Now that Brett Kavanaugh is on the Supreme Court, it’s worth taking a look back at what changed the course of the fight.

Democrats had thrown everything they had at Kavanaugh, including a misleadingly edited video circulated by Sen. Kamala Harris and false accusations of perjury circulated by many Democrats. None of it stuck, in part because of rapid fact response by the administration, Kavanaugh’s team, and non-liberal media.

Then came the leak of a letter Christine Blasey Ford had written to Sen. Dianne Feinstein, on September 13, after the hearings had concluded.

We all suspected that this leak was a set up. We were proven right, as the evidence that came out during and after Ford’s and Kavanaugh’s testimony in late September showed that Ford was working with Democrat activist lawyers recommended by Feinstein, and took steps (including a questionable polygraph) in early August to lay the groundwork for a public rollout. While Ford insisted that she wanted her anonymity preserved, she took preparations suggesting she expected her identity to be made public eventually.

When the Ford letter was leaked, the Kavanaugh nomination was put into turmoil. Kavanaugh vigorously denied the accusations, as did each of the three other people Ford identified as being at the party in question. Both Ford and Kavanaugh would testify, but not until September 27.

Republicans had a tactical problem. The Democrats and #MeToo movement boxed Republicans in by trying to take off the table any attempt to question Ford’s credibility and honesty directly.

In that interim period between the letter surfacing and the Ford/Kavanaugh testimony, Republicans searched for a middle ground, one that would allow them to attack the allegations of sexual assault without attacking Ford personally.

On September 20, 2018, that middle ground came forward when Ed Whelan, a well-known conservative legal writer, someone close to Kavanaugh and his team, and President of The Ethics and Public Policy Center, floated a theory in a Twitter thread asserting that Ford may have been a victim of sexual assault, but that she identified the wrong person. In other words, Ford was not consciously lying, she suffered from a case of mistaken identity.

Whelan published that theory in a Twitter thread for which there had been a big build up. Whelan had teased that there would be information exonerating Kavanaugh, that Ford may have been attacked but not by Kavanaugh. Whelan’s teases were widely shared.

Whelan’s Twitter thread purported to identify the house at which the attack likely took place, based on the descriptions in Ford’s letter, and a fellow student who was not Kavanaugh who lived at that house.

When we looked at the thread, we decided not to run it here or even to link to it. We were not persuaded. It seemed like a case of “correlation does not equate to causation.” More important, Whelan reached too far in identifying a specific person.

There was fierce criticism of Whelan not only from the left, but also from the right. In many ways, the theory seemed to damage Kavanaugh’s nomination, though Whelan denied that Kavanaugh’s team was involved at all.

Whelan quickly apologized for naming a specific person:

I made an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh’s Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake.

I grievously and carelessly wronged the person I identified, and I owe him and his family my deepest apologies. And I of course do not deserve to have him accept my apologies.

Note that Whelan did not apologize for his theory that Ford was attacked by someone other than Kavanaugh, but for naming that person who was a possible suspect.

End of the mistaken identity defense?

Hardly. Whelan planted a seed that eventually grew into the decisive factor in Kavanaugh’s confirmation.

When Ford testified, Rachel Mitchell, the Arizona prosecutor hired by Judiciary Committee Republicans to question Ford treated Ford gently. No aggressive questioning, but enough questioning to turn up so many inconsistencies and failures of memory as to lead to a reasonable conclusion that Ford suffered from serious emotional and memory problems unrelated to anything Brett Kavanaugh ever did.

Whelan’s theory that something happened to Ford but that Kavanaugh was not the perpetrator convinced the one person who needed to be convinced — Maine Senator Susan Collins.

In her floor speech announcing that she would vote to confirm Kavanaugh, Collins stated (emphasis added):

Mr. President, I listened carefully to Christine Blasey Ford’s testimony before the Judiciary Committee.  I found her testimony to be sincere, painful, and compelling.  I believe that she is a survivor of a sexual assault and that this trauma has upended her life.  Nevertheless, the four witnesses she named could not corroborate any of the events of that evening gathering where she says the assault occurred; none of the individuals Professor Ford says were at the party has any recollection at all of that night….

The facts presented do not mean that Professor Ford was not sexually assaulted that night – or at some other time – but they do lead me to conclude that the allegations fail to meet the “more likely than not” standard.  Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the Court.

Susan Collins, as did Ed Whelan, chose the path of believing that Ford was sexually assaulted, just not by Kavanaugh. Unlike Whelan, Collins did not name a possible other suspect.

Collins repeated this point in post-vote interviews:

“I do not believe that Brett Kavanaugh was her assailant,” the Maine Republican told CNN’s Dana Bash on “State of the Union” in an interview slated to air on Sunday.

“I do believe that she was assaulted. I don’t know by whom. I’m not certain when.”

Dahlia Lithwick at liberal Slate, notes how the Whelan theory shifted the discussion:

As Josh Marshall pointed out last week, the political manipulation of Ford’s story—the slow slide from “we believe her” to “we believe her, but she’s wrong about the identity of her attacker” happened without an explicit turn. For a scant few days, Republicans were careful not to call her a liar or an operative. After her testimony, the president himself deemed her “credible.” And then, ironically enough, Susan Collins became the first Republican to say out loud what Ed Whelan had tried to claim two weeks earlier: Ford was indeed attacked, but she was also confused about the date and the identity of her assailant, no matter that when asked about this under oath, she testified to being 100 percent certain that it was Brett Kavanaugh.

Marshall, in the post linked by Lithwick above, saw Whelan’s theory as the most politically plausible:

So why is virtually every Republican going with the least plausible – verging on extraordinarily implausible – theory? Simple. It’s a poll-tested, reverse engineered theory that solves key political problems even though it’s almost certainly not true….

But calling her a liar was politically toxic. So they needed a theory that fit each political need. First, Kavanaugh had to be telling the truth and must in fact be innocent. Second, Blasey Ford must think she is telling the truth. (The straightforward answer is that she’s lying. But that’s bad politics.) Ideally, the theory must posit that she was in fact assaulted, just not by Kavanaugh. Otherwise, there’s no basis for the politically required notional empathy. A less plausible scenario is that she has a false memory and she was never attacked at all. But that’s also bad politics. It sounds like saying she’s crazy and not a victim at all.

Collins and her Republican colleagues settled on the one scenario which checks all the political boxes but at the cost of being ridiculously implausible. She was attacked. But even though she is certain that she was attacked by a person she knew already, Brett Kavanaugh, in fact she was mistaken about who attacked her and might well have been attacked at a totally different point in her life. The assault becomes a purely notional placeholder to hold together a bad faith argument. There is zero chance they all come to this argument independently. This is some unknown strategist’s over-clever ruse.

The real point here is that no one can really believe this. Only the most casual cynicism gets you to this argument. It is a poll-tested, built-in-a-lab argument that is driven purely by political needs and can’t possibly be the product of actual belief or reasoning based on the evidence at hand. It’s pure cynicism that too many people are taking seriously.

I doubt that Whelan’s theory was “poll-tested” or “reverse engineered” or any such thing. Rather, it was the only politically viable theory available in a #MeToo environment in which women MUST be believed, but the evidence contradicted the belief against a specific accused.

Whether spontaneous or “built-in-a-lab,” Whelan ultimately prevailed not in naming a specific alternative perp, but in establishing that there might have been an alternative perp.


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