Inside the Kavanaugh Hearings: An Oral History

May 21, 2019
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by Catherine Trautwein Tow Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowship

Supreme Court nominee Judge Brett Kavanaugh arrives for testimony before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill September 4, 2018 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

For the 20 million people who watched the tense Supreme Court confirmation hearings of Justice Brett Kavanaugh, it seemed like decisions had already been made. Democrats on the Senate Judiciary Committee interrupted proceedings before they began. Republicans publicly pledged to support Kavanaugh.

But as Senate Majority Leader Mitch McConnell tallied votes, there were a handful of senators who couldn’t be easily pinned down.

Through interviews with Sen. Susan Collins and former Sens. Jeff Flake and Heidi Heitkamp, FRONTLINE takes you behind the decision to confirm Kavanaugh, from the viewpoint of three senators whose minds were far from made up. They take us through the contentious proceedings, and how their views shifted from the start of Kavanaugh’s nomination to when Christine Blasey Ford’s allegations against the judge were made public.

This has been edited for clarity and length.

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In July 2018, President Trump nominates U.S. appeals court judge Brett Kavanaugh to the Supreme Court to fill the swing seat of retiring Justice Anthony Kennedy. The nomination is met with a strong partisan reaction. Trump had successfully placed Justice Neil Gorsuch on the bench shortly after he took office, so a successful appointment would mean a 5-4 conservative-leaning court. Both Democrats and Republicans recognized the stakes — and many seemed to indicate which way they would vote before proceedings had even started.  

Sen. Susan Collins (R-Maine): It is very telling that we’re so polarized right now that we had outside ideologically driven interest groups putting out press releases in opposition to President Trump’s nominee before they even knew who the nominee was. One press release actually says, “Oppose Judge XXX.” They forgot to fill in the judge’s name.

Sen. Jeff Flake (R-Ariz.): Obviously I have my concerns with this president, with the White House and what he might do regarding the investigation. I wanted to make sure that his views on presidential power and separation of powers were where they should be. The Democrats were concerned that he would simply dance with who brought him there and would be far more prone to side with the president on issues. I wanted to make sure that that was not the case as well.

Sen. Heidi Heitkamp (D-N.D.): I think it was a mistake on both sides. I mean, there [were] Republicans saying, “It doesn’t matter who it is; I’m going to support the president’s nominee.” I think that’s an aberration of your constitutional obligation for advice and consent. I think you’ve got to go through the process. There’s no do-overs once that person sits on the bench.

Collins: People on both sides of the aisle very quickly took positions on Judge Kavanaugh before they knew anything about him, or very little about him. The number of us who were truly undecided was probably fewer than 10. And we talked frequently. We were determined to go through a thorough process. I was very worried about what the process said to the American people.

Sept. 4, 2018, the first day of Kavanaugh’s hearings before the Senate Judiciary Committee, was a chaotic scene: protesters lined the back of the room, and Democrats immediately began interrupting the committee Chairman Chuck Grassley, calling for the hearing to be postponed.

Flake: You could see the protesters waiting in the back. You just didn’t know when they would erupt. We were interrupted dozens and dozens and dozens of times. I tell you, it was big drama, that room. There were more cameras — you could barely hear for the clicking whenever the judge would turn his head or make a motion that they wanted to capture.

Collins: I was embarrassed for the Senate. When Chairman Grassley was not even allowed to complete his opening statement before being interrupted by Democratic senators in what was clearly an orchestrated move, I was very worried about the confirmation process.

Heitkamp: I thought that’s no way to conduct a hearing, that that candidate deserves the opportunity to make his statement and to be treated respectfully in the room. I think in some ways, the side story of this is not just the selection of Kavanaugh. Center stage is the process, and then later, the process got even messier. I think the American public watched that, and they could empathize with the person in the chair. You know, how would you like to be sitting there and having this whole explosion around you?

I don’t think it serves the institution of the Senate well. I had one person [from my state] say: “I like you, Heidi. But I can’t vote for a Democrat because you’re part of a mob.” That’s what they saw. I would dispute that there was any more or less partisanship on either side, but I think that the process was not becoming of the United States Senate.

Collins: We’ve seen a gradual but persistent politicization of the judicial nomination process for Supreme Court nominees over the past 30 years, and this seemed to me to be a new low.

Heitkamp: I thought it was disingenuous for the Republicans to say, “You all have made up your mind.” I wanted to say: “You all have made up your mind. None of you came into this with anything other than a preconceived notion. This was theater. It wasn’t a job interview.”

After Kavanaugh’s first hearing, a letter containing allegations of sexual assault by Kavanaugh is made public. On Sept. 16, the Washington Post identified the woman as Christine Blasey Ford. Senators, who had already heard from Kavanaugh, now have new testimony to consider: Blasey Ford’s. She appears before the Senate Judiciary Committee on Sept. 27.   

Heitkamp: Up to the hearing with Dr. Ford, I had already begun to prepare an announcement that I was going to support the nominee. I supported Neil Gorsuch… I thought, look, elections have consequences. The people of this country knew that this president was going to nominate conservative jurists, and so long as this person is qualified, not just intellectually and as a legal scholar, but by temperament and character, there’s no reason to reject this nominee.

Flake: When I heard the news she’d come out with these allegations, I immediately said she needed to testify.

Collins: When I read the allegations, I was very concerned.  I was at the stage where I had completed most of my review of Judge Kavanaugh’s record during his 12 years on the circuit court … So then this bombshell letter drops and sends the nomination process into a tailspin. The very next day, after I read the then-redacted letter, I talked to Judge Kavanaugh. I had some additional questions that I wanted to ask him about his record, but I of course asked him about the allegations in the letter. I asked him whether there was any truth in them. He was emphatic in his denial. I then asked him if he had any idea who would have made the allegations, or why they were made, and he said that he did not.

I felt once Dr. Ford’s identity became known that the only option was for the Senate Judiciary Committee to convene and have a hearing in which both Dr. Ford and Judge Kavanaugh testified at length under oath.

Flake: It was impossible not to be riveted with her testimony. She was compelling. That was impactful. It really was. So I think I shared that with all of my colleagues. That was a big deal.

Heitkamp: The first thing I thought is how enormously courageous, because in many ways, she was there alone … When somebody comes into this kind of high-charged, partisan political environment, their family frequently is not leathered up to manage that. And I think the instinct was, I’m going to do this. I’m going to do this, and I’m not going to ask my family to be here with me, because it’s hard enough for me to be there. I thought she was enormously courageous, enormously persuasive.

Collins: I had found what she said to be very painful. I was convinced that she had been sexually assaulted, but I did not know for certain who was her assailant. I felt that she was traumatized and that it was a huge burden on her to come forward and that she was indeed frightened. I felt bad that her family wasn’t there with her to support her, that her parents and her brothers — and I thought that was odd. But I found her to be credible in asserting that something terrible had happened to her.

Heitkamp: The point at which I felt certain that she was telling the truth, in its totality — I find it interesting to say, “Well, this happened to her but not him.” I’m like, “Well, if you’re going to believe her that it happened to her, then why not believe everything she’s telling you? She has given you no reason not to trust what she’s saying.” And when Sen. [Dick] Durbin asked her, “How certain are you?” Which is a good prosecutorial question, actually — he’s one of the, in my opinion, better trial lawyers in the Senate. And she said, “100 percent,” it was that moment where I said, “This happened to her, and this event occurred as she described it.”

Flake: We had a meeting right after her testimony, or during her testimony at one point, and I could tell my colleagues were moved, and they were saying: “He’d better be good. He’d better have an answer, because she sounds very credible.”

After Blasey Ford’s testimony, Kavanaugh testifies in front of the Senate Judiciary Committee. It was a heated testimony, which some interpreted as a signal of the judge’s outrage of being wrongly accused, and others took as a sign of questionable temperament for a Supreme Court justice.  

Flake: That was a tour de force, I think, in terms of indignation, and to some of us, made us wince. It did me. But on the other hand, I tried to put myself in his position and say, “How would I feel if I felt that I was wrongly accused?” And that’s the kind of reaction I would probably have.

Collins: I thought about all that the judge and his family had been through. He had been accused of drugging teen girls and participating in gang rapes, an allegation for which there was absolutely no substantiation, an outrageous allegation, but one which his young daughters had heard.  I was not surprised that he was both anguished and angry. I think that’s a normal reaction for a human being who’s been accused of absolutely despicable heinous crimes to have.

Flake: With regard to the allegations, I’ve said before and I’ve maintained that position, that we could never be sure what happened 36 years before by teenagers who by all accounts had been drinking. Does anybody really know? Could anybody be certain what happened? I don’t think so.

Heitkamp: You don’t sit in the jury box and say, “OK, I’ve made a judgment now, and you’re guilty.” You have to listen to all sides. So I watched him, and pretty much during that process became very uneasy during the questioning from Sen. [Amy] Klobuchar. You’re [asking yourself], “Did this happen? If it happened, is it disqualifying?” But then, when you say, “Temperament matters,” and you see someone who exhibits a level of rage that should never be exhibited by someone who is seeking a position on the highest court of the land — then you’re pretty much at that point where you’ve made the decision.

Flake: For myself, I saw the reaction that he had to the allegations, and as I mentioned, that’s how you would expect, I think, somebody to react if they’d been wrongly accused. Did he go overboard? Yes, but then you weigh that against his behavior on the court that he’s been serving on for over a decade. And I checked with some of his colleagues, too. Is that really him? Is that how he acts? And to a person, it was no. He had been the model of decorum and decency during his entire time. That’s not just from his colleagues, but from clerks, from plaintiffs, anybody who had dealt with him, so it was totally inconsistent with the record he had had as a judge, and that meant something to me.

Heitkamp: I think he was playing to an audience of one … Remember, the president said, “Well, we’ll see how the hearings go.” It wasn’t clear whether the nominee was going to go forward. That’s what I think.

Collins: It was very telling to me, when he was asked if he had known what he was going to go through and what his family would be put through, including death threats directed at his wife, would he have accepted the nomination? And he said no. It concerns me that good people, having witnessed the spectacle, the hardship, the allegations, are going to refuse to serve our country. They’re just not going to want to go through that.

After the testimonies on Sept. 27, Sen. Flake announced that he would vote to advance Kavanaugh’s nomination. After a now infamous confrontation with protesters in an elevator, he said that his vote would be contingent on an FBI investigation into Blasey Ford’s allegations. On Sept. 28, the committee voted along party lines to send the nomination to the full Senate. A single copy of the results of the investigation — spurred by Flake’s request — was given to the Senate Judiciary Committee in early October.

Flake: I went into that elevator still very troubled by the decision that I’d made, not necessarily on the merits of  the case, but that the country was being ripped apart here.

And then I got to the committee, and there was an all-out food fight going on with Republicans and Democrats. And then I heard [Sen.] Chris Coons (D-Del.) give his speech, and in contrast to everything else, it was a very measured and sober recitation of what we had done and what we hadn’t done. Why couldn’t we have a weeklong investigation? And that rang true to me. I’m very close to Chris Coons.

We first talked alone until our colleagues realized what we might be doing, and then one by one, they came over, and then it got rather heated.

And this is a very small, little corridor there. The press was right outside, so whenever anybody would open the door, there were cameras shooting in. And pretty soon, after the shouting match started to occur, I said, “I just want to talk to Chris.” So we holed up in a little phone booth, and my colleagues are kind of pressing up against the glass to try to hear what was going on.

We were calling Susan Collins and Lisa Murkowski, wanting to make sure they would back me up if I would say, “I’ll vote to advance the nomination but will not vote yes unless we have an investigation,” or, “I’ll vote to advance the nomination but won’t vote on the floor yes unless we have an FBI investigation.” And they said that they would back me up on that.

Collins: I think I talked to Jeff Flake every single day. And he said to me on the phone, “What would you think if I said that I’m not going to vote to report the nominee until we reopen the background check that the FBI has conducted?” And I told him I thought that was an excellent idea, that I would support him.

Heitkamp: And then it’s announced that there will be further investigative material. So you have to say, “OK, don’t prejudge.”

Flake: After we voted to advance the nomination based on the agreement that we would have an FBI investigation, we went to Leader McConnell’s office — myself, Susan Collins, Lisa Murkowski, and many members of the Judiciary Committee — and then tried to set parameters for the investigation. We wanted to make sure, obviously, that the principals would be interviewed … and miraculously, they said, “Yeah, we can do that.”

Heitkamp: Of all the absurdities of this process, to go into a secured room, which we did, to read documents, and the chairman refused to have 20 copies. So there’s 20 senators reading a page at a time and passing it on. I mean, explain to me how that can be anything other than the theater of the absurd.

Flake: Given where we were, we just wanted it to be thorough with regard to those who had been identified. And I do think it was. Although we shouldn’t get into the habit of making background checks that are done by the FBI public, it’s not a good thing — but in many ways I wish the country could have read this report. I think they would have felt better about it. It was thorough with regard to the people that it interviewed, and it shed some light on what may or may not have happened there.

I felt in the end we were in a better place than we were before. Maybe not much better, but in a better place.

Collins: Now, those interviews are classified, but I read each and every one of them, and there was no corroborating evidence for what Professor Ford said happened that night. In fact, her best friend said that not only did she not recall any party or any incident, but she did not even know Brett Kavanaugh. Now, I do want to make clear, again, that I do believe that Professor Ford had a traumatic sexual assault and that it upended her life. But we have a presumption of innocence in this country, and we cannot dispense with fairness the presumption of innocence and due process just because passions are inflamed. In fact, it is when passions are most inflamed that fairness is most in jeopardy. 

On Oct. 6, the Senate voted to confirm Kavanaugh to the Supreme Court 51-49. The vote was along party lines with the exception of Sen Joe Manchin (D-W.V.), who sided with the Republicans in confirming Kavanaugh.

Flake: I still believe that had he been denied, had the vote gone the other way, that we would be in strange new territory where an uncorroborated allegation from as far as 35 years before could disqualify somebody. And that’s not a place we want to be in. I think all of us felt that way.

Heitkamp: It wasn’t a hard vote in terms of clarity of why I was doing it in my judgment. But I knew it was a hard vote politically. And I knew that it was one of those that would flame the fire of, “See? She is really with the other side. She is not objective,” when really, it was one of the most objective votes I’ve taken.

Collins: I expect criticism. But the lack of civility, the death threats, the profanity that was directed at both my staff and me, was very difficult.

This story was sourced using FRONTLINE’s Transparency Project. We’ve created new ways for our audiences to search, experience and share the in-depth interviews that we use to make our films. You can explore the 39 interviews used in the making of Supreme Revenge in an interactive archive that includes all the quotes from the film in their original context, plus hours of insights, analysis and stories not included in the final cut.

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