Midterm Time Capsule, 42 Days to Go: Fox News and The New Yorker

Brett Kavanaugh, before the Senate Judiciary Committee during his confirmation hearing, with his wife, Ashley, seated behind him. (Reuters / Jim Bourg)
Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

I have been offline, traveling for actual reporting, over the weekend, and reappear to find… argh!!! There is no possible way to keep up. So as a brief time-capsule register of where things stand, six weeks before midterm election day, here are two markers of things that have changed in the past few days.

(1) There is no longer “just one.” The most significant recent development in the Brett Kavanaugh case would appear to be the dispatch from Jane Mayer and Ronan Farrow in The New Yorker, alleging an episode of sexual assault by Kavanaugh when he was an undergraduate at Yale. Why is this significant?

(a) Of all the reporters whose accounts go contrary to official Trump administration claims, from the venerable Bob Woodward to the more recently eminent Ronan Farrow, I am not aware of anyone whose decades-long track record stands up better than Jane Mayer’s. If she has had to retract, apologize for, eat crow about, or otherwise retract significant factual illustrations, I’m not aware of it.

(b) In the etiology of sexual-aggression claims, the offense history very rarely seems to be “there was just that one time.” Either the number of plausible sexual-abuse claims against a prominent figure is zero — against Barack Obama, against George W. Bush, against Kavanaugh’s fellow Georgetown Prep alumnus Neil Gorsuch, etc  — or it eventually amounts to a significant number.

Cosby, Weinstein, the gymnastics doctor Larry Nassar, and the like may be extreme cases. But in general the pattern we’ve all learned to expect is: If there is one, there is more than one. Conversely: if the number remains firmly at one, it’s easier to raise doubts about that lone accuser.

With the Mayer-Farrow story, the number of specific allegations against Brett Kavanaugh broke the more-than-one threshold. No one working for Kavanaugh’s confirmation can say so, but this news substantially changes expectations, and apprehensions, about what other claims might yet turn up.

(c) On the expectations front, I’ll lay out my own.

In my reporting life and as a citizen, I’ve watched over the decades many cycles of “rumors” and “questions” about sexual misconduct by prominent (male) figures run their course. Not in every case, but in the vast majority of them, as the evidence finally comes out and mounts up, it has usually weighed on the side of the accuser, not the accused. Where there is smoke, there has usually been fire.

For every celebrity who endures a damaging, false, perhaps fantasized or perhaps malicious sex-related accusation, there appear to be a whole lot more who got away, for years, with long-term patterns of abuse, despite complaints and warning signs. They succeeded in bottling up, tamping down, and generally escaping accountability, mainly because their positions of power meant that their victims didn’t speak up, or were not listened to.

The modern history of pedophile priests is again an extreme case, but it illustrates the pattern I’m describing: that it’s costly, damaging, embarrassing or shameful, and in other ways arduous for someone who has suffered from sexual abuse to speak up against a public figure. Therefore, I realize looking back, I have learned more and more to give the benefit of the doubt to women and men willing to go through the pain of reporting their claims. (I have been thinking frequently of the movie Spotlight, which of course doesn’t directly apply in this case but is about a related power dynamic.)

I am careful to say “benefit of the doubt,” and not “beyond a reasonable doubt,” as would apply in a criminal proceeding. No one should be assumed guilty without a full process like the one Bill Cosby has just gone through, which starts with the presumption of legal innocence.

But of course Brett Kavanaugh is not on criminal trial; he’s being vetted to see whether he deserves one of the most powerful, least accountable, and most temperament-and-fairness-dependent positions in the U.S. government. I have no idea of the underlying truth of any of the complaints about Kavanaugh. But based on what I’ve seen play out over the decades, I feel that at a minimum they should be fully explored and checked out. How can there be any reasonable objection to having the FBI question the witnesses, and take statements from all involved, under oath?

(2) The maximalist defense. Based on transcripts of the interview Fox News did of Kavanaugh and his wife Ashley, I was going to lay out a big explanation of why it is so striking that Kavanaugh is answering his critics with absolute denials.

George W. Bush used to say, “When I was young and stupid, I was young and stupid.” Kavanaugh is not giving himself any such out. He is not referring to embarrassing misunderstandings, or mistakes of immature judgment, or possible vagaries of memory, or decisions he badly rues in retrospect. He is saying that he was literally virginal in high school and college. He has never done anything like this. He is absolutely not this kind of person. He would not ever treat women in this way. The charges are All. Absolutely. False. Every. One. Of. Them.

As an argumentative stance, this is obviously risky, since an absolute claim can be undone by even a single proven counter-example. It’s odd because it’s a mismatch with the ample evidence of serious drinking as part of the young Brett Kavanaugh’s reputation — self-described in his speeches until recently, and by his high-school and college associations. (“He was a notably heavy drinker, even  by the standards of that time, and he became aggressive and belligerent when he was very drunk,” James Roche, his freshman roommate at Yale, said this weekend in a statement.)

Also, the stance of complete purity is either inconsistent with, or a creepy complement to, the very aggressively sex-related line of questioning that the 30-something young lawyer Kavanaugh proposed that prosecutor Kenneth Starr ask the incumbent president, Bill Clinton. (Eg: “If Monica Lewinsky says that you ejaculated into her mouth on two occasions in the Oval Office area, would she be lying?” That was one of a series of  questions Kavanaugh proposed, and Starr had the judgment not to pursue.)

But it turns out that I don’t even need to get that whole explanation started. This morning Caitlin Flanagan published a very powerful and insightful long essay on exactly these themes. It is here, and rather than quoting any of it, I’ll suggest that you read it forthwith, and carefully.

To the best of my knowledge (will gladly update if there are corrections), here are the Republican senators who have clearly called for an FBI investigation of the allegations and the evidence:

Lisa Murkowski, of Alaska, is not yet on that list, because she has given only oblique indications of support. According to NBC, she said on Tuesday morning of an FBI investigation: “It would sure clear up all the questions, wouldn’t it?” She could answer her own question by saying that she won’t vote on Kavanaugh’s nomination until there has been an investigation. As a member of the Republicans’ wafer-thin 51-49 majority in the Senate, she has enormous power to change the outcome here, if she chooses to exercise it. The same is true of every other Republican.)

Forty-two days to go.