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Divided Senate clears way for Kavanaugh’s confirmation to Supreme Court

Four senators who have been considered swing votes on the confirmation of Supreme Court nominee Brett M. Kavanaugh just revealed Oct. 5 how they intend to vote. (Video: Monica Akhtar/The Washington Post)

A bitterly divided Senate cleared the way for Brett M. Kavanaugh to become the next Supreme Court justice as President Trump’s nominee secured the support of a handful of wavering senators in a tumultuous confirmation fight. 

During a frenzied day Friday on Capitol Hill, two Republicans — Susan Collins of Maine and Jeff Flake of Arizona — and one Democrat — Joe Manchin III of West Virginia — said they would vote for Kavanaugh, whose confirmation seemed in peril three weeks ago over allegations of sexual misconduct.

Another lawmaker, Sen. Lisa Murkowski (R-Alaska), broke with her party, saying Kavanaugh was a good man but “not the right man for the court at this time.”

Their pronouncements turned Saturday’s confirmation vote into a fait accompli, and one that will reverberate for the judiciary, the Senate and the nationwide #MeToo movement.

The Fix’s Aaron Blake breaks down how four senators played an outsized role in the Senate’s consideration of Supreme Court nominee Brett M. Kavanaugh. (Video: JM Rieger/The Washington Post)

In a show of defiance, Democrats spent the night making impassioned floor speeches against Kavanaugh’s nomination to an almost-empty chamber. Their speeches were part of a strategy of using the full 30 hours of debate time automatically granted to senators, allowing them to delay the final vote on Kavanaugh in protest until late afternoon.

Sen. Jeff Merkley (D-Ore.) delivered a blistering, two-hour floor speech, starting at 4 a.m., in which he read testimonies from more than 30 rape and sexual assault survivors who had written to him after Kavanaugh’s nomination.

“I’ve received a lot of letters,” he said to a silent chamber, almost an hour into his speech. “I’m going to read more of them now.”

Does the Senate have the votes to confirm Kavanaugh?

By the early morning hours, Democratic reaction to the disappointment of Kavanaugh’s expected nomination crystallized into two narratives. Several senators framed it as a deep injustice that would lead to lasting cultural change.

In a sign that Democrats intend to use the Republican Party’s treatment of Christine Blasey Ford and Deborah Ramirez to energize their base ahead of the midterms, others pledged they would not cease to be outraged or mone on from the issue.

“I will stay angry,” Sen. Richard Blumenthal (D-Ct.) said. “I hope my colleagues and others around the country will as well.” Addressing young voters, the 72-year-old senator concluded his speech by repeating phrase: “Stay angry.”

Sen. Cory Booker, who also sits on the Judiciary Committee, echoed his remarks. “I will never give up on this country,” he said. “I will never give up on the women.”

The confirmation of Kavanaugh, 53, would cement a conservative majority on the nation’s highest court as he replaces the swing vote of retired justice Anthony M. Kennedy. But the federal appeals court judge will take the ninth seat under a cloud of controversy.

The acrimonious battle is certain to influence next month’s midterms, pitting energized female voters angered by the treatment of Kavanaugh’s accusers against conservatives who see him as a man wrongly accused.

Confirmation would be a win for Trump, who gets two justices on the Supreme Court, and a crowning achievement for Senate Majority Leader Mitch McConnell (R-Ky.), who has long prized a conservative transformation of the federal judiciary and has found an eager partner in not only Trump but also White House counsel Donald McGahn.

McConnell blocked President Barack Obama’s final Supreme Court nominee, Merrick Garland, from getting a vote in 2016 and muscled dozens of appeals and district court nominees through the Senate, in addition to the confirmation of now-Justice Neil M. Gorsuch, under the Trump presidency. 

In a key procedural vote earlier Friday, Flake, Collins and Manchin joined with nearly all Republicans on a 51-to-49 vote to advance Kavanaugh’s nomination. After the vote, Flake said he will vote to confirm Kavanaugh on Saturday “unless something big changes,” which he said he did not expect.

Collins delivered a forceful, point-by-point defense of Kavanaugh, his judicial record and his personal character in a 44-minute speech that was applauded by nearly two dozen of her GOP colleagues.

“We’ve heard a lot of charges and countercharges about Judge Kavanaugh, but as those who have known him best have attested, he has been an exemplary public servant, judge, teacher, coach, husband and father,” Collins said. “Despite the turbulent, bitter fight surrounding his nomination, my fervent hope is that Brett Kavanaugh will work to lessen the divisions in the Supreme Court so that we have far fewer 5-4 decisions and so that public confidence in our judiciary and our highest court is restored.”

In a near echo of Trump, Collins raised questions about the testimony of Ford, who alleged that Kavanaugh drunkenly pinned her to a bed, groped her and put his hand over her mouth to stifle her screams as he tried to take off her clothes at a gathering at a house in the early 1980s.

“I found her testimony to be sincere, painful and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life,” Collins said. “Nevertheless, the four witnesses she named could not corroborate any of the events of that evening gathering where she says the assault occurred; none of the individuals Professor Ford says were at the party has any recollection at all of that night.”

Kavanaugh accuser Christine Blasey Ford releases sworn declarations from husband and three friends

Manchin, a red-state Democrat up for reelection in a deeply conservative state next month, said shortly after Collins concluded her speech that while he had reservations, he believe Kavanaugh was qualified enough to sit on the nation’s most powerful court.

“I do hope that Judge Kavanaugh will not allow the partisan nature this process took to follow him onto the court,” Manchin said.

Moments after he issued that statement, Manchin emerged from his office to talk to reporters assembled outside. But furious protesters drowned out the journalists, screaming “Shame! Shame! Shame!” and “Think of your daughters!” 

Manchin told the protesters that he believes Ford. But the protesters responded: “Liar!” 

The final vote is set for late Saturday afternoon and needs just a simple majority in the 51-to-49 GOP Senate.

Trump nominated Kavanaugh in July to succeed Kennedy, a move that triggered an intense partisan battle over the court’s future well before the allegation of misconduct from Ford. But that accusation, as well as subsequent claims by other women, led the nomination fight to collide with the emotional #MeToo movement that has upended politics, the media and other industries long dominated by men. 

Brett Kavanaugh’s nomination fight is dividing his D.C. Catholic church

Friday’s vote came after Trump mocked Ford at a political rally in Mississippi this week and Republicans on the Judiciary Committee issued a statement purportedly describing the sex life of another accuser — attacks decried by victims’ advocates.

Opposition to Kavanaugh largely unified Senate Democrats and has electrified an already furious Democratic base. Underscoring the strength of Democratic opposition, Minority Leader Charles E. Schumer (D-N.Y.) called Kavanaugh’s nomination “one of the saddest, most sordid chapters in the long history of the federal judiciary.”

Murkowski was the only GOP senator to break with her party. Murkowski said she made up her mind to vote against advancing Kavanaugh’s nomination as she entered the chamber to vote Friday, and she detailed her opposition in a speech Friday evening, delivered to a near-empty chamber, that focused heavily on her concerns about Kavanaugh’s temperament.

“Even in the face of the worst thing that could happen — a sexual assault allegation — even in the face of an overly and overtly political process, a politicized process, and even when one side of this chamber is absolutely dead set on defeating his nomination from the very get-go, before he was even named, even in these situations, the standard is that a judge must act at all times in a manner that promotes public confidence in the independence, integrity, impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety,” Murkowski said.”

She added: “After the hearing that we all watched last week, last Thursday, it became clear to me — or was becoming clearer, that that appearance of impropriety has become unavoidable.”

Murkowski added that while she will oppose Kavanaugh’s nomination, she will ask to be recorded as “present” on Saturday’s vote in a courtesy to Sen. Steve Daines (R-Mont.), who will miss the vote due to his daughter’s wedding. The practice, called a “pair between senators,” is so that the vote margin would be the same had Daines been there, and Murkowski said she was doing so as a reminder that “we can take very small, very small steps to be gracious with one another.”

“This hasn’t been fair to the judge,” Murkowski said. “But I also recognize that we need to have institutions that are viewed as fair, and if people who are victims, people who feel that there is no fairness in our system of government — particularly within our courts — we’ve gone down a path that is not good and right for this country.”

Drama escalated as senators awaited Collins’s floor speech midafternoon Friday.

She had barely said a few words when protesters stood up in the gallery, yelling, “Vote no! Show up for Maine women!” Collins looked down until all had been escorted out of the gallery.

At the end of her speech, when Collins said she would vote to confirm Kavanaugh, McConnell led a standing ovation. He then went over and shook her hand, as did several other GOP senators. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who presided over Kavanaugh’s caustic confirmation process, gave her a bear hug. 

Why is Lindsey Graham acting like this?

The last of the undecided votes fell into place Friday after the senators reviewed a highly anticipated report from the FBI investigating allegations of misconduct against Kavanaugh while he was in high school and college in the early 1980s.

Republicans argued that the report exonerated Kavanaugh of any wrongdoing, giving senators more confidence in voting to confirm him. But Democrats disputed the Republicans’ assertions, especially because, they argued, the scope of the investigation was too limited. 

The FBI investigated the allegation brought by Ford, a psychology professor in California. Agents also looked into the accusation brought by Deborah Ramirez that Kavanaugh exposed himself to her at a party when they were students at Yale University. Kavanaugh adamantly denies both accusations. 

The allegations of a third accuser, Julie Swetnick, were not a focus of the investigation. Swetnick, who is represented by celebrity lawyer Michael Avenatti, alleges that Kavanaugh was physically abusive toward girls in high school and was at a house party in 1982 where she says she was the victim of a gang rape. Kavanaugh called those allegations outlandish.

The FBI reached out to 10 witnesses, although nine were ultimately interviewed, according to senators and the White House. But lawyers for Ford and Ramirez have said they offered the FBI the names of numerous other witnesses who could potentially corroborate the women’s claims. 

Kavanaugh has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2006 and previously worked in George W. Bush’s White House. He served as a clerk to Kennedy in the early 1990s alongside Gorsuch.

The American Bar Association, which had issued a unanimous “well qualified” rating for Kavanaugh, said in a letter sent Friday that it would reopen its evaluation because of “new information of a material nature regarding temperament” that emerged from an emotional and combative hearing last week that featured testimony from Ford and Kavanaugh.

Kavanaugh addressed his comportment at the hearing in an extraordinary op-ed in the Wall Street Journal published Thursday night, acknowledging that he was “very emotional” during his testimony and, “I said a few things I should not have said.”

“Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hard-working, even-keeled, open-minded, independent and dedicated to the Constitution and the public good,” Kavanaugh wrote.

Gabriel Pogrund, Mike DeBonis, Robert Costa, Erica Werner, Sean Sullivan, Elise Viebeck and Paul Kane contributed to this report.