Less than five weeks until the midterm elections, the stalled nomination of Supreme Court nominee Brett Kavanaugh has the potential to determine the balance of not just the nation’s highest court but that of its most powerful legislative body as well.
The controversy surrounding Kavanaugh’s nomination is particularly significant in Arizona, where two women, Reps. Martha McSally and Kyrsten Sinema, are vying to replace outgoing Sen. Jeff Flake as the state’s junior senator. As the FBI investigates allegations of sexual assault against Kavanaugh—an investigation set into motion partially by Flake himself—neither candidate has firmly committed to supporting or opposing the judge’s confirmation to the Supreme Court, a strategy that Arizona political observers say might be appealing in the short term, but has a short shelf life.
“You need the base really fired up in order to win, but that’s so often the stuff that’s repellent to swing voters or moderates or even the odd Democrat you need to win,” Liz Mair, a Republican political consultant and Daily Beast contributor, said of the difficulties of navigating the Kavanaugh confirmation as a female Republican candidate.
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In an election cycle with an unprecedented surge in female candidates and a record number of races where the two major-party candidates facing off in the general are women, the confirmation battle has only further focused public attention on issues raised by the #MeToo movement, and by the presence of more women on the campaign trail than ever before.
“A decision to confirm somebody to the Supreme Court shouldn’t be made on the basis of opinion polls, but if you’re looking at a race like Arizona, you’re looking at the ability to either alienate a lot of the women you need to carry you over the line, or to alienate a lot of the base that you need to carry you over the line,” said Mair.
If either candidate were to base their decision on polling, they might end up exactly where they started. An Emerson poll released one week after Ford first came forward with her allegations showed Arizona voters split straight down the middle on confirming Kavanaugh: 44 percent for, and 44 percent against. A more recent survey released by the pro-Kavanaugh Judicial Crisis Network found that a plurality of Arizona women voters still supported Kavanaugh’s nomination.
But in a state that leads the nation in having elected women to serve as governor and in sending women to serve in the state legislature, and where women make up 52 percent of registered voters, alienating female voters by supporting Kavanaugh’s confirmation could risk agitating a powerful—and in 2018, highly active—constituency.
“You have to be concerned about how it might shift on both sides,” said Professor Kelly Dittmar, who teaches political science at Rutgers University. “What I think is more likely is how it will mobilize in terms of voter turnout and energy and engagement—rather than voters' choice—in the final month of the campaign.”
Dittmar, a scholar at the Center for American Women and Politics and co-author of a book on the impacts of greater female representation in government, told The Daily Beast that the hesitance of both Sinema and McSally to make Kavanaugh a huge issue in the campaign may be to their mutual benefit—a sort of political mutually assured destruction.
“If neither candidate is making it an issue,” Dittmar said, “they can’t use this either to their advantage or their disadvantage.”
McSally, a former fighter pilot who emerged from a blistering primary against two arch-conservatives as Flake’s potential successor, had initially praised Kavanaugh after he was nominated by President Donald Trump to replace retiring Supreme Court Justice Anthony Kennedy in July. The two-term congresswoman called the federal appellate judge “a highly qualified nominee” who would interpret the Constitution in favor of self-governance and personal liberty—music to the ears of the small-government conservatives who make up a healthy share of the Arizona electorate.
The Tucson-area congresswoman also noted in her almost-but-not-quite-endorsement that if Sinema were to be elected to the U.S. Senate, she would join Democrats like Sen. Elizabeth Warren and Sen. Chuck Schumer in obstructing the president and his judicial nominees “every chance she gets.”
But after Dr. Christine Blasey Ford came forward with allegations that during a party when she and Kavanaugh were both in high school, he drunkenly attempted to rape her, McSally has avoided taking a firm position on either the would-be Supreme Court justice or on his accuser’s allegations. Calling Ford’s story “a very serious allegation,” McSally encouraged both Ford and Kavanaugh to testify before the Senate Judicial Committee as the most “sensible” approach to handling the allegations.
As other accusers have come forward, each alleging alcohol-fueled sexual misconduct against Kavanaugh during his time as a prep school student and a Yale undergrad—accusations which Kavanaugh has forcefully denied—McSally has hewed to the position that the time-limited FBI investigation should be used to gather “any additional relevant facts,” and has called for the Senate to then swiftly act on the nomination.
McSally’s campaign did not respond to numerous requests for comment on the nomination, or on how McSally would act on the nomination if she were, as she aspires, a member of the Senate.
That may be a smart strategy, according to Professor Kim Fridkin, an expert on women in politics at Arizona State University’s School of Politics and Global Studies, who said that McSally “needs to play it down the middle” to avoid frustrating the conservatives she needs to win in November.
“The Republican woman in this case can’t afford to alienate Republican women and independents who may be sympathetic to Ford,” Fridkin told The Daily Beast.
But the longer McSally remains silent on Kavanaugh’s fate, the more she risks alienating an already depressed Republican base, said Jessica Merrow, the president of Tempe Republican Women, who called the proceedings against the nominee “a witch trial.”
“Republicans distancing themselves from or attacking the nominee at this moment would be feeding into the left’s hysteria and their attempts to drag this process out as long as they can,” Merrow told The Daily Beast. “It’s not working well for Flake and it won’t work well for any Republican who does it.”
Any further delay in McSally supporting Kavanaugh, Merrow added, “would be rather aggravating.”
For her part, Sinema—an independent-leaning Democrat running a toss-up race in a state that hasn’t elected a Democratic senator in nearly three decades—has also avoided saying how she would vote on Kavanaugh’s confirmation, settling on encouraging a “full and thorough” investigation of the allegations against Kavanaugh by federal law enforcement, which she has called “credible.”
“I am disappointed… that a lifetime appointment to the highest court in the United States has become an ugly, partisan fight,” Sinema said, in a statement provided to The Daily Beast. “Dr. Ford and all Americans deserve a full and thorough FBI investigation of the credible allegations against Judge Kavanaugh.”
That investigation, Sinema said through a spokesperson, “must conclude before a floor vote is held.”
Sinema’s avoidance of committing to opposing or supporting Kavanaugh’s confirmation is, Fridkin said, likely due to similar problems facing McSally, “but for slightly different reasons.”
“This candidate does not need appeal to Democrats. Instead, she needs to be wary of alienating moderate Republicans and independents,” Fridkin said. “Being an outspoken supporter of Ford will reinforce stereotypes people hold of Democratic women being very liberal... Therefore, [Sinema] needs to be careful to again—play it safe by saying it’s important to wait for the FBI investigation.”
Professor Gina Woodall, a colleague of Fridkin’s at ASU, agreed that by steering clear of a firm position for or against Kavanaugh’s confirmation, both candidates are handling the nomination as well as they can.
“I think both Sinema and McSally are playing their cards right for their race,” said Woodall. “An investigation is good; hearing Prof. Ford’s account is good; but engaging in partisan politics after an investigation doesn’t corroborate Prof. Ford’s account? I don’t think either Sinema or McSally will go that far.”
McSally has also had to contend with the accusations against Kavanaugh on another level: how they mirror her own story of sexual abuse as a teenager. When she was a 17-year-old member of her high school’s track team, she told the Wall Street Journal in April, McSally was groomed and sexually abused by a coach two decades her senior.
“It took a while for me to come to a place where I understood what the hell I had been through,” McSally told the Journal at the time. “At the time, I was so afraid. I now understand—like many girls and boys who are abused by people in authority over them—there’s a lot of fear and manipulation and shame.”
In that interview, McSally discussed the legal obstacles for victims of sexual assault and abuse to find justice for their abusers.
“That’s difficult to prove the morning after, let alone ten years after,” McSally said, of proving her case in court.
The now-retired coach, Jack Dwyer, forcefully denied McSally’s claims in highly personal terms, calling the congresswoman “nuts” and “the most scheming woman I ever met.”
Her own experience with decades-old sexual abuse allegations has informed McSally’s view on those against Kavanaugh, although the congresswoman has been careful not to personalize the current maelstrom surrounding the Supreme Court nominee.
“My perspective is that these voices need to be heard and there also needs to be a fair process,” McSally told the Arizona Republic. “I think the Judiciary Committee has bent over backwards... in their discussions about how to provide an environment that will show respect and allow fairness and discussion.”
But the wait-and-see approach can’t hold up forever, Mair said.
“They’re gonna have to pull the trigger on it, and it’s gonna be a lot easier for Sinema,” Mair said, pointing to a potential argument that Kavanaugh’s fiery temperament in Thursday’s hearing on the allegations might disqualify him from serving. “Nobody looked at Clarence Thomas’ hearings and went, ‘oh my God, that guy’s a mess.’ Nobody said that. And everybody’s saying that about Kavanaugh.”
But McSally, Mair said, might not have such an easy out.
“I would be going to bed every night and praying for a consistent 30 minutes that Brett Kavanaugh would for some reason withdraw this nomination, and take this off my plate.”
