Late on the evening of September 27, 2018, Senator Chris Coons, the Democrat from Delaware, fell asleep with the lights still on, his contact lenses still in, and his cell phone under his face.
The balding former lawyer, who holds a master’s degree from Yale Divinity School, had spent the night responding to emails and reading through prep materials for the next morning’s vote on whether to advance Kavanaugh’s nomination to the full Senate. Like much of America, Coons had been shaken by Ford’s distressing testimony and unsettled by Kavanaugh’s vitriolic response at the hearing earlier that day.
Even more than that, Coons had been struck by the realization that this was a watershed moment for people all over the country who had experienced sexual assault. Ford’s testimony, which he later said he was hearing “through the ears of whole communities who have been living through comparable painful experiences,” was both moving and eye-opening. “That made the contrast to then-Judge Kavanaugh’s forceful pushback even sharper,” Coons said, “and made me more conscious of the ways in which millions of Americans actually heard this.”
When Kavanaugh came out to testify after Ford, Coons expected him to walk the line between expressing empathy and admitting guilt. He presumed Kavanaugh would apologize for the pain Ford had endured, perhaps leaving open the possibility that he had been the assailant she remembered but didn’t know it due to his heavy drinking that night.
Instead, Kavanaugh cited his daughters’ basketball teammates, his former female clerks, and his mom as a judge, Coons said, effectively using them as shields and portraying himself as the one who had been victimized. “They had laid out this entire case of this good and decent man who has entirely moved past any adolescent misogyny,” the senator said. “I was utterly stunned by the forcefulness and aggressiveness of his defense, which was not just a denial but was an attack on Democrats on the committee on a partisan basis.”
The morning after the hearing, Friday, September 28, Coons went over the remarks that had been prepared for him by his chief counsel, Erica Songer, a litigator and former federal law clerk. The draft read well. But Coons had woken up believing that the moment called for more. His goal: to articulate—as forcefully as possible—why Kavanaugh should not serve on the Supreme Court.
“I was convinced the committee was on the verge of simply barreling ahead and taking an up-or-down vote and not taking the time to seriously investigate Dr. Ford’s allegation,” he said. “If I’m trying to persuade my friend Jeff Flake,” he said, referencing the moderate Republican with whom he often shared positions, “I need to make a reasoned, positive, balanced appeal.”
Flake was the man Coons most kept in mind as he revised his remarks, because he was one of three crucial swing votes on the Judiciary Committee. Flake was also a friend. Despite their party differences, the two men had been drawn together by shared interests and desire for bipartisanship where possible. Both had spent time in Africa in the 1980s—Coons studying in Kenya and elsewhere in East Africa during college, Flake on a mission for the Mormon Church in southern Africa.
Coons knew he had to appeal to Flake’s interest in due process. “Doing things like that—respecting your opponent’s key grievance or concern—is a way to move one step in their direction,” Coons said, “and hopefully have them hear you.”
On his way to the hearing room from his office, Coons ran into three female reporters who had been camped out during the confirmation process. They made small talk about the weekend. Coons mentioned his plan to take his daughter to the Global Citizen Festival, a free concert in New York’s Central Park where Cardi B, Janet Jackson, and the Weeknd were to perform. Then one of the reporters showed him an unexpected tweet: Flake intended to vote for Kavanaugh. Coons, shocked, responded with a shower of expletives. Surrounded by the reporters’ recording devices and fighting back tears, he then tried without success to formulate a more coherent response.
“I was watching him the whole day before,” Coons later said of Flake. “I know him as a husband and a father. And I just couldn’t believe that, despite Judge Kavanaugh’s pointed rejoinder, that Jeff was still nonetheless going to go ahead and vote for him.”
Flake, it turned out, had also endured a sleepless night. He was anxious over a different, though equally nettlesome, question: What precedent would it set if Kavanaugh was not confirmed? Ford’s claims, while clear and heartfelt, were unproven. And if unsupported allegations could derail a distinguished public official, Flake feared, it could open the door to a deluge of irreparably damaged lives and careers, maybe due to old grudges or political differences rather than facts.
“That you could have an uncorroborated allegation—thirty-six years ago in this case—would be enough by itself to disqualify someone,” Flake later said, “that was too much for me.”
Flake had been reared on a cattle ranch in Snowflake, Arizona. He was a fiscal conservative and strict constructionist with an independent streak. During the Trump administration, Flake had been unafraid to break ranks. His 2017 book, The Conscience of a Conservative, had criticized the president’s temperament as well as his trade policies. That same year, Flake had also announced plans to retire from the Senate amid flagging poll numbers, publicly blaming his party’s “complicity” in supporting Trump. Retiring freed Flake from the perennial concerns about popularity and fund-raising that force many members of Congress to vote with the majority. Yet to many, his long, attention-getting farewell, coupled with rumors that he might challenge Trump in the 2020 GOP primary, smacked more of opportunism than true belief.
“Before the allegation came, I was ready to support him,” Flake said of Kavanaugh. “I didn’t particularly like his performance in the committee, obviously—he was blaming the Clintons, and his exchange with Senator Klobuchar I thought was out of line, but he conceded as much right afterwards.”
Flake was in favor of adding a conservative-minded justice to the Supreme Court, and on that score, Kavanaugh was a compelling choice. Flake tried to put himself in Kavanaugh’s shoes, to imagine how he would feel if he were similarly accused. He thought back to how the Democratic presidential candidate Michael Dukakis was criticized in 1988 for a lack of emotion when asked if he would support the death penalty should his wife, Kitty, be raped and murdered. (Dukakis said that, as a longtime opponent of capital punishment, he would not.) Now Kavanaugh was under fire for the opposite problem: having too much emotion.
“You got to think, if somebody feels they were unjustly accused, that they would be angry,” Flake said in an interview.
Flake was also weighing Kavanaugh’s record on the bench and his estimable professional reputation. Flake knew that, despite the previous day’s outbursts, many of Kavanaugh’s colleagues had praised his equanimity.
These thoughts were on the senator’s mind when he stepped into a Hart building elevator that Friday morning. On his way into the elevator, he was accosted by two sexual assault survivors who had come to protest Kavanaugh’s confirmation. Together they blocked the door, preventing it from closing as they yelled their protests at the senator. “What you are doing is allowing someone who actually violated a woman to sit on the Supreme Court,” said Ana Maria Archila, a community organizer from Queens, New York, while jabbing her finger at Flake. Her voice was emotional; she sounded near tears. “What are you doing, sir?”
Flake, stuck in the corner of the elevator car with a bank of cameras suddenly trained on him, his dirty-blond hair bathed in fluorescent light, looked wretched. He pursed his lips and frowned, at times looking down at the floor while he listened. He poked at the elevator buttons with his right finger.
“I was sexually assaulted and nobody believed me,” Maria Gallagher, another protester, shouted to Flake. “I didn’t tell anyone, and you’re telling all women that they don’t matter.”
Urged on by the nearby reporters, one of whom dangled a camera by the elevator doors, Archila grilled Flake about his response to Kavanaugh.
“Senator Flake, do you think Brett Kavanaugh is telling the truth?”
Flake nodded, his eyes glancing at the floor, and appeared to say yes.
“Do you think that he is able to hold the pain of this country and repair it?” asked Archila. “That is the work of justice.” She lectured him about the injustice of allowing a man who had harmed a woman to ascend to such a powerful position, still pointing her finger at the downcast Republican. She asked again if Flake believed that Kavanaugh had told the truth. He continued to nod as one of his aides tried to wrap up the conversation by referring Archila to their spokesperson, thanking her for her feedback.
“Saying thank you is not an answer,” shouted Archila. “This is about the future of our country, sir!”
After a struggle to either stay inside and close the door or walk out with Archila still blocking the way, Flake began to step forward. “I just issued a statement,” he said over the shouting voices and the buzzing of the elevator door, which was trying to close. “I’ll be saying more soon.”
By the time Flake and Coons entered the committee room, both were unsettled. Convinced that the Republicans were determined to roll forward with Kavanaugh’s confirmation, some members of the Judiciary Committee considered a walkout. Klobuchar and Coons, who sat next to each other on the dais, discussed whether to leave or stay and say their piece.
They weren’t the only two engaged in doomsaying and last-ditch strategies—either to jettison or cement Kavanaugh’s nomination. As the hearing began, Lindsey Graham framed the debate in dire terms. “This has been about delay and destruction, and if we reward this, it is the end of good people wanting to be judges,” he argued. “It is the end of any concept of the rule of law. It’s the beginning of a process that will tear this country apart.”
Having decided to stay, Klobuchar said it was outrageous to proceed and not investigate. “Where is the bravery in this room?” she asked, adding of Kavanaugh, “What is he afraid of if we just spend one week looking at the evidence?”
Then, after Senator Cruz weighed in—“All of us should remember that we’re talking about real human beings here. These aren’t pawns on a chessboard”—it was Coons’s turn.
“You know me—you know I try to be fair to nominees that come before us,” he said. He had circles under his eyes and looked grave in his dark suit and American flag lapel pin. “If I were convinced this were nothing more than a partisan hit job designed to take down a good man and hold a position vacant past the election, I would not stand for it.”
In light of Ford’s testimony and calls he’d personally received from other victims, Coons added, “There is an ocean of pain in this nation, not yet fully heard, not yet fully addressed, not yet appropriately resolved. And I, for one, will not countenance the refrain said by too many in response to these allegations by Dr. Ford that it happened too long ago and that in our nation, boys will be boys. We must do better than that, and we must set a better standard than that for our own families and our future.
“To ask for a week,” he concluded, “is not to ask for too much.”
Coons’s comments were bracing for Flake, who was still processing the encounter he’d just had with Archila and Gallagher. A religious man, Flake appreciated what he later called the “Presbyterian” nature of Coons’s speech, in which his colleague had mentioned prayers for Kavanaugh, for Ford, and for the country. Delivered by an ordained minister who occasionally preached in his home state, its tone was measured and humble.
Flake thought a one-week FBI investigation into Ford’s claims sounded reasonable. The FBI could work quickly, he knew. And if extending the time frame would make citizens feel better about the Senate’s decision, it was worth doing.
The strain of the day was by now showing on Flake’s somber face. He stood up and started walking out. Then he tapped Coons on the shoulder and they headed toward the chamber’s anteroom.
Standing in that cramped, closet-like space, where the only decorations were a photograph of the Capitol Building lit at night and the beige, red, and green spines of reference volumes on the shelf, Coons expected Flake to try to let him down easy. He’d apologize for their differences, Coons thought, and say he still planned to vote with his caucus.
Instead, Flake was about to change course.
“Look, this is tearing our committee apart, this is tearing our country apart. Can you deliver on what you just said?” Flake asked. He looked almost ill as he spoke.
“Be clear, Jeff,” replied Coons. “What are you asking?’”
Flake explained that Coons had made a good argument. He thought it was fair, he said, to pause for further investigation. But not if it was to become a “six-week wild-goose chase,” he added.
“I don’t speak for the Democratic caucus, I speak for me,” Coons said. Still, he added, he was fairly confident that his left-leaning colleagues wouldn’t drag out the process for political purposes. They knew even a week was a Republican concession at this point, given that Kavanaugh seemed to have the votes he needed.
Coons acknowledged the political risks of a delay. “Let’s be clear: we’re going to hold hands and jump off a bridge here,” he said. But the two agreed that to move ahead without a fuller investigation would be to disrespect both sexual assault survivors and the American concept of due process.
A short while later, Klobuchar walked in and joined their conversation. Cornyn and Graham followed. Soon almost every committee member had crammed into the anteroom, which was essentially just a carpeted ramp with little more than a small table and a coffeemaker.
They began arguing over Coons and Flake’s proposal, with many Republicans objecting to the delay of another investigation. Some argued that the extension would open a Pandora’s box, inviting new allegations that couldn’t be run down in the time available. It was too much for Democrats to ask, they said.
To gain privacy, Coons and Flake squeezed themselves into the room’s telephone booth, containing a narrow desk and a landline phone behind a door marked SENATORS ONLY. The two barely fit inside. After huddling for about fifteen minutes, they called their Republican colleagues Senators Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom had been perturbed by the Ford allegations and were known for consensus building. Flake wanted them to join him in insisting on an FBI investigation so that he could then go to Majority Leader Mitch McConnell and tell him he had three Republican senators who wouldn’t vote to move forward on Kavanaugh without the added investigation.
He soon succeeded.
Having secured Collins and Murkowski, Flake tried to get Christopher Wray on the phone, but the FBI director was unreachable in Alaska. Instead, he received a call back from the deputy attorney general, Rod J. Rosenstein. During that call, George W. Bush tried to reach Flake, having heard from Republicans like Cornyn that Flake was wavering. The former president had been advocating privately for weeks on Kavanaugh’s behalf. But Flake, who was at that point tied up on another line with Rosenstein, didn’t take Bush’s call.
“Kavanaugh had worked for him—he thought a lot of him,” Flake said later of Bush. “It was a very intense hour or two back there.”
Crucial to Flake was arriving at a bipartisan agreement. In his view, that was the only way the country could begin to heal. “I wanted people to feel better about it,” he said. “I didn’t know that it would change any votes.”
But to those intensely opposed to Kavanaugh, feeling better about it seemed like thin gruel. As the negotiations were taking place, government buildings filled with protesters, some of whom were removed by police officers. The media frantically tried to figure out what was happening with the Senate procedure. After Flake reentered the hearing room, Grassley called on him.
“I think it would be proper to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation, limited in time and scope to the current allegations,” Flake said in his remarks. “We ought to do what we can to make sure that we do all due diligence with a nomination this important.”
There followed some confusion. “Could we have a description?” Feinstein said.
“What are we voting on?” Patrick Leahy added.
Grassley responded, “We are voting on the motion to report the nomination to the floor. The clerk will call the roll.”
Feinstein cut in. “Whoa, that’s not my understanding of what—” she said.
Grassley called the vote. Flake voted to advance the nomination to the full Senate with the caveat of a one-week delay, as did all the other Republican senators. Eight Democrats voted against the motion, and two stayed silent in protest.
Because of the narrow 51–49 majority, McConnell was forced to agree to the motion, and Trump in turn ordered the FBI to conduct a limited “supplemental” investigation “in less than a week.”
While the senators deliberated over the need for an additional FBI investigation, Greg Pappajohn, one of Kavanaugh’s old friends from Georgetown Prep, was meeting with Don Urgo uptown.
A popular high school football player who had been vice president of the student body as a senior, Pappajohn hadn’t attended recent reunions or kept in touch with most of his high school crowd. His email wasn’t even included on the blast notes that went out to fellow alums to coordinate events or initiatives, like the letter of support for Kavanaugh. But amid the clamor of September, Pappajohn—now a successful Wall Street investor who had managed a large investment portfolio for the billionaire hedge-fund manager George Soros—resurfaced. He reached out to his friend Don Urgo, and they agreed to meet for lunch.
Sitting in a booth over crab cakes at Clyde’s in Chevy Chase, reconnecting after so long, made both Urgo and Pappajohn emotional. Now Pappajohn wanted to know what was going on with their most prominent classmate.
“Look, what’s the freaking story here?” he asked Urgo of the Ford allegations. “This is a bunch of BS, correct?”
Urgo, who had attended the highly charged hearing the day before, said yes, there was nothing to Ford’s allegations. The two friends discussed the issues that Kavanaugh—and their entire alumni community—were facing.
“This is a big problem,” said Pappajohn. “They’re going to destroy him, whether it’s right or wrong.”
Pappajohn argued that both Kavanaugh and Georgetown Prep needed a media strategy, including the hiring of a skilled public-relations professional who could better articulate their stories to the public. Keenly aware of the negative impact of the Kavanaugh accusations, Pappajohn had been composing emails to his own two sons, both young adults, hoping to reassure them that many of the stories emerging about his years at Prep were false.
“The substance of my letter to my sons was, one, don’t believe what you are reading. It’s nonsense,” Pappajohn later said. “One hundred kegs or bust was a rallying cry, but no one ever treated women disrespectfully that I was aware of or saw.”
In the middle of the lunch, Urgo’s mobile phone rang. He answered.
“You’ll never believe who I’m talking to,” Urgo said to the caller. Then he handed the phone to Pappajohn.
“It’s P. J.,” said the caller—the third Georgetown Prep boy Ford had remembered from the gathering where she was assaulted who she thought might have helped her had he heard her cries from the bedroom.
“P. J.,” said Pappajohn, who hadn’t seen Smyth since their graduation in 1983, “I heard that Ms. Ford thinks you’re a really nice guy.”
“Pappajohn,” Smyth replied, “I gotta tell you something. I’ve never seen her. I have no idea who this is. This woman is telling the world what a nice guy I am and I have no idea who she is.”
As the FBI began its work, Dr. James Dobson, founder of the conservative advocacy groups Family Talk and Focus on the Family, reported that Ashley Kavanaugh had asked family and friends to pray Psalm 40 for her family and for the nation.
I waited patiently for the Lord; and he inclined unto me, and heard my cry.
He brought me up also out of a horrible pit, out of the miry clay, and set my feet upon a rock, and established my goings.
And he hath put a new song in my mouth, even praise unto our God: many shall see it, and fear, and shall trust in the Lord.