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| - Here’s a guide to the credibility of 14 statements made under oath by Judge Brett M. Kavanaugh that have become an issue during the nomination battle over his elevation to the Supreme Court. Opponents have seized on various statements to suggest Kavanaugh misled the Senate, but in several cases the problems have been overstated or are wrong. In other cases, the discrepancies might appear inconsequential or unimportant to supporters of Kavanaugh.
One woman, Christine Blasey Ford, says Kavanaugh sexually assaulted her after drinking heavily in high school. Another, Yale University classmate Deborah Ramirez, says he exposed himself during a drunken evening, though her memory of what happened is not clear. As of Oct. 4, no eyewitness who has confirmed the allegations of sexual misconduct by Ford or Ramirez has been identified.
Beyond the sexual assault allegations, Kavanaugh had been challenged on his answers concerning work he did while serving in the George W. Bush administration, including his efforts to confirm conservative judges.
We have previously fact-checked some of these issues and so have provided a summary as well as a link to the original fact check.
Misleading
“I never attended a gathering like the one Dr. Ford describes in her allegation. … She and I did not travel in the same social circles.”
What’s controversial: In his testimony, Kavanaugh tried to minimize the possibility that he and Ford ever interacted.
Analysis: Kavanaugh’s own calendar lists a small gathering July 1, a Thursday, for “skis” — brewskis, or beer — that includes two people Ford named as being present in the house during the alleged attack — Patrick “P.J.” Smyth and Mark Judge. Also in attendance: “Squi,” Chris Garrett, who Ford said she was dating that summer. Thus it’s not credible for Kavanaugh to claim that such a gathering did not take place or that he and Ford were not in the same social circle.
“Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers. … The witnesses who were there say that it didn’t happen.”
What’s controversial: Kavanaugh stretched the meaning of “refuted.”
Analysis: Ford named four people who she said attended the gathering: Kavanaugh, Smyth, Judge and Leland Keyser. Judge, according to Ford, was in the room at the time of the attack. Kavanaugh denied it happened but the other three only said they had no memory of the gathering. “I do not recall the events described by Dr. Ford in her testimony before the US Senate Judiciary Committee today,” Judge wrote in a letter to the committee. “I never saw Brett act in the manner Dr. Ford describes.” Keyser told The Washington Post that she believes Ford’s account. “I don’t expect that P.J. and Leland would remember this evening,” Ford said during her testimony. “It was a very unremarkable party.” Kavanaugh’s language went beyond the evidence — which is inappropriate for a judge.
“That yearbook reference [Renate Alumnius] was clumsily intended to show affection, and that she was one of us. But in this circus, the media’s interpreted the term is related to sex. It was not related to sex.”
What’s controversial: Kavanaugh provided an interpretation disputed by other classmates.
Analysis: In his high school yearbook, Kavanaugh listed himself as “Renate Alumnius,” which classmates said was a sexual reference to Renate Dolphin. She attended a nearby Catholic girls school, and her name appears at least 14 times in the 1983 edition of the Georgetown Prep yearbook. If it was really intended to show affection, that was news to Dolphin; she told the New York Times that she was hurt and offended by it. A lawyer for Kavanaugh said the two shared a brief kiss; she denied that. It’s unclear why Kavanaugh would not admit forthrightly that this was inappropriate, juvenile humor.
“You’d have to ask him.”
What’s controversial: Kavanaugh sidestepped a direct question about whether he was “Bart O’Kavanaugh,” referenced in a memoir of alcoholism written by Judge, as having “puked in someone’s car the other night.” The book is described as “based on actual experiences,” but uses pseudonyms for people.
Analysis: Kavanaugh suggested that “Bart” was a figment of Judge’s imagination. But the New York Times later reported that this was a nickname for Kavanaugh in high school after a teacher botched the name Brett. A letter obtained by the Times, written by Kavanaugh about planning for renting a house for Beach Week, was signed “Bart.” It’s not clear what Kavanaugh gained by refusing a direct response.
“I knew Mr. Miranda, as he and many other Senate staffers were part of regular meetings, telephone calls and emails about the judicial confirmation process. These meetings, calls and emails were typical of how judicial confirmations have been handled in past administrations. I never knew or suspected that he or others had obtained information from Democratic computer files.”
What’s controversial: Kavanaugh has claimed at three Senate hearings since 2004 and in written answers to senators’ questions that he never suspected that a Republican ally, Manuel Miranda, was sending him sensitive, stolen, insider information from Democrats on the Judiciary Committee in the early 2000s.
Analysis: Kavanaugh’s claims of ignorance warrant heavy skepticism. Miranda, a Republican Senate staffer working to confirm Bush’s judicial nominees in the early 2000s, for nine months sent Kavanaugh and other GOP allies a steady stream of intel on Democrats’ plans for stumping nominees. Included in this trove were the contents of a confidential letter Sen. Patrick J. Leahy (D-Vt.) had received about one nominee, and a nearly 4,000-word memo written by one of Leahy’s staff lawyers that went on in breathtaking detail about the Democrats’ strategy on another nominee. Kavanaugh was an elite political operative, a White House lawyer working intensely on Bush’s nominations at the time, and it strains credulity for him to claim that these extraordinary leaks seemed normal. (Kavanaugh earned Three Pinocchios.)
“I didn’t know about the memos or see the memos that I think you’re describing.”
What’s controversial: Democrats say Kavanaugh misled then-Sen. Edward M. Kennedy (D-Mass.) at a 2006 hearing by testifying that he hadn’t seen any Democratic memos provided by Miranda, when he clearly had received at least one full-length memo from Leahy’s staff.
Analysis: A March 18, 2003, email from Miranda to Kavanaugh — which was not released to the public until this year for Kavanaugh’s Supreme Court nomination — casts serious doubt on Kavanaugh’s claim at the 2006 hearing. Miranda wrote, “For use and not distribution” in the subject line and appended the full, nearly 4,000-word memo from Leahy’s nominations counsel, Lisa Graves. The memo covered the Democrats’ entire playbook for stumping Bush’s nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. Kavanaugh did not respond to this email, according to the records made public by the Senate, so it’s not clear whether he saw it. But he was working hard on Estrada’s nomination, and the Graves memo was a gold mine of intelligence about the other side’s strategy: the kind of stuff that would have prepared Kavanaugh immensely for the Estrada fight.
“I was not the associate counsel in the White House Counsel’s Office assigned to Judge [Charles] Pickering’s nomination.”
What’s controversial: Democrats say Kavanaugh misled then-Sen. Russell Feingold (D-Wis.) by testifying in 2006 that he was not “assigned” or was not “primarily handling” Pickering’s nomination.
Analysis: Pickering was a sitting federal judge who asked lawyers practicing in his court, including lawyers with open cases, to write letters to the Senate Judiciary Committee in support of his nomination to fill an appeals court vacancy. Asked about this ethical lapse, Kavanaugh testified at a 2006 hearing that he was not “primarily handling” the nomination. He later reiterated to Feingold in response to written questions that he was not the White House lawyer “assigned” to Pickering’s nomination. These responses were misleading. Records released for his Supreme Court nomination show that Kavanaugh was fairly consumed with the Pickering nomination even though he was not the White House lawyer with primary responsibility. He coordinated meetings about the nomination, wrote an op-ed for then-White House Counsel Alberto Gonzales about Pickering, and had a hand devising the overall strategy, among other contributions.
On the fence
“I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.”
What’s controversial: Ford and Ramirez both say the attacks happened after Kavanaugh had been drinking heavily. His statement closed off the possibility that he was ever too drunk to remember.
Analysis: Friends and former classmates have offered diametrically opposed recollections in media interviews, making it difficult to reach a final judgment. Three high school or college friends said Kavanaugh was a social drinker who never drank to excess; six college classmates said he was a stumbling, sometimes nasty drunk. At Yale, “Brett was a frequent drinker, and a heavy drinker. … There are many times that he could not remember what was going on,” said Charles “Chad” Ludington, a former basketball player at Yale who said he socialized frequently with Kavanaugh while they were at that university. Ludington and two other classmates wrote an opinion article in The Washington Post saying that “we felt it our civic duty to speak the truth and say that Brett lied under oath while seeking to become a Supreme Court justice.”
“I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the Counsel's Office or as staff secretary.”
What’s controversial: Democrats say Kavanaugh misled the Judiciary Committee by testifying in 2006 that he had no role in the Bush administration’s detainee-torture policy.
Analysis: Kavanaugh’s responses to Durbin and Leahy about this issue were problematic. He told Durbin, “I was not involved and am not involved in the questions about the rules governing detention of combatants.” His answer to Leahy was slightly broader: Kavanaugh said he “was not aware of any issues” regarding “the legal justifications or the policies relating to the treatment of detainees” until news reports about it were published. After this hearing, The Washington Post reported in 2007 that Kavanaugh did have a role in one aspect of the Bush administration’s internal debate over detainee treatment. He offered his assessment of how Justice Anthony M. Kennedy might vote on the Supreme Court if the Bush administration denied access to counsel to detainees. Since he told Leahy he “was not aware of any issues” regarding “policies relating to the treatment of detainees,” and since access to legal counsel could fairly be described as a factor in the treatment of detainees, Kavanaugh’s response arguably was misleading.
“I am familiar generally with Mr. [Bill] Pryor, but that was not one that I worked on personally.”
What’s controversial: Democrats say Kavanaugh misled Kennedy by testifying in 2004 that Pryor’s nomination “was not one that I worked on personally.”
Analysis: Pryor had disparaged some Supreme Court rulings and once called Roe v. Wade the “worst abomination in the history of constitutional law.” Kavanaugh did have a role in the Pryor fight — and recommended Pryor for the appeals court to begin with — although he was not the White House lawyer with primary responsibility for the nomination. This particular response he gave Kennedy in 2004 was false, since Kavanaugh did work on the Pryor nomination personally. But Kavanaugh later told Kennedy at the same hearing that he may have attended a moot court session to prepare Pryor for his Senate confirmation hearing. In response to Kennedy’s written questions, Kavanaugh clarified months later, “I participated in moot court preparation for Judge Pryor.” Kavanaugh also disclosed in response to Durbin’s written questions in 2004 that he worked on Pryor’s nomination and those of 18 other judicial nominees. He also disclosed that all White House lawyers handling nominations participated in discussions about all nominees. In sum, Kavanaugh disclosed some of the work he did in a lawyerly, guarded fashion, but omitted other relevant details.
Not problematic
“I have no connections there [Yale]. I got there by busting my tail."
What’s controversial: The Intercept reported that Kavanaugh’s grandfather had attended Yale University, leading some media to say he was a “legacy” candidate.
Analysis: Many universities only consider candidates to be legacy if a parent attended — and Yale is among them. “For admission to Yale College, we consider a ‘legacy applicant’ to be the son or daughter of a Yale alumnus or alumna,” said university spokesman Thomas Conroy. “We do not consider a connection through the grandparent to be defined as a ‘legacy.’”
“I know Jim Haynes, but it was not one of the nominations that I handled. I handled a number of nominations in the counsel’s office. That was not one of the ones that I handled.”
What’s controversial: Democrats say Kavanaugh misled Durbin by testifying in 2006 that Jim Haynes’s nomination “was not one of the ones that I handled.”
Analysis: As general counsel of the Department of Defense, Haynes had a role devising the Bush administration’s policy of torturing detainees. Kavanaugh accurately said he did not “handle” the Haynes nomination in the White House. Another associate White House counsel at the time was the lead on Haynes. The limited records released as part of his Supreme Court nomination show that Kavanaugh had a minor role in the Haynes nomination nonetheless. Although Durbin says Kavanaugh’s response in 2006 was not accurate, Kavanaugh had stated in response to Durbin’s written questions in 2004 that he had had some involvement in the Haynes nomination. Then, at the same 2006 hearing, Kavanaugh told Sen. Charles E. Schumer (D-N.Y.) point-blank that he was involved in the Haynes nomination. Kavanaugh’s responses in sum were confusing and lawyerly at several points but overall accurate.
“Nothing at all.”
What’s controversial: Democrats say Kavanaugh misled Leahy by testifying in 2006 that he had seen “nothing at all” about a Bush-era warrantless surveillance program to track terrorists until the New York Times uncovered it in December 2005.
Analysis: The lone piece of evidence that Kavanaugh might have known about this program before the Times article is an email he sent to John Yoo at the Justice Department in the days after 9/11, asking about the Fourth Amendment “implications of random/constant surveillance of phone and email conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence.” The warrantless wiretapping program did not exist when Kavanaugh sent this email, and multiple Bush administration officials have stated on the record that Kavanaugh was not “read into” the Terrorist Surveillance Program once it was up and running. In the immediate aftermath of 9/11, White House lawyers were sending a flurry of questions to the Justice Department to research the president’s powers to combat terrorist threats. Kavanaugh’s email to Yoo appears to have been part of that preliminary work.
“It was a technical matter of filling out a form, in that case with — that — they said filling out the form would make them complicit in the provision of the abortion-inducing drugs that they were — as a religious matter, objected to.”
What’s controversial: Sen. Kamala D. Harris (D-Calif.) claimed that the use of the word “abortion-inducing drugs” was “a dog whistle for going after birth control.”
Analysis: Kavanaugh was merely quoting from the plaintiff’s position in a lawsuit over the Affordable Care Act’s requirement to provide contraception as part of health insurance coverage for employees. A plain reading of Kavanaugh’s answer during the hearings showed that it was broadly consistent with his written opinion. Though Harris suggested Kavanaugh opposes contraception, in that opinion Kavanaugh wrote that the government appeared to have “a compelling interest in facilitating women’s access to contraception.” (Harris earned Four Pinocchios.)
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