I did not pay attention to the news for a few days and am completely confused now. Last I saw, Kavanaugh was in the midst of his sexual assault hearings. I thought Trump had said he would let a further investigation be done. Fast forward a few days, I check on the news again, and I am seeing headlines about Kavanaugh already being sworn in and hearing cases as a supreme court justice!

I feel like there is a huge piece of news in the middle that is missing, yet I'm trying to Google it and all I find are articles from a few days ago about the sexual assault proceedings, about the FBI doing next to nothing for an investigation, and articles from now about Kavanaugh being sworn in and already sitting in the supreme court.

What are we missing? How did this just get fast tracked? Where is the politics in the middle? Where is the news leading up to a vote? Since the sexual assault allegations investigation sounds like a sham according to all the articles I see (many accusations were ignored), how was this allowed to proceed?

How did we just go from "Republicans would like this done before elections, but there will likely be a drawn-out affair with investigations and such," before the weekend to "Bam, it's all done and over with" after the weekend... what happened in between (or didn't happen that should have)?


Preemptive disclaimer

I am neither for nor against Trump or Kavanaugh, so this is not an "anti Kavanaugh" question, and I would prefer that we try to remain neutral. I don't know if he did or didn't do what he was accused of, and I didn't vote for either Trump or Clinton (though I did vote). But I am surprised about what just happened and am floored by the lack of proceedings between "we claim he raped us" and "he's our justice now" and am looking for the missing link.


Update:

Thank you to everyone who provided lots of pieces of data, both as answers and as comments!

Lots of people have criticized the answer which I ended up accepting. My acceptance of it does not in any way endorse the politics that happened which it describes. Whether or not that answer provides all the details that each side would like heard or justifies what happened is not part of my question.

Even if you do not like what happened politically, that answer does answer my question about "How did this just happen?" Several other answers do as well, but I can only accept one.

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    Maybe a little more research would have been helpful. The FBI concluded its investigation, confirming that there was no corroborating evidence of any accusation, and the Senate confirmed Kavanaugh on Saturday. The Supreme Court actually began its session last Monday, before Kavanaugh was sworn in, so he's coming right into it with the work already underway. – Joe Oct 9 at 16:50
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    @Joe Actually, it was precisely more research that lead me to believe that the FBI did not confirm that there was no corroborating evidence, which I briefly mentioned in the question. Unless the news is lying, the FBI ignored many claims and witnesses. They may have filed a report which stated "We confirm that..." but you cannot actually say they confirmed anything if they didn't honestly look into it. Are the news articles gross exaggerations? It wouldn't be the first time if they were, but I wasn't going to assume that was the case until I had reason to believe otherwise. – Aaron Oct 9 at 16:55
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    @Aaron - We don't really know what the report said, because it was under extreme lockdown (which may, in fact, be normal, but that doesn't change how restrictive it is). All we know for sure (as far as I know) is that it was convincing enough to enable some of the holdouts to vote for him. – Bobson Oct 9 at 16:57
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    @Bobson Interesting point. When we see in news articles that certain claims were ignored and that certain people were not spoken to, does that mean that those claims could be false? Perhaps someone assumes a certain claim was ignored, or someone claims they weren't spoken to, etc., but that all claims about what the FBI did or did not do are mostly speculation and hearsay? – Aaron Oct 9 at 17:03
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    Comments are not for extended discussion; this conversation has been moved to chat. – yannis Oct 10 at 18:41

10 Answers 10

up vote 119 down vote accepted

The situation is fairly complex so I'm not surprised it was confusing. Here's the general rundown (partially pulled from this article for brevity)

  1. Sometime in July, Ford (Kavanaugh's accuser) wrote a letter to Diane Feinstein (D-CA) with her allegation that Kavanaugh had assaulted her sometime around 1982. The letter purportedly requested anonymity and Feinstein appears to have honored that request.
  2. On September 12, The Intercept was fed the letter by an unnamed source. At this point, the confirmation process was nearly complete and the Judiciary Committee was set to hold a vote.
  3. The next few days saw rapid development of the story, as well as two less credible accusations. Ford's name was exposed and reporters interviewed people named in the letter. Democrats would start to demand hearings during this time.
  4. On September 27, both Ford and Kavanaugh testified in front of cameras and the Judiciary Committee.
  5. On September 28, the Judiciary Committe voted, entirely along party lines, to move the nomination to the Senate Floor. Senator Jeff Flake (R-AZ) asked the FBI to investigate the allegations before a final vote.
  6. On October 4 the FBI reported back. The gist of the report (not made public) is that none of any of the allegations of Ford or the other two accusers made could be substantiated. The report was criticized for many reasons, most notably that the FBI had not interviewed Ford.
  7. On October 6, Kavanaugh was confirmed 50-48

How did this just get fast tracked? Where is the politics in the middle?

It wasn't fast tracked. The process was nearly done (almost 2 months of interviews, investigations and meetings with Kavanaugh) when the allegations leaked. The problem for Kavanaugh opponents generally came down to

  1. The timing. There's no denying the leak was of tremendous benefit to Democrats. Prior speculation was that red-state Democrats would vote to confirm. The allegation ensured that didn't happen (with all except Manchin citing this as the reason they voted "No"). But it also meant that timing before the mid-term elections were seen as stalling for a post-election vote, when Democrats could potentially retake the Senate and block the nomination outright. There had already been attempts to stall the voting prior to this, and it was widely viewed among Republicans that this was an extension of those attempts. With Republicans in control, there was no convincing them to entertain any more delays.
  2. A lack of credible allegations. Ford was the only one of the accusers who made any allegations that could be taken seriously (the last accuser changed her story during a TV interview). She testified, with conviction, that it was Kavanaugh who had assaulted her, but nobody she named could corroborate her story, or even when it could have occurred. The FBI appears to have been unable to shed any light on when it could have happened. The other accusations had even worse credibility, with the second admitting she was quite drunk, and the third making outlandish accusations (that Kavanaugh was part of a sex ring).
  3. Ultimately, the vote on confirming Kavanaugh was about whether or not Senators, not the FBI or police, believed he was guilty of this crime. Having had additional (if criticized) background checking done was unlikely to sway too many people beyond what they had already decided. The politics were already set before the allegations.
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    "Nobody she named could corroborate her story, or even when it could have occurred." Kavanaugh's calendar pretty much placed the assault on July 1st 1982 (“Timmy’s for skis with Judge, Tom, P.J. Bernie, Squi”), and when Rachel Mitchell's questioning started to make that obvious, the GOP stepped in and sidelined her. – Russell Borogove Oct 9 at 23:20
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    -1 This is a very one-sided/biased view of the situation. It completely misses the (at least) questionable statements by Kavanaugh himself and the limited FBI investigation (as requested by the white house) that took place. – Lebbers Oct 10 at 1:12
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    @Lebbers There's no point in mentioning the quibbles with what Kavanaugh said in this question. But I did address the FBI controversy in my last point. Democrats were hoping for an endless fishing expedition that would either run out the clock or find some new point to grandstand on. Keep in mind that there was no shortage of professional reporters investigating these claims. Substantiating any of Ford's claims would have been an exceptionally great scoop and sunk the nomination. So saying the FBI background check (and subsequent re-check) was insufficient is incorrect. – Machavity Oct 10 at 2:22
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    What kind of investigation doesn't interview the accusers or the accused? Anyone who calls an investigation like that sufficient clearly wasn't interested in the truth. – Alexander O'Mara Oct 10 at 3:34
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    @AlexanderO'Mara The investigation was conducted by the SJC, and the accuser and accused were both questioned under oath. – chrylis Oct 10 at 10:26

I'm not sure what the standard for evidence is (i.e. for references) on this site.

If you want to know, here's what I inferred from following the Twitters of a couple of (anti-Trump) American lawyers.

  • The weren't "sexual assault hearings", they were "senate confirmation hearings"
  • Senate procedure has previously (since 2013 and 2017, as explained in detail in another answer) been changed to require only a simple majority, rather than a 60% super-majority.
  • News of a historic sexual assault complaint was leaked somehow, late in the process (i.e. just before a vote was due)
  • They delayed the vote (for about a week) to hear from the accuser in person
  • After those hearings, one Republican said, let's have just a little bit more of that FBI background check
  • There's no criminal complaint involved (and if anything the complaint would be of a state crime not a federal crime), so the FBI's investigation is a background investigation (requested by the White House), and not an independent criminal investigation -- the FBI has no mandate to investigate except to whatever extent the White House asks them to
  • The White House asked for a limited investigation -- e.g. the FBI didn't interview the accuser, nor the accused, nor review other potential evidence (e.g. therapy notes), nor (so far as I know) did they fact-check what Kavanaugh said during the hearings, nor did they accept testimony from other people (possibly including other independent complaints) who were trying to volunteer it -- which took little time (i.e. completed within a week)
  • The results of the investigation were kept secret (not published)
  • The Senate majority (IOW the Republican party) then went ahead (within a few days) and voted, having concluded e.g. that the allegations were unproven and the accusation uncertain (to put it politely)

Some complain the scope of the investigation was purposefully limited, to result in a shallow sham, a fig leaf to provide deniability ("we investigated and found nothing").

Conversely, the President said (yesterday's speech at the White House) that Kavanaugh was "proven innocent".

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    Note that the change to a bare majority occurred prior to the current situation. – GalacticCowboy Oct 9 at 19:29
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    I seem to recall that the therapy notes were being held by the accuser's attorney, and hence couldn't be reviewed by the FBI – Valorum Oct 9 at 20:56
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    @Valorum I heard she didn't want to publish the notes (e.g. to Senators), could or would have made them available to the FBI, and that she asked for an FBI investigation, but that the FBI investigation (when it happened) never tried to contact her (not her attorney). – ChrisW Oct 9 at 21:06
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    Ford testified at the confirmation hearing that the therapy notes did not mention Kavanaugh. – evildemonic Oct 9 at 22:34
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    It might be worth noting that, despite the president's words, Kavanaugh was rather "not proven guilty". By the law he is innocent, but that is by default, as it is for all of us, and not because it has been incontrovertibly demonstrated. – AkselA Oct 10 at 11:02

Weakening of the Filibuster was one of the primary reasons this moved faster than previously possible. This weakening of the filibuster began in 2013, by then Senate Majority Leader Harry Reid (D-Nev.). Reid justified his action by saying: "The American people believe Congress is broken. The American people believe the Senate is broken. And I believe they are right."

Under provisions of the Senate Rules, a small minority of senators has, in the past, been able to hold up nominations despite the majority of senators wanting the nomination to proceed. One of those obstructionist tactics, the filibuster, takes advantage of the fact that Senate Rules do not limit the duration of debating a topic under consideration on the senate floor. Overcoming a filibuster had traditionally required a 3/5 (60%) supermajority vote in a process called cloture, and changing the rules a 2/3 (66%) supermajority vote.

However, in November 2013, Senate Democrats used the "nuclear option" to overcome a threatened filibuster by Republicans on executive branch nominations and federal judicial appointments. This permitted President Obama's nominations for federal judges to be moved forward more rapidly that traditionally possible. In turn, in April 2017, Senate Republicans themselves used the nuclear option to advance the nomination of Neil Gorsuch to a floor vote over the objections of a minority of democratic senators.

Thus by the time Judge Cavanaugh's nomination was being debated on the Senate floor, use of the "nuclear option" to defeat filibuster techniques on nominations was somewhat unsurprising. The Senate majority leader used this tactic to limit debate on the senate floor to 30 hours, and after the alloted time for debate, that a vote was held. The motion to confirm Judge Kavanaugh was passed by a narrow margin, though it was still a majority (but not supermajority) that supported it.

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    They are related. The usual approach to ending a filibuster is called "cloture", and and the requirement for cloture was 60%, but this has been changed by a clever interpretation of the rules, which is the "nuclear option". The wikipedia article is pretty good at the details of how this works. – Burt_Harris Oct 9 at 22:01
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    It's worth noting that, had the Democrats not used the Filibuster on Gorsuch, it would have been available here, where invoking the nuclear option would be much harder – Machavity Oct 10 at 14:52
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    On a technicality, Stanley Matthews was confirmed by the narrowest margin (24-23). senate.gov/pagelayout/reference/nominations/Nominations.htm – Ben Mohorc Oct 10 at 16:11
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    The weakening of the filibuster began earlier than that, in 1975, when the required vote was reduced from two-thirds of all Senators present and voting to three-fifths of all Senators chosen and sworn. – Michael Dunphy Oct 10 at 16:37
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    Also, in 2016 Harry Reid said that Democrats might further weaken the filibuster, which probably made the Republicans less reluctant to do the same thing. talkingpointsmemo.com/dc/… – Michael Dunphy Oct 10 at 16:47

Here is a "Tick Tock"-style article about the end of the nomination and the vote. (This link is to the NY Times, but it's an AP article and available elsewhere, too.) It covers what happened when, but it boils down to:

  1. Committee votes to pass Kavanaugh, with the condition that the FBI do an investigation.
  2. White House authorizes a one-week investigation. (There are accusations that the FBI was hobbled in this investigation.)
  3. Four Senators (Republicans Collins, Murkowski and Flake, Democrat Manchin) were undeclared during that week. Because of the 48 committed Republican votes for, and 48 committed Democratic votes against, it required two of these four to agree to pass Kavanaugh in order for him to be confirmed (VP Pence breaks ties).
  4. The FBI released its report to Senators on Thursday.
  5. All Senators who chose to, reviewed it or were briefed on it.
  6. Collins, Flake, and Manchin announced they would vote for Kavanaugh after all.
  7. The cloture vote happened on Friday, and passed 51-49.
  8. The confirmation vote happened on Saturday, and passed 50-48 (Murkowski voted "present" instead of "no", to balance the lack of another "yes" Senator who couldn't make the vote).
  9. Kavanaugh was sworn in in a private ceremony on Saturday.
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    #5: Only those senators who wanted to, reviewed it. – Dr Sheldon Oct 11 at 0:15
  • @DrSheldon - I believe I read that all 100 senators did so. But I don't have a source for it at my fingertips. – Bobson Oct 11 at 0:42
  • I don't think 2) is a good point to include. Former FBI head James Comey said he believed the FBI would be fully capable of doing an adequate investigation into this matter even with the conditions and limitations placed. – Lan Oct 11 at 15:47
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    @Lan - There definitely are accusations of it. I deliberately chose not to weigh in on whether or not they're valid as part of this answer, but it'd be disingenuous to ignore that they exist. – Bobson Oct 11 at 17:09
  • @DrSheldon - I couldn't find any sources about who did review it (just what the procedure was), so I weakened the claim in #5 as you suggested. Thanks for calling me on that. – Bobson Oct 11 at 17:17

Essentially, the Republicans had decided they were going to confirm Kavanaugh and do it fast in order for him to be on the bench for an October case. At that point, the hearings lasted only long enough to get enough people on board.

Supreme Court justices are, by the Constitution, nominated by the President and confirmed or not by the Senate. There are no other Constitutional requirements, which means the Senate can conduct whatever hearings it likes before voting. There is no requirement for any serious deliberation.

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    I think you're missing some context that could improve your answer. For me, it is novel to hear that "the Republicans had decided they were going to confirm Kavanaugh and do it fast in order for him to be on the bench for an October case". What case is this? Is there any statements to show there is a tie between the speed of the waning senate confirmation and this case? – Lan Oct 11 at 15:45

It actually took about a week longer than it could have.

After the September 27 hearing with Dr. Ford and Hon. Kavanaugh testifying about the alleged sexual assult in high school, the Judiciary Committee was most ready to vote and move this forward to the full Senate. The expectation was that this would divide mostly along party lines, and Kavanaugh would be confirmed.

But Republican Senator Jeff Flake was moved by some protesters to delay this vote. He and Democrat Chris Coons negotiated a compromise that would allow the FBI to do a limited investigation of the allegations for a week. The report on this investigation was released on the morning of October 4.

None of the Senators were swayed by the results. Democrats generally found it too limited, while Republicans considered it adequate. It didn't really shed much light one way or the other.

After a day to allow Senators to review the report, the Judiciary Committee voted to move the confirmation process forward. On October 6, the full Senate voted, and the decision was 50 in favor, 48 against, the closest margin in over a century. On the last day before the vote, there were only 4 Senators whose votes were in question, but they all ended up sticking with their original plans from before the assault allegation was raised.

Had the vote been taken the week before, the result would likely have been 51-49.

Many people consider this whole proceeding following the allegation to be just for show, and the result was a foregone conclusion. The GOP had too much stake in turning the direction of the Supreme Court to allow this to drag on or get derailed. But they couldn't just dismiss Dr. Ford's allegations out of hand, so they made it appear that they were considering them. But only for a week, then they had to get down to business.

The explanations so far tend to gloss over one important detail:

Dr Ford first contacted Senator Feinstein in mid July.

Yet, Feinstein, a senior Democrat Senator, took no action. A credible and provable allegation would have stopped the Kavanaugh hearing, which was the goal of the Democrats in the Senate, so Feinstein's inaction sticks out as quite noticeable... if the charges had any credibility. It would certainly have had more merit than Cory Booker's 'Spartacus' performance.

Instead, the allegation was leaked to the press anonymously over a month later on September 12, almost at the end of the hearings. A very fortuitous leak for the Democrats, who sought to delay the confirmation vote until after midterm elections.

As such, the most logical interpretation of this event is that the charge was being used as a delaying tactic. Had Feinstein placed any degree of faith in the allegation, she would have brought it up within a couple of weeks of becoming aware of it.

Nor does it appear that Senator Feinstein's office made any substantial attempt to validate the allegation after she became aware of it. Given the implications of a credible charge, her inaction here also stands out as very curious.

From this, one can conclude that even Feinstein didn't believe the Ford charge had enough merit to be anything more than a delaying tactic. Otherwise, she would have acted on it back in July, derailing the Kavanaugh nomination and probably giving them a boost in a critical midterm election coming up.

Feinstein and the Democrats can say whatever they want. Their actions in this matter indicate that they didn't take Ford's allegations seriously. Either that, or they're guilty of gross incompetence. As Feinstein is a very senior senator, the latter is highly unlikely.

So, to answer the original question: the hearings and confirmation vote proceeded on schedule, because the sexual abuse allegation wasn't even credible to the Democrats, let alone the Senate in general.

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    From Dr. Ford's letter to Sen. Feinstein: "As a constituent, I expect that you will maintain this as confidential until we have further opportunity to speak." You say that Feinstein didn't believe the accusation had merit, and therefore she didn't act upon it sooner, but why is respecting the wishes of her constituent regarding confidentiality not considered in this analysis? – Zach Lipton Oct 12 at 7:43
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    "Had Feinstein placed any degree of faith in the allegation, she would have brought it up within a couple of weeks of becoming aware of it." - why? What political benefit would the Democrats gain from such a move? Wouldn't derailing Kavanaugh's nomination early with a credible allegation just result in the Republicans quietly finding an excuse to replace him with another candidate? Regardless of credibility, I'd assume that to gain any political benefit from the accusation, the Democrats had to delay its release until it was too late for another candidate to be confirmed before the midterms. – Mark Amery Oct 12 at 13:09
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    @MarkAmery: So you don't dispute that the Democrats' goal was "political benefit" and not "justice" or "to keep an abuser off the court"? Because for any of what they've said in opposition to Kavanaugh since the accusations became public to be true, they would have had to prefer another equally or more conservative judge with a clean background. Jockeying for political benefit is a total violation of the intent of "advise and consent". And then they wonder why polls turned against them as a result. – Ben Voigt yesterday
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    @BenVoigt Yes, it seems blatantly obvious to me that "justice" or "to keep an abuser off the court" were not their motives. The Dems were clearly willing to leak the allegation (because they did), and had they done so earlier (perhaps privately), the allegation likely would've been seen as credible and Kavanaugh would've been quietly replaced with another conservative justice. The decision to delay traded away a high chance of taking down Kavanaugh for a smaller chance of preventing any conservative justice at all from being appointed; we can only assume that reflects Feinstein's priorities. – Mark Amery yesterday

To put it bluntly, none of them were prepared to change their vote, so the allegations were irrelevant. The no voters weren’t going to vote yes no matter how long it took, and the yes voters weren’t going to change their vote to no.

Some of the yes voters might have been willing to change their mind given incontrovertible proof that he had misbehaved, most of them would only have done so because of the possible bad press. With such proof being impossible, the bad press from such was moot and there was no reason to do anything other than go through the motions. Which they did and then voted.

It's not rocket science. It boils down to three things:

  1. Republicans wanted a win going into the midterms to boost their appeal
  2. Republicans wanted to confirm Kavanaugh before the midterms, because if they lost control of the Senate they would never be able to confirm him (or anyone like him)
  3. They had the votes, and so could get away with it.

History will tell us what Manchin, Flake and especially Collins were promised if they voted to confirm. Probably soon.

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    #2 is why they wanted to, and I addressed that as well, but that still left me (and apparently many others) with a head spin. For #1: I don't contest that perhaps that's an intent, but it certainly doesn't sound like an appeal booster to me as I would assume many fence sitters are likely to vote against them now.... but I could be wrong, as the will of the majority never ceases to amaze me. – Aaron Oct 9 at 20:09
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    The Trump administration has demonstrated consistently that their preferred approach is to do things that appeal to their base and never mind the people who don't like them. How that will work out remains to be seen. – DJClayworth Oct 9 at 20:11
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    Many of the senators that voted for Kavenaugh's confirmation aren't Trump fans per se. It would have taken only a few to prevent this confirmation and get a different candidate (by telling Trump to nominate someone else), right? It's clear that Trump and his administration do what they want, but why don't the (or at least some) senators stand up to that? – JJJ Oct 9 at 20:42
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    @DJClayworth that's quite scary when you keep in mind the senate is supposed to act as a check on the president (especially in these confirmation hearings). – JJJ Oct 10 at 11:22
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    Collins is from Maine, she has no reason to care what the people of Arizona think. – Tiercelet Oct 10 at 17:22

Indifference

Even after Republicans learned of the allegations a short time before the public did, they still planed to confirm Kavanaugh anyway without investigating.

It wasn't until after the press and public learned about it, and Kavanaugh's angry, rant-filled, and often dishonest interview about it, that a few Republicans requested a limited "investigation" (the others still planned to go ahead and confirm him).

Sure the investigation wasn't thorough by any means (key witnesses, accusers, and the accused were never questions by the FBI), but they can at-least say they did investigate and found nothing. That gives them some political cover.

Politics

It's important to remember that current Republican president Donald Trump has had many more accusations of accusations of sexual misconduct and assault. What are they going to do? Start taking these sexual assault charges seriously while their sitting president has even worse allegations against him? Unlikely, as we saw with recently failed Senate nominee Roy Moore.

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    @Aaron, have you ever heard the expression, "Pied Piper Strategy"? – elliot svensson Oct 9 at 19:46
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    "Republicans already knew the allegations against Kavanaugh before the press did": Do you have a source for that? – tim Oct 9 at 19:56
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    @Aaron, to clarify what you said: "If I recall, Trump's past was already widely known beforehand, and the general populace had the information and chose to elect him anyway, possibly because he put on a bit of an "I'm a better person now" front." He wouldn't be president today if not for Russian interference. – Roderick Oct 12 at 20:19
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    @Roderick That would be a good question to ask on skeptics.SE if it's not already there. I have heard that claim many times, but I do not know whether it is true or not. It would be nice if there was a neutral list of the relevant points on that one. – Aaron Oct 12 at 20:43
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    @Aaron here is an article you may find interesting. newyorker.com/magazine/2018/10/01/… It's about the book Cyberwar: How Russian Hackers and Trolls Helped Elect a President - What We Don't, Can't, and Do Know, by Kathleen Hall Jamieson. – Roderick yesterday

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