“There hasn’t been an investigation,” Lisa Banks, one of Ford’s attorneys, told CNN. “These are serious allegations. So if the senators who have come forward and said they want to treat this seriously mean that, then they will have an investigation of these allegations so that we all go into this more informed.”
Republicans have said they don’t think they need an FBI investigation. They can handle this in one hearing, with just two witnesses (even though Ford places a third person in the room on the night of the alleged assault). Senate Republicans had set one up for Monday, with Kavanaugh willing to participate.
But Ford’s red line about handing this over to the FBI first places Senate Republicans on thin ice in an already extremely delicate situation: Do they proceed with Kavanaugh’s nomination if she won’t play by their rules, as some were threatening to do, and risk making it look more like they aren’t taking her accusations seriously? Coming across as insensitive to an alleged sexual assault victim could imperil their majorities in Congress, as a Washington Post-ABC News poll shows that a majority of registered female voters already favor Democrats for Congress over Republicans. Or do they relent to a fuller, slower investigation that could imperil Kavanaugh’s nomination and their chance to replace a Supreme Court justice?
And then there’s Trump, who made life considerably harder for Republicans when he said Tuesday that “we should go through a process, because there shouldn’t even be a little doubt” about Kavanaugh’s past before Republicans determine his future. As The Fix’s Aaron Blake points out, that sets up a nearly impossible standard of proof about a decades-old assault allegation, but it’s a standard the president himself set. Ford just gave them an opportunity to at least attempt to remove doubt about Kavanaugh by requesting that outside investigators dig into this before a hyperpartisan Congress does.
Speaking of partisan, reading between the lines of Ford’s refusal to testify without an independent investigation is that she doesn’t think the Senate will fairly assess her allegations right now. And she has plenty of reasons to think that.
The Senate has faulted along predictable lines about whether to give Kavanaugh or Ford the benefit of the doubt. Republicans, who control the majority in the Senate and thus this process, have made plain their intentions to move forward with Kavanaugh’s nomination after giving Ford a chance to speak. Since Ford shared her story Sunday with The Washington Post, they have:
1. Questioned Ford’s credibility because she can’t remember every detail from a party decades ago, a standard that a former sexual crimes prosecutor said victims aren’t held to.
2. Refused to call a critical third witness, or anyone else Ford names as potential corroborators of her story, to testify.
3. Said things such as: “All I can say is that we’re bringing this to a close. They’ve had tons of time to do this. This has been a drive-by shooting when it comes to Kavanaugh. . . . I’ll listen to the lady, but we’re going to bring this to a close.” That was Sen. Lindsey O. Graham (R-S.C.), a member of the committee that would hear Kavanaugh and Ford.
The problem for Republicans is that this allegation comes at the worst possible time for them politically. They were already under the wire to get Kavanaugh on the court by the Oct. 1 Supreme Court term, which would allow them to campaign on that success for November’s midterm elections. Republicans are facing a tough year politically and risk losing their majorities in the House and maybe even the Senate.
If the worst-case election scenario happens for Senate Republicans, they will lose control of the process to shape the Supreme Court. Already, one Senate Democrat has threatened that if her party won the majority, lawmakers would hold retired justice Anthony M. Kennedy’s seat open through the 2020 presidential election, so they could be the ones to replace the swing-vote justice.
“The world does not come to an end because we don’t fill all of the nominees,” Sen. Mazie Hirono (D-Hawaii) told Politico’s Off Message podcast, echoing an argument Republicans made in 2016 when they held up President Barack Obama’s nominee for an open seat until after Trump won the election and nominated someone else.
So, do Republicans risk losing their chance to fill a pivotal Supreme Court seat that until days ago was within their reach by acquiescing to Ford’s request? Or do they risk being seen as brushing off a serious allegation against their Supreme Court nominee? From a political lens, Republicans have no good options here. And Kavanaugh’s accuser just called their bluff that they were considering doing anything besides marching forward with his nomination.