‘You just witnessed history’: Tears, rage, and the fight to confirm Brett Kavanaugh — exclusive excerpt

Despite his conservative voting record, Flake could be contemptuous of Republican voters, and his visceral aversion to Trump sometimes caused him, like McCain, to break from the Republican caucus.

Nevertheless, he was considered a likely vote for Brett Kavanaugh, the president’s Supreme Court nominee to fill the seat of the retiring Justice Anthony Kennedy. Neither jurisprudence nor experience was a problem. But accusations of long-ago sexual misbehavior were. One in particular, by a professor named Christine Blasey Ford, led to public testimony by both the accuser and the accused, and had charged the atmosphere around the nomination.

As the allegations piled up, Flake agonized about his vote, bristling at the pressure from his party’s leadership. Democrats recognized early on that he might waver. Sen. Chris Coons, a Delaware Democrat who was friendly with Flake and worked with him frequently, was 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 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. Mike Lee, a Republican senator from Utah and 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.

On Friday morning, the day after the second hearing, Flake announced that he would vote to confirm Kavanaugh, assuring that the nomination would be voted out of committee and onto the floor of the Senate. He praised Kavanaugh, noting that in another era he would have been nearly unanimously confirmed, while acknowledging that after persuasive testimony from both Kavanaugh and Ford, he couldn’t be sure what had happened. Former President George W. Bush had quietly lobbied Flake and other undecided senators. Lee’s emphasis on the burden of proof seemed to have been the decisive point. When CNN’s congressional correspondent Sunlen Serfaty broke the news to Coons, he responded, “Oh f—,” and began to choke up: “I deeply respect … We each make choices for our own reason. I’m struggling, sorry.”

A group of reporters camped outside Flake’s office and met some female protesters who were there to lobby him against Kavanaugh. They all learned about his decision at the same time and gasped. The protesters cried. A few minutes later, when the senator left his office for the Judiciary Committee meeting, they ran after him. Activist Ana Maria Archila, and Maria Gallagher, a member of the liberal feminist group UltraViolet who was in Washington to protest against Kavanaugh, trapped Flake and an aide in an elevator. CNN’s cameras were rolling.

“I was sexually assaulted, and nobody believed me. I didn’t tell anyone, and you’re telling all women that they don’t matter,” cried Gallagher. “Look at me when I’m talking to you. You’re telling me that my assault doesn’t matter.” Archila shrieked, “You’re allowing someone who is unwilling to take responsibility for his own actions, and willing to hurl the harm that he has done to one woman — actually, three women,” indicating that even other, far less credible accusers must be believed. The exchange lasted for five long minutes, after which emotional CNN correspondents praised the activists uncritically.

Democratic senators and the media were now asserting that the American Bar Association had backed away from its earlier endorsement of Kavanaugh as “well qualified.” The truth was rather more complicated. On Thursday, Robert Carlson, the president of the ABA and a donor to Hillary Clinton’s political campaigns, had sent the committee a letter asking it to postpone the vote on Kavanaugh until an FBI investigation was completed. The ABA’s Standing Committee on the Federal Judiciary, which evaluates judicial nominees, sent its own letter to the Judiciary Committee the next day, clarifying that (1) it had not seen Carlson’s letter before it was sent, (2) the standing committee “acts independently of ABA leadership,” and (3) it “conducts non-partisan, non-ideological, and confidential peer review of federal judicial nominees.” The letter concluded, “The ABA’s rating for Judge Kavanaugh is not affected by Mr. Carlson’s letter.” By the time the clarification was received, however, the narrative was set. A story by CNN’s Manu Raju, for example, published five days later, presented Carlson’s letter as an act of the ABA itself and made no mention of the standing committee’s letter of correction, leaving the impression that Kavanaugh’s original “well qualified” rating was now in question.

The American Civil Liberties Union also took part in the campaign against Kavanaugh despite its ostensible policy against weighing in on Supreme Court nominations, a policy it had also broken to oppose Justices William Rehnquist, Robert Bork, and Samuel Alito. Having strayed in recent years under the influence of liberal donors from its formerly zealous advocacy of free speech and religious freedom, the organization now abandoned two of its other core principles: the presumption of innocence and opposition to guilt by association.

At the Friday morning Judiciary Committee meeting, the motion to vote later that day was carried, but Democratic Sens. Cory Booker of New Jersey and Kamala Harris of California refused to respond to the roll call. Without explanation, they walked out in protest, joined by Democratic Sens. Richard Blumenthal of Connecticut and ranking member Dianne Feinstein of California, the latter then complaining about Kavanaugh’s temperament while their colleagues conducted a 30-minute press conference with a group of reporters who had been waiting for them outside.

Committee Chairman Chuck Grassley, an Iowa Republican, meanwhile, informed the committee about various efforts to contact the last-minute accusers and noted that the attorneys for one, Deborah Ramirez, were still refusing to communicate with the committee. He then reminded his colleagues that Ford, oddly enough, had testified that she had been unaware that the committee was willing to interview her in California, suggesting that her attorneys were not on the up-and-up. “This has never been about the truth,” Lindsey Graham observed. “This has been about delay and destruction. And if we reward this, it is the end of good people wanting to be judges. It is the end of any concept of the rule of law. It’s the beginning of a process that will tear this country apart,” the Republican South Carolina senator said.

Two hours into the committee meeting, Coons delivered his prepared statement. He addressed all the members of the committee, but he had a specific target in mind: Flake. Before the hearings the day before, he said, he had prayed for Ford, for Kavanaugh, and for everyone involved in the process. After the committee’s failure to handle the difficult situation creditably, he said, he was now praying for the nation. Coons insisted that the release of Ford’s allegation to the press, for which he offered no explanation except to say that it was not the work of Feinstein or her staff, was free of partisan taint, and he argued that an additional FBI investigation, limited to one week, would not occasion undue delay but would get to the bottom of the remaining questions about Ford’s allegations and perhaps others, even those of “varying credibility.” He closed by reminding Flake of his continued concerns about the scope of executive power, and he warned that, after the previous day’s “testimony full of rage and partisanship and vitriol,” confirming Kavanaugh without a bipartisan investigation of the allegations would undermine the legitimacy of the court, placing “an asterisk” after Kavanaugh’s name. When Coons completed his speech, Flake left the room, motioning for Coons to follow him. White House observers watching on C-SPAN were texting frantically to figure out what was going on.

Over the next two hours, most of the dais cleared as senators vying for Flake’s ear began collecting in the anteroom, an L-shaped space off of the Democrats’ side of the hearing room with a small conference table and a lavatory. In the narrow corridor sloping down from the anteroom to the hallway is a booth for making private telephone calls.

The anteroom and corridor were so crowded with dozens of senators and staff members that the door from the hallway could not be opened, and the room became unbearably hot. A few noted with amusement that the senators were crammed into the corridor while the staff sat around the conference table, but the senators kept pairing off and retreating to the corridor for private conversations, displacing the staff who were there. Sen. Orrin Hatch, a Utah Republican, and his counsel were in the lavatory on the phone with the American Bar Association, trying to sort out the confusion caused by its president’s anti-Kavanaugh letter. Coons had cornered Flake, trying to convince him to demand a supplemental investigation in exchange for voting the nomination out of committee.

In the epic, hourslong fight outside the meeting room, fistfights nearly broke out. One senator told another that he wanted to wring his neck. A staffer who was bringing lunch to her hungry boss found herself in the middle of the scrum, with Ted Cruz, the Texas Republican, inadvertently standing on her foot and Sheldon Whitehouse, the Rhode Island Democrat, spraying her with saliva as he debated a colleague. More staffers were huddled in the hallway outside as savvy reporters started to realize where the action was. Every few minutes, a senator would suggest clearing the area of staffers, since the fighting between senators was getting so personal, but the configuration of the anteroom and the large number of senators and staff made that impossible. Veteran staffers had never seen anything so chaotic in the Senate. Republican senators felt that Democratic senators had not been honest, and they were livid that Feinstein had not followed the rules for dealing with anonymous allegations. Nobody admitted leaking to the press, but clearly someone had. According to Ford’s own testimony, only her lawyers and Democratic members of Congress had seen the letter, but her friends also would have known the nature of the allegations. Whoever the leaker was, he or she had ensured that Ford’s claims would be addressed in the most public and sensationalized manner possible despite Ford’s own stated wishes for privacy and confidentiality.

Even though Feinstein was a staunch liberal, her Republican colleagues trusted her to play by the rules, in contrast to some of the other Democrats on the committee. Either way, the consensus was that her staff took advantage of the situation and used her as a shield while they skirted the rules. The failure to handle the allegation in a timely manner through proper channels had disappointed some undecided senators and made them less likely to take it seriously.

At that moment, Kavanaugh’s future was in the hands of Flake, not Maine’s Susan Collins or Alaska’s Lisa Murkowski. Even so, Flake had called Collins and asked for her support for reopening the background investigation. She agreed it was a good idea. If another investigation was necessary to get the nomination out of committee, Grassley would make it happen. It helped that they were confident that any investigation would go well for Kavanaugh. In fact, the White House had strongly considered ordering an FBI investigation when the first allegation broke, but after consulting with top brass at the Department of Justice, they worried that it would take more time than they could afford. The FBI, moreover, had a history of leaking against the Trump White House, engaging in bureaucratic delays, and generally resisting political accountability.

If the price of Flake’s vote to send the nomination to the full Senate was going to be an FBI investigation, they would have to accept that. But Republicans wanted it limited in time, not open-ended. Democrats wanted Flake to hold his vote until the investigation came back, regardless of how long it took. In any case, senators had no authority to order a supplementary FBI background investigation, much less to define its precise contours. The request for an additional investigation would have to come from the White House counsel.

Senate Majority Leader Mitch McConnell’s chief counsel and “right hand man for every step of this process” was John Abegg. Summoned to the anteroom, he called White House counsel Don McGahn to see if the supplemental investigation, building on the work the committee had already performed, could be limited to stipulated witnesses and completed quickly. Flake and Coons tried to talk to FBI Director Christopher Wray, but he wasn’t available, so they called Deputy Attorney General Rod Rosenstein. Coons had followed Flake into the phone booth, which was so small that they couldn’t close its door. They made an absurd picture huddled around a cell phone, their limbs intertwined, trying to find out how long a thorough supplemental investigation would take. Flake understood the need for a reasonable limit to the investigation because of the Democrats’ propensity to keep moving the goal posts. Bush tried to get through to Flake on the phone but was unable. Texas Sen. John Cornyn, the Republican whip from Texas, was also leaning into the phone booth. He and Thom Tillis, the Republican senator from North Carolina, kept making the point that nothing, including the FBI investigation, would be sufficient for recalcitrant Democrats.

Grassley kept the committee meeting in suspension while the plan was hatched. Few senators were back in their seats by the time the vote was to take place, so Whitehouse said, “Mr. Chairman, given what’s happening in the anteroom, I think if some more time is needed, I think you’d get a unanimous consent to push the vote back pretty easily if you needed a few more minutes.” Whitehouse was referring to the “two-hour rule,” which prohibits committees from meeting for more than two hours after the Senate floor opens or after 2:00 p.m. The rule is routinely waived, but the Democrats in the anteroom were threatening to invoke it now. Lee and Cornyn were telling Flake he could take as much time as he needed, even until Monday, but aides impressed on him the need to reach a decision quickly. As soon as he did, the Republicans ran to their seats. Democrats had decided to allow the rule to be waived at the last minute, but word didn’t get to Grassley in time. The Democrats, confused, were slower to reach their seats. “You just witnessed history,” one top Republican aide said to another staffer.

Explaining the situation to the committee, Flake said he had been talking with Democrats about the need for due diligence. It would be proper, he said, “to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation limited in time and scope.” While he would vote Kavanaugh out of committee that day, his final floor vote would be conditional on what the FBI found. And he clarified that he would not cooperate with further delays. Grassley had the roll called, and Kavanaugh was voted out of committee.

The call for an additional investigation, Flake said, was “an effort to bring this country together.” He still expected to vote for Kavanaugh but only after a proper investigation, and he encouraged Democrats to accept his gesture in good faith.

Flake’s detractors accused him of pandering to the liberal media. He would be leaving the Senate in January and was looking for a television contract. But Flake loyalists said he was genuinely moved by the distress of women, such as those who trapped him in the elevator that morning. The additional delay frustrated Kavanaugh’s supporters, but the investigation turned out to be a godsend. No corroboration of the accusations was found. Kavanaugh was confirmed to the Supreme Court.

Mollie Hemingway is a senior editor at the Federalist. Carrie Severino is chief counsel and policy director at the Judicial Crisis Network.