WASHINGTON >> A new claim of decades-old sexual impropriety by Justice Brett Kavanaugh is rekindling the controversy that nearly derailed his confirmation to the Supreme Court last year. The allegation was unearthed by two New York Times reporters in their research for a book about the Kavanaugh confirmation. The book says the FBI was made aware of but did not investigate the incident, purported to take place when Kavanaugh was a Yale University student in the 1980s.
Kavanaugh declined to comment through the court’s press office, but in Senate testimony last year, he flatly denied other misconduct claims, including an allegation of sexual assault during his high school years made by Christine Blasey Ford and a separate episode at Yale involving college classmate Deborah Ramirez.
The new allegation has elicited calls from some Democratic presidential contenders for Kavanaugh’s impeachment and strong defenses of Kavanaugh from leading Republicans, including the man who appointed him to the high court, President Donald Trump.
Some questions and answers about the situation:
Q. What are the new allegations?
A. Times reporters Robin Pogebrin and Kate Kelly wrote in an essay in Sunday’s newspaper drawn from their new book, “The Education of Brett Kavanaugh: An Investigation,” that a classmate saw Kavanaugh expose himself to a female student at a drunken dorm party in Kavanaugh’s freshman year. The essay said the classmate notified senators and the FBI about the incident, but the FBI did not investigate. The allegation is similar to the one Ramirez made last year, that Kavanaugh had exposed himself to her at another freshman-year party.
The Times did not initially report that the unidentified woman declined to be interviewed, and that her friends say she doesn’t recall it. Those details were later appended to the piece. The classmate who said he saw the episode was identified as Max Stier, who later became a law clerk at the Supreme Court and now runs a non-partisan government reform group in Washington. Stier also once worked for the law firm Williams and Connolly when it was representing President Bill Clinton in the investigation of his affair with White House intern Monica Lewinsky. Kavanaugh worked for independent counsel Kenneth Starr at the time. Some conservatives were livid that the Times did not include Stier’s law-firm affiliation.
Q. Didn’t the FBI investigate allegations of sexual misconduct against Kavanaugh before the Senate voted to confirm him?
A. Yes, but Stier was never interviewed, Pogebrin and Kelly wrote. And the FBI had been given Stier’s name by Sen. Chris Coons, D-Del., a Judiciary Committee member, according to an Oct. 2 letter obtained by The Associated Press. Coons did not make the matter public at the time because Stier asked for confidentiality and because he assumed the FBI would investigate the claim, according to a person familiar with Coons’ thinking. The name is blacked out in AP’s copy, but the person confirmed that the letter mentioned Stier by name. Kavanaugh was confirmed Oct. 6. Ramirez’s lawyers provided the FBI the names of roughly 20 people, but few if any were ever interviewed. FBI Director Christopher Wray testified last year that the investigation was “limited in scope.”
Q. What has Kavanaugh said about sexual misconduct allegations?
A. Kavanaugh has flatly denied Ford’s and Ramirez’s sexual misconduct allegations. “I’ve never sexually assaulted anyone. Not in high school, not in college, not ever,” he said in his charged statement to the Senate Judiciary Committee following Ford’s testimony. He said allegations of sexual assault must always be taken seriously. “Those that make allegations always deserve to be heard,” Kavanaugh said. But he said the accused “also deserves to be heard.”
Q. How have Democrats and Republicans reacted to the new allegation?
A. Predictably, with an eye to their parties’ bases. Leading Democratic presidential candidates have demanded that Kavanaugh be investigated or impeached. “Like the man who appointed him, Kavanaugh should be impeached,” Massachusetts Sen. Elizabeth Warren said. Republicans, including Trump, have argued that the Times story is an effort by the media to smear Kavanaugh’s record. Kavanaugh is an “innocent man who has been treated HORRIBLY,” Trump tweeted, suggesting the justice should “start suing people for libel, or the Justice Department should come to his rescue.”
Q. Are impeachment and removal from office realistic possibilities?
A. Not in this universe. There is no chance that the requisite two-thirds of the Republican-controlled Senate would currently vote to remove Kavanaugh from office, even if the Democratic-controlled House of Representatives were to impeach him. And it’s far from clear that there is any political will in the House to impeach Kavanaugh, given the time and attention it would demand, Democrats’ ongoing investigations of Trump and their lack of consensus about a formal impeachment process for the president. “Frankly we are concentrating our resources on determining whether to impeach the president,” Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, said today on WNYC’s “The Brian Lehrer Show.”
Q. Did the controversy affect Kavanaugh’s first year on the court?
A. The uproar over Kavanaugh’s nomination and confirmation seemed to have an effect both on the court and the new justice. Kavanaugh refrained from speaking engagements, other than an appearance at a conference of judges and lawyers in Milwaukee. (The conservative Federalist Society has said Kavanaugh will speak in November at a dinner attended by roughly 2,000 people.) The justices seemed intent on keeping the year as low-key as possible, temporarily avoiding several high-profile cases on immigration and abortion, among other issues. In the aftermath of the controversy, Chief Justice John Roberts and other justices have tried to rebut views of the court as a political institution similar to elected branches of government.
Kavanaugh’s standing among the justices appears unaffected by the controversy that preceded his confirmation. Justice Ruth Bader Ginsburg has called him a hard worker and, more than once, noted that his first group of four law clerks was all women. In March, Justice Sonia Sotomayor responded to a questioner who asked how he could “continue to respect the integrity of the Supreme Court” with Kavanaugh as a justice. Whether the allegations are true or not, Sotomayor said, “In the end, we have to rely on being judged not by what we’ve done, but what we’re going to do. He’s my colleague now and I live each day, sometimes not liking the vote, sometimes liking it, but still waiting to see what he turns out to be as a justice because that’s what I will have to judge him on.”
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