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Senate Committee Votes on Kavanaugh Confirmation This Morning; Former Classmate of Kavanaugh's Reacts to Senate Hearing. Aired 7- 7:30a ET

Aired September 28, 2018 - 07:00   ET

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

JOHN BERMAN, CNN ANCHOR: This is a decision that will affect the court, the politics and the culture of our country for generations to come.

[07:00:08] Republican Senate leaders, they are full speed ahead with Brett Kavanaugh's confirmation process on the heels of the historic, emotionally raw hearing that featured testimony from Kavanaugh and Professor Christine Blasey Ford.

Very shortly, the Judiciary Committee will vote on advancing that nomination to the full Senate. A procedural vote is planned for Saturday. A final vote whether to confirm Kavanaugh for early next week.

And this morning, this all comes down to four key senators: Susan Collins, Lisa Murkowski, Jeff Flake, who is on the Judiciary Committee. We will get a sense from him, again, within the next two hours exactly where he stands and then Democrat, Joe Manchin.

ALISYN CAMEROTA, CNN ANCHOR: I know you have your information machine fired up that you call a laptop, and you are checking it second by second.

BERMAN: This Internet is an amazing thing.

CAMEROTA: So they have to decide, do they believe Christine Blasey Ford, who said she was 100 percent certain that she was sexually assaulted by Brett Kavanaugh, or do they believe Kavanaugh, who says he is 100 percent sure it was not him.

President Trump called the process a sham and expressed his support for Kavanaugh. But the American Bar Association is calling on the Judiciary Committee to delay the Kavanaugh vote until there is an additional FBI background check with this new information.

So we begin our coverage with CNN's Sunlen Serfaty. She is live on Capitol Hill. What is the feeling there, Sunlen?

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: Sunlen, the Senate Judiciary Committee is holding a vote in just a few hours. That is the first step that needs to happen to advance Brett Kavanaugh's nomination.

Senate Majority Leader Mitch McConnell telling CNN, in his words, he is optimistic, basically. And those two words doing a lot to really capture the essence of this moment.

You have Republican leaders pushing for towards a vote. But it is still very unclear to them whether they, indeed, have the votes to advance the nomination, especially after that emotional and historic hearing.

(BEGIN VIDEOTAPE)

BRETT KAVANAUGH, SUPREME COURT NOMINEE: You may defeat me in the final vote, but you'll never get me to quit.

SERFATY (voice-over): Republican senators moving forward with a vote to advance Judge Brett Kavanaugh's nomination, after an extraordinary hearing that began with Christine Blasey Ford emotionally recounting her alleged assault.

CHRISTINE BLASEY FORD, ACCUSES BRETT KAVANAUGH OF SEXUAL ASSAULT: I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most and has had the most lasting impact on my life.

SERFATY: The proceedings later devolving into bitter partisanship after Judge Kavanaugh angrily took the stand in his own defense.

KAVANAUGH: My family and my name have been totally and permanently destroyed. This whole two-week effort has been a calculated and orchestrated political hit, revenge on behalf of the Clintons.

SERFATY: The focus this morning on four undecided senators who met privately after the hearing and could sink Kavanaugh's nomination. Senator Susan Collins tight-lipped as she left the Capitol after a day of testimony where both Kavanaugh and Ford stood firm.

SEN. DICK DURBIN (R), ILLINOIS: Dr. Ford, with what degree of certainty do you believe Brett Kavanaugh assaulted you?

FORD: One hundred percent.

SEN. JOHN KENNEDY (R), LOUISIANA: None of these allegations are true?

KAVANAUGH: Correct.

KENNEDY: No doubt in your mind?

KAVANAUGH: Zero. I'm 100 percent certain.

SERFATY: Ford testifying first, rejecting the idea that she's part of a left-wing conspiracy against Kavanaugh.

FORD: I am no one's pawn.

SERFATY: And describing the lasting impact of the alleged assault.

SEN. PATRICK LEAHY (D), VERMONT: What is the strongest memory you have? The strongest memory of the incident? FORD: Indelible in the hippocampus is the laughter -- the uproarious laughter between the two, and their having fun at my expense.

SERFATY: The all-male Republican majority ceding their time to sex crimes prosecutor Rachel Mitchell, who noted that the hearing's format was not well-suited to a trauma investigation.

Republicans later taking back the floor after Senator Lindsey Graham's furious denouncement of the proceedings.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: What you want to do is destroy this guy's life, hold this seat open. Boy, you all want power. God, I hope you never get it. I hope the American people can see through this sham.

SERFATY: "The New York Times" reports that Mitchell later told Republicans privately that she did not believe there was enough evidence to prosecute, but the White House was reportedly questioning the decision to hire Mitchell, and President Trump was concerned after Ford's testimony.

However, Kavanaugh's combative opening statement encouraging the president, who later applauded his nominee's testimony as powerful, honest and riveting. Kavanaugh's defiance on display as he repeatedly dismissed questions about his history of drinking and partying.

[07:05:06] KAVANAUGH: You're asking about blackout. I don't know, have you?

UNIDENTIFIED MALE: And did the world "ralph" you used in your yearbook refer to alcohol?

KAVANAUGH: I already answered the question.

UNIDENTIFIED MALE: Did it relate to alcohol?

KAVANAUGH: I like beer. I don't know if you do.

UNIDENTIFIED MALE: OK.

KAVANAUGH: Do you like beer, Senator, or not? What do you like to drink?

SERFATY: And about whether the allegations should be handled through an FBI investigation.

DURBIN: Personally, do you think that's the best thing for us to do? You won't answer?

(END VIDEOTAPE) SERFATY: And breaking overnight, the American Bar Association has now called on the committee to delay their vote until there is an FBI investigation. That's such a huge development, so significant in the fact that Brett Kavanaugh held up their nomination at many points during that testimony yesterday -- John and Alisyn.

CAMEROTA: Sunlen, thank you very much.

Joining us now, we have CNN chief legal analyst Jeffrey Toobin; CNN political director David Chalian; and senior correspondent for "The New York" magazine and co-author of "Notorious R.B.G," Irin Caron.

Great to have all of you.

Jeffrey Toobin, Professor Christine Blasey Ford said she is 100 percent sure that the person who assaulted her when she was 15 years old is Brett Kavanaugh. Brett Kavanaugh says he is 100 percent certain it was not him. How are these four senators to decide?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: The rule in the United States Senate is the woman always loses. And she's probably going to lose here.

CAMEROTA: It did start to feel that way yesterday after the conversation.

TOOBIN: You know -- you know, can you imagine if she behaved the way he behaved? If ranting and raving and taunting the senators and asking them what they drink? Imagine this woman or any woman going before the United States Senate and behaving that way. I mean, you know, she told the story.

And no one, even the senators, the Republican senators really seemed to challenge it. But I think the answer is they don't care. They're going to get somebody on the court who will overturn Roe v. Wade, who will allow, you know, corporations to do what they want under Citizens United and other decisions. And they don't care what kind of person he is. And that's, you know, that is the only message you could get from yesterday's proceeding.

BERMAN: We've been watching developments overnight. One of the developments is the American Bar Association, which Lindsey Graham, in his rant or impassioned statement, called the gold standard of judicial review. The ABA said pause. Hold off here until there's an FBI investigation. George W. Bush has been on the phone, on the other hand, calling senators to try to convince them to vote for Brett Kavanaugh.

What's going through the head of Susan Collins and Lisa Murkowski and Jeff Flake, frankly, who's got to decide in the next two hours, what he's going to do?

IRIN CARMON, AUTHOR: You know, I agree with one thing that President Trump said, which is that this process has been a sham. I mean, if you have the American Bar Association stepping in, if you have the FBI willing to investigate but standing by without any orders from the White House. This was set up to be a he said-she said.

And I hope that the senators considering this think about what many American women went through yesterday. I mean, speaking for myself, I can say that I was traumatized; I was gutted. I'm a journalist, but I'm also a human being. And to see her pain and to see his fury and to see the deference that his fury got. And, you know, Jeff mentioned that men are allowed to get angry in a

way that women are not. Imagine if Justice Sotomayor, during her nomination hearing, in which senators, some of them in the room yesterday, implied she was racist and grilled her about her reputation and her temperament and her intelligence, imagine if she had reacted in that kinds of defensive rage.

So I hope that the senators considering this take stock of what many American people saw yesterday. Certainly not all. I'm sure that there were a lot of people that cheered his performance, but to me it was absolutely gutting.

CAMEROTA: Irin, you're not alone. There were so many people on social media. There were so many calls into cable news shows. There was so much discussion. We'll be playing it coming up soon in a panel of women.

One woman who was 76 years old, who called into C-SPAN who said that she has been -- it's opened up a sort of Pandora's box and all the old wounds from when she was on second grade.

There are so many women who listened on that level to what Christine Blasey Ford had to say in front of all of America, and it was traumatizing for so many people to watch all of this play out in public.

David, why -- I want to ask you about one part that I was really confused by yesterday. Why was it so hard for Brett Kavanaugh to say yes to an FBI investigation? He was asked so many times. He was silent at some points. At some points he was sort of flabbergasted about trying to answer.

Why not just say, yes, I think that would be a great idea?

[07:10:03] DAVID CHALIAN, CNN POLITICAL DIRECTOR: So apart from the emotion that we've been talking about, the pure political theater of it all, I think it was clearly the Democrats' cleanest point. That -- that neither Kavanaugh nor the Republican senators on the panel really had a good answer for. They had an answer but not a believable answer as to why not an FBI investigation.

I think, in fact, it was Dick Durbin who sort of eviscerated Kavanaugh on that point, I thought. And that's when Lindsey Graham came roaring back to start building up the defense to get rid of the prosecutor who was there and start making this political brawl that it is, that is all pretty important nominations are.

And so the question that's out there, and I think that question continues because of the ABA overnight, Alisyn. I think that you will hear when the Judiciary Committee meets today for this scheduled committee vote. I think you're going to hear a lot of conversation from the Democrats about the need for an investigation now again, because they have the ABA calling for it.

CAMEROTA: But do you have any sense from behind the scenes why he was so flummoxed? And I mean, the easiest thing in the world is to say, "Yes, let's do an FBI investigation." It's the easiest thing in the world. Why couldn't he answer that?

TOOBIN: Pick me! Pick me! I have a suggestion.

CAMEROTA: I'd like to hear this.

BERMAN: Go ahead, Jeffrey.

TOOBIN: He doesn't want an FBI investigation.

CAMEROTA: Why?

TOOBIN: Because he's afraid of what it would find.

CAMEROTA: But listen, Mark Judge has already said he doesn't remember anything. So -- so who -- I mean, it doesn't sound that dangerous. Mark Judge, his good friend, who was the sole witness, according to Christine Blasey Ford, says he can't remember anything --

BERMAN: He doesn't say -- no, he says he doesn't recall that. But no one has asked him, and he hasn't been cross-examined on what he does recall.

TOOBIN: Here in the United States --

CARMON: And his girlfriend who describes -- yes, I mean, there's just a lot of information that hasn't been submitted to the committee. The girlfriend of Mark Judge has offered to testify about what he told her. We haven't gotten information that could corroborate her time line, whether it's about the calendar.

I mean, there are a lot of substantive things here that an FBI investigation would turn up that I am sure Brett Kavanaugh does not want out there.

TOOBIN: Here in the United States, we don't conduct trials by e-mails and letters from lawyers. We actually bring people in, and we ask them questions.

And that's the way you find out facts if you are interested in finding out facts. The Republicans on the Senate are not interested in finding out the facts. They are interested in getting Brett Kavanaugh confirmed, so they wanted this hearing as narrow as possible with as few witnesses as possible, with as few facts disclosed as possible. Now unfortunately for them, they couldn't avoid having Dr. Ford testify. And her testimony was essentially unrefutable.

BERMAN: So -- so -- well, look, she says 100 percent that she was assaulted by Brett Kavanaugh. He says 100 percent that he didn't do it. The "I didn't do it" defense is a defense, right? And in terms of corroborating evidence, that wasn't part of yesterday's hearing.

I want to move on back to where we are this morning, David. Because you said we're going to hear from all ten Democrats about the FBI investigation, and I'm not saying 10 Democrats don't matter. But they don't matter as much as one Republican on that committee today, and that's Jeff Flake.

So is this idea that the ABA is presenting of a new FBI background check, is that an off-ramp? Is a subpoena from Mark Judge an off- ramp? And is it an off-ramp that you think that Jeff Flake would say, "I want to take" right now?

CHALIAN: I've been observing Jeff Flake for a while, and it seems to me what he likes more than anything is to sort of get credit for looking like he's going against the grain, but at the end of the day, not really necessarily, going into the grain of his party, he doesn't like to rock the boat perhaps as much of his -- as his floor speeches suggest.

CAMEROTA: Don't get Jeffrey Toobin started on this one, please.

CHALIAN: But I will just say, when you say an off-ramp, I don't know if it's an off-ramp to vote against Kavanaugh at the end of the day. But it may be, because Jeff Flake was one of the first Republican senators to say, "Slow down. We need to hear from Professor Ford. We do need to slow this process, not have the vote."

So he's already been a voice for a call of delay when a piece of information was introduced that needed more time to explore.

I am eager to see if he is willing to tip his hand at all, because these four critical senators remain politically uncommitted, no signals being given from them right now about how they're going to go.

Jeff Flake is first up out of the box here to see if he's going to tip his hand in some way, and perhaps, if he does call for a postponement, that that may at least indicate they truly are still very much undecided and are not ready to move forward.

TOOBIN: And Jeff Flake -- and Jeff Flake -- hang on one second.

BERMAN: A delay isn't necessarily death. I mean, Republicans are going to make the case that, if you delay this, it's over. That's not true. I mean, the Supreme Court seat, he could have it for 40 years. What's ten days?

CHALIAN: Delay is not a certain death, but you know that the White House and Mitch McConnell had been eager, as has Brett Kavanaugh -- he stated it many times yesterday -- to move this very quickly, because they do know that the longer you hang out there, the more potential for other allegations to come forward. That is not a good place for them to be.

[07:15:04] So it is not certain death. Nothing is certain death here. The Republicans are in the majority. They've got the 51 votes. This is poised to get Kavanaugh on the court, so I do think delay is problematic if not certain death.

CAMEROTA: Go ahead, Jeffrey. TOOBIN: Jeff Flake, having called for the hearing, didn't even bother to use his five minutes. For one minute he sort of said, "Oh, this is very sad." If there is a weaker, more pathetic political figure in the United States than Jeff Flake, I'm not aware of who it is. And I thought yesterday was a classic demonstration of his inability to stand for anything.

BERMAN: You are off the Flake family Christmas list once and for all.

TOOBIN: I am so -- I am so off -- and by the way, let's just not forget about this delay business. You know, can you delay it for a week? Can you delay it for two days? Merrick Garland. They delayed filling a seat for a year. The idea that they can't delay this hearing or this vote for a week is preposterous.

CAMEROTA: Irin, go ahead. Last work.

CARMON: Yes. I mean, look, the timeline is artificial, right? There were ten months that the Supreme Court had eight members. But I think, you know, on the politics of this, if you have George W. Bush making calls, as "The Washington Post" reported, if you have the fact that Jeff Flake has a long track record of voting for Trump's judges, Kavanaugh is one of them. He's a movement conservative. I think that they likely have the votes. We'll just have to see what happens.

CAMEROTA: All right. Irin, Jeffrey, David, thank you all very much. The next two hours are going to be fascinating.

BERMAN: They really are. I mean, they really are. And sooner or later Jeff Flake will have to tell us how he feels about this. And sooner or later --

CAMEROTA: Sooner than later he's going to let us know.

BERMAN: Nine-thirty a.m.

All right. Brett Kavanaugh insists he never committed sexual assault, saying, quote, "That's not who I am." We'll talk with someone who went to high school with Kavanaugh and knew him. What does he think?

(COMMERCIAL BREAK)

[07:20:54] BERMAN: The Senate Judiciary Committee is set to hold a crucial vote on Supreme Court nominee Brett Kavanaugh this morning. This is a live look inside the room where that vote will happen.

There is one senator on this committee, Senator Jeff Flake of Arizona, a Republican, we do not know which way he will vote. If he votes against Kavanaugh moving forward, that will mean that Judge Kavanaugh will not get the committee's recommendation. We are waiting to hear which way Flake will go.

In the meantime, obviously yesterday was a big day. Senators on both sides looked for some answers. They got some but not all. Joining us now to discuss this is Tom Kane, who knew Kavanaugh in high

school and perhaps can help us understand and fill some of the blanks where the judge did not give some answers.

Thanks so much for being with us. Did you watch the hearing yesterday?

TOM KANE, HIGH SCHOOL CLASSMATE OF KAVANAUGH'S: Yes.

BERMAN: What did you make of it?

KANE: I rode the roller coaster just like everybody else. Chrissy Blasey was -- was riveting. Clearly, something bad happened to her. I don't believe that Ms. Mitchell's cross really gave us any clear answers.

And then -- then enter my friend Brett Kavanaugh, and he -- he brought the energy we needed. To my mind, he -- he put down every charge one by one, the who, what, when, what and why was clearly addressed. And it reinforced what I already knew, that he's just not capable of doing this. I'll take -- I will -- 'til the day I die I will believe that he did not do this.

And there are other reasons. In our circle those days, I pretty much knew what those five or six guys were doing at every moment, and there was no memory of this. It did not happen. Plus, our network, our community, the Catholic school kids, we would have known. These things stick.

BERMAN: Well, look, do you think your friend would have told you -- he says he didn't do it, but do you think he would have told you, had he sexually assaulted --

KANE: Somebody would have told me. Somebody would have told me.

BERMAN: How would they have known? If he and Mark Judge were the only three people in the room, and Chrissy Blasey, who you suggest you know. If those were the only three people in the room and they didn't not tell anybody at the time, how would you have known there was a sexual assault?

KANE: OK. John, what did you do yesterday? "Oh, we got -- we got all banged up during the day, and a couple of Holton girls came over, and one of them ran out." I would remember that, OK?

BERMAN: I'm just saying you say --

KANE: Plus, if something happened to Chrissy Blasey -- if something happened to Chrissy -- look, the women we hung out were in those days were not to be trifled with. They're not -- you don't trifle with them now; you didn't trifle with them then. If you upset one of them, you upset them all, and you're done.

BERMAN: OK. But we know -- we learned from Christine Blasey that she did not tell anybody about this for more than 30 years. We also know that that is not at all uncommon among victims of sexual assault. KANE: Yes, it's very unfortunate. I have four sisters, five sisters- in-law. I have 20 nieces.

BERMAN: And I'm sure you've heard from a lot of these women about events that happened to them earlier in their lives that they had never recounted?

KANE: Fortunately, they have the support network. I don't personally -- fortunately, no one in my family has talked about anything to the extent that Chrissy reported.

BERMAN: OK. Then you're lucky. Because I have heard from a lot of women over the last two weeks who have told me things that I never knew.

(CROSSTALK)

KANE: But talked about things they could handle. Boys will be boys, and I hate that term.

BERMAN: "Boys will be boys," does that mean --

KANE: I hate that term, John. I hate that term.

BERMAN: What does that mean in this case? Are you saying if -- I know you don't think he did it, but if he did, it's excusable?

KANE: No.

BERMAN: OK. Let me just play what Chrissy Blasey said. You call her Chrissy Blasey. Professor Christine Blasey Ford said yesterday about whether or not she is sure this was Brett Kavanaugh.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER, JUDICIARY COMMITTEE: How are you so sure that it was he?

CHRISTINE BLASEY FORD, ACCUSES KAVANAUGH OF SEXUAL ASSAULT: The same way that I am sure that I am talking to you right now. It's just basic memory functions. And also just the level of norepinephrine and epinephrine in the brain that sort of, as you know, encodes -- that neurotransmitter encodes memories into the hippocampus, and so the trauma-related experience that is kind of locked there, whereas other details kind of drift.

[07:25:04] FEINSTEIN: So what you are telling us is this could not be a case of mistaken identity?

FORD: Absolutely not.

(END VIDEO CLIP)

BERMAN: She says absolutely not, and you just told me that the women who ran in these circles that you knew then weren't to be trifled with. So how do you account for those two things? KANE: I can't explain it. But she -- like I said, I have a lot of

sympathy for her, because something happened to her. But the man I know could not have done this, and for some reason, Brett is imprinted on her mind.

BERMAN: Have you ever seen your friend Brett Kavanaugh as angry as you saw him yesterday?

KANE: No. He's a man of control. He's a man of composure. Especially as an adult, but even as a young person, he was in complete control.

BERMAN: Yesterday was he in complete control?

KANE: I think he did what he had to do. And he took -- he owned the room and he called out the politicization of the process. And like I said, you know, I would be angry, too. I'm already angry.

You say something about him, and you say something about my past, you're saying something about me.

BERMAN: Yes.

KANE: And you know, he -- his family has been destroyed. And this is going to follow him, unfortunately. And my sincere hope is this this is a turning point, and instead of this mess being associated to his name, that his legacy will be a more productive and civil discourse around nominations.

BERMAN: You talked about this being a partisan process. Do you think Chrissy Blasey did this and said this for partisan reasons?

KANE: Trump does unusual things to people, but I don't believe -- I can't get in her mind.

BERMAN: So -- and she is the one making the accusation. Again, we've heard the charges of political process one way or the other, but unless she is making the charge for political reasons, that's at the nut of all this, correct?

KANE: What? No. I -- she's -- I feel bad for her.

CAMEROTA: Do you think she's being forced into this?

KANE: No, she was not forced into it.

BERMAN: OK.

KANE: She reported something, and the Democrats fumbled and bumbled. She could have kept quiet. She could have been protected in this, and the whole series of events is an absolute circus.

BERMAN: You know, there was a lot made -- there's been a lot made about drinking, high school drinking and college drinking. Did you drink with Brett Kavanaugh in high school?

KANE: Yes. Sure.

BERMAN: He talked about throwing up. He said he had a weak stomach. Is that your memory?

KANE: Yes, I was the same way. We had the same restricter plate.

BERMAN: How many beers was that restricter plate?

KANE: It depends. It depends on how fast you're drinking. It depends on where you are, what you're doing. I'm not going to go there.

BERMAN: But did you see Brett Kavanaugh drink to excess in high school?

KANE: We drank a high volume, but I never saw him stumbling drunk. I never knew him to forget anything. He was a man of higher standards than we had, most of us. And no, he was always under control.

BERMAN: Have you had a chance to talk to him over the last few weeks?

KANE: Yes, I saw him last night.

BERMAN: How's he doing?

KANE: He's doing great. I mean, the guy -- I was hoping he would relax, but the -- he is the embodiment of resolve, and we're going to get there.

BERMAN: Do you think he changed minds?

KANE: Hell yes.

BERMAN: How so?

KANE: He -- like I said, he dispelled all the notions. He squashed every -- every charge, lock, stock and barrel. And proved to the American people that he is about justice. He's about the integrity of the court, and he wants to bypass all this stuff. I mean, we're talking about his comments as a partisan ploy. He walked in there as a jurist.

BERMAN: What would -- if there were an additional FBI background check, what would that FBI background check turn up?

KANE: It would turn up -- you know what it would do, it would serve no purpose. You know, I'm not a lawyer. I don't handicap these things for a living. But apparently, FBI investigations give you a list of facts.

There have been numerous questioning and investigations of circumstance already. I think those -- all the questions that they could potentially have have been answered. All they're going to do is add layers of nonsense.

You know, you want to go and get Mark Judge's work schedule from Safeway so you can back into an empty date on Brett's calendar, and somebody who doesn't -- doesn't understand when it happened can pick a day? Those -- you're just playing games. This needs to be a finite process.

BERMAN: All -- all it will do is turn up facts, you just said. Is Brett Kavanaugh afraid of those facts?

KANE: You're parsing my words. No, he's not afraid of anything.

BERMAN: OK. So you don't think that an FBI investigation would turn up anything damaging?

KANE: No. And I can tell you something else. I saw published today that somebody is floating the notion that there was something on July 1 at Tim Dodette's (ph) house. Tim Dodette (ph) lived in Rockville. It's 11 miles away from Columbia country club, and it wasn't a single family home. It was a town house.

BERMAN: Tom Kane, we do appreciate you being with us. We saw how difficult this was for Brett Kavanaugh.