In spite of the much-anticipated Thursday hearing on allegations of sexual misconduct against Brett Kavanaugh, the Senate is still expected to take up a vote on his confirmation to the Supreme Court in the coming days.
But there are reports that Republicans are currently short of the 50 votes they need to confirm Kavanaugh’s appointment.
Currently, 43 Republicans have said they will vote in favor of Kavanaugh. Eight remain undecided, saying they will wait for the hearing Thursday, when Kavanaugh and one of his accusers will testify to the allegations of sexual assault. Among those eight, only four are considered to be genuinely up in the air: Sens. Lisa Murkowski (AK), Susan Collins (ME), Jeff Flake (AZ) and Bob Corker (TN).
There are also some big questions around how Democrats will vote. There are currently 10 Democrats running for reelection in red states, three of whom voted in favor of the last Trump-appointed Supreme Court justice, Neil Gorsuch: Sens. Joe Donnelly (IN), Heidi Heitkamp (ND), and Joe Manchin (WV). Whether the allegations of sexual misconduct give those Democrats enough cover with voters in November to stand in lockstep with the Democratic Party remains to be seen. Kavanaugh is historically unpopular — but has left Americans divided on party lines.
One month ago, Kavanaugh seemed almost guaranteed a seat on the nation’s highest court. But in the past two weeks, three women have come forward with allegations of sexual assault and misconduct against him, all dating back to his high school and college days.
Christine Blasey Ford, a Palo Alto University professor, said Kavanaugh pinned her down at a party in high school and tried to take off her clothes and force himself on her. Deborah Ramirez, who went to Yale with Kavanaugh, said he exposed himself to her at a party during freshman year, thrusting his penis in her face. Kavanaugh has denied both allegations aggressively. Ford will testify to her allegations in front of the Senate Judiciary Committee on Thursday.
The day before the hearing, Stormy Daniels lawyer Michael Avenatti posted a sworn affidavit from Washington, DC, resident Julie Swetnick, who says she witnessed Kavanaugh and his friend Mark Judge drink excessively and harass and assault women at high school parties.
Already Republican leaders seem eager to confirm Kavanaugh and move on; they’ve spent the past week saying the allegations are part of a Democratic “smear campaign” and defending Kavanaugh’s character. But with Republicans in control of just 51 seats, Kavanaugh can only afford to lose the support of one senator.
A lot comes down to Thursday.
The four Republican senators who could make or break Kavanaugh’s nomination
1) Sen. Lisa Murkowski (R-AK): Murkowski is seen as perhaps one of the biggest swing votes for Kavanaugh’s confirmation. This week, she emphasized the importance of listening to the accusers.
“We are now in a place where it’s not about whether or not Judge Kavanaugh is qualified,” she told the New York Times Monday night. “It is about whether or not a woman who has been a victim at some point in her life is to be believed.”
On Tuesday, she also told reporters that she sees the merit of an independent FBI investigation into the allegations, something Senate Democrats and the accusers have called for. “It would sure clear up all the questions, wouldn’t it?” Murkowski said.
Even before these allegations, Murkowski’s vote was uncertain. She is one of the few in the Republican Senate conference who supports abortion rights — an issue that was raised heavily during Kavanaugh’s initial hearings.
She has also been under pressure from Alaska’s Native population to reject Kavanaugh’s nomination, out of concern for his positions on health care and American Indian tribes’ rights. A group of Alaskan state lawmakers with a focus on tribal and rural representation, as well as the Alaska Federation of Natives, which represents 20 percent of the state’s population, have come out against Kavanaugh. The president of the AFN reportedly has been meeting with Murkowski throughout the confirmation process.
2) Sen. Jeff Flake (R-AZ): If not for the allegations of sexual misconduct, Flake, a retiring anti-Trump conservative, would likely be an easy vote for Kavanaugh. He is on the Senate Judiciary Committee, and during the hearings, he spoke glowingly of Kavanaugh’s record — though he did seem to have misgivings about Kavanaugh’s record on executive power.
With Ford’s and Ramirez’s allegations, however, Flake has made himself out to be a more concerned party. He, along with Murkowski, Collins, and Corker, called for the Senate Judiciary Committee to delay its vote recommending Kavanaugh and allow for Ford to testify.
On Tuesday, Flake raised the stakes of his vote even higher and said, “Obviously, if you believe the charges are true, then you vote no.” During floor remarks on Wednesday, he appeared to suggest that he was planning to weigh Ford and Kavanaugh’s testimony before deciding how he’ll vote.
“I will have to listen to the testimony before I make up my mind about the testimony,” he said. “I hope that tomorrow’s hearing gives us some guidance on how we are to vote.”
Essentially, Flake seemed to say that by Thursday, he has to decide whether Kavanaugh is a liar, or whether both of these accusers are. Flake has worked to establish himself as having a moral high ground in the age of Trump, announcing his retirement with a scathing speech denouncing Trump’s ethics. Whether that strain carries through the confirmation process remains a major question.
3) Sen. Susan Collins (R-ME): Collins, like Murkowski, has been pegged as a potential swing vote since Kavanaugh was nominated, in large part due to her support of abortion rights. But Collins has seemed largely comfortable with Kavanaugh on that front, saying she was confident he would not overturn Roe v. Wade, which guarantees a right to abortion in the US.
On the allegations of sexual misconduct, Collins has been clear that she believes Ford and Ramirez should be heard. She called on Ford to testify and said Ramirez should talk under oath with committee staff members as well. But Collins has been reluctant to say with certainty whether she finds their allegations credible.
Most recently, she floated what appears to be a right-wing conspiracy theory about Ford’s yearbook with reporters after images of Kavanaugh’s high school yearbook page were released.
“There are so many rumors that there are issues with Christine Ford’s yearbook as well,” Collins said. “I don’t know whether that’s accurate or not. I don’t know what to make of someone’s high school yearbook.”
It’s not clear specifically what Collins was referring to when she said “rumors.” But Alex Jones of Infowars has spread uncorroborated photographs of what appears to be a yearbook from Holton Arms, Ford’s alma mater, and called Ford a “hussy” in her high school days.
Asked if Collins was talking about the Alex Jones “rumors,” Collins’s spokesperson said:
“Senator Collins was referencing the rumors in circulation about both Judge Kavanaugh and Dr. Ford. She believes that Dr. Ford’s allegations are serious and should be heard by the Senate Judiciary Committee. ”
4) Sen. Bob Corker (R-TN): Corker is also on the list of potential “no” votes, in large part because of his early calls for a hearing and for Ford to testify.
However, in the past week, he has said that he has no reason not to believe Kavanaugh’s denials and emphasized that he does not know Ford. He also said he does not see a way to investigate 35-year-old claims.
There are still undecided red-state Democrats
5) Sen. Heidi Heitkamp (D-ND): The North Dakota senator is one of three who voted for Gorsuch last spring. While her office told Vox’s Dylan Scott early this week that she remains undecided, Heitkamp has also been vocal about the importance of Ford’s testimony and of listening to women who have made allegations about sexual misconduct.
“It takes courage for any woman to speak up about sexual assault, and we need to respect Prof. Ford by listening to her and hearing her story,” Heitkamp wrote in a statement on Twitter.
On the one hand, Heitkamp is among a group of red-state lawmakers who are in the fight of their political lives in this upcoming midterm election — and Republicans have been hammering her on the Kavanaugh vote as a wedge issue that could influence more conservative voters. On the other hand, the sexual misconduct allegations have actually provided red-state Democrats the political cover they need to justify a vote against him.
“North Dakotans expect more of their elected officials than partisan judgements,” Heitkamp said in a previous statement about Kavanaugh’s nomination. “Politics should not be part of the vetting process or the decision-making process.”
6) Sen. Joe Donnelly (D-IN): Donnelly is another Democrat who broke ranks last year to back Gorsuch and could do the same this time around. He’s previously called for a delay in the Judiciary Committee’s vote in the wake of Ford’s allegations, however, and he’s also said that both Ford’s and Ramirez’s accusations warrant an FBI investigation.
“The allegations raised by Dr. Ford and Ms. Ramirez against Judge Kavanaugh are serious, merit further review, and I believe should be investigated by the FBI,” Donnelly said in a statement. “I will continue to get as much information as I can, including by following Thursday’s scheduled hearing.”
Given his emphasis on the hearing, it’s likely that his impressions of Ford’s and Kavanaugh’s testimonies will be a key factor in how he ultimately decides to vote.
It’s also important to note that Donnelly is an anti-abortion Democrat, so he may not object to Kavanaugh over fears of overturning Roe v. Wade.
7) Sen. Joe Manchin (D-WV): Manchin is the third Democrat who crossed party lines in the Gorsuch vote. He’s known for his independent streak and previously quipped that he is not susceptible to being whipped by Senate Minority Leader Chuck Schumer in order to vote a certain way. “I’ll be 71 years old in August, you’re going to whip me? Kiss my you know what,” Manchin said earlier this summer.
Manchin has also said he thinks Kavanaugh deserves a “right to clear himself” during Thursday’s hearing. “All this is extremely serious and we take it very serious, but again these are allegations that are made and they have to come forth and prove their statements and he has a right to clear himself,” Manchin said on Tuesday, according to a report from Talking Points Memo.
Apart from the sexual misconduct allegations, Manchin has expressed concerns about the possible effect Kavanaugh could have on protections afforded to people with preexisting conditions guaranteed by the Affordable Care Act. Given a Texas lawsuit that’s winding its way through the courts, it’s very possible that there will be another challenge to the ACA that the Supreme Court will have to consider.
Manchin has said he’s particularly interested in how Kavanaugh would rule on this matter. “The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare,” he’s said. “This decision will directly impact almost 40 percent of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.”
8) Sen. Jon Tester (D-MT): Tester may not have voted for Gorsuch, but he is among the slate of Democrats who are seen as vulnerable in this year’s upcoming midterm elections. A vote against Kavanaugh could be levied against him as November approaches — even if the effectiveness of such an attack has been diffused somewhat. Tester has said the sexual misconduct allegations are one of several issues on a “long list” that he’d like to talk over with Kavanaugh. Others include abortion rights and campaign finance.
“Look, we’re paying close attention to the allegations. I’ve got other issues too that I want to talk to him if we can ever get an in-person [meeting] with him,” Tester said, according to the Washington Examiner. “We’ve got a long list. And these allegations will also be a part of it.”
Tester has emphasized, too, that he thinks additional pieces of Kavanaugh’s full record should be released and pushed for a more comprehensive trove of documents in August. “I pledged to Montanans that I would thoroughly review Judge Kavanaugh’s record by studying his perspective on the laws of our nation, our Constitution, our civil liberties, and the values that are important to Montanans,” he said in a statement at the time.
9) Bill Nelson (D-FL): Like Tester, Nelson voted against Gorsuch and has largely expressed concern with Kavanaugh’s nomination — especially with how McConnell has tried to push through the confirmation process even in light of multiple allegations of sexual misconduct. He’s called for an investigation into the allegations.
Nelson, too, says he could not schedule a meeting with the nominee. “I have tried to see him for months. That is the respectful thing to do. And I am tired of waiting,” he said last week. “I’m ready to make my decision next week and especially if they deny me access to the judge.”
That said, unexpectedly, Nelson is among the most vulnerable Democratic senators in the 2018 midterm cycle. He has consistently polled within the margin of error against Florida Gov. Rick Scott, in a state that’s remained bullish on President Trump.