ROBERT COSTA: A Republican senator stuns his party and stalls the nomination of Supreme Court nominee Brett Kavanaugh. I’m Robert Costa. Welcome to Washington Week.
SENATOR JEFF FLAKE (R-AZ): (From video.) I think it would be proper to delay the floor vote for up to but not more than one week to ask the FBI to do that investigation. It would be short and limited in scope.
MR. COSTA: A dramatic twist for Supreme Court nominee Brett Kavanaugh. Republican Senator Jeff Flake votes yes to advance the judge’s nomination, but it comes with a condition that shook Washington in an instant: a call to delay the final confirmation vote one week to allow the FBI to probe sexual assault allegations against Kavanaugh.
SENATOR FLAKE (R-AZ): (From video.) I will only be comfortable moving on the floor until the FBI has done more investigation than they have already. I understand that some of these witnesses may not want to discuss anything further, but I think we’re – we owe them due diligence.
MR. COSTA: The move comes just one day after both Kavanaugh and his accuser, Professor Christine Blasey Ford, testified before the Senate Judiciary Committee.
JUDGE BRETT KAVANAUGH: (From video.) This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, revenge on behalf of the Clintons.
CHRISTINE BLASEY FORD: (From video.) I believed he was going to rape me. I tried to yell for help. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.
MR. COSTA: Both the accused and the accuser noted the intensity of this national moment and its costs.
JUDGE KAVANAUGH: (From video.) My family and my name have been totally and permanently destroyed.
MS. FORD: (From video.) My family and I have been the target of constant harassment and death threats, and I have been called the most vile and hateful names imaginable.
MR. COSTA: We report on this historic week next.
ANNOUNCER: This is Washington Week. Once again, from Washington, moderator Robert Costa.
MR. COSTA: Good evening. An unexpected move by Republican Senator Jeff Flake has pumped the brakes on GOP plans to quickly confirm Supreme Court nominee Brett Kavanaugh. The retiring lawmaker announced Friday morning that he would support Kavanaugh’s confirmation, but hours later he said his vote to pass the nomination out of the Senate Judiciary Committee had a caveat: If Republicans wanted his support on a final floor vote, the FBI needed to further probe the sexual assault allegations facing Kavanaugh, including Dr. Christine Blasey Ford’s allegation that he assaulted her while they were teenagers in the early 1980s. Flake’s decision effectively ended Senate Majority Leader Mitch McConnell’s plans of moving to a vote in the coming days as other senators signaled their support, and it came after fiery exchanges on Thursday between Kavanaugh and Democratic senators.
SENATOR RICHARD DURBIN (D-IL): (From video.) Judge Kavanaugh, will you support an FBI investigation right now?
JUDGE KAVANAUGH: (From video.) I will do whatever the committee wants to –
SEN. DURBIN: (From video.) Personally, do you think that’s the best thing for us to do? (Pause.) You won’t answer?
MR. COSTA: Joining me tonight, Seung Min Kim of The Washington Post, Geoff Bennett of NBC News, Mark Landler of The New York Times, and Molly Ball of TIME Magazine.
Seung Min, I’m glad you could make it here from the Capitol, inside the Senate Judiciary Committee room all day. What drove this decision by Senator Flake, a decision that surprised his colleagues, surprised the country?
SEUNG MIN KIM: I think what was so stark today is just this rapid change of momentum we saw for Brett Kavanaugh’s confirmation, which revolved pretty much about Jeff Flake, because we saw early in the morning Senator Flake had issued a statement saying he would actually be a yes on Kavanaugh’s vote. He had taken the night to digest this gripping, riveting testimony from both Dr. Ford and Judge Kavanaugh. When we tried to talk to him last night, he made it clear he had not made up his mind, and he was showing so much skepticism and doubt about where he would land. And he even said, you know, whatever I decide and whatever we decide, there’s going to be as much doubt as there is certainty. So when he issued that statement pretty early in the morning, I thought – I was a little surprised that it was pretty early, but it was interesting, and we figured, wow, that gives us the extra momentum that Kavanaugh needs to move forward with his confirmation and at the very least advances him out of the Judiciary Committee on this key committee vote.
And then several other things happened. First, we saw that dramatic confrontation with two women who were loudly and tearfully telling him to stand with victims of sexual assault, which was playing right on my TV.
MR. COSTA: Let’s take a look at that for a second if we have that video.
FEMALE: (From video.) I was sexually assaulted. Nobody believed me. I didn’t tell anyone. And you’re telling all women that they don’t matter, that they should just stay quiet because if they tell you what happened to them you’re going to ignore them. That’s what happened to me, and that’s what you’re telling all women in America. Look at me when I’m talking to you. You’re telling me that my assault doesn’t matter.
MR. COSTA: Intense as anything we’ve seen.
MS. KIM: It was just – absolutely just heart-wrenching to watch. And then Senator Flake made his way to the committee, and as the debate was going on he looked very much as he did during the testimony yesterday; he looked tortured and pained. And I think what was really remarkable was Senator Chris Coons, who’s a Democrat from Delaware, he’s actually one of Senator Flake’s closest friends. They serve on the Foreign Relations Committee together. They go to the prayer breakfast together. They’ve traveled to Africa together in their respective roles on the Foreign Relations Committee. He had essentially in his speech implored Republicans to come along to at least figure out some sort of a third way, a middle way to at least get some sort of an FBI investigation. And at that moment, after he spoke, we expected Senator Flake to speak; it was his turn. But he didn’t. It moved on to someone else. He got up and walked over to Senator Coons, and also Senator Amy Klobuchar who sat – who sits next to him, and kind of gestured to him, you know, come back with me, and went into the backroom. And I remember telling my colleagues, I was like, just heads up, guys; like, those three went to the back. It may not be –
MR. COSTA: Something’s happening.
MS. KIM: It may be nothing, but something seems to be happening. And this really – and it was how just up in the air so much. Like, we don’t know what they were talking about. You know, Senator Coons and Senator Klobuchar comes back eventually, but Senator Flake never comes back, and those two Democrats start talking to other Democratic senators. They’re whispering. They’re talking to Feinstein. They’re talking to Senator Feinstein’s staff director. All the aides are very excitedly starting to chat. And we were like, what is going on? And this just went on for a while. One thirty came, which is when the committee was supposed to vote. They weren’t voting. The room was empty. There was only about four senators in there of 21 senators. And then – and all of a sudden, then Flake came out and said what he did.
MR. COSTA: What a moment. What are they saying at the White House, Geoff? They wanted to move forward with a vote, get it done quick.
GEOFF BENNETT: Yeah, they did. I can tell you there’s a sense of dread in the White House about what this week might hold. The passage of time has never been on the side of this confirmation, for a number of reasons. First, we know Republicans wanted him seated in time for the October 1st start of the new Supreme Court term. They certainly wanted to have him confirmed before the midterms. But there’s also this thought that the public perception of him could change negatively over time. Well before Thursday’s hearing there were more Americans who did not support Kavanaugh’s nomination than did support it; that was according to an NBC News/Wall Street Journal poll. So now there’s this thought that over this next week there could be perhaps more accusers that come forward, there could be more people who call into question the things that Brett Kavanaugh said in his hearing. Up until this point, I can tell you that President Trump, according to people close to him, is still bullish on Kavanaugh. There’s not people around him saying that he’s spitballing other names as replacements. But again, it all comes down to what happens between now and potentially next Friday.
MR. COSTA: Mark was with President Trump in New York this week, where he used two news conferences at the U.N. to defend his embattled Supreme Court nominee and call out Democrats.
PRESIDENT DONALD TRUMP: (From video.) It is a disgrace what’s going on. The good news is the public is very smart and they get it. It’s a con game they’re playing. They’re playing a con game. This is a con game. Just a con game.
MR. COSTA: Con game in New York, yet a different message on Friday. The White House seems to say today this nomination could be saved, let the Senate do its work?
MARK LANDLER: An extremely restrained response from President Trump. No tweets. When he was asked about it in the Oval Office, he answered with I thought extraordinary restraint in a week when he had shown very little restraint. I mean, this is a president who was disappointed in Brett Kavanaugh’s performance in his interview on Fox early in the week when Kavanaugh, if you remember, was rather programmed and robotic and not very impassioned. He clearly loved Brett Kavanaugh’s performance before the committee. He liked the anger. He liked the defiance. I think he relished the heavily partisan tone that Kavanaugh took with the senators, the Democratic senators. He tweeted this is why I nominated this guy.
But now in the wake of this last 11th hour switch, I think the White House’s calculation is we don’t want to upset this process, maybe we’re pretty close to getting where we want to be, so I think the president was very restrained and is determined not to be provocative during this period.
MR. COSTA: And it’s got to be tough for him, Molly. Senator Flake has been quite the foil for the president. What did you make of Flake’s decision? You’ve covered him. Is this a retiring senator who’s doing his own thing? Is he actually trying to check the box to make sure the nomination goes through? What’s the read?
MOLLY BALL: Well, you know, say what you will about Jeff Flake, he’s a very earnest man and he has styled himself as sort of the conscience of the Senate in a way that tends to annoy both parties. He’s not loyal enough for any of the Republicans to like him, even – and some of – but then for the Never-Trumpers, he doesn’t stand up to Trump enough. And for the Democrats’ part, he’s too conservative and doesn’t stand up to Trump enough. So even though he’s been quite an antagonist of President Trump, is retiring because of his opposition to the president, wrote a whole book about his opposition to the president and, by the way, will be in New Hampshire on Monday – (laughter) – speaking about all of the things that –
MR. COSTA: Are you thinking he’s going to actually run in 2020? Is this part of the 2020 gambit?
MS. BALL: I have no idea, but that’s something you do if you’re thinking about it and he hasn’t ruled it out. And again, if he did that, I think he would – one hates to give politicians credit for any kind of earnest motives – but if he did that, I think it would be because he feels someone ought to step up and do it. He is really profoundly, as Seung Min said, profoundly pained, profoundly disturbed by some of the things that he sees going on. And I think he’s driven as much, you know, by the – he talked about, you know, the victims that he talked to and the women in the elevator, but I think he’s driven just as much by his concerns about norms and process and bringing the country together. That was what he talked about –
MR. COSTA: Yeah.
MS. BALL: – in his statement announcing this move was, if we continue on this rushed partisan basis, we’re just further dividing the country. This one-week delay is an opportunity to make this a more bipartisan process.
MR. BENNETT: Right. And he gave voice to that speaking to reporters just a couple of hours ago. He said when he walked into the Senate meeting today, he saw Democrats yelling at Republicans, Republicans yelling at Democrats, some Democrats leaving the meeting early and he thought that this one-week delay was the one area of compromise, and so it’s interesting. In a current political moment that is so colored by tribalism, this was a day that institutionalists really want, people who believe in institutions and the processes that run them, this was a day that I think that – yeah.
MS. BALL: Well, and you even heard some Democrats annoyed with the Democrats on the committee –
MR. BENNETT: Yeah.
MS. BALL: – emphasizing process, emphasizing the FBI investigation, pleading with their Republican colleagues only – you know, playing on this institutional motivation rather than going a more partisan line, rather than confronting Kavanaugh more frontally with Dr. Blasey Ford’s testimony. But that appears to have been a working – a gambit that worked.
MR. COSTA: So we’re talking about a gambit that worked, what about the whip count? Does this actually adjust where the votes could stand a week from now? If the FBI proceeds, could some red-state Democrats, who said today earlier they’re going to vote no on Kavanaugh, could they maybe change their minds, could this actually help Kavanaugh down the line?
MS. KIM: Well, it’s interesting. We started earlier this week with Senators Flake, Murkowski and Collins, the influential votes, and we end this week with Senators Flake, Collins and Murkowski the influential votes.
I think it’s important to remember that we don’t know what the FBI is going to find. He has – Judge Kavanaugh has already gone through six background checks. There is various public service positions. It could be that the FBI finds nothing and it essentially kind of gives cover to folks like Flake and folks like Murkowski and Collins to really full-heartedly support him at the end of the day.
MR. COSTA: And are negotiations going on about what the FBI actually has to do? Will they bring up Mark Judge for an interview, one of the alleged witnesses of this incident?
MS. KIM: Yeah. And Mr. Judge indicated earlier today that he would be willing to talk as long as the discussions were done confidentially.
One person I would really watch in the coming days is actually Senator Joe Donnelly because he already – he actually announced earlier today that he would oppose Judge Kavanaugh, which was very surprising. He was one of the three red-state Democrats who backed Neil Gorsuch last year in a tough reelection race. We thought he would be very likely to support Judge Kavanaugh, even as these – even as these allegations broke.
But if you’ve read his statement, it had – his statement didn’t mention, for example, concerns that Judge Kavanaugh would be a deciding vote to overturn protections in the Affordable Care Act, which is something that a lot of red-state Democrats have talked about. It talked a lot about this process, he was concerned that there was no FBI investigation that had looked into these allegations. So I don’t think he’s going to change his mind, but it would be something to watch.
MR. COSTA: Geoff?
MR. BENNETT: Well, it’s interesting. He reached out to the White House to ask what exactly that phrase this investigation should be limited in scope, what that really means. The White House directed us to the FBI. We asked the FBI, the FBI directed us back to the White House. So if the – if the White House takes the lead of Jeff Flake, then that would suggest that only the accusations that we currently know of, certainly to include the one from Dr. Blasey Ford, would be investigated, perhaps the other – the other two. We’ll have to – we’ll have to see from there.
MS. BALL: And I do want to point out, the Senate Judiciary Committee said the investigations would cover, quote, “current credible allegations.” I asked them, so what does that mean, just Dr. Ford or the other two or another one? And I haven’t heard back yet.
MR. COSTA: So the nation was transfixed, not only today watching the Senate Judiciary Committee, but by the riveting testimony of both Blasey Ford and Kavanaugh.
MS. FORD: (From video.) I believed he was going to rape me. I tried to yell for help. This is what terrified me the most and this had the most lasting impact on my life. It was hard for me to breathe and I thought that Brett was accidentally going to kill me.
JUDGE KAVANAUGH: (From video.) I’m not questioning that Dr. Ford may have been sexually assaulted by some person in some place at some time. But I have never done this. I am innocent of this charge.
MR. COSTA: Mark, so different than that Fox News interview a couple of days earlier. You had Judge Kavanaugh almost red in the face, indignant, fighting back. It brought back memories of Clarence Thomas, Justice Thomas, at his confirmation hearings in 1991. Was the White House urging Kavanaugh to take this approach on Thursday?
MR. LANDLER: The White House wanted him to be a fighter and they wanted him to show defiance and that’s what they got. What’s interesting about that performance, though, is that by being so nakedly partisan, by dredging up the Clintons, by using terms like a “political hit job,” I think that Judge Kavanaugh has raised other questions that go beyond the scope of the sexual misconduct allegations. They go to questions of, if he is confirmed, what kind of emotional and psychological baggage will he bring with him into the Supreme Court? It’s often been said that Clarence Thomas was radicalized by that confirmation hearing in his term as a Supreme Court justice.
The other question is, what is Judge Kavanaugh’s, Justice Kavanaugh’s position going to be on cases that come before the court brought by progressive groups or Democrats? He has shown himself, perhaps unlike any previous Supreme Court nominee, to be a partisan fighter, a partisan warrior. That might have worked in solidifying his position, in fact perhaps in salvaging his nomination with the Republicans on that committee, but it also raises some broader questions about his suitability, his temperament were he really to take a seat on the court.
MR. BENNETT: Yeah, that’s a great point, because certainly the way he behaved, I think, calls into question his ability to be viewed as a neutral jurist. But in the zero-sum political game, you talk to people in the White House, they say that performance is what gave Republicans – in real time we saw this with Lindsey Graham – gave Republicans cover to defend him. Remember, they dispensed with the – or with the female prosecutor they hired.
MR. COSTA: Rachel Mitchell, the prosecutor from Arizona.
MR. BENNETT: Right. And then they all decided to speak up in his – in his support. Although today we saw the political sort of center of gravity shift back to Jeff Flake. He sort of put himself up there as a heatshield to take on all the incoming for the moderate Republicans and so now they have leverage and the whole thing has just shifted.
MR. COSTA: Molly, I want to ask you about this Republican anger we saw, because during Thursday’s committee hearings, Kavanaugh didn’t hold back his anger, as we’ve said, and neither did South Carolina Senator Lindsey Graham.
JUDGE KAVANAUGH: (From video.) This confirmation process has become a national disgrace. The Constitution gives the Senate an important role in the confirmation process. But you have replaced advice and consent with search and destroy.
SENATOR LINDSEY GRAHAM (R-SC): (From video.) This is not a job interview. This is hell. This is going to destroy the ability of good people to come forward because of this crap. Your high school yearbook – you have interacted with professional women all your life, not one accusation. You’re supposed to be Bill Cosby when you’re a junior and senior in high school and all of a sudden you got over it.
MR. COSTA: Molly, we had during Dr. Ford’s testimony Rachel Mitchell, the prosecutor, question after question, then the Republican fury just came out. What does that tell us?
MS. BALL: Well, first of all, I think you can’t blame the Republicans for being mad. There are so many questions about the way that this was handled by the Democratic minority. And we have not gotten good answers for the really strange way that this ended up coming out, why Senator Feinstein had this information, sat on it and then when it was after the point where it should have probably been broached in some way, even confidentially, never shared it with her colleagues, never shared it with the majority on the committee. And then it comes out in some kind of leak, which also there are questions about, and then this whole set of events happens. Whether that was a conspiracy or just incompetence, I don’t think you can blame the Republicans for being angry about that series of events whether or not, you know, the allegations are true. And it – and none of that is to say that we shouldn’t get to the bottom of these allegations or believe Dr. Blasey Ford.
But you did have this outpouring of anger by the Republicans and, of course, by Judge Kavanaugh as well, in a way that I think was very unexpected. I think people expected him to be much more like the sort of controlled and even-tempered person that he tried to be in that Fox News interview, and a lot of Republicans did end up cheering at the end of the day, feeling like he was – he was being authentic in a way that he hadn’t before and in a way that they could identify with. But the upshot of it all is that it was a tremendously ugly and angry and partisan spectacle, and it’s hard to imagine – this is what I wrote about this week – it’s hard to imagine that this doesn’t erode public trust in the Supreme Court in the long term. And that is something that was already declining, and that is something that hurts the institution of the Supreme Court because the Court can’t do its job in a credible way if people in this country don’t have confidence in it as an institution that is not merely political.
MR. COSTA: What about Dr. Ford? What a compelling turn for her, as well as we saw from Judge Kavanaugh. There are talks among some of my Republican sources on Capitol Hill after she spoke that maybe he’d have to withdraw she gave such a strong showing.
MS. KIM: That’s exactly right. And when we were able to catch Republican senators coming out of that hearing who had to listen to her testimony in person and asked what did you make of it, we had Senator Orrin Hatch telling us I don’t find her uncredible, and Senator John Cornyn said very similar things as well. I mean, they cautioned that it was early; they wanted to hear from Judge Kavanaugh. But you definitely sense Republicans feeling, wow, she is believable, she is credible. And then the tone just changed so sharply after Judge Kavanaugh delivered his fiery opening remarks, which I will tell you a source close to Kavanaugh told me that he wrote every word of it himself.
MR. COSTA: No help from the White House?
MS. KIM: No pre-clearance, no help at all from the White House. It was him and a former law clerk who worked through the night to put that speech – put that opening statement together. And then you also saw the momentum shift, at least among Republicans shift completely back into Judge Kavanaugh’s favor. And as he finished his testimony at about six, seven o’clock last night, you saw all the comments from Republicans backing up and defending Judge Kavanaugh, not only from the committee as they were leaving the room and talking to us reporters, but also the stream of statements coming in from all the other Republicans – almost all the other Republicans not on the committee affirming their support for Judge Kavanaugh.
MR. LANDLER: I mean, just to take it out of the calculus of party politics for a moment, there were other sides of Judge Kavanaugh that I don’t think came out well in that, particularly in the Q&A portion of his appearance when he made – threw charges of – not charges but questions about drinking habits back at senators who were questioning him; when he actually asked Senator Klobuchar, a Democrat, whether she had blacked out moments after she described her own father’s struggles with alcoholism, something for which he apologized when he came back to the hearing table. I think it showed a side of Judge Kavanaugh that perhaps fits too neatly into the picture of privilege, of entitlement that some people were spinning about him. And so I do think that while it all made sense politically and may have helped, and may indeed have saved his nomination with Republicans, there’s a cost attached to the way he presented himself.
MR. COSTA: I want to come back to what you were talking about in your TIME cover story this week. This is about more than left versus right, about – as Mark was saying – more than the political points. I mean, we saw a visceral discussion of gender issues, power, politics as well this week.
MS. BALL: Yeah, and it’s, you know, almost absurdly fitting that this would be the consuming controversy right before this midterm election in an election cycle that already for a year and a half now, almost two years, has been centered around women’s rage, women’s anger, women’s desire to make their voices heard and stop being silent about things that they have suffered for years, women’s buried pain and women’s inability to tell their own stories. That has been the subtext – or not even the subtext, the text – not just of our politics, although it has very much been driving every aspect of our politics and I believe will be the deciding factor in the midterms, but of our entire culture. There has been this revelation of what was being the mask of all of these men who were deciding what shows got produced on television and in Hollywood, the men who were making the decisions about what laws got introduced in the United States Senate or how decisions got made on the United States Supreme Court. And so for so many women it’s been an incredible awakening, and this debate just brought that to life in the most vivid way imaginable. And that’s why I think you saw such an outpouring of emotion all across the country completely outside of politics around Dr. Blasey Ford’s testimony.
MR. COSTA: Outpouring of emotion and the whole country was transfixed. I mean, everywhere you went I got – it was a day where I got so few emails. (Laughter.) Everyone was just watching it. A powerful moment in this country. We’ll see what happens next week.
We have to leave it there. Our conversation will continue online on the Washington Week Extra. We will talk about the reaction President Trump received this week from world leaders at the United Nations when he promoted his America first agenda. You can find that later tonight and all week long at PBS.org/WashingtonWeek.
I’m Robert Costa. Thanks for joining us.