new corroboration for Ramirez’s account had turned out to be a nothingburger: a few people saying they’d heard rumors of an indecent exposure incident similar to what Ramirez described, but with no mention of Kavanaugh as the offender. Hardly the “talk of the campus” that the authors suggested.

By Wednesday, when The Education of Brett Kavanaugh hit the bookstores, Democrats were backing away from the impeachment call, and a Washington Post analysis ruefully noted that the Republicans had turned the Kavanaugh rematch in their favor.

How did the Democrats step on this rake?

The left’s Kavanaugh Derangement Syndrome is a highly combustible mixture of two things: anxiety and anger over the rightward shift of the Supreme Court—particularly over the fate of Roe v. Wade—and the #MeToo movement with its “Believe Women” creed and its tendency to treat the lives of women and girls in modern-day America as a hellscape of sexual abuse, violence, and misogyny. As the two converged, it made total sense that Kavanaugh, the man who (from this perspective) was likely to consign American women to reproductive slavery, should be an actual abuser of women as well. Deborah Katz, the attorney for Kavanaugh accuser Christine Blasey Ford, made this starkly explicit in a speech to the Feminist Legal Theory Conference at the University of Baltimore back in April when she asserted that Kavanaugh “will always have an asterisk next to his name” thanks to Ford’s testimony:  “When he takes a scalpel to Roe v. Wade, we will know who he is, we know his character, and we know what motivates him.”

Or, as singer/songwriter/activist Bree Newsome Bass put it on Twitter in the #ImpeachKavanaugh hashtag: “Being empowered to assault women at Yale, then hold a lifetime judgeship making decisions over their bodies, is what makes him part of the ruling white patriarchy.” 

And yet despite multiple allegations, no solid case against Kavanaugh ever emerged.

For the record, unlike most Kavanaugh supporters, I don’t believe that Ford’s story of being sexually assaulted by Kavanaugh at a party as a teenager has been discredited. I’ve never found it plausible that Ford out-and-out made it up—or made Kavanaugh the designated scapegoat for an assault that was committed by someone else—just  to sink Kavanaugh’s Supreme Court nomination. For one, this theory requires us to believe that Ford started laying the seeds of her plot back in 2012, when her husband says she first named Kavanaugh as her assailant—or, if one dismisses the husband’s confirmation as swayed by marital loyalty, at least since the early summer of 2016, when she apparently began to identify her assailant as a “federal judge” to friends. (And this at a point when Trump’s election victory was regarded as extremely unlikely.) It seems far-fetched for a woman with a respectable career and family life and with no history of erratic behavior. Arguably, too, a fabulist would have come up with something far more melodramatic.

That said, Ford’s credibility has taken a couple of hits recently from her own side. In the University of Baltimore speech, Katz openly admitted that branding Kavanaugh a misogynistic sexual predator in order to undercut his moral authority in potential abortion-rights rulings was “part of what motivated Christine.” And in The Education of Brett Kavanaugh, Pogrebin and Kelly, who are sympathetic to Ford and believe her account, reveal that Ford’s high school friend Leland Keyser, who previously said that she believed Ford’s story but refused to corroborate it, now believes that the incident didn’t happen and says (just as conservatives claimed last year) that she was under heavy pressure from the Ford camp to make supportive statements. 

Where does it all leave us? With plenty of doubt. At the extremes, it’s possible that Ford invented the story out of whole cloth, or (however disturbing) that Kavanaugh committed attempted rape as a teenager. But there are many other plausible scenarios. It’s possible that Kavanaugh and his friend Mark Judge did drunkenly jump Ford at a party but with the intent of horseplay or a prank, not sexual assault (still bad behavior but of far lesser degree), then forgot about it. It’s possible that Ford’s memory altered and magnified this experience, reframing it as attempted rape. It’s possible this was a case of mistaken identity (yes, people can be misidentified by someone they know). 

The Ramirez story was weaker than Ford’s last year—given that, as The New Yorker reported, she needed “six days of carefully assessing her memories” before she was comfortable naming Kavanaugh as the man in the incident she recalled—and remains extremely weak with the new material. The main corroboration still comes from Kavanaugh’s former roommate Kenneth Appold, who says that he heard an eyewitness talk about the incident shortly after it happened and is absolutely certain Kavanaugh was named. There is, however, an odd discrepancy between the New Yorker account last year and the Pogrebin/Kelly one. According to The New Yorker, Appold said he had tried to contact the classmate from whom he had heard the story in order to confirm it, but had gotten no response—and while The New Yorker did reach that person, “he said that he had no memory of the incident.” In The Education of Brett Kavanaugh, Appold is described as hearing about the incident from “a friend” on page 55, and from “two Stiles [Residential College] freshmen (whose identity he can’t recall)” on page 67. (Appold says that one of those freshmen had seen it, and the other “was hearing the story from him the second time.)

The other “witnesses” are Appold’s graduate-school roommate, who recalls that Appold told him about the incident some years later; Kavanaugh’s classmate Richard Oh, who recalls that he “overheard a female student emotionally describing making contact with a fake penis, saying ‘It’s not real,’ and then realizing it was real” (which was a part of Ramirez’s account); and Ramirez’s mother, who says that Ramirez tearfully told her “at some point during her remaining college years” that “something happened at Yale.” Two other people from Kavanaugh and Ramirez’s class also “vaguely remember hearing about something happening to Ramirez during freshman year.” 

In other words, we’re still where we were after the New Yorker story: Some people at Yale had heard rumors (and tried to recall them in an intensely political environment in which there was a strong momentum to out Kavanaugh as a sexual predator). Add Stier’s account, and we get another alleged episode of drunken delinquency in which it’s not even clear whether Kavanaugh is meant to be a perpetrator or a fellow victim of other male students. 

It’s notable that despite the clamor for stories of sexual misconduct by Kavanaugh, no other even plausible stories emerged. (Unless you count Julie Swetnick, who first said that Kavanaugh and Judge took part in gang rapes of drugged teenage girls in high school, then changed her story to say that they attended parties where such rapes happened but may not have participated, and named several corroborating witnesses who were either dead or unreachable.) No remotely credible person has accused Kavanaugh of any impropriety in his adult life. Even Pogrebin and Kelly, who believe that Kavanaugh mistreated Ford and Ramirez in his youth, conclude that “over the next thirty-five years [he] became a better person.”

Indeed, the great irony of this story is the utter mismatch between Kavanaugh the bogeyman of the left—the misogynistic predator in both personal and political life—and Kavanaugh the real person. Kavanaugh is a man with a long reputation of championing women in the legal profession, a man who talks about his mother, pioneering female judge Martha Kavanaugh, as his role model. He has made good on his confirmation pledge to hire all female law clerks, making women the majority of Supreme Court clerks for the first time in history. He has been praised by no less a feminist and progressive icon than fellow Justice Ruth Bader Ginsburg.

Indeed, he’s not even a reliable conservative on the high court when it comes to abortion-related issues. During the confirmation, he stressed his view that Roe v. Wade is “important precedent.” In December, he and Justice Roberts joined the liberals in turning away petitions from Kansas and Louisiana seeking to deny Medicaid funds to Planned Parenthood and other abortion providers.

In a Vox essay the other day, Jane Coaston, an often-astute observer of right-of-center politics, pointed out a curious paradox: While many conservatives were disappointed in the Kavanaugh nomination last year because they regarded him as “weak” on social issues, they “vigorously defend” him as “a stand-in for conservative men, a blank slate upon which fears of liberal overreach ruining the lives and reputations of right-leaning heterosexual men can be projected.” (Coaston also notes that Kavanaugh’s actual record on the Supreme Court so far marks him as a Roberts-style moderate, which is not seen as a good thing on the right.) Coaston concludes that, for conservatives, there are in essence two Brett Kavanaughs: the undesirable squishy jurist they dislike, and the “wrongfully accused” man they rally around.

It’s an interesting point, though it should be noted that reputational damage from unproven allegations is not just a conservative issue in the age of #MeToo. But Coaston’s paradox has a counterpart in the schizophrenic duality of Kavanaugh the patriarchal villain of progressive rhetoric, and Kavanaugh the actual person and jurist who gets props from the Notorious RBG. Apparently, it’s enough of a tension to sometimes cause progressives to lose their minds.

Cathy Young

Cathy Young is a columnist for Newsday, a contributing editor to Reason, and an associate editor at ArcDigital.