We may be in a grey area when it comes to what’s next for the nomination of Brett Kavanaugh for the Supreme Court.
After the allegations against Kavanaugh made by Christine Ford, the White House says it won’t yank the nomination and may even gird for battle. A spokesman for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says aides are working to set up additional calls with Kavanaugh and Ford “ahead of Thursday’s scheduled vote.”
In other words, GOP leaders aren’t backing down from a committee vote on Kavanaugh Thursday and an effort to confirm him on the Senate floor by the middle of next week.
Here’s the problem:
Multiple Republicans have indicated that they want to slow the process until they thoroughly addressed Ford’s charge and not just blindly charged ahead with the confirmation.
“I’m uncomfortable moving forward with a yes vote until we hear from (Ford),” said Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee. Fellow Judiciary Committee member Sen. Lindsey Graham, R-S.C., also urged caution. But Graham wasn’t in favor of a pause.
“If the committee is to hear from Ms. Ford, it should be done immediately so the process can continue as scheduled,” said Graham. “If Ms. Ford wishes to provide information to the committee, I would gladly listen to what she has to say and compare that against all other information we have received about Judge Kavanaugh.”
Multiple Democrats demanded the committee to bring the confirmation process to a screeching halt.
“Sen. Grassley must postpone the vote until, at the very minimum, these serious and credible allegations are thoroughly investigated,” said Senate Minority Leader Chuck Schumer, D-N.Y. “To railroad a vote now would be an insult of the women of America.”
What happens now is unclear. It’s unknown if Ford is willing to appear in person or just how thorough senators need to be with her allegation. But it wouldn’t take much to throw things off kilter for those hoping for a quick confirmation. Plus, there’s risk for the GOP if it fails to take Ford’s allegations seriously or account for what she has to say. We’re in the Me Too era now. Republicans ignore Ford at their own peril less than two months before the midterm elections. GOPers know they could face a backlash at the polls if they misplay their hand.
The Judiciary Committee is split nearly-evenly between Republicans and Democrats: 11 GOPers. 10 Democrats. Flake already wants to tap the brakes. But frankly, a committee vote doesn’t mean much. Let’s say Grassley marches ahead regardless. Would Flake and other Republicans vote in opposition in committee to Kavanaugh’s nomination? Possibly. But that means very little for the actual confirmation.
It’s not written anywhere in the Constitution or the Senate rules that Supreme Court nominees require a successful committee vote before heading to the floor. On October 6, 1987, the Senate Judiciary Committee voted 9-5 against a favorable recommendation for Supreme Court nominee Robert Bork. The committee then voted 9-5 to send Bork’s nomination to the floor with an unfavorable recommendation.
The full Senate later followed the committee lead, rebuffing Bork, 58-42. Bork became only the 11th High Court nominee rejected by the Senate in the history of the republic.
In 1991, the Senate Judiciary Committee deadlocked 7-7 to send the nomination of Supreme Court Justice Clarence Thomas to the floor with a favorable recommendation. The committee then voted 13-1 give Thomas no recommendation.
The Senate later voted to confirm Thomas, 52-48.
One can see how Kavanaugh could struggle to receive a favorable or even no recommendation from the Judiciary Committee with just a one vote GOP advantage.
So why do committees even bother with a recommendation? Not all senators sit on each committee. Senators take into account the disposition of committees who adjudicate nominees for a panoply of positions, ranging from the Supreme Court to ambassadors to Assistant Undersecretaries for Insular Affairs. Committee positions on nominees holds a lot of sway with senators.
But properly hearing from Ford may consume time. That’s why, nestled in the back of everyone’s mind, is what unfolded in 1991 with Thomas and Anita Hill.
In late September, 1991, the Judiciary Committee concluded its hearings with Thomas and sent his nomination onto the floor, without recommendation. That’s when allegations surfaced from Hill. She accused Thomas of sexual harassment when they worked at the Equal Employment Opportunity Commission (EEOC).
After much consternation, the Judiciary Committee re-opened the hearings and invited Hill to testify in a dramatic, public session. The panel heard again from Thomas and other witnesses. Thomas famously characterized the hearings “a high-tech lynching.”
History may not repeat itself. But as the author John le Carre wrote, “Tomorrow was created yesterday…and the day before yesterday, too.”
Those pushing for a quick, painless confirmation of Kavanaugh know that what happened with Thomas’s confirmation could be a problem. In fact, those hearings constitute what was really the first chapter in the Me Too movement. Republicans are wary of being portrayed as indifferent to Ford’s assertion.
The allegations made against Kavanaugh are unfolding in an eerily similar fashion to the way Hill leveled charges against Thomas: between the end of the hearings and a floor vote. The Kavanaugh accusations even hit at nearly the identical points on the calendar.
The committee vote could be the least the GOP and Kavanaugh’s worries.
Republicans hold a narrow 51-49 advantage in the Senate. Most Republicans are on the record as supporting Kavanaugh. But the nominee doesn’t have the votes on the floor to score confirmation yet. Sen. Susan Collins, R-Maine, has not announced her position on Kavanaugh, but fellow moderate Sen. Lisa Murkowski told CNN that she is open to the delay.
“If there are more questions that need to be asked and answered, then I think it would be appropriate for that time,” she said.
Collins just spent an hour on the phone with Kavanaugh Friday. It was a follow-up to questions the Maine Republican had after sifting through the nominee’s documents.
The call was scheduled prior to information arising about Ford. Collins discussed the accusations with Kavanaugh on Friday.
The office of Senate Majority Leader Mitch McConnell, R-Ky., said Sunday there were no changes to the schedule regarding Kavanaugh. So, if things go as planned – even if Kavanaugh scores an unfavorable rating by the committee or no recommendation at all, the Senate GOP brass hopes to hold a procedural vote to break a filibuster on the nomination around Monday, September 24.
The confirmation vote on the floor would presumably hit around Wednesday, September 26.
It’s not clear yet of Christine Ford’s charges could stall or derail Kavanaugh’s nomination. But the Senate now floats in a grey area. It’s a little bit like what happened when Anita Hill came forth in 1991. And with the midterms around the corner, Republicans worry privately about missteps with Kavanaugh and Ford could reverberate at the ballot box.