Politics

Kavanaugh’s Fate Will Have a Massive Ripple Effect

Whether or not he makes it to the Supreme Court, the Senate’s logic—much of it paradoxical—is likely to leave a lasting mark on voters.

By David A. Graham
Carolyn Kaster / AP

The paradox of Thursday’s Senate Judiciary Committee hearings is how little and how much change they wrought.

How little, because there was no indication that the testimony from Christine Blasey Ford and Brett Kavanaugh had affected the course of Kavanaugh’s nomination to the Supreme Court. How much, because the civic wounds of Thursday’s hearing seem likely to endure for years, if they ever heal.

The chances of confirmation remain as unclear as they were at 10 a.m. Thursday, with a close final vote expected early next week. Republicans said after a caucus meeting Thursday that the committee would hold votes on Friday and the full Senate would begin voting on Saturday—sticking with the tentative plan before the hearings, and either a sign of confidence or a bluff of confidence. No senators said they had changed their vote based on the day’s testimony, including the presumptive swing votes—Republicans Susan Collins, Lisa Murkowski, and Jeff Flake—and Democrat Joe Manchin.

Further reading: Kavanaugh goes nuclear.

But the hearings were a bigger moment than the mere stakes of a Supreme Court seat—as important as that is. It’s hard to take in the scope of what happened: Ford reliving, in agonizing detail, a traumatic attack from 36 years ago, in front of not just 21 senators but much of the nation, watching on TVs and computers and phones; her quiet and obliging but assured demeanor; Kavanaugh’s furious tirade of an opening statement, blasting the Senate and Democrats in starkly partisan terms; his sniping back at senators, demanding that Amy Klobuchar answer the question she’d asked him; and Lindsey Graham’s irate broadside at his Democratic colleagues.

The anguished responses of women, and many men, to the testimony represent an astonishing aggregation of emotion. It’s not a feeling that is likely to dissipate quickly or easily, even in the swift-moving news environment of the Trump administration. Backlash to Clarence Thomas’s confirmation in 1991, despite allegations of sexual harassment, launched what became known as the year of the woman, in which a slew of female politicians ran and were elected—including Senator Dianne Feinstein, a central character on Thursday.

The Kavanaugh hearings have the potential for an even greater impact. The country is far more divided than it was in 1991, already focused on sexual misconduct and already primed for a wave of women’s electoral victories. Thursday’s hearings were a vast media event, augmented by social media and a politically obsessed country. And the seat on the Supreme Court, with Roe v. Wade potentially at stake, will have greater lasting import than Thomas’s.

Thursday’s hearings were also likely a catastrophe for the Court. Though nominally nonpartisan, it has become increasingly polarized and politicized, along with the rest of the country. The number of Americans who approve of it continues to sink; the number of Americans who believe its decisions are based on politics rather than the law continues to rise, cracking 50 percent in some polls. The fierce fight over Kavanaugh’s nomination would have exacerbated that even before his astonishing opening statement Thursday afternoon, in which he accused his critics of “a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election” and attacked specific senators and called the process “a national disgrace.” It’s difficult to imagine how Kavanaugh could judiciously and disinterestedly rule on a range of issues now. In an earlier hearing, Kavanaugh had expressed concern about the Court appearing partisan. In his brazenly political philippic Thursday, he contributed to that process—whether or not he is confirmed.

And that remains the question. In refusing to withdraw despite the bruising he has taken, Kavanaugh has all but forced the Senate to vote, and the president made it official with a supportive tweet shortly after the judge finished his testimony:

Despite fervid speculation around the Capitol, the votes of the four fence-sitters remain unknown. Manchin is a Democrat, but he is a conservative one, faces a tough race in November, and has often voted with Trump, as when he voted to confirm Neil Gorsuch to the Supreme Court last year. Flake is a Republican and a conservative, but he is retiring and has been a noisy critic of the president. On Wednesday, he delivered an anguished but ambiguous speech, lamenting the Kavanaugh process and saying he needed to hear Ford’s testimony before deciding.

Then there are Collins and Murkowski, two moderate Republican women who sometimes buck their party. Collins was adamant about the importance of hearing Ford’s testimony, and has said she was troubled by other allegations brought against Kavanaugh. Murkowski, meanwhile, explicitly framed the question as one of whether or not women are believed.

“We are now in a place where it’s not about whether or not Judge Kavanaugh is qualified,” she told The New York Times on Monday. “It is about whether or not a woman who has been a victim at some point in her life is to be believed.”

The four swing senators all met Thursday after the testimony and said they remained undecided.

What is remarkable about the close, and indeterminate, vote count is that no one seems to disbelieve Ford’s claim that Kavanaugh attempted to rape her in 1982, or at least no one is willing to say so publicly. For example, Senator John Cornyn, a Texas Republican on the Judiciary Committee, said, “I find no reason to find her not credible.” Questioning by Rachel Mitchell, a sex-crimes prosecutor hired for the task, failed to demonstrate any inconsistencies in Ford’s story or to paint her as a politically motivated opportunist. The best senators could do was to say that they didn’t doubt that something had happened to her, but that they didn’t believe Kavanaugh had done it.

This creates a disjunction: Senators believe that Ford’s testimony is credible, but they still support Kavanaugh’s confirmation to the Supreme Court. That conflict explains why even if Republicans succeed in confirming Kavanaugh, it is likely to be a Pyrrhic victory, at least in the short term. They will get a strong conservative vote on the bench—and one with a chip on his shoulder—likely for decades to come, but they also risk huge voter anger. Public opinion has turned against Kavanaugh, and his angry, equivocating appearance Thursday is unlikely to help. Even before this fracas, Republicans were endangered by defections of white female voters. But some GOP officeholders may have concluded that the damage is already done and they’d rather get their justice while the getting is good.

But voting so soon carries some fresh risks. It’s been less than two weeks since Ford first spoke publicly. New stories about Kavanaugh’s past have emerged in the past several days. The Senate could vote, only to learn some important evidence a day later. Yet many Republicans see all the allegations as just a ploy by Democrats to delay the confirmation process in the hope that they will take over the Senate in November, and they believe—perhaps correctly—that any delay could be fatal to Kavanaugh’s nomination, since doubt is highly contagious in Washington and a delay could make time for new, damaging revelations.

Further Reading: Lindsey Graham’s furious defense of Brett Kavanaugh

If Kavanaugh is confirmed, Senator Graham’s angry outburst late in the hearings may go down as the turning point. Pundits across the political spectrum, as well as many Republicans, deemed Ford’s testimony a disaster for Kavanaugh, and his angry opening didn’t help. But Graham’s counterattack, calling the process an “unethical sham,” seemed to shift the energy and stiffen Republican spines. Democrats, meanwhile, believe they caught Kavanaugh in several lies or dubious claims, but they couldn’t force him to ask for an FBI inquiry, as they attempted to do.

Thus, despite all that happened on Thursday, Friday dawns with the Kavanaugh nomination roughly in the same place it was 24 hours before: steaming forward toward votes and a possible victory but also a possible defeat. American politics, however, will be marked by what happened Thursday for years, if not decades, to come.