Getting to yes: How the Senate confirmed Brett Kavanaugh
Just minutes had passed after the conclusion of the historic and emotionally-fraught congressional hearing where Christine Blasey Ford accused Judge Brett Kavanaugh of sexually assaulting her three decades ago, and the four senators who would decide the fate of arguably the most contentious Supreme Court nominee in history quietly gathered in an ornate third-floor Capitol office.
Sens. Lisa Murkowski, Susan Collins, Jeff Flake and Joe Manchin — three Republicans and a Democrat respectively — huddled in Collins’ Capitol Hill hideaway to take their own assessment. There were just hours before the Senate Judiciary Committee was preparing to vote on President Donald Trump’s nominee, and Kavanaugh’s fate was in the hands of the four senators who gathered together to discuss a path forward.
They didn’t want company.
“Go!” Murkowski ordered a reporter who was staking out the location when she arrived at the office.
That meeting kicked off a remarkable week in which Kavanaugh’s nomination twisted and turned through an unexpected FBI investigation, intense protests that required senators to take police escorts through the Capitol and a rare vote in which Senate leadership was genuinely unsure of the outcome.
Amid all of the drama of the Kavanaugh confirmation — the hearing, the demonstrations, the surprise FBI investigation — the moves made by Senate Judiciary Chairman Chuck Grassley, Majority Leader Mitch McConnell and the White House were all taken with the undecided quartet in mind. It was all about getting them to yes.
The remarkable confirmation, which was contentious even before it was upended by sexual assault accusations against Kavanaugh, sparked a bitter feud between Republicans and Democrats that has senators warning the Supreme Court confirmation process may have been forever tainted.
The outcome of the decisions and actions made on Capitol Hill over the past eight days will be a lasting hallmark for analyzing McConnell’s legacy as majority leader, the direction of the Supreme Court and for shaping the political futures of Collins, Murkowski and other lawmakers.
In the middle of the fracas was the undecided caucus, the four lawmakers who ultimately dictated the roller-coaster process that culminated in Saturday’s final confirmation vote almost three months after Kavanaugh was nominated. Both sides had hoped they could peel off other votes, but the four senators shared a unique bond because of their position.
“I think you all know we trust each other,” Manchin, one of the yes votes, said after the meeting with the three Republicans. “We are friends, which is so hard to find around here.”
The entire nomination, but the past two weeks in particular, tested the relationship between Trump and McConnell — marked by several tense phone calls — but the President ultimately put his trust in the Kentucky Republican and McConnell delivered with a 50-48 final vote Saturday afternoon.
The reporting for this story is based on interviews with more than two dozen senators, aides, White House officials and others directly involved in the process, many of whom requested anonymity to candidly discuss the confirmation.
Half of the undecided caucus was needed to put Kavanaugh on the bench. In the end, three of the four decided to back him as the next Supreme Court Justice. Here’s how they got to yes.
Four unique politicians
Each of the four senators approached the Kavanaugh decision differently, and they required a different touch from McConnell and the White House to try to get them to yes.
Collins went through a deliberate process to work through his record and his views on controversial issues, particularly abortion rights and Roe v. Wade. She was frequently in touch with Kavanaugh’s team and White House counsel Don McGahn, who shepherded the nomination. If she wanted to get Kavanaugh on the phone, he was available to talk.
Collins, up for re-election in Maine in 2020, was in a no-win situation politically — a vote for Kavanaugh would galvanize Democrats, while a vote against would likely spawn a GOP primary challenge.
Murkowski, on the other hand, was largely inside her own bubble when deciding how she would vote on Kavanaugh. McConnell largely left her alone to work through her process, although Republican leadership ensured she had the information she needed from Kavanaugh on her state-specific concerns related to the Alaska Native community.
Flake was in the middle of the action as a member of the Senate Judiciary Committee, a frequent Trump critic who wasn’t facing re-election after he opted to retire in 2018. The most conservative of the undecided Republican senators, Flake was in touch with outside conservative voices who lobbied him to back the nominee.
And Manchin was the lone Democrat in the quartet, also the only one facing re-election next month. But he also comes from a state where Trump won overwhelmingly, and where Kavanaugh is favored. Manchin stayed in touch with the White House throughout the process — and relayed to them how he was voting the morning of the key procedural vote.
Republicans huddle after blockbuster hearing
On the Thursday evening after the Kavanaugh hearing, as the undecided quartet huddled in Collins’ hideaway, the rest of the Senate Republican conference was gathering in McConnell’s office one floor directly below to discuss their next steps.
When GOP senators met behind closed doors, the vast majority of the conference was “champing at the bit to get him confirmed,” according to one Republican senator. South Carolina Sen. Lindsey Graham, who gave a fiery speech during the hearing, was greeted with a round of applause when he entered.
But the vast majority of the conference was not a majority of the Senate. And the undecided quartet’s meeting was all the evidence needed that Kavanaugh’s second pass at testifying wasn’t enough to get the votes.
Just hours earlier, Kavanaugh’s confirmation prospects looked bleak after Ford delivered credible and convincing testimony about being sexually assaulted in high school.
But Kavanaugh had responded with his own compelling performance: A defiant rejection of the accusations. And, perhaps most importantly, Senate Judiciary Republicans led by Graham ditched their hired outside counsel and angrily denounced Democrats for raising the accusations against Kavanaugh at the 11th hour.
Flake, the only member of the undecided quartet who was on the Judiciary Committee, said little at the hearing itself, taking only a minute of his allotted time.
Leaving the Republican meeting late that Thursday night, Collins and Murkowski tried to avoid reporters swarming outside, which kicked off a weeklong cat-and-mouse game between the burgeoning Capitol press corps and all four senators who tried to say little about how they were considering Kavanaugh’s confirmation.
When reporters chased Collins back up to her hideaway, her aide had them removed, stating it was an area where press stakeouts were not allowed, something reporters deny.
The committee vote sparks an investigation
The next morning, the drama about the Judiciary Committee vote seemed to dissipate with a statement emailed to reporters minutes before the committee was to meet: Flake was a yes on Kavanaugh.
“Oh f***,” Sen. Chris Coons, a Delaware Democrat and close friend of Flake, uttered when he was told of Flake’s statement.
It was a huge step to getting Kavanaugh on the bench, as only one of the other three undecided senators would have to back him to get to 50 votes.
Then an elevator door didn’t close.
In a stunning scene that aired live on CNN, Flake was confronted on his way to the Judiciary Committee meeting by two protestors who passionately told Flake they were assaulted and not believed either, holding open his elevator door and urging him to reject Kavanaugh.
“You’re telling me that my assault doesn’t matter,” one of the woman angrily told Flake.
The Arizona senator eventually arrived at the Judiciary meeting, where a 1:30 p.m. ET vote was set on whether to favorably recommend Kavanaugh to the full U.S. Senate. The scene inside was tense, with Democrats angrily protesting the Supreme Court nominee, and Flake sat stoically with a frown.
But with a little over an hour left before the vote, Coons delivered an impassioned speech to the committee, imploring Republicans to take time to investigate further the sexual assault allegations against Kavanaugh. Immediately after he finished, Flake stood up and signaled to Coons to join him in the anteroom.
Hours after his initial statement of support appeared to shore up Kavanaugh’s nomination, Flake was once again about to single-handedly change the course of the confirmation.
The time for the vote came and went, but Grassley and Sen. Dianne Feinstein, the top Democrat on the panel, had joined Flake and Coons in the back.
Flake wanted an FBI investigation — “all due diligence,” as he described it. In negotiations with Grassley, Flake agreed for an investigation of not more than one week, and limited in scope to current and credible allegations.
Flake didn’t have any written commitments — there was mass confusion when Grassley gaveled out the hearing and Feinstein thought the committee would take a vote on a motion from Flake — which meant McConnell could have ignored Flake’s request.
But Flake had Murkowski, Collins, and Manchin in his corner, and that was all he needed for the FBI investigation to move forward with the backing of McConnell and the White House.
‘We’re only at halftime’
Much has been made of the relationship between McConnell and Trump during the New York businessman’s 20-plus months in office — it has ebbed and flowed, been characterized by cold phone calls and Twitter attacks at one point, only to turn into a productive, if not entirely warm, relationship that has led to significant conservative victories on items like the 2017 tax law and an overhaul of the federal judiciary.
In that way, the Kavanaugh confirmation battle largely mirrored the relationship on the whole. Trump, sources say, had placed trust in McConnell and his close ally McGahn when it came to judicial picks; few accomplishments garnered more praise from Republicans than their work in that area.
And while McConnell warned that during the decision-making process that Kavanaugh had baggage because of the sheer size of a paper trail that came from a career in government service, he was high on his credentials and record and wasted no time throwing his weight fully behind the pick.
But the allegations from Ford, which snowballed into allegations from Deborah Ramirez and more, once again for a time threw the relationship into a tenuous place.
Trump stated publicly he wished the Senate GOP leadership would hold the vote earlier than they planned — something leaders deemed impossible given one fact: they didn’t have the votes. According to a source familiar, McConnell at one point warned Trump in a phone call that a series of tweets questioning Ford’s account weren’t helpful in his effort to get, or keep, his conference on board with the nomination.
The week prior, it was Trump lambasting McConnell, according to a source familiar, in a profanity-laced volley that made clear privately what he’d said publicly: that Kavanaugh should have already had his vote, and the process had gotten away from the Senate’s top Republican.
But as the tensions leaked out to the press and seemed to provide a peek into a once again rocky relationship, it calmed in the days following. Regular phone calls between the two continued, with McConnell keeping the President updated on the process and the votes, and making clear what needed to be done to get the nomination across the finish line.
Trump, too, de-escalated, at one point, telling McConnell that on some days that it was the Kentucky Republican — and not Trump himself — who had “the hardest job in Washington.”
There was never a point of mending fences. Instead, it was more of a decision that has defined their relationship for an entire Congress: Move past disagreements and try to get to the finish line.
And McConnell stayed firm. On the day of the Kavanaugh hearing when McConnell entered his party’s weekly lunch, it was clear some of his members were rattled. Some were even despondent, according to two people in the room. McConnell calmly said a few words to the assembled group: “We’re only at halftime.”
The FBI investigates some — but not all — of the allegations
By the end of the day on which Flake requested the FBI investigation, the probe had already kicked off after McConnell and the White House quickly, if reluctantly, agreed to the Arizona Republican’s request for a supplemental background check.
But the ad hoc nature of the agreement left some room for interpretation about just what the FBI was investigating — which Democrats accuse Republican leadership of exploiting to ensure the probe wouldn’t turn up anything.
Both the White House and Senate Republicans said they weren’t directing the FBI investigation, but the parameters given to the FBI — investigating current, credible allegations — led to the decision not to interview Ford or Kavanaugh as part of the supplemental background check.
It also meant the FBI did not probe allegations from Julie Swetnick, who was represented by Michael Avenatti, the Democratic lawyer who represents Stormy Daniels.
In fact, the allegations that Avenatti was pushing gave Republicans an opening to go on offense.
In their statements denouncing a smear campaign against Kavanaugh, Republicans repeatedly referred to the gang rape allegations that Swetnick raised. Among her allegations, she alleged that at some parties in th 1980s, boys lined up by a bedroom to “gang-rape” incapacitated girls and claimed those in the lineup included Kavanaugh. But she did not say Kavanaugh assaulted the girls in the bedroom, nor did she provide the names of corroborating witnesses.
Kavanaugh furiously denied the allegations.
The Republicans made a gambit: That the undecided senators would side with them over how Avenatti’s involvement showed that the attacks on Kavanaugh were nakedly political.
It convinced Collins, who cited the gang rape allegation in her speech Friday announcing her decision to support Kavanaugh and said the “outlandish allegation was put forth without any credible supporting evidence.”
Senate Democrats say Avenatti set them back.
“Democrats and the country would have been better off if Mr. Avenatti spent his time on his Iowa vanity project rather than meddling in Supreme Court fights,” a senior Senate Democratic aide fumed.
Collins contemplates, protests erupt
As senators waited for the FBI’s investigation to conclude, protests around the Capitol complex heated up.
Senators began moving with police officers around the Capitol, and Collins in particular seemed rattled by the commotion. The typically friendly and talkative senator looked troubled and uncertain and limited her interaction with reporters to just a few sentences at a time. Capitol Police closed hallways to the public — and the press — as she left hearing rooms and her office, and she had multiple officers escorting her to votes.
Collins was trying to avoid talking to the media, but she was talking about Kavanaugh to others. President George W. Bush repeatedly spoke to Collins in the weeks leading up to the vote, reassuring her of Kavanaugh’s character and temperament, according to a person familiar with the calls. Kavanaugh was an associate counsel and staff secretary in the Bush administration.
Beyond the sexual assault allegations, Republican leaders were concerned that Kavanaugh’s angry sparring with Democrats opened up doubts about his temperament to be on the court. In addition to the phone calls, Kavanaugh penned an op-ed the night before the vote, in which, he apologized for being emotional at the hearing and insisted he could be impartial.
McConnell also was key in helping Collins, though the two often aren’t ideologically aligned. McConnell, aides on both sides say, understands the process Collins goes through before she votes. It can be frustrating to the more conservative rank-and-file members of the conference — the rigor she brings to moving through each issue or policy often takes longer than her colleagues, and her willingness to finalize her vote most certainly does.
But it’s a process McConnell has learned to work within. Collins “has to be thorough and methodical,” according to one GOP aide. And McConnell “gives her room to breathe.”
If McConnell could help connect Collins with the White House or create a pipeline for information, he would. If she didn’t ask for anything, he largely left her be to go through her process.
Vote scheduled before Collins was ready
The FBI’s 45 pages of interviews arrived at the Capitol in the early Thursday morning hours, a single copy that senators would have one day to read before the vote.
Democrats and Republicans traded time with the document, and Republicans briefed their members that the FBI found no corroboration of the assault allegations. Collins attended the briefing, and said afterward she found the FBI conducted a “very thorough” investigation. Murkowski did not — she wanted to read the report herself, alone.
When Flake said that he agreed with Collins’ assessment, Republican leaders were optimistic they had the votes they’d need, though they couldn’t be certain.
The senators all went back to read the report again themselves. Murkowski arrived late into Thursday evening, and two of her close colleagues, Republican Sens. John Hoeven of North Dakota and Jim Risch of Idaho, were also spotted leaving the Senate’s secure spaces.
McConnell scheduled the Friday procedural vote for 10:30 a.m. It was the rare vote where the leader couldn’t be assured of the outcome, but the undecided senators would finally lay their cards on the table.
Except Collins wasn’t ready.
Her aide told reporters that the Maine Republican would vote yes on the procedural vote — but she would announce her confirmation vote later Friday afternoon, meaning the outcome could still remain up in the air after the first vote.
One of the undecided senators was ready to speak. Sitting at her desk, Murkowski stood slowly when her name was called, paused and then said “no,” and slowly sat back down.
After the vote, Murkowski and Collins sat together. They were often a pair, the two moderate, female senators in the Republican conference, but in this case they had taken separate paths to their votes.
“I believe we are dealing with issues right now that are bigger than a nominee,” Murkowski explained. “In my view, he’s not the right man for the court at this time.”
Despite Murkowski’s no vote, Republicans had reason to remain optimistic: Manchin and Flake voted yes. Flake said leaving the Capitol that he was a yes, unless something major changed — the same position he had staked out a week earlier when he prompted the FBI investigation.
Manchin didn’t tip his hand, but Grassley later said he knew at that vote they were going to win confirmation. “Body language,” he explained.
After the vote, Collins went down to the Senate dining room and sat with McConnell and Sen. John Cornyn, the Senate Majority Whip. As her 3 p.m. ET speech neared, Collins’ Republican colleagues gathered in the chamber. Two rows in front of her desk, McConnell and Cornyn turned their chairs around to face Collins.
Collins gave a 45-minute address that laid out the process she took to decide her vote, which also underscored how the efforts to assure Collins and give her access to the nominee had paid off. Her speech made clear that Collins was a strong supporter of Kavanaugh, as she explained why her conversations with him led her to believe he would not overturn Roe.
“When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said ‘no,'” Collins said. She had gotten to yes, and in so doing, crossed a crucial threshold for Senate Republicans, virtually assuring Kavanaugh would be confirmed.
Minutes after Collins had concluded, Manchin spoke to reporters outside his office — it was a chaotic scene that included angry protestors chanting him down — and announced that he was also supporting Kavanaugh. The only Democrat who would support the nominee, Manchin was attacked by his base as well as his Republican opponent, who accused him of only backing Kavanaugh once the outcome was clear.
Manchin said he made the decision Friday morning. He also cited the conservative make up of his state. “I’m just a West Virginian. I’m just a good ole West Virginian,” he said as he explained his vote.
Manchin’s decision left Murkowski as the only member of the undecided quartet to oppose Kavanaugh.
She decided to make her own speech on the floor late in the day Friday, long after the commotion over Collins’ speech had subsided. The scene was starkly different. Murkowski, the lone Republican to vote no, was nearly alone in the chamber, none of her colleagues present, as she explained why only one GOP senator would ultimately vote against Kavanaugh.