Both Kavanaugh and His Accuser Are Going to Testify in the Senate

Supreme Court nominee Brett Kavanaugh has been accused by Christine Blasey Ford of sexual assault back when both were in high school. Kavanaugh has vigorously denied the accusation, and Ford has vigorously pushed back. Yesterday, both of them agreed to testify before the Senate Judiciary Committee under oath, something that will likely happen early next week.

Judiciary Committee chairman Chuck Grassley (R-IA) explored all manner of ways of making this problem go away, such as having committee staffers talk to the two people on the phone. Democrats weren't buying it, and insisted on in-person appearances from both accuser and accused. They know (and so do the Republicans), that if Ford appears to be honest and makes forthright statements like: "I am 100% certain he jumped on top of me and tried to take off my clothes" and he says: "I don't recollect that happening" public opinion (especially among women) will swiftly turn against Kavanaugh. So, this now gives the blue team a serious opportunity to derail the nomination, which would rid them of a nominee they don't like, poke Donald Trump in the eye, and possibly afford them an opportunity to delay until they have more power in the Senate (maybe even a majority).

Senate Majority Leader Mitch McConnell (R-KY) and Grassley know all of this, of course, which is why they had so much interest in finding a way to quickly "solve" the problem. And it is possible they might have weighed their options and ultimately decided that steamrolling the Democrats was the best way forward. After all, there was much anger about the Merrick Garland situation, but it's not like the blue team actually got much mileage at the polls out of it. However, before any decision could be reached, members of the Republican caucus also started to rebel. Sen. Jeff Flake (R-AZ) is a member of the Judiciary Committee, which has 11 Republicans and 10 Democrats, and was insistent that Ford be heard, or he would be voting "no." Sens. Ben Sasse (R-NE) and Ted Cruz (R-TX) took the same position later in the day. All three of these fellows harbor presidential aspirations, with varying degrees of seriousness, and Cruz is also facing a difficult reelection campaign right now. They all know that if Ford is given no hearing (a telephone call doesn't count), and the Republicans on the Judiciary Committee (all men) then vote to confirm Kavanaugh, a lot of female voters are going to be very angry with the Republican Party and may demonstrate it 7 weeks from today, and possibly in future elections as well. The GOP wants to prevent this at all costs.

Given these radically-changed circumstances, a confirmation that was a slam dunk as recently as a week ago is now in jeopardy. As we and others have pointed out many times, defeating Kavanaugh was going to require two things: (1) That the Democratic caucus remain unified, including the red-state Democrats up for reelection this year, and (2) That at least two Republicans buck their caucus. Each of these was somewhat unlikely, and for both of them to happen was a real long shot. But the red-state Democrats, including Sens. Heidi Heitkamp (ND), Joe Manchin (WV), and Joe Donnelly (IN), recognize a lifeline when one is thrown directly at them, and now they potentially have a legitimate reason to oppose Kavanaugh, which will make it harder for their Republican opponents to attack them on this. Meanwhile, we now have a number of GOP Senators (e.g., Cruz) who are worrying about the optics of supporting Kavanaugh, or who may decide they find the Judge personally objectionable (e.g., Susan Collins of Maine, who said yesterday that if Kavanaugh is lying, that would disqualify him from being on the Supreme Court).

In short, Kavanaugh is at serious risk of being borked. When he returns to the Senate next week to testify, he's going to have a much harder task than he had during his previous visit. The first time, all he had to do was be pleasant and bland, and not say much of anything. This time, he's going to have to account for himself in a way that convinces Senators that he's done no wrong, and that the accusations are not valid. It's going to be a tall order, and it's entirely possible that some senators have decided that it doesn't matter what they hear, they would prefer a nominee who does not put them at risk of alienating 50% of the population (actually, 50.5%, to be precise). (V & Z)

Pro-Kavanaugh Forces Settle on Their Strategy

It is quite rare for high-profile presidential nominations (SCOTUS justices, cabinet secretaries, etc.) to fail. If serious problems with a nominee emerge, the general playbook is for the president and nominee to hold firm and project confidence publicly while they reflect on the matter. If the problems are ultimately deemed to be fatal, then the nominee magically discovers some previously unknown issue that will "regrettably" force them to withdraw from consideration, which spares the president from any more embarrassment than is necessary. Put it this way: Since 1900, a grand total of four SCOTUS nominees (John J. Parker in 1930, Clement Haynsworth and G. Harrold Carswell in 1969, and Robert Bork in 1987) have actually been rejected by a vote of the U.S. Senate.

All of this is to say that it is entirely possible that Brett Kavanaugh withdraws his name, something that could happen today, or tomorrow, or next week, or never. Until it reaches that point (if it ever does), however, he and his supporters (including Donald Trump) have to push forward with a strategy for saving the nomination. This is not going to be easy. Ford's testimony, when she gives it next week, is instantly going to be compared to that of Anita Hill, who testified during the confirmation hearings of now-Justice Clarence Thomas. However, two points will stand out and will be replayed day and night on TV. First, the times are different, and what was acceptable then is not acceptable now. Second, Hill accused Thomas of making off-color remarks to her. She never accused him of jumping on top of her and grinding his genitals against her. If Hill was right, Thomas has bad taste and was potentially guilty of harassment. If Ford is right, Kavanaugh committed a felony.

The first issue that Kavanaugh & Co. have to deal with is responding to Ford's specific claim, namely that Kavanaugh assaulted her and tried to rape her. Initially, the Judge's response was "Nope, no way, never happened." This was not wise. As we pointed out, women who make such claims rarely make it up out of whole cloth, and the specific details Ford gave (coupled with the fact that Kavanaugh's friend has literally written a book about their drunken high school escapades) made her story very believable. She also passed a lie detector test, which isn't actually all that meaningful, though it does matter in the court of public opinion. Anyhow, Kavanaugh has apparently changed his explanation, and instead of denying Ford's story, he is now claiming that she's confused him with someone else. That is almost certainly the version of events that is most likely to save Kavanaugh, since—if correct—it would mean that it could simultaneously be true that (1) Ford is telling the truth, and (2) Kavanaugh is not guilty of sexual assault. However, making this explanation stick will be tough, since people will wonder why it took the judge so long to figure this out, and also how a fellow who sometimes went to parties and got falling-down drunk can be so sure.

Beyond addressing Ford's specific claims, it will also be necessary for the pro-Kavanaugh faction to undermine her in a more general fashion. Breitbart, as we noted yesterday, tried to get things started on Sunday night, publishing several "character assassination"-type stories. The problem is that while attacking the messenger often works in politics, it is a very bad choice here, as women voters may not take kindly to it. Consequently, the better approach is to undermine Ford indirectly by responding to her narrative (that Kavanaugh is a bad guy) with a counter-narrative (that Kavanaugh is a good guy). And so, very quickly after Ford's allegations came out, Republicans released a letter in which 65 women who claimed to have known Kavanaugh in high school said he was a perfect gentleman. The fact that the letter emerged so rapidly suggests that White House Counsel Don McGahn, who is managing the nomination, has known about the allegations for some time. However, Politico has now contacted the 65 women, and only two still support Kavanaugh. This suggests that McGahn (or someone else) rounded up their support before they knew about Ford's allegations. In other words, they were just asked "Do you like Brett Kavanaugh?" and not "Do you think Brett Kavanaugh may have tried to rape someone?" Some of them may not be too happy to have been used as pawns like this. Meanwhile, another letter, from over 200 alumnae of Ford's school, is circulating in which the signers say they support Ford.

In short, both prongs of the strategy for saving Kavanaugh are in trouble. And he should know, better than just about anyone, that the single most important thing here is perception. After all, he was deeply involved in the impeachment of Bill Clinton, and in Gore v. Bush, where the feelings and beliefs of the voting public were considerably more significant than any actual law, principle, or fact. At this point in time (i.e., MeToo, Time's Up, etc.), and with the information that is already public, perception is not currently on Kavanaugh's side. Assuming he actually gets to the point of testifying before Congress next week, he will need to be very, very good, and he will also have to hope that Ford is underwhelming. If both of those things do not come to pass, it's hard to see how he survives this. (Z & V)

$200 Billion in Tariffs Are a Go

The Trump administration said this was coming this week, and they were telling the truth (which does sometimes happen). On Monday, the President announced that another $200 billion in Chinese imports will be hit with tariffs, with rates starting at 10% right now, and rising to 25% in 2019. That means that about half of all Chinese goods coming into the U.S. are now affected. Trump also warned that if Xi Jinping and his government retaliate, he will slap tariffs on all of the remaining imports (another $267 billion in total). Since Xi announced late Monday that he will indeed retaliate, then "high tariffs on absolutely everything China sends to the U.S." appears to be an imminent state of affairs.

The first wave of tariffs were mostly on industrial goods, but now consumer goods are also going to be heavily affected. That means that John Q. Public will feel the pinch more acutely, to the tune of billions of dollars. Needless to say, it is working-class people who can least afford to pay an extra 10% or 20% for a cell phone, a computer, a car, or a pair of blue jeans. Meanwhile, industry groups warn (credibly) that the tariffs will mean a net loss of jobs, something that will also weigh most heavily on the working class. Trump is attempting to script things so that he can ride to the rescue as conquering hero. "Hopefully, this trade situation will be resolved, in the end, by myself and President Xi of China, for whom I have great respect and affection," he said on Monday. Xi is a pretty shrewd operator, though, and may not be too willing to play along. It's also worth noting that the list of Trump's diplomatic successes, whether in economic matters or otherwise, is very short indeed. So, the President may soon find himself deciding which is worse: (1) Backing down on the tariffs and losing face, or (2) Facing the wrath of voters who have begun to feel the sting of the tariffs where it hurts, namely in their pocketbooks. (Z)

Trump to Declassify Text Messages, Other Documents Related to Russiagate

In addition to the new round of tariffs, Donald Trump made another big announcement on Monday, namely that he will declassify a large number of documents related to the FBI's investigation of Russian interference in the 2016 election. Included will be parts of the surveillance application that led to the monitoring of Trump advisor Carter Page (which is essentially the starting point of the whole Russiagate affair), as well as text messages from then-director James Comey and other top federal officials.

White House press secretary Sarah Huckabee Sanders said that this decision was made at the request of several members of Congress, and in service of the administration's commitment to transparency. Uh, huh. One struggles to think of anything this administration has done in service of being more transparent or, more broadly, because they simply considered it to be the right thing to do. No, Team Trump did this because they believe it will benefit them in some way. It's true that all presidential administrations are quite calculating, but Trump's is particularly so, and is especially ham-fisted about it. In any case, one of Trump's motivations is undoubtedly that he (and his lawyers) think the released material will be exculpatory for him, if not with the general public, then at least with the base. Although they were not specifically mentioned on Friday, the "other top federal officials" whose texts will be released will surely include Lisa Page and Peter Strzok, the former lovers who unwisely slurred Trump using their FBI-issued phones. Thus we have a circumstance where the President of the United States is using the declassification process in service of his own personal goals, and not because it's better off for the country, or because it allows the public to be better informed. That is, of course, not normal.

The other possible motivation that leaps to mind is that Team Trump is trying to create a distraction. This Kavanaugh situation is not going well, and the timing of the releases could serve to take some unwanted attention away from the problem. We will see if the texts, etc. are released on some critical day, like the day Kavanaugh tells his story to the Judiciary Committee next week. (Z)

Senate Passes Opioid Bill

About 800 Americans die from opioid overdoses every week, which is the equivalent of about one 9/11 attack per month. The states with the biggest problem are Ohio, Florida, and Pennsylvania, which just so happen to be the three most important swing states. The Trump administration has made zero progress on the issue, perhaps because Jared Kushner has only so much time left in his day after bringing peace to the Middle East and reinventing the entire federal government. The current members of Congress, on both sides of the aisle, are scared to death of challengers who might suggest that the blood of those 800 dead per week might be on their hands. To that end, by a vote of 99-1 (with Mike Lee, R-UT, the holdout), the Senate passed a bill on Monday meant to "combat" the crisis. The House has already passed a similar bill, so a conference committee will now reconcile the two, presumably in plenty of time for the midterms.

We put "combat" in quotations because, despite grandiose pronouncements about the legislation being the most comprehensive action ever taken on the matter, experts are underwhelmed. Both versions of the legislation crack down on pills sent via international mail, and pay some amount of lip service to developing alternative (non-addictive) treatments for pain, and even allow Medicare and Medicaid to pay for rehab in some circumstances. But the total amount of verbiage (and money) devoted to rehab and breaking the cycle of addiction is nominal, and without that, not too many lives will be saved. So, public health advocates are crossing their fingers that this proves to be just a first step, and not the final step (until the next election, that is). (Z)

Flynn to Be Sentenced in November

On four different occasions, former NSA Michael Flynn was scheduled to be sentenced for the crimes he admitted to as part of his plea agreement with special counsel Robert Mueller. And on four different occasions, Team Mueller asked a federal judge for more time. That's all done, however, as court filings made on Monday ask that Flynn formally be sentenced in mid-November.

This development likely signals two things. The first, and more obvious, is that Flynn's usefulness to the Mueller investigation has reached its end. Whatever he had to spill has now been spilled, and his guts are empty. The second, which is implicit but was also expected, is that Mueller clearly feels that his "don't mess with the elections" deadline has passed, and that he is going to try to avoid making any headlines before November 6. So, any high-profile interviews, or new indictments, or plea deals are presumably on hold until then. (Z)

DeVos Says Universities Have "Abandoned Truth"

If nothing else, Secretary of Education Betsy DeVos has strong opinions about educational matters. On Monday, she delivered a speech in which she declared that:

[Universities] too often attempt to shield students from ideas they subjectively decide are hateful or offensive or injurious or ones they just don't like. This patronizing practice assumes students are incapable of grappling with, learning from or responding to ideas with which they disagree.

DeVos concluded with the judgment that professors across the nation have "abandoned truth."

One wonders how DeVos collected the evidence for her conclusions, given that she graduated from a tiny Christian school (Calvin College) almost 40 years ago, and that her life has kept her in the private sector ever since (until her appointment as Secretary, of course). It sounds like she just might be basing her conclusions more on the anti-higher education propaganda that has been part of the meat and potatoes of right-wingers for at least a century (as Richard Hofstadter pointed out in his classic 1963 work, Anti-Intellectualism in American Life). There's a lot of political benefit to be had from taking potshots at those snobby eggheads in their ivory towers. One would hope that the person responsible for overseeing the nation's educational institutions would be a tad bit better at critical thinking, but that may be why DeVos became the first ever cabinet secretary who needed the VP's tiebreaker vote to secure appointment.

It is true that many of America's classrooms skew somewhat lefty in terms of what they cover and how they cover it. But to paint things with so broad a brush as DeVos does is nonsensical and does not stand up to scrutiny. In fact, nearly all professors love to present challenging or disagreeable ideas, because those are the ones that make for the most interesting lectures and discussions. Perhaps the Secretary should sit in on a few classes sometime, ideally not at schools whose accreditation comes from a religious organization. She is welcome, for example, to sit in on (Z)'s U.S. history class at any time for a demonstration of how far off target she really is. (Z)

Today's Senate Polls

State	Democrat	D %	Republican	R %	Start	End	Pollster
Arizona	Kyrsten Sinema	50%	Martha McSally	43%	Sep 11	Sep 15	SSRS
Tennessee	Phil Bredesen	50%	Marsha Blackburn	45%	Sep 11	Sep 15	SSRS
West Virginia	Joe Manchin*	45%	Patrick Morrisey	33%	Sep 13	Sep 15	Emerson Coll.

* Denotes incumbent

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---The Votemaster and Zenger