Four days before sending the FBI a confidential and anonymous #MeToo letter that has roiled the Supreme Court nomination of Judge Brett Kavanaugh, Democratic Senator Dianne Feinstein said in an interview that his confirmation was not a done deal.
“We’re not finished,” California’s senior U.S Senator told me in a 30-minute sit down at the Four Seasons Resort-The Biltmore Santa Barbara on Sept. 9, following a luncheon talk to Democratic women.
“Staff will be going through all of the transcripts, picking up things, underlining things, messages will be coming in, information will be given to the committee," she added, in advance of a "markup" at this week's meeting of the Judiciary Committee, on which she is the ranking Democrat. “Always is.”
Whether or not Feinstein, in mentioning new information and “messages coming in” was, consciously or unconsciously, referencing the startling, then-secret letter from Bay Area professor Christine Blasey Ford that charges Kavanaugh with a high school sexual assault, the sudden furor over the allegations demonstrates that she was correct in assessing that Donald Trump’s Supreme Court appointment is not a fait accompli.
“From the outset, I have believed these allegations were extremely serious and bear heavily on Judge Kavanaugh,” Feinstein said a statement this Sunday, after Ford herself made the allegations public. “I hope the attacks and shaming of her will stop and this will be treated with the seriousness it deserves.”
The statement also made clear why she kept Ford's letter confidential for weeks, an answer to attacks across the political spectrum: her feminist belief that the choice to tell the story was Ford's -- not her own.
The story to date. As majority Senate Republicans rushed to push through Trump’s nomination in time for the court session that begins Oct. 1, Ford on July 31 sent a letter to Feinstein, alleging that as a prep school student, a drunken Kavanaugh pinned her to a bed at a party, molested her and muffled her screams. She asked it be kept confidential (the text of the letter now is published here).
Despite the lurid details with which she described the attack, Ford said she wanted to keep the story private, fearing that she would be battered in a political brawl and he would be confirmed anyway.
Feinstein reportedly told no one about the letter, except for a few aides, until September 12, when The Intercept news site reported on the letter, saying that Feinstein was refusing to share it with Democratic colleagues trying to block Kavanaugh.
At that point, Feinstein forwarded the letter to the FBI, and was promptly attacked from all sides: Republicans accused her of a cheap last-minute smear; Democrats protested that she had kept it secret; Beltway pundits ripped her (“Dianne Feinstein, What in the Hell Were You Thinking?") headlined one widely-read column) while her re-election opponent, state senator Kevin de Leon, accused her of “a lack of leadership.”
In an interview with the New York Times, however, Ford's attorney provided a first-hand explanation for Feinstein's behavior:
But Ms. Katz said that throughout August, Ms. Feinstein’s aides had checked back with Ms. Katz from time to time to see if Ms. Ford would go public. But Ms. Ford, fearing she would be attacked, wanted to remain private, and the senator respected her wishes, Ms. Katz said.
On Sunday, Sept. 16, for the first time, Ford allowed her name to be used, in an interview with the Washington Post: “I thought he might inadvertently kill me," she said of Kavanaugh, who "categorically and unequivocally" denies the incident. “He was trying to attack me and remove my clothing.”
Ford's attorney since has repeatedly given Feinstein shout-outs for respecting her client's previous plea for secrecy, most notably on CNN and in the Post story:
Katz said she believes Feinstein honored Ford’s request to keep her allegation confidential, but ‘"regrettably others did not.’"
The Year of the Woman. It's worth noting that Feinstein was first elected in 1992, the “Year of the Woman” election, following Anita Hill’s sexual harassment allegations during the historic Clarence Thomas Senate hearings.
In her Sunday statement, she explained the ethics of her decision not to surface Ford's story herself:
“It has always been Mrs. Ford’s decision whether to come forward publicly,” she said. “For any woman, sharing an experience involving sexual assault – particularly when it involves a politically connected man with influence, authority and power – is extraordinarily difficult.”
“From the outset, I have believed these allegations were extremely serious and bear heavily on Judge Kavanaugh’s character. However, as we have seen over the past few days, they also come at a price for the victim. I hope the attacks and shaming her will stop and this will be treated with the seriousness it deserves.”
Prediction: While Fox News and GOP senators may continue kvetching, the condemnation of Democrats and even de Leon about the letter are done (Update. We were half right: Feinstein's Senate colleagues are now defending her, but de Leon is still on the attack, saying she needed "to devise a way to act on sensitive information ...while maintaining appropriate confidentiality," i.e. I hate this restaurant - the food's bad and the portions are too small).
(Update 9-18. In our Sunday post, I underestimated the level of umbrage, fake or otherwise, with which Senate Republicans would react to Feinstein's action and did not account for how Trump would go after her personally. Here's a good Post story published on Tuesday that summarizes the latest Feinstein developments).
(Update 9-21. And today in the Story That Won't Hold Still, the tide turns yet again with anti-de Leon backlash).
Previous: In other news, here's a good WashPost take-out on the timing of the disclosure issue.
Dianne speaks. In the interview, four days before the Ford story broke, Feinstein discussed the nomination and other issues.
Among other things, Feinstein:
Pushed back against de Leon's argument that she is too bipartisan and moderate to represent California in the Trump era, along with his criticism that she apologized, instead of standing up for, anti-Kavanaugh protestors during the Judiciary Committee hearing: “You don’t do that in the Senate – you don’t turn it into a roughhouse.”
Acknowledged that, “sure it hurt,” when the state Democratic Party endorsed de Leon over her, but shrugged off suggestions that she is out of touch with its progressive wing: “We did pretty well in the primary,” in which she was the overwhelming winner in a crowded field, capturing 70 percent of Democratic votes, she said.
Refused to answer whether Trump should be impeached, in contrast to de Leon, who has stated that impeachment proceedings should be pursued, even with Democrats in the minority of both congressional houses. “It’s for a future day, I’ll leave it at that,” Feinstein said, adding her belief that prerequisites of the Constitution are strong enough to withstand Trump: “Absolutely.”
Agreed that Kavanaugh would be “a likely vote” to overturn the 1973 Roe v. Wade decision that established a woman’s right to choose to have an abortion, adding, in effect, that Kavanaugh tried to dupe the Judiciary Committee by calling the landmark ruling “settled law,” but stopping short of stating that it was “decided correctly.”
Defended as “very honorable people” Senators Susan Collins and Lisa Murkowski of Maine and Alaska, the two key, pro-choice Republicans whose votes are crucial to blocking Trump’s pick, while declining to speak on the record about her conversations with them: “It would be a very big thing for them to go against the party,”
Criticized Kavanaugh for evading questions probing his views on the extent of executive power and whether or not a president is exempt from criminal prosecution: “He wasn’t going to step away from the President in any of his answers.”
Denounced the constant storm of “chaos and unpredictability” in the Trump White House -- “My God, how would I know what he would do tomorrow or next week?” – but also professed her confidence in key Administration members to manage it, specifically Secretary of Defense James Mattis. (The Defense secretary is reportedly on the outs with Trump and may soon be replaced however.)
Expressed disappointment in Republican congressional colleagues who “seem so afraid to cross” Trump, but said she will continue efforts to work with GOP members on issues on which she believes bipartisan solutions are still possible, citing current discussions on immigration legislation.
(Veteran California political writer Jerry Roberts is the author of "Never Let Them See You Cry," a biography of Dianne Feinstein's San Francisco years).
(Monday: This post has been updated and clarified to include the most recent news events).
Images: Feinstein speaks at an event in Santa Barbara (Marian Shapiro); Brett Kavanaugh testifies to the Judiciary Committee (CNBC); Anita Hill testifies about Clarence Thomas in 1991 (The Atlantic); Feinstein questions Kavanaugh (C-SPAN).
Here are excerpts from a transcript of the interview with Senator Feinstein, edited for clarity. I spoke with her for both the Santa Barbara Independent and for Newsmakers on Sept. 9, in a conference room at The Four Seasons Resort-Biltmore Santa Barbara after she made a political appearance.
THE SUPREME COURT NOMINATION OF BRETT KAVANAUGH
JR: What will happen with the Kavanaugh nomination?
DF: The work doesn't stop in the next two weeks. Staff will be going through all of the transcripts, picking up things, underlining things, messages will be coming in, information will be given to the committee during the period of time, always is…
We will have a markup and I believe I know what the vote will be, but to go out and pound the sidewalk over it is going to alienate people and probably create more ill will than good will.
I think this is going to stand on its own and what he has testified to is being sliced and diced and looked at very carefully, as it should be.
I think his absence of answering questions directly, his ability, I think, to show that he has a lexicon of knowledge about other cases goes way, way back. What I've said is, there are big things for me and that's Roe and that's guns and that's presidential superiority. He's on the wrong side of all of those, I believe.
ROE V. WADE
JR What in his answers about Roe concerned you the most?
DF: What came across was he said, ‘yes, it's precedent, there's stare decisis(the legal principle of ruling on litigation according to precedent)' and there's precedent after precedent.
The question is not that it's settled law – (the crucial question is), do you believe it's correct law? What he should have said was ‘yes” and he refused to answer. That told me something.
JR: Told you what?
DF: It told me that he was a likely vote against Roe.
PRO-CHOICE REPUBLICANS
JR: What do you think the chances are that (Republican Senators from Maine and Alaska, Susan and Lisa) Collins and Murkowski will be against him? You know them. You talk to them.
DF: I think I'm not going to speak about it on the record. I think it's a very big thing for them to go against the party,
JR: When you find out what Collins and Murkowski are doing, the Santa Barbara Independent wants to know first. Okay?
DF (Laughing) I will do this for old time sake. I'll give you a call and let you know.
JR: That's great.
DF: (Laughing) Write that down because I'll forget otherwise.
KAVANAUGH AND PRESIDENTIAL POWER
JR: You talked in the hearing about Kavanaugh’s views on presidential authority. Do you think Trump picked him because of his views on presidential power, if there were an impeachment or issue on the Mueller investigation?
DF: I can only speculate, but I know from other questions and from reading some of the press on it that he wouldn't answer those questions related to it either.
Remember this President has said, “My appointment will be pro-gun and pro-life.” He didn’t take the first list that was prepared by the conservatives of the party. He took him from a second tranche of recommendations. Kavanaugh, as I understand it, was on the second list…
He wasn't going to step away from the President in any of his answers, let me say that, and yet he was rife with knowledge, which he went into the background of cases. It takes you awhile not to get snowed by that because you realize you really don't know the answer to the question you asked, but then most people don't answer that question anyway. I guess this was what, my ninth hearing, my ninth Supreme Court hearing? He was far more voluble, which was interesting, than most.
JR: What if Trump fires Mueller? What if he fires Rosenstein? What if he fires Sessions? What do you do? What happens?
DF: Well, I don't think we do any ... There's nothing we can do, but we can make a big fuss.
OBSTRUCTION OF THE GARLAND NOMINATION
JR: How much does the Republican’s blocking of Obama’s nomination of Judge Merrick Garland nomination factor into this?
DF: That's an interesting question. We don't really talk about it among ourselves, but it's out there…
I (recommended Garland) because he was the senior judge of the busiest DC circuit. Eminently respected by Republicans and Democrats, and I thought this is the perfect solution for the situation….
All the work that was done and the Republicans, not one, would have a meeting with him. Now that's not a vote, that's not a hearing. It's a courtesy that we extend and everybody does it.
JR: Doesn't that undercut your view of the Senate as a deliberative body and, show that tribal polarized politics has broken the norms of the Senate?
DF: Well, there's no question that this removed from a President a final year appointment on the Supreme Court. That was Obama's final year and that was taken away from him. George Washington had an appointment, but it was much closer…
This was a real affront to the President, to our President, President Obama. …(Garland) wasn't even given a hearing. He wasn't given a meeting.
TRUMP AND IMPEACHMENT
JR: The most frightening aspect of Trump is in national security and foreign affairs. How do you characterize his performance in this area?
DF: Very unpredictable…
(He is) impetuous, aggressive. We don't know what to expect and I have found over my 25 years or so back there, that knowing what to expect is really important. When you don't, mistakes get made. I think one of the things about this White House is unpredictability and kind of chaos, (his) domination of the dialogue. Better things can't get discussed because there's always some trauma going on.
All of a sudden, my God, how would I know what he would do tomorrow or next week? You wouldn't know, I wouldn't know. I don't think anybody knows…
Now, with the (Mueller) investigation, it looks like, I mean, the numbers of arrests and people that have pled.
I think that going off and having a kind of secret meeting with Putin, I don't think any other President would ever do that because the stakes are so big and no one ever knows what Putin is thinking or what kinds of actions Russia will take and when they will take them.
WHITE HOUSE “GROWN-UPS”
JR: Do you still have confidence in the grown-ups in the White House?
DF: I have a lot of faith in (Secretary of Defense) Jim Mattis, so do a lot of people back there. Still. He's a very strong personality and very well respected general. I cannot believe that after his tours of duty and what he's done he ever wants to see this country hurt in any way, that he would speak up and/or leave or do something to let people know the comings and goings of people in the White House.
I do with Mattis and I thought with (Chief of Staff) General (James) Kelly there would be some of that, but my sense is that he's pretty much been relegated to traditional Chief of Staff duties. A gatekeeper, not for his military prowess. But we have some very good four-stars in the field, in command positions…
Let me say one other thing.
Rather than doing those things that will bring people together, (Trump) does his rallies with the hats and the signs and the chants really to boost his particular base, but not to heal wounds and not to bring people together. He's the incumbent. I've never seen an incumbent President in my time do this kind of thing.
MID-TERMS AND IMPEACHMENT
JR: You’ve spoken about “the power lock,” about Republicans controlling everything in Washington. If the Democrats don't take the House and if the power lock continues after November, what's your concern about what Trump will do?
DF: Well, I think we've got to take another look at exactly what is happening and there are not a lot of things outside of creating turmoil and marches and that kind of thing that we can do.
Now, there's the Article 25 stuff, which I understand people are starting to take a look at. That has to come from within the administration. Then, there's impeachment. It starts in the House.
JR: What's your political assessment for the Senate elections?
DF: No, I'm really worried.
JR: Should he be impeached?
DF: Well that, I think, is for a future day. It's for a future day, I'm going to leave it at that.
JR: None of those things will happen if the Dems don't take back the House. It will be business as usual or worse.
DF: See, that's right.
That's going to be a big thing. I mean, I think after the election, we'll see Trump's real concerns, his sincere concerns come out. I think he knows, with the election, he's got to help his people get elected. Then, after that, it's a different story…
I say this all the time, the Constitution comes in. Truly, as a lay person, not a lawyer, as I sit in these hearings and I see the remarkable, slender volume that's the Constitution at work, it amazes me.
When you think it was written, when we had slavery in this country, all that went on, and yet these people came forward and wrote this document and it's the law of the land. It is what differentiates our democracy I think from any other.
JR: Is the Constitution strong enough to withstand Trump?
DF: Absolutely. I have no doubt of that. No doubt.
JR: You don't?
DF: No.
GOP ENABLERS
JR: With all of Trump’s breaking and disruption of institutions and norms, how confident are you in the strength of the courts, the Congress, media, any countervailing force, to be able to stand up to him if the Democrats don't win at least one house in November?
DF: I think one of my disappointments is that his own party seems so afraid to cross him.
I mean I've heard people who have said very concerning things in the past. They don't anymore.
JR: Republican colleagues of yours, you mean?
DF: Yeah.
JR: Didn’t they stop saying it because he's been successful with the Supreme Court appointments and the tax cuts?
DF: Well, 90 percent.
JR: Does it surprise you there isn't more pushback among them?
DF: Yes.
In this area, it's going to be interesting to evaluate the effect of (Senate John) McCain's death. McCain was clearly able to stand up to him, his vote on healthcare, for example, and the strength of his background and the knowledge that he had.
JR: What do you say to your Republican colleagues when they know that this all is goofy?
DF: Well, first of all, I don't really talk with them about it, so it's not a good question to ask me or I don't have a good answer for it. My interest there is to get things done for my state, for my people, and that's how I spend my time, so the people that I would work with are people, for example, on an immigration bill. We're now, you won't believe this, sitting down with (Democrats and Republicans) trying to put something together...I don't know whether this is going to fall apart or not, but we've been trying.
KEVIN DELEON’S CHALLENGE
JR: What do you make of De León’s argument that you're too civil, too polite or too old school -- you should be praising, not rebuking the protestors and standing outside with them?
DF: Well, that’s not my place...
You don't do that in the Senate. You don't turn it into a roughhouse.
I mean I'm the ranking Democrat. I have to be there and I have to be cognizant of what's going on and understand…
The Senate has to be able to carry out its work and there are plenty of places where people can protest, but when they disturb a committee hearing so that you can't continue on, you have to do something about it.
You only have two choices. One is shut down until everybody is removed from the room or you remove the protestor. Senator Grassley felt strongly that this is part of Democracy and you remove the protestor and you keep going. I don't know how many people were arrested, but there were certainly several dozen.
JR: Do you think that de Leon’s argument against you represents a split in the Democratic party -- the party's moving in a much more progressive, leftist, activist direction and Feinstein's being left behind, You think it’s true?
DF: No. No, and I think the vote that I got in the primary showed it wasn't true.
I believe you change people with ideas. I believe you change them with thought. We've got a good Democracy, you know? We're not a communist government and this, you know, “we want to overthrow our government.” We don't want to overthrow our government.
Maybe some of the leadership we would want to change, but basically ... and this is where, and I say this all the time, the Constitution comes in. Truly, as a layperson, not a lawyer, as I sit in these hearings and I see the remarkable, slender volume that's the Constitution at work, it amazes me.
When you think it was written when we had slavery in this country, all that went on, and yet these people came forward and wrote this document and it's the law of the land. It is what differentiates our Democracy I think from any other.
CALIFORNIA’S DEMOCRATIC PARTY
JR: Was it hurtful that the Democratic Party in California, after all this time, endorsed another Democrat for your seat?
DF: Well, sure it hurt. A lot of things hurt, but we get used to hurt too and it is what it is. I've had some nice things happen with other unions who have come forward, so I think ... and, of course…we won the primary pretty well.
JR: Thank you.