A New York Times article that contains major revelations about Supreme Court Justice Brett Kavanaugh’s reported sexual misconduct was undermined by several mistakes the paper made in promoting and framing the story.
On September 14, the Times published an article by Robin Pogrebin and Kate Kelly that was adapted from their new book, The Education of Brett Kavanaugh: An Investigation. The article includes the stunning development that at least seven people can corroborate the account of Deborah Ramirez, who says that Kavanaugh shoved his penis in her face at a party while they both attended Yale in the 1980s. Significantly, Kavanaugh had testified under oath during his confirmation hearings that the incident did not occur.
However, much of the discussion around the article has been about a series of poor decisions the Times made instead of the corroboration of Ramirez’s report.
The Times made several poor decisions in its presentation of the article
The Times promoted the article on Twitter with a since-deleted tweet that argued, “Having a penis thrust in your face at a drunken dorm party may seem like harmless fun.” The piece was also poorly framed and buried the lede; its bombshell revelation -- new corroboration for Ramirez’s account about Kavanaugh -- was not mentioned until the ninth paragraph. Finally, a portion of the article that discussed misconduct reports against Kavanaugh that were unrelated to Ramirez’s account failed to include an important detail (which is included in Pogrebin and Kelly’s book), creating an opening for people who have an interest in defending Kavanaugh at all costs, including the president, to dismiss the story as a whole.
But still, the implications of the article are massive
These mistakes unfortunately serve to undermine the massive implications of the article. As Pogrebin and Kelly note, Kavanaugh had testified during his confirmation hearing that if he had actually put his penis in Ramirez’s face, the incident would have been “the talk of campus.” In fact, Kavanaugh’s behavior was the talk of campus according to Pogrebin and Kelly’s reporting, which found that “at least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.”
When Kavanaugh testified under oath before the Senate Judiciary Committee, he was definitive in his claims. He didn’t say that he wasn’t sure the incident had happened or that he couldn’t fully remember the event (notably, Kavanaugh has also claimed that he has never blacked out from drinking). Instead, he emphatically stated that it didn’t happen:
The Times’ reporting makes it more clear than ever that Kavanaugh was lying.
As additional important context, this was not the only instance of Kavanaugh giving untrue testimony about Ramirez. While being questioned by Sen. Orrin Hatch (R-UT), Kavanaugh claimed that he first learned that Ramirez said he exposed himself to her “in the last -- in the period since then, in the New Yorker story.” Subsequent reporting established that this wasn’t true; according to NBC News:
In the days leading up to a public allegation that Supreme Court nominee Brett Kavanaugh exposed himself to a college classmate, the judge and his team were communicating behind the scenes with friends to refute the claim, according to text messages obtained by NBC News.
It’s also important to consider that in general, Kavanaugh did not provide credible testimony and often lied about even trivial matters:
The Times' mishandling of the article also distracts from another major revelation included in Pogrebin and Kelly’s book: the extent to which the Republican-controlled FBI investigation into sexual misconduct reports against Kavanaugh was a sham.
During the hearings, it was already known that Republicans were using their control of the Senate Judiciary Committee to limit the time and scope of the FBI’s inquiry. But Pogrebin and Kelly’s reporting demonstrates just how far Republicans actually went to protect Kavanaugh. According to their article, “Ms. Ramirez’s legal team gave the F.B.I. a list of at least 25 individuals who may have had corroborating evidence. But the bureau — in its supplemental background investigation — interviewed none of them, though we learned many of these potential witnesses tried in vain to reach the F.B.I. on their own,” and FBI agents reportedly told Ramirez’s attorney that Republicans were closely controlling how they were allowed to conduct their inquiry.
Trump responded to the Times article by engaging in an abuse of power
The publication of the article also spurred another extraordinary development, although one that will likely get lost in the noise surrounding the Times’ mistakes. Responding to the piece, President Donald Trump said Kavanaugh “should start suing people for libel” and suggested “the Justice Department should come to his rescue”:
Using the nation’s top law enforcement agency to defend a Supreme Court justice -- presumably by taking action against private citizens who have accused Kavanaugh of misconduct -- would be an enormous abuse of power similar to President Richard Nixon’s infamous use of federal agencies to target his political enemies.
And the favor Trump offered to Kavanaugh also raises serious questions about whether Kavanaugh can fairly rule on matters involving the Trump administration.
The sloppy presentation of the Times article created an opening for bad faith attacks on Ramirez
The Times' mistakes enabled conservative media figures to better package their bad faith arguments against the accusation. For example, Fox News contributor Byron York paired legitimate criticism of the Times’ since-deleted offensive tweet with his claim -- for which he offered no evidence -- that Ramirez’s report has been discredited:
This is not the first occasion on which the Times has made mistakes concerning Ramirez’s account. During the hearings, after The New Yorker first published Ramirez’s allegation, the Times responded with an article of its own saying it had not been able to corroborate her account (without flagging that she elected not to speak to the Times). The Times’ story was then used by supporters of Kavanaugh to attack Ramirez.
But as The New Yorker’s Jane Mayer explained, the Times would have certainly run its own story if it had access to the same accounts that The New Yorker did:
The Times later included the following line in an article about Kavanaugh:
Many cited a Times article that said The Times had conducted numerous interviews but was unable to corroborate Ms. Ramirez’s story.
But The Times did not rebut her account and, unlike The New Yorker, was not able to obtain an interview with Ms. Ramirez.
But as is the case with the Times’ latest Kavanaugh article, the damage had already been done.