R ECKONIN G THE RISE AND THE In­side Brett Ka­vanaugh’s cir­cles of in­flu­ence

Bay of Plenty Times - - WORLD -

Now the judge faces the most se­vere test of what looks to out­siders like a charmed life.

This mo­ment — an ex­cru­ci­at­ing mix of care­ful in­quiry into his le­gal opin­ions and vo­ra­cious in­spec­tion of his ado­les­cent be­hav­iour, all tak­ing place amid a sear­ing na­tional strug­gle in­volv­ing truth, trust, po­lit­i­cal po­lar­i­sa­tion and sex­ual mores — has left Ka­vanaugh’s com­mu­nity deeply, per­haps ir­re­vo­ca­bly, di­vided.

Some have fixed on hazy but painful rec­ol­lec­tions of ugly nights in the 1980s. Oth­ers slot those same sto­ries into mem­o­ries of a de­bauched but too-com­mon scene of clois­tered young men learn­ing how far was too far, even as they pre­pared to run the world.

No one who hung out with Ka­vanaugh dur­ing Beach Week on the Delaware shore or at De­mery’s bar in New Haven, Con­necti­cut, knew their par­ty­ing would be­come the stuff of con­gres­sional de­bates and na­tional polls, or that the Pres­i­dent would con­clude that their friend “did have dif­fi­culty as a young man with drink”.

More than most peo­ple, by virtue of where and how he grew up, Ka­vanaugh knew he would some­day be called to ac­count for him­self. He did not, how­ever, ex­pect to be asked to an­swer for the ways and mores of the place and time that shaped him, as he has de­scribed the cur­rent in­quiry to friends. Yet here he is, in a hu­mil­i­at­ingly in­ti­mate and pub­lic job in­ter­view that has turned into a his­toric reck­on­ing, for Ka­vanaugh and for his coun­try.

There are so many au­to­matic ad­van­tages that come from at­tend­ing the 229-year-old Ge­orge­town Prep, set back from a busy road in North Bethesda, Mary­land, on a ver­dant cam­pus larger and more stately than those of most uni­ver­si­ties.

There is the in­ti­macy of small classes and the les­son drummed in by Je­suits at the Catholic school that the boys are ex­pected to ex­cel and to serve. There is the con­tin­u­ing pride in sin­gle­sex ed­u­ca­tion, the un­fash­ion­able idea that wis­dom and power are un­locked by chan­nelling ado­les­cent en­ergy into stud­ies.

The boys, in the 1980s per­haps even more than in decades be­fore and af­ter, be­lieved that their hard work bought them enough slack that they could get away with hard par­ty­ing.

“We did ev­ery­thing to the max,” said one of Ka­vanaugh’s class­mates, who spoke on the con­di­tion of anonymity be­cause, as he put it, “Brett doesn’t want us putting our­selves out there right now.”

Many of the boys at Prep came from fam­i­lies ac­cus­tomed to gain­ing and hold­ing in­flu­ence. Ka­vanaugh’s fa­ther, Ed­ward Ka­vanaugh, was pres­i­dent of what was then the Cos­metic, Toi­letry and Fra­grance As­so­ci­a­tion, the kind of Washington job in which build­ing con­nec­tions to pow­er­ful peo­ple jus­ti­fied the US$4.57 mil­lion in com­pen­sa­tion he earned in 2005, ac­cord­ing to tax re­turns. His mother, Martha Ka­vanaugh, was a pros­e­cu­tor who be­came a cir­cuit judge in Mont­gomery County, Mary­land.

Per­haps the great­est priv­i­lege the boys gained at Prep was one an­other. Some grad­u­ates came to view the school as a trou­bled, morally ques­tion­able sym­bol of a snobby elite; oth­ers cher­ish the place as a foundry for men of char­ac­ter and achieve­ment.

But most bonded over the idea that they were the elect who owed one an­other a per­ma­nent duty.

Since Ka­vanaugh was nom­i­nated, mem­bers of the class — some from his in­ner cir­cle, some who’d never been close — have cre­ated a sup­port net­work that has fended off re­porters, of­fered guid­ance to favoured jour­nal­ists and bat­ted down false ru­mours, all with fre­quent con­sul­ta­tion with their former school­mate.

They had done this be­fore. Judge, a good friend of Ka­vanaugh’s in high school, be­came a free­lance writer and in his books, which in­clude two me­moirs, he de­scribed an al­co­hol­sat­u­rated ado­les­cence. A cen­tral char­ac­ter in Judge’s ac­count was named “Bart O’Ka­vanaugh”. Ka­vanaugh was nick­named Bart in high school. Years be­fore his Supreme Court nom­i­na­tion, Ka­vanaugh’s sup­port­ers pressed Judge to limit or mask his rev­e­la­tions of bad be­hav­iour, Prep class­mates said. At Prep, as at al­most ev­ery stage of his life, the im­pres­sions peo­ple formed of Ka­vanaugh were con­sis­tently in­con­sis­tent. Ka­vanaugh and other foot­ball play­ers were at the cen­ter of Prep’s so­cial uni­verse. Matt Brown, a class­mate who was de­cid­edly not part of the in crowd, re­mem­bered Ka­vanaugh stand­ing out among the pop­u­lar boys be­cause he was so nice.

Many foot­ball play­ers let their grid­iron celebrity “get to their heads and they wouldn’t re­ally in­ter­act with you”, said Brown, now an al­co­hol and drug coun­sel­lor in Port­land, Maine. Not Ka­vanaugh: “He was a guy who would still talk to you in the hall­ways and would ac­knowl­edge your ex­is­tence.”

Class­mate Wil­liam Fish­burne re­called Ka­vanaugh as an aca­demic stand­out, a pop­u­lar jock. But he also re­called a dif­fer­ent side of Ka­vanaugh. Fish­burne was short and heard more than his share of short jokes on cam­pus. He was also a star in high school de­bate, and he said Ka­vanaugh “liked to call me a mas­ter de­bater”, but he’d say it in such a way that oth­ers heard “mas­tur­ba­tor”.

“The whole group there did not treat me well,” Fish­burne said. “Brett was a jerk.”

At Yale Col­lege and Yale Law School, as at Prep, there are class­mates who say Ka­vanaugh was a big drinker who be­came nasty and bel­liger­ent when he got drunk and class­mates who say he drank heav­ily but never seemed out of con­trol. The two por­traits seem ir­rec­on­cil­able, yet both could be true.

“Brett was a sloppy drunk, and I know be­cause I drank with him,” said El­iz­a­beth Swisher, a friend who is now a pro­fes­sor of gy­ne­co­logic on­col­ogy at the Univer­sity of Washington School of Medicine. “He’d end up slur­ring his words, stum­bling . . . It’s not cred­i­ble for him to say that he has had no me­mory lapses in the nights that he drank to ex­cess.”

But Chris Dud­ley, a close friend who played bas­ket­ball at Yale and later in the Na­tional Bas­ket­ball As­so­ci­a­tion, painted an op­po­site pic­ture. “Brett drank and I drank. Did he get ine­bri­ated some­times? Yes. Did I? Yes. Just like ev­ery other col­lege kid in Amer­ica.”

Just as there are women who say Ka­vanaugh was clumsy or rough when he made drunken passes at them, there are women who say he was charm­ingly awk­ward and ret­i­cent in such mo­ments.

Even as class­mates re­main di­vided over his be­hav­iour when drink­ing, they agree he was a con­sis­tent con­ser­va­tive on a lib­eral cam­pus. As a first-year law stu­dent in 1987, Ka­vanaugh aligned him­self with Chief Jus­tice Wil­liam Rehn­quist, a con­ser­va­tive who moved the Supreme Court to the right. Ka­vanaugh soon joined the

Fed­er­al­ist So­ci­ety, a Washington, DC-based group that has played a key role in re­cruit­ing, groom­ing and supporting strongly con­ser­va­tive judges — in­clud­ing Ka­vanaugh. In the years to come, he would ap­pear nearly 50 times be­fore Fed­er­al­ist So­ci­ety au­di­ences on cam­puses and at gath­er­ings of lawyers.

As Ka­vanaugh be­came ac­tive in the so­ci­ety’s Yale chap­ter, Leonard Leo got in­volved with the group at Cor­nell. The two soon formed a bond that would prove pow­er­fully im­por­tant. Both men were orig­i­nal­ists, sub­scribers to the idea that the Con­sti­tu­tion and statutes should be in­ter­preted by their orig­i­nal mean­ing and text.

In Washington, Leo, who emerged as a leader of the Fed­er­al­ist So­ci­ety, be­came the keeper of a list of in­flu­en­tial con­ser­va­tive judges from which Repub­li­can pres­i­dents have cho­sen court nom­i­nees. Leo was also, as ever, one of Ka­vanaugh’s most avid boost­ers.

Af­ter law school, Ka­vanaugh clerked for two fed­eral judges, lin­ing him­self up for a cov­eted clerk­ship at the Supreme Court. But be­fore Jus­tice An­thony Kennedy hired him, Ka­vanaugh caught the eye of an­other prom­i­nent con­ser­va­tive who would prove to be a vi­tal men­tor.

Like Ka­vanaugh, Ken Starr was a staunch con­ser­va­tive who would be ac­cused of ex­ces­sive par­ti­san­ship in a job that re­quired a fair and neu­tral tem­per­a­ment. But what drew Starr, an in­de­pen­dent coun­sel ap­pointed to in­ves­ti­gate al­le­ga­tions against Pres­i­dent Bill Clin­ton in 1994, to hire Ka­vanaugh three times was the same mix of at­tributes that had at­tracted so many peo­ple be­fore him: He con­sid­ered the young lawyer an un­usu­ally lik­able guy who was bril­liant and closely aligned with Starr’s phi­los­o­phy.

In 1992, when Starr was US so­lic­i­tor gen­eral, the fed­eral gov­ern­ment’s lawyer in the Supreme Court, he in­ter­viewed Ka­vanaugh and hired him as a fel­low in his of­fice.

From there, Starr lent a hand as Ka­vanaugh sought the Kennedy clerk­ship.

Starr kept a close eye on his pro­tege and a few years later re­cruited him to join the in­de­pen­dent coun­sel’s of­fice, first to in­ves­ti­gate the death of White House deputy coun­sel Vin­cent Fos­ter and later, af­ter Ka­vanaugh had left the of­fice, to come back and lay out the rea­sons the Pres­i­dent should be im­peached for ly­ing about his af­fair with White House in­tern Mon­ica Lewin­sky.

Ka­vanaugh’s next as­sign­ment was to write a sec­tion of the re­port to Congress lay­ing out the grounds for im­peach­ing the Pres­i­dent.

“This was not a man on a mis­sion, this was a le­gal doc­u­ment of great po­ten­tial mo­ment that needed to be very care­fully crafted, so I was look­ing to one of the of­fice’s most tal­ented lawyers,” Starr said in an in­ter­view last sum­mer.

The bond be­tween Ka­vanaugh and Starr was mu­tual. Starr had been bit­ter about be­ing passed over by Pres­i­dent Ge­orge H.W. Bush for a Supreme Court nom­i­na­tion, but when he heard that Trump had nom­i­nated his pro­tege for the high court, Starr said it brought “tears to my eyes. Tears of joy”.

Ka­vanaugh’s rise was swift and de­lib­er­ate. At ev­ery step, his friends pitched in. Starr, Leo and oth­ers rec­om­mended him, spread the word, helped knock down crit­ics.

In 2003, when Al­berto Gon­za­les, then the at­tor­ney gen­eral, ad­vanced Ka­vanaugh’s name to the White House for nom­i­na­tion as a judge on the US Court of Ap­peals for the DC Cir­cuit, it was Kyle Samp­son, Gon­za­les’ chief of staff, who ini­tially rec­om­mended the move.

“I thought — cor­rectly! — that Brett would make a great judge, given his A+ level smarts, col­le­gial de­meanor, com­mit­ment to pub­lic ser­vice, com­pas­sion,” Samp­son said in an email. The chain of con­nec­tions was echt-Washington: Ka­vanaugh and Samp­son had worked to­gether on the nom­i­na­tion of an­other judge, John Bates, and Ka­vanaugh and Bates had worked to­gether in the in­de­pen­dent coun­sel’s of­fice.

“I went and made the case to Judge Gon­za­les,” Samp­son said, “and then Gon­za­les made the case to Pres­i­dent Bush and he agreed.”

When the Amer­i­can Bar As­so­ci­a­tion knocked down its rat­ing of Ka­vanaugh from “well qual­i­fied” to merely “qual­i­fied,” and Democrats blocked his nom­i­na­tion to the DC Cir­cuit, his friends ral­lied once more. More than two years af­ter he was first cho­sen, he won a spot on the bench by a nearly party-line vote in the Se­nate.

On the bench, Ka­vanaugh ex­tended his net­work. Other judges be­gan to cite his rul­ings fre­quently. He is among the top ap­pel­late judges na­tion­ally to send his law clerks on to clerk­ships in the cham­bers of Supreme Court jus­tices.

Last week, on the day be­fore the Se­nate Ju­di­ciary Com­mit­tee hear­ing about the al­le­ga­tions against him, Ka­vanaugh spent hours be­hind closed doors in his court­house of­fice, writ­ing an an­gry, emo­tional de­fence of who he is.

He strug­gled to de­liver the speech even in prac­tice runs, ac­cord­ing to a per­son fa­mil­iar with the ses­sions.

His open­ing re­marks were sear­ing, par­ti­san and ac­cusatory; his de­liv­ery, by turns out­raged, weepy and right­eous.

When Demo­crat Sen­a­tor Amy Klobuchar ques­tioned Ka­vanaugh, the judge ini­tially came across as cour­te­ous and diplo­matic. But when she asked whether he had ever blacked out af­ter a night of heavy drink­ing, Ka­vanaugh pounced with his own ques­tion.

“I don’t know,” he snapped. “Have you?”

Dur­ing breaks in his tes­ti­mony, Ka­vanaugh reg­u­larly hud­dled with White House coun­sel Don­ald McGahn and other ad­vis­ers in a small meet­ing space be­hind the hear­ing room.

But af­ter the heated ex­change with Klobuchar, Ka­vanaugh took a mo­ment by him­self. His peo­ple were out there in the hear­ing room. But now, with ev­ery­thing on the line, he was on his own. Just be­fore the hear­ing re­sumed, he told his ad­vis­ers he wanted to apol­o­gise to the sen­a­tor, ac­cord­ing to a per­son fa­mil­iar with the dis­cus­sion.

“Sorry I did that,” he told Klobuchar when the hear­ing re­sumed. “This is a tough process.”

That night, Ka­vanaugh, emo­tion­ally spent, his fu­ture very much up in the air, re­treated to safe ground. He spent the evening with those who would un­der­stand, those who had been there at ev­ery step, in­clud­ing, of course, his bud­dies from Prep.

PHOTO / AP

Supreme Court nom­i­nee Brett Ka­vanaugh is sworn in be­fore the Se­nate Ju­di­ciary Com­mit­tee.

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