I’ve heard, or seen on Facebook, a number of people talking about how the Democratic Senators on the Judiciary Committee overplayed their hands with the Ford/Kavanaugh controversy. They were too hostile and too accepting of Ford’s claims at face value, goes the argument. And it backfired on them. They didn’t get their way. Kavanaugh will be sworn in to the Supreme Court today.
There’s another way of looking at it: incentives work.
I have in mind the incentives faced by 3 of the Democratic Senators: Dianne Feinstein, Cory Booker, and Kamala Harris. Consider them in order.
- Dianne Feinstein. Feinstein is running for reelection this year. She faces a challenge in November from a Democrat to the left of her: Kevin de Leon. (That’s because of the unusual law in California according to which the two highest vote getters in the primaries, regardless of party, are the only 2 on the ballot in November.) So it made sense to her to run with the Ford letter accusing Kavanaugh even if she had doubts. She needed to energize the left wing in her favor. She could tell them that she fought the good fight, even if she lost the fight, which she did.
- Cory Booker and Kamala Harris. Both are thought to be considering running for the Democratic nomination for president in 2020. To win that nomination, they have to appeal to the Democratic base, which is left. So both will look good to that base.
In short, we need to distinguish between what’s in the interest of the Democratic Party and what’s in the interest of the particular politician.
READER COMMENTS
Daniel Kuehn
Oct 6 2018 at 9:02pm
I’ll grant that the specific way they comported themselves or the way speeches were crafted was shaped in important ways by individual political incentives, but it seems like the overarching, driving incentive was to do right by a credible rape victim.
The real question is why their Republican counterparts treated a credible rape victim so terribly. Whether that’s simply because of political incentives or deeper issues, I don’t know.
I don’t quite understand your “overplayed their hand” commentary. It was a very difficult vote to win in the first place. Some Republicans could have potentially been peeled off but without a real investigation into all of these accusations it’s not surprising that didn’t happen. They didn’t seem to have overplayed their hand, they played it the best they could but without control of the committee or the FBI there’s very little they could do for these women.
David Henderson
Oct 7 2018 at 10:21am
Daniel Kuehn,
You write:
It didn’t seem that way to me at all. My take is that they not only found her credible, as did I at first, but went beyond that and believed her 100 percent.
You wrote:
I didn’t think they treated her badly. Trump did in that one speech in Mississippi. But I can’t t think of any Republican member of the Senate Judiciary Committee who did. What specifically do you have in mind, Daniel?
Daniel Kuehn
Oct 7 2018 at 11:51pm
David,
We see things very differently and I’m not clear on why. The Democrats of course found her credible (I did, lots of people did – that’s not really a partisan thing), but were pushing for a serious investigation of the range of evidence that came up. That’s not “believing her 100%” so much as saying it’s serious and needs to be looked into seriously. Certainly people said “I believe her” but that seems like more a statement of solidarity – however credible they found her they wanted it to be investigated, they did not want the question to be closed.
Which brings me to the terrible treatment by Republicans. It was good that Ford – (only one of three people who alleged Kavanaugh sexually assaulted her) got to actually testify, but the response to that was to resist investigation of her allegations, then investigate it incompetently, apologize to Kavanaugh that he had to go through it and harshly criticize everyone that tried to help her. That’s horrific treatment of someone who says they’ve been through a sexual assault. It’s offensive that so many people are defending that kind of treatment.
Mark Barbieri
Oct 8 2018 at 6:40am
Finding someone credible is very different than taking someone’s word over someone else. They both came across in the hearing as credible. The question is, what should the appropriate standard of evidence be? Many Republicans seem to want the allegations to be proven beyond a reasonable doubt and many Democrats appear to want the accused to be required to prove their innocence.
What should the standard be? I think anything less than a “Preponderance of the evidence” standard would be a disaster, opening the doors to a flood of false allegations. Anything more than “Clear and Convincing” seems like asking for too much for a political nomination.
In this case, I found Ford to be credible, but I didn’t see that the preponderance of the evidence indicated that Brett Kavanaugh had sexually assaulted her. I would have preferred clear evidence that one side or the other was lying, but it just wasn’t there. I sympathize with the argument that there should have been more time for the investigation, but there was a lot of time and it wasn’t used because the allegations didn’t come out until the end of the process. I’m also dubious about claims that spending more time researching this allegation would have helped. She couldn’t remember who was there, where it was, or when it was. The people she thinks were there don’t remember it. Aside from the interviews they did, what sort of evidence would be found in a case like this?
If her story is true, it’s terrible that he was unpunished. If she is mistaken or was lying, what was done to him was terrible. The world isn’t perfect.
Michael Byrnes
Oct 8 2018 at 7:39am
I don’t think this framing is correct, at a variety of levels. First, Kavanaugh was rabidly angry rather than credible. Second, what a credible allegation demands, first and foremost, is not a judgment in favor of the person making the allegation, but rather a complete investigation that takes all relevant evidence into consideration. That didn’t happen here.
This is not true. Most false allegations are going to fall away under investigative scrutiny. It’s highly unlikely that someone making up a story would be able to withstand several hours of sworn testimony about it without being evasive, refusing to answer certain questions, or contradicting herself, yet Ford did none of these things.
It is even more unlikely that someone making a false claim would beging paving the way for that claim 6 years in advance (by discussing the incident with a therapist), when the prospect of Kavanaugh’s elevation to the Supreme Court was unlikely, as well as telling various other friends more recently than that but before his actual nomination.
Her previous statements about her assault, in a criminal context, are what is known as “prior consistent statements; in crminal trials, jurors are instructed that prior consistent statements are evidence that a witness is being truthful. (Whereas the opposite, “prior inconsistent statements” are evidence that the witness is not being truthful.
In a criminal context, jurors would also be instructed that lying, evasiveness, and lack of candor in a witness can be reasons to doubt his testimony; Kavanaugh’s reliance on all of these would have hurt him in an actual court of law.
There is no timeline, other than a purely political one. As recently as 2-3 years ago, the Senate opted to delay consideration of a SCOTUS nominee for, literally, nearly 300 days.
An honest investigation would have documented and locked in Ford’s prior consistent statements (or falsified them, if they were flase statements). It would also have documented and locked in facts about Kavanaugh’s high school/college behavior that he chose to lie (or not lie) about. Both Ford’s consistency and Kavanaugh’s evasiveness are absolutely relevant to any sort of legitimate fact finding, and Senate Republicans turned a blind eye to both in the interest of expediency and/or hiding the ball.
I’ll tell you one thing that surprised the absolute crap out of me – going into the process, there was, in my opinion, approximately 0% chance that Kavanaugh himself would have a calndar in his posession that documented a gathering that sounded a lot like the one Ford desribed and lined up with a known timeline of events. But that happened! A thorough investigation may well have ruled that date in or out as the date of the event in question.
At the end of the day, I think rushing this confirmation through will prove to have been a terrible mistake on the part of Senate Republicans, given the types of decisions this now-appearing-to-be-politically-tainted-court is likely to hand down.
Mark Z
Oct 9 2018 at 1:21pm
Michael Byrnes:
“This is not true. Most false allegations are going to fall away under investigative scrutiny. It’s highly unlikely that someone making up a story would be able to withstand several hours of sworn testimony about it without being evasive, refusing to answer certain questions, or contradicting herself, yet Ford did none of these things.”
Sorry, but I see no reason why this would be the case. It is trivially easy to make a false allegation against a person you know or knew. Pick a time and place you were in the same room with them alone, and whatever details you come up with, stick to them, and your accusation is effectively irrefutable. The idea that it will generally be easy to weed out false accusations strikes me as both preposterous and dangerous.
“It is even more unlikely that someone making a false claim would beging paving the way for that claim 6 years in advance (by discussing the incident with a therapist), when the prospect of Kavanaugh’s elevation to the Supreme Court was unlikely, as well as telling various other friends more recently than that but before his actual nomination.”
Which there’s no evidence she did. Her therapists’ notes make no mention of Kavanaugh. We have to take her word for it that she actually specifically mentioned him. We’d have to take her word for it, but if we did that, we’d be reasoning in circles, since whether she id credible is precisely the question here.
“I’ll tell you one thing that surprised the absolute crap out of me – going into the process, there was, in my opinion, approximately 0% chance that Kavanaugh himself would have a calndar in his posession that documented a gathering that sounded a lot like the one Ford desribed and lined up with a known timeline of events. But that happened! A thorough investigation may well have ruled that date in or out as the date of the event in question.”
Really?! What are the odds that a kid attended a party during a summer? Hardly surprising. But then the fact that Ford gave herself such a wide berth (the span of several years, before gradually changing the time frame, until eventually settling on on an entire season) makes it all but inevitable there’d be an event matching the vague description. Moreover, the attendees and location of the party in his calendar are inconsistent with Ford’s account. I don’t know how you can accuse Kavanaugh of being evasive while still insisting Ford is being consistent. Did you forget about Ford lying about her fear of flying? It would seem she herself was interested in delaying things as much as possible, which is hardly reaffirming.
“At the end of the day, I think rushing this confirmation through will prove to have been a terrible mistake on the part of Senate Republicans, given the types of decisions this now-appearing-to-be-politically-tainted-court is likely to hand down.”
You’re right that there is no definite timeline. That doesn’t mean every conceivable reason to delay is a good one. There was no reason to expect an investigation would yield further information (the information about the calendar was already revealed, so apparently further investigation wasn’t necessary for that). The precedent set by indefinitely delaying a confirmation vote for an FBI fishing investigation due to an uncorroborated (and almost certainly uncorroboratable) accusation would essentially allow any nomination of anyone to be effectively stopped dead in its tracks from here on out. Don’t want someone confirmed? All you have to do is find one of the tend of thousands of people who’ve been int he same building as them who’s willing to say they did something bad, and put them in contact with a lawyer, and there you have it. Not a good precedent to set, imo.
TMC
Oct 7 2018 at 2:23pm
Daniel, Ford only had credibility for the first moments of her complaint. Every claim she made after that, that could be confirmed or denied, fell apart. Most people would, and did, not find her credible after that. Even Feinstein must have not thought much of the claims for her to have held the letter for that long. She knew it was a ‘Hail Mary’.
Mark Z
Oct 7 2018 at 2:31pm
I just don’t buy that limiting the scope if the investigation stood in the way of truth and justice. First of all, it’s not the FBI’s job to go on fishing expeditions. Secondly, the other accusations weren’t as credible as Ford’s (who I would say even became less credible with each putative witness who contradicted her story). Not only did the Swetnick claim not warrant an investigation (I’m inclined to compare it to pizzagate) but the best thing anyone could do for her was stop giving her a platform before she gets herself in trouble with her woefully inconsistent story.
Michael Byrnes
Oct 7 2018 at 7:14pm
The only witnesses who contradicted Ford’s story were Kavanaugh himself, and Mark Judge, an alleged coconspirator. Publicly, no one save Kavanaugh gave an abslute denial.
Brian
Oct 8 2018 at 12:17pm
Michael,
This is not accurate. Dr. Ford’s friend, Ms. Keyser, (despite saying that she believed Dr. Ford) not only stated that she didn’t remember the party described, but claimed that she didn’t remember ever attending a party with Kavanaugh. It is one thing not to remember a specific party, but quite another not to remember ever partying with someone. Add in the consideration that Dr. Ford’s story implies that Ms. Keyser was left alone at the party with 4 boys, one of whom was Kavanaugh, and this lack of memory becomes directly contradictory of Dr. Ford’s claims.
A full consideration of the evidence currently known suggests that Dr. Ford’s story, even if accurate in its central claim, cannot be an accurate memory from a single party. No one other than Dr. Ford remembers the specific event as described, nor do Judge Kavanaugh’s contemporaneous calendar notes match up with what is described.
Daniel Kuehn
Oct 7 2018 at 11:54pm
Nobody is asking them to go on fishing expeditions, we’re asking them to talk to people that say they’ve been raped and the people they’ve identified as witnesses at the very least. How are you thinking that’s a “fishing expedition”?
J Mann
Oct 10 2018 at 11:14am
Daniel, I honestly think that Katz’s request that the FBI interview Ford is disingenuous to the point that it makes me a little mad. Ford (a) declined the Senate’s request that she do an interview with a group of both GOP and Democratic investigators and (b) was given an opportunity to present any evidence she had in or prior to the hearing, after several weeks of preparation with her legal team.
If she had information that she and her legal team elected not to present to Senate investigators or to the Judiciary Committee, that’s on her. The FBI did (I believe) speak to everyone she identified as a witness. (Well, except for Kavanaugh, but he had already been through two sworn Senate interviews since Ford’s allegations became public, plus the open testimony. The Dems have plenty of former FBI agents available to him and had three opportunities to ask him anything they thought relevant.)
Chris
Oct 6 2018 at 9:27pm
I get what you’re saying overall, however, I think your characterization of Feinstein is accurate only from the midpoint of the process onward. They younger Dems on the Judiciary Committee were annoyed that Feinstein “sat on” the letter for as long as she did. Further, Ryan Grim, who broke the story of the letter was explicit that Feinstein wasn’t the source.
Once the story broke, I agree with what I take to be your argument. However, she only “ran with” made knowledge of it’s existence public.
Daniel Kuehn
Oct 6 2018 at 10:08pm
Right this is an important point. There’s a lot we don’t know about how the letter got revealed, but all indications suggest Ford did not want her name out there and Feinstein was taking steps to prevent that (again – incentives are complicated and Ford’s welfare can absolutely be in peoples’ objective function).
But as I said there’s a lot we don’t know. Obviously if the release was actually cynical the answer would be different. If that’s the case I don’t know why they leaked so late. If they really wanted to use Ford as a tool you’d think they would have released earlier where there was more time for a meaningful investigation to unfold, which suggests they were trying to respect Ford’s timeline.
Mark Z
Oct 7 2018 at 2:21pm
Releasing the accusation earlier would’ve been the honest thing to do precisely because it could then have been discussed in the hearings. It was extremely cynical that Feinstein waited till after the hearings to release it, with the apparent motivation being to delay the confirmation as long as possible.
Daniel Kuehn
Oct 7 2018 at 11:56pm
You’re saying that if a victim of an attempted rape came to you and told you that they did not want to be publicly identified you would out them before they wanted to come forward?
I don’t know who you are but I can’t imagine many people that see that as the right thing to do.
Mark Z
Oct 9 2018 at 1:27pm
“You’re saying that if a victim of an attempted rape came to you and told you that they did not want to be publicly identified you would out them before they wanted to come forward?
I don’t know who you are but I can’t imagine many people that see that as the right thing to do.”
I’d suggest reading what I actually wrote. I didn’t say out the alleged victim. I said release the accusation. Feinstein could’ve said, “I have an anonymous accusation against you…” while she was questioning him. And people could then have taken that into consideration accordingly.
Now, I wouldn’t consider consider an anonymous accusation to carry weight at all, but it’d be on the table. And if the accuser wanted to come forward to add weight to the accusation, that’d be up to her.
Maniel
Oct 8 2018 at 1:05am
Prof. Henderson,
I agree; even the partisans are hardly monolithic. However, I have a slightly different view of what happened.
As Senator Collins pointed out in her speech on Saturday, she based her vote to confirm Judge K on the “the presumption of innocence,” since his guilt in the attack on Ms. Ford was not proven. Her speech goes far beyond that point, but as I see it, Judge K’s supporters were successful in making the question of confirmation about failure to prove guilt. Senator Collins was on point again when she said, “this debate is complicated further by the fact that the Senate confirmation process is not a trial. But certain fundamental legal principles—about due process, the presumption of innocence, and fairness—do bear on my thinking, and I cannot abandon them.”
As compelling as her speech was, it masked one point seemingly under-rated by Dems and obfuscated by Reps: Judge K hardly distinguished himself as a well-qualified juror during the process. Early in the hearings, it seemed clear that Ms. Ford could not prove her case. However, she succeeded in rattling Judge K to the point where he became an unreliable counselor on his own behalf. One might have thought that a perceptive judge, even one under fire, but especially one “innocent of this charge … categorically and unequivocally,” would have noticed that there was no need to put himself at risk needlessly by introducing old calendars or new information, such as how much he liked beer.
Obviously, conflating a criminal charge with a political hearing is a volatile brew. But less obviously, it does appear that had the Dems focused on the point that the hearing had revealed Judge K to be a less than agile legal performer under stress, they might have carried more weight in the advice-and-consent arguments.
Weir
Oct 8 2018 at 9:49am
“However, she succeeded in rattling Judge K to the point where he became an unreliable counselor on his own behalf.”
He didn’t hear her testimony. He was with his family, and they weren’t listening to the testimony.
So he couldn’t have been rattled by her testimony because he hadn’t heard it.
Senator Feinstein’s questions, on the other hand, he heard. Specifically: “What you’re saying, if I understand it, is that the allegations by Dr Ford, Ms Ramirez and Ms Swetnick are wrong?”
Which surprised me when I heard it, because it suggests that Senator Feinstein thinks that the allegations by Ms Ramirez and Ms Swetnick are not wrong. And if Senator Feinstein believes that, then that’s really remarkable.
Weir
Oct 8 2018 at 9:55am
For the record, Michael Byrnes, some of your claims are incorrect.
“I’ll tell you one thing that surprised the absolute crap out of me – going into the process, there was, in my opinion, approximately 0% chance that Kavanaugh himself would have a calndar in his posession that documented a gathering that sounded a lot like the one Ford desribed and lined up with a known timeline of events.”
Remember that what Dr Ford described to her therapist was a party with four boys and two girls? And remember that at this gathering you’re talking about there were six boys and no girls? And that one of the boys at this gathering was Chris Garrett? And that Dr Ford should have remembered him being there, since she was dating him at the time?
“The only witnesses who contradicted Ford’s story were Kavanaugh himself, and Mark Judge, an alleged coconspirator.”
You forgot Mr Garrett, interviewed by the FBI. And you forgot Timothy Gaudette, also interviewed by the FBI. It was his house, but his house doesn’t match Dr Ford’s description.
You forgot Leland Keyser, also interviewed by the FBI. Dr Ford said that Ms Keyser is lying: “Leland has significant health challenges, and I’m happy that she’s focusing on herself and getting the health treatment that she needs, and she let me know that she needed her lawyer to take care of this for her, and she texted me right afterward with an apology and good wishes, and et cetera. So I’m glad that she’s taking care of herself.”
And you forgot P.J. Smyth, Bernie McCarthy, and Tom Kane. Mr Kane said this: “Tim Gaudette lived in Rockville. It’s 11 miles away from Columbia Country Club. And it wasn’t a single-family home. It was a townhouse.”
robc
Oct 8 2018 at 10:05am
What I find uncredible (is that a word?) is the timing. If this had come out during his confirmation to the Court of Appeals it would have been more credible. I don’t think his position in the Bush White House required confirmation, but if it did, then back up the timeline even further.
Or, you know, it really should have happened in the 1980s to be super credible, but I can let that pass.
Also, anything that requires “recovered memories” isn’t credible to me.
Hazel Meade
Oct 8 2018 at 10:10am
I think the problem is that the Democrats put the Republicans in a position where they HAD to confirm Kavanaugh. This is because Ford’s testimony was ultimately uncorroborated. If they were to vote Kavanaugh down on the basis of an uncorroborated allegation dating back to when he was in high school about him (let’s remember) NOT raping someone (her claim is merely that he tried and failed – something which was maybe only perceived as a rape attempt by her), then it would set a precedent which would encourage the future use of unsubstantiated allegations against literally anyone.
Are we really going to subject all future Supreme Court nominees to full bore FBI investigations of alleged incidents of misbehavior dating back to when they were teenagers, in the full glare of a media circus? Even if you believe Ford, such a precedent is destined to be thoroughly abused.
If Kavanaugh was really an abuser, I would have expected a string of additional more recent accusations to have emerged. But not one woman who clerked for him has alleged any problems.
I do think Ford is credible and she might be telling the truth about the incident, as far as she can remember. But I also think perhaps she was mistaken in interpreting it as an “attempted rape” – it’s impossible to know whether Kavanaugh (if it was him) really planned to go further. After all his friend apparently jumped on top of them and they wound up grappling on the floor. Who knows if his friend actually broke it up intentionally or what. And 1982 was a different place, where male misbehavior was more tolerated, and they were teenagers. He’s not that person anymore, and if he was we would know about it from more recent victims.
nobody.really
Oct 8 2018 at 6:02pm
1. Would anyone care to offer a list of people involved who were NOT acting consistent with their incentives?
2. Would anyone care to offer a scenario by which Kavenaugh would NOT have gotten confirmed?
Here’s how it looked to me: Republicans hold the majority of votes in the Senate. Historically it took 60 votes to end debate on a Supreme Court nominee, but in 2017 the Republicans exercised the “nuclear option” to eliminate that hurdle. Ergo, the Republican have the power and discretion to put Kanye West on the Supreme Court if they like. And, given Trump’s popularity with the Republican base, it would only be under the most extraordinary of circumstances that the Republican Senate would not simply rubber-stamp whoever Trump designated.
Given this context, I can’t draw any special conclusions from the fact that the Republicans did precisely what was in their self-interest to do.
That said….
Hazel Meade
Oct 9 2018 at 11:17am
2. If a number of different, more recent, accusations of sexual assault or harassment had emerged. Usually in these sexual assault cases, the person involved is a serial abuser (Cosby, Weinstein) so they might have incorrectly believed that disclosing this one assault allegation would cause a string of other women to speak out. It’s possible that that was what the Democrats were counting on – but it didn’t happen. There were a couple of additional allegations, also dating back decades, but nothing recent, and nothing that definitively pinned down Kavanaugh as the person involved.
nobody.really
Oct 9 2018 at 12:52pm
Fair enough; that might have derailed the nomination. Maybe.
But this scenario hardly supports the claim that Kavenaugh won confirmation because the Democrats “overplayed their hands.” Rather, it suggests that the Democrats played a weak hand about as well as could be expected (unless you subscribe to the view, outlined above, that the Democrats should not have been fighting this battle at all.)
nobody.really
Oct 8 2018 at 6:08pm
That said….
There is a new-ish war in America right now: Not a war between Republicans and Democrats; that’s old. Rather, it’s a war between the moderates and the extremes. In this case, the Democrats are ahead in the midterm polls, but lots of Democratic Senators are in Red states. Arguably these Democrats would benefit from drawing as little attention to this nomination as possible. After all, the fight is almost certainly merely symbolic because the Democrats simply lack the votes. So why draw the public’s attention to this, potentially upsetting the current midterm prospects?
Here, arguably, Dianne Feinstein, Cory Booker, and Kamala Harris were promoting their self-interest at the expense of their fellow Democratic senators.
Likewise, Republicans responded by turning the hearings into an unambiguously partisan fight–and the nominee joined in. This struck me as really unnecessary because the Republicans and the nominee knew that they had a majority of votes, regardless of what the Democrats did. The Democrats had a temper-tantrum because, well, that was the only lever left to them. The Republicans had one because, well, they wanted to.
Felix
Oct 8 2018 at 9:28pm
@nobody.really I thought the D’s did the nuke option. At the time that struck me as short sighted, at best.
https://www.washingtonpost.com/politics/senate-poised-to-limit-filibusters-in-party-line-vote-that-would-alter-centuries-of-precedent/2013/11/21/d065cfe8-52b6-11e3-9fe0-fd2ca728e67c_story.html
Hazel Meade
Oct 9 2018 at 11:19am
If accusing the nominee of being involved in gang rapes isn’t the nuclear option, what is?
nobody.really
Oct 9 2018 at 12:38pm
Check your linked article for the sentence, “The rule change does not apply to Supreme Court nominations….” ‘Cuz the Democrat’s rule change didn’t apply to Supreme Court nominations. The Republicans did that one.
Felix
Oct 9 2018 at 7:10pm
Yes. Which is one reason why I thought the original Nuke option was short sighted. It broke a socially held dam that should not have been broken for a passing whim.
Sometimes these parliamentary shenanigans remind me too much of how we, as teenagers, acted when a teacher taught us Roberts Rules and set us up in a simulation that resembled, as Congress does by design, Calvin Ball.
Teens. You can imagine the chaos. Good times. Good times.
nobody.really
Oct 9 2018 at 9:00pm
“Passing whim”? Blaming the decline of norms on the Democrats is akin to blaming the Civil War on Lincoln: It was on before he ever took office. In his 2012 book The New New Deal: The Hidden Story of Change in the Obama Era, Michael Grunwald traces the phenomenon to the House and Senate Republican strategy sessions shortly before Obama’s inauguration:
Traditionally, the majority party governs and members of the minority party trade votes for favors. But in 2008, after losing two election (Bush’s final midterm election, and Obama’s victory), most of the remaining Republicans were from hard-core conservative districts. These politicians had more to gain by burnishing their credentials as opponents than in actually delivering benefits for constituents. So following the 2008 election, they adopted a strategy of unified stonewalling. For all their remonstrations about the evils of unions, Republicans proved to be adept at adopting unions’ strategies. In his chapter on “The Party of No,” Grumwald reports:
___
“We’re not here to cut deals and get crumbs and stay in the minority for another 40 years,” said [Eric] Cantor…. Cantor dripped with disdain for get-along Washington Republicans who happily supported Democratic bills as long as they extract a bit of pork for themselves. “We’re not rolling over,” he said. “We’re going to fight these guys….”
Cantor’s chief of staff, Rob Collins, had invited two pollsters to address the group, and no policy experts. That’s because he recognized that House Republicans were now communicators, not legislators. They didn’t have the numbers to stop Pelosi from steamrolling Obama’s agenda through the House. They needed better PR strategies, not better policies. “They’re just going to ram right over us anyway,” Collins explained. When House Republicans had the numbers, they had done the same thing. Now their battle was in the arena of public opinion.
To win that battle, Cantor believed, the whip team had to keep Republicans united, so Obama wouldn’t be able to brag about bipartisan support for his agenda. That would require picking fights carefully; focusing on stark conflicts that could define their party and the president…. Whips didn’t have much power to enforce unity anyway, especially not minority whips…. They could only build team spirit, so Republicans would voluntarily stick together….
The challenge would be developing a consistent message of No without looking like a reflexively anti-Obama Party of No…. [A]t first the targets would be Pelosi and “Washington Democrats” rather than Obama.
“The Young Guns” [Cantor’s team] weren’t interested in playing footsie with Democrats….
Pete Sessions … opened his presentation with … an existential question: “If the Purpose of the Majority is to Govern … What is Our Purpose?”
Not to govern, that was for sure. His next slide provided the answer: “The Purpose of the Minority is to Become the Majority.”
House Republicans were now an insurgency – and “entrepreneurial insurgency,’ … Boehner declared, — and Sessions thought they could learn from the disruptive tactics of the Taliban. The key to success in this asymmetrical warfare, he argued, was to “change the mindset of the Conference to one of ‘offense,’ and to take the fight to the enemy….”
Two consecutive drubbings [2006 and 2008], while shrinking the Republican conference, had also dragged it even further right. Staunch conservatives from safe districts had survived, while the herd of moderates from competitive districts had been culled, including the entire House GOP delegation from New England. The Republican Study Committee, once a marginal outpost for hard-line conservatives, now included a solid majority of the conference…. Boehner had an occasional history of bipartisan behavior…, but that was “in a universe far, far away,” as Miller put it. Even if Boehner had wanted to reach out to Obama, he had to guard his right flank against Cantor, whose interest in his job was poorly concealed. So Boehner was already mocking the idea that spending [the “stimulus bill”] could ease the recession, berating Democrats to “start listening to the American people” as if Election Day had never happened.
After Republicans got whipped in 2006, party stalwarts like the House campaign chairman, Tom Cole, a rock-ribbed conservative from a rock-ribbed Oklahoma district, had argued for a less dogmatic message. Cole had been a political consultant before running for office – House Republicans had hoped he could be their Rahm [Emanuel] – and he had warned that the country was center-right, not right-wing. But after history repeated itself in 2008, Cole lost his post to the more dogmatically conservative Sessions.
The new leaders … had a new mantra: Our mistake was abandoning our principles…. They saw John McCain as a typical Republican In Name Only who had sought electoral salvation in ideological equivocation…. They even revised their opinions of George W. Bush…. And they viewed the homogeneity of their conference as an advantage. [I]t would be easier to unify a purer conservative team against Obama and Pelosi. They would have fewer “problem children,” as they privately described the conference’s moderates and iconoclasts.
[Senate minority leader Mitch McConnell] dubbed himself the Abominable No-Man.
McConnell reminded the Republican senators that there were still enough of them to block the Democratic agenda – as long as they all marched in lockstep….
Pelosi tried to persuade Boehner to work with Democrats on the stimulus, making an impassioned case that spending programs had higher Keynesian multipliers than tax cuts….
“Nancy said: We need to do something on jobs. And Boehner said: Why would we want to help you on that?” a senior Pelosi aide recalls. “You saw the beginning so of their strategy right there: They didn’t want their fingerprints on anything. And then if the economy didn’t turn, they’d win.”
Democrats weren’t interested in bipartisanship out of altruism; they wanted Republican fingerprints on the Recovery Act for similarly political reasons. As Tom Cole, now a deputy whip, wrote in his diary on January 7 [before Obama’s inauguration], “Dems are worried about a unified GOP opposition – not because they will not prevail but because they want joint responsibility.” In any case, House Republican leaders had already decided not to give it to them. They wanted Democrats solely responsible for the economy.
“It was apparent very early that this wasn’t going to be bipartisan,” Cole told me. “We wanted talking points: ‘the only thing bipartisan was the opposition.’”
[Meanwhile over in the Senate,] minority leader [McConnell] understood the power of partisanship as well as anyone in Washington. He knew that few Americans have the time or inclination to follow the nitty-gritty details of policy debates, so issues tend to filter down to the public as either “bipartisan,’ shorthand for a reasonable consensus approach, or “controversial,” shorthand for the usual political bickering. McConnell wasn’t sure he could stop Obama’s agenda, but he was determined to keep it controversial.
“He wanted everyone to hold the fort,” recalls former Republican senator George Voinovich of Ohio. “All he cared about was making sure Obama could never have a clean victory…. If he was for it, … we had to be against it.”
McConnell recognized the Obama’s promises of bipartisanship gave his dwindling minority real leverage. Whenever Republicans decided not to cooperate, Obama would be the one breaking his promises. And since Democrats controlled Washington, Obama would be held responsible…. Americans would see partisan food fights and conclude that Obama have failed to produce change.
“We thought – correctly, I think – that the only way the American people would know a great debate was going on was if the measures were not bipartisan,’ McConnell explained later…. “When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out.”
Maybe Obama had rewritten the rules of electoral politics, but the rules of Washington politics still applied. The dream of hope and change was about to enter the world of cloture votes [filibusters] and motions to recommit. That was McConnell’s world….
[A week after Obama’s inauguration] Boehner opened his weekly conference meeting with an announcement: Obama would make his first visit to the Capital around noon, to meet exclusively with Republicans about his economic-recovery plan. “We’re looking forward to the President’s visit,” Boehner said. [But regarding the stimulus bill, Boehner said] “I hope everyone here will join me in voting no!”
Cantor’s whip staff had been planning a “walk-back” strategy in which they would start leaking that 50 Republicans might vote yes, then that they were down to 30 problem children, then that they might lose 20 or so. The idea was to convey momentum. “You want the members to feel like, Oh, the herd is moving. I’ve got to move with the herd,” explains Rob Collins, Cantor’s chief of staff at the time. That way, even if a dozen Republicans ultimately defected, it would look as if Obama failed to meet expectations.
But when he addressed the conference, Cantor adopted a different strategy. “We’re not going to lose any Republicans,” he declared. His staff was stunned.
“We’re like, Uhhhhh, we have to recalibrate,” Collins recalls….
Cantor’s aides asked if he was sure he wanted to go that far out on a limb. Zero was a low number. Centrists and big-spending appropriators from Obama-friendly districts would be sorely tempted to break ranks….
But Cantor said yes, he meant zero. He was afraid that if the Democrats managed to pick off two or three Republicans, they’d be able to slap a “bipartisan” label on the bill.
Obama press secretary Robert Gibbs [said,] “You know, we still thought this [working with Republicans] was on the level,” Gibbs says. Obama political aide David Axelrod says … “It was stunning that we’d set this up and, before hearing from the President, they’d say they were going to oppose this…. Our feeling was, we were dealing with a potential disaster of epic proportions that demanded cooperation. If anything was a signal of what the next two years would be like, it was that.”
….Vice President Biden told me that during the transition, he was warned not to expect any bipartisan cooperation on major votes. “I spoke to seven different Republican Senators who said, ‘Joe, I’m not going to be able to help you on anything,’ ” he recalled. His informants said McConnell had demanded unified resistance. “The way it was characterized to me was, ‘For the next two years, we can’t let you succeed in anything. That’s our ticket to coming back,’ ” Biden said…. Bob Bennett of Utah and Arlen Specter of Pennsylvania both confirmed they had conversations with Biden along those lines….
David Obey, then chairman of the House Appropriations Committee, met with his GOP counterpart, Jerry Lewis, to explain what Democrats had in mind for the stimulus and ask what Republicans wanted to include. “Jerry’s response was, ‘I’m sorry, but leadership tells us we can’t play,’ ” Obey told me. “Exact quote: ‘We can’t play.’ What they said right from the get-go was, It doesn’t matter what the hell you do, we ain’t going to help you. We’re going to stand on the sidelines and bitch.”
___
In sum: Democrats had everything to gain from bipartisanship. It was the Republicans that, for sincere reasons – the party was now vastly more conservative than Republicans of old – and strategic reasons, had everything to gain from polarization. And since it takes two to tango, the Republicans prevailed.
Trump has been able to put lots of judges in place. Why? Because Republicans filibustered the Democratic nominees. Democrats eventually eliminated the filibuster for judges other than Supreme Court judges–but by then it was late in the game, and Republicans eventually took control of the Senate.
Felix
Oct 10 2018 at 2:54am
Thank you for clarifying the issue.
J Mann
Oct 10 2018 at 11:46am
That implies successful filiabusters (i.e., the Senate moves for cloture and the motion is defeated), as opposed to unsuccessful (i.e., at least one Senator object to moving forward to a vote on the current record, but the motion is defeated and the nominee gets a vote).
My understanding is there are fairly few successful judicial filibusters:
– Democrats successfully deployed it for Miguel Estrada, then also successfully filibustered nine other Bush nominees. When Reublicans threatened to remove the judicial filibuster, the “Gang of 14” worked out a deal where five of the ten were not confirmed, but five were.
– Republicans later deployed it successfully against Goodwin Liu, Caitlin Halligan, Robert Bacharach (later confirmed after Obama’s re-election and prior to the end of the filibuster), Patricia Millett, Nina Pillard, and Robert Wilkins. (I think the last three were confirmed after Reed removed the filibuster.
It’s hard to say that the GOP used the judicial filibuster much more than the Democrats. (The GOP was reportedly seeking a Gang of 14 style deal on the last three, but Reed said he wanted all of them or nothing.)
Republicans also slowed down or blocked a lot of nominees when they had the majority, but there’s a Democratic history of that as well. (Biden famously did it to George HW Bush quite effectively).
Democrats removed the filibuster for non-Supreme Court judges in November 2013, so Obama had three more years to name judges.
http://volokh.com/2013/03/13/on-judicial-confirmations-history-and-numbers/
robc
Oct 10 2018 at 3:00pm
That makes the assumption that the normal pork-barreling benefits their constituents. In those districts, I think stonewalling actually provided more benefit than trading favors, so the entire premise of the book is wrong.
I know in most cases I would prefer congress to do nothing.
CT
Oct 18 2018 at 12:16am
While there is a possibility that these Senators were trying to appeal to their followers, and had incentives that went beyond just doing the right thing; I believe that them taking seriously a rape victim was their main motive.
It’s hard to decide what to believe when the only proof you have is somebody’s word vs. another person’s word. You want to believe the victim, because who would lie over something like this? But there is always a possibility that what was said was not the whole truth. Ms. Ford could not remember where it took place, who all was there, or when it occurred. While I believe that something definitely did happen to her, I can’t say for certain whether it was by Mr. Kavanaugh or not.
I believe that by having held a longer investigation to actually interview more people, and to try to figure out what all went down that night. But that didn’t happen so here we are with him being sworn in. I don’t believe that he should be stopped from being on the supreme court just because of these allegations against him, if they were to have been proven then I could understand that. A person’s life shouldn’t be ruined if it can’t be proven, as terrible as that sounds, I would rather not risk an innocent man being put in prison for something he may or may not have did.
I was raped on July 11th, 2015. I can tell you where it happened, who all was around, and who it was that raped me. I even sometimes get suggestions on social media to “be his friend.” People I know post pictures with him, because they don’t know what kind of person he actually is. I have only ever told a handful of people that I truly trust, and I have never posted it online. I have always been afraid that people wouldn’t believe me, or that they would believe him over me. I recently had a “friend” that went around and told people about it and she told them that “I wouldn’t believe her. I think she is lying about it all.” All because she started hanging out with him. How terrible of a friend can you be to do that? I’m sorry if I am ranting, I just needed to get off my chest even if it is just to a website.
If I were to come out and tell the police and make it public, I would want there to be an investigation. I would want it to be proven, if possible. It’s been three years, I don’t think it could be proven now, all that I would have is my word on it and some people’s words that were with me. Is that enough to go by? I’m stuck between believing it is, and believing it isn’t. People could easily make something like that up. While it’s not very likely for someone to be lying about something like this, it does happen. And it’s not fair to the people that are false-fully accused. I think I will stick with believing that people need to at least prove a preponderance of evidence if not to more of an extreme in saying proving evidence above a reasonable doubt.
David Henderson
Oct 19 2018 at 1:14pm
Thanks for your comment. I’m guessing that it’s hard for you to talk about your experience and I’m glad you felt safe doing it here.
I also agree with you about the preponderance of evidence standard if the issue is not whether the person is convicted of a crime. That was the element of truth in the Democrats’ constant reminders that this was a job interview. It seems clear that the preponderance of evidence didn’t go against Kavanaugh.
There are two points on which I disagree with you.
First, you write:
I believe that them taking seriously a rape victim was their main motive.
I don’t. And the reason I don’t is that when other people, such as Juanita Broaddrick, come forward and claim rape, these same Democrats show zero interest.
Second, you write:
You want to believe the victim, because who would lie over something like this?
I don’t want to believe the victim. I also don’t want to disbelieve the victim. I want the truth. Notice also that you’re taking as given what is to be shown: we don’t know that the alleged victim is a victim.
Also, many people would lie over something like this. I don’t know if you’ve been following the cases of alleged campus rapes, but in many of those cases that have gotten publicity, it wasn’t a rape at all but, rather, consensual sex.
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