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ERIN BURNETT OUTFRONT

Four Key Kavanaugh Undecided On Kavanaugh Hours Before Vote; Key Red State Dem. Senator Voting "No" On Kavanaugh; Hatch Tells Female Protesters To "Grow Up", Waves Them Away; Aired 7-8 ET

Aired October 4, 2018 - 19:00   ET

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


[19:00:00] WOLF BLITZER, CNN ANCHOR: Thanks very much for watching. I'm Wolf Blitzer in "The Situation Room." "ERIN BURNETT OUT FRONT" starts right now.

KATE BOLDUAN, CNN ANCHOR: Out front next, just hours away from the first key vote on Brett Kavanaugh's nomination. Four senators still undecided. Is Judge Kavanaugh about to become Justice Kavanaugh?

And protesters confront Senator Orrin Hatch over Brett Kavanaugh. His response, grow up.

And a former Supreme Court Justice speaks out, why he says Kavanaugh should not be confirmed. The reporter who spoke to Justice John Paul Stevens is my guest. Let's go out front.

Good evening, everyone, I'm Kate Bolduan in for Erin Burnett. Out front tonight, the vote is set, just 16 hours away as the bitter battle over Brett Kavanaugh is coming to a head. And here's what senators are combing through and have been all throughout the day. Forty-five pages of interview summaries, nine people interviewed, 1600 pages from the FBI tip line and what was in all of those pages? It literally depends on who you ask. I know, you've heard the story before.

It has become the definition of a tale of two reports. So, let's start with Republicans. What did they see?

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R), MAJORITY LEADER: What we know for sure is the FBI report did not corroborate any of the allegations against Judge Kavanaugh.

SEN. JOHN CORNYN (R), MAJORITY WHIP: The witnesses they have identified saying they were present at the event have all refuted their allegations, so I think that ought to settle it.

SEN. ORRIN HATCH (R), JUDICIARY COMMITTEE: After investigations from both the Committee and the FBI, we have found nothing, absolutely nothing, to corroborate accusations against him. And we need to confirm him right away.

(END VIDEO CLIP)

BOLDUAN: Republicans clearly focusing on what was in the report. As for the Democrats, their focus is on what was not in it.

(BEGIN VIDEO CLIP)

SEN. CORY BOOKER (D), JUDICIARY COMMITTEE: It's very frustrating that they didn't do a thorough investigation, that they didn't interview all the relevant witnesses.

SEN. CHUCK SCHUMER (D), MAJORITY LEADER: Our fears have been realized. This is not a thorough investigation.

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

(END VIDEO CLIP)

BOLDUAN: And while they each, of course, have a vote, 96 of them have had -- had already declared which way they were going, most of them even before any of the hearings, leaving all of the power in the hands of four senators, who have yet to declare their vote. Here's what they are saying tonight. Republican Senator Susan Collins, she called the report very thorough. Republican Lisa Murkowski is saying even less. Republican Jeff Flake says he's seen no additional corroborating evidence for the allegations against Kavanaugh, and Democrat Joe Manchin, he says he's only halfway through the report. So he's not commenting. Protesters trying to sway those undecideds rallied outside the Supreme Court today.

(BEGIN VIDEO CLIP)

UNIDENTIFIED SPEAKERS (in unison): Hey, hey, ho, ho, Kavanaugh has got to go. Hey, hey, ho, ho, Kavanaugh has got to go.

(END VIDEO CLIP)

BOLDUAN: And as for the President, how's he feeling about his pick tonight? Listen to this.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I think he's doing very well. The judge is doing well, all right?

(END VIDEO CLIP)

BOLDUAN: Phil Mattingly is out front on Capitol Hill for us tonight. Phil, where do things stand? I guess we have to stay, at this moment.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes. Look, the choose your own adventure, we've seen for the vast majority of the senators has certainly kind of laid out in full. But as you noted it's about four senators right now and here's what I've been told just over the course of the last couple of minutes. The votes aren't locked in yet. That's from a GOP aide that I've been in touch with throughout the course of the day.

In fact, Senator Susan Collins just a short while ago left the classified briefing room where she's been reviewing the report multiple times. She would not comment on where she stood but she did say she had completed reviewing the report. And I think this is important to note, Kate, as everybody's trying to kind of read the tea leaves about comments or body language or hearing from senators what questions were asked during the briefings by those undecided senators

The key point is this. Those senators have been doing their work throughout the day, multiple times they've gone to the room to review the report. They've received staff briefings. They've reviewed the transcripts on their own. And they are not yet ready to say where they are.

Here's what we know going forward. Obviously, as you noted, Heidi Heitkamp and other undecided Democrat going into this day is officially a no, put out a very strong statement as to why. Senator Joe Manchin, a lot of people thought maybe all of these senators would vote together. Senator Manchin still undecided, told us earlier today, Heidi has her vote, I have my vote.

They're making very clear. They're not a monolithic group right now. They're each coming to their own conclusion here. The question on that, Kate, is going to be when. Obviously, I can tell you Republican leaders feel optimistic right now, feel like they're in a good place. But as you know better than anybody, until those votes are cast, until those senators walk on to the floor, it really is still a jump ball at this moment.

BOLDUAN: Yes. Don't count them yet. Great to see you, Phil. Thank you so much. Long night, early morning ahead for you.

[19:05:02] Out front with me now, John Avlon, CNN Senior Political Analyst, Gloria Borger is here, CNN Chief Political Analyst, and Phil Mudd, former FBI Senior Intelligence Advisor. Gloria, I know you can't count the votes until they've been cast. But what is your gut telling you tonight? Is Kavanaugh all but confirmed?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: I'm with Mattingly. Look, I mean, we know that Jeff Flake, you listed the senators, we know that Jeff Flake wants to get to yes. He voted for Kavanaugh in the Committee. And I think Murkowski is a real question mark here. And we just -- we just don't know.

Susan Collins went back to read tonight. She told Lauren Fox that she read many of the tip line transcripts, which is very interesting to me. I mean, you know, that is extensive. People calling in over the trans and saying, look, I really want to talk to you about Kavanaugh. Those are things that were not investigated by the FBI.

So, you know, you put it all together, and Kate, you covered Capitol Hill. You know it's hard to predict and it ain't over until it's over. I know why the Republicans are feeling good --

BOLDUAN: Yes. BORGER: -- and they should, but again, it's just kind of unpredictable. I mean, a week ago, we thought Kavanaugh was going to get confirmed easily. So, who knows.

BOLDUAN: Who knows. Wise words, Gloria. Who knows is exactly right.

BORGER: Right.

BOLDUAN: John, I want to show you and for everyone watching the scene in D.C. today when some protesters, they received word that Heidi Heitkamp, one of the undecideds announced that she was voting against Kavanaugh. Watch this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: We want the whole world to know that Senator Heidi Heitkamp is on the right side of history.

(END VIDEO CLIP)

BOLDUAN: But, again, as we're talking about, it is so unpredictable where the other senators are going to land. I'm sitting here wondering, honestly, what happened this week? Sum it up for me, please.

JOHN AVLON, CNN POLITICAL ANALYST: Well, thank you for that. In this jump ball moment, you know, look, the off ramp that the senators in the center desired, the American Bar Association offered --

BOLDUAN: Yes.

AVLON: -- an FBI investigation has been completed. The problem is, it seems like the Democrats would say the fix was in and the Trump administration and the White House, contrary to the President's assurances, constrained the investigation, so it's not complete. It's still the voters in the center who have the power. It will be, I think, a bit surreal, bit of kabuki if all the senators ultimately end up retreating to their partisan corners.

There are a lot of smart money and, you know, cynicism passes for wisdom in Washington for a reason, that that will happen. But Murkowski and Collins seem to be doing their due diligence on their own, not farming it out to staff and they deserve a degree of credit for that. But this, the tribalism that's been merged in here is not going to disappear. It's bad blood that started with Merrick Garland and this wound is not going to heal quickly for the Supreme Court of the United States or the Senate.

BOLDUAN: Phil, in terms of what they're looking at, 45 pages of interview summaries, 1600 pages from the FBI tip line, nine additional people interviewed, Mark Judge, which was one of the people everybody wanted to hear from, he was interviewed for three hours, senators say. Does that, to you, sound like a comprehensive investigation?

PHIL MUDD, FORMER FBI SENIOR INTELLIGENCE ADVISER: No. But that's not what they are asked to do. I mean, you asked for meat loaf and you want to know why you don't get a t-bone. Look, this is not an investigation conducted for criminal purposes. There is a client. The client is the Senate and the White House.

That client in the executive branch goes to, in essence, a contractor, that's the FBI, and says, there's some specific slivers of this guy's life I want you to look at. And so senators, including Democrats, who I presume signed off on the guidance that went to the FBI, want to know, why didn't you get a comprehensive background investigation.

Let me tell you something. My background investigation when I was 24 years old and had never done anything took nine months. These folks took three days to answer some specific questions from the Senate and now senators wanted to ask, why didn't we get a t-bone when they initially requested meatloaf. That's why they asked for a narrow investigation, they got it.

BOLDUAN: Yes.

AVLON: Yes. I think, obviously, Phil makes an important, authoritative point about the difference between a criminal investigation by the FBI and what they've been asked to do by the White House. That said, of course, Brett Kavanaugh has had six previous FBI investigations. The first one may have well taken nine months.

And I think that the problem Republican senators, and where many of them are going to come down here is, given these allegations, given the credibility of Dr. Ford, is there corroborating evidence. And if there is not corroborating evidence from these additional interviews, however none, you know, thorough they may have been, but if there's not additional corroboration, how can you vote against him on these grounds? That's a due process question that some senators are wrestling with tonight.

BOLDUAN: And I think -- and that goes to Gloria, what you mentioned about Susan Collins. She was seen going into the secure room three times is what I saw reporters talking about to read the report. Three times.

[19:10:09] I mean, what does that -- clearly, it tells me that she's, I don't know, struggling -- I don't want to apply that to her, but that's what it almost feels like.

BORGER: I think that's probably a very good word. I think that she was clearly concerned. I think the big question here has been, what was the scope of the investigation --

BOLDUAN: Yes.

BORGER: -- to begin with. And this is what the Democrats are talking about, but the President of the United States and the White House is the client. I mean, the White House and the Republican Senate have been sort of shifting responsibility for this.

BOLDUAN: To say the least. BORGER: Yes. So, you know, no, they were responsible for the scope. No, they were responsible for the scope. We have not seen a document that says this is what they were tasked to investigate. If they were tasked -- and I believe that they were tasked to investigate these allegations and not questions about drinking, for example, or his behavior when he was an adolescent. So the Democrats are disappointed, and the Republicans are saying, the FBI did its job. We just don't know exactly what that job was.

BOLDUAN: Exactly.

BORGER: We don't know.

BOLDUNA: Phil, this is one of the most confusing elements of this --

BORGER: Yes.

BOLDUAN: -- and it's -- I don't understand why people can't just be straight about this one thing. Who set the scope, and who set the parameters for the FBI? Because if you look at it today, this morning, the White House said that the Senate set the scope. Rod Shaw (ph) saying we deferred to the Senate. Is how they put it. Then Senate Republicans, they've been pointing the finger at the White House, and then this afternoon, here's what Mike Lee said.

(BEGIN VIDEO CLIP)

SEN. MIKE LEE (R), JUDICIARY COMMITTEE: We did not come up with a list of people who the FBI should interview. The FBI was requested to conduct an investigation into any and all credible, current accusations of sexual misconduct by Judge Kavanaugh. And the FBI made the decision from there as to who to interview.

(END VIDEO CLIP)

BOLDUAN: So, the FBI set its own parameters apparently, Phil. I don't know -- why isn't this -- this one thing, at least, a straightforward answer?

MUDD: I think because Republicans think they can get a vote through before they actually have to answer that question, because it will come out. Let's be clear about this. This is not a -- the information that the Senate requested is not classified. We're not talking about the background on Judge Kavanaugh's personal attributes, you know, 35 years ago. It's this is what we want you to investigate.

If you release that information, it's not a leak. A leak is releasing classified information. I think there's a timing issue. My guess is the Republicans are saying, we want to keep the -- even if it leaks in a couple days, we're going to get a vote tomorrow and before people realize that we asked for a nothing burger, we're going to get this guy through to the Senate and then you can debate the parameters of the investigation later but it's going to be too late.

BOLDUAN: And John, I mean, Republicans said today it would be up to the White House, which I'm sure is true. What the parameters -- if they would release said parameters to the public. Do you think there's any chance of the next 16 hours that will happen?

AVLON: They should. It would be in the interest of transparency and democracy and there's probably a snowball's chance in hell they actually do that because they do, as Phil said, just want to get this through. You can do all the document releasing you want after the fact, but they want to get this through. And that doesn't show good faith for the stakes of a lifetime appointment.

BOLDUAN: Yes. No, I mean, and with all these that we have said and all the confusion that there is, Americans are on edge. They have been wanting answers, especially after this one week delay and this investigation, everyone is searching for answers and it is very sad tonight to have to say it seems like there are very few still. Thanks, you guys.

Out front next, anger boiling over, protesters face off with Republican Senator Orrin Hatch as he's getting into an elevator. What do you hear this fire exchange.

Plus the Trump campaign sends an e-mail saying Kavanaugh cleared. Is The White House already taking a victory lap tonight?

And former Supreme Court Justice John Paul Stevens on why Brett Kavanaugh, in his view, should not be confirmed.

(BEGIN VIDEO CLIP)

JOHN PAUL STEVENS, FORMER SUPREME COURT JUSTICE: I think that his performance during the hearings caused me to change my mind.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[19:18:14] BOLDUAN: A major political gamble tonight, one of the most vulnerable Democrats in the Senate tonight taking a stand on how she'll vote on Brett Kavanaugh. Listen.

(BEGIN VIDEO CLIP)

SEN. HEIDI HEITKAMP (D), NORTH DAKOTA: It's a lifetime appointment. This isn't a political decision. If this were a political decision for me, I certainly would be deciding this the other way. I can't get up in the morning and look at the life experience that I've had and say yes to Judge Kavanaugh.

(END VIDEO CLIP)

BOLDUAN: Senator Heidi Heitkamp right there of North Dakota is trailing her Republican challenger now by 12 points according to the latest poll. And a third of voters said in this poll, a vote against Kavanaugh would mean they'd vote against her.

Out front now, National Affairs Correspondent for The Nation, Joan Walsh and former Adviser to Senator Mitch McConnell, Scott Jennings. Great to see you guys. Joan, these poll numbers around the Fox News poll, and Heidi Heitkamp being down even more than she had been, it's exactly why folks thought Heitkamp was trying to find a way to yes.

JOAN WALSH, NATIONAL AFFAIRS CORRESPONDENT, THE NATION: I think she probably was trying to find a way to yes. She's kept her vote pretty close to her vest. She's got an opponent who has made a lot out of this and says it doesn't even matter if Judge Kavanaugh did the things that he's accused of, he should be on the court anyway. So, it felt to me like there was a political reason for her to do this.

But I also was really struck by the pain in her voice tonight, Kate, as she made that remark and talked about waking up and knowing that her own life experience would not let her vote for Judge Kavanaugh, and I think this is another example. We saw Senator Murkowski earlier in the week give kind of an offhand answer to the question, have you had a me too event, yes, I have.

[19:20:01] I think more women, and particularly women of a certain age, women over 40 are not just because of Dr. Ford but other things going on are looking back at our life experiences and thinking of the things that we kind of dismissed as just, oh, you're just got to be one of the guys to be in journalism, to be in politics, just shrug this garbage off. These things are attempted assault and a lot of us have had to sort of recalculate our experiences.

BOLDUAN: But cynically and raw politics, with that, do you think she's lost a race?

WALSH: I don't know. I mean, maybe. I also saw -- I literally counted hundreds of people on Twitter tonight who at least said that they had given her money, $10, $25, she's not getting rich, but there's definitely going to be a positive outpouring. I don't know if it can be enough to save her.

BOLDUAN: So it's dangerous to base any public opinion on what you hear on Twitter --

WALSH: I know.

BOLDUAN: -- as we well know. Scott, if Brett Kavanaugh is such a shot in the arm for Republican Senate races, which folks see, why isn't it the same for Republicans in the House, do you think?

SCOTT JENNINGS, FORMER SPECIAL ASSISTANT TO PRES. G.W. BUSH: Well, it's the geography. You know, in Heitkamp case, you know, Heitkamp is a liberal Democrat. She tries to play like she's a moderate or conservative Democrat back home. And I thought what was notable about her clip is that she admitted, my constituents, you know, want me to vote for Kavanaugh. She said that would have been the politically smart choice but she's going to do just the opposite which tells me she's basically concluded that she's already lost the race and so she's going to vote what's in her heart and that's perfectly fine and her right to do as a senator. But I suspect she's going to lose her race.

I think the geography in the House is different. We've talked about this before. There are 25 House districts where Republicans represent them in Congress, but Hillary Clinton carried them in 2016. Those districts are much different in terms of their political dynamics than, say, a North Dakota, a Montana, a Missouri, an Indiana or West Virginia Senate race.

BOLDUAN: Yes. And I want to -- I want you both to weigh in on this. This video caught -- well, caught everybody's eye, caught my eye today too. Senator Orrin Hatch, getting into an elevator in Capitol Hill, met by protesters. We've seen this, this week and last week before, and let's just say he did not have the Jeff Flake reaction. Watch this.

(BEGIN VIDEO CLIP)

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

HATCH: Grow up (INAUDIBLE).

UNIDENTIFIED FEMALE: You grow up? When we grow up?

UNIDENTIFIED FEMALE: How dare you talk to women that way. How dare you. How dare you. You (INAUDIBLE).

(END VIDEO CLIP)

BOLDUAN: I mean, that hand wave, Joan, he's retiring so maybe he doesn't care, but I mean, is --

WALSH: He doesn't care but, you know, that's an ad that Democrats are going to run. The other thing today that I saw as a potential ad was like a portrait, it was like an old oil portrait of the five or six old white male senators who gathered together today to tell us why the FBI had exonerated Judge Kavanaugh and to cry bitter tears for the wrong that was done to Judge Kavanaugh and express virtually no, if any at all, sympathy for the experience of Dr. Ford. Women saw that. Women will see that in campaign ads. It's really a terrible look for them.

BOLDUAN: I don't know. Scott, you know Mitch McConnell. You know Mitch McConnell very well. I just don't see him reacting that way. I think he's more politically astute than to react that way.

JENNINGS: Yes. Well, this video was interesting. I mean, if you think fussing at Orrin Hatch and blocking his elevator is going to change Orrin Hatch's mind, then you don't know Orrin Hatch.

BOLDUAN: That's a good point as well.

JENNINGS: I saw that's a group that posted this video. I mean, you know, he is who he is. I mean, the group that posted this video is called vote pro-choice. And the vote pro-choice group, of course, you know, that tells you everything you need to know about what their aims are here and it's about abortion politics. You know, something Joan said that I think is interesting, I see this in my Twitter feed all the time, is this ageism. In a midterm election, older voters make up a larger proportion of the electorate than they do in Presidential elections, and I keep hearing people say, old white men, old white men. Well guess what? There's going to be a lot of older voters go to the polls and I think when I hear people like Joan and other liberal Democrats sort of attack people for being old, I wonder how that's sitting out there with older voters of any political stripe. The idea that because you're old, you're not supposed to have an opinion about national affairs, I don't think that's going to sit well.

WALSH: I don't really think that's at all what I was saying. I do think that --

JENNINGS: You did say that. That was exactly what you said. You said old white men.

WALSH: I did say that but I'm not saying that they have no place in our democracy. I'm saying that a party that is trying to represent the half --

JENNINGS: No, you just said their opinion is worthless.

WALSH: I didn't say their opinion was worthless. I said it's a terrible look for a party that wants to represent more than half of the country, the part of the country that isn't white and the part of the country that's young. A healthy political party, Scott, and you know this deep down in your heart too, would have more younger people in it. It would have more women.

There would be women in that picture with them arguing their own smart politics for their districts but they would be women, they would be representing themselves. You are stuck with a situation just like in that Judiciary Committee hearing last week where you have 11 old white men who are not capable of handling --

[19:25:16] JENNINGS: There you go again. Old white men. I tell you what, keep antagonizing the nation's older voters. It's not going to turn out well for the Democrats.

WALSH: You know, Democrats are also going to -- are looking at a surge of younger voters to the polls, and I think it's only fair that we have some representation of younger people. I'm 60 years old, Scott. I'm not saying push people out on to an ice floe. I just think that your party has a real problem with locking out women and people of color and young people out of leadership positions. And in your heart of hearts, you know that too, even if you think it's kind of cool that old people vote in the mid materials, which they do. We'll see.

BOLDUAN: One thing I will say --

JENNINGS: I think it's cool -- first of all, I think it's cool for anyone to vote. I think it's especially cool when people vote in any state, in any jurisdiction and I think everybody's vote count is the same, old and young. And I think everybody ought to vote because if they do and they listen to these arguments, I think they're going to come down on the side of the Republicans in this election.

BOLDUAN: I think the -- good plug. I also think it would be very cool if instead of this moment seeing more division as we saw play out in elevator with Orrin Hatch or we see in how Republicans and Democrats are talking about this report, I would love to see. It would also be very cool if for once instead of doing more to divide the country, the Senate could take the lead on trying to unite the country. But, again, apparently my name is Pollyanna tonight.

Great to see you both, thank you.

WALSH: Thank you.

BOLDUAN: Out front next, just in to CNN, a Republican senator now says he won't be voting on Saturday. Does that change the math for Kavanaugh? And if Kavanaugh is confirmed, does he need to recuse himself from cases involving Democrats or sexual assault?

(COMMERCIAL BREAK)

[19:30:16] KATE BOLDUAN, CNN HOST: We have breaking news coming in right now. One Republican senator says he will not be in Washington for the final Kavanaugh confirmation vote on Saturday.

We're talking about Republican Senator Steve Daines of Montana. He would vote yes on Kavanaugh. He now says that he's not going to be in Washington because he will be walking his daughter down the aisle. Yes, you heard me right. I don't have to remind you that every vote here is critical. Republicans cannot afford to lose more than one Republican senator if all Democrats vote no.

Let me get back over to the Hill, get over to Phil Mattingly for more on this.

So, Phil, this is clearly, potentially a very big deal.

PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes, and it's also your occasional reminder that senators are people too and Senator Daines has made clear that he will not be here on Saturday. I'm told, Kate, that he made this clear to Senate Republican leadership a couple of days ago, that this wasn't news to them and that they were planning for this possibility.

Here's what we need to know about the numbers right now. Tomorrow, the vote was just a short while ago set by Mitch McConnell, the Senate majority leader, to take place at 10:30. That will be the first vote. It is a procedural vote. That is the vote.

If they have the requisite number of votes there, then this process moves forward. The next vote would be the confirmation vote, the final confirmation vote, which would take place on Saturday.

What we know right now is including Steve Daines, Republicans have 48 members that are yes votes and there are four undecided between three Republicans and one Democrat. They need two of those Republicans or one Democrat to come over tomorrow and then they would have the requisite number of votes. They'd need to have at least 50. They want to get at least 51.

If they get more than 50 votes and Steve Daines leaves and isn't here on Saturday, it is very possible they hold the vote on Saturday anyway because they've got what they need to be able to move forward if they're at a 50-49 vote. If they do not, the majority leader has the option and ability to push the final vote a day or two in advance so Steve Daines could come back. So, they are preparing for this. They acknowledge it's a possibility.

But, Kate, I think one of the key things here is, A, tomorrow is the crucial vote and that is just underscored even more now, and B, in a story where there has been about 7 million twists and turns and nobody seems to know what's going to happen next, this is just another one that could prolong a process that I think has been deeply difficult for everybody involved for another couple of days.

BOLDUAN: Yes. Let's throw another twist in. But at least it's for something human like a wedding.

MATTINGLY: Right.

BOLDUAN: Great to see you. Thanks, Phil.

OUTFRONT now, Democrat Senator Ben Cardin of Maryland.

Senator, thank you for joining me.

SEN. BEN CARDIN (D), MARYLAND: Kate, it's good to be with you. Thanks.

BOLDUAN: Thank you. So, you've heard the news about Senator Daines. Do you know -- have you gotten any word of what this means for the final vote on Saturday?

CARDIN: Well, certainly does complicate it, one additional senator. Every Senate vote is critically important, as you pointed out, they're, at this point, four members who have not declared how they intend to vote, so I think that it's really out right now whether Senator McConnell will continue to vote on Monday -- on Saturday or not. But at this stage, we're all expecting a vote Saturday afternoon if the cloture vote passes tomorrow morning.

BOLDUAN: Yes, first and foremost, the most important will be what happens tomorrow.

Let's talk about the report, the FBI report that you were able to read today. What was your biggest takeaway?

CARDIN: Well, first, as you know, we're not allowed to talk about the specifics, but it's become very apparent on the news reports that it was a limited number of interviews, that they did not interview the principals after they interviewed the individuals involved. It really -- they didn't interview a lot of people who were suggested by those who came forward with these allegations. It was incomplete, and I think there are more questions that are -- remain than were answered as a result of the FBI report. That having been said, we know what Judge Kavanaugh said, and the way

he responded to Dr. Ford's comments show that he has -- doesn't have the judicial temperament, that he's extremely partisan, and these are issues that I think still remain and ones that have not been answered by Judge Kavanaugh.

BOLDUAN: One point that I've heard consistently from Republicans, though, is that in there, in the report, they see no corroborating evidence, that there's nothing in the report that we don't -- that they didn't already know. Is that what you saw, though? Even if you think it's complete, do you agree with that?

CARDIN: I'm not sure -- yes, I'm not sure that's accurate, and again, I can't comment as to specifics that are in the report. I just don't think that's a fair characterization. I learned some information from reading the report, but it's certainly incomplete. There's a lot more questions that I would like to have answered, and it goes to the process.

This investigation report should have been done before the hearing involving Dr. Ford.

[19:35:01] We also should have had, under oath, the witnesses that were there, that Dr. Ford claimed were there, in other words, Mr. Judge should have testified in open court -- in open session before the Judiciary Committee.

Not having that, it raises a lot of question marks as to whether this has been a fair investigation for Dr. Ford. Her comments were powerful, they were -- they were very serious charges, and the process should have given her the opportunity to have a more thorough investigation.

BOLDUAN: Now, Senator, we've all come very accustomed to Republicans say this and Democrats say this. And it's never the same thing. But on this, Senators Flake and Collins, they joined with Democrats in calling for a pause and another look and another investigation and they said today that in this report, they thought it was a thorough investigation.

Why do you think they are satisfied that it was thorough and you are not?

CARDIN: Well, there are people that identify by those who have brought forward these charges that were not interviewed by the FBI. These are the witnesses that are relevant to those who have brought these allegations. They should have been questioned. The time here is -- we got time. Republicans are --

BOLDUAN: I know, but you're all looking at the same pieces of paper and that's what's so confusing to everybody and sad is that you're looking at the same piece of paper and at least what's in the paper, you guys can't agree on what it is.

CARDIN: And that's why I regret that this wasn't done prior to the hearing and why some of these individuals did not testify in open session.

BOLDUAN: I venture to guess it wouldn't be any different if it happened before the hearing.

CARDIN: Well, what would happen if you had Mr. Judge before the committee, then we don't have to give our interpretation. You would be able to note the interpretation of what he said.

BOLDUAN: That's true.

CARDIN: That wasn't provided to the Judiciary Committee.

BOLDUAN: Senator, right now, do you think this game is over? Do you think that Judge Kavanaugh will be confirmed?

CARDIN: You know, each individual senator's going to have to make up his or her own mind. We know four have yet to make their decisions. I know they're going through a very difficult process, so, no, I'm not going to prejudge what my colleagues are going to do.

I had decided, and I made this clear, I spoke on the floor of the Senate today, I decided against Judge Kavanaugh before these allegations came out. I did that based upon his judicial record, decisions of the cases that he had. My concern as to whether he'll be an independent voice on the Supreme Court or just allow the president to do what he's doing, particularly his interference in the judiciary. I'm concerned about his opinions in regards to your rights on environment versus polluters, or women's health care issues and economic issues versus consumers, and the list goes on and on and on.

So there's, to me, this is about the next Supreme Court justice, lifetime appointment, affecting the next generation. I want to hear this debate, and I hope every senator will make up his or her own mind and, no, I'm not prejudging what's going to happen tomorrow or Saturday.

BOLDUAN: All right. We will wait to see exactly what happens when that cloture vote happens tomorrow. Senator, thank you.

CARDIN: Thank you.

BOLDUAN: OUTFRONT for us next, a former Supreme Court justice and lifelong Republican speaking out tonight about Brett Kavanaugh, saying he does not deserve to be confirmed. Why is he speaking out and why is he saying that? We'll tell you.

And Senator Susan Collins, one of the undecided votes in the Kavanaugh nomination, facing intense pressure from voters on both sides. What will she do? We have a special report.

(COMMERCIAL BREAK)

[19:42:33] BOLDUAN: Breaking news, retired Supreme Court Justice John Paul Stevens says Brett Kavanaugh does not belong on the Supreme Court. Here is what the 98-year-old justice and lifelong Republican said just a short time ago. Listen. (BEGIN VIDEO CLIP)

JOHN PAUL STEVENS, RETIRED SUPREME COURT JUSTICE: I thought he had definitely the qualifications for -- to sit on the Supreme Court and should be confirmed if he was ever selected. But I've changed my views for reasons that have no -- really no relationship to his intellectual ability or his record as a federal judge. 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)

BOLDUAN: OUTFRONT now, "Palm Beach Post" reporter Frank Cerabino. He is a person who interviewed Justice Stevens earlier today.

Thanks for coming in.

FRANK CERABINO, REPORTER, "PALM BEACH POST": It's my pleasure, Kate.

BOLDUAN: This is really pretty unheard of, a justice criticizing the nominee for the court in public. How did this come about?

CERABINO: Well, it was really an accidental happening. There was a group in South Florida that is dedicated to providing educational opportunities for retirees. It's called the institute for learning and retirement. And they have a woman there who is a good friend of Justice Stevens that, as a matter of fact, they played bridge together. This is a real south Florida story.

BOLDUAN: Yes.

CERABINO: And they played bridge together and she sort of said, how about speaking to this group, and he said, OK. And so this sort of went around all the protocols of, you know, dealing with the office and the U.S. Marshals Office and everything and it was done as a bridge group thing, and they booked the judge about, I don't know, several months ago. It was way before the Kavanaugh case.

And it just so happened that the -- that these hearings coincided with the event today, and so, that's -- it was sort of accidental. So, he didn't go out and say, I want to say something about the confirmation hearings of Judge Kavanaugh. He was just out there doing this talk and it just so happened to coincide with that. That's how this happened.

BOLDUAN: Did you get the sense that he knew how big of a statement he was making?

CERABINO: I think so.

[19:45:00] You know, I was planning to ask him about it, and he brought it up before I even asked him. It was -- he was -- we were talking about Citizens United, which he wrote an 86-page dissent. And it still bothers him, the majority opinion in that case, and in talking about it, he mentioned that an odd thing in Citizens United was that Judge Kavanaugh cited his dissent in a related case that related to political money coming into campaigns, and he thought that was good and he made some sort of a joke saying, like, well, that's because he's a good judge.

And then that kind of led to the quote you just played or the sound byte where he then talked about how he really thought judge Kavanaugh was eminently qualified to be on the court but then when he watched the hearing last Thursday, he changed his mind because of the temperament that Judge Kavanaugh displayed to the senators.

BOLDUAN: I do -- one moment, though. I mean, Stevens was on the bench during the Clarence Thomas hearings and you asked him about that parallel. Let me play that.

(BEGIN VIDEO CLIP)

STEVENS: There's nothing that Clarence did in the hearings that disqualified him from sitting in cases after he came on the court. I disagree with him on most of his important rulings, but as a person, I'm very fond of him. He's a very, very decent likable person, and you cannot help but like Clarence Thomas, which I don't think necessarily would be true of this particular nominee.

(END VIDEO CLIP)

BOLDUAN: I thought that was a wow moment. What'd you make of that?

CERABINO: That was very strong and a little bit unexpected, because he put Judge Kavanaugh in a level where he thought that through his own testimony, he had put himself in a box with the future of his deciding on contentious cases, and that while he thought -- he made the distinction that Clarence Thomas, in defending himself, didn't jeopardize his role in deciding cases going on the court, but that Judge Kavanaugh did. That his behavior was so sort of antagonistic to the Democrats that it would, sort of, affect his ability to be on the court.

BOLDUAN: Well, Frank, thanks for coming in. I really appreciate it.

CERABINO: It was a pleasure. Thank you, Kate.

BOLDUAN: Thank you.

And OUTFRONT with me now, the Judicial Crisis Network's chief counsel and policy director, Carrie Severino, and also a former clerk of Justice Clarence Thomas who we were just discussing and former child abuse and sex crimes prosecutor, Wendy Murphy.

Carrie, Stevens is a lifelong Republican, yes, often joined the liberal bloc on the bench in his later years. But taking away liberal or conservative leanings kind of on this, what's your reaction to Justice Stevens speaking out against someone who could be a justice?

CARRIE SEVERINO, FORMER CLERK FOR JUSTICE CLARENCE THOMAS: All right, well, let's be clear. He was the leading liberal on the court. That doesn't change, you know, the merits of what he was saying but we should describe him accurately.

I was disappointed to see his comments. I think if you see -- I think there's a lot of parallels between Justice Thomas' speech, the high- tech lynching, very passionate defense of himself he gave in his hearings and Justice Kavanaugh's. When you have a man who is falsely accused defending his reputation and defending his family and his reputation, it's not surprising.

Judge Kavanaugh actually had an op-ed in the "Wall Street Journal" today saying, look, I was very passionate, I probably should have been less, you know, maybe less so, but I have a commitment to being non- partial.

And remember, his first hearings, he was actually filibustered by the Democrats. This was a very contentious time when he was up for the D.C. Circuit. He had to have a whole second round of hearings years later because of that and nonetheless, in his 12 years in the bench, he was really noted for being someone as, you know, Justice Stevens even noted with his citing of Stevens' dissent --

BOLDUAN: Yes.

SEVERINO: -- he was someone who was known as being incredibly even handed and fair across the board. That's why you had everyone from Obama Solicitor General Don Borelli to Yale law professor --

BOLDUAN: And Stevens agrees that he's qualified. He thinks he disqualified himself in how he acted in his hearing.

SEVERINO: I'm not talking about qualifications. I'm talking about someone who put a very bitter partisan rancor of his appellate court hearings behind him and was able to move on and be a very even handed judge. I think we'll see that happen again in this case.

BOLDUAN: Do you think he went too far in this hearing?

SEVERINO: I think he was passionate about being attacked but it didn't have to do with something that's going to disqualify him generally. I just have to respectfully disagree with Justice Stevens on that.

BOLDUAN: Wendy, you know, with the justices, it's a small club obviously. I mean, those who serve on the high court, they don't talk about each other in anything other than friendly terms when ever they do interviews.

[19:50:02] You know, what are his former colleagues supposed to do with this now?

WENDY MURPHY, FORMER CHILD ABUSE AND SEX CRIMES PROSECUTOR: Look, I think what Justice Stevens said today was important on a number of levels. And he wasn't just saying that he didn't like Judge Kavanaugh's demeanor. He was saying this is not even a likable guy. I thought that was stunning.

And what I liked most about what Justice Stevens said was that he was coming from the view of the critical importance of keeping the Supreme Court with integrity and in the eyes of the public, above the fray. I mean, that's how so many people feel in this country. Whatever you think of Judge Kavanaugh's rulings, his behavior was unacceptable on every level.

He wasn't just passionate. He was rude. He was disrespectful. He was sexist. He was incredibly inappropriate with Senator Klobuchar. There's just no way around that.

And for a justice of the Supreme Court, retired, to comment on that, I felt refreshed about it. I thought, wow, there's hope that people in this country actually think the nonpartisan demeanor of a Supreme Court judge matters. And it really, really does. I learned in law school about Marbury versus Madison, right, the case that says the judicial branch of government is a step above the others, because they are beyond political reproach. They are supposed to be better than the rancor we see in the other branches.

That's gone now. If Judge Kavanaugh gets on the court, the public disrespect will grow for the court. And that's sad.

BOLDUAN: Carrie, you mentioned -- you mentioned that Kavanaugh wrote an op-ed, it was just released in "The Wall Street Journal," they just posted it. I'm reading it for the first time with you, but let me read this all together.

He wrote: I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.

I find that fascinating, because what I have heard from you and from many people, everyone who supports Brett Kavanaugh, is that he has nothing to apologize for in what he said. And right here, he's saying he clearly thinks he does.

SEVERINO: Well, what he's saying his tone was sharp. But I agree, he had a sharp tone perhaps. But what you're describing is something oh, this was out of line, this is wildly inappropriate. That is not fair.

MURPHY: I'm not --

SEVERINO: I'm not talking about you, the other guest. But that's not a fair description of what happened.

I would have to say, I think if there's something that is a little unusual, it's that Justice Stevens would comment on these things.

We've seen Justice Ginsburg comment in a much more partisan way. Recall her interviews she gave before Trump --

(CROSSTALK)

BOLDUAN: She called President Trump a faker. And she apologized.

SEVERINO: She called him a faker. She said she wanted to leave the country. BOLDUAN: She apologized, right?

SEVERINO: But 'm just saying --

BOLDUAN: She acknowledged it. She apologized, right?

SEVERINO: Did it destroy the integrity of the court? No!

BOLDUAN: Does two wrongs make a right? Do we need to go there right now?

SEVERINO: No. I'm just saying everyone who is fine with that should not question this. And that was a much -- this is so much lower level than her comments.

BOLDUAN: Wait, wait, this is much lower level than what Ginsburg said?

SEVERINO: Oh, absolutely.

BOLDUAN: Let me just play it then. Let's just play some of what he said during the hearing.

(BEGIN VIDEO CLIP)

KAVANAUGH: The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. 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. What goes around comes around.

(END VIDEO CLIP)

BOLDUAN: I would assume those are some of the comments he might -- maybe should not have said.

Wendy, you get the last word.

MURPHY: Yes, among other things. Look, this is a guy who's made clear that he is partisan. He shouldn't have done this. The fact that this is now going to be a partisan vote is a problem for this country.

That's why the one thing I hope happens is that either Senator Collins or Murkowski puts principle above party. This country needs to feel hope that this is not about left-right. It is about the integrity of the court.

BOLDUAN: Thank you both for being here. Fascinating. I appreciate it.

OUTFRONT next, Senator Susan Collins, as we were just talking about, a keynote in the Kavanaugh nomination. Tonight, she's still undecided and undeclared in facing enormous pressure, well, in Washington clearly, and definitely in her home state.

[19:55:01] How will she ultimately vote?

(COMMERCIAL BREAK)

BOLDUAN: Breaking news: Republican Senator Steve Daines of Montana has announced that he will Saturday's final confirmation vote for Brett Kavanaugh, which could have a big impact on the path forward.

Republicans cannot afford to lose more than one Republican senator if all Democrats vote no, and one of the biggest question marks tonight for the Republicans, Senator Susan Collins of Maine.

Polo Sandoval is OUTFRONT.

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: Vote no on this confirmation. Do not turn a blind eye.

POLO SANDOVAL, CNN CORRESPONDENT (voice-over): From the halls of Congress, to the streets of Portland, Maine, Senator Susan Collins is getting an earful.

The senior Republican senator from Maine, still undecided, could be the key vote that decide if Brett Kavanaugh is confirmed to the Supreme Court.

UNIDENTIFIED MALE: Good afternoon. Senator Collins' office.

SANDOVAL: That's why the phones in her home state office keep ringing as constituents and other concerned citizens are calling in, and stopping by. A final attempt at making their voices heard ahead of Saturday's vote.

Most of the people we encountered today seem to oppose Kavanaugh's appointment.

UNIDENTIFIED FEMALE: My main concern is his honesty and temperament.

SANDOVAL: Joanna Brinker (ph) is one of them.

UNIDENTIFIED FEMALE: I know she's in a position of influence right now and I just want to make sure she's hearing from us.

SANDOVAL: Voting yes on Kavanaugh may be welcomed by Collins' fellow Republicans, but could cost her bipartisan support at home.

(on camera): It seems like there's some serious political consequences voting yes.

UNIDENTIFIED FEMALE: Seriously. If she votes yes, she's never going to have my vote again.

(CHANTING) SANDOVAL: Brinker isn't alone. Voter after voter told us they had supported Collins in the past but may reconsider come 2020 if the senator runs for reelection.

UNIDENTIFIED FEMALE: Susan Collins actually ran on being a pro choice Republican. And if she votes for Kavanaugh, I think she's going to have a major problem in Maine. Major, major problem.

SANDOVAL: It's not just voters hoping to sway the senator. The fight over the controversial Supreme Court nominee has spilled onto the airwaves.

AD ANNOUNCER: A model of integrity, humility and --

SANDOVAL: Advocacy groups in Maine have poured more than $2 million into efforts to persuade Collins.

UNIDENTIFIED FEMALE: This sounds like a serious allegation and I think it should be fully vetted.

SANDOVAL: The protests, likely to continue leading up to the vote. What's yet to be seen if any of this will have an effect on Collins' decision.

(END VIDEOTAPE)

SANDOVAL: Now, Kavanaugh does have some support among constituents here. Senator Collins' staff telling me they have received visitors and phone calls from constituents urging the senator to vote yes this weekend, Kate. Two very different sides here, very different opinions here.

They do have something in common, though. They understand that the political stakes are high not just for Kavanaugh but their senator, too.

BOLDUAN: Absolutely. Polo, thank you so much.

So much weighing on Susan Collins tonight. Very clearly. Just look at that piece.

Thanks so much for joining us.

"AC360" starts right now.