Three Questions After the Ford-Kavanaugh Hearings

Dr. Christine Blasey Ford

I have been, almost to a tee, silent on the Brett Kavanaugh hearings and nomination.  I have a variety of reasons for this, not least of which is because it's too depressing to discuss (I still cannot believe most days that Donald Trump is the president), and also because I didn't really feel like I had anything to add that would be sustainable and interesting.  But I have been texted enough today and asked enough questions to want to address a few things on the blog.  I will state that while I have watched clips of the questioning of both Dr. Ford and Judge Kavanaugh today, I didn't watch all of it, and likely won't.  I believe Christine Blasey Ford, and am in awe of what she did today, with the whole country watching and a team of senators trying to undermine her at every turn.

There are countless questions regarding the psychology of this event, of senators deferring their constitutional duty to question Dr. Ford to try and avoid questioning in the future was smart politics or exceedingly dumb (I personally think it was idiotic and will ring as hollow, but considering Sen. Hatch calling Ford "attractive" afterwards, perhaps they played this wisely by involving Rachel Mitchell, whose line of questioning was odd, and it wasn't entirely clear by the end whether or not she was a stooge of the Republican Party or whether she was playing the odd path of a prosecutor, planning on eventually handing this over to Maryland prosecutors, as there is no statute of limitations on this crime in the state), but I'm not going to tackle those as I'm not well-equipped to do so.  Nor am I going to speculate wildly about what happens next-whether this will go to a trial for Kavanaugh or whether, after today, the Senate GOP will feel forced to bring in other witnesses (specifically Mark Judge) or let the other Kavanaugh accusers (specifically Deborah Ramirez and Julie Swetnick) will also be given some chance to testify.  It's impossible to say how Sen. Chuck Grassley, who appeared angry at being asked to do this hearing in the first place, will proceed from here, or whether this all will be voted upon and buttoned up by Sunday.

What I do plan on discussing is three questions.  The first, after today, which senators feel most likely to be a "no" vote on Kavanaugh, and will that be enough to tank his nomination?  Secondly, what happens next if Kavanaugh is not confirmed?  And third, what impact (if any) will this have on the midterm elections?  These feel like the most common questions I was getting texted about, and the ones that I most want to address today.

Sen. Susan Collins (R-ME)

1. What Senators are Possible No Votes?

Whip counts, particularly when it comes to yes votes, are harder to find than you'd think.  That's because many Republicans who may have voted for Kavanaugh yesterday may not have today.  It's hard to imagine that he helped his case by seeming angry, frequently lashing out at senators (particularly female senators like Dianne Feinstein and Amy Klobuchar) in regard to senators that were on the fence.  But based on what I've seen, there are roughly a dozen senators whose votes are still up for grabs after today, and I suspect only 2-3 of them will really matter.

The first group is Democrats who have not made public statements that they are against Kavanaugh, specifically six senators who are in Trump-won states: Bill Nelson (FL), Jon Tester (MT), Doug Jones (AL), Heidi Heitkamp (ND), Joe Manchin (WV), and Joe Donnelly (IN).  As a reminder, the latter three all voted to confirm Neil Gorsuch, the only Democrats to do so (though it's worth noting that Jones was not a member of the US Senate at the time of Gorsuch's appointment).  This would make them the most likely to buck the party line and vote for Kavanaugh.  Based on public statements, I would be surprised if Jones or Nelson voted for Kavanaugh, as Nelson seems frustrated by not being granted an audience with Kavanaugh and Jones has called for an FBI investigation.  The remaining four are worth watching, but it's also worth noting two things.  First, it's likely not to their political advantage to vote for Kavanaugh with their quickly-approaching elections, despite the red nature of their state.  Despite the heated rhetoric from both sides, it's probable that the actual, winnable votes for these four senators are not people who will vote for them anyway if they vote for Kavanaugh, and they risk their base if they cast a vote in favor of him.  Secondly, it's doubtful that their votes are ultimately going to matter.  If two Republicans bolt, the pressure on them to also decline Kavanaugh will be so enormous that they'll almost certainly buck using the assault allegations as a guise to ensure that they get a better deal, or perhaps even don't have to cast a vote before Election Day at all.

No, the names that matter the most are the six Republican senators that seem the most gettable: Lisa Murkowski (AK), Susan Collins (ME), Ben Sasse (NE), Jeff Flake (AZ), Bob Corker (TN), and Shelley Moore Capito (WV).  I know that Democrats get quickly cynical about all of these senators as they do, generally, side mostly with their party line.  But they all have various reasons to potentially want to vote no on Kavanaugh.  The most likely "no" has been for weeks Lisa Murkowski.  Murkowski may have been a "no" vote even without the Ford allegations, mostly because of Kavanaugh's views on Native Alaskans' rights, a group that helped elect Murkowski in her 2010 write-in campaign, something she hasn't forgotten.  My bet was before today that Murkowski was the only "no" vote on the menu, and while I think it's more likely now someone else bolts, I still think she's the one that Mitch McConnell will let go without a fight.

The remaining five are a hodgepodge.  Flake & Collins have received most of the focus, and this is probably correct.  Flake has bemoaned this entire process, and will show his cards early tomorrow when he votes on whether to advance the nomination to the floor of the Senate.  He has nothing to lose (same as Bob Corker) as he's likely torched his political career thanks to his criticism of Donald Trump, but he's also a very conservative senator who agrees with Kavanaugh politically but isn't willing to give him a chance because of the allegations.  Collins is not as conservative as Flake, and like Murkowski is pro-choice, but seemed to be looking for an excuse to vote "yes," though it's doubtful she got it today.  Collins is arguably one of the only senators who I think will suffer directly from a "no" (more on that in a second), and she's still my bet for a second "no" if there is one-she's too smart to realize that she'd be casting a vote for a potential sexual assaulter who would be able to overturn Roe.  It's clear at this point that Collins would prefer not to cast a vote at all, and this might be true for all six Republicans.  The others I listed are Corker (highlighted by the media, and like Flake someone who has nothing to lose and may want to stick it to Donald Trump even if he and Kavanaugh agree on most political issues, but not one I take all that seriously), Sasse (same as Corker, except he still has a career ahead of him), and Capito (whose name circled most of the morning as a "no" vote no one was thinking about).  Capito is intriguing because it may indicate that the Senate Republican women don't want to take this vote and might be willing to vote as a bloc; it's worth considering that Joni Ernst, Deb Fischer, and Cindy Hyde-Smith could all be potential no votes, though I struggle to believe the latter two would want to risk Trump's wrath so close to their election campaigns, and may only push to kill the nomination behind the scenes.

That's because the biggest thing that felt true after today was that Donald Trump will continue his support for Kavanaugh.  Kavanugh did everything he could for his audience of one, berating the process, insulting the attackers, and lambasting the Senate Democrats in the process.  Trump loved that, and as Trump's support was crucial for this nomination to continue, it's difficult to imagine these people not getting a vote at this point.  As a result, I'll be real here-I'm expecting a 50/50 split for Senate votes, with Murkowski and all of the Senate Democrats going against Kavanaugh, and Susan Collins losing her Senate seat in the process, while Mike Pence gives a criminal a seat on the Supreme Court.  It's sad, but true.

Justice Brett Kavanaugh

2. What Happens if Kavanaugh is Not Confirmed?

The reason for that predictions is the answer to this question.  Let's say that tomorrow a group of Republican senators go to McConnell and say "enough is enough, we're not taking this vote."  There are 38 days until the next election, and that's assuming this happens tomorrow.  That is, almost certainly, not enough time for the Republicans to get a second nominee through before the election, and that presents a mountain of risks to Mitch McConnell.

For starters, today's hearings almost certainly did damage to the GOP.  We'll get to it more in-depth in a minute, but no swing voters watched Christine Ford and Brett Kavanaugh today and were more inclined to keep Republicans in charge of the Senate.  Either you got further into your current camp or you had to think "there should be a better process."  So if Mitch McConnell really wants to take the Supreme Court, his majority be damned, his best bet is Brett Kavanaugh, as the clock is moving too slowly for him not to do so.  No Supreme Court nomination since Sandra Day O'Connor's has taken less than 38 days, and this would be coming after a severely-tarnished nominee was removed, it would be with a president who would be irate that the Senate Republicans threw his nominee under-the-bus (for charges, it's worth noting, that are quite similar to ones that Donald Trump has received during his career), and they'd still have to go through the process of a new nominee.  All of this before the election.

McConnell might see a silver lining here.  The nomination of someone like Amy Barrett might hurt a Joe Manchin who would refuse to say whether he'd vote for her before the election, but that's betting a lot on a Supreme Court seat when normal people generally don't vote thinking about such things, and it's doubtful he could keep Donald Trump disciplined enough to stick to that message until Election Day anyway.  And then after Election Day, all bets are off.  If the Republicans hold the Senate, nothing much happens, but let's say for the sake of argument that the Democrats take the Senate.  At that point, a different clock starts up, because as of tomorrow there's only 97 days left until the next Congress is sworn in, and if that were the case Chuck Schumer and Dianne Feinstein might be running the judicial process.  What incentive at all under such a scenario would Heitkamp, Manchin, and Donnelly have to support Trump's nominee?  They've just been elected to six-year terms, and are smart enough to know that their voters won't give a crap in six years if they voted against Trump's nominee during a lame duck session (they might have to endure a few months of bad approval polls, but these are seasoned politicians who can see the forest for the trees, and wouldn't bother about such things).  McConnell would also be openly flouting the American will at that point, and while he probably wouldn't care, Schumer would be emboldened to throw every parliamentary trick in the book at McConnell, knowing that once he took charge he could hold this nomination up for a President Harris or Biden, or at least force Trump to pick someone like Merrick Garland to sit on the Court.  Add in that most of that time period is filled with scheduled holidays for the Senate, that McConnell would theoretically be risking his own reelection by pursuing such an agenda, and the fact that, assuming that it's not tomorrow but a week or two from now that this whole process would start under such a scenario (meaning a quickly-rushed Senate hearing), and you suddenly see why McConnell's willing to sacrifice so much for Kavanaugh, who would be DOA if it was April instead of late September.

Sen. Dean Heller (R-NV)

3. Will This Impact the Midterms?

My gut says yes, but it's hard to say.  The Democrats already had solid momentum so there's only so much wind that can be at their backs, but it has to be noted that Anita Hill's testimony, which happened over a year prior to the elections, galvanized a group of women to run for (and win) seats in Congress, and that Kavanaugh is way, way less popular than Clarence Thomas ever was.  The Democrats are poised for this-they have a huge number of female candidates already out there that might galvanize moderate and conservative women whose numbers with Trump have been waning in recent weeks.  As a result, I think that the Republicans might also go with Kavanaugh because they've already walked the plank, why not make the jump?

Some races that feel very specifically important to this conversation include Nevada, where Sen. Dean Heller (whom I didn't mention above for a reason, specifically that there's no way he bucks Trump as he's in too deep) seems doomed at this point.  It's a Clinton state, and he's running against a pretty innocuous opponent; it reminds me a lot of Oregon in 2008, where Gordon Smith was well-liked but his party was anathema to voters and so he lost to a generic Democrat.  Democrats in places like Virginia, Iowa, and other states that would have seen a lot of coverage of these hearings will surely get a boost, and I would imagine that straight-party voters who have given moderate Republicans a chance in the past (in places like MN-3 and CO-6) will be more empowered to place a check on Donald Trump after today considering Mitch McConnell clearly isn't doing that.  This is of no concern to Kavanaugh, who just wants to win for himself, and it's probably not of concern to Donald Trump who only sees the current fight & has no time for the future, or perhaps even is of no concern for Mitch McConnell, who has made the federal judiciary his longtime legacy...but it is of concern for Republicans who might be willing to give up the majority to win the Supreme Court, but not their own seats.  I said I'd get back to Susan Collins, but her reputation as a moderate is in tatters right now and likely to fall apart if she votes for someone Democrats in her state view as a rapist.  Few people love being a senator as much as Susan Collins (and will only be 68 in 2020, a relatively young age for someone who probably wants another term), and she has to see that her approval ratings are faltering and that a tough election, her first since 1996, is on the horizon.  Her hero, Margaret Chase Smith, also lost after a storied career as a popular senator, mostly because she lost touch with her constituents.  Will she see the similarities and vote "no," thus putting this process into chaos?  We'll see, but it's probably the best case scenario for any Democrats hoping to block Kavanaugh.