After a tense day of testimony from Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, who has accused Kavanaugh of sexually assaulting her in high school, the Senate is still expected to take up a vote on his confirmation in the coming days.
But it’s still not clear if Republicans have the 50 votes they need to confirm the Trump’s appointment.
As of Friday morning, there are only two Republicans considered to be genuinely up in the air: Sens. Lisa Murkowski (AK) and Susan Collins (ME). The third toss-up vote, Sen. Jeff Flake (R-AZ), said he will support Kavanaugh in a statement.
“What I do know is that our system of justice affords a presumption of innocence to the accused, absent corroborating evidence,” Flake said in a statement. Sen. Bob Corker (R-TN), who was another possible swing vote, will also support Kavanaugh, he said Thursday.
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). Already Donnelly has said he would vote against Kavanaugh’s confirmation, saying he was unable to get enough information on the nominee. Manchin told reporters Thursday night that he was still undecided after the hearings.
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 along 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.
Ford, a Palo Alto University professor, says 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, says he exposed himself to her at a party during their freshman year, thrusting his penis in her face.
And just one day before the hearing, Stormy Daniels’s lawyer Michael Avenatti posted a sworn affidavit from a woman named Julie Swetnick who says she witnessed Kavanaugh and his friend Mark Judge drink excessively and harass and assault women at high school parties. Kavanaugh denied all allegations aggressively Thursday.
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.
Two Republican senators could make or break Kavanaugh’s nomination
1) Sen. Lisa Murkowski (AK): Murkowski is seen as perhaps one of the biggest swing votes for Kavanaugh’s confirmation. After the hearing, she remained undecided. But 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. Susan Collins (ME): Collins, like Murkowski, has been pegged as a potential swing vote ever 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.
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 that “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.”
There are still undecided red-state Democrats
3) Sen. Heidi Heitkamp (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.”
4) Sen. Joe Manchin (WV): Manchin is another 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.”