Shortly after Kavanaugh was nominated, Vice President Pence joined the Republican senators for our Tuesday lunch, as he often does. I pulled him aside and told him directly, “Mike, if, a decade from now, a 5–4 majority of the Court reaffirms Roe v. Wade, this week may well be the reason why.” I very much hope and pray that does not prove to be the case.
Kavanaugh’s nomination appeared to be headed for an easy confirmation until the now-infamous bombshell allegations from Dr. Christine Blasey Ford arose. Dr. Ford alleged that when she and Judge Kavanaugh were both in high school, at a drunken party, he had sexually assaulted her. These allegations had been privately raised months earlier in a letter to Senator Dianne Feinstein, the Democratic ranking member on the Senate Judiciary Committee. But Dr. Ford, at the time, asked that the allegations not be made public.
The Judiciary Committee has a mechanism for assessing allegations of this kind. The Committee can ask the FBI to conduct an investigation to ascertain what actually happened. The Committee also can meet in closed session to consider sensitive information or charges in a confidential setting. But Senator Feinstein did not ask for an FBI investigation—nor did she ask for a confidential hearing to consider these allegations. Instead, she sat on the allegations for months until the week before a high-profile Supreme Court confirmation vote, when suddenly Dr. Ford’s claims were leaked to the press.
Chaos erupted, and I believe the Senate Democrats callously took advantage of Dr. Ford and used her in a political effort to stop Judge Kavanaugh. Shortly after the allegations arose, all of the Senate Republicans on the Judiciary Committee met together in Mitch McConnell’s conference room. We discussed what to do. I urged my colleagues that we needed to have a public hearing, quickly, that Dr. Ford needed to be given a full and fair opportunity to present her allegations because the allegations were serious, and that Judge Kavanaugh, likewise, deserved a full and fair opportunity to defend himself.
Some of my colleagues were reluctant to hold a hearing. We had already had one confirmation hearing for Judge Kavanaugh. But I argued, along with several other members of the Committee, that the only way to resolve this issue and move forward with the confirmation was to allow the public to decide. When Clarence Thomas’s Supreme Court nomination likewise faced the explosive charges of sexual harassment from Anita Hill, it was the public hearings where Professor Hill and then-Judge Thomas both testified that allowed the American people to make their own assessment of the veracity of the charges.
Although today’s media and legal academy desperately want to erase this from the public record, at the time, polling showed roughly two-thirds of Americans believed Judge Thomas and did not find Professor Hill’s allegations to be credible. I urged my colleagues that if Judge Kavanaugh were to become Justice Kavanaugh, the American people likewise would have to have an opportunity to listen to and to see Dr. Ford and to listen to and to see Judge Kavanaugh address these allegations. Oftentimes, Republicans, as a political matter, are slow to make the decision that needs to be made, and we end up getting battered in the press and public opinion for days or weeks, only to reluctantly do what should have been done in the first place. I urged my colleagues, rather than endure the public beating, to announce the hearing now. It was the right thing to do, I argued, and it was also the only way to move forward with the nomination. My colleagues agreed.
Secondly, I urged my Judiciary Committee colleagues to bring in an outside counsel to question Dr. Ford. The Democrats’ political plan was not complicated to surmise. They planned to bring Dr. Ford before the Committee and, at the hearing, they hoped the questioning would feature Republican senators on the Committee—primarily old white men—sternly questioning an alleged sexual-assault victim. Had that transpired, the public reaction would have been swift and harsh. No Republican senator, I argued, wanted to vigorously cross-examine Dr. Ford—myself included. At that point, one of the more senior Republican senators volunteered, “I’ll do it,” to which several of us said, “uh, no thank you.” Instead, I argued, we should bring in an experienced prosecutor, a woman, to lead the examination. My colleagues once again agreed with me.
The Senate Judiciary Committee reached out to a number of respected female former prosecutors in the Washington, D.C., area. Even though they had been senior officials in Republican administrations and knew and respected Judge Kavanaugh as a person, they were unwilling to step into the maelstrom of political criticism that would be visited upon any lawyer taking that position. So, we hired an outside counsel, an experienced lawyer from Arizona, who had been recommended to the Committee. She did an able job.
During the course of the hearing, I and other members of the Judiciary Committee gave her extensive guidance as to how she should approach the questioning. My advice was, “Be incredibly gentle. Be respectful. Bend over backwards to treat Dr. Ford with the utmost respect.” Your job, I told her, is not to be Perry Mason. It’s not to deliver a withering cross-examination showing weaknesses or inconsistency in the testimony. Instead, your job is to gently elucidate her testimony and gently press where any inconsistencies might lie.
Given the choice between being aggressive or being respectful, I urged her, “Lean in the direction of respect.” She did so. She gently cross-examined Dr. Ford—so gently that, in the course of the hearing, several friends texted me asking, “What on earth is wrong with your lawyer? She’s not beating up the witness.” But that, of course, was not her job.
After Dr. Ford testified, Judge Kavanaugh came next. With Judge Kavanaugh, I told our counsel, “You no longer need to be gentle. Lean into him. Ask difficult questions. Press on him. He’s a big boy, and he can take it.” She did so
