SCOTUS

“You’re Facing a Tsunami of Anger”: How Democrats Plan to Win the Midterms, Redeem the F.B.I., and Make Life Hell for Kavanaugh

“Democrats will crawl across broken glass to punish the president and his party for this,” says a former chairman of the Democratic Congressional Campaign Committee. Investigations—and possibly impeachment—are just the beginning.
Protestors at Brett Kavanaugh's questioning
Protestors at Brett Kavanaugh's questioning.By Mark Peterson/Redux.

Just before 8:30 A.M. on Tuesday, Brett Kavanaugh arrived in one of a trio of shiny black S.U.V.s at 1 First Street Northeast in Washington, D.C., for his inaugural day on the Supreme Court. As Kavanaugh took the bench, an unsettling sense of normalcy took hold. Justice Anthony Kennedy, whose seat Kavanaugh had filled, could be seen in the gallery alongside Kavanaugh’s wife, Ashley, and the couple’s two daughters. After a welcome from Chief Justice John Roberts, Kavanaugh began his lifetime appointment with little fanfare.

Outside the marble chamber of the Supreme Court, however, Washington’s many warring factions aren’t ready to stop fighting over Kavanaugh, whose fraught confirmation has become a blunt instrument of the culture war. Senate Majority Leader Mitch McConnell, ever the tactician, has declared the sexual assault allegations against Kavanaugh to be a “great political gift” for the Republican Party in the upcoming midterm elections, and has issued marching orders to make Democrats pay for smearing his name. “The tactics have energized our base,” he told The Washington Post last week. “I want to thank the mob, because they’ve done the one thing we were having trouble doing, which was energizing our base.” Early polls showing a boost in G.O.P. voter enthusiasm seemed to suggest that Kavanaugh-mania could, indeed, save Donald Trump from a blue wave in November.

Polls conducted in the days since, however, tell a different story. According to a new Morning Consult/Politico survey, 46 percent of voters said that the Senate “made the wrong decision” in confirming Kavanaugh. More than three in four Democrats (77 percent) say they are “very motivated” to vote in the midterms, compared to 68 percent of Republicans who say the same. And while there are likely regional variations in how voters are responding to Kavanaugh—anecdotal evidence suggests there are plenty of independents who felt he got railroaded—the fact remains that Republicans ultimately got their win, while Democrats are still smarting from a loss that could last a lifetime. “Midterm elections are always about punishment, and not reward,” Steve Israel, a former New York congressman and former chairman of the Democratic Congressional Campaign Committee, told me. “Republican voters who felt strongly about Kavanaugh’s nomination, they may forget a lot of this by the midterms . . . But Democrats will crawl across broken glass to punish the president and his party for this.”

Still, Democrats in red states are rightfully nervous, no matter which way they voted. Incumbent North Dakota Senator Heidi Heitkamp, who is facing one of the toughest re-election bids, has conceded she was likely hurt politically by her “no” vote on Kavanaugh. So was Senator Joe Manchin of West Virginia, who voted to confirm the judge. Both are presumably eager to move past what has become a unifying issue for conservatives, and return to local issues—like Trump’s economically damaging trade war—that resonate with voters. “It would be too glib to say, ‘Oh yeah, we are glad that is over’—because it wasn’t a political decision, obviously, on Democrats’ part. We believed, and still believe, that it was something that actually should have been investigated,” a Democratic Senate aide told me, referring to Kavanaugh’s denials of sexual misconduct. “But any Democrat that tells you they are not excited to get back to issues like talking about health care I think would not be telling you the truth.”

The political calculus varies between the Senate and the House, too. “I think generally speaking, for Democrats, it was a bad couple of weeks for the Senate, and a good couple of weeks in the House,” the Democratic aide added. “Just based on where we are competing for House seats and where we are competing for Senate seats.” Israel expanded on the idea. “If you’re a Republican incumbent in one of the 23 districts that Hillary Clinton won, the Kavanaugh confirmation has completely riled up Democrats, and you’re facing a tsunami of anger,” he said. “If you’re in a ruby red Republican district, it has no impact—it’s still going to be ruby red. If you’re in a blue, bright blue district, it has no impact. It’s still going to be blue. If you’re somewhere in the middle, it definitely works against [Republicans].”

For now, most Democrats are carefully avoiding the i-word—impeachment—or any other discussion about Kavanaugh that would rile up conservative voters in swing districts. But behind closed doors, congressional Democrats are already examining the other ways they might investigate him, if they retake the House as expected. “It is not something we are eager to do,” New York Congressman Jerry Nadler recently told The New York Times. “But the Senate having failed to do its proper constitutionally mandated job of advise and consent, we are going to have to do something to provide a check and balance, to protect the rule of law and to protect the legitimacy of one of our most important institutions.”

House Minority Leader Nancy Pelosi, who is likely to become House Speaker in January, appears to be on board. On Wednesday, she filed a Freedom of Information Act request seeking documents related to the F.B.I. background investigation that was reopened after Dr. Christine Blasey Ford accused Kavanaugh of sexually assaulting her when they were both teenagers. “The F.B.I.’s supplemental background investigation appears to have been significantly limited in scope to ensure that a thorough investigation would not take place, numerous witnesses would not be questioned, and numerous questions would not be asked—including whether Justice Kavanaugh deliberately misled Congress on multiple subjects,” Pelosi wrote in her letter to the F.B.I. “The public must know what limitations were imposed on the F.B.I. and who imposed them, so this never happens again.”

Democrats also want to know why the two other women who lodged accusations against Kavanaugh—Deborah Ramirez and Julie Swetnick—were not taken more seriously by the F.B.I. “I just don’t think that, given the latitude and flexibility, that this is all the F.B.I. would have done,” Asha Rangappa, a former F.B.I. counter-intelligence agent, told me, referring to the 46-page report the bureau delivered last Thursday. “The tell, for me, is that they didn’t even interview Dr. Ford and Judge Kavanaugh.”

The bureau interviewed 9 people and received a sworn statement from a 10th for the probe. But dozens of other individuals who came forward with potentially relevant information didn’t speak with the F.B.I.—despite concerted efforts by a number of them. One such individual was Mark Krasberg, an assistant professor of neurosurgery at the University of New Mexico who was in the same Yale class as Kavanaugh and Ramirez, who accused the judge of exposing himself and thrusting his genitals in her face without her consent during a dorm party at Yale in 1983 or 1984. (Kavanaugh has denied this.) Before the F.B.I. reopened the background investigation, Krasberg told The New Yorker that another Yale classmate wrote to him in an e-mail in September that he recalled hearing about the incident.

Krasberg says he tried to get in contact with the F.B.I. through his senator, Martin Heinrich of New Mexico, and the offices of Senators Jeff Flake and Chris Coons. He was also in touch with the Senate Judiciary Committee but was unsuccessful in getting in touch with the bureau through these Congressional channels. When Krasberg independently contacted the F.B.I. field office in Colorado, he was transferred to a 1-800 tip line. After speaking with an agent for approximately 45 minutes, Krasberg says the agent took down his information to pass along to the agents working on the Kavanaugh case. But he never heard from the F.B.I. “When the investigation was announced, I thought that the F.B.I.—they have a lot of people working for them—would actually try to talk to people, but it turned out that they only contacted a few people,” Krasberg told me. “People attempted to contact the F.B.I. to varying degrees, and I thought that I actually made a fairly substantial effort, because of the three different avenues that I tried. I thought that I made a pretty good-faith effort, and I came away a little bit disillusioned . . . my first experience with the F.B.I. was a complete waste of time.”

Kathy Charlton, another Yale classmate, also attempted to contact the F.B.I. about a series of text messages from a mutual friend that suggested Kavanaugh and his team were in touch with people about the Ramirez allegations before The New Yorker first reported them—despite Kavanaugh testifying under oath that he had no prior knowledge of Ramirez’s claims until after they were made public. Charlton told me that Senator Flake’s declaration that Kavanaugh’s nomination would be over if it was determined that he had lied to the Judiciary Committee prompted her to try to get in contact with the F.B.I. “It fueled my determination to get my info to the F.B.I., and gave me temporary false hopes that I could somehow affect Brett Kavanaugh’s nomination and preserve the integrity of the Supreme Court,” she told me. “I felt like I had an obligation to the country—it was the first time I’d ever said something like that in my life—to report what I knew.”

Like Krasberg, Charlton tried to communicate with the F.B.I. through multiple channels. But she was never interviewed by the bureau. “For a few days, I actually felt a huge, huge weight on my shoulders, and now I feel a bit naive,” she said. “I think the vote was going to go the way it did, no matter what information surfaced—short of a new eyewitness—to either of the two sexual allegations.”

Jen Klaus, Ramirez’s roommate at Yale, also expressed dismay at the way the investigation was handled. While she did not try to contact the F.B.I., Klaus was contacted by Senator Chuck Grassley, the chairman of the Judiciary Committee, at 4:30 P.M. last Thursday—on the eve of the cloture vote on Kavanaugh’s nomination. She told me that her impression of the conversation was that Grassley was trying to “discredit” Ramirez. (A spokesperson denied a similar characterization of the call to NBC News.)

“I was just very disappointed. I thought that Debbie’s story was going to be heard. I thought I had Yale classmates who were going to step up and do the right thing, and none of that happened,” Klaus told me. “I have never been a political person. I am an independent, and I came out for Debbie as a friend. This is more personal for me, and not partisan in any way. But you sit down and you are watching this stuff and you just see how partisan the whole process is, and I just wonder how naive I had been as an American, thinking that everyone was just doing the right thing. After this, I think it just opened my eyes that a lot of what our government is all about is partisan, and not doing the right thing.”

It is hard to identify a winner in the whole Kavanaugh affair. But there are certainly a number of losers. The F.B.I. is among them. It would be giving the Trump administration too much credit to say that it was by design that the Supreme Court battle delivered another blow to the credibility of the bureau. By controlling the scope of the background check, Republican lawmakers and the White House rigged the deck against the F.B.I. The episode cast the bureau as a political cudgel—not an independent agency.

But for the F.B.I., a Democratic majority in the House could be a blessing. “We know that they document everything, so to the extent that they were getting instructions, orders from the White House, deciding not to do something from the way they normally would do it, I’m guessing that somebody in the senior levels of the F.B.I. documented those decisions or made memos or took those,” Rangappa told me. “If the house turns over in November, I think that then there is an opportunity for the House Judiciary Committee, for example, to request any of those notes or memoranda from the F.B.I. . . . It’s not like the F.B.I. thinks that anything it does can be buried. They know everything will see the light of day. They have every incentive to do things by the book and, in this case, by the book means to do what the White House requests.”

Of course, any attempt to shine a light on the F.B.I. investigation and its constraints is all but guaranteed to widen the partisan divide in the country. “The thing is that once you start to reopen confirmations, you create an insatiable appetite in the political system,” Jonathan Turley, a constitutional-law professor at George Washington University, told me. “These types of pledges not only stir up votes, they create expectations among voters. These Democratic leaders are allowing Democratic voters to believe that this is an appropriate response to a failed confirmation fight.”

Turley lamented that the Kavanaugh confirmation process was already far more bruising even than those for Justice Clarence Thomas and Robert Bork, whose nomination was ultimately withdrawn. “This is primordial politics at its worst. Both sides sought to unleash pure rage on the part of their bases, and they succeeded, and so our confirmation process now resembles our political dialogue,” he told me. “It is raw and ugly and uninhibited, and both sides have given license to voters to dispense with notions of fairness or empathy. It’s very hard to watch. We are obviously living in an age of rage, but this has been an area that has been largely protected.”

And ultimately, the Supreme Court is weakened. “The court is an opaque institution, and we tend to treat it as connected in some way to the wisdom of the ages,” Stephen Gillers, a professor of legal ethics at New York University School of Law, told me. “But what Kavanaugh did tells the public that the justices are just imperfect human beings, maybe even more imperfect than members of the public consider themselves to be. And that message that they are not infallible and they are not brilliant and they are imperfect is going to compromise the view of the court among the public,” Gillers said. “The court is wounded—there is no question about it. Fairly or unfairly, it is wounded . . . Frankly, we have to hope that there is no new Supreme Court vacancy for a few years, ’cause we don’t want to go through this again.”