President Trump’s pick to join the Supreme Court, Brett Kavanaugh, declared himself ready to “defend my integrity” before the Senate against an allegation that he sexually assaulted a 15-year-old when he was in high school.
And it looks like he’ll have to.
Kavanaugh’s path to the high court was thrown into turmoil Sunday afternoon, when Christine Blasey Ford, a psychology professor at Palo Alto University in California, came forward to tell her story. Ford claims that in the 1980s, Kavanaugh, then a 17-year-old high school student, pinned her down at a party in Montgomery County, Maryland, tried to forcibly remove her clothing, and covered her mouth when she tried to scream.
Ford’s claim has exploded like a fireball in the already highly-charged Senate confirmation process. Kavanaugh’s appointment had been seen as an all-but-certain win for Republicans thanks to their 51-49 Senate majority. But that assumption is now suddenly, and unexpectedly, in doubt, said Jens David Ohlin, Cornell Law vice dean.
“This could unravel,” Ohlin told VICE News. “That’s a real danger now.”
A growing chorus of both Democrats and Republicans are now calling for Ford’s story to be heard, with some voices on the right calling to slow the process until both parties are heard.
With the future of the court on the line, here’s what’s next.
Kavanaugh’s confirmation hearings have been jam-packed with political spectacle, including senators jousting and protestors wailing in the chamber.
Now, there’s the very real possibility that both Ford and Kavanaugh may be called forth to testify about the alleged incident, with cameras rolling, as soon as this week.
Both Kavanaugh and Ford have declared themselves willing, setting the stage for fiery public proceedings in the coming days. If that happens, the already-raucous hearings will unlock next-level drama.
“I am willing to talk to the Senate Judiciary Committee in any way the Committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity,” Kavanaugh said in a statement distributed by the White House Monday. “This is a completely false allegation. I have never done anything like what the accuser describes — to her or to anyone.”
A key question will be how quickly Ford’s testimony might be handled, and whether it would be live on TV, submitted in a written affidavit or take place on a group phone call with committee members.
Republican Senate Committee chairman Chuck Grassley has said he’s open to setting up phone calls with both Ford and Kavanaugh. Ohlin called an affidavit another realistic possibility.
The late-breaking drama raises the possibility that an important vote in the Senate Judiciary Committee, scheduled for this Thursday, could be delayed.
Republicans have no votes to spare on that committee, with an 11-10 majority. And on Sunday evening, a key Republican committee member declared Ford’s story needs to be heard.
“If they push forward without any attempt with hearing what she's had to say, I'm not comfortable voting yes,” Flake told Politico on Sunday, after the account of Ford’s story appeared in The Washington Post. “We need to hear from her. And I don't think I'm alone in this.”
“The Judiciary Committee should investigate the matter, potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake,” Ilya Somin, a law professor at George Mason University and adjunct scholar at the Cato Institute, told Politico.
“Given that the alleged events in question occurred over 35 years ago, when Kavanaugh was 17 and the accuser 15, getting at the truth may be very difficult, or even impossible. But the committee should at least try,” Somin said.
COULD KAVANAUGH GET BLOCKED?
Republicans had widely been expected to vote Kavanaugh right onto the court without much real trouble thanks to their slim Senate majority.
But the Ford accusations, despite being decades old, have the potential to not just slow the process but actually stop it, according to Cornell’s Ohlin.
The Ford scandal could raise new doubts in the minds of relatively moderate Republican senators seen as all-important votes.
Those names include Lisa Murkowski of Alaska, Susan Collins of Maine, Bob Corker of Tennessee, and Flake, according to Ohlin.
Rushing through a vote on Kavanaugh in the face of accusations seen as credible could create problems for Republicans that last years, or even decades, he said.
“They’ve got a calculation to make,” Ohlin said. “If they vote in favor of this, they could get hammered by Democratic voters who are really, really angry with them,” he said. “Right now it’s politically toxic to come out against the #MeToo movement.”
The last conservative nominee to the Supreme Court who faced accusations of sexual misconduct, Clarence Thomas, made it through. But his confirmation was almost derailed by lengthy, public testimony from his former staff attorney, Anita Hill, who accused him of creating a hostile workplace through sexually charged statements and graphic boasting.
Thomas denied the allegations, calling the episode a “high-tech lynching.”
Despite Hill’s testimony, Thomas was confirmed in a 52-48 vote, the narrowest margin for a successful Supreme Court nominee in more than century.
A lot has happened since those 1991 hearings, including #MeToo. Former Vice President Joe Biden, who was the chairman of the Senate Judiciary Committee during the Thomas confirmation, has said he owes Hill an apology for not coming to her defense.
COULD KAVANAUGH BAIL?
In the event that Kavanaugh withdraws his nomination, the Trump administration will likely go back to the list of potential nominees Trump has already said he’d draw from, and simply pick another name.
But the political calendar could then create fresh trouble for that alternative choice.
By then, the Senate would be hard-pressed to confirm a new nominee before midterm elections take place in early November. Successful nominations traditionally take a couple of months. The shortest confirmation process since the Ronald Reagan administration was Justice Sandra Day O’Connor’s, which took 33 days. Justice Clarence Thomas took 99 days to confirm.
Switching to a new nominee would raise the danger for the Trump administration that control of the Senate could flip to Democratic hands after November.
While political forecasts suggest the Senate is likely to remain in Republican hands, a changeover is still possible.
And if that happens, Trump’s next nominee would face a dramatically different, and much more challenging, path to the high court.
“They’d shoot themselves in the foot if they can’t get someone through before the midterms, and then the Democrats get control of the Senate by one vote,” Ohlin said.
Cover image: U.S. Supreme Court nominee Judge Brett Kavanaugh testifies at his U.S. Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, U.S., September 4, 2018. REUTERS/Chris Wattie/File Photo