A few senators in particular seem stuck about what to do: GOP Sens. Jeff Flake (Ariz.), Susan Collins (Maine) and Lisa Murkowski (Alaska), as well as Democratic Sens. Joe Manchin III (W.Va.) and Heidi Heitkamp (N.D.). They have the power to make or break Kavanaugh’s nomination.
And they have to consider heavy moral and political questions to do that. Here are seven they probably are weighing:
1. Who do they most believe, Kavanaugh or his accusers? This is the central question. Flake said that after 10 hours of testimony from Kavanaugh and Christine Blasey Ford, who says Kavanaugh assaulted her while they were in high school, he was torn on who was telling the truth.
Flake didn’t outright say this, but it’s a fair assumption that he’s hoping that an FBI investigation will offer proof that could help him make up his mind.
2. Did the FBI complete a “fair” investigation? “Fair” is in the eye of the beholder. Some Democrats questioned whether a three-day inquiry with interviews of an estimated half a dozen people who are linked to two of the three allegations against Kavanaugh is fair.
Flake seems to think it is. “The FBI is professional, they move quickly, they informed us they could do this, and it looks like they are,” he told CNN’s Manu Raju.
3. Have Republican leaders successfully lumped Ford’s accusation in with other, less credible ones, in a way that makes it difficult for these senators to vote against Kavanaugh?
As the FBI questioned witnesses, Kavanaugh allies have tried to discredit his accusers in increasingly bold ways:
- Senate Republicans released a letter detailing what an ex-boyfriend says about one accuser’s private sex life.
- Fox News Channel obtained a letter to Congress from a former boyfriend of Ford’s who questioned her integrity.
- The Arizona prosecutor who questioned Ford for Republicans cast doubt on Ford’s story because she couldn’t remember when and where the alleged attack happened. (Other sex-crimes prosecutors said what Ford remembered is par for the course in these cases.)
- Republican leaders routinely mention far less credible allegations lodged against Kavanaugh, in a way that seems designed to raise questions about the more credible claims the FBI is looking into.
4. How much political cover do these senators have to vote their consciences? Flake said he never would have demanded a pause in Kavanaugh’s nomination if he were running for reelection. Conservatives were protesting outside his home in the days afterward. “There’s no value to reaching across the aisle. There’s no currency for that anymore. There’s no incentive,” he told CBS’s “60 Minutes.”
Collins and Murkowski aren't up for reelection in November, either.
But Heitkamp and Manchin are. These Democrats are trying to win reelection in states that voted for Trump in 2016 by 30 and even 40 points. Would a vote against Kavanaugh be a vote against their political interests?
5. Can Kavanaugh be an impartial justice on the Supreme Court after blasting Democrats?
Flake — who is one of the most quoted senators on this because he has been one of the most influential — warned that he has serious concerns about Kavanaugh’s ability to be an impartial justice. Kavanaugh spent two full days in his original confirmation hearing refusing to answer political questions because he said that’s not what judges do. But when he testified again last week, he outright accused Democrats of trying to tank his career.
6. Trump mocked Ford in a way that appalled even his allies on Capitol Hill and in the media. Should that factor into whether they vote for his Supreme Court nominee?
"I am taking everything into account,” Murkowski told reporters when asked whether that would affect her vote.
7. What would voting against Kavanaugh now do to the Republican Party’s chances in the midterm election?
This is a nakedly political question, but it’s one that undecided Republicans are undoubtedly weighing. Republicans control the White House and Congress, and many operatives have said it would be a disaster if they had to go home to their base voters weeks before the midterm election and tell them they couldn’t confirm Trump’s Supreme Court pick.
Or, if Republicans can successfully blame a Kavanaugh failure on Democrats, it could inspire conservative voters who have been lukewarm about the midterm election to vote.
A new NPR-PBS NewsHour-Marist poll found that since Kavanaugh has been accused, Republicans have caught up to Democrats in their motivation to vote.