In my preview for trading action this week, I asked the following:
It’s time. When will Collins announce her decision? (If she says YES, Kavanaugh is getting through, almost regardless of anything else). How many Democrats break ranks and how quickly? Do Republicans manage to hold to their timetable and get Kavanaugh confirmed by the end of September? And what’s the deal with this Me-Too allegation from his high school years? Will something happen to dramatically increase the odds that it disqualifies him?
Oh yes. Yeah, something done happened. Let’s explore how Christine Blasey Ford’s decision to come forward publicly to tell her story will influence the Kavanaugh confirmation process and the markets associated therewith. We should start, of course, with the substance of the allegations.
Something happened to Dr. Ford
First things first – it’s extremely unlikely that she has concocted the entire experience. Unless you’re at the frothingly idiotic Erick Erickson stage of conspiratitis, she didn’t make up the sexual assault to discuss in couples counseling in 2012 because she saw news reports that candidate Mitt Romney might pick Brett Kavanaugh. (And if that was the case, wouldn’t she have mentioned his name to the therapist?). So at the very least, something happened to her.
She recalls that the event took place in the summer of 1982, when she was 15. That it was an informal get-together with at least four other attendees (herself plus Brett Kavanaugh, Mark Judge, and two other boys whom she has named to the Post but have not been identified publicly or who have been reached for comment). That she went upstairs to use the bathroom and was corralled into a bedroom by Mark and Brett, who were substantially inebriated. That they locked the door and turned up the music. That Judge offered conflicting advice to Kavanaugh who was atop her hand-over-mouth on the bed, alternately telling him to “go for it” or to “stop”. That the encounter ended after Judge jumped on the bed and on top of the both of them, resulting in a scrap and giving her an opportunity to flee to the restroom, where she waited until she could leave the party.
Judge and Kavanaugh have denied that they were involved in such an encounter.
There exist two scenarios in which both Dr. Ford and Judge Kavanaugh are being as honest as they can be. First, Dr. Ford’s memory could be mistaken as to the identity of her attacker. Second, Kavanaugh’s memory, impaired by alcohol at the time, may be void of any recollection of the event (or it may not have made a strong impression on him even if he wasn’t blacked out). For Republicans who want to vote for Kavanaugh and have the most plausible sounding reason for doing so, establishing the first scenario and avoiding the second is their goal.
This means that if and when Dr. Ford testifies, her memory will be directly challenged by some (foolish?) Republican on the Senate Judiciary dais. Can she be sure that it was Kavanaugh? Have you always known it was him? You say they turned music up – do you recall who did that and what room the music was playing in? This is an incredibly dangerous line of questioning to go down. Some questions in this line are legitimate, others less so. At a certain point, whoever takes this approach will be accused of bullying, of challenging her experience, of making the reporting of sexual assault impossible if the accuser can’t recall every precise detail. Expect to see the word “charged” thrown around a lot. Expect possible outbursts from the Democratic side, especially from Booker/Harris/Blumenthal if they perceive the questions are too unfair.
And yet can Republicans avoid taking this road? Their vote on Kavanaugh, politically, is entirely about this incident now. They need cover to ignore it, discount it, or otherwise be able to reasonably claim that Kavanaugh is being mis-remembered by Dr. Ford.
The problem with a search for plausible deniability
Some Republicans are fine voting for Kavanaugh as is. Perhaps even a majority. Folks like Orrin Hatch have already said as much, making the “I don’t know if it happened argument, but even if it did he’s a fine man now” argument. When you go down that road, of course, it means you’re personally comfortable with the idea that if you can’t tell one way or the other whether a potential Supreme Court justice sexually assaulted someone as a teenager you’d rather just give him the “benefit of the doubt” (rather, of course, than giving the accuser said benefit). I’m curious to see how many Republicans cling to a variant of this argument after this is said and done. How many are willing to essentially openly say that when there’s doubt (in their minds) they default to the man, and not the woman?
Of course, some Republicans might be personally comfortable with that idea but politically recalcitrant to embrace it. Marco Rubio, for instance, might be the kind of guy who would prefer to just vote Kavanaugh through but will really struggle with finding the right rhetoric to justify such a vote if both Ford and Kavanaugh are equally firm in their insistence on what happened. Others, like Susan Collins or Jeff Flake, might be genuinely personally uncomfortable with the idea that they should take his word over hers.
This is a he-said, she-said situation (discounting the potential witnesses for the moment), and if you’re a Republican how do you reach a political argument – even the basic written statement! – that justifies a Kavanaugh vote on the basis of always trusting the man over the woman in those situations?
Okay, down to brass tacks. Let’s run a few plausible scenarios out to see what they mean for the various confirmation markets:
- Ford testifies and she is composed, sincere, and believable. This is the scenario I’ve been assuming while writing the above bits about challenging her memory and the Republican struggle to get to Yes without discounting her (and potentially further inflaming female voters going into the midterms). I think Kavanaugh is probably sunk in this case. Even if a Manchin crosses over from the Dems (and Manchin is the kind of Dem who still might), I find it hard to believe Collins/Murk/Flake will be able to pull the trigger if Ford is believable.
- Ford testifies and she appears like she’s lying or seems to lack credibility. The dream scenario for McTurtle et al. Probably won’t happen, but if it does Kavanaugh sails through.
- Ford does not testify. A very interesting scenario where her reasoning for not appearing (after saying she would) matters a great deal. It will give some Rs an easy excuse for supporting Kavanaugh (“we tried”) but the central issues do technically still remain. Kavanaugh has a decent chance of making it through.
- Other shoes drop. There are still two named witnesses to the gathering itself (known to the Post) who haven’t commented. Will they come up in testimony? Prior to testimony? Will they challenge or support Ford’s claims? Have any other women had bad experiences with Kavanaugh? What about with Judge? Obviously some of these are game over for Kavanaugh, some put wind in his sails.
What about a September confirmation? While McTurtle had the aspiration of seating Kavanaugh in time for the start of the Supreme Court’s term, it’s really not a big deal if he starts a week or two later. While they would like to get him through as quickly as possible, only the folks buried in YES shares in that market think the end of September deadline still matters. That said, it is technically possible if the committee vote is held like immediately after the hearings, or if the Senate convenes over the weekend or something. (Mind you, you still need to have whipped your caucus to even schedule a vote and I sincerely doubt Collins is going to have her mind made up the instant the hearings are over). Anyway, I suppose that market will linger in the 20s I guess until we get some official word or reporting on what the schedule going forward will be.
Bottom line, this is not the Kavanaugh vote any senator thought they would be making. Everyone is watching now, and the political calculus is changed as well. I’d be surprised if this is a vote that the R rank and file even want to make. And the lame-duck is waiting for them… Of course Kavanaugh still has support. Trump (while not personally invested yet) might become invested. And who knows what will happen at the hearings. Enjoy the trading, my friends.
Disclaimer: I probably have positions or intend to take positions in just about all the markets I discuss herein. You should always do your own research prior to making any investment decision. You should consider my advice and knowledge I share to be fundamentally biased in its presentation and selection by my own financial incentives. While I do not knowingly lie I certainly do knowingly omit information that I think gives me an edge.