Commentary Law and Policy

Kavanaugh’s Performance Thursday Shows How Much of a Gamble Republicans Are Taking With His Nomination (Updated)

Jessica Mason Pieklo

The fact that Judge Brett Kavanaugh has not backed down is both mystifying and totally believable in the age of Trump’s “grab them by the pussy” ethos.

UPDATE, September 28, 5:30 p.m.: Late Friday afternoon, President Donald Trump ordered the Federal Bureau of Investigation “to conduct a supplemental investigation” into the sexual assault allegations against Brett Kavanaugh, he said in a statement. “As the Senate has requested, this update must be limited in scope and completed in less than one week,” Trump said.

UPDATE, September 28, 1:57 p.m.: Republicans on the Senate Judiciary Committee on Friday approved Brett Kavanaugh’s nomination to proceed to the full U.S. Senate. All ten Democrats on the committee voted against Kavanaugh.

Maricopa County prosecutor Rachel Mitchell had one job to do for Senate Judiciary Committee Republicans on Thursday when questioning Christine Blasey Ford on their behalf: create doubt around Ford and her attempted rape allegations against U.S. Supreme Court nominee Judge Brett Kavanaugh.

Mitchell really did try to poke holes in Ford’s testimony and impugn her credibility. But Ford’s testimony was steady. It was earnest. She often offered to provide more detail in an answer than Mitchell’s question called for, a move that undoubtedly made litigators watching cringe.

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By contrast, Kavanaugh’s testimony was combative and aggressive throughout much of the day. It was almost immediately clear that he simply could not withstand even the slightest bit of scrutiny from Senate Democrats. So following only a few questions from Mitchell, Senator Republicans took over—a clear attempt to salvage Kavanaugh’s nomination, and one that will almost undoubtedly work.

Republicans’ initial strategy was straightforward. They hired Mitchell to question Ford in their place, likely in part to avoid the optics of an all-male panel essentially cross-examining an assault survivor. I think it was probably also to guard against the almost certain possibility that one of the Republican committee members would attack Ford directly during her testimony, a risky proposition with midterm elections around the corner.

Mitchell tried her best to fulfill the plan. She jumped from topic to topic in her questioning of Ford, a tactic often used by attorneys when they are trying to trip up a witness and get them to provide inconsistent testimony. At one point, she peppered Ford with questions about her anxiety around flying. Mitchell wouldn’t let this issue go. Ford had originally refused to travel to Washington, D.C., to meet with Senate Judiciary Committee members once her allegations were made public, citing her fear of flying as one reason. But then she acknowledged in her testimony Thursday that it was probably unrealistic to think she could avoid traveling to Washington to answer committee questions. 

Ford also enjoys taking vacations and often takes planes to do so, a point Mitchell hammered as a way to question the veracity of her allegations against Kavanaugh. After all, she flies all the time! She flew to D.C. now! Why would she refuse to do so earlier, as Republicans had also argued, if not to draw out the proceedings as long as possible?

Mitchell also wanted to know who was paying for Ford’s lawyers. Trying to develop a narrative of Ford as a political operative, Mitchell pressed: Who paid for the polygraph she took about her allegations? That narrative is one Republicans have pushed and one Kavanaugh himself put forward in his own testimony when he suggested Ford’s claims were some kind of “revenge” for a failed Hillary Clinton presidential campaign. That was a truly weird moment in a day full of them. It’s one thing to have a reality-TV president like Trump spouting half-baked Reddit threads as fact. It’s another to have a potential Supreme Court justice doing so. 

But throughout it all, Ford remained composed, even when her voice wavered with emotion.

Kavanaugh, meanwhile, spent much of his afternoon in an apparent fury. He accused senators of taking longer than necessary to hold a hearing to give him an opportunity to “clear his name,” a point Trump had made to reporters when asked about the fate of his nomination just the night before. 

And if the optics of Senate Republicans grilling Ford could have been bad for them, the optics of Kavanaugh getting combative during his testimony were worse. He shouted and interrupted Democratic senators while claiming his innocence. He was indignant and partisan, hardly the desired temperament for a Supreme Court justice.

That Kavanaugh has not backed down is both mystifying and totally believable in the age of Trump’s “grab them by the pussy” ethos. Republicans didn’t need this fight. They have the votes to confirm basically anyone to replace retired Justice Anthony Kennedy. It’s baffling that they’ve not pulled Kavanaugh’s nomination and replaced it with damn near anyone else. 

But as Trump’s election showed, allegations of abusing women—even a lot of them—are hardly impediments for the right. That may also prove true in the midterms. And that’s the ultimate gamble Republicans are taking with the Kavanaugh nomination. He simply needs to withstand the political storm long enough to get through a committee and cloture votes. Republicans have the numbers to confirm him if they all hold ranks.

The Senate Judiciary is scheduled to vote on Kavanaugh’s nomination Friday morning and a full Senate vote could happen as soon as Saturday. So far, no Republican senator has shown credible signs of voting against him.

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