Now that the FBI is conducting an investigation into claims of sexual misconduct against Supreme Court nominee Brett Kavanaugh, there are essentially three paths forward.
First, investigators could find something — anything — to corroborate the allegations of Christine Blasey Ford, the Palo Alto professor who alleges Kavanaugh sexually assaulted her in high school, of Deborah Ramirez, a Yale classmate who said Kavanaugh exposed himself to her while drunk at a party, or both. That would put the onus on the three skeptical Republican senators: Sens. Jeff Flake (AZ), Susan Collins (ME), and Lisa Murkowski (AK).
In this case, it’s possible Senate Majority Leader Mitch McConnell would call their bluff and put the nomination on the floor, risking the very public embarrassment of having their Supreme Court nominee defeated with the world watching. But it’s also possible he would delay the vote.
Second, the FBI investigation could result in no new additional information. As we’ve already seen, many of the objections from Democrats and moderate Republicans have been about the process. With no new substantive information emerging, the skeptical Republican senators could say they are satisfied with the supplemental review. As such, they could likely take Kavanaugh’s side in this he-said, she-said setup and confirm him by next week.
Third, even with no new information, the skeptical moderate Republicans — particularly Collins and Murkowski — could feel the weight of the “believe women” advocacy that has reached a fever pitch. They could get cold feet and either vote down Kavanaugh or backchannel to McConnell to pull the nomination. (The conservative movement already has several alternative candidates waiting in the wings.)
Any of these would be a dramatic end to an already dramatic Supreme Court confirmation process. And any of these are possible in the coming days, as Kavanaugh, the least popular Supreme Court nominee in recent memory, awaits his fate.
What happened Friday in the Senate Judiciary Committee
After a dramatic vote in the Senate Judiciary Committee Friday afternoon, in which Flake insisted that the FBI reopen Kavanaugh’s background check to investigate “credible” claims against him, Senate Republicans agreed to a one-week delay.
“I think it would be proper to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation, limited in time and scope to the current allegations that are there, limited in time to no more than one week,” Flake said at the time.
Here’s what Republican leaders have agreed to, according to a statement released from the Senate Judiciary Committee Friday afternoon:
The Senate Judiciary Committee will request that the administration instruct the FBI to conduct a supplemental FBI background investigation with respect to the nomination of Judge Brett Kavanaugh to be an Associate Justice on the Supreme Court.
The supplemental FBI background investigation would be limited to current credible allegations against the nominee and must be completed no later than one week from today.
The Senate voted on a motion to proceed on Kavanaugh’s nomination on Friday evening, which brought his nomination to the floor. McConnell has agreed to delay a cloture vote on the nomination up to a week, until the FBI has completed an investigation, according to Flake. A cloture vote is a procedural step that the Senate needs to take to limit debate, before a vote on Kavanaugh’s confirmation can occur.
Following the announcement of the deal, President Trump on Friday ordered the FBI to open a probe into the sexual misconduct allegations that have been brought against Kavanaugh.
The FBI’s investigation will be limited to the “credible” allegations against Kavanaugh, including Ford’s allegation that Kavanaugh sexually assaulted her in high school — which she testified to in the Senate Thursday. Ramirez has also claimed that he drunkenly exposed himself to her at Yale College and thrust his genitals in her face without consent. Additional allegations could also be part of the review — though lawmakers weren’t sure exactly what the scope of the full FBI probe would be.
There are also two other undecided Republican votes — Collins and Murkowski — who are in favor of an investigation. With the vote uncertain, it’s clear Republican leaders have been forced to heed to Flake’s demands and accept the federal investigation that Democrats and the accusers have been calling for from the beginning.
Republicans want to move this process along
Before Flake’s stand, Democrats’ call for an FBI investigation seemed to be going nowhere.
Republicans, adamant about pushing Kavanaugh through the process as quickly as possible, said there was no need to call for any additional witnesses to testify or call on the president to reopen the background check into Kavanaugh. While Kavanaugh’s accusers all joined in requesting an FBI investigation, Kavanaugh seemed more reluctant, arguing that it wouldn’t provide any additional insight. He said, however, that he would cooperate if the committee leadership requested it.
There are also three key Senate procedural steps Kavanaugh has to go through to get confirmed by the Senate:
- The Senate has to pass a motion to proceed, the first step in opening Kavanaugh’s nomination to the full Senate floor. Lawmakers completed a “voice vote” on this step on Friday.
- After at least two days have gone by, the Senate can hold a cloture vote, which will place a limit on how much debate time there will be on the Senate floor for Kavanaugh’s nomination. This also needs a simple majority of 51 votes to pass and can place a maximum limit of 30 hours of debate.
- Then there is the final confirmation vote — which again needs 51 votes to pass.
The last two steps of this process will have to wait until the FBI investigation is complete — which can last no more than one week, given the agreement that lawmakers have reached.
According to a spokesperson for McConnell, a procedural vote that will limit debate on the nomination is expected to take place on Friday but could happen even sooner depending on when the FBI report is filed and reviewed by the Senate. (As the agreement goes, that vote can’t happen until the report has been sent over and considered by lawmakers.)
If a simple majority of senators vote to move forward on Friday (that’s 51 votes — which may or may not need to include a tie-breaking vote from Vice President Mike Pence), lawmakers will have up to 30 hours to debate the nomination further. Once that 30 hours comes to an end, the full Senate will be required to vote on Kavanaugh’s confirmation. This timing sets him up for a possible confirmation vote as early as Saturday or Sunday.
This background check will be a major wild card in the coming days. How the senators react to the information provided by the background check could change the course of Kavanaugh’s nomination.
This will all likely come down to these senators
The day after emotional testimony from Ford, who has accused Kavanaugh of pinning her down and groping her at a high school party, and an angry denial from Kavanaugh, Republicans appeared to be closing ranks behind Kavanaugh.
The Senate Judiciary Committee voted to recommend Kavanaugh to the Senate floor for a full vote Friday afternoon. But the votes of several key senators remain unknown:
- Two undecided Republicans, Murkowski and Collins, are perhaps the biggest swing votes. Both have emphasized the importance of listening to the accusers and told reporters they support an independent FBI investigation into the allegations. Murkowski has been under pressure from Alaska’s Native population to reject Kavanaugh’s nomination, out of concern for his positions on health care and Native American tribes’ rights.
- Two red-state Democrats remain undecided: Sen. Heidi Heitkamp (ND) and Sen. Joe Manchin (WV). Both voted for Justice Neil Gorsuch last spring and are up for reelection in Trump states this November. Manchin has said he thinks Kavanaugh deserved a “right to clear himself” during Thursday’s hearing but has expressed concerns about the possible effect Kavanaugh could have on protections afforded to people with preexisting conditions guaranteed by the Affordable Care Act.
Then there is Flake, who earlier Friday said he would support Kavanaugh but has now changed his mind, adding that the Senate must undergo “due diligence” and call for a federal investigation. Whether the results of the investigation will change his vote remains to be seen.