had it. “I don’t believe my staff would leak it,” she said but admitted, “I have not asked [them] that question directly.”20 It was far from a convincing denial.
By the time the senators spoke to reporters afterward, it was the Democrats who were utterly deflated, while the Republicans spoke with optimism about the committee vote the next day.
The Kavanaughs left immediately. Both Presidents Trump and Bush called the judge to commend him for his testimony. The couple attended a gathering that evening at the McCalebs’ house. It would take time for Kavanaugh to appreciate the extent of his support, but that night he began to see how much his hearing had meant to people in his life. Text messages and emails poured in from people he knew in high school, college, law school, the independent counsel’s office, and the White House. He heard from people he knew during his clerkships and parents of children he had coached. It was a survey of his life’s work, and it was reassuring and encouraging.
CHAPTER TEN
The Anteroom Where It Happened
It had been a rough couple of years in the Senate for Jeff Flake. A conservative from the small-government and free-trade wing of the GOP, he couldn’t get over Donald Trump’s brash political style, even as the president remained popular with Republican voters. His anti-Trump manifesto, Conscience of a Conservative, sealed his electoral fate. Shortly after it was published in the summer of 2017, he announced that he would not run for reelection. John McCain, the senior senator from Arizona, died August 25, and the country had gone through weeks of remembrances of the former prisoner of war who had played a major role in politics for thirty-five years. McCain was particularly well regarded in Washington for his opposition to Trump, and Flake thought of him as a father figure and mentor.
Despite his conservative voting record, Flake could be contemptuous of Republican voters, and his visceral aversion to President Trump sometimes caused him, like McCain, to break from the Republican caucus. Nevertheless, he was considered a likely vote for Kavanaugh.
As the allegations piled up, however, Flake agonized about his vote, bristling at the pressure from his party’s leadership. Democrats recognized early on that he might waver. Senator Chris Coons, who was friendly with Flake and worked with him frequently, was a key to the effort to turn him. In the first hearing, Coons questioned Kavanaugh closely about executive power, which he knew to be a concern of Flake’s. Kavanaugh, for his part, seemed to reassure Flake by clarifying that he did not view executive authority as unlimited. After the accusations of sexual assault emerged, Coons shifted to emphasizing the need for a thorough investigation.
Republicans trying to secure Flake’s vote recognized his sympathy with Ford and other victims of sexual assault, so they did not rely solely on the lack of any evidence for the accusation. They reminded him that Brett Kavanaugh was a human being, a man with a wife and children. If Flake voted against him, he would not only keep a justice of sound constitutional principles off the Court but also destroy a man’s reputation. Senator Mike Lee, a former federal prosecutor, felt he could walk Flake, not a lawyer, through the legal analysis. In the United States, the accused is considered innocent until proved guilty. To be convicted of a crime, his guilt must be “beyond a reasonable doubt,” while in civil trials, the burden of proof is lighter—a “preponderance of the evidence,” that is, it is more likely than not that the defendant is liable. Kavanaugh was not on trial, of course, but the presumption of innocence—an essential part of what Americans mean by “due process”—ought to guide the senators as they evaluated Ford’s accusation.
On Friday morning, the day after the second hearing, Flake announced that he would vote to confirm Kavanaugh, assuring that the nomination would be voted out of committee and onto the floor of the Senate.1 He praised Kavanaugh, noting that in another era he would have been nearly unanimously confirmed, while acknowledging that after such persuasive testimony from both Kavanaugh and Ford he couldn’t be sure what had happened. Former President George W. Bush had quietly lobbied Flake and other undecided senators. Senator Lee’s emphasis on the burden of proof seemed to have been the decisive point.2 When CNN’s congressional correspondent Sunlen Serfaty broke the news to Senator Coons, he responded, “Oh f—k,” and began to choke up: “I deeply respect . . . We each make