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Senate Committee Votes on Kavanaugh Confirmation; Senate GOP Inch Toward Votes Needed for Kavanaugh Confirmation; A Democratic Senator Questions Kavanaugh if He Would Commit to an FBI Investigation; House Republicans Plan for a Closed-Door Hearing with Rosenstein; Jeff Flake Finally Decides to Vote to Confirm Kavanaugh. Aired 9-9:30a ET

Aired September 28, 2018 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:00:12] JIM SCIUTTO, CNN ANCHOR: A very good morning to you on this momentous day and welcome to our viewers here in the U.S. and around the world. I'm Jim Sciutto in Washington.

POPPY HARLOW, CNN ANCHOR: And I'm Poppy Harlow with you this morning in New York. And this morning America wakes up divided. The Senate remains divided and so many of us are asking, did we all lose yesterday?

It has been merely 14 hours since the day of Senate testimony that will live in the nation's memory for decades and already the panel that produced that testimony is gathering again. You see it live right there on your screen. To act on it, either to give Judge Brett Kavanaugh a major boost for the lifetime seat on the nation's highest court, or to put up a major, if not a final roadblock.

At 9:30 a.m. Eastern Time, that is half an hour from now, a painfully divided Judiciary Committee will vote on whether to recommend Kavanaugh's nominate to the full Senate for an up-or-down floor vote. That could come as early as Tuesday.

SCIUTTO: This is a remarkable day in a series of remarkable days. And make no mistake, not only does the adjudication of this allegation of sexual assault hang in the balance, but so does the balance of the highest court in the land.

Overnight, the American Bar Association, which had weighted Kavanaugh well-qualified for the seat he is seeking, took the extraordinary step of asking the committee to put the nomination on hold. The group says, and I'm quoting here, "The basic principles that underscore the Senate's constitutional duty of advice and consent require nothing less than a careful examination of the accusations and facts by the FBI."

To be clear, as of this moment, that will not happen. Majority Republicans with the strong backing of the White House have decided that they and the country have heard enough. The three Republican senators and three Democrats who were seen as potential swing votes before yesterday's ordeal still seen this morning as swing votes.

That brings us to CNN's Manu Raju. He is live on Capitol Hill. Manu, will we get to a quick vote this morning or will senators be

allowed to speak again?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Expect a very contentious session when this opens up just in a matter of minutes here, Jim and Poppy. The members from this committee will get a chance to speak, to voice their concerns on the Democratic side and the Republican sides to push back rather aggressively. What we're going to see are the direct engagement from senators going back and forth over this nomination. But intensely, the focus will be on one senator, Jeff Flake, the Arizona Republican senator who is legitimately the only undeclared senator on this committee who at least one senator we don't know which way he will go.

He came out of the hearing yesterday, said he was torn. He was concerned. He heard testimony from both sides that he viewed was credible. He said he was having a hard time judging exactly the standard on which to ultimately make his vote, and he said that he had to think about this even further.

Now after that meeting, Jeff Flake met with three other members who are not on the Senate Judiciary Committee, including Lisa Murkowski and Susan Collins, the two Republicans, and the Democrat Joe Manchin. But all four of them have not said how they will vote and only two Republican senators, if they defect and all Democrats vote no, that is enough to derail this nomination.

This is a razor thin margin at the moment. No margin for error essentially on the Republican side, so depending on what Jeff Flake does here, in a matter of minutes will send -- will essentially determine in large part foreshadow Brett Kavanaugh's fate in the full Senate in determining whether he gets that lifetime seat. We'll see what Jeff Flake has to say here as he enters in a matter of minutes -- Jim and Poppy.

HARLOW: Right. It's a great point, Manu, and what the path to 50 could look like without Senator Jeff Flake. Possible but really, really difficult. Thank you, Manu. Stay with us and stay close because this is all going down in just minutes.

So the White House was pleased with Brett Kavanaugh's performance yesterday. We heard that from the president. He took to Twitter, he called Kavanaugh's testimony powerful, honest and riveting.

Let's go to the White House. Our correspondent Abby Phillip joins us this morning.

The White House standing by Kavanaugh, really happy with that aggressive, defiant performance last night. What more are you hearing this morning about how confident the White House feels that they have the votes here?

ABBY PHILLIP, CNN WHITE HOUSE CORRESPONDENT: That's exactly right, Poppy. We saw this morning White House officials fanning out to defend Brett Kavanaugh, to reinforce that the president saw him as giving a strong performance, a strong defense of himself yesterday in that testimony and they're saying that they're feeling optimistic about where we're headed in terms of the final vote in the Senate.

But they were asked this morning, several White House officials actually were asked if they have the votes of some of the key senators who are on the fence.

[09:05:06] Susan Collins, Lisa Murkowski, Joe Manchin of West Virginia, and others, and the answer was not exactly 100 percent yes. Listen to Raj Shah, one of the people leading the Kavanaugh nomination process, about that issue.

(BEGIN VIDEO CLIP)

RAJ SHAH, WHITE HOUSE DEPUTY PRESS SECRETARY: At this moment, I cannot say for certain that we do. We think that Judge Kavanaugh's testimony certainly moved them in the right direction.

(END VIDEO CLIP)

PHILLIP: So that is not a yes when it comes to the question of do they have those razor thin margins that they need in order to get Kavanaugh confirmed in the final vote. But they believe that they can do some of that work over the next 24 to 48 hours.

Now we asked whether President Trump would be involved in the process of phoning senators, of making calls, of trying to whip these votes, and the answer was that the White House would be involved. The reason for that is that President Trump may or may not be the lynch pin here for some of these moderates. It may not be that President Trump is the person who can really make a difference here.

There is a sense that some of these moderates are going to be voting on other issues and they may not necessarily want to hitch their wagon to President Trump specifically on this particular vote, Poppy.

HARLOW: Yes.

SCIUTTO: Abby Phillip at the White House, thanks very much.

Let's bring in our panel now.

David Gergen, you served four presidents, you've been in public service for decades. You've seen numerous Supreme Court nominations and confirmation battles. The pendulum swung quite sharply yesterday when Ford was testifying from Democrats and Republicans. You heard great concern for his nomination, even from the White House. After Kavanaugh testified, it seemed to swing back for many in the opposite direction.

Did he do enough yesterday with that final word to save his nomination, in your view?

DAVID GERGEN, CNN SENIOR POLITICAL ANALYST: I don't think it's clear yet. It is true that within Washington that Kavanaugh came in and even score. He fought it to a political draw in Washington within the Senate. But there are signs that out on the countryside that's not at all the case. "The New York Times" does a daily polling, overnight polling. What they have found is that support for Kavanaugh to go on the bench has dropped six points over the last 48 hours.

HARLOW: Wow.

GERGEN: And so, you know, that's just an early sign. We have to look for others. But I think this American Bar Association, you can tell us better. The American Bar Association call for a pause in order to have that FBI investigation. Ordinarily conservative judges don't think much of the ABA these days. But it was notable that Judge Kavanaugh cited the ABA repeatedly about his endorsement and what it said about his credentials. He used that to bolster his credentials. So they're as strong as a win. My feeling is they ought to wait to hear how the public really does feel about this. That ought to be part of their assessment.

HARLOW: Joan Biskupic, to you, I mean, you know, no Supreme Court nominee in modern history has ever been appointed to the high court for a lifetime term strictly along party lines. I mean, it just never happened. You think not that long ago, 25 years ago when Ruth Bader Ginsburg was confirmed 96-3 or the unanimous confirmation of Antonin Scalia. I mean, if this goes down along party lines and say Pence is a tie-breaker, for example, or if goes down along straight party lines 51, what does that mean for this country and for the high court that is supposed to be a nonpolitical and apolitical entity?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: You make two very good points there. First just in terms of pure votes, even back in the day of Robert Bork 1987.

HARLOW: Right.

BISKUPIC: Or Clarence Thomas in 1991, all the Republicans and all the Democrats did not stick together. There was some crossover. If this comes on purely partisan lines in terms of the Senate vote, that will be new.

The other thing that is new is that even though we've had politically charged nominations before, politically charged testimony, yesterday was the angriest, the most direct appeal to partisanship that we've ever had.

Now to be sure, Brett Kavanaugh felt like his career, his life even was on the line, and he felt he had to come out that way apparently. But it was so strong the reference to the Clintons, the reference to President Trump's election in 2016. This completely validates the fears that Chief Justice John Roberts always speaks about, that a political process is going to yield a justice who the people -- the American public will think is equally political.

SCIUTTO: Those words from Brett Kavanaugh yesterday were certainly striking when he said what goes around comes around.

HARLOW: Yes.

SCIUTTO: Mark Preston, both Democrats and Republicans have been claiming with confidence in the last 12 hours or so that yesterday's events angered and mobilized, not just their base but their supporters.

[09:10:09] Are both of them right?

MARK PRESTON, CNN SENIOR POLITICAL ANALYST: Yes. I mean absolutely. But before I even give credit to them both being right I mean we should also give them great fault and frustration from the American people because what we've seen now is a weaponization of the destruction of people's lives and through a very, very difficult path, which is of course allegations, accusations of sexual misconduct or in this case a sexual attack.

What's going to happen in the midterms is that you are going to see these suburban women voters are going to become enlivened. They are going to look at this and they're going to see this as perhaps the tipping point for them to go vote for the Democrats in the upcoming elections. And you are going to see the base harden for Donald Trump.

Now we all know that the victory is not going to be won on the bases. It is going to be won in the middle. And at the end of the day, I think for Democrats -- I hate to put this in political terms because it's very crass, the Democrats would win the political victory.

SCIUTTO: Yes.

HARLOW: All right.

GERGEN: But first --

SCIUTTO: Quick thought, David, before we go.

GERGEN: The problem that the Republicans have now is that Kavanaugh brought it back, he fought it back to a draw, but he has not dispelled that cloud that's over his head. And there is going to great fear that if he gets on to the court, he is going to seek revenge against the left for having destroyed him.

HARLOW: Everyone stay with us. Again, you're looking at live pictures on Capitol Hill there. The cameras are getting adjusted as you can because a momentous vote and some impassioned speeches are about to get underway. You will see it live here. But before this hearing begins at 9:30 a.m. Eastern Time, we will speak one-on-one next with an alum from Christine Blasey Ford's high school. She's someone who helped organize that letter to support Dr. Ford. What she thinks of everything that went down yesterday next.

(COMMERCIAL BREAK)

[09:15:00] POPPY HARLOW, CO-HOST, NEWSROOM: All right, welcome back to our viewers here in the United States and around the world. I'm Poppy Harlow, joined by my colleague Jim Sciutto in Washington. We are taking you through these moments ahead of a key vote about to happen from the Senate Judiciary Committee in just moments.

You see the cameras gathering there, getting ready for the members to walk in. They will vote -- the committee vote on the nomination of Judge Brett Kavanaugh for the Supreme Court, for the highest court in the land, a life-time appointment after an incredibly contentious hearing yesterday. Jim?

JIM SCIUTTO, CO-HOST, NEWSROOM: And as the committee prepares to vote on Kavanaugh's confirmation, more than a thousand women who attended Christine Blasey Ford's high school are showing their support for their fellow alumni. They signed a letter on her behalf last week and delivered it to several senators including West Virginia Republican Senator Shelley Moore Capito who is also a graduate herself from Holton-Arms.

The letter reads in part, quote, "we are deeply grateful to Dr. Blasey Ford for bravely stepping forward." Joining me now, one of the organizers of that letter Alexis Goldstein. Alexis, thanks so much for taking the time this morning. I wonder, as you were in the room yesterday watching these hearings, attending these hearings, were you disappointed that when Brett Kavanaugh had the chance to speak, that he barely referenced Ford's testimony just before him?

ALEXIS GOLDSTEIN, CO-ORGANIZED LETTER IN SUPPORT OF CHRISTINE FORD: I mean, I think the largest disappointment from the community of the whole alumni who signed this letter is that there has not been a thorough and independent investigation. And that when presented with the opportunity for Kavanaugh himself to call for one repeatedly, he failed to do so.

We have -- we put the letter together because we wanted to stand with our fellow alumni. We think it was so incredibly courageous for her to come forward and do her civic duty and this advising consent process. And I think it's been incredibly disappointing to us as alumni who signed this letter that her call for an independent investigation has not been heeded, and that Kavanaugh himself did not call for one when he was presented with the opportunity to do so.

SCIUTTO: And we should note again that the American Bar Association overnight, which had supported his nomination or at least recommended him as highly qualified called for such an independent investigation overnight. You referenced when Kavanaugh was pressed on whether he would ask for an FBI investigation. I want to play a portion of that exchange because at times it was awkward. Have a listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Will you support an FBI investigation right now?

BRETT KAVANAUGH, NOMINEE FOR SUPREME COURT OF THE UNITED STATES: I will do whatever the committee wants to --

UNIDENTIFIED MALE: Personally, do you think that's the best thing for us to do? Do you want to answer?

KAVANAUGH: You know, look, senator, I've said I wanted a hearing, and I said I would welcome anything. I'm innocent.

(END VIDEO CLIP)

SCIUTTO: In the end, he did not answer. And being in the room there, Alexis, I wonder how you reacted when you witnessed that exchange? GOLDSTEIN: Well, physically, if I was not in the hearing room, a lot

of the alumni -- none of the alumni that I know were able to make it into that room, it was a very high demand room, so we watched in various Senate offices, we had the television on. But I think the reaction was again, one of great disappointment, and I think we have to tried to stand with Dr. Blasey Ford.

I think there was -- the word hero was used a lot throughout my community yesterday in the Senate about her. And we have always called in this letter for a thorough and independent investigation, and his sort of, you know, dodging of his opportunity there to call for one himself was disappointing and I personally don't understand it.

SCIUTTO: Let me ask you this, we don't know the outcome of today's committee vote or a later vote on the full -- to the full Senate, and some of which the votes will be tomorrow and early next week. What would be your reaction and the reaction of your fellow signatories to this letter, fellow alumnus of Holton-Arms if the Senate moves forward and confirms Judge Kavanaugh?

[09:20:00] GOLDSTEIN: I mean, I can only speak to those who signed the letter, but I should stress that this is a large chunk of our community. Holton is very small, that class size is less than a 100. So, 1,100 alumni is a large portion. I think that we would be very disappointed, we again wanted to stand with Blasey Ford, there was a lot of emotion yesterday, there were tears, there were hugs, we were proud to be alumni, we hoped that she saw us through the media, through various ones, to know that we had her back and know that we stood with her.

I think regardless of what happened, hopefully, she got that message from us, and I think she is the hero personally, and I think a lot of my fellow alumni think that. Obviously, it will be a disappointment if her call for an investigation isn't heeded, and I don't understand the rush that is happening right now if the desire is to find the truth.

But no matter what happens, we as alumni who signed this letter stand with her, are so proud of her and in my personal opinion, she's a hero.

SCIUTTO: Yes, well, that question of an FBI investigation certain to come up in the committee hearing here in just a few moments. So Alexis Goldstein, thanks very much for joining us.

GOLDSTEIN: Thanks for having me.

HARLOW: All right, meantime, we just learned that leaders from the house do plan to bring Deputy Attorney General Rod Rosenstein in for a closed-door hearing. A source tells us, the hearing would give Rosenstein a chance to explain reports that he allegedly discussed wearing a wire to record the president and possibly to invoke the 25th Amendment that would of course remove President Trump from office.

Rosenstein has vehemently denied that. It's so sad, if Rosenstein does not agree to testify, he could be subpoenaed to do so. We'll keep an eye on that. Moments from now, the Senate Judiciary Committee will begin this pivotal hearing on the confirmation of Judge Brett Kavanaugh to the Supreme Court. We will bring it to you live right here, don't go anywhere.

[09:25:00] (COMMERCIAL BREAK)

SCIUTTO: Welcome back. You are looking at live pictures from Capitol Hill, the Dirksen Senate Office building, that is the room where the Senate Judiciary Committee will meet. We're already seeing some senators go in there now. That's senator -- Republican Senator John Kennedy there. We know that the Chairman of this committee, Senator Chuck Grassley tends to be punctual.

So we expect that the committee meeting should begin at --

HARLOW: Yes --

SCIUTTO: Or around the time it's scheduled to at 9:30 of course, we're going to go to it straight live.

HARLOW: You know, we're also hearing, as you know, Jim, that we're going to hear from these senators. That Grassley is going to allow them to speak, whether they'd be Democrats on the committee, the ten Democrats or one of the 11 Republicans. So you can expect to hear impassioned speeches from a number of members of this committee likely ahead of the vote, we'll get to that in a moment.

Our team is back for full coverage ahead of this. John Avlon here with me in New York. We just heard rush off from the White House reflect it moments ago, tell our colleague John Berman, when asked, do you have the votes? Do you have enough?

He said I can't say for certain we do. That is significant. Someone trying to tip the balance in Kavanaugh's favor is former President George Bush. President Bush whom Kavanaugh worked in the Bush White House and was critical on that team, could he be the savior here?

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Well, they're bringing in the relief pitcher, an establishment Republican figure who is far less polarizing than President Trump. Remember, there's a personal character reference here that Brett Kavanaugh served as Staff Secretary to George W. Bush --

HARLOW: Yes --

AVLON: He's been granted the official Bush benediction of a good man. The question from the senators in the Senate, Jeff Flake, Murkowski, Collins, is whether that private call will be enough to override everything we've been through publicly. Because they have enormous power should they choose to use it.

And one of the part reasons is there is a sort of an apocalyptic feeling in the wake of yesterday's hearing, is there is not an obvious way out. Almost any path forward --

HARLOW: What do you think with that?

AVLON: Almost any path forward, the polarization gets worse. The politicization of the court gets worse. And so that's one reason why I think the American Bar Association's recommendation is a possible off-ramp.

HARLOW: To wait.

AVLON: To wait, to do the investigation, cannot depolarize things for a time, possible, and will they vote in concert --

HARLOW: Right --

AVLON: Or not?

HARLOW: And, Jim, we're watching this, that's the Chairman Chuck Grassley walking in just before he gavels in, Jim.

SCIUTTO: Namely, so senators will, as is our understanding, get a chance to speak again. Democrats and Republicans, do you expect a similar, divided, sometimes angry emotional scene to the one that we saw yesterday?

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: You know, it's certainly possible. And my goodness, how angry people were, particularly Lindsey Graham, who is known for being, you know, somewhat temperamental and witty and funny at times and full of soundbytes.

But yesterday was very much a sort of an explosion in doubling down on what we saw --

SCIUTTO: Yes --

HENDERSON: From Kavanaugh in the first statements during his opening testimony. So we'll see what happens today. You know, you've got 10 Democrats, 11 Republicans, all eyes I think today on Jeff Flake. What is he going to do? He was somebody yesterday who basically said this is a broken process, it's an imperfect process, we're imperfect senators, but this is the best we can do.

So we'll see what --

SCIUTTO: Yes --

HENDERSON: We hear from these senators today in this very tense situation.

SCIUTTO: Poppy, that's something that the two sides, a few things, that they agree on, is that --

HARLOW: Right --

SCIUTTO: This is a broken process --

HARLOW: And -- SCIUTTO: A broken process.

HARLOW: And our Manu Raju who covers Capitol Hill day in and day out and through the night is back with us with some breaking news. Manu, what are you hearing?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes, it's very significant news. Jeff Flake --

HARLOW: Wow --

RAJU: The Arizona Republican senator who has been way-ward, uncertain about how he's going to vote will vote to confirm Brett Kavanaugh. This after days of deliberation, he was torn after yesterday's testimony. He did not know how he was going to vote, he was the one senator on this committee we did not know which way he would go.

But in a statement just put out by his office made it very clear, that yes, in fact, he will vote to confirm Kavanaugh. He says that he heard more than 30 hours of testimony, he was prepared to support the nomination after that initial 30 hours.