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CUOMO PRIME TIME

Discussion of Kavanaugh Hearings and Nomination Battle; Actress Alyssa Milano Interviewed; Protests in the Current Political Climate. Aired 9-10p ET

Aired October 4, 2018 - 21:00   ET

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


CHRIS CUOMO, CNN HOST: Thank you, Anderson.

I am Chris Cuomo and welcome to PRIME TIME.

Another first in our new normal. Judge Brett Kavanaugh just put out an op-ed, an overtly play, to convince Americans he's not political. That he will be an independent, impartial justice if confirmed to that high court. This is something that we've never seen something done this way. Will it make the case to people on the eve of this big vote?

Meanwhile, Republicans went through the process as they call it. They checked the box. They're going to proceed with a vote tomorrow morning to end debate over the Kavanaugh nomination. Despite the price that you're hearing on your screen right now that this process was incomplete.

The FBI report was supposed to help settle the storm. But you should have never believed that was going to be the outcome. Instead, it ignited mass protests around Washington.

We now wait to hear what four critical senators will decide. Will they heed these calls? And those from a former Supreme Court justice urging them to vote yay? Nobody votes yay. They're going to vote yay or nay, yes or no.

John Paul Stevens, the former justice, says he would vote do not confirm. Why? We'll tell you.

Alyssa Milano agrees, a leading voice for the #metoo movement. She was at the Kavanaugh hearing last week, and is here with us tonight.

So, what do you say? It matters tonight, so let's get after it.

(MUSIC)

CUOMO: Now, Republicans are calling the FBI investigation thorough. So they now have cover. Democrats call it a sham.

But for many, concerns about Judge Kavanaugh go beyond the allegations. His temperament is going to be a huge issue. His independence as opposed to being a political operative is going to be big for senators -- at least some. And there's questions after his bombastic testimony a week ago about how he would be on the bench. Today, former Justice John Paul Stevens called the way he acted

disqualifying. Not his pedigree, his actions in that hearing.

Judge Kavanaugh is trying to do damage control now. He wrote this op- ed in "The Wall Street Journal". Part of it reads: I was very emotional last Thursday, more so than I've ever been. I may have been too emotional at times. I know that my tone was sharp and I said a few things I should not have said.

This is what he's talking about.

(BEGIN VIDEO CLIP)

JUDGE BRETT KAVANAUGH, SUPREME COURT NOMINEE: This confirmation process has become a national disgrace. You have replaced advice and consent with search and destroy. The behavior of the several of the Democratic members of this hearing a few weeks ago was an embarrassment, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left wing opposition groups.

(END VIDEO CLIP)

CUOMO: Now, we know this much. He didn't fly off the handle, those were prepared remarks. So whatever he said he meant to say.

The question now is, will the senators buy that he can put aside his politics and be impartial on the highest bench in the land?

"Cuomo's Court" is now in session. We have Berit Berger and Ken Cuccinelli.

Thanks to both of you.

This is a big night. Let's start with the obvious assessment that needs to be made, and then we'll get into the granular level, beyond that.

So, I'll start with you, Berit. Yes or no, and why on Kavanaugh.

BERIT BERGER, FORMER PROSECUTOR, U.S. ATTORNEY'S OFFICE, SOUTHERN DISTRICT OF NEW YORK: I mean, it's hard for me to say right now without having the benefit of seeing --

CUOMO: But you must.

BERGER: -- the FBI's report.

Look, at this point, if I was a senator, and I -- you know, the FBI had not been allowed to do a comprehensive investigation, I don't know that I would have the confidence to vote yes at this point, without seeing the FBI really pushing this to the limit, without interviewing all of the witnesses that might have relevant information to this. So I think without the benefit of a truly comprehensive investigation, I wouldn't be able to vote yes. CUOMO: I see your wheels spinning, Cuccinelli. I will admit now,

stipulated, I was making a similar argument a week ago about process. That I thought the process here of vetting the allegation was always going to be unsatisfying. I didn't want it to be, right? I didn't want this to be about controversy, I wanted it to be about conviction from the senators.

But I was arguing that the process was inadequate. But based on where we are right now, do you think you would have no problem confirming Kavanaugh?

KEN CUCCINELLI, CNN LEGAL & POLITICAL COMMENTATOR: Based on where we are right now, if I was voting tomorrow, my vote would be yes.

CUOMO: Because?

CUCCINELLI: You'll recall, Chris, that I was somebody who expressed concerns on particular legal areas with Judge Kavanaugh. But when you look back over his 12-year record as a judge in the second most important court in the country, there's every reason to think that with that sort of work, that he'll continue it on the Supreme Court.

CUOMO: What about temperament?

CUCCINELLI: And do an excellent job as a judge.

CUOMO: Temperament?

CUCCINELLI: I think his temperament is fine. If anyone who interacted with Justice Scalia, who was a very sharp character, I don't mean just how smart he was, I mean his tone.

CUOMO: Right.

CUCCINELLI: And in the courtroom, Judge Kavanaugh has never been like that in the courtroom.

CUOMO: OK.

CUCCINELLI: In terms of the temperament of the Supreme Court justice, he will have no problem on the bench.

CUOMO: All right.

CUCCINELLI: You played a clip from the hearing, and I can see how people react to that, but that's not what you get on the bench.

CUOMO: Well --

CUCCINELLI: That's not what he's delivered for 12 years.

CUOMO: Right. But he is who he is, he's never been in this circumstance before. He'll be in circumstances he's never been in before on the high court, the Supreme Court.

Berit, how do you see it, because temperament is in play here? His pedigree is hard to attack. What he did with his decisions is going to be a matter of your perspective. If you're looking for a red or blue lens, you're going to like it or not like it. But how he was in that hearing is going to loom large, not necessarily the allegations, because frankly I don't think we know enough at this point for someone to base a decision on their conviction about whether he did those things or not.

But temperament, what's your take?

BERGER: Temperament is incredibly important. And I think this op-ed just doesn't move the needle for me. I don't have a lot of patience for this.

This is not about whether he raised his voice in the hearing. It's not about whether he teared up. This was scripted, planned, you know, intentional words.

He wrote these words, he rehearsed these words and he chose them incredibly deliberately. This was not an accidental outburst. This was something that, you know, he did intentionally this for a reason.

I think that, you know, you can understand how the American public would be confused about who we're going to expect to see on the bench. We see one version in the Fox News interview, we see a very different version in the hearing and now we have an op-ed saying, actually, I'm a third version here. We can be forgiven for being confused about what we could actually expect to see.

CUOMO: John Paul Stevens, retired justice, Republican --

CUCCINELLI: But that's why those 12 years --

CUOMO: Ken, hold on a second. Let me get your take -- let me get your take on this, and then make whatever point you want.

CUCCINELLI: All right.

CUOMO: But I want you to key off this, because it builds on what Berit and then you take whatever you want.

John Paul Stevens, retired justice, was asked about this in Palm Beach. He's a little older now. He's going to be a little more candid. We lose filters as we get older. We get more honest because we have less time.

Here's what he said.

(BEGIN VIDEO CLIP)

JOH PAUL STEVENS, RETIRED U.S. SUPREME COURT JUSTICE: He's a fine federal judge and he should have been confirmed when he was nominated. But I think that his performance during the hearings caused me to change my mind.

(END VIDEO CLIP)

CUOMO: Ken, assess what the justice said.

CUCCINELLI: Well, back when Justice Stevens was -- yes, back when Justice Stevens was going through these processes, it didn't -- it wasn't anything like what Judge Kavanaugh underwent. And I don't think he has a perspective that fits the times. And his view, had he dealt with what Judge Kavanaugh dealt with, he may have fought back similarly.

And, look, I think we're holding against this person because he's a judge and he's up for a higher judicial position in the Supreme Court. That he doesn't get to use the tactic that so many of us use, that is, that the best defense is a good offense. And that's what he did in part of that statement.

CUOMO: But is he being assessed for a different position?

(CROSSTALK)

CUOMO: If I were judging him to be A.G. --

CUCCINELLI: Yes, as I said. I think that he was felt -- he felt cornered and he responded in the only way that he felt at that time would be effective.

CUOMO: Right, but here's the thing, Ken.

CUCCINELLI: This was not a normal job interview process.

CUOMO: I know, but that's the whole point, isn't it? I mean, you know that poise is empowerment in that position. You know that you're supposed to, in a job interview, act the part you're looking to get.

So, you have to assume seeing how he's supposedly a genius, that he would know that, and he goes into it, Berit, and says in his op-ed, you know, you got to remember, I was testifying with five people in mind and he names his family.

That's the side of yourself you decided to show on this big moment when you're trying to elevate yourself?

And he said something else I want your take on. He said, my past has been distorted. By whom?

Who told him to make up what he wrote in his yearbook? Nobody did that to him. He did that, he made the decision to go on with the friendly face at Fox. Another thing we've never seen in this process before, and paint a picture of perfection of himself.

So, who distorted it, Berit?

BERGER: That's an amazing question. This is not a normal job interview, because this is not a normal job. This is, you know, arguably one of the biggest jobs there is.

Listen, this is not -- you know, the questions that are being raised are not just about his emotion. Of course, he was coming at this as a father, as a son, you know, as a husband -- we all approach every single, you know, day of our life, we approach things from many different roles.

But this was not the time for him to be coming at it that way. And it's not just because he was emotional.

CUOMO: Right.

BERGER: People has, you know, pointed out that there were inconsistencies in his testimony with things like his calendars, with his yearbooks, with what other people had said. That's what we should be focusing on here. Not, you know, the tone of his voice or whether he teared up.

Quite frankly, that's irrelevant. It does make him human. You know, I'll give him that.

But we need to focus more on the substance of what he was actually saying, and the potential, you know, discrepancies in what he was testifying.

CUOMO: Look, and he's banking that the senators will really put all of it aside and look at him on the bench and look at his reputation and really try to null all this out. And say, we don't know enough, I'm going to go on what I do know and he'll get through. Frankly, I would be surprised if he's not confirmed.

But, Berit Berger, Ken Cuccinelli, you helped the audience tonight. You made smart arguments and thank you for that.

BERGER: Thanks.

CUOMO: All right. So, if Professor Christine Blasey Ford's claims can't be corroborated, which is what we're herring from those who have looks at the FBI assessment, that they found no basis of corroboration. Then, what does that mean? Well, the needle has to move toward Kavanaugh and confirmation.

But then you can have a secondary analysis of how could they have corroborated? Did they have the time? Did they have the direction that would enable them to do so?

Ford wasn't interviewed. Neither was Kavanaugh.

So, was this thorough or was it a sham? The facts, next.

(COMMERCIAL BREAK)

CUOMO: All right. The FBI has finished its report we are told. They interviewed nine people, we are told.

It is a sham, we're told, by Democrats. It is thorough, we're told by Republicans.

Well, here's what we know, five days, no subpoena power, no warrants, and yet unknown parameters to the who and how this was done. So this is all shrouded in mystery. The result of the dozens with direct or indirect knowledge of the various allegations, only nine were interviewed. Those are the only ones who made the cut.

Who? Well, Deborah Ramirez, you know her. She makes the allegation, the second woman to do so about Kavanaugh and sexual misconduct in her case at Yale.

Leland Keyser, now this has been a name that hasn't gotten enough attention. Mark Judge you know, but these people, Christine Ford alleges they were at the party where she was sexually assaulted.

You have heard people say they both deny her account. That's not true about Leland Keyser. She doesn't recollect certain things, but she's not the same type of push back that Mark Judge is. What's the details? We don't know.

Three of Kavanaugh's high school friends were interviewed, and three others who remain unidentified. So, this was a pretty small pool based on the options.

Not interviewed, OK, Brett Kavanaugh and Christine Blasey Ford. Why not? Well, they testified, so there's some cover in that decision. We heard from them.

But they didn't get ford's therapist's notes, or talk to Ford's husband. He said he learned of the allegations back in 2012 when that therapist in therapy for couples therapy.

Also, a number of names that Ramirez and Senate Democrats said they turned over to the FBI were not given any access.

Now, CNN's not the only one reporting on this. If you look at "The Washington Post", "The New York Times", "The New Yorker", all of the outlets, independently reported the same characterization of the FBI process. People with information about Kavanaugh's past behavior say they've struggled to connect with the FBI.

Please don't blame the FBI. They were set up to have their efforts be unsatisfying. Republicans went right into this saying, has to be limited in scope and duration, remember that? So, for them this is thorough.

(BEGIN VIDEO CLIP)

SEN. ORRIN HATCH (R), UTAH: I'm grateful to the FBI for their efforts in doing a thorough, very important investigation.

SEN. JOHN CORNYN (R), TEXAS: That's been exhaustively studied by the FBI as well as Judiciary Committee staff. There really isn't anything else.

(END VIDEO CLIP)

CUOMO: Exhaustively. There really isn't anything else. Well, we know that's not true. We also know that what they want most is for this to be over. Now, what's happening on the left? They say it's a sham, it's

incomplete and a cover-up.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: It looks to be a product of an incomplete investigation that was limited, perhaps by the White House.

SEN. KIRSTEN GILLIBRAND (D), NEW YORK: It was not intended to get to the bottom of this. It was not intended to find the truth. It was intended to be a cover, a cover for those who don't want to look at the truth.

(END VIDEO CLIP)

CUOMO: Here's the problem for the Democrats, you should have known that when you agreed to the deal, it was always going to come out this way.

So, where are we now? The same place we were before.

It's not about any of the people that you just saw. None is an undecided. Collins, Murkowski, Flake, maybe Manchin, maybe Heitkamp.

Heitkamp has said that she's going to vote no. What made her interesting? She's in a red state, North Dakota, the seat could be in play, could not be in play.

West Virginia, Joe Manchin, he's up in the polls in West Virginia. He's in a tough spot. But he's a man who's known to act on conscience. So, we'll see.

Now, if you vote for Kavanaugh, will a number of women be upset in your district? Probably. But looking at the demos in Maine and in Alaska, because these two Republicans are really who you have to look at. It's likely they're going to be okay.

And sadly, remember, we don't have enough women in office for women to easily go bad on people like Collins and Murkowski. Jeff Flake is leaving. Unless he wants to run in 2020, he has nothing to lose politically.

And again, I told you about Manchin. I told you about Heitkamp. Now, one other note about Joe, yes probably plays better at home for him in West Virginia, OK? If he were to vote no, it plays better for him in the party overall.

The biggest problem with all of this is that all of this other information I just gave you, who was interviewed, who's not interviewed, this should never have been kept from you. They shouldn't be telling us what's in the reports. You should be reading and deciding yourself.

They could redact. This isn't about protecting sources and methods. It's about protecting them, the senators from more scrutiny, and that is wrong. Now, my next guest says the president flat out lied to the American

people about allowing the FBI to follow every lead. You may recognize her. She is actress Alyssa Milano. She sat behind Kavanaugh and Ford at the hearing last week.

She thinks there is a great cover-up to protect the nominee. You will hear where she's coming from and why others are joining her cause, next.

(COMMERCIAL BREAK)

CUOMO: All right. The country is reacting. This is going to be a moment. Protests are erupting across the country, in the halls of the Capitol today.

One person who felt compelled to share her story is actress and activist Alyssa Milano. Now, she was president -- president, she wishes. Last Thursday, she was present --

ALYSSA MILANO, ACTRESS AND ACTIVIST: No.

CUOMO: -- when Judge Kavanaugh and Dr. Ford were testifying. She joins us now.

Thank you for doing so. I appreciate it.

MILANO: Thank you for the opportunity.

CUOMO: All right. So, how do you assess where we are in a moment right now? What is at stake and what are the sides as you see it?

MILANO: Well, I think everything is at stake right now. And I want to remind everybody that this was a candidate that was a bad choice, even before the allegations came out. Kavanaugh has proven from his writings and his rulings that he was anti-women's freedom of choice, anti-immigration, anti-LGBTQ community, anti-environment. The only thing he seems to be for is the Second Amendment, and that was proven by the amount of millions of dollars the NRA put behind him.

And also, I want to remind people, this is the guy that said numerous times he does not feel a sitting president should have to deal with the burden of being investigated. And --

CUOMO: True, true. True, true. But let's qualify it a little bit, because before we got to Christine Blasey Ford and Ramirez and, you could argue, Swetnick. I know that she wasn't put into the mix with the FBI. But before --

MILANO: For sure, I think -- I think Swetnick needed to be involved in that and I think it's a shame.

CUOMO: Right, but she wasn't. Either way, she wasn't. And Avenatti says he has a declaration from a corroborating witness. That's all going to have to wait for another day.

But before we got to these allegations, and his performance and behavior at the testimony --

MILANO: Yes.

CUOMO: -- he was doing OK, Alyssa, because largely it came down to politics. If you're from a certain political disposition, you're OK with his rulings. If you're from a different one, you don't.

And that's politics. That's elections. That's consequences.

MILANO: Yes.

CUOMO: So, it was really these allegations and how they were handled by him, that changed the metrics. So, now, the question that's in the air is no longer about executive privilege or even about settled law and whatever that means to him about Roe v. Wade. It's about temperament.

Are you okay with that --

MILANO: Yes.

CUOMO: -- as a basis of analysis?

MILANO: I am not okay with his temperament. And I sat in the room. So, I actually could feel his rage throughout his testimony.

Ands I felt like he was acting as though he was a political operative. He was very volatile. I've said numerous times, if a woman had acted like that during a line of questioning, she would have been considered unhinged.

Also, let's talk about this op-ed for a second. If a woman had written that op-ed apologizing for their behavior and saying, I'm so sorry, I was emotional, but I was there as a mother, as a daughter.

I mean, we would -- the double standard is unbelievable. We would be -- we would be laughing at this woman. We would be saying she's weak, or she doesn't have the character, and yet this --

CUOMO: Yes, look, the irony wasn't lost that Christine Ford was someone who is coming from a place of pain and was so poised.

MILANO: Yes.

CUOMO: And he was very pained when he should have been showing poise, because if you didn't do something, your calm is often a function of your strength in the moment.

MILANO: And they questioned him over and over again if he would agree to an FBI investigation, and he said no.

And the other thing that I want to point out is if these women, all three of them, Julie Swetnick as well, if they were all lying, why is he not, you know, maybe threatening with a claim of defamation? Which we all know is, you know, page one from the Trump rule book. Why is he not coming out and saying, you know what, I'm going to sue

these people for saying this because I'm being falsely accused? There's none of that going on right now. And women are --

CUOMO: Fair point. Of course, he may see the reward and satisfaction is getting the seat on the bench.

Let me ask you a couple more things while I have you. One is about politics.

MILANO: Please, please?

CUOMO: Macro, one is micro.

On the micro level, you are a fan of Bill Clinton. And he is somebody who the right is pointing to now as, hey, just because they're ugly allegations doesn't mean a whole man's life should be based on it, especially when you can't prove them.

Look at Bill Clinton. He was accused of a lot of ugly things, some of it he had to admit. And yet people were fine with him and saying, you have to judge him by more than him at his worst. Should Kavanaugh get the same benefit of the doubt?

MILANO: No, and I don't think Bill Clinton should have gotten that benefit of the doubt in hindsight.

CUOMO: Really?

MILANO: I think as a nation we were in a different time. I think that women were continually being silenced. And I think we gave him the benefit of the doubt and we probably should have investigated the allegations against him as well. And I do believe that.

This is not about partisan politics to me. This is about humanity, and we have to -- even though this process is so uncomfortable for everyone, we really have to look at it. Look at where we want to be, who we want to be as a nation, and really examine this in a nonpolitical way, but just in a human way.

I think it's vital that we get past this and get to the results, which is something that we're all looking forward for, which is, you know, a just world with equality for women. And I think that every time a woman comes forward and a man can just write an op-ed which in my view was actually an op-ed directed to Senator Flake in particular, because he's the one on the fence. And a woman is not given that same opportunity, we're saying to this man, what you say and your words mean more than what this woman is saying.

CUOMO: I hear the concern.

MILANO: And I would only --

CUOMO: I hear the concern.

MILANO: And I would only add -- CUOMO: Go ahead. Add your voice. Please finish your point.

MILANO: I would just only add that I know that there are senators that are on the fence right now, and I totally understand it. And I think the senators that are on the fence are on the fence because they do care, because they care tremendously. And my thought to them would be -- you have to show us that you care about us by your vote, not just by your uncertainty.

CUOMO: Alyssa Milano, I want to ask you to do me a favor. I got to go right now.

MILANO: Anything. OK.

CUOMO: But after this happens, the idea that being heard and respected is the new empty phrase like thoughts and prayers. And someone brought that up to me today.

MILANO: Oh.

CUOMO: And I'm worried about that, because of all the things we want to make sure we don't let slip away as progress with our culture. Let's see how this turns out. And then please, come back on the show and lets' figure out what the result means.

MILANO: Thank you.

CUOMO: Would you do that?

MILANO: Thank -- I would love to. Thank you so much for the opportunity.

CUOMO: Alyssa Milano, thank you very much. Have a good night.

MILANO: Thank you.

CUOMO: All right. So, Kavanaugh admits he was emotional last Thursday. More than he should be. I said things I shouldn't have said a few times, promises if confirmed, he will be an independent and impartial judge. Former Supreme Court justice John Paul Stevens isn't buying it.

Now, what does a former attorney general think?

Michael Mukasey is here, next.

(COMMERCIAL BREAK)

CUOMO: Emotions right now are raw. And we know why. The divides are deep, and many. The political wrangling is at a fevered pitch. And each side vote holds critical weight.

This all after the FBI issued its report on the claims against Brett Kavanaugh. Well, some of the claims corroborated through some of the people. So, let's step back from the heat and get to the substance with the

man who's been in the thick of this type of fight, former Attorney General Michael Mukasey.

Thanks. Always good to have you.

MICHAEL MUKASEY, FORMER ATTORNEY GENERAL: Good to be with you.

CUOMO: Always value added.

So, his pedigree, his disposition on the bench, his decisions. He was in decent shape on that because elections have consequences and, of course, the left doesn't like his reasoning on certain things, but they didn't win and -- OK.

Then you have the allegations of Ford and the others, then you have how he handled them. And it seems like that last bit, Mike, in an absence of certainty about the allegations looms large. What case can you make that after what people have seen in the hearings, and now read in this op-ed, he has the temperament to be a Supreme Court justice?

MUKASEY: You want me to discuss only temperament? Or you want me to talk about --

CUOMO: No, I'd like to start there just out of respect for the question.

MUKASEY: Let's start with temperament. He sat there and watched himself accused of the vilest crimes imaginable, in front of his wife and kids. Now, somebody said, well, you know, he wrote the statement out, and therefore, it was all premeditated.

He was working on that statement while she was testifying. This wasn't premeditated the way a prepared statement that you vet with people --

CUOMO: How do you know that's when he wrote it?

MUKASEY: He said -- he was asked by one of the senators, did you watch her testimony? He said, no, I was working on my statement.

CUOMO: Oh, so you interpret to mean that he was working on it while he -- but he said he wasn't watching. He says, I planned to watch, but I didn't.

MUKASEY: I didn't.

CUOMO: So, how you know he was affected by it?

MUKASEY: I was working on my statement.

CUOMO: Right, but he wasn't hearing what she was saying.

MUKASEY: He was affected by the accusations beforehand.

CUOMO: OK --

MUKASEY: And by the accusations from the others.

CUOMO: All right. I'm just saying he couldn't have been reacting in real time because he didn't hear (ph) the testimony. But continue.

MUKASEY: Correct.

So, the notion that somehow that is the same kind of prepared statement that you're making at the beginning of your testimony, like he did at the beginning of his testimony before the confirmation hearing began, those two are not analogous, number two.

Number two, the notion that somehow this investigation was fixed or limited is absurd. The parameters were set by the Senate. The Senate asked to have two, maybe three allegations pursued. They wanted obviously Dr. Ford's testimony and allegations. They wanted the --

CUOMO: Ramirez.

MUKASEY: The Ramirez allegations and initially I think the Swetnick allegations before she collapsed like a $3 suitcase on television.

OK. So, let's just -- let's take the first two. The criticism is, well, they didn't talk to her, and they didn't talk to him.

CUOMO: They testified.

MUKASEY: Correct.

CUOMO: Right. But there are a lot of people they left on the table.

My defense of the FBI is pretty simple. By definition, this was limited in time and scope.

MUKASEY: Yes, there were a lot of people left on the table.

CUOMO: There were. There were 29 names that were offered up. They talked to nine.

MUKASEY: Yes. Ninety-nine names that were offered to talk about those incidents? I don't think so.

CUOMO: Well, those and to go to his disposition.

MUKASEY: Yes, but they weren't asked to investigate his disposition.

CUOMO: Why not?

MUKASEY: They were asked to investigate those incidents.

CUOMO: Why not?

MUKASEY: That's what was at issue.

CUOMO: No. His manner is at issue, how he talked about his past is at issue, how distorted, to use his word.

MUKASEY: How he talked about his past was at issue in all of the background investigations that were conducted up until the time that he served. This wasn't the first time he was submitted to a background investigation.

CUOMO: No, what he said in high school was never looked at before. That yearbook was never looked at. They stopped at 18. They went deeper this time because it became relevant. Hey, Mike, he made the decision to tell a different story about what everything meant and what his habits were. Nobody forced him to do that.

MUKASEY: The Senate said they wanted three allegations that were serious investigated. Those are the allegations that were investigated.

You had -- the previous program had Senator Blumenthal on claiming there was a guy in Connecticut who was a witness who wasn't approached. That guy was the fellow that said he was told by someone who was a witness to the Ramirez incident. Not that he saw it himself, but that he was told by the fellow who a witness to the Ramirez incident.

CUOMO: Right.

MUKASEY: That person was contacted by the investigators, I assume by the FBI, I don't know, and said he had no idea what the guy was talking about. So, of course, they didn't talk to the secondary witness. They talked to the primary witness who didn't know about that.

CUOMO: Look, Mike, I hear you. Look, I'll give you the example. What I'm saying is, by definition, it was limited in time and scope. This was not about getting to the truth of the allegations. It was about showing they made some effort.

MUKASEY: No, it was about investigating it to the extent they thought it was necessary. They had more time to investigate if they wanted to.

CUOMO: I know.

MUKASEY: They felt that they had completed it.

CUOMO: Oh, no, no, no, the FBI had until Friday.

MUKASEY: Right.

CUOMO: And they had things that they're not telling us, the Senate won't tell us, the White House won't tell us, what the specific directions were.

MUKASEY: Because of an MOU that's been in effect since the Obama administration that says that report is held in confidence. And there's good reason for that.

CUOMO: Why? What's the good reason?

MUKASEY: You're not going to get people talking candidly if they think what they say is going to be spilled out in public.

CUOMO: But so many of those people are talking because they want their stories to come out. This is about sources and methods.

MUKASEY: That's not a good -- somebody who wants the story to come out and wants their 15 minutes of fame. That's not a good reason.

CUOMO: No, no, no, no, no. You're characterizing it that way. I'm saying, we had a right to know what was -- I know there's an agreement in place. But that's fungible. You can make it come and go as you want.

MUKASEY: No, you can't.

CUOMO: Of course, they can. The president could have waived it and he could have said, I think they should --

MUKASEY: And the Senate could have waived it.

CUOMO: Yes.

MUKASEY: And they didn't.

CUOMO: I know.

MUKASEY: And it all could have been done under that agreement, had the material, of course, have been handled properly from the get-go.

CUOMO: Here's what I'm saying. Here's what I'm saying. I love you in this show because of your experience and your perspective.

But I will tell you, when this is over, people are going to say, I didn't trust how it was done, I want to see what's in that report. I feel that there was a lot of deception going on here. And they shouldn't be left feeling that way, and it could have been easier to do by a different process.

It's not your fault.

MUKASEY: Thank you.

CUOMO: And you're not defending it for what it is. But I'm saying, that's what I'm worried about. We'll talk about it after they decide.

MUKASEY: It's done the same way it's always done. If all parties agree to disclose what was in the report, then the report will be disclosed.

CUOMO: They should have done that. That's what I'm saying. You're right about the rule. I'm saying they could have changed the rule, and they didn't.

But, Michael, thank you so much, as always. Michael Mukasey, always value added.

MUKASEY: Good to be with you.

CUOMO: All right. Today, an onslaught of protesters swarmed Capitol Hill, many of them survivors of sexual assault. There was another dramatic elevator confrontation, but this one turned out really differently than what you saw with Jeff Flake, next.

(COMMERCIAL BREAK)

CUOMO: A group of women confront a Republican senator as he gets into an elevator. I know you think you've heard this before. Think again.

I'm not talking about what happened with Jeff Flake. I'm talking about Senator Orrin Hatch of Utah. Things ended very differently.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Why aren't you brave enough to talk to us and exchange with us? Don't you waive your hand at me? I waive my hand at you.

SEN. ORRIN HATCH (R), UTAH: When you grow up, I'll be glad to --

UNIDENTIFIED FEMALE: When I grow up --

UNIDENTIFIED FEMALE: How dare you talk to women that way? How dare you?

(EXPLETIVE DELETED)

(END VIDEO CLIP)

CUOMO: Yes, he told them to grow up and he was shooing them and then waived good-bye.

Don Lemon is here.

D-Lemon, that is like a poster board moment for the beliefs of women who say men/white men/old white men don't get it. That was not a good day for progress.

DON LEMON, CNN HOST, "CNN TONIGHT": No, and when there are possible victims, we know that there are many women in this country who are actual victims of assault and violence on a daily basis. You don't want to cast yourself as a victim when you're really not a victim.

Those people, whether you like it or not, those women are expressing their constitutional right to protest, to get into the faces, if you will of their elected leaders. That's what the First Amendment is all about.

We've had this discussion. We're not talking about violence. We're not talking about putting your hands on someone. We're not talking about harassing someone. But they have every right to do that, and we seem to think now, and

we're going to talk about this in the show by the way. We've got Steve Cortes and Hilary Rosen, Max Boot. They're going to come on and talk about this particular issue.

CUOMO: Good lineup.

LEMON: But we seem to think that -- we forget about Vietnam and the protests then, and how people got into their elected officials faces. We forget about the civil rights movement when that happened. We forget about the women's movement when that happens.

We forget about the Stonewall and the gay movement when that happened. And we forget about the Iraq war, the most recent Iraq war when that happened and people got into the faces of their leaders.

That is part of a democracy, and that's what makes us America. So I say shame on those lawmakers for speaking to those women like that. They should encourage them to dialogue and maybe if they engage them in a conversation and listen, they wouldn't have to be --

CUOMO: Now, look, they'll say there's a way to do it, and that wasn't the right way. But you know what? When someone's a survivor of a violent attack, and they believe they're not respected --

LEMON: Chris, what's a right way to protest? People are upset because someone is doing -- Colin Kaepernick and other players are taking a knee.

CUOMO: I totally get it.

LEMON: Which is the most --

CUOMO: Benign way to do it.

LEMON: -- docile -- benign way, and docile way of protesting and most --

CUOMO: Agreed, agreed.

LEMON: -- respectful way of protesting.

And so, you don't like that? And now you don't like people who tell you how they feel? I mean, come on.

CUOMO: And, look, what he did was a metaphor of how those women and the people who support them feel they're treated at every level of society, enough. Grow up. Let me know when you figure out what matters and doesn't. Bye-bye.

LEMON: Little lady, get on out of here. Grow up, little lady. That's how that comes off.

And by the way --

CUOMO: Yes, sir? LEMON: -- someone who -- I'm sure a lot of people got in his face -- have gotten in his face during his time as mayor and during his time as senator, and that's Cory Booker, coming up, top of the show.

CUOMO: Good for you, Don.

LEMON: All right.

CUOMO: See you soon.

LEMON: See you.

CUOMO: All right. So, last week, Brett Kavanaugh was foaming at the mouth at Democrats, accusing them of plotting a political hit job against them. Tonight, he's coming to you through an op-ed in "The Washington Post", trying to say he's not political, he'll be impartial, he'll be calm, he always has been.

Do you buy it?

The closing argument of what to focus on, next.

(COMMERCIAL BREAK)

CUOMO: Judge Brett Kavanaugh just wrote an op-ed arguing to you that he is a good choice for the Supreme Court. It's in the "Wall Street Journal".

We have never seen such an overtly political play by a nominee, let alone one who's fighting back criticism that he is too political. But here we are steeped in irony and animosity.

But let's do this. Let's look at his own words and assess.

The top is a reminder of devotion to family and country and his pride at being selected. He says his past has been ridiculously distorted. Yes. But by whom is the question.

He chose to mislead about what he wrote in high school and college. He decided to make another political move and go to the most partisan media outlet, Fox, to sit across from a friendly face and say this.

(BEGIN VIDEO CLIP)

JUDGE BRETT KAVANAUGH, SUPREME COURT NOMINEE: When I was in high school, and I went to an all-boys Catholic high school, a Jesuit high school, where I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects and friendship -- friendship with my fellow classmates and friendships with girls from the local all-girls Catholic schools.

(END VIDEO CLIP)

CUOMO: He's the one who decided to paint the perfect picture of himself. No one did that to him. He then says he was forceful and passionate during the hearing. This is what he calls forceful and passionate.

(BEGIN VIDEO CLIP)

KAVANAUGH: This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

(END VIDEO CLIP)

CUOMO: And this.

(BEGIN VIDEO CLIP)

SEN. AMY KLOBUCHAR (D), MINNESOTA: You're saying there's never been a case where you drank so much you that didn't remember what happened the night before or part of what happened?

KAVANAUGH: You're asking about blackout -- I don't know. Have you?

KLOBUCHAR: Could you answer the question, Judge? Just -- so that's not happened? Is that your answer?

KAVANAUGH: Yes, and I'm curious if you have.

KLOBUCHAR: I have no drinking problem, Judge.

KAVANAUGH: Yes, nor do I.

(END VIDEO CLIP)

CUOMO: That's independent and impartial? That's apolitical?

Of course, Trump liked his performance. Kavanaugh was bombastic and beneath the dignity of the station, signature Trump traits. He says he was there as a son and husband and father, and that what you saw is him testifying with his family in mind.

So ask yourself, that's how he decided to represent himself in front of them? By being petulant and combative and rude? He admits he was, quote, too emotional at times and said a few things I should not have said.

Now, there's a problem with his contrition. He didn't just fly off the handle. Those were prepared remarks. I disagree with former A.G. Mukasey.

He said he didn't hear her testimony. So how was he responding to it while he drafted his remarks? They were thought out.

He also had set answers about the yearbook and how to sanitize his past. He was measured when he answered those questions. He wasn't just going off the top of his head. Now, again, I don't care about what he did in high school except for

the allegations from Ms. Ford. I don't care about his drinking. From what I've heard, sounds like what many if not most in college are prone to. Excess.

I was. I was at the same school in the same bars. And you know what? I fought a lot more than he did. But I own it.

I'm flawed. I was and I am. I did stupid things. My life was never just about books and church and charity. And neither was his.

All that time he was out fff-fooling around with his buddies. We know what that means, and it doesn't mean what he says it means.

So, separating out the serious allegations, the problem is not the behavior. It is the denial of the same. The most telling phrase I would suggest is, I have been known for my courtesy on and off the bench. I have not changed.

He has been known that way and also as a rabid righty, an attack dog and a hothead. And he has not changed based on that testimony.

Two points. When you're innocent, poise, calm in the face of criticism reflects your power of belief. Losing control suggests something incriminating.

Kavanaugh is who he was in that hearing for better or worse. Does he have the pedigree? Yes. The record of decisions? Yes, if you favor conservative rulings.

Did he do what his accusers say? We don't know. In fairness to Kavanaugh, there is no overwhelming proof outside the accusers. But that must be corroborated, and we haven't seen corroboration.

We also haven't seen what the FBI has, and we don't know that they looked at what they could have.

Then there is the pressing question. Does he have the temperament? He says he is independent and impartial.

Maya Angelou gave us the best advice in these matters. When someone shows you who they are, believe them the first time. How will the senators interpret that wisdom here? We will see.

That's for us tonight. Thank you for watching.

"CNN TONIGHT WITH DON LEMON" starts right now.