The Note: Uncertainties cloud Kavanaugh fight

PHOTO: Judge Brett Kavanaugh looks on during his confirmation hearing in the Senate Judiciary Committee to be Associate Justice of the Supreme Court, Sept. 4, 2018 in Washington.PlayBrendan Smialowski/AFP/Getty Images
WATCH Kavanaugh accuser won't testify before FBI probe

The TAKE with Rick Klein

"There shouldn't even be a little doubt," President Donald Trump declared Tuesday, referencing the allegation that has enveloped his Supreme Court nominee, Brett Kavanaugh.

Good luck with that.

The uncomfortable truth around the Kavanaugh nomination is that no one can know how things will turn out. Senators have left Washington without even agreeing on how Christine Blasey Ford should talk publicly about what she says happened, and Tuesday night her lawyers sent a letter to Senate Judiciary Committee Charles Grassley saying she wouldn't testify at the hearing he had scheduled for Monday -- and not at all before the FBI investigates the matter.

If the goal is eliminating doubt, an entity like the Senate remains the wrong place to make that happen. But as the president has made clear, an FBI investigation won't happen – not that it can be fully expected to settle on irrefutable facts, anyway.

In this partisan environment, this is an uncomfortable moment for elements of both parties. There are few prospects for a clean resolution.

The RUNDOWN with MaryAlice Parks

The public discourse in the country and makeup of the Senate have changed dramatically in the last 30 years.

This isn't the era of Clarence Thomas or Bill Clinton; it is the era of Harvey Weinstein and there are new leading voices in the Senate like Kamala Harris.

But while the Senate might look different, is it acting any differently?

In 1991, the Senate held public hearings to look into allegations of sexual harassment against a Supreme Court nominee. There were no female senators on the Judiciary Committee then and only two women in the Senate overall. Today, there are 23 female senators and four on the committee charged with vetting judicial nominees – all Democrats.

Anita Hill, the law professor who accused now-Justice Clarence Thomas of harassment back then, wrote in an op-ed Tuesday that the Senate must do better this time, but did not seem to be doing so.

Where were the processes for dealing with allegations like these? What was the plan?

In an argument echoed by Ford's lawyer Tuesday night, Hill said that the fact the Judiciary Committee was going ahead with a hearing in less than a week, without additional witnesses or a neutral fact-finding team, was a red flag. It was a sign, Hill said, that little had changed, despite the fact that widespread sexual violence is more openly talked about and understood these days.

PHOTO: Professor Anita Hill is sworn-in before testifying at the Senate Judiciary hearing on the Clarence Thomas Supreme Court nomination. Miss Hill testified on her charges of alleged sexual harassment by Judge Thomas, Oct. 11, 1991.Bettmann Archive/Getty Images FILE
Professor Anita Hill is sworn-in before testifying at the Senate Judiciary hearing on the Clarence Thomas Supreme Court nomination. Miss Hill testified on her charges of alleged sexual harassment by Judge Thomas, Oct. 11, 1991.

The TIP with John Verhovek

With the first major debates of the 2018 midterm season almost upon us, two of the most vulnerable senators up for re-election this cycle are getting some positive news.

In Texas, GOP Sen. Ted Cruz, who will debate Democrat Beto O'Rourke for the first time this Friday in Dallas, is up by nine points, according to a new poll from Quinnipiac University. On the other side of the aisle, Wisconsin Democrat Tammy Baldwin holds a commanding 11-point lead over her Republican challenger, state Senator Leah Vukmir, according to a new poll from Marquette University. That gives her a boost as she attempts to defend one of the 10 Democratic seats up this year in states Donald Trump won in 2016.

Both polls show positive movement for both Baldwin and Cruz, who expanded the slim leads they had in polls out earlier this summer from the same outlets.

With fewer than 50 days to go until Election Day, both Baldwin and Cruz have been honing their messages, with the Republican hammering O'Rourke, saying he wants Texas to be "just like California, right down to the tofu and silicon and dyed hair," while the Democrat is pitching a health care-centric message to Wisconsin voters in recent days.

One poll does not decide a race, but for now these incumbents will likely trumpet the movement as evidence that their messaging is working.

PHOTO: Texas Congressman Beto ORourke addresses the press on June 23, 2018, in Tornillo, Texas.Paul Ratje/AFP via Getty Images
Texas Congressman Beto O'Rourke addresses the press on June 23, 2018, in Tornillo, Texas.

WHAT YOU NEED TO KNOW TODAY

  • President Trump visits Marine Corps Air Station Cherry Point in Havelock, North Carolina, for a briefing on Hurricane Florence damage and flooding at 10:20 a.m.
  • The House and Senate have adjourned for the Yom Kippur holiday.
  • QUOTE OF THE DAY

    "There's no reason to have a public hearing Monday. This is being rushed through. It's too important. It's not a game. This is a serious situation" – Christine Blasey Ford's attorney Lisa Banks on CNN Tuesday night.

    THE PLAYLIST

    ABC News' "Start Here" Podcast. Wednesday morning's episode features ABC News Chief White House correspondent Jonathan Karl on the latest in the scheduled hearings for Brett Kavanaugh and his accuser. He says President Trump is using some restraint when asked about the allegations. And, ABC News' Conor Finnegan has an exclusive look at the letters written by an imprisoned U.S. citizen in Egypt, who is imploring the president to help him. https://bit.ly/2Ohkpz8

    ABC News' "Powerhouse Politics" Podcast. On Wednesday's episode, ABC News' Chief White House Correspondent Jonathan Karl sits down with Rep. Anna Eshoo, the Democrat from California and the only member of Congress to have spoken at length with Christine Blasey Ford about her allegations that Kavanaugh sexually assaulted her at a party when they were teenagers. The episode will be released Wednesday afternoon. https://bit.ly/2w091jE

    NEED TO READ

    Exclusive: Jailed American's desperate plea for help in letters to Trump, Pence. After five years in prison and facing 15 more, an American citizen jailed on trumped up charges in Egypt is pleading for his life to President Donald Trump and Vice President Mike Pence. (Conor Finnegan) https://abcn.ws/2DayY5P

    Trump directs release of declassified surveillance warrant on Russia probe. What happens now? Here's what you need to about FISA warrants, some of the most closely held secrets in the U.S. government. (Jack Date) https://abcn.ws/2xntQpQ

    Kavanaugh accuser wants FBI investigation before testifying: Lawyer. The woman who has accused Supreme Court nominee Brett Kavanaugh of sexual assault when both of them were in high school will not testify before the FBI investigates the matter, one of her lawyers, Lisa Banks, said Tuesday night. (Trish Turner) https://abcn.ws/2PLKnKN

    Trump says he doesn't think FBI should be involved in investigating Kavanaugh allegation. President Trump on Tuesday said "there shouldn't even be a little doubt" about his embattled Supreme Court nominee Brett Kavanaugh who has denied a sexual assault allegation and any concerns should be addressed through the confirmation process. (Alexander Mallin and Mariam Khan) https://abcn.ws/2xu1QzP

    Senators united that Kavanaugh accuser should be heard; divided on how and where. Republicans assert that a Judiciary Committee hearing, scheduled for Monday, is the best venue, and some Democrats call for the FBI to open and complete a full investigation before the Senate proceeds. (Ali Rogin) https://abcn.ws/2OAtNgS

    Cruz tries to start beef, says Democrats will 'ban barbecue' in Texas if elected. "When I got here someone told me that even PETA was protesting and giving out barbecued tofu, so I got to say, they summed up the entire election: If Texas elects a Democrat, they're going to ban barbecue across the state of Texas," said Cruz, who is facing Democratic Rep. Beto O'Rourke in one of this cycle's most high-profile U.S. Senate races. (John Verhovek) https://abcn.ws/2DldKCD

    Sen. Mazie Hirono's message to American men: 'Just shut up and step up.' "Guess who's perpetuating all of these kinds of actions? It's the men in this country, and I just want to say to the men in this country: Just shut up and step up. Do the right thing, for a change," the Democratic senator from Hawaii said. (Cheyenne Haslett) https://abcn.ws/2QFdCAn

    Trump 'dossier' stuck in New York, didn't trigger Russia investigation, sources say. President Donald Trump and his allies have long insisted that what he calls the "fake dirty dossier" was wholly "responsible for starting the totally and discredited witch hunt" by special counsel Robert Mueller. (Mike Levine) https://abcn.ws/2OBy5ES

    The polls point to a blue wave in the House, but Democrats are also at risk of losing seats in the Senate. Will Democratic Senators lose despite the wave? FiveThirtyEight's Nate Silver reports. https://53eig.ht/2xuULz6

    Anita Hill's testimony that Supreme Court nominee Clarence Thomas sexually harassed her – and the treatment she received on the stand from male senators – precipitated the "Year of the Woman" in 1992. This year, with another hearing posed and the context of the #MeToo movement, history could repeat itself, the Washington Post reports. https://wapo.st/2D8fvmb

    The Note is a daily ABC News feature that highlights the key political moments of the day ahead. Please check back tomorrow for the latest.

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