As Donald Trump mocks Dr. Christine Blasey Ford at a political rally, the FBI continues its investigation into allegations of sexual assault by Judge Brett Kavanaugh. This week on Intercepted: If the Democrats retake the House, Rep. Hank Johnson will be the chair of a subcommittee that has subpoena power to continue the investigation of Kavanaugh. Johnson could pose a real threat to Kavanaugh whether he gets confirmed or not. He explains his position on Kavanaugh and also Justice Clarence Thomas and his history of alleged sexual harassment of Anita Hill. Former White House lawyer, Supreme Court clerk, and current constitutional law professor Kate Shaw and Democracy Now! host Amy Goodman offer an in-depth analysis of the battle over Kavanaugh. The Intercept’s Peter Maass got a copy of Kavanaugh friend Mark Judge’s novel about their drunken high school years. We made a radio drama of some of the scenes from the book, including a character named Bart O’Kavanaugh. We hear brand new music from musician and radical indigenous queer feminist Katherine Paul, aka Black Belt Eagle Scout. Plus, Donald Trump says he has never had a drink, but how different would he be if he liked beer as much as Brett Kavanaugh?
Join Jeremy Scahill at the Third Coast Festival in Chicago for a live taping of Intercepted on Tuesday, October 9. Get your tickets here.
Donald J. Trump: I’m not a drinker. I can honestly say I never had a beer in my life. Okay? It’s one of my only good traits. I don’t drink. Can you imagine if I had what a mess I’d be?
DJT: And then they’ll say ‘oh we’ll get our steel from like another country. Can’t do that. Excuse me.
That China has total respect for Donald Trump and for Donald Trump’s very, very large brain. We’re not doing well. Uh, let me call the Russians to help.
We have pictures of President Trump. Oh, where can I get ’em? Oh wow, that’s a lot of hands. This is going to be not good. Are you a Kurd? Yes. Please, Mr. Kurd.
They weren’t laughing at me. They were laughing with me. We had fun.
If we brought George Washington, here, he may have had some accusations made. Didn’t he have a couple of things in his past?
Elton John said when you hit that last tune and it’s good, don’t go back.
DJT: I’d be the world’s worst. But I never drank. I never drank. Okay.
JS: This is Intercepted.
JS: I’m Jeremy Scahill coming to from the offices of the Intercept in New York City and this is episode 68 of Intercepted.
DJT: Well, I say that it’s a very scary time for young men in America.
JS: That’s how the current president of the United States appears to see this moment in history. That it’s scary for young men. Yeah, it should be scary for men who are assaulting women. Women are fighting back because women are speaking out, because women are blowing the whistle on men who have sexually assaulted them. That’s what’s scary to people like Donald Trump or Brett Kavanaugh. And let’s be clear, we are at a breaking point here. If Brett Kavanaugh is confirmed as a Supreme Court Justice, a lifetime appointment to the most powerful court in the most powerful country in the world, the consequences will almost certainly be devastating. Imagine this court with its five-four majority held by radical extremists presiding over almost any issue that matters to women, to working people, to people of color, the LGBTQ community. Imagine them presiding over cases on war powers, secrecy, corporate power, civil rights, racism. I could go on and on.
This will be an absolute nightmare that could stretch well into the future for decades. And it can get worse. God forbid Ruth Bader-Ginsburg the most progressive Justice on the court for whatever reason is no longer on the court. This country could go full Handmaid’s Tale. And we all know who Trump is, and what he stands for, and what he’s done during his time in power. Now, imagine a right-wing Christian supremacist, Mike Pence, as president. It can get worse. This isn’t just about Brett Kavanaugh, as those incredible, brave women who confronted Senator Jeff Flake in the elevator so passionately made clear.
Maria Gallagher: I was sexually assaulted and nobody believed me. I didn’t tell anyone and you’re telling all women that they don’t matter. That they should just stay quiet because if they tell you what happened to them, you’re going to ignore them. That’s what happened to me and that’s what you’re telling all women in America. That they don’t matter. They should just keep it to themselves because if they have told the truth or they’re just gonna help that man to power anyway.
JS: This is about what kind of country the United States really is. We already have Clarence Thomas who systematically sexually harassed Anita Hill on that court. Now we may have a man accused of incredibly serious acts of sexual assault joining him on that court. Yes, Brett Kavanaugh deserves to hear the evidence against him. He deserves to respond to it. Yes, he’s entitled to a presumption of innocence until proven guilty, but is Kavanaugh and the White House and the Senate Republicans who have systematically tried to prevent any semblance of a real investigation into these very serious allegations.
DJT: I had one beer. Well, you think it was? Nope. It was one beer. Oh, good. How did you get home? I don’t remember. How’d you get there? I don’t remember. Where is the place? I don’t remember. How many years ago was it? I don’t know. I don’t know. What neighborhood was it in? I don’t know. Where’s the house? I don’t know.
JS: Like most reasonable people in this country, most honest people, I believe Dr. Christine Blasey Ford, and I believe that Judge Brett Kavanaugh is a serial liar. It’s clear as day. What Judge Kavanaugh stands for politically and as a judge deserves to be fiercely opposed and fought just on the merits of his politics. But when you have multiple credible allegations of criminal assaults against women, it goes beyond just political opposition. This is about the lives of women. This is about a culture of impunity, particularly for the most privileged and powerful white men in this country. What happens here will have life and death consequences.
This week, Quinnipiac University released the findings of a poll of American voters. And the results are quite revealing. Fifty-five percent of women opposed Kavanaugh’s confirmation. While men support confirming Kavanaugh by a 49 to 40 margin. More than half of white people want him confirmed to the court. While 81 percent of African Americans and 65 percent of Hispanic voters oppose naming Kavanaugh to the court. Take all of this and put it on a board next to the all-white male judiciary committee Republicans, and you get a pretty good sense of where things stand now in this country and what exactly is going on. Two-thirds of Americans say that they support the current FBI investigation. Now, I don’t have any great faith in the FBI. I hope that I’m shocked or surprised and we actually get some answers on all these allegations against Kavanaugh, but I don’t have any faith. I understand why the Democrats fought for this, but I also believe that it’s a mistake to put too much faith in that very short supplemental background investigation. Just listen to Senate majority leader Mitch McConnell on Tuesday.
Mitch McConnell: And we’ll be voting this week. So, the FBI report will be finished and we will be voting this week on the Kavanaugh nomination.
JS: There is so much to dissect with all of this and we have some truly stellar guests today to help us navigate. Later in the program, I’m going to be joined by former White House counsel lawyer and constitutional law professor Kate Shaw, as well as Amy Goodman the host of DemocracyNow!. She has been reporting for decades on these issues going back to Anita Hill and Clarence Thomas, and then the scandals involving Newt Gingrich, and now on Judge Kavanaugh. And we’re also going to play an audio adaptation of the novel written by Kavanaugh’s friend Mark Judge about their time in high school at Georgetown Prep. My colleague Peter Maass managed to get that book and he’s been dissecting it for days. That’s all coming up later in the show.
But first I want to share with you an article that my colleague Ryan Grim, he’s the Intercept’s D.C. bureau chief, that he wrote last week. And by the way, Ryan has been leading our coverage of this whole story and he has been doing some of the most cutting-edge reporting on all of this. Ryan broke the original story that there was this credible allegation against Brett Kavanaugh and that Senator Dianne Feinstein had a letter from a California constituent — who we now know was Dr. Christine Blasey Ford. Here’s a snippet of Ryan’s story from last week. “Representative Hank Johnson, a Georgia Democrat who sits on the House Judiciary Committee, plans to open an investigation into the background of Brett Kavanaugh if he’s confirmed to the Supreme Court. If Democrats take control of the House of Representatives in the midterm elections, which prognosticators believe is increasingly likely, Johnson would become chair of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. The subcommittee would have authority to subpoena witnesses, documents, and emails related to Kavanaugh.” Ryan also reports that “Johnson could subpoena emails between Kavanaugh and his mentor Judge Alex Kozinski, who resigned from his post on the Ninth Circuit Court of Appeals last December amid sexual harassment allegations against him. Kavanaugh has claimed no knowledge of Kozinski behavior, but its correspondence with Kozinski could potentially call that claim into question.” So that’s from Ryan’s article at The Intercept. High stakes here and a lot of questions for Representative Johnson. Will he use those powers? If the Democrats take back control of the House of Representatives. Would he push to impeach Kavanaugh if he’s confirmed? What about if he isn’t confirmed and he stays in his current position? Should it be impeached from his position on the second most powerful court in the U.S.? What about Clarence Thomas? Should Anita Hill’s allegations be reinvestigated? We are going to ask all of that now to Representative Hank Johnson who joins us now.
JS: Representative Johnson, welcome to Intercepted.
HJ: Thank you for having me, Jeremy.
JS: I want to begin first by asking you, what your issues are right now with the impending confirmation or failed confirmation. Whichever way it goes, of Brett Kavanaugh to be a Supreme Court Justice?
HJ: I think it’s important that we have a Supreme Court Justice who is honest and who does not try to mislead Congress as the Senate does its work to give advice and consent to the president. And so, they need honest answers over there in the Senate. I don’t think they’ve been getting them from Brett Kavanaugh starting as early as his 2006 confirmation for the court in which he now sits.
Brett Kavanaugh: Senator I did not, uh, I was not involved, am not involved in the questions about the rules governing, governing detention of combatants or, uh, uh, and so I didn’t — do not have any involvement with that and with respect —
HJ: And the distortions and misleading testimony and, in fact, perhaps lies that he was told, he has done the same thing in his current confirmation hearings. And so, I think his character is very important and I’m concerned about the direction that the Senate was heading in last week before it got derailed with the insistence that there be a full investigation of the accusations made by the three women who came forward say that this gentleman is guilty of sexual misconduct. So, I’m glad that we’re at this point, but I’m concerned about whether or not this is going to be an honest investigation. I’m concerned about whether or not it’s going to be a sham, a hog-tied tight investigation that is micromanaged from either the White House or from Senate Republicans.
JS: What did you make of this sick show that we’re watching, when the all-white male, Republican members of the Senate judiciary brought in this prosecutor from Maricopa County in Arizona to conduct questioning on behalf of the Republican senators?
Sen. Chuck Grassley: Ms. Mitchell.
JS: She conducts all the questioning of Dr. Christine Blasey Ford, and then she starts conducting the questioning of Brett Kavanaugh.
Rachel Mitchell: Judge, do you still have your calendar? The calendars there.
BK: I do.
JS: But then when she starts to get close to talking about a date in his calendar, which could be the date that Dr. Blasey Ford has identified as when this assault allegedly took place —
RM: I would like you to look at the July 1st entry.
RM: The entry says, and I quote “Go to Timmy’s for ‘skis with Judge, Tom, PJ, Bernie, and Squi?
BK: Squi, it’s a nickname.
RM: Okay. To what does this refer and to whom?
JS: Then all of a sudden Lindsey Graham and these white male Republican senators all got their voice back and they stopped the prosecutor from doing it anymore, and then they were just giving speeches about how great Brett Kavanaugh is.
HJ: There were actually two female victims during that hearing. One was Dr. Blasey Ford and the second one was Rachel Mitchell, the sex crimes prosecutor who was brought in as a hired gun to interrogate Dr. Ford. She was unable to shake Dr. Ford. She did her best to try to discredit her, but she was unable to do so. And I believe that the Republican senators who were hiding behind the hired gun just, kind of, got fed up when it appeared that her questioning of Brett Kavanaugh was looking to discredit him. And so, all of a sudden Lindsey Graham jumped in with what appeared to be fake indignation, but nevertheless, it was passionate with his teeth showing and finger-pointing.
Lindsey Graham: If you wanted an FBI investigation, you could have come to us. What you want to do is destroy this guy’s life, hold this seat open, and hope you win in 2020. You’ve said that, not me. You’ve got nothing to apologize for.
HJ: Oh, they took it over and we didn’t hear again from Rachel Mitchell at all until she issued a sham report questioning the credibility of Dr. Ford. But Rachel Mitchell did not do it herself and her reputation any good by subjecting herself to that unwieldy process. But it was really a spectacle that we saw the other day.
JS: What about the way that Senator Chuck Grassley ran these hearings? I mean, some people are saying that Chuck Grassley is a walking, living case for term limits in the Senate. But this is extremely political and, as the women who confronted Jeff Flake in the elevator said, it is really sending a very clear message to women around this country and around the world that sexual assault allegations don’t matter, at least to the Republican senators on the judiciary, and all those Republicans who are pushing to confirm him before all of the facts are on the table.
HJ: Well, they did not matter when many of those same Senators were sitting there for the Anita Hill interrogation during Clarence Thomas’ confirmation proceedings.
Sen. Orrin Hatch: We all deplore the type of conduct articulated here by Professor Hill. But the most ironic thing to me is, it’s easy for us on this committee to say that we deplore sexual harassment. And many on this committee have said it in the past, and during these proceedings, and before the media. But you, Judge Thomas, you’ve spent your career doing something about it.
HJ: And they proved that time has not aged them well. They still hold the same views and it’s still the same one sitting up there. It was really a pitiful display of what Republicans have to offer the people of America in the 21st century. Here we are, and we’re still dealing with an all male, all white male Senate Judiciary Committee charged with giving advice and consent on judicial nominations. There’s a need for change in the Senate and I certainly hope we go into the right direction on November 6.
JS: If the Democrats are victorious in November and retake the House of Representatives, it’s clear that you would almost certainly become the chair of the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. And that subcommittee would have the authority to subpoena documents, witnesses, emails related to Brett Kavanaugh. If he is confirmed, Representative Johnson, will you initiate an investigation related to these allegations against Judge Kavanaugh if he’s confirmed?
HJ: Well, I will say that if there are questions that remain unexplored after this process is over and Judge Kavanaugh is confirmed, I think the Judiciary Committee will be looking carefully about how to proceed with respect to Justice Kavanaugh being on the bench. You know, the courts’ subcommittee has jurisdiction over administration of the courts, judicial ethics, and other issues concerning the federal courts. And to have a guy on the bench that has displayed the judicial temperament of Brett Kavanaugh is concerning and it cries out for our attention. There’s a guy who was angry, offensive, belligerent, rabidly partisan in his testimony before the Senate. I’ve never seen anything like that before.
BK: This whole two-week effort has been calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.
HJ: That kind of attitude, that kind of blatant partisanship, blatant anti-Democrats, anti-progressives, and anti-women. That kind of attitude on the bench is something that needs to be fully vetted. And if there’s no full vetting before the Senate, I think you can probably look for the judiciary committee to do some vetting itself.
JS: There already though, Representative Johnson, are documentable lies that were told by Brett Kavanaugh in his confirmation hearing. Given your position on the judiciary, do you believe that there already is enough publicly available information to warrant impeaching him based on just his current judgeship?
HJ: Well, I wouldn’t want to draw that conclusion at this time. But, I will say that I think that we need to develop the record and let the case go into direction that’s warranted by the facts that are uncovered in a full, thorough, honest investigation.
JS: Will you use the subpoena power?
HJ: We have the subpoena and I don’t think we could do that without using it.
JS: You mentioned Anita Hill earlier and, of course, Clarence Thomas is still on the court, will you consider reopening Anita Hill’s allegations against Clarence Thomas if the Democrats take control of the House of Representatives?
HJ: Well, now, that’s not something that I’ve given any thought to whatsoever.
JS: Well, I presume you believe Anita Hill.
HJ: Well, there have been other issues that have come up with Justice Thomas regarding treatment of women. What really disturbs me about the U.S. Supreme Court is the fact that it’s not bound by the code of judicial ethics. You know, they are on their own when it comes to policing themselves. There was nobody there to police them. And there’s nothing in the constitution that says that that is the way that it should be. And so, we’re getting into the territory of looking at reforms to the U.S. Supreme Court itself. And throughout recent history, there has been no such look at the U.S. Supreme Court. I would probably more in favor of that approach, then to try to drag up some old allegations that have been made about Justice Thomas. He has been on the bench now for, what, 27 years. We know what we have with him and yeah, I won’t commit to that.
JS: Do you believe that Anita Hill was truthful when she testified about her allegations against Judge Thomas?
HJ: I do.
JS: I know your public record, and I know that you have never shied away from unpopular battles, and the reason I’m raising this about Justice Thomas is because a lot of women in this country are saying that this would then be two Justices we have on this court who were confirmed, despite very serious allegations of either sexual harassment, or sexual assault, or sexual misconduct. And you just referenced that there are other allegations about Justice Thomas. There is no statute of limitations in some of these situations. I’m just wondering, why the fact that he’s been there for 27 years or so, would matter. It matters to Anita Hill. And it matters to other women, so I’m just curious why — why shouldn’t the congress open this up and say, wait a minute, maybe we shouldn’t have a lifetime appointment for someone who did these things to Anita Hill?
HJ: Well, maybe it should. I’m not opposed to it. But I’m certainly not going to take a position on old allegations against Judge Thomas at this particular time. Now I will say that anyone who feels like they had been aggrieved by Justice Thomas, they’re not barred by any statute of limitations and indeed because we are in the midst of a revolution, the MeToo movement. I don’t know what will come forward about Justice Thomas in the future, but I just cannot take a position on that at this time.
JS: Alright, we’ll leave it there. Representative Hank Johnson, thank you so much for joining us.
HJ: All right. Thank you for having me.
JS: Representative Hank Johnson is a Democrat from Georgia. He is on the House Judiciary Committee where he chairs a subcommittee that would have authority over investigations of federal judges, including Judge Kavanaugh.
For more on all of this, I’m joined now by two people. Kate Shaw is a professor of law and she’s also the co-director of the Florsheimer Center for Constitutional Democracy. During the Obama administration, Kate worked in the White House counsel’s office as a special assistant to the president. She was also associate counsel to President Obama. Kate also clerked at the Supreme Court for Justice John Paul Stevens. She recently wrote an op-ed for the New York Times titled, “How Strong Does the Evidence Against Kavanaugh Need To Be, Even If It Wouldn’t Support A Criminal Conviction Or Civil Liability, A Merely Credible Allegation Is Enough To Disqualify Him.” And I am joined by my friend and my mentor, Amy Goodman. She is, of course, the host of DemocracyNow!, but Amy also is a very tenacious reporter who has been covering these issues consistently throughout her decades as a journalist.
JS: Kate Shaw, welcome to intercepted.
Kate Shaw: Hey Jeremy, thanks for having me.
JS: Amy Goodman, welcome to Intercepted.
Amy Goodman: It’s great to be with you here at Intercepted.
JS: Yeah, I know. Usually, I’m visiting you at DemocracyNow!.
Kate, I want to begin with you, explain what is happening right now with the FBI investigation, with the craziness happening in the Senate. Give people an overview of what exactly we understand is happening right now.
KS: It looked as though Judge Kavanaugh was on a path to a pretty smooth confirmation, right? You know, there were a couple of senators who suggested they hadn’t made up their minds, right? Mostly Susan Collins and Lisa Murkowski, although Jeff Flake maybe too, but in all likelihood, I think it looked as though they were just going to fall into line and he’d be confirmed on a narrow party-line vote. And then Dr. Blasey Ford came forward, right, first reached out to her congresswoman in California and then to Senator Dianne Feinstein, ranking member of the Senate Judiciary Committee. And I don’t think we really know exactly what went on behind the scenes, but eventually, because her name was being leaked and press were starting to find her she decided to come forward. And I think once her name was out there and attached to the specific account of this attempted sexual assault in the early 1980s, it was only a matter of time before she was going to have to make a public statement. If she chose to do that and it looked from the beginning as though she was willing to. So, she gives this incredibly compelling testimony last Thursday before the Senate Judiciary Committee —
Dr. Christine Blasey Ford: When I got to the top of the stairs, I was pushed from behind into a bedroom across from the bathroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them.
KS: And Judge Kavanaugh responds.
BK: I never attended a gathering like the one Dr. Ford describes in her allegation.
KS: And coming out of that testimony, I think that Chuck Grassley, chair of the Judiciary Committee and Mitch McConnell, were really trying to just, sort of, continue steamrolling ahead and hold a vote maybe that Saturday or at least start the process of voting so that Judge Kavanaugh could be on the bench either during the first week of the Supreme Court’s term, which started this Monday, or very shortly thereafter.
And I think that public pressure just interceded, right? These confirmation processes are political processes, and I think that there was enough outrage, I think, on the part of the public that maybe just Senator Jeff Flake with Collins and Murkowski, but maybe the kind of Republican caucus writ large realized that it needed to slow things down a little bit and to allow some additional investigation to happen. Dr. Blasey Ford had been asking for it from the beginning. I think that the Republicans were able to sort of hold the line and say, no, we’re not going to reopen an investigation, so long as she was this kind of anonymous figure with these allegations that were, you know, specific, but we hadn’t encountered personally. I think that once she came before the committee, the pressure, I think, was irresistible on them to sort of allow some additional process to run its course.
JS: Was there any involvement of the FBI prior to this week now when the FBI supposedly investigating?
KS: Well, so they did a regular background investigation on Judge Kavanaugh over the summer. They’ve done a number of background investigations on him previously. I think the number that we’ve heard is six: For his previous White House positions, for his initial vetting for the D.C. circuit, and now first consideration for the Supreme Court, here. It’s a little bit misleading, this idea that he’s had six investigations that have all been these incredibly thorough investigations. Typically, when somebody serves a number of times in a number of different positions in government, the first investigation is kind of the big one.
So, he’s a young guy. He’s up for a White House job, and the FBI looks at his history probably from the age of 18 on. And then every subsequent background investigation really just fills in the gaps between the last investigation and the present day. So, we’re looking at a couple of years of investigation or five years of investigation. This investigation that happened over the summer would have probably just updated the background investigation that he got when he was up for a D.C. circuit position. So, he’s had a lot of investigations, but really only that first one would have gone deep, looked at his school days, those kinds of things. And typically background investigations actually only go to the age of 18, even for Supreme Court Justices or White House staffers or anyone. So, no one he knew in high school would necessarily even been contacted in the course of these ordinary investigations. So, that’s the history of the FBI, and then obviously, we have the latest, this week, and the new investigation that’s ongoing.
JS: What do you make of the scope that we understood had been set for this investigation? Initially, it sounded like they were narrowing it down to, basically, almost nothing could they inquire about, except for a very narrow set of allegations, and the witnesses that they could talk to. And then Trump this week said, “Oh, no, no, no, no, I’ve given the FBI carte blanche.” I mean, you were in the White House under Obama. Like, is this proper? What’s going on? I mean, how would this normally be run?
KS: I dealt with FBI constantly on these kinds of background investigations. And it’s really standard for a White House to go back to the FBI when some kind of derogatory information has been unearthed in an initial investigation and say, “Run this down a little further.” And usually that was the level of specificity: Just someone said something kind of strange, a former colleague, there’s a school record that feels a little bit off, just, sort of, “Go investigate this further and come back to us with a supplemental report.”
So, usually it, sort of, the directive was a pretty general one that was often just given by phone. So, somebody in the White House counsel’s office would call the FBI and say, “Do a little bit of additional investigation on this topic.” Never in my recollection, would the White House have given a specific list of witnesses to talk to and usually no specific time constraints.
Now, sometimes time was of the essence. So, we would say, “Please get this back as quickly as possible,” and I’m sure there were target deadlines given and maybe as aggressive as a week. I don’t think that the one-week timeline is totally unprecedented. But the specificity of the limitations that it sounds like we’re initially imposed, if reporting is right, by Don McGahn — that struck me as totally inconsistent with past practice between the White House and the FBI.
JS: Well, Amy, Don McGahn, of course, was sitting there with Kavanaugh and you had, I believe it was Senator Durbin who was saying to Kavanaugh —
Sen. Dick Durbin: And then the course of it, you said, “I welcome any kind of investigation.’ I quote you. “I welcome any kind of investigation.” I’ve got a suggestion for you, right now. Turn to your left in the front row to Don McGahn, counsel to President Donald Trump, asked him to suspend this hearing and nomination process until the FBI completes its investigation of the charges made by Dr. Ford and others and goes to bring the witnesses forward and provides that information to this hearing. I’m sure —
JS: I mean, to me it’s just abundantly clear, A) that Kavanaugh is repeatedly lying under oath, that he was desperate to try to cover all of this up, you know, went full blown, angry, privileged white man. It’s impossible, I think, to look at this and not conclude that the Republicans on the judiciary committee and the White House want to cover all of this up. The FBI investigation is meant to be like a whitewashing of this. That’s what it seems like to the lay people I think.
AG: Well, they didn’t want an FBI investigation and I think it’s so interesting to talk about the history of this. For example, when you look at Jeff Flake, yes, he voted down party lines, 11 to 10, for the confirmation of Brett Kavanaugh. But then, even in the midst of that, even as he had done that, he then said, I will not do this again on the Senate floor where it matters unless there’s an FBI investigation and that’s what has started all this. But it’s critical to look at the grassroots activism all along the way of this process. And I hope the history books will record this. Because this is the story of this historic moment. Whether we’re talking about the beginning of September with the original hearings during those, what, four days of hearings, I think more than 220 overwhelmingly women were arrested as they were protesting, both in the chamber of the hearing, the original hearing where it looked like Kavanaugh was a shoe-in —
Protester: This is a mockery and a travesty of justice. This is a travesty of justice and we’re not going back.
AG: Shouting about the rights to determine the future of their own bodies, their reproductive sovereignty over their own bodies. Or they were outside of key Senators offices getting arrested, demanding that people like Murkowski, Senator Murkowski of Alaska, Senator Collins, vote no against Kavanaugh. This was on the issue, of course, of abortion and Roe v. Wade. That we should be able to control our own bodies.
And then you throw in to this mix, the just incendiary, horrifying testimony of Dr. Blasey Ford, a research psychologist from Palo Alto who was following Kavanaugh from a distance, didn’t really — most people don’t know who federal judges are, so she wasn’t really following that. It was when his name was getting on the shortlist and she thought, you know, it’s my civic duty to step forward if this terrible thing happened. And when the Republican senators talk about, “I mean, we’re talking about him as a teenager, why are they looking at his yearbook?” And a lot of people sympathize with that in high school because the allegation is he did this when he was a minor, when he was 17 years old. And Dr. Blasey Ford is saying it’s not just for me, I will tell my own experience. That’s what it’s about. To tell her own story. The power of this has changed the world, has emboldened so many. And so, when you have Senator Flake making his way to the Senate chamber to cast his vote, these two women, who themselves were victims of sexual assault, Maria Gallagher, and Ana Maria Archila, who happens to be the co-executive director of the Center for Popular Democracy, they see him walking to the elevator. So, they follow him and there is a camera and this is the power of media when it shines its spotlight in the right direction. They confronted him in the elevator —
Ana Maria Archila: — The story of my sexual assault. I told them because I recognize in Dr. Ford’s story that she is telling the truth. What you’re doing is allowing someone who actively violated a woman to sit in the Supreme Court. This is not tolerable. You have children in your family. Think about them. I have two children. I cannot imagine that for the next 50 years they will have to have someone on the Supreme Court who has been accused of violating a young girl. What are you doing, sir?
AG: And this really pierces that bubble. That so many senators, that so many politicians, when they go to Washington, they tell their own stories. And when I think about Maria Gallagher saying, “Look at me, I am telling you my story.” And Ana Maria Archila, the painfulness of hearing “We are victims of sexual assault, your children, my children.” It is critical that we talk about this,’ you know, Ana Maria Archila, we just interviewed her and she talked about her dad. She had never told her father what happened to her. And she realized there was a camera that was broadcasting this live. And she said, ‘Oh, my god, I have to tell my father.’
And I think in that moment she embodied the pain and conveys the understanding of why women wait so long, or never tell the story. She didn’t want him to blame himself. She was a child. This happened to her and she thought he would blame himself. Why hadn’t he been there? Why hadn’t he protected her and she couldn’t deal with that pain. And so, when people say, “Why did it take so long for Dr. Blasey Ford to come forward?” And then you see all of these women telling their own experiences in there saying, this happened 10, 20, 30 years ago and everyone is saying what do you mean? Why didn’t you say it then? In particularly, the white male senators are saying this because of all that comes down on you. And finally, I want to say we cannot ignore the fact that this is all happening at the same time the Catholic Church is being challenged, and the Pennsylvania attorney general comes out with this report where he says, “A thousand children were victimized.” And they’re talking about going back 70 years. So, we’re interviewing people who are 60 years old who this happened more than 40 years ago.’ And no one’s saying they don’t have a right to tell their story when a priest abuse them as a child. And I don’t even think the senators would say that. And so when these women come forward and they say, I couldn’t deal with it at the time. Right? They’re not adults. They don’t have the wherewithal and even adults can’t because there’s a whole lot of other stuff at stake there.
But we are learning a lesson from the women of this country and I don’t think that’s going to stop right here. Whether or not Kavanaugh is confirmed or he withdraws because an election is coming up in a few weeks. It is reverberating throughout this country. Will in the choice of this Supreme Court justice and clearly in the elections. And it makes everyone question the institutions that they were a part of. You know, when I went to college, there was a society at our college called the “Rape and pillage society.” And they would go through the yard, I don’t know if it was every week, sometimes with bagpipes and I went back to the newspaper to look at that period.
JS: We’re talking about Harvard?
AG: Yes, and I went back to the Harvard Crimson. It was called the Straus Rape and Pillage Society. And I found an article from 1976. I mean it was horrifying like it was, but you come to an elite institution and you’re just hit with these things. This is the article from the Harvard Crimson. It was referring to a boat race at Adams House that the Rape and Pillage Society participated in. “The Strauss Rape and Pillage Society, sporting red Ve Ri Crass shirts,” which was a takeoff on Veritas shirts, “found the hard way that its boat could not support 15 drunk students and one not so reluctant proctor.” Teacher. “The Rapists eventually snared the Ronald Reagan Award for leaning furthest to the right.” That’s what I was welcomed by when I first came to school, living in the yard next to the Strauss Rape and Pillage Society.
JS: Wow. My god. I think for a lot of people who, like myself who do not have experience on the hill or not lawyers, the appearance of Rachel Mitchell, this prosecutor from Maricopa County, Arizona, that the all white, male, old Republican Senators put in front of them to interrogate Dr. Blasey Ford and then when Kavanaugh, the guy who should be interrogated by a prosecutor is sitting there, when she gets to a date on his calendar that appears to line up pretty close with the people that were there and the timing that Dr. Blasey Ford was describing. All of a sudden, they don’t need her anymore and all of them start pontificating on how great Judge Kavanaugh is and how this is a witch hunt, but what on Earth was that?
KS: I think it did suggest that at least they realized they could not rerun the performance of the judiciary committee when faced with the testimony of Anita Hill.
Senator Arlen Specter: Was there any substance in Ms. Berry’s flat statement that “Ms. Hill was disappointed and frustrated that Mr. Thomas did not show any sexual interest in her?”
Anita Hill: No, there is not. There is no substance to that. He did show interest and I’ve explained to you how we did show that interest.
KS: So that’s progress, right? They realized they could not be seen to interrogate her in anything approaching the way Anita Hill was treated and disrespected by that committee. Right? So, so they bring someone else in. And it’s never clear what her charge is or what she’s there to do apart from to protect them from direct interactions with her, right, with Dr. Blasey Ford. So if the goal is to poke holes in Dr. Blasey Ford’s story, it’s pretty ineffectual, right? There are a couple of lines of questioning about relationships and exchanges with Dianne Feinstein staff and about her fear of flying, but nothing that really goes to heart. In fact, she’s not really asked about the allegations at all. So nothing that in any way I think undermines her core story. If that’s the objective, it fails. And if the objective is to get to the truth, right, whether these events occurred as she suggests they did, there’s nothing that seems to sort of get anywhere closer to that, right? Again, she’s not asking about the events in question. So if either of those two is the objective, it seems to fail wildly, right, the use of this outside prosecutor. And I should say the Senate has never used an outside interrogator like this in a Senate in a Supreme Court confirmation hearing, but occasionally in other kinds of hearings, they have brought an outsider.
So it’s not totally unprecedented, but you’re right. Then you know, I don’t think anyone knew upfront how she was going to interact with Judge Kavanaugh. She asked a couple of questions and they do seem actually in the sort of style of cross-examination of kind of a more traditional sort than her exchanges with Dr. Blasey Ford were. And then they oust her immediately and she never says another word in the hearing.
AG: This is absolutely critical. I mean she is there, as Kate said, to poke holes in Dr. Blasey Ford’s testimony, which she doesn’t do. I remember, you know, you always think of prosecutors shouldn’t ask a question that he or she doesn’t know the answer to and when she said, you know, why exactly did you take this lie detector in what a hotel room in Baltimore?
RM: So, he administered a polygraph on the day that you attended your grandmother’s funeral?
CBF: Yeah. Correct. Or it might’ve been the next day. I spent the night in a hotel. So, I can’t remember the exact day.
AG: You know, even her uncertainty on issues was the most convincing because she didn’t pretend to know anything exactly. And this is so much the story of sexual assault victims, what you remember and what you don’t. You remember the moment that it happened and around it can get a little foggy. But what I want to say is at the beginning, I mean Dr. Blasey Ford did not want there to be this sex crimes prosecutor interrogating her. This is not a courtroom of course, but clearly, the Republican Senate majority of the Senate Judiciary Committee insisted she wasn’t going to get this hearing if she didn’t. And so, she caved to that because she thought that being able to tell her own story was more important. But they made a deal. I mean they were going to question this prosecutor, Rachel Mitchell was going to question both of them. So yeah, she was going to question Dr. Ford but also Judge Kavanaugh. So I was reserving judgment here. Yeah. She was asking a bunch of questions and it wasn’t about the actual assault, but let’s see, she is a sex crimes prosecutor. So this is, when she comes to Judge Kavanaugh, this is her area of expertise. And she starts right, she gets five-minute intervals. She gets five minutes because she’s representing a Republican senator.
And let’s not forget, it’s all white male, Republican Senators. Not only this time and they didn’t want the optics of this, but this isn’t only about optics. Why are there only white male Republican senators? And there only have been white male, Republican senators for the history of the Senate Judiciary Committee. That is very significant. They knew what this would look like, interrogating her, so they took a woman and as Mitch McConnell said, “my female assistant,” it was unbelievable, the female assistant will do the questioning. But okay, if she’s going to do it on both sides.
She starts with Kavanaugh and she moves in on July 1st, on Tobin’s house. What was in Kavanaugh’s calendar. Not guessing on a day that he hadn’t written anything, and that could be because these are small gatherings. I mean most of us don’t keep that kind of detailed diary of it. This is what he does. And she says, tell me who these people were.
RM: Judge Tom, PJ, Bernie, and Squi?
BK: Squi, it’s a nickname.
AG: She’s just moving and now she has about an hour’s time in five-minute intervals because it will go to a Democrat. Then it will come back to her. She’s taking her time. He’s getting extremely uncomfortable.
BK: So first says, “Tobin’s house workout’” So that’s one of the football workouts that we would have––
AG: And you realize that the names that are being raised, some of them are the ones that this looks like, as you said, this is the kind of gathering that Dr. Blasey Ford described.
CBF: I attended a small gathering at a house in the Bethesda area. There were four boys. I remember specifically being at the house: Brett Kavanaugh, Mark Judge, a boy named PJ, and one other boy whose name I cannot recall. I also remember my friend Leland attending
AG: This is very significant. I mean this is where an FBI investigation is so important. They can go to Tobin’s house, they can take pictures of the second floor. Is the bathroom right next to the bedroom. No, of course, it’s 36 years later and it may have changed or maybe they bulldozed it already, who knows this house, in the last few days. I don’t know. But this is where the FBI can come in a very important way and start to ask questions. So then it goes to the Democratic senator and it comes back and Lindsey Graham weighs in. I’m not going to say loses it because I think it was very purposeful. He had to break the ice for all of the Republican senators to start asking questions. He had to eviscerate the memory of Rachel Mitchell. So I’m not going to say he just lost it, right? I mean he was extremely dramatic, so he would capture the headlines and he said, “this is a sham.” He did not want this questioning. He understood. He himself was a prosecutor in the air force. He prosecuted rape cases. He understood the significance that she was honing in on this moment and he stopped the whole thing. Well, that was the Lindsey Graham and then it moved on and then I think it was Cornyn who then, the Republican senator, he followed took the baton from Lindsey Graham.
Senator John Cornyn: And you’re right to be angry about the delays in your ability to come here and protect your good name because in the interim it just keeps getting worse.
AG: And that was the end of Rachel Mitchell and her baby desk in front of the senators. I could not figure out where this woman went. It was said she was going to do the questioning for both. That deal was broken and there would be no more questions about the details of what had happened for Judge Kavanaugh from the Republicans.
JS: Kate also Rachel Mitchell then prepared this report that basically was just a kind of litany of everything that the, seemingly that everything, the Republican senators wanted to hear about this, how there’s all these inconsistencies and that it’s a nothing burger basically.
KS: Yeah and it holds up the allegations to a criminal justice standard, which just is I think a basic category error, right? Suggests that no reasonable prosecutor would bring a case based on just the allegations made by Dr. Blasey Ford. But as you know, there’s no additional investigation that’s happened. She didn’t actually ask any questions about the allegations. She didn’t ask a Judge Kavanaugh single question about the specific allegations, nor as Amy said, did any Republican senator. Some of the Democratic senators could have asked more. You know, they also chose different tactics, right? They mostly asked about his willingness to reopen the FBI investigation and about his drinking. I mean those I think are relevant questions, but all we had was her opening statement and his aggressive denials and on that basis she put together a report essentially concluding that no indictment would ever be brought based on this information and you know, and there’s very little of it and that a preponderance of the evidence, right? The civil standard would also not be satisfied just based on this evidence, but it just feels like the report was answering that totally improper questions.
JS: We did a, an adaptation of Mark Judge’s book. My colleague Peter Maass got a copy of that book. And so here’s a, a dramatic reenactment of scenes from Mark Judge’s book
Peter Maass: Not long after Mark Judge graduated from Catholic University he attended the rehearsal dinner for a close friend’s wedding in Washington D.C. The dinner was in a private room above an Irish bar and as soon as Judge arrived, he downed a shot of Bourbon and another and another. The next thing he knew it was the morning and he was in a friend’s house. He woke up in his suit from the night before, his head ached, and he could barely open his eyes.
Actor as Mark Judge: ‘I blacked out again.’
PM: He asked his friend, Denny, what had happened.
Actor as Denny: ‘Uh, you put on quite the show.’
PM: Denny said,
Denny: ‘After doing all those shots, you tried to get up on the table and started taking your clothes off. Uh, but Shane and I pulled you down. You also tried to make it with one of the bridesmaids.’
MJ: ‘I tried to make it with a bridesmaid, please tell me I didn’t hurt her.’
PM: Denny he reassured Judge that he hadn’t harmed the bridesmaid, though he had made a serious lunge at her and started kissing her toes. His friends had pulled him off and got him out of the bar and took him to Denny’s home a few blocks away.
The wedding scene in Judge’s 1997 book titled, “Wasted: Tales of a GenX Drunk,” amounts to a clear acknowledgment from Judge that he engaged in drunken acts he could not remember afterward, and that those acts involved aggression toward women, if not outright violence.
The wedding scene is not the only one of its sort in his book, which is out of print and extremely hard to find. Judge also wrote that about a week before the wedding, he went to his favorite bar, ordered a shot and a beer and struck up a conversation with a woman who was there.
MJ: “We bought each other several rounds of drinks and when I looked at the clock, it was after midnight.”
PM: He wrote.
MJ: “Then in what seemed like an instant, it was suddenly the next morning. I couldn’t remember a thing after I looked at the clock. I had blacked out.”
PM: When he came to, he was back in his apartment, still dressed in the clothes he wore at the bar.
MJ: “I started to panic, terrified of what I could have done during the blackout. I could have done anything and not know it — I could have murdered somebody.”
PM: The book is not just a memoir of Judge’s early life, but also of other students in his social circle, which clearly included Kavanaugh. Although Judge has explained that names were changed in his book to protect privacy — Georgetown Prep is referred to as Loyola Prep — there is a reference in the book to a drunken “Bart O’Kavanaugh” vomiting and passing out in a car. The Bart O’Kavanaugh passage takes place in the summer of their sophomore year. Judge had joined his first beach week, in Ocean City, Maryland, where one of his classmates had rented an oceanfront house. The houses on either side were occupied by girls from Catholic schools. During a party one night, while playing a drinking game called quarters, Judge struck up a conversation with a girl named Mary.
Actor as Mary: ‘So how do you like Prep?’
PM: Mary asked
MJ: ‘It’s cool’
Mary: ‘Do you know Bart O’Kavanaugh?’
MJ: ‘Yeah, he’s around here somewhere.’
Mary: ‘I heard he puked in someone’s car the other night.’
MJ: ‘Yeah, he passed out on his way back from a party.’
PM: Judge went onto explain, “We took turns having parties — ”
MJ: “The word would get out that someone’s parents were going away, and the other guys would pressure them into ‘popping,’ promising to help them keep things under control. This, of course, was a joke. I had seen houses destroyed by rampaging hordes of drunken teenagers.”
“Most of the time, everyone, including the girls, was drunk. If you could breathe and walk at the same time, you could hook up with someone. This did not mean going all the way — for the most part, these girls held to the beliefs of their very conservative families but after a year spent in school without girls, heavy petting was a virtual orgy.”
JS: So Kate we have this guy, Mark Judge and his name, every time it came up in the Senate hearing, the Republicans would say, you’re targeting this, uh, this poor man who had cancer and he’s a recovering alcoholic. And you know, as though that exempts you from talking to the FBI or being investigated. but what do we know about Mark Judge’s role and his posture that he initially took toward the FBI, which is that maybe I’ll talk to you if I feel like it?
KS: Yeah. Well, he’s alleged to have been in the room and to have participated in the attack on Dr. Blasey Ford. So he is the most relevant witness apart from Dr. Blasey Ford and Judge Kavanaugh. So it seems as though any real thorough investigation would have to involve talking to him. And I agree that the posture that any invocation of Mark Judge was somehow insensitive or improper was just betrayed by this sort of the basic facts of the allegation. Right? Dr. Blasey Ford said he was there. Maybe he’s the one who pushed her into the room. We don’t really know who did, but that he participated in, you know, encouraging the assault and then actually precipitated it’s ending, right? By jumping on top of her and a young Brett Kavanaugh. I feel like there’s such shifting information in the public sphere about what exactly is happening with this FBI investigation, but it sounds as though after initially equivocating, um, he has indicated his willingness to talk to the FBI and the write-up of that interview seems like it’s going to be one of the most important pieces of whatever report the FBI ultimately produces here.
JS: When I believe it was a Senator Whitehouse was asking Kavanaugh about these terms that were used in the yearbook. And in particular Devil’s Triangle
BK: Drinking game.
Senator Sheldon Whitehouse: How’s it played?
BK: Three glasses in a triangle
BK: You’ve ever played quarters?
BK: Okay. It’s a quarters game.
JS: Kavanaugh knows damn well that that’s not a drinking game with quarters. That’s two men and a woman.
AG: And when White House asked, think it was Politico that reported that at that moment, right around that time from a house address, a Wikipedia was changed to Devil’s Triangle, what is it? A drinking game.
JS: Right. Look, I mean he is blatantly lying about what those terms mean. He’s under oath if you lie about something like that, which obviously is very relevant because it’s precisely what Dr. Ford is alleging Mark Judge and Brett Kavanaugh did.
AG: Which is why so many people have come forward now and said they wanted to speak to the FBI. I think of people like Liz Swisher in the Seattle area. These are all Yale classmates — people like Chad Ludington. They didn’t know about the sexual assault allegations and they were very clear about this. I mean, Liz Swisher said when she heard what Kavanaugh was saying, it was just, she said, blatantly untrue.
Liz Swisher: Well, I’ve known Brett since the very beginning of freshman year. He was always one of the beer drinking boys and I drank beer with him. I liked beer. There’s no problem with drinking beer in college. The problem is lying about it. He drank heavily. He was a partier. He liked to do beer bongs. He played drinking games. He was a sloppy drunk. He was more interested in impressing the boys than he was in impressing the girls. I never saw him be sexually aggressive, but he definitely was sloppy drunk.
AG: And Chad Ludington also a classmate of Brett Kavanaugh, felt he had to come forward. And I think it’s really significant also when men come forward, like you have Georgetown Prep, a petition started that it’s not just women. And he said, “When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man’s face and starting a fight that ended with one of our mutual friends in jail.” His college roommate, his freshman roommate saying he became belligerent and he was a serious, he would get seriously drunk. They are saying we don’t know about the sexual assault, but we know he’s lying in these cases. And that’s why it’s very significant that the FBI interview them.
JS: I mean he clearly told many lies during that hearing. I mean, isn’t that just grounds to say no, this guy should not be a Supreme Court Justice or a judge — a federal judge?
KS: You know, look, the Constitution, obviously doesn’t give us a lot of specifics, right? Advise and consent is this pretty open-ended language. But I think it’s right that there are few distinct questions here. One is what the senators think, sort of the degree of certainty that they think they can get to about the allegations of Dr. Blasey Ford has made. So that’s where I think category one. Category two would be related. How the kind of veracity and also just comportment of Judge Kavanaugh before the Senate, particularly last Thursday, right? Not even in his original hearing, bears on his fitness for office, right? If he’s, even if the things that he has either shaded the truth about or maybe lied about, seem pretty trivial, right? This is about entries in a high school yearbook. They sort of go to these core questions of honesty and integrity that do seem important, you know, not in the abstract but specifically to the task of serving as a justice and maybe as a sitting judge. And then I think three, and this is a little bit distinct, but of course related, is the kind of the partisan nature, I think of the presentation that he gave on Thursday, both in his opening statement and in his exchanges with particularly some of the Democratic members of the committee. You know, it’s really important I think that the court appears to be above politics and I think it’s pretty unprecedented to have seen a Supreme Court nominee takes such a strikingly partisan tone in his exchange with senators in his opening presentation. And then I think does a hold out the threat of really calling into question the institutional integrity of the Supreme Court in a way that’s, you know, maybe related to his responses about these allegations. So it’s all connected. But that’s, I think a distinct set of questions about his suitability for the Supreme Court.
AG: I mean, this question of lying is absolutely critical. Did he perjure himself, and both for the Supreme Court and the Federal Court, the Court of Appeals? You know, does this mean that when progressives go before him – progressive lawyers or progressive organizations – he has to recuse himself because he talked about a left-wing conspiracy – talked about the left pouring millions in –
JS: Or Mueller v. Trump.
AG: Against him. He didn’t talk about the right pouring millions to protect him. He just talked about the left and a kind of Clinton conspiracy. This calls into question decisions he would make on so many different issues.
JS: One of the most stunning moments of that whole hearing was this interaction with Senator Amy Klobuchar from Minnesota and Kavanaugh.
AG: I think this was the key moment because here you have Amy Klobuchar who first reveals that her father is an alcoholic and still at the age of 90, he’s going to Alcoholics Anonymous and says, Judge, do you drink too much?
Amy Klobuchar: Was there ever a time when you drank so much that you couldn’t remember what happened or part of what happened the night before?
BK: – No. I remember what happened. And I think, you’ve probably had beers, senator and –
AK: So you’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before or part of what happened?
BK: You’re asking about, yeah, blackout. I don’t know. Have you?
AK: Could you answer the question, Judge? I just — you, so that’s not happened? Is that your answer?
BK: Yeah, and I’m curious if you have?
AK: I have no drinking problem, Judge.
BK: Nor do I.
AK: OK –
AG And then he has to take a break for about five minutes and I really felt at that point he was going to come back and apologize and that’s exactly what he did. After five minutes he comes back and he apologizes. And why was this so revealing? I mean, he was belligerent throughout. He lost control and he understood that whether it’s alcohol or rage that causes this kind of loss of control it was most revealing. And I think it’s really interesting because when he was an aide to Ken Starr in the Whitewater investigation, the investigation of President Clinton, it was Brett Kavanaugh who said, when you question President Clinton, do not let him take breaks. He understood he didn’t want him to gather his thoughts. He didn’t want to have this moment where he could take back what he said.
JS: And more Amy than that, Kavanaugh also when he worked for Starr, was one of the fiercest advocates for asking Bill Clinton very explicit descriptions of things and sexual acts and I mean, right? He was like a pit bull for Ken Starr and wanted like ultra-specific sexual questions to be asked of the president at the time.
AG: That’s right. Don’t give the president a break and ask questions like these. The memo was only recently released. “If Monica Lewinsky says you had phone sex with her on approximately 15 occasions, would she be lying? If Monica Lewinsky says you ejaculate in her mouth on two occasions in the Oval Office, would she be lying? If Monica Lewinsky says you masturbated into a trashcan and your secretary’s office, would she be lying?”
And as Brett Kavanaugh was talking about the pain that his family felt right now — and I, by the way, really do feel for them, his wife and his daughters — I thought about how vicious he was when it came to President Clinton. Of course, he’s also changed his view on whether the president should be held accountable as well, which may well be the reason why though his name wasn’t part of the Federalist Society original list. He is the one that President Trump chose to be the Supreme Court Justice after the Mueller probe began.
JS: I mean, the whole thing is just dripping in hypocrisy. But Kate, I mean, what do you make of that background with him working on Ken Starr and what Amy just read form that memo?
KS: You know, look, he obviously had his elite education, but he came up kind of as a political operative. Right? That was, I think his political education and he had this very carefully cultivated and I think fair reputation as a very conservative but careful and fair judge for a dozen years on the D.C. Circuit and I think that the display we saw in front of the committee suggests that there’s much more of that political operative left in him than he would have liked, I think, to reveal. And I think that a memo like this is a reminder that that is very much an important part of Brett Kavanaugh.
JS: I want to thank both of you very much for sharing your really sharp analysis. One of the things I love about doing this show is I learn so much from listening to people. And you both are, I think, really admirable voices in this time. Amy Goodman, thank you very much for being with us.
AG: Thank you, Jeremy. It’s been an honor.
JS: Kate Shaw, thank you very much for joining us.
KS: Thank you so much for having me, Jeremy.
JS: Kate Shaw is a professor of law and the co-director of the Floersheimer Center for Constitutional Democracy at Cardozo University. During the Obama administration, Kate worked in the White House Counsel’s Office as a Special Assistant to the President. She also clerked for Justice John Paul Stevens on the U.S. Supreme Court.
Amy Goodman is the host of the daily radio and TV show DemocracyNow!.
Special thanks to my colleague Peter Maass for reading Mark Judge’s book, so the rest of us didn’t have to.
JS: Although the battle over Brett Kavanaugh and the future of the Supreme Court is, for now focused on the sexual assault allegations against Kavanaugh and how his possible ascent to the court could result in an overturning of Roe vs. Wade, there are of course, a huge swath of legal issues that could be dramatically impacted. That’s certainly true of the plight and future of indigenous people — Native Americans. The Trump administration has been systematically dismantling environmental protections while also chiseling away at what’s left of the sovereignty of native peoples.
We now know from an email dating back to Kavanaugh’s time in the Bush White House that he appears to oppose programs specifically aimed at aiding native groups. Here is Hawaii, Democrat, Senator Mazie Hirono questioning Kavanaugh on native issues.
Senator Mazie Hirono: You argued that Hawaii could not limit those who voted for the offices’ trustees to only native Hawaiians. You’re not only made this argument in a legal brief, but you also published an opinion piece in the Wall Street Journal under your own name and title “Are Hawaiians Indians?” In the piece you wrote, “The native Hawaiian community was not indigenous because,” as you said, “after all they came from Polynesia.”
It might interest you to know that Hawaii is part of Polynesia, so it’s not that they came from Polynesia. They were a part of Polynesia.
JS: To end today’s show, we’re going to hear from Katherine Paul, a radical indigenous, queer feminist who performs under the name Black Belt Eagle Scout. Her latest album, “Mother of My Children,” deals not only with this continuing history of genocide and colonialism, but also with grief, hope and the politics of being indigenous in this country. She also happens to play every instrument on the album. Here is Black Belt Eagle Scout.
Katherine Paul: Hello, my name is Kate P. and I have a band called Black Belt Eagle Scout.
[Black Belt Eagle Scout’s song “Soft Stud” plays.]
KP: I grew up on the Swinomish Indian Tribal Community. It is located on the Fidalgo Island, which is a part of the San Juan Islands. It’s the island that’s most inland to the state of Washington though. A Swinomish is where my dad’s from. My mom, she and I were both Iñupiat. So she’s from northern Alaska, but I was born and raised with my dad’s people.
It’s very pretty there. It’s lots of trees and lots of water. It smells really good. I just like the sea freshness, like I don’t know, I just want to wake up and smell that every day.
My grandfather brought the powwow to the Pacific northwest to Swinomish with my family. We put on a really big powwow in Swinomish called the All My Relations Pow Wow.
When you get to a certain age, you have to come out at a pow wow. In order to dance, you have to have a ceremony to do that and you have to, you know, be introduced. So I was introduced at a young age as a jingle dress dancer. I had two older women dancing with me around the floor. And you dance around in a circle one time with them and then they stop and then you have to dance around a circle by yourself. So it was really scary. It was like a serious thing though, because you’re a kid and you’re like, this is important — I know for some reason it is.
I grew up in a very traditional family: You keep quiet; you sit down; you don’t talk; you be respectful; you respect your elders; you follow your parents. It wasn’t always fun, but I think that it taught me something about the world and that is that we need to respect one another. We need to be kind to one another.
[Black Belt Eagle Scout’s song “Yard” plays.]
KP: When I was a teenager I was really into grunge music. And I remember when Kurt Cobain died. It was on the news.
Newscaster: Kurt Cobain, the leader of one of rocks most gifted and promising bands, Nirvana, is dead and this is the story as we know it so far. Cobain’s body was —
KP: I remember being in my parent’s bedroom they were watching it on the news and like talking about this guy that had died. And I was like, who is this guy? And it was this thing that kind of stuck in my memory for a while. And I knew that, you know, Nirvana was a thing in Washington. I’m gonna look them up and I looked him up and I started listening to music and I was blown away.
[Nirvana’s song Lithium plays.]
KP: I was like, this is amazing music. I get why everyone loved that band and still does.
Back in the day MTV, they would replay like old, like concerts that they would have: MTV Unplugged or like MTV Live. Like I had a little tiny TV in my bedroom, so I would record those on my VHS tapes to keep documentary of it because I was a real nerd. And I would just, you know, have all that footage and be able to watch it. I would watch it like afterwards. It’s like the first time you ever hear about something. It’s exciting because it’s like: Wow, like I didn’t know this was a thing I didn’t know this could be a possibility, I didn’t know this could happen. So, learning about those kinds of bands when I was younger was incredible and eye-opening and just very magical.
[Sleater Kinney’s song “Don’t Think You Wanna” plays.]
KP: Finding out about Courtney Love and then finding out about Riot Girl because of Courtney Love.
[Sleater Kinney’s song “Don’t Think You Wanna” continues to play.]
KP: And then finding out about Portland. All those things happened: One, two, three, four. And then finally Portland being the kind of climax of that time, I was like: I need to figure out what’s next; I need to go to Portland.
I first experienced Portland when I was in high school. I attended the Rock ‘n Roll Camp for Girls. It’s a summer camp mostly for girls ages eight to 17 roughly where they go and learn guitar and drums, bass, vocals, keyboards, and you form a band and you write a song throughout the week. And at the end of the week you play a showcase. You showcase your song that you wrote. It’s an original song to like all of the families, the local crowd that comes out to support the organization. A lot of the women and the people that were in the Riot Girl scene, we’re also into Rock ‘n Roll Camp for Girls. I was like, whoa. Like bands like Sleater Kinney and The Gossip and like all of these amazing like women and queer bands played at Rock ‘n Roll Camp for Girls. It was like utopia, basically, this Rock N Roll Camp for Girls is a huge part of my journey into being who I am today — being a musician.
[Black Belt Eagle Scout’s song “Just Lie Down” plays.]
KP: Portland is one of the whitest cities in America. So, that was a big change to come from a tight-knit community and have everybody around me look like me to go to Portland and then to not have that. It feels weird to like not see yourself. It’s you, like you makes you feel like invisible. It’s like who am I in this city? You have to find, find your way
[Black Belt Eagle Scout’s song “Just Lie Down” continues playing.]
KP: That’s kind of the intention behind Black Belt Eagle Scout. It’s very identity focused and it’s about like who I am as a person, how I reflect on that and a lot of that has to do with trying to be a strong indigenous queer woman. And that means doing everything myself. That means finding out like what it is to create something and be strong in that way and to also be able to show people that that’s a possibility for other people like me. That they can do that.
It all culminated because of terrible things that happened in the year of 2016. Standing Rock was happening and that the government wasn’t being supportive at all and it was a tough time to be a native person because I feel like native issues were put on a very high spotlight and there was a lot of support from the American people, from a lot of tribes, from all different kinds of people for that movement, but we we’re going up against like the colonizers of this area — the people that are focused on capitalism and like money.
[Black Belt Eagle Scout’s song “Indians Never Die” plays.]
KP: With native communities like there’s so much trauma that still goes on in our lives all across the United States. Every tribe and every nation is very different. They all experience colonization and genocide in a different way and it hurts. It’s like there’s a lot of healing that needs to still be done and that healing also has to do with the government and people trying be supportive right now.
[Black Belt Eagle Scout’s song “Indians Never Die” continues playing.]
KP: There’s a song on the album called “Indians Never Die” and that’s the song I wrote about my feelings surrounding Standing Rock. I felt like just people need to be more aware of their environment and like we need to be gracious and also be protective of where we live because if we’re not, it’s not going be here for a long time. “Indians Never Die” means that the customs and the way that the Native people of this land have protected, it means that, you know, those will live on and they won’t die. Those things. It’s not about like Indian people living on forever. It’s about our customs living forever. The protection and like the love and the passion that goes into where we are from that lives on forever.
This one, in particular, is about love and it’s about desire and it’s about feeling like you really want something sometimes, but you can’t. And I think that in relationships that happens very often, the song is called “Soft Stud.”
[Black Belt Eagle Scout’s song “Soft Stud” plays].
KP: Soft stud is a term for people who identify as a stud but also like in a soft way. So, it is kind of my queer anthem. Yeah. It’s my queer anthem because I wrote it about being queer and about queer people and about queer relationships.
[Black Belt Eagle Scout’s song “Soft Stud” continues playing.]
KP: Listen to indigenous people. That is one of the things that I think more allies need to do — listen. Listen to our customers. Listen to who we are as people. Listen to our opinions. Listen to us. Because I feel like for so long, like white people and the people who have colonized this land have had that platform, have had that throne. So, I think that one of the best things to do is just shut up and listen.
JS: That was Katherine Paul, also known as Black Belt Eagle Scout. She spoke to our producer. Jack D’Isidoro.
And that does it for this week’s show. If you are not yet a sustaining member of Intercepted, log onto TheIntercept.com/join. Intercepted is a production of First Look Media and The Intercept. We’re distributed by Panoply. Our producer is Jack D’isdoro and our executive producer is Leital Molad. Laura Flynn is associate producer. Elise Swain is our assistant producer and graphic designer. Rick Kwan mixed the show. Our music, as always, was composed by DJ Spooky.
Until next week. I’m Jeremy Scahill.
In the year since George Floyd’s murder, conservative news outlets have endlessly hyped distorted stories about violence at Black Lives Matter protests. Key videos they used come from a tight-knit group of eight young journalists.