WASHINGTON – The moment California college professor Christine Blasey Ford finished her testimony about an alleged sexual assault in the 1980s by Supreme Court nominee Brett Kavanaugh, Republicans realized his confirmation was at serious risk.
In the White House, aides gathered in Vice President Mike Pence’s office in the Senate Dirksen Building were “demoralized,” officials said.
The same sense of dread spread in the Senate, as lawmakers texted each other about their concerns.
“Honestly, I think had the hearing stopped right then, if he had not testified, he would not be confirmed today,” said Sen. Bob Corker (R., Tenn.).
“I thought ‘Oh my goodness, he perhaps needs to withdraw,’” said Sen. Susan Collins (R., Maine), who would later play a crucial role in his confirmation.
Judge Kavanaugh’s emotional, politically charged and combative defense on Sept. 27 that followed Ford’s appearance was enough to reassure most of the Senate GOP caucus, but it wasn’t enough to secure his confirmation. It would take Republicans another week of slow deliberations to win over the small handful of swing votes who would determine Judge Kavanaugh’s fate.
Saturday’s vote to confirm Judge Kavanaugh closed one of the most unpredictable nomination processes in recent memory with nearly every norm cast aside to adapt to the constantly shifting political environment.
Senators from both parties seemed rattled by the combative nature of the nomination, some of which was driven by the nominee himself.
They warned that this could set a precedent that ultimately could tarnish the Supreme Court’s reputation for independence and undermine public confidence in the judicial system.
“That has serious long-term consequences for us as a republic,” Sen. Chris Murphy (D., Conn.) said on the Senate floor on Thursday. “Because it used to matter that, in the midst of all of our political heated debates here, that there were at least nine people in America who Americans could credibly believe didn’t care about our usually petty, political partisan fights.”
The Kavanaugh margin of victory, 50-48, is the smallest in history, yet it reflects the volatility that comes when the issue of women’s rights clashes with a conservative push to tilt the court’s ideology. Justice Clarence Thomas, who was accused of sexual harassment, was confirmed in 1991 on a vote of 52-48.
Republicans prevailed in the Kavanaugh fight by launching an intense and improvisational effort to win over undecided senators.
When Ford’s allegations became public, White House counsel Don McGahn spoke to Arizona Sen. Jeff Flake, who is retiring, and recognized that the nomination was in jeopardy and the Republican senator needed to hear directly from Judge Kavanaugh, a White House official said. McGahn set up a phone call, but the conversation didn’t seal the deal.
After the emotionally wrought judiciary-committee testimony, four senators still weren’t sold: Flake, Collins, GOP Sen. Lisa Murkowski of Alaska and Democratic Sen. Joe Manchin of West Virginia.
They huddled in Collins’s office in the Capitol to discuss their options, while the Senate Republican leadership decided to forge ahead with a committee vote the next day.
The following day, Flake cut a bipartisan deal with members of the Judiciary Committee to vote to advance Judge Kavanaugh to the floor in exchange for a pause in the process.
He made it clear he had the backing of the other centrist senators, whose votes were needed for confirmation.
In a meeting in Senate Majority Leader Mitch McConnell’s office that Friday afternoon, the undecided Republicans and a few other senators hammered out a one-week time limit and asked that the Federal Bureau of Investigation explore charges from both Ford and Deborah Ramirez, who alleged Judge Kavanaugh had exposed himself to her when they were in college. Judge Kavanaugh has categorically denied both allegations.
The undecided Republicans didn’t ask to look into claims from Julie Swetnick, which were promoted by attorney Michael Avenatti, that Judge Kavanaugh was present at a party in the early 1980s when she was gang-raped. Judge Kavanaugh denied the allegations, and Republicans characterized them as outlandish.
“They were not interested in anything Avenatti had to say or anything he had to represent,” McConnell said of the GOP swing senators in an interview Saturday.
Before the explosive accusations, most of the centrist senators had been moving toward confirming Judge Kavanaugh.
For weeks, Collins and Murkowski had been drilling into Judge Kavanaugh’s judicial record.
Senate Judiciary Committee Chairman Chuck Grassley (R., Iowa) said the two senators had asked his staff the most questions and requested the most documents of all the GOP senators, and both had multiple, lengthy discussions with Judge Kavanaugh.
Sen. Jon Kyl (R., Ariz.), who was appointed to the Senate in September to fill the seat of the late Sen. John McCain, had previously accompanied Judge Kavanaugh as his designated “sherpa” to meet with more than 50 senators, including Collins. “She did her own due diligence,” Kyl said, noting the depth of her researching and investigating.
On Tuesday, during the caucus’s closed-door weekly luncheon, Collins asked detailed questions about the FBI’s approach to handling the report and why it couldn’t be released publicly.
“Because of the questions that she asked and because of the follow-up, it was obvious she was more than waist deep, but that she was digging all the way” into the process, said Sen. Johnny Isakson (R., Ga.).
During a speech in which she said she would support Judge Kavanaugh’s nomination, Collins said on Friday she held briefings “many times a week” with up to 19 attorneys combing through the judge’s rulings and judicial philosophy.
Manchin, meanwhile, called in outside counsel to help sort through Judge Kavanaugh’s legal history. Manchin’s primary concern was protecting the Affordable Care Act’s mandated coverage for people with pre-existing conditions.
Judge Kavanaugh’s fiery denial at the last hearing reassured the White House and many GOP senators.
“When he came back with such a forceful denial and the anger and anguish that he showed and then the lack of corroboration, led me back to the fundamental issues that are fundamental to our legal system, a presumption of innocence and fairness,” Collins said on CNN on Sunday.
But his performance also raised new concerns for some about his temperament.
Murkowski said his comments at the hearing left her worried that Kavanaugh could erode the public’s faith in an impartial judicial branch.
Last Thursday, former Justice John Paul Stevens stunned the Kavanaugh team by saying he was withdrawing his support for the nominee because of Kavanaugh’s combative defense before the judiciary committee.
“They suggest that he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities,” Justice Stevens said during an appearance in a Boca Raton, Fla. “For the good of the court, it’s not healthy to get a new justice that can only do a part-time job.”
To address their new challenge, the White House Kavanaugh team, which had already been running an unorthodox nomination strategy, came up with one more novelty: having Judge Kavanaugh address the temperament issue through an op-ed article.
In the piece, published Thursday by The Wall Street Journal, Judge Kavanaugh wrote, “I know that my tone was sharp, and I said a few things I should not have said.
“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good.”
Judge Kavanaugh’s assurances didn’t overcome Murkowski’s concerns. At a time when the public trust of many government institutions is waning, maintaining confidence in a fair judiciary is essential, she said.
“I believe that Judge Kavanaugh is a good man,” she said, before adding, “I could not conclude that he is the right person for the court at this time.”
Flake, who at times appeared tortured by the process, appeared to be close to his decision to back the judge last Thursday after reviewing the inconclusive FBI interviews. When he emerged from the secure room where the documents were held, Flake said the FBI had not turned up any evidence to corroborate Ford’s allegations. Democrats have said the FBI didn’t interview all relevant witnesses.
Manchin, who’d already concluded the judge would protect pre-existing conditions, came to the same conclusion after reading the FBI reports and conferring with his undecided colleagues.
Republicans said Judge Kavanaugh’s opponents may have overplayed their hand as protesters adopted aggressive tactics. At times, Sens. Rob Portman (R., Ohio) and John Barrasso (R., Wyo.) walked with Collins or Murkowski to provide an extra layer of protection. Collins at one point got a security detail of her own in response to threats.
On Friday, a few hours before her highly anticipated floor speech, McConnell had lunch with Collins in the dining room reserved for senators and their guests.
Collins’s speech marked the point where Judge Kavanaugh crossed the 50-vote threshold. It was a carefully choreographed moment, with two of the Senate’s six GOP women sitting behind her.
Sen. Mike Rounds (R., S.D.) said he had already been planning to watch Collins’s speech from the Senate floor, instead of on television in his office, on Friday afternoon when he got a note from his colleagues asking if he wanted to join them there.