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“There are no good options”: Republicans prepare for Kavanaugh hearing on sexual misconduct

The best-case scenario is a no-fireworks, orderly hearing, Washington attorneys say.

Women’s March leaders address a rally against the confirmation of Supreme Court nominee Judge Brett Kavanaugh in front of the court building on September 24.
Chip Somodevilla/Getty Images
Dylan Scott covers health care for Vox. He has reported on health policy for more than 10 years, writing for Governing magazine, Talking Points Memo and STAT before joining Vox in 2017.

Republicans can only lose during Thursday’s hearing when Supreme Court nominee Brett Kavanaugh, now facing explosive new allegations from Julie Swetnick that he was present at “gang rapes” during high school, and his first accuser Christine Blasey Ford appear before the Senate Judiciary Committee.

The GOP’s absolute best-case scenario is an excruciatingly boring hearing with few fireworks for the nightly news.

“When you’re a Republican, there are no good options — only less bad options,” Brian Darling, a former staff counsel for Sen. Rand Paul (R-KY) who also previously worked for the Judiciary Committee, told me this week. “Nothing good can come out of this hearing for Republicans.”

Republicans have a lot to worry about. Ford might appear sympathetic — already, more Americans believe her than don’t. Kavanaugh could look defensive and not credible — he has already shifted from insisting he “never had a blackout” to admitting “sometimes [he] had too many” beers with his friends. Not to mention the unseemly optics of a panel of old white Republican men sitting in apparent judgment of a woman alleging sexual assault.

I reached out to Democratic and Republican lawyers with experience in congressional testimony to ask them what to expect in Thursday’s hearing, which is likely to look more like a prosecutorial cross-examination than a typical Senate hearing. Most did not want to be quoted by name, as Washington prepares for the most important Senate hearing in years.

Senate Republicans are hoping the hiring of Rachel Mitchell, an Arizona prosecutor who has worked on sex crimes cases, to lead their questioning of Ford and Kavanaugh will minimize any bad optics and allow for a professional (read: boring) hearing. They are betting she will bring orderly and lawyerly questioning that introduces enough doubt to keep Kavanaugh’s nomination afloat but without appearing to bully Ford.

Democrats, on the other hand, will be tasked first and foremost with helping build Ford’s credibility and strengthening her standing as a witness. Then they can go after Kavanaugh when he takes the stand.

“They’re gonna help her out as much as they can,” one former Democratic House counsel told me. “They’ll point out she had no incentive to make accusations and focus on the costs she’s paid.”

This is what to expect: Republicans trying to walk a line of undermining Ford without outright attacking her, while Democrats seek to support her and surely land a few jabs at Kavanaugh.

The stakes, meanwhile, are merely the future of the Supreme Court and the balance of power over the next few decades in Washington.

Republicans are eager for the hearing to resemble tedious courtroom proceedings

The No. 1 rule for Republicans is the fewer fireworks, the better. Washington attorneys expect the GOP’s questioning to stay narrowly focused on the incident Ford alleges, that Kavanaugh pinned her down and tried to force himself on her at a high school party.

“It’ll be a very lawyerly questioning — testing the memories, talking about the circumstances,” Darling said. “It’s gonna sound more like a courtroom questioning of a witness.”

Hiring Mitchell helps guarantee professionalism from the GOP side, even if having outside counsel for a hearing like this is borderline unprecedented. It is also a sign of the strange dynamics of Thursday’s hearing — Republicans will almost act as prosecutors, while Democrats will act more like the defense. The implication is that Ford, not Kavanaugh, is the one on trial.

Democrats expect Republicans to “dance the dance” — assuring Ford that she deserves to be heard while making the case that her allegations are either categorically untrue or that she has become mixed up somehow.

The tempo, scope, and depth of the questions are likely to pick up as the questioning goes along, I was told. For the Republicans, that will give the appearance that there are ample doubts, or at least questions, about what really happened at that party more than three decades ago.

Democrats also expect Republicans to try to set a high burden of proof. They’ve sought to frame the allegations as a prosecution, which would indicate that any reasonable doubts about Kavanaugh’s guilt should lead to his metaphorical acquittal. But Democrats see it very differently: Any chance that Kavanaugh did do what Ford says he did should be disqualifying for a potential Supreme Court justice.

Republicans do have one get-out-of-jail-free card if they don’t like the direction of the testimony: an obscure Senate rule that prohibits a committee hearing from running longer than two hours consecutively while the Senate is in session, without the consent of both the majority and minority.

The GOP could invoke that rule to “slow things down,” Darling told me. “They want to get through without it turning into a circus.”

Democrats want Ford to be believed — and make Kavanaugh seem less credible

The most important Democratic imperative at Thursday’s hearing is pretty simple: Help Christine Blasey Ford tell her story and be believed. But there are still pitfalls for the minority.

The Democratic case for Ford’s credibility will likely emphasize that she had little to gain personally by coming forward with her allegation against Kavanaugh and that she has been subject to character attacks and death threats since she did. Democrats will also surely lean on the general belief that a woman who has been sexually assaulted should be believed.

Democrats will have to decide whether to also introduce the allegations Ramirez made that Kavanaugh shoved his penis in her face while they were drunk during their freshman year at Yale, or newer ones brought forth by Julie Swetnick, which detail Kavanaugh as present at a party during her own “gang rape.”

Ramirez has said she would be willing to testify separately before the Senate. Swetnick’s accusations became public the day before the hearing, and Republicans attacked them immediately, particularly through her choice of lawyer, Michal Avenatti, who also represents porn actress Stormy Daniels, who has alleged an affair with Donald Trump.

Republicans are also watching closely to see whether Democrats embark on “a fishing expedition,” as Darling put it, and explore unrelated issues like Kavanaugh’s alleged misstatements about stolen documents during the George W. Bush administration or whether they stay focused on the sexual assault allegations.

In general, both Democratic and Republican attorneys agreed that Democrats will need to strike their own balance between landing the right punches without appearing to grandstand and while ensuring Ford is given the spotlight and space to tell her story. Everyone is aware that several presumed 2020 Democratic frontrunners sit on the Judiciary Committee.

Senate Republican aides still believe that their wayward senators could be turned off by Democratic grandstanding, which could bring them home to vote for Kavanaugh. In that light, the Thursday hearing — and the lines of questioning deployed by Democrats — could also be pivotal.

The wild cards are Ford and Kavanaugh themselves. Kavanaugh seemingly previewed his strategy in his Fox News interview, a performance that suggests he will deny most any wrongdoing from his youth (even against evidence to the contrary) and lean on his friends’ and family’s attestations of his character. Ford remains more of a mystery, even to Democrats, as Politico reported Wednesday.

What happens next?

Most senior Republicans have treated the Ford hearing as a formality that they must get through before advancing Kavanaugh’s confirmation. They don’t exactly appear to have an open mind, though they are careful to say Ford has a right to testify.

“It should be clear now to all Americans that Democrats are engaged in a coordinated effort to stop Judge Kavanaugh’s confirmation by any means possible,” Sen. Orrin Hatch (R-UT) said Monday. “As I have said before, every accuser deserves to be heard. ... We should hear from Dr. Ford on Thursday as planned. Then we should vote.”

Indeed, Grassley preliminarily scheduled a Friday committee vote on Kavanaugh in hopes that his confirmation is a fait accompli.

But at least a handful of Republican senators are undecided on Kavanaugh. Thursday’s hearing, and the perception of Ford’s and Kavanaugh’s credibility, could be crucial for them. Sen. Lisa Murkowski (R-AK) has said the issue now at the heart of the Supreme Court battle is whether a woman who has been abused is to be believed. Sen. Jeff Flake (R-AZ), another undecided vote, has said that if you believe Ford, then you should vote “no” on Kavanaugh. Sen. Susan Collins (R-ME) pushed to make sure Ford was given a hearing.

As long as Democrats stay united against Kavanaugh, just two Senate Republicans could sink his nomination. Neither Murkowski nor Collins sits on the Senate Judiciary Committee, but Flake does. These three senators will be the most important audience for Thursday’s hearing — along with the American public, which was already unenthused about Kavanaugh’s nomination, a feeling that only deepened since the allegations against him became known.

The Senate Judiciary Committee is set to gavel in the hearing at 10 am Thursday. Get ready.

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