Was Kavanaugh saved when the GOP abandoned its 'female assistant' for bare-knuckled partisanship?

Rachel Mitchell
Arizona prosecutor Rachel Mitchell. (Photo: Erin Schaff/pool via Reuters)

For 11 rounds of questioning Thursday morning, Rachel Mitchell sat in front of the Republican senators on the Judiciary Committee and confronted Dr. Christine Blasey Ford for them. Soon after questioning resumed in the afternoon, with testimony from Judge Brett Kavanaugh, she was out of a job.

Because Mitchell took on questioning Ford, not a single Republican senator asked Kavanaugh’s accuser a question, other than Chairman Chuck Grassley, who inquired about the witness’s comfort and scheduling matters. It was Mitchell, the Arizona prosecutor specializing in sex crimes, and not any Republican senator, who switched off with Democrats in five-minute segments that probed Ford’s story of sexual assault and scrutinized her efforts to navigate the political, legal and media currents of Washington into which she was cast, through no desire of her own. It was Mitchell who stoically withstood Ford’s searing testimony, which compounded emotional depth, authenticity, credibility and her extraordinary command of the science of memory as a professor of psychology. Mitchell also became a lightning rod for criticism by observers who believed Ford’s account.

Later, when Ford’s testimony was concluded, Mitchell sat closest to Supreme Court nominee Brett Kavanaugh as he fumed and wept and floated politically-tinged conspiracy theories in his angry and emotional 45-minute opening statement. Mitchell took on the first two five-minute rounds of questions for Kavanaugh from the Republican side. Her line of inquiry appeared to fluster Kavanaugh more than it had done Ford, as she asked him to review a definition of sexual behavior, collected his denials of Ford’s story and pressed him on his drinking at specific events.

But Kavanaugh did not have to endure Mitchell’s questioning for long. After two rounds, Republican senators, led by Lindsey Graham, reclaimed their time and rode to his rescue. “What you want to do is destroy this guy’s life, hold this seat open, and win in 2020. … This is the most unethical sham since I’ve been in politics,” Graham thundered at the Democrats on the committee, marking a stark contrast with Mitchell’s focused interrogation of Kavanaugh. Graham, and each Republican senator who followed him, apologized to Kavanaugh and his family, and used their time to direct partisan ire toward Democrats, who they accused of springing an unfair political trap on them and victimizing both Kavanaugh and Ford in the process.

Photo: Tom Williams/CQ Roll Call)
Photo: Tom Williams/CQ Roll Call)

The sudden shift in strategy appears to have been effective at reviving flagging Republican morale, although it poorly fit Grassley’s call for civility at the beginning of the hearings.

As Republicans transformed the hearing back into a more traditionally partisan affair, they exposed weaknesses in Democrats’ questioning. While Democrats did effectively draw out Kavanaugh’s refusal to call for an FBI investigation, something each of his named accusers have done, they did not take up Mitchell’s project of methodically quizzing Kavanaugh about his activities during the summer of 1982, when the alleged attack occurred. Committing Kavanaugh to a detailed account of that year could have allowed for a comparison of his answers with the substance of Ford’s testimony. Investigators use such comparisons to advance the inquiry by narrowing down times and locations when and where the alleged assault may have taken place. Democrats also allowed Republicans to draw them into partisan disputes over, for instance, the handling of Ford’s allegations, rather than focusing on contradictions in Kavanaugh’s testimony and his remarkable display of temper.

A remarkable amount of time was devoted to parsing obscure teenage slang references in Kavanaugh’s high school yearbook.

While Republican senators gave succor to their nominee with a renewed partisan approach, Mitchell sat silently in front of them for the remainder of the hearing, a mute reminder of a strategy that produced a near-death experience for Kavanaugh’s nomination.

Mitchell’s presence at the hearing was widely understood as an effort to shield the all-male panel of Republicans senators on the Judiciary Committee from charges of sexism and insensitivity that had dogged the senators who conducted the hearing on Anita Hill’s accusations against Clarence Thomas 27 years ago. Of course, Republicans did not immediately describe Mitchell’s hiring this way. “The majority members have followed the bipartisan recommendation to hire as staff counsel for the committee an experienced career sex-crimes prosecutor to question the witnesses at Thursday’s hearing,” Chairman Grassley said in a statement when news of Mitchell’s hiring became public this week. “The goal,” he continued, “is to de-politicize the process and get to the truth, instead of grandstanding and giving senators an opportunity to launch their presidential campaigns. I’m very appreciative that Rachel Mitchell has stepped forward to serve in this important and serious role.”

Rachel Mitchell and Brett Kavanaugh
Photo: Saul Loeb/Pool via Reuters

However, Senate Majority Leader Mitch McConnell hinted at the unspoken purpose of Mitchell’s commission. “We have hired a female assistant to go on staff and to ask these questions in a respectful and professional way,” McConnell said Wednesday, pointedly calling attention to Mitchell’s gender.

As the hearings got started, flaws in this approach became apparent.

First, the senators had insulated themselves to some extent from appearing sexist or insensitive by outsourcing the questioning of Ford; however, by refusing to face Ford or speak to her, they looked aloof or timid in the face of a credible witness.

Second, Mitchell was not prepared to modify her questioning to fit into the five-minute increments that Grassley had decreed for this hearing. Consequently, Mitchell was often forced to leave a line of inquiry hanging while Democratic senators took their turns questioning the witness, making her argument harder to follow.

Third, Mitchell’s credentials as a local prosecutor of sex crimes suggested that she had been flown in to perform a searching investigation of the long-ago assault. However, her questions ranged far from her expertise, and she did not give the impression of genuinely investigating Ford’s recall of the incident and whether it can be corroborated. Instead, Mitchell seemed to be trying to catch Ford in contradictions and garnering an admission that her accusation was part of a partisan plot. This left a sex-crimes expert flown in from Arizona posing politically-tinged questions about, for instance, whether Ford had misled the committee about a fear of flying and who had paid for her polygraph examination. It was also an unavailing strategy with a witness whose authenticity was widely acknowledged.

Finally, the Republicans’ decision to ditch Mitchell in the second half of the hearing left Republicans open to charges of unequal treatment. If the alleged victim of a sexual assault had to endure lengthy questioning by an experienced local prosecutor, why didn’t the alleged perpetrator?

Republican senators and their staff did not immediately respond to requests for comment on Mitchell’s performance and whether she had lived up to their expectations.

“The Republican strategy was clear,” an aide to a Democratic senator on the Judiciary Committee wrote. “Employ a career prosecutor to cross examine Dr. Blasey Ford and then lob softballs at Judge Kavanaugh. Once Rachel Mitchell began to question Judge Kavanaugh, it became clear she was going to ask substantive questions. For example, she asked about his drinking and the July 1 party where Mark Judge and P.J. Smyth were in attendance. Republican senators then came to the rescue and benched her.”


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