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Kavanaugh Hearing; Booker Releases Documents; Harris Presses Kavanaugh. Aired 12-12:30p ET

Aired September 6, 2018 - 12:00   ET


[12:00:00] BRETT KAVANAUGH, SUPREME COURT NOMINEE: Senator, I'm not going to comment on potential constitutional amendments or what --

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: But -- OK, how -- if we pass a statute tomorrow in Congress saying that the Congress can regulate abortions before medical liability, wouldn't that fly in the face of Roe v. Wade?

KAVANAUGH: Sir, the Supreme Court has said that a woman has a constitutional right...

GRAHAM: Doesn't that trump a statute?

KAVANAUGH: It does. Supreme Court precedent...

GRAHAM: So all of us could vote because five people have said liberty means right to an -- the state has no interest here -- compelling interest before medical viability that we could pass all the laws we want, it doesn't matter because they fall.

The only way we can change that is the constitutional amendment process. It requires 2/3 of the House, 2/3 of the Senate, 3/4 of the state. Is that a pretty correct legal analysis?

KAVANAUGH: When the Supreme Court is issued a constitutional ruling...

GRAHAM: Then you can only change it by constitutional amendment. '

KAVANAUGH: That's the (inaudible)...

GRAHAM: So here's the point, whether you agree with Roe v. Wade or not, the reason some legal scholars object to this concept is breathtakingly unlimited. Whatever five people believe at any given time in history, in terms of the word liberty, they could rewrite our history and come up with a new history.

And I think the best way for democracies to make history is to have the court interpret the Constitution, be a check and balance on us, not take one word and create a concept that is breathtaking in terms of his application to restrict the legislative process.

Now, whether you agree with me or not, I think there is a genuine debate and you would agree with me if it was something you liked or you were supporting that got shut out or you opposed you couldn't do. So I hope that one day the Court will sit down and think long and hard about the path they've charted and not just about abortion; whether or not it's right for people in your business on any given day based on any given case of controversy to say that the word liberty looking at the history of the country and the number of rights meets "X."

And it shuts out all of us who have gone to the ballot box and gone through the test of being elected. All I ask is that you think about it.

Also I want to ask you about something else to think about. You said you were in the White House on 9/11. Is that correct?

KAVANAUGH: That is correct, Senator.

GRAHAM: Did you believe America was under attack?

KAVANAUGH: Yes. It was under attack.

GRAHAM: Right. Do you believe that if the terrorists could strike any city in the world and they had like a -- you get a one shot at the world, based on your time in the White House, do you believe they'd pick an American city probably over any other city?

KAVANAUGH: Well, it certainly seemed that New York and Washington D.C. were the two targets.

GRAHAM: The only reason I mentioned that -- to my good friends and they are who believe that America is not part of the battlefield -- it sure was on 9/11.

The law: If an American citizen goes to Afghanistan and takes up the fight against our forces and they're captured in Afghanistan, the current law is you can be held as an enemy combatant in spite of your citizenship. Is that correct? Is that the Hamdi Decision?

KAVANAUGH: That's what the Supreme Court said in the Hamdi Decision with appropriate due process findings.

GRAHAM: Absolutely. Appropriate due process findings. Here's what I want people in your business to think about. Are you aware of the fact that the radical Islamic group are trying to recruit America to their cause -- Americans to their cause? That they are over the internet trying to get Americans to take up Jihad?


GRAHAM: The likelihood of an American citizen joining their cause is real because it's happened in the past. The likelihood of it happening in the future, I think, is highly likely. If an American citizen attacking the embassy in Kabul can be held as an American citizen, here's the question.

Can an American citizen, collaborating with other terrorist who are not American citizens be held as an enemy combatant for attacking the capital? And if they can't, you're incentivizing the enemy defined in an American citizen because they have a privilege that no other terrorist would have.

So you said something that was very compelling to me. That you apply the law and you have to understand how it affects people. Right?

KAVANAUGH: Yes, sir.

GRAHAM: I hope you will understand that this war is not over, that the ware is coming back to our shores. It's just a matter of time before they hit us again because we have to be right all the time and they haven't to be right one of the time -- one time.

I hope we don't create a process where, if you can come to America, you get a special deal. It makes it harder for us to deal with you and find out what you know. We treat you as a common criminal versus the warrior you've become.

That's just my parting thought to you. And you'll decide the way you think is best for the country. Is there anything you want to say about this process that would help us make it better because you're going to get confirmed.

I worry about the people coming after you. Every time we have one of these hearings it gets worse and worse and worse. You've sat there patiently for a couple of days. My colleagues have asked you tough questions, sometimes unfair questions.

Your time is about over. You're going to make it and you would probably be smart not to answer at all but I'm going to give you a chance to tell us what could we do better, if anything?

KAVANAUGH: Senator, I'm just going to thank all of the senators on the committee and all of the senators I met with who are not on the committee for their time and their care. And as I've said, each senator is committed to public service and a public good in my opinion and I appreciate all the time of the senators. And I'm on the sunrise side of the mountain and I'm an optimist about the future, Senator.

GRAHAM: Thank you very much.

GRASSLEY: We're -- before we break I want to bring up some information because I was wondering how long it would take the National Archives to get the material that we needed because you've heard several times that the -- that the archives -- that's their responsibility.

The National Archives has 13 archivists who handled George W. Bush's presidential records. They can only review about 1,000 pages per week. And we could not have gotten these documents for 37 weeks if we didn't get President Bush's team to expedite the review process for the benefit of all members of the committee. We received all the documents we would have received from the archivists just as a faster -- at a faster time.

We'll now take 15 minutes and resume at 12:22.

JOHN KING, CNN ANCHOR: Welcome INSIDE POLITICS. I'm John King. You see the chairman of the Senate Judiciary Committee, Chuck

Grassley, taking a 15-minute break after a contentious, dramatic morning hearing in the confirmation of Brett Kavanaugh to be the next Supreme Court justice.

Major questions raised by Democrats today, including a threat by one of them -- he actually did -- break the Senate rules and says if I get expelled, so be it. That's Cory Booker. That senator making the case that the Republicans are helping to hide e-mails he insists show insights on Brett Kavanaugh's real views on issues like affirmative action, racial profiling. Other Democrats have said abortion rights also in these e-mails.

Dramatic confrontations this morning. A 15 minute break in the proceedings now.

Let's discuss what we've learned today, whether or not it imperils at all Kavanaugh's nomination chances.

With me in studio to share their reporting and their insights, CNN's Kaitlan Collins, Carl Hulse with "The New York Times," CNN legal analyst Joan Biskupic, and Mary Katharine Ham with "The Federalist."

It is -- every day is unusual in this administration. But in this hearing, to have a Democratic senator openly break the rules and say, expel me, go for it, because I believe this process is warped.

Carl, you're a veteran of The Hill. A, does Cory Booker have a point? There's politics in this. He might run for president. He understands the moment. He understands the pressure from the Democratic base. But is Brett Kavanaugh in any more peril today? When we woke up this morning, there was no indication any Republican was moving. That's all it takes. Has the wall been cracked?

CARL HULSE, CHIEF WASHINGTON CORRESPONDENT, "THE NEW YORK TIMES": I think that Cory Booker said bring it, by the way. Wasn't that his quote?


HULSE: I honestly, in judging this right now, I would say, no. But the Democrats have done a few things. They have -- I think they've dinged him up a bit from where they thought -- the Republicans thought they were going to be at this hearing. I think they have needed to show they were going to fight. The last hearing, Judge Gorsuch, when he was nominated, the confirmation hearing, not much happened. The Democrats were quiet. I wouldn't say they rolled over, but they didn't put up much of a fight. This time they are going for it and they're going to do everything they can to show that they're fighting.

And this has been an unusual documents process. Basically, the National Archives was cut out of it and some of the screening was put in the hands of a very close adviser to Brett Kavanaugh. That is odd.

KING: Right. Right, a very good friend. The Bush -- essentially President George W. Bush's team, for those of you not following this closely, Brett Kavanaugh had several key jobs in the George W. Bush White House, including staff secretary, where all of the important papers that go to the president go through the staff secretary. Also worked on judicial nominations, was involved in picking judges. There were several controversies there during the Bush administration.

HULSE: Right.

[12:10:17] KING: And so he is at the center of this. And one of the arguments is, well, he's giving his unvarnished advice to the president, therefore that is privileged.

HULSE: But I just wanted to say one thing about Cory Booker. Obviously he's running for president, but that doesn't disqualify him from raising points here. And -- but I also think that Cory Booker would like nothing more than the Republicans in the Senate to be trying to throw him out.

KING: Right.

HULSE: Elizabeth Warren's biggest moment might have been when Mitch McConnell was trying to shut her down. I think nevertheless she persisted may be Elizabeth Warren's campaign slogan at the end of the day. So, you know, there's no real risk of Cory Booker being expelled from the Senate.

KING: Racial profiling, affirmation action are Cory Bookers concerns. He posted committee confidential records up on his websites right there.

Another e-mail that has been released from Brett Kavanaugh's days in the Bush White House talks about the idea he has said repeatedly throughout these hearings that Roe v. Wade, then the Planned Parenthood versus Casey, the Pennsylvania case, make it settled law. That that is settled law. The Democrats are now saying, wait a minute, are we being snookered? And this is a message they're trying to get to. The moderate Republicans, Lisa Murkowski and Susan Collins, because in a March 24, 2003, e-mail, Brett Kavanaugh wrote, I'm not sure that all legal scholars refer to Roe as the settled law of the land and at the Supreme Court level, since court can always overrule its precedent and three current justices on the court would do so. That's from 2003. We now know there are likely four justices on the court who might do so.

Again, my question, does that change the biggest calculation, not the drama, the vote count?

JOAN BISKUPIC, CNN LEGAL ANALYST: I don't think so, John. And I think what that memo reveals is how so many memos have been held back, marked committee confidential, when really all they are, are embarrassing documents that he could probably explain away, which he did then to Senator Dianne Feinstein.

The important thing in that memo was that substantively he is acknowledging in that memo what he wouldn't acknowledge to the committee, that of course the Supreme Court can overturn Roe. The Supreme Court overturns precedent a lot. So it's not enough to say something's settled precedent.

And what happened was, once that memo was leaked, a senator then asked him about it. He explained it. And the key thing here is that these documents could have been out earlier for him to just explain himself.

And just to Carl's point about why it's different from Justice Gorsuch's hearing, this is for such a key seat, the Anthony Kennedy seat.

KING: Right, the Anthony Kennedy seat. And Brett Kavanaugh's experience, correct me if you think I'm wrong, anybody at the table, he has -- Gorsuch worked at the Justice Department. Gorsuch had some political experience. Brett Kavanaugh was in a much more highly political role in the Bush White House.


KING: And he is, again --


KING: Object if you think I'm wrong, he is being less forthcoming than Neil Gorsuch, who was not exactly Mr. Forthcoming. Fair?

HULSE: Well, I do -- I do think the memo this morning actually forced him to say a little bit more about Roe, where he had to say, you know, he --

KING: I worked for a pro-life president.

HULSE: And it's precedent upon precedent.

KING: Right. Right.

HULSE: But, yes, he's a super political figure here in this town, you know, as Dick Durbin famously called him those L.A. (ph) Republican politics or Forrest Gump, I can't remember --

KING: Well, let's -- let's go up to Capitol Hill. CNN's Phil Mattingly has been tracking all this.

And, Phil, we use the word remarkable, unprecedented, haven't seen this before a lot. That hearing this morning where you had one Democratic senator and then several of his colleagues say, go ahead, we're going to break the rules too. You want to kick us out? Go for it. Quite remarkable.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, I believe Senator Booker called it his Spartacus moment where basically every Democrat was aligned in open revolt against the committee rules.

Look, I think both Joan and Carl are making the key points here, John, and that is the reality that Democrats have long been frustrated with this process, kind of a very different process just because of the scope of paper trail for Brett Kavanaugh. But they haven't necessarily been able to latch on to things that make it real, make it something that can actually gain momentum. That's what they got this morning.

I think Joan's read on the abortion-related e-mail, or at least how legal scholars look at it, is right one based on who I've talked to up to this point. But what that e-mail does is it created a document that had been confidential that relating at least somewhat to one of the central issue that Democrats want answers on from Brett Kavanaugh.

Now, as you noted, he responded more or less the same way he's responded to the Roe v. Wade question, or Casey verses Planned Parenthood throughout the course of the last couple of days. But they feel like whether it's on abortion, whether it's on affirmative action, whether it's on issues related to stolen e-mails back earlier in the 2000s, they now have things that they can present to the public and say, this is an example of why this process is wrong. They've used the word charade. They've used the word rigged.

I think the reality here on the top line remains the same, at this moment, Brett Kavanaugh's nomination is on solid ground. But when you pair the Democratic base, which wants a fight and has felt that a lot of Democrats have fallen flat on that, with the reality that the stakes here are enormous, the result was what you saw this morning and what's going to continue, frankly, throughout the day, John.

[12:15:05] KING: Phil Mattingly on Capitol Hill. Phil, keep in touch if more comes up. They're in a break right now.

Let's go back into the hearing room just to show some of the drama here.

Again, Cory Booker, at the -- early in the hearing announces publicly, I'm about to post e-mails that I'm not supposed to post. These are marked committee confidential. I don't have permissions. It is against Senate rules for me to make these public, but I'm going to do so.


SEN. CORY BOOKER (D), NEW JERSEY: I'm going to release the e-mail about racial profiling. And I understand that that -- the penalty comes with the potential ousting from the Senate.

Sir, I've say -- I'm saying right now that I'm releasing -- I'm releasing committee confidential documents.


KING: And to that, to that, you saw the chairman, Chuck Grassley, smiling there a little bit, but Republicans don't like this. Republicans don't like being questioned about how they've run this, about why it's taking so long or why they might not release some of these documents. Some, it's a delay. Some simply never will be made public if the Republicans get their way.

John Cornyn, number two in the leadership, also a key member of this committee, making the case this is not about Brett Kavanaugh.

(BEGIN VIDEO CLIP) SEN. JOHN CORNYN (R), TEXAS: Running for president is no excuse for violating the rules of the Senate or of the confidentiality of the documents that we -- that we are privy to.

SEN. CHUCK GRASSLEY (R), CHAIRMAN, JUDICIARY COMMITTEE: So he's talking about the public right to know. You want to give up your e- mails right now, make them public? I don't think you do.


KING: We try a lot to separate issue "a" from issue "b." The Kavanaugh nomination from the intensity in the Democratic Party, it's anger at President Trump, it's desire for its members to stop anything the president wants to do regardless -- and with the fact that every day we get closer to the 2018 midterms, we also get closer to the 2020 presidential election. And, yes, Cory Booker might run.

HAM: Yes, look, that's obviously part of it, and the over acting, if I may say so, is part of that. And it --

KING: Overacting? The Senate?

HAM: It will work for a certain segment of the people in the way that he wants it to.

Look, they've been -- Democrats have been frustrated with this process for a long time, in fact pre-2013 when Harry Reid, in his great wisdom, decided to blow up the judicial filibuster, thus neutering these folks and making this into a more ridiculous process than it already was. I think some of this is out of frustration. I think it's interesting how breaking norms and leaked e-mails are good on one day and bad on another depending on whose team you're on at the moment.

But the bottom line is, they did disarm themselves and I don't think there's a lot in these e-mails that Kavanaugh can't answer pretty convincingly. And the last time that Democratic -- Democrats in the Senate cavalierly tossed aside Senate rules, it got them here. That's just something to think about.

KING: To the 51. To the last time they fought about Senate rules, they changed the rules. So now it's 51 to confirm a Supreme Court justice.

It was Cory Booker today. It was Kamala Harris last night. In his testimony today, today -- he gave more of evasive answers last night. In his testimony today, Judge Kavanaugh said he has not had any inappropriate conversations with anyone about the Mueller investigation. Remember, he sits on the D.C. Court of Appeals. Any challenges to Bob Mueller in present cases or future cases could go through that court. So it does matter. Is he involved in any conversations? Does he bump into somebody at a social reception, he has to get out of the room if they're involved with these. Last night he was more cagey when Kamala Harris was pushing this.


SEN. KAMALA HARRIS (D), CALIFORNIA: Have you discussed Mueller or his investigation with anyone at Kasowitz, Benson and Torres, the law firm founded by Marc Kasowitz, President Trump's personal lawyer?


HARRIS: Be sure about your answer, sir.

KAVANAUGH: I need to know the -- I'm not sure I know everyone who works at that law firm.

HARRIS: I don't think you need to. I think you need to know who you talked with. Who did you talk to?

KAVANAUGH: I would like to know the person you're thinking of because what if there's a --

HARRIS: I think you're thinking of someone and you don't want to tell us.


KING: To that one, is that fair? Does she have something or is that innuendo from the Democrats trying to bait him? And again today, today, what -- you learn these things. Something happens yesterday or something now happens before the break, they take a break, you see the strategy, the reconsidering once you come back into the room. Last night he was evasive to her. Today he was -- he said on the record clearly, I've had zero inappropriate conversations about the Mueller investigation.

COLLINS: Yes, I think he was as caught off guard as everyone else was last night when she brought that up and she didn't really provide any basis for why she was saying that. And you see there, she's threatening him a little bit saying, be sure about your answer, making it sound like she knew something that he had discussed that with someone at that firm that used to represent President Trump.

And then today, of course, he was much more forthcoming. He had like I guess had thought about it and he said, no, I don't -- I have not discussed this with anyone.

But then she was also asked about it and she said that she had a reasoning for asking him that, but didn't disclose what that reasoning was and also didn't say if she would bring it up again. So it really raises the question, if she does know something, that would be a very legitimate line of questioning and I think everyone would want to know about it. But then if she doesn't and she's just kind of putting that out there to create this air of suspicion, which is I think what a lot of the argument over the document has precisely done to create this cloud over this hearing, then that would be something that people would scoff at.

HAM: Well, he should be extremely careful about answering a question about a giant law firm and whether he's spoken to anyone since he probably speaks to a lot of lawyers.

[12:20:06] HULSE: But I think Kaitlan -- she's got a point. There's an unintended consequence of keeping all these documents secret. And it's allowed the Democrats to raise some of these issues and like there is something there. And I think, as what you said, he probably can answer most of these, even though it puts him in a tough spot or makes the Bush administration look bad or -- but I do think that the democrats have used that confidentiality -- while complaining about it, they've also used it to their advantage.

KING: To raise questions.

BISKUPIC: Credibility was their point when they went into it. And that's why they're doing this.

KING: Right, they're hoping -- again, the drama's being driven by the Democrats. They're hoping to sway one or two of the key Republicans. If they can't sway them, it -- the math doesn't change. That's what matters most. We're going to continue to monitor the Kavanaugh confirmation hearing. As we told you, they're on a quick 15 minute break now. We're going to take a quick break as well. We'll be right back.


[12:24:59] KING: Live pictures here of the Senate Judiciary Committee about to resume its confirmation hearing of Brett Kavanaugh, the president's choice to fill the vacant Supreme Court seat.

This hearing would always be contentious. All the more contentious because this is for the seat of the retired now Justice Anthony Kennedy, a key swing vote on the court.

Also more contentious than perhaps normal because we are 61 days away from a midterm election and the Democrats are angry at the president of the United States. Brett Kavanaugh being his pick.

As we wait, Democrats are next asking the questions. We believe that could be Senator Dick Durbin of Illinois. You see him in the chair there. He is next in order, if they go in order.

We'll wait for Chairman Grassley to resume the committee hearing. We'll get you up there once it starts.

Back into the room now.

And, again, I'm going to try to keep doing this from the procedure of what more do we know now and does it change the calculation that began the morning that Brett Kavanaugh is getting bruised, his credibility is being called into question. The way the Republicans are running this is being called into question. But if the vote were right now, by all indications he would squeak by on a party line vote.

COLLINS: It does seem like that, but it is interesting because I don't think the White House was prepared for this to go this way. I think they knew that there was going to be a lot of noise about the documents and people trying to raise this cloud of suspicion, but I don't think that they were ready for it to be -- and go in the manner that it has gone with all of these interruptions and all these claims about the documents. I don't think they were prepared for that. BISKUPIC: I think they were plowing ahead. They've got the majority.

They were setting the rules because they could set the rules. Democrats were getting a lot of pressure from the base saying, you're just letting this all unfold.

COLLINS: Exactly.

BISKUPIC: So from the first moment, as we saw, Senator Harris complained the minute the hearing started about the process, and now we've seen this incrementally along. And I think it's been effective. But, John, to your point, will it change anything? Probably not for the bottom line vote.

KING: Right.

And Mary Katharine is shaking her head. Look -- look, again -- again, the Democrats are driving the confrontations here. The Democrats are driving the drama. The Democrats are, in some cases, breaking the rules to make public e-mails that the Republicans want to keep confidential.

The big question, at least unless there's a surprise, can you get Lisa Murkowski or Susan Collins, the two more moderate Republican senators from Alaska and Maine respectively, can you get them to break? If you can't get one or both of them to break, you don't have the votes.

Then there are -- then there's a separate question of, will red state Democrats come over and support him. We'll get to that one later.

The big controversy today is, does this e-mail in which Brett Kavanaugh says, I'm not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level, since court can always overrule its precedent, that's an e-mail he wrote back in 2003, working in the Bush White House, because it was made public, it was again Roe v. Wade, again a source of questioning today. Here's the nominee.


BRETT KAVANAUGH, SUPREME COURT NOMINEE: In that draft letter, it was referring to the views of legal scholars. And I think I -- I think my comment in the e-mail was that might be overstating the position of legal scholars. And so it wasn't a technically accurate description in the letter of what legal scholars thought. I'm always concerned with accuracy. And I thought that was not a quite accurate description of legal -- all legal scholars.


KING: So his answer there essentially being, it's not a personal opinion. I'm just making sure -- this was -- he was editing, essentially, a potential op-ed piece by a pro-choice Republican about a Bush nominee. And he's saying, that's not my personal opinion. I'm just trying to be accurate.

At another point he also said, look, I worked for a president, George W. Bush, who was pro-life. I was on the staff. It's our job to help him implement his policies.

HAM: Yes, and I think these answers are good because he is probably prepared to answer any number of things.

I do -- I will say, and speaks to why you can't just release this stuff from the beginning because he can defend himself perfectly well.

I will say, the documents and the actual substantive stuff here is a better strategy than random people yelling at the committee, which was what we were going with for the first part of it. And I don't think that moved anyone.

But, I mean, we have the same sort of tribal situation we have all the time, which is, I'm not sure anyone's convincing anyone of anything at this point.

KING: Right. And tribal, an interesting perspective in the sense that we, right now, again, outside of this committee, we have three or four or maybe five Trump state Democratic senators up for re-election this year who are waiting for Collins and Murkowski. Let's be honest. They are hiding for now. They don't want to answer questions. They want to see if Collins or Murkowski will crack. If so, maybe they'll stay on the Democratic side. If this is a done deal and they have to go home and run for re-election in states Trump carried by 20, 30, in some cases 40 points, that's a separate issue.

But for now, inside the room, let's listen to the Democrats. Cory Booker says this morning I'm breaking the rules. I'm telling you right now, I'm publishing e-mails I'm not supposed to. Some of these Democrats are institutionalists. That might make them cringe. But they also are paying attention to what's happening in the primaries this year, stand with booker.


SEN. DICK DURBIN (D), ILLINOIS: Let's jump into this pit together. I hope my other colleagues will join me. So if there is going to be some retribution against the senator from New Jersey, count me in.

UNIDENTIFIED MALE: Punishment or contempt?

SEN. CORY BOOKER (D), NEW JERSEY: Bring it. Bring it.


BOOKER: Bring it.

UNIDENTIFIED MALE: All of us are ready to face that rule.


[12:30:00] KING: We'll come back to this in a moment. But I want to bring you a new statement just released by the first lady of the United States on a separate issue. All of you are aware a "New York Times" anonymous essay today from a senior Trump administration official calling the president amoral, saying he's temperamental.