Republicans said they were confident they had the votes to place Judge Brett Kavanaugh on the U.S. Supreme Court — if only by the narrowest margin in the last century — after senators spent a tense day on Capitol Hill reviewing an FBI report into allegations of sexual assault and misconduct against President Trump's nominee.
Two key Republicans, Sens. Jeff Flake of Arizona and Susan Collins of Maine, praised the FBI's work, brushing aside concerns from Democrats that the allegations weren't adequately scrutinized.
Neither of the two announced how they would vote, nor did Sen. Lisa Murkowski of Alaska, a third Republican who had said she was undecided.
But the tone of the comments from Collins (“It appears to be a very thorough investigation”) and Flake (“We’ve seen no additional corroborating information” to back up the charges against Kavanaugh), encouraged Republicans.
If two of the three undeclared Republicans vote for the nomination, it would have 50 votes — enough to put Kavanaugh on the high court, since Vice President Mike Pence could cast a deciding vote in the case of a tie.
Amid protests and dueling news conferences, the uncertainty about the outcome left Capitol Hill charged with suspense before a key procedural vote on the nomination, scheduled for Friday morning.
The result of that vote will all but decide whether Trump's choice will reach the court and, his supporters hope, push it in a more conservative direction. Lawmakers typically — although not always — go the same way on both preliminary votes and final passage, especially on an issue as high-profile as the Kavanaugh confirmation.
If the nomination clears that hurdle, a final vote is to take place on Saturday, providing the conclusion to one of the most bitter partisan battles of the #MeToo era, which has brought concerns about gender equality and sexual assault to the forefront of the country’s political and cultural stages.
A possible hitch arose Thursday night when Sen. Steve Daines (R-Mont.), who supports Kavanaugh, revealed his daughter is getting married in his home state Saturday evening and that he will not be in D.C. to vote. If the count on Kavanaugh ends up being tight, that might force GOP leaders to postpone again, perhaps until Monday.
The White House last week ordered the FBI to conduct a limited, supplemental investigation of Kavanaugh after pressure from the three undecided Republican senators, who had threatened to withhold their votes.
The probe focused on two allegations from Kavanaugh’s youth: that he assaulted Christine Blasey Ford, now a Palo Alto University professor, who testified publicly in an explosive Senate Judiciary Committee hearing on Sept. 27; and that he exposed himself to Deborah Ramirez at a dorm room party when they were classmates at Yale University.
Kavanaugh has denied the allegations.
Democrats and Republicans took turns on Thursday visiting a secure room on Capitol Hill that held a single copy of the FBI's confidential report, which included roughly 46 pages summarizing interviews with nine people.
Senators could read the report or discuss it with a handful of staff members authorized to review the sensitive document. Senate Majority Leader Mitch McConnell (R-Ky.) refused to make the report public despite urging from both sides of the aisle.
The report did nothing to heal the partisan divide over the nomination. Republicans said there continued to be no corroboration for the allegations against Kavanaugh, who is a judge on the D.C. Circuit Court of Appeals, and they blamed the Democrats for trying to stall.
"This is a search-and-destroy mission," said Sen. John Cornyn (R-Texas). "This is not a search for the truth."
Democrats, already inclined to believe the women who have accused Kavanaugh, said the investigation was incomplete and pointed to potential witnesses who were not contacted.
"The most notable part of this report is what's not in it," said Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee. "It looks to be a product of an incomplete investigation that was limited."
Outside the quiet, secure room, Capitol Hill was awash in protests. Hundreds gathered in one of the Senate office buildings on Thursday afternoon, filling the atrium and lining the railings on floors above, to denounce Kavanaugh and Republicans.
More showed up outside the Supreme Court building, where Kavanaugh would serve as the second justice nominated by Trump.
Unlike Trump’s other nominee, Neil M. Gorsuch, whose confirmation process was highly partisan but never in doubt, Kavanaugh, if he wins, would likely set a rancorous record.
Until now, the narrowest confirmation in the modern era came in 1991, when Justice Clarence Thomas won despite allegations of sexual misconduct levied by professor Anita Hill.
At this point, the best Kavanaugh could do would be to match Thomas’ 52-48 tally, but the margin will likely be closer.
On Thursday, one of the remaining two Democratic senators who had not yet declared a position, Sen. Heidi Heitkamp of North Dakota, joined the rest of her party in saying she would vote no.
“Both sides horribly handled the process around this nomination,” she said in a statement. “We must learn from these mistakes.”
But, she added, when Ford testified, “I heard the voices of women I have known throughout my life who have similar stories of sexual assault and abuse.”
And she criticized Kavanaugh’s demeanor at the hearing last week in which he denied Ford’s accusation, saying that his statements “called into question Judge Kavanaugh’s current temperament, honesty and impartiality.”
Kavanaugh’s angry tone at the hearing also drew criticism from retired Supreme Court Justice John Paul Stevens, now 98, who said at an appearance in Florida that he had supported the nomination until last week’s hearing.
“His performance in the hearings ultimately changed my mind,” Stevens said, according to the Palm Beach Post.
Heitkamp’s announcement left only one Democrat undeclared: Sen. Joe Manchin III of West Virginia, who is seeking reelection in a state where Trump is very popular. He refused Thursday to indicate which way he was leaning after visiting the secure room with the report.
"I'm going through it, and I have more that I have to go through tomorrow morning, so they'll have it all ready so I can see it when I get in," he said.
Democratic Senate sources said Manchin was not expected to cast the deciding vote, which means Republicans would need to find enough votes in their own ranks to get to 50.
Trump said Thursday that appeasing Democrats would be impossible.
“This is now the 7th time the FBI has investigated Judge Kavanaugh,” he tweeted. “If we made it 100, it would still not be good enough for the Obstructionist Democrats.”
FBI background checks usually do not examine events before a nominee turns 18, the period in which Ford alleges she was assaulted by Kavanaugh. She said that in the summer of 1982, when she was 15 and Kavanaugh was 17, he and a friend drunkenly pushed her into a room at a party. Kavanaugh climbed on top of her and tried to remove her clothes, Ford said, covering her mouth when she tried to shout for help.
FBI agents did not interview Ford or Kavanaugh for their supplemental investigation. Both provided extensive testimony under oath at last week’s hearing, but Ford’s lawyers objected to the lack of an FBI interview.
“We are profoundly disappointed that after the tremendous sacrifice she made in coming forward, those directing the FBI investigation were not interested in seeking the truth," they said in a statement.
Ten people were contacted by the FBI for the investigation, and nine were interviewed.
Sarah Huckabee Sanders, the White House press secretary, said “we didn’t learn anything new” from the FBI report.
She told reporters that the White House was pleased with the way the FBI conducted its latest investigation, and dismissed criticism that the FBI did not interview all the potential witnesses.
“We allowed the FBI to do exactly what they do best,” she said. “We haven’t micromanaged this process.”