WASHINGTON — No matter whether Brett Kavanaugh is ultimately confirmed to the Supreme Court or not, the Kavanaugh-Ford hearing has inescapable consequences for the future of the court, the #MeToo movement and the partisanship that has driven us to this point. Yesterday was about raw partisan warfare, credibility and credentials, and the behavior we allow and expect from men and women. And it was an ugly day for Congress and American institutions.
As Dan Balz of the Washington Post put it, “Whatever anyone intended, Thursday’s hearing before the Senate Judiciary Committee devolved into the worst of Washington. It was a partisan brawl on steroids that will leave the country more deeply divided than before.”
Here are six takeaways.
1. Searching for consensus is a loser in today’s politics.
The old saying is that the Senate is the world’s greatest deliberative body, but yesterday’s bitterness was as nasty as the House floor on its worst day. For an older generation of political professionals and media, winning in Washington used to be all about finding consensus and blurring the lines between the base and the middle. The strategies of both parties yesterday showed that the new way to win in Washington isn’t to find middle ground, it’s to draw the rawest and brightest contrast and then force the middle to pick a side.
2. Kavanaugh's partisan battle cry may have the most lasting repercussions for the reputation of the court
As soon as Kavanaugh was nominated, the most glaring issue for his critics was that — with his views of executive power and particularly his work on the Starr report — he would forever be seen as a partisan player rather than an impartial judge. After using the phrases "pent-up anger about President Trump and the 2016 election," "revenge on behalf of the Clintons" and "what goes around comes around" in his opening statement, can he fairly say he will rule impartially on any case involving Trump or congressional Democrats?
3. The hearing was the ultimate collision of Trump’s rise and the #MeToo movement
The Access Hollywood tape. The accusations of sexual harassment against Donald Trump. Trump’s defense of Roy Moore, Roger Ailes, Bill O’Reilly and others. The Trump era has had plenty of moments that illustrate how the president views allegations of sexual misconduct.
But this hearing, which featured a previously unknown woman making a specific allegation of assault against a powerful Trump nominee, was the ultimate juxtaposition of Trump’s attitudes with the post-Weinstein #MeToo movement. And ultimately, voters' thoughts about who’s telling the truth will probably be most influenced by their own feelings and experiences about Trump and about the prevalence of sexual harassment.
4. If Kavanaugh’s not confirmed, the fever won’t break — it’ll probably get worse
The president made clear in his press conference this week that, if Kavanaugh is not confirmed, he believes that Democrats will fabricate new attacks on his next nominee. Sen. Lindsay Graham, R-SC, doubled down on that yesterday when he warned: “Boy, you all want power. God, I hope you never get it. … This is going to destroy the ability of good people to come forward because of this crap.”
Republicans have been careful not to malign Dr. Ford directly while questioning her memory of the alleged assault. But this whole process further solidifies that any complaint against any nominee, fair or not, will be painted as character assassination for partisan reasons.
5. Kavanaugh benefited immensely from testifying second
Ford's attorney's reportedly fought to have her testify after Kavanaugh's appearance, and it's easy to see why. Ford's testimony was compelling and believable, and the uneasiness from Republicans during and immediately afterwards was clear. But Kavanaugh's ability to have the last word left potentially persuadable senators with his claims fresh in their minds.
By the way, the contrast in Ford’s collegial demeanor and Kavanaugh’s anger (like his eye-raising exchange with Amy Klobachar about drinking) was striking. He was certainly taking a page from Clarence Thomas’ righteous anger in 1991, but women — even those sympathetic to Kavanaugh — probably didn’t miss the implications for how women must act in order to be believed.
6. Kavanaugh’s reluctance to directly address an FBI investigation remains a major weak spot
In his opening statement, Kavanaugh said this: “When this allegation first arose, I welcomed any kind of investigation, Senate, FBI or otherwise. The committee now has conducted a thorough investigation, and I’ve cooperated fully. I know that any kind of investigation — Senate, FBI, Montgomery County Police — whatever, will clear me.” But when Democratic senators pressed on the FBI question, he repeatedly deferred to “whatever the committee wants to do” and reiterated that the FBI doesn’t “reach conclusions.” In contrast, his named accusers have asked for an FBI investigation. (The American Bar Association, whose recommendation Kavanaugh mentioned numerous times yesterday, is now calling for the same.)
If the standard for senators on the fence is to be free of doubt about Kavanaugh’s credibility, why not outsource questioning to the FBI — particularly questions to Mark Judge?
Democrats’ missed opportunities — and unanswered questions about Kavanaugh’s calendars
Another thing that struck us yesterday was just how empty questioning from the Democrats on the committee was. With some exceptions (Klobuchar comes to mind), they mostly lectured Kavanaugh and their Republican colleagues rather than trying to land a punch. One obvious question not asked: Why do you think Dr. Ford is so certain that it was you? Another: Why couldn’t your July 1 calendar entry, which references some of the individuals Dr. Ford named, be the event in question? The GOP-hired attorney — who ironically did more damage to Kavanaugh than any Democratic senators — got close to addressing that July 1 question, but then Graham stole the show.
Does the party that 'wins' the Kavanaugh fight lose in November?
Beyond the immediate question of Kavanaugh’s confirmation, the question that every candidate on the ballot this fall has is: How will voters react to all this? Can Democrats get more fired up than they are? Could the already-huge gender gap between Republicans and Democrats get any wider? Did Lindsey Graham’s monologue become the call to arms for the GOP base, pushing pro-Trump voters to go to the polls and reward the party with more seats? Or does an affirmative confirmation vote keep conservatives home because they’ve already “won”?
Here’s the state of play as we await what happens next on the nomination
With the hearings over, Republicans (as of this writing) are forging ahead with a meeting this morning and planned votes on Kavanaugh’s confirmation this weekend. Here are the other developments since the hearing ended last night:
- Alabama Democratic Sen. Doug Jones is a no: “The Kavanaugh nomination process has been flawed from the beginning and incomplete at the end. Dr. Ford was credible and courageous and I am concerned about the message our vote will be sending to our sons and daughters, as well as victims of sexual assault.”
- Retiring moderate Republican Sen. Bob Corker is a yes: “While both individuals provided compelling testimony, nothing that has been presented corroborates the allegation.”
- The American Bar Association, which unanimously voted last month that Kavanaugh was “well qualified,” called for a delay: “Deciding to proceed without conducting additional investigation would not only have a lasting impact on the Senate’s reputation, but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court.”
Reminder: Only the White House can ask the FBI to conduct an investigation
Here’s a reminder of what NBC’s Pete Williams and Ken Dilanian wrote earlier this month about who has control over an investigation. “In fact, the FBI could certainly investigate Ford's claim, but only if the White House asks the bureau to do so. She has no authority to request it. Neither does the Senate. When the FBI conducts a background investigation of a presidential nominee, it vacuums up all kinds of information about the nominee, including claims from people interviewed by agents, and dumps it into the file. It does not, however, investigate whether or not derogatory information is true — unless it's asked to follow up by the White House. Several current and former Justice Department and FBI officials say this has always been the practice, and there is actually a longstanding formal memorandum of understanding between DOJ and the White House that specifies these limits.”
And the latest on the showdown between House Republicans and DOJ
From NBC’s Mike Memoli: “The House Judiciary Committee on Thursday formally demanded that the Justice Department turn over two sets of classified documents related to its counterintelligence investigation into Russian interference in the 2016 election, setting up yet another potential showdown between GOP lawmakers and top law enforcement officials including Deputy Attorney General Rod Rosenstein.”
More: “[T]he subpoena also included two other requests that were previously met with strong resistance from the Justice Department. One is a demand for an internal document supporting the government’s application for a secret surveillance warrant against former Trump foreign policy adviser Carter Page. Known as the "Woods File," the document is produced by DOJ’s National Security Division and vets all assertions government lawyers plan to make before the Foreign Intelligence Surveillance Court. The other request is for highly sensitive materials previously provided only to the "Gang of Eight" — top congressional leaders and the leaders of the House and Senate Intelligence Committees — related to confidential human sources that may have been part of the counterintelligence probe into potential coordination between Russia and Trump campaign officials.”