An especially ugly confirmation of the media’s irrational personal dislike of Kavanaugh came in the form of published opinions that he should no longer coach girls’ basketball. Erik Brady wrote in USA Today, “The U.S. Senate may yet confirm Kavanaugh to the Supreme Court, but he should stay off basketball courts for now when kids are around. . . . The nation is deeply divided. Sometimes it feels like we don’t agree on anything anymore. But credibly accused sex offenders should not coach youth basketball, girls or boys, without deeper investigation. Can’t we all agree on that?”12 Another reporter, recalling the middle school girls’ basketball team Kavanaugh coached attending his hearing, had written, “The row of young girls, legs bare in their private-school skirts, looked different now.”13
After senators had reviewed the FBI background report, McConnell announced that the cloture vote—that is, the vote to end debate so the nomination could proceed to a final vote—would take place Friday morning, October 5.
In a rare departure from his usual practice, the majority leader scheduled a vote without knowing what the result would be. All along, the Democrats had hoped that the nomination would be withdrawn, saving vulnerable Democrats from having to cast a difficult vote one way or the other. McConnell did not want to do them that favor, even if it meant losing the vote. He knew that if Manchin voted against Kavanaugh, he would be in danger of losing his seat from West Virginia.
At 10:17 on Friday morning, McConnell came to the floor of the Senate and spoke about Kavanaugh, decrying the tactics of the Democrats. At 10:30, Collins and Murkowski huddled together in their seats. They had been talking virtually every day about the nomination and had spoken early that morning when Murkowski said she was still undecided, though Collins suspected she was leaning toward voting yes. As they sat together in the noisy room, Murkowski leaned over, and Collins thought she heard her say, “I’ve decided that I can vote yes.” Collins broke into a big smile and said that was her decision as well, and she was pleased they would be voting together. Murkowski had to let her down. Touching her arm, she clarified, “You don’t understand, I’m not going to vote yes.” Collins’s face fell. She had made her own decision and was confident it was correct, but she knew it would be an even more difficult decision because she and her longtime friend would be on different sides.
The vote to advance the nomination of Kavanaugh was fifty-one in favor and forty-nine opposed. Murkowski voted no. Manchin and Collins voted yes. Manchin had not voted until after Collins and Murkowski had voted, so he was the fifty-first vote. While Kavanaugh’s confirmation was still far from assured, the vote was a major step forward. Then Collins announced that she would give a speech on the Senate floor at three o’clock.
Like Kavanaugh, even after spending hours perfecting her speech, she still wanted to fine-tune it up until the last moment. She took a back elevator to the senators’ dining room, hoping to avoid the press and have some time to work as she ate. But as the elevator doors opened, she saw Mitch McConnell and John Cornyn eating lunch together. They invited her to join them.
McConnell still didn’t know what Collins’s ultimate vote would be. Voting to end debate was not the same as voting to confirm—as Justice Alito learned when he received seventy-three votes for cloture but only fifty-eight for confirmation. If Collins voted no along with Murkowski and Manchin, it would be over. They never broached the subject, but Collins’s manner suggested to McConnell that she was preparing to vote yes.
Protesters had been harassing Collins for months. Hundreds of coat hangers, the favored symbol of the abortion-rights movement, had been sent to her field offices in Maine to dramatize the threat to Roe v Wade posed by Kavanaugh’s appointment. In a clever gesture, she donated the hangers to a local thrift store. She also received a torrent of obscene and threatening voicemails.14
One rainy night, after working late, Collins was accosted outside her Capitol Hill town house by a man who shined a flashlight in her eyes and filmed her as he asked her questions, implying he was from CNN. How long he had been waiting for her in the pouring rain she didn’t know, but she got past him and into her house, where she called the police. The man returned later and left a basket containing four potatoes on her doorstep, the significance of which she never determined.
As protesters besieged her Capitol Hill and Maine offices, Collins was particularly troubled by the abuse that her staff had to endure. A twenty-five-year-old in her Maine office, who helped constituents with Social Security, veterans’ affairs, and immigration questions, answered a call from a man who told her that if Collins voted for Kavanaugh’s confirmation then he hoped the young staffer would be raped and impregnated. The senator tried to assure her that the harassment would taper off after the vote, but she quit—a young woman driven out of public service, Collins ruefully noted, in the name of women’s rights.
Protesters occupying Collins’s office would take turns telling their stories of sexual harassment or assault, emphasizing that victims must be listened to. Annabelle Rutledge, a staffer for Concerned Women for America who was in the room with a group of women supportive of Kavanaugh, decided to tell her own story. Protesters rolled their eyes but listened as Annabelle spoke of having been sexually assaulted. She explained why it was unfair to blame Kavanaugh for what her assailant did: “We can’t take the pain we have from each of these experiences and put it on one man. You said that a vote for Kavanaugh is a vote for everyone who has sexually assaulted us collectively, and that’s just not true. You can’t take the face of the people who have hurt you and have hurt other people in this room and put it on one man,” she said. “I’m a woman but I’m also a sister, I’m a daughter, I am a niece. I’m a sister to four brothers. I’m an aunt to three nephews.”15
The room erupted into angry shouts as women who insisted on “believing all women” challenged Rutledge’s story. A couple of women approached Rutledge later to apologize for the rudeness of the crowd. Her powerful message was shared by many women supporting Kavanaugh.
The previous Sunday, Kellyanne Conway, the counselor to the president, had stunned Jake Tapper when, in the middle of their interview about the confirmation, she paused, cleared her throat, and revealed publicly for the first time that she had been a victim of sexual assault. “I don’t expect Judge Kavanaugh, or Jake Tapper, or Jeff Flake, or anybody to be held responsible for that,” she said. Conway worred that both accusers and accused were being prejudged on the basis of their sex and politics rather on the facts of each case.
Liberal activist groups tried to strong-arm Collins by raising a million dollars to confer on an opponent’s campaign if she voted for Kavanaugh, a tactic that some election law experts considered dangerously close to a bribe.16 But the senator was unmoved. “In all my years of public service, I’ve never seen a debate as ugly as this one,” she had observed several weeks earlier. “These attempts to pressure me are not going to be a factor in my decision.”17
Senators often address their floor speeches to an empty chamber and the C-SPAN camera, but when Senator Collins took the floor at three o’clock, at least twenty-five senators were present, including five Democrats. As she began to speak, several protesters started shouting and were removed from the room. The presence of her colleagues was touching and reassuring in light of the hecklers. She was flanked by two fellow women Republican senators, Cindy Hyde-Smith of Mississippi and Shelley Moore Capito of West Virginia. She was pleased when she realized they were behind her because so many people had attempted to say that women must uniformly oppose Kavanaugh, a position she found insulting.
It wasn’t just the Senate floor that was riveted. Cable outlets broadcast the speech live. Kavanaugh’s chambers, still without functional internet, relied on texts from Claire Murray at the White House about this decisive moment they had been working toward for months.
Collins began by lamenting that special interest groups and Democratic senators had announced their opposition to Kavanaugh from the moment of his nomination, one col
league even opposing the nomination before it was announced, and had misrepresented his judicial record. “Our Supreme Court confirmation process has been in steady decline for more than thirty years,” she said. “One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.”18
Citing Alexander Hamilton, Collins stated her view that “the president has broad discretion to consider a nominee’s philosophy, whereas my duty as a senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial thought.”
“I have always opposed litmus tests for judicial nominees with respect to their personal views or politics, but I fully expect them to be able to put aside any and all personal preferences in deciding the cases that come before them,” she said, noting her support for the five previous nominations by three presidents of different parties.
Collins then offered a review of Kavanaugh’s legal reasoning on severability, executive privilege, and abortion. She highlighted his description of Justice Kennedy’s Obergefell opinion as an “important landmark precedent,” suggesting Kavanaugh would stand by the Court’s redefinition of marriage to include same-sex couples. She suggested he would also honor the precedent established by the court’s rulings legalizing the right to abort unborn children. Summing up his judicial career, she noted, “Judge Kavanaugh has received rave reviews for his twelve-year track record as a judge, including for his judicial temperament.”
Turning to the question on which the fate of the nomination depended, Collins noted that “the Senate’s advice and consent was thrown into a tailspin following the allegations of sexual assault by Professor Christine Blasey Ford. The confirmation process now involves evaluating whether or not Judge Kavanaugh committed sexual assault and lied about it to the Judiciary Committee.”
“This is not a criminal trial,” she noted, “and I do not believe that claims such as these need to be proved beyond a reasonable doubt.” She was holding Ford’s allegation to the lower standard of “more likely than not.” Collins explained, “The facts presented do not mean that Professor Ford was not sexually assaulted that night or at some other time, but they do lead me to conclude that the allegations failed to meet the more-likely-than-not standard. Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the Court.”
After speaking for forty-three minutes, she finished by saying, “Mr. President, I will vote to confirm Judge Kavanaugh.” With that, Kavanaugh’s confirmation was virtually assured, even though the vote wouldn’t take place until the next day.
Collins’s courage heading into a tough election cycle was remarkable. Withstanding threats, bullying, and extreme media malpractice, she deliberated soberly and thoroughly while Republican senators facing fewer risks and under less pressure went wobbly.
Kavanaugh, working in his office, had not watched the speech live. But an emotional Ashley called him and urged him to watch it right away. Collins and Kavanaugh had developed a rapport; they respected each other’s public service, preparation, and dedication. The judge knew that it would have been easier for her to give in to the tremendous pressure to vote against him, or at least to cast an affirmative vote without drawing attention to herself. Grateful for her critically important stand, expressed with strength and grace in her floor speech, he conveyed his thanks in a text message and promised that he would not disappoint her. The senator appreciated his good will, but she did not take his words as a signal that she would always agree with him, any more than she agrees with the other five justices she voted to confirm.
After her speech, Chuck Grassley approached Collins with tears in his eyes and gave her a hug. That had never happened before, and she was touched by the gesture from a senator whose composure and fairness had never failed through all the partisan hostility.
Later that afternoon, Senator Murkowski gave a rambling twenty-six-minute speech in which she praised Kavanaugh but announced that she would vote against him. It was a disappointment for the Kavanaugh team, which had bent over backwards to satisfy her requests that week. She asked for confirmation that “devil’s triangle” was a drinking game. So the team scrambled to find people who confirmed it. Then she asked for clarification on “boofing.”
“Literally, in the Congressional Record of the Republic of the United States of America, there is a letter describing how boofing means farting because of Lisa Murkowski and her need to feel as though this [allegation] were true,” said one person working on the Kavanaugh effort. The team felt she was looking for a reason to vote no, never got it, and voted no anyway.
Murkowski did not think Kavanaugh would vote to overturn Roe v Wade or undermine the constitutional status of Alaska Natives, she said, but his presence on the Court would give an unavoidable appearance of impropriety. She did not seem to believe he was the sexual predator he had been made out to be, but that apparently was not enough: “I believe that Judge Kavanaugh is a good man. He’s a good man. He’s clearly a learned judge, but in my conscience, because that’s how I have to vote at the end of the day, with my conscience, I could not conclude that he is the right person for the Court at this time.”19 The media’s attack on Kavanaugh’s temperament had hit at least one of its marks.
There was one important hurdle still to overcome. Senator Steve Daines of Montana had recently informed the leadership that he couldn’t make the vote on Saturday. His daughter was getting married that day. He offered to fly back as soon as the ceremony was over. A fellow Montanan, Congressman Greg Gianforte, had offered him the use of his private plane if he needed it.
By the time Murkowski announced her decision, it was not a surprise. The conservative columnist Quin Hillyer now proposed how she could redeem her disappointing decision to vote against Kavanaugh. She should “restore a once-common Senate tradition that has fallen out of use,” which would show “courtesy, decency, and mutual respect.” It used to be common for a senator who could not be present for a vote to cooperate with a senator on the opposing side. That senator would “pair no” with the absent senator, who would “pair yes” (or vice versa), and neither of them would vote. To “pair no” is not the same as to vote “present,” which affects the number of votes needed for a simple majority.
Hillyer wrote, “Memo to Senator Murkowski: If you won’t vote for Brett Kavanaugh, at least demonstrate this collegiality so Senator Daines can act wholly as a dad on Saturday.”20 She took Hillyer’s suggestion, softening the blow of her decision.
Protesters were camped out as Collins left her house to head to her office on Saturday. They started singing and chanting early that morning. As she locked up, she apologized to a neighbor for the noise. He told her the protesters’ songs and chants were beautiful, but living next to a “rape apologist” was what troubled him.
On Saturday afternoon, October 6, just before four o’clock, the Senate began to vote, with Vice President Mike Pence presiding. A group from Concerned Women for America, having promised their support every step of the way, was there to pray. The vote was punctuated by the screams of protestors removed for violating the rule against “expressions of approval or disapproval.” Months of emotional outbursts like this had backfired, pushing some undecided votes away. The behavior of the conservatives who worked hard and kept their heads down—sometimes quite literally, as when they prayed—was a stark and appreciated contrast for these senators.
Brett Kavanaugh was confirmed as an associate justice of the Supreme Court by a margin of fifty to forty-eight. When the vote was over, many senators headed for the hills. Lee and Flake shared a car to the airport. It was unusual for a vote to take place on Saturday, and Senator Daines was not the only one with other plans.
“Whatever happens, I’m just glad we ruined Brett Kavanaugh’s life,” the comedy writer Ariel Dumas tweeted. She later apologized for her “tone-deaf attempt at sarcasm.” The tweet was at least an acknowledgment that the left had engaged in the politics of p
ersonal destruction.
All week long, Grassley’s staff had encouraged him to go on the Sunday-morning news shows to discuss his successful handling of the Kavanaugh nomination. While Grassley had overseen some of the Senate’s most contentious hearings and safely delivered Kavanaugh out of his committee against seemingly insurmountable odds, a lot of credit had gone to others. He said he would think about it. But on Saturday, he stood up and voted, walked out of the Senate chamber, and was on his way to the airport before the final vote was counted. “I don’t need to crow about it,” he told his staff. He later reflected, “Who wants to do that when I can be in Iowa? I go to my home church in Iowa. I eat with a couple of my kids after church. That’s the only time I get any peace and quiet and see the real world and contemplate things that ought to be contemplated every day.” “I always thought landslides were kind of boring anyway,” McConnell joked afterwards at a press conference, predicting that the anger in the Senate would blow over.
When a justice is confirmed by the Senate, he is sworn in as soon as possible by the chief justice, and Chief Justice Roberts did the honors in the conference room behind the courtroom a few hours later, with Justices Ginsburg, Kagan, Thomas, and Alito attending. Gorsuch, Sotomayor, and Breyer were unable to be there. The show of support was notable, since some justices have taken their oath with no colleagues present. Roberts had let the other justices know their presence was welcomed.
Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court Page 30