Faced with an unexpected wrinkle on the path to confirming Brett Kavanaugh to the Supreme Court, Senate Republicans made a number of decisions that opened them to second-guessing.
Sen. Dianne Feinstein (D-Calif.), the ranking member of the Senate Judiciary Committee, held onto explosive allegations that Kavanaugh (pictured above right) sexually assaulted a woman 36 years ago, while they were in high school.
Feinstein had a letter from the woman before Kavanaugh’s confirmation hearing, at the beginning of the month, and even had put the accuser in touch with a lawyer who has deep ties to the Democratic Party.
Feinstein pleads innocence in the timing, insisting she kept the accusation under wraps at the request of the alleged victim, Palo Alto University clinical psychology professor Christine Blasey Ford (above left).
But the timing of the release — after the hearings but just before the judiciary committee was set to vote — could not have been better designed to inflict great political damage. And it worked.
Republicans, obviously, had no control over that. But they compounded the problem with indecision. With a committee vote now scheduled for Friday morning, here are four ways Republicans might have avoided at least some of the headaches:
1.) Settling on a direct course. Republicans could have tried to push Kavanaugh through by setting a firm hearing date and not allowing themselves to be strung along by negotiations and demands by Ford’s attorneys and Senate Democrats.
Committee member Jeff Flake (R-Ariz.) and some moderates in the caucus objected to that, however, and the GOP feared the political hit they might take by seeming to employ strong-arm tactics.
But the party already has taken a hit. Nothing that happens now, whether Kavanaugh gets confirmed, defeated or withdraws, likely will win the party any credit from people angered by the process. And the same Republican senators who voiced concerns are still undecided.
2.) Holding a full-blown hearing. Republicans tried to find a balance between taking Ford’s allegation seriously but not dragging out the process. In doing so, they came up with a format that included just two witnesses — Ford and Kavanaugh.
That stood in contrast to the 1991 confirmation of hearing of Justice Clarence Thomas, which included not just the nominee and the woman who accused him of sexual harassment, Anita Hill, but more than 20 other witnesses.
Narrowing the scope to just Kavanaugh and Ford allowed Democrats to score political points, while raising objections from Sen. Susan Collins (R-Maine), a key undecided vote on the GOP side.
Republicans could have subpoenaed three people who already had provided sworn statements contradicting — or indicating they do not recall — Ford’s claims that they were at the party in 1982, when Kavanaugh allegedly pinned her to a bed and tried to take off her clothes.
The most important of those witnesses would have been Mark Judge, a friend of Kavanaugh who was in the room during the assault, according to Ford’s testimony.
Republicans may have felt it would be risky to allow Senate Democrats to take shots at Judge, whose tales of excessive drinking and womanizing would have offered fertile ground. But given that Collins specifically suggested Ford should testify, compelling at least him to do so might have helped assuage the concerns of a key undecided Republican senator.
3.) Declining to delegate responsibility for questioning the witnesses. The GOP feared the optics of 11 Republican men cross-examining Ford. They likely had visions of Sen. Arlen Specter, the late Pennsylvania Republican, who effectively undermined Hill during the Thomas hearings but then nearly lost his seat the following year.
So Republicans brought in Rachel Mitchell, a sex-crimes prosecutor from Arizona, to represent the majority side of the panel. All that did was set up an asymmetrical scenario that drew a contrast between Mitchell’s clinical questions addressing facts and Democrats taking turns asking Ford sympathetic questions or simply delivering mini-speeches declaring their belief in her.
In addition to failing to challenge Ford about holes in her testimony, the approach resulted in a change to a Democrat every time Mitchell starting building momentum.
Professional lawyers noticed.
‘This is an awful process,” tweeted former federal prosecutor Andrew McCarthy. “If you’re going to have an evidentiary hearing, it’s not fair to the witness or conducive to the goal of getting to the bottom of things to disjoint hearing with five-minute rounds rather than let each side have time to develop lines of inquiry.”
“Would you believe me if I told you there’s no study that says this setting in five-minute increments is the best way to do that?”
Mitchell, herself, alluded to the flaws when she at one point asked Ford if she knew the best away to investigate victims of trauma.
“Would you believe me if I told you there’s no study that says this setting in five-minute increments is the best way to do that?” Mitchell asked.
Eventually, Senate Republicans also apparently concluded they had erred. Midway through Kavanaugh’s testimony, GOP senators benched Mitchell and started asking their own questions.
4.) Allowing an FBI investigation. Repeatedly during the hearing — and for days in advance — Democrats kept returning to their complaint that Republicans were proceeding without an FBI investigation.
“The FBI would gather witness statements,” Sen. Kamala Harris (D-Calif.) said at one point.
Democratic senators repeatedly suggested it was Kavanaugh’s duty to ask for the FBI to get involved.
“Why don’t you just ask the president?” Sen. Amy Klobuchar (D-Minn.) asked. “Dr. Ford can’t do this. We, obviously, haven’t been able to do it.”
It largely is a red herring, as Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) explained.
“You know that’s a phony question because the FBI doesn’t reach conclusions,” he told Senate Minority Whip Richard Durbin (D-Ill.) at one point.
Kavanaugh said he was “all in” if the committee wanted to ask the FBI to investigate.
“Just so you know, the FBI doesn’t reach a conclusion,” he said.
Republicans originally had dismissed bringing in the FBI because they did not want to delay the hearing. But they ended up delaying the hearing anyway because negotiations between Grassley’s office and Ford’s lawyers dragged on.
During that time, the FBI could have interviewed a half-dozen witnesses and updated Kavanaugh’s file.
Doing so would also have denied Democrats their favorite talking point.