How Kavanaugh won his confirmation fight
WASHINGTON, D.C. — Trump administration officials who find themselves beset with scandal or disgrace often muster a defense according to how they believe the President will respond as the “audience of one” scrutinizes their performance on a Tivo-ed recording of Fox News.
Over the past month, as Judge Brett Kavanaugh and his confirmation team navigated allegations from woman that he had sexually assaulted them in high school and college, a new — and for some, an unfamiliar — dynamic was at play.
Like his beleaguered predecessors, Kavanaugh recognized the President’s own perception of him would largely depend on what he saw on his television screen. But he also recognized it was not Trump’s view that mattered, but the four fence-sitting senators whose votes would determine his fate.
Over the course of a rancorous and divisive three weeks, Kavanaugh has been bolstered by a White House and Republican leadership intent on securing a fifth conservative justice on the high court, reshaping its balance of power. He has also benefited from a long tenure in Washington, with the connections and know-how to run a self-preservation campaign that drew on a close-knit high school community, his colleagues from the Bush era and the conservative media.
What he could not draw upon was a lengthy relationship with the President, who amply defended him but found himself admitting this week he barely knew the man he nominated.
“I don’t even know him, folks. I don’t even know him,” Trump told a campaign crowd in Mississippi on Tuesday. “I met him for the first time a few weeks ago.”
The President’s introduction to Kavanaugh was orchestrated by Don McGahn, the White House counsel who viewed a second Supreme Court nomination process as his final act in the West Wing (the President summarily announced on Twitter in late August that McGahn would depart the administration once Kavanaugh was confirmed). McGahn and Kavanaugh are longtime friends; both served in President George W. Bush’s administration and have deep ties to Washington’s legal community.
In the early stages of Kavanaugh’s nomination, McGahn and a team of White House officials oversaw the judge’s courtesy calls on Capitol Hill and preparations for an initial set of hearings that came and went without much fanfare.
But as the allegations of sexual assault emerged in mid-September, a crisis management approach took hold, with Kavanaugh himself at the center of an effort to repair his reputation and salvage his prospects of becoming a Supreme Court justice. An initial approach that offered firm — but still respectful — denials eventually morphed into the indignant, politically-tinged rebuttal of “smears” that Kavanaugh offered in testimony before the Judiciary Committee.
In statements released through the White House, Kavanaugh’s denials began stoically — “I categorically and unequivocally deny this allegation,” he said of Christine Blasey Ford’s claim he sexually assaulted her in high school — but became steadily more forceful: “This is ridiculous and from the Twilight Zone,” he said of Julie Swetnick’s accusations he plied women with alcohol in college.
Meanwhile, Kavanaugh was reaching out himself to former classmates, hoping to ensure they didn’t speak poorly of him to the press. A series of text messages and phone conversations from mid-September reveal how closely Kavanaugh was involved in contacting former Yale classmates who spoke to reporters about allegations of wrongdoing during his college years.
Fox News interview and controversial testimony
Working with White House aides, Kavanaugh agreed to sit for an interview with Fox News four days before his highly anticipated congressional testimony, an unprecedented attempt to humanize the traditionally removed public persona of a Supreme Court nominee.
The interview proved divisive within the White House. Some aides viewed Kavanaugh’s steady denials as a salve for an overheated crisis that was quickly morphing into a debate about women and power. But others, including the President himself, felt Kavanaugh was rigid in his own defense, and that his admission he was a virgin into young adulthood distracting and uncomfortable.
More than anything, aides came to regret the interview because it was largely ineffective, particularly after Kavanaugh disproved the mild-mannered image in his highly-charged testimony days later.
Trump, who felt the Fox interview landed poorly, encouraged the more amped-up tenor during the hearing, according to people familiar with his thinking. Speaking a day before the event, Trump acknowledged he was viewing the matter through the lens of his own experience, which includes dozens of accusations of sexual misconduct over several decades that he has flatly denied.
“It does impact my opinion,” Trump said during a rambling press conference in New York, where he was concluding meetings at the United Nations largely overshadowed by the Kavanaugh allegations. “You know why? Because I’ve had a lot of false charges made against me. I’m a very famous person, unfortunately.”
McGahn, who sat behind Kavanaugh in the hearing room, also prodded for a more forceful tone. And that is what emerged during emotional and at moments impetuous testimony.
“This whole two-week effort has been a calculated and orchestrated political hit,” Kavanaugh said, “fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
It was that very tone which later drew consternation from some of the uncertain senators and even a retired Supreme Court justice.
“The interaction with the members was sharp and partisan and that concerns me,” Sen. Jeff Flake, a key Republican fence-sitter, said on Tuesday in an appearance at The Atlantic Festival in Washington.
In extraordinary criticism of a nominee, Retired Justice John Paul Stevens told a crowd in Boca Raton, Florida, on Thursday there is “merit” in the criticism that Kavanaugh “has demonstrated a potential bias involving enough potential (litigation) before the court that he would not be able to perform his full responsibilities.”
Wall Street Journal op-ed to take the edges off
Those comments, along with a sense among White House officials that key senators had lingering questions over Kavanaugh’s judicial temperament rather than concerns over the sexual assault allegations, led to an op-ed published Thursday evening in the Wall Street Journal.
“I was very emotional last Thursday, more so than I have ever been,” Kavanaugh wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.
The op-ed was met with a mixed reaction at the White House. Some compared it to the earlier Fox interview — a well-intentioned effort to soften the edges around Kavanaugh that nevertheless added, rather than reduced, the swirl of controversy surrounding him.
Two White House officials said it was Kavanaugh’s idea to write the essay, and one official said Kavanaugh made the decision to write the piece against the advice of some on his confirmation team. Aides had argued against introducing a “new variable” to an already perilous equation so close to the confirmation vote. But he pressed forward with the op-ed anyway, believing the Senate needed to hear his mea culpa.
“He penned the op-ed because he felt like it was important for the full Senate to have before it in his own words something that sums up not just the last two weeks but the entire confirmation process and his life’s record,” a source close to Kavanaugh said.
Reaching out to classmates
The decision mirrored Kavanaugh’s steps two weeks earlier to reach out to former classmates as some came forward to speak about their relationships with him decades ago.
Kathleen Charlton, who graduated from Yale in 1987, said a fellow classmate received a call from Kavanaugh several days before The New Yorker published Debbie Ramirez’s allegation that he exposed himself at a dormitory party when he was a freshman at the university. Kavanaugh has vehemently denied Ramirez’s allegation.
In a letter sent Wednesday to the Senate Judiciary Committee, Charlton wrote the Yale classmate indicated that Kavanaugh was calling in the context of Ramirez’s allegation. The classmate stated Kavanaugh wanted to make sure he would say “no bad” if contacted by the press, according to Charlton’s letter.
The classmate said he told The New Yorker he did not remember anything about Ramirez’s allegation, according to the letter.
When a reporter from another publication contacted the classmate to ask about the phone call the following day, the classmate sent Charlton an angry text on September 21 that stated, “Don’t F—–G TELL (PEOPLE) BRETT GOT IN TOUCH WITH ME!!! I TOLD YOU AT THE TIME THAT WAS IN CONFIDENCE!! AND (the reporter) CALLS ME. WTF!”
The classmate proceeded to write, “She asked me about Brett contacting me. Three people knew that,” according to text messages Charlton shared with CNN on the condition that the classmate’s name not be used.
Charlton sent information about the texts to the FBI on Wednesday.
She said she decided to publicize the texts because she felt Kavanaugh’s communications were manipulative.
“It was obvious to me that Brett was trying to control the narrative of the alleged incident. I knew Deb and I couldn’t imagine her making this up,” Charlton said.
A separate set of text messages obtained by CNN suggest Kavanaugh contacted another Yale graduate regarding Ramirez’s allegations.
On September 23, the day that The New Yorker published its article detailing Ramirez’s allegations, Yale graduate Karen Yarasavage texted a friend and said Kavanaugh asked her to provide a comment for that story.
“Brett asked me to go on record and now New Yorker aren’t answering their phones!” Yarasavage said, according to text messages she sent to Kerry Berchem, who graduated from Yale in 1988. NBC first reported the information in the text messages.
Berchem wrote a memo about the texts and shared it with the FBI and Sen. Richard Blumenthal’s office, according to emails obtained by CNN.
Yarasavage was not quoted in The New Yorker article. In text messages, she said she could not recall if she attended the event described in Ramirez’s allegations.
“I don’t know if I was there. My story is that we were such close friends who shared many intimate details with each other and I never heard a word of this,” Yarasavage said, referring to Ramirez as a friend.
Yarasavage did not respond to CNN’s request for comment.
When asked about the texts, Berchem said, “I am in receipt of text messages from a mutual friend of both Debbie and mine that raise questions related to the allegations. I have not drawn any conclusions as to what the texts may mean or may not mean but I do believe they merit investigation by the FBI and the Senate.”
Both sets of texts were sent in the days leading up to The New Yorker story that first published the allegations. As is normal journalistic practice, Kavanaugh had been contacted by The New Yorker for his response prior to publication, which read in part, “This alleged event from 35 years ago did not happen. This is a smear, plain and simple.”