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Key Democrat Senator Manchin Still Undecided on Kavanaugh; Retired Justice Stevens: Kavanaugh Shouldn't Be Confirmed; Key Senate Vote on Bretty Kavanaugh's Supreme Court Nomination; Kavanaugh Writes Final Appeal Ahead of Confirmation Vote; Unemployment Rate Hits 49- year low. Aired 9-9:30a ET

Aired October 5, 2018 - 09:00   ET


[09:00:11] JIM SCIUTTO, CNN ANCHOR: A very good Friday morning to you. And there is news, trust us, this Friday morning. I'm Jim Sciutto.

POPPY HARLOW, CNN ANCHOR: I'm Poppy Harlow. We're in Washington for you and we have you covered this morning. A big news day. A critical day. The crucial Senate vote is now just 90 minutes away. A vote that will decide if Supreme Court nominee Brett Kavanaugh will fill that critical swing seat on the high court.

What we know this morning, Republican Senate leadership does not yet know if they have the votes. Just listen to Senator Chuck Grassley, chairman of the Judiciary Committee.


SEN. CHUCK GRASSLEY (R), CHAIRMAN. JUDICIARY COMMITTEE: Most of the time, like maybe 99 percent of the time, we know how a vote is going to go before it goes. This is one vote that we probably won't know until the votes are actually cast.


SCIUTTO: The Senate convenes in less than 30 minutes with the eyes of the political world on four key swing votes -- Senators Susan Collins, Lisa Murkowski, Jeff Flake, the Republicans, Joe Manchin, red state Democrat. They will be making a decision that could impact your life, our lives for decades, and shift the balance of the court towards conservatives.

Let's be clear. At this point, there are lots of variables going into this vote including one Republican senator who's out of town tomorrow which is also affecting the math here.

HARLOW: Right. And wait until you hear why he is out of town and what this all means.

And for the nominee himself, Brett Kavanaugh is making a rare move, writing his own closing argument in an opinion piece in the "Wall Street Journal" this morning saying he may have, quote, "been too emotional" in last week's testimony. Joining us now from Capitol Hill, Sunlen Serfaty, our congressional


It is so telling that Grassley said to you, we just don't know. This is going to come down to whatever happens on the floor.

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: That's right. And that really speaks to the reality of this moment, Poppy, that this is a very anxious time. A lot of uncertainty, so much is indeed fluid. And at this hour, at this very moment, Republican leaders do not know if they have the votes because they do not know where those four key undecided senators are going to land. And those are Susan Collins, whose office we are outside of this morning. Red state Democrat Joe Manchin, Republicans Lisa Murkowski and Jeff Flake.

Big question marks with all of their names, exactly who will they come down. Will they vote for or against Brett Kavanaugh? And certainly Republican leaders in the past 24 hours have been trying to project confidence, but at the end of the day, they still do not know where they are going to vote. And certainly it seems that at least a few of these senators are still actively deliberating this very important decision at this late hour.


SERFATY: We know that Susan Collins was shuffling in and out of that secure location up here on the Hill at least three times yesterday late into the hour reading that FBI report. We also know that Senator Manchin intends to check out that report again this morning, clearly adding into their very important, very late in the game decision this morning.


SCIUTTO: Well, remember where we were last Friday. It looked like it was in the bag.


SCIUTTO: And of course, you know, things changed.

HARLOW: Yes. The elevator.

SCIUTTO: Mm-hmm.

HARLOW: Jeff Flake and everything that ensues.

Sunlen, thanks. Keep a close eye on it for us.

Sources do tell CNN this morning the idea for that op-ed came from Kavanaugh himself. Our Supreme Court reporter Ariane de Vogue is here with her reporting on that.

Some are looking at that this morning, Ariane, and saying, was that a desperate move? Was that a move where the Kavanaugh camp thought, wow, we need a Hail Mary here, we don't know if we have these votes? ARIANE DE VOGUE, CNN SUPREME COURT CORRESPONDENT: Well, one thing it

is it's all about his judicial temperament, right?

HARLOW: Right.

DE VOGUE: And he knows that that's the problem. He's been calling his own shots and I'm told he called the shot here. I'm sure with help from the White House.


DE VOGUE: So keep in mind, we've seen two Brett Kavanaughs, right? The first hearing, those 31 hours, he talked about his 300 opinions, his constitutional take on everything. Remember then he said, oh, I'm going to stay zip codes away from political issues. Then we have these allegations and we saw an entirely new Brett Kavanaugh, right?

He comes out fiery, he invokes the Clintons, he glares at those Democratic senators, and then he writes this "Wall Street Journal" op- ed last night and he says, look, you can count on me. I was fiery, I was under attack, but my judicial temperament will be fine. And he's definitely trying to shore up some people who are worried just about that.


SCIUTTO: It's a key question. Clearly he's concerned about it.

Ariane de Vogue, thanks very much.

HARLOW: Yes. Thank you.

SCIUTTO: Well, we are joined now by Republican Senator John Kennedy. He sits on the Judiciary Committee. Of course will be voting along with his colleagues in just 90 minutes from now.

Senator, thanks very much for taking the time this morning.

SEN. JOHN KENNEDY (R), LOUISIANA: You bet. Thanks to you both.

SCIUTTO: So first question, the obvious one, Senator Grassley, your colleague, he's a pretty good whip. He's good at lining up the votes.


SCIUTTO: But he admitted this morning he just doesn't know. You -- I'm sure you've been talking to your colleagues. Do you believe Republicans have the votes to confirm Brett Kavanaugh?

KENNEDY: Don't know. My hunch is that Judge Kavanaugh will be confirmed. I could be wrong.

[09:05:00] Normally on an issue this important, unless you know a senator very, very well on a personal basis, you don't ask him how they're going to vote. I would -- I would never tell my colleague on something like this how to vote. I would -- I would suggest to them respectfully to follow their heart. But take your brain with you and go look at the evidence or lack thereof.

SCIUTTO: Do you have a feeling that some of your colleagues are still considering? Because I remember last Friday as we were just saying, it seemed like it was done. And then you had that elevator moment, Senator Flake and then reconsideration.


SCIUTTO: Is it your sense that some of your colleagues are truly undecided even 90 minutes to go?

KENNEDY: I think most of my colleagues, if not all, have decided. They may not be willing yet to articulate it and they may want to do some last-minute work. But at this juncture or after the hearings, plural, and all the evidence and seven FBI reports, I think most people, if not all -- I think everybody has made up their mind.

SCIUTTO: Well, you heard us just talking about this relatively unusual step of a Supreme Court nominee 24 hours of a vote writing this "Wall Street Journal" op-ed and sort of laying himself out there saying, listen, you know, I was more emotional than I'd like to be. I might have sounded more partisan than I'd like to be.

First of all, do you believe that he was too emotional, too partisan in that testimony? And do you accept this -- I suppose you could call it, do you accept his apology?

KENNEDY: Well, the demeanor issue is important. We all know federal judges. Some of whom it goes to their head. They can strut sitting down. I mean, you don't want that kind of judge on the bench. In terms of Judge Kavanaugh, I think the best barometer is his law clerks. You -- a federal judge spends more time with his law clerks than his spouse. And to a person, they all say that he is very even tempered and fair managed.

But number three, you have to consider the context. Judge Kavanaugh was called a rich, lying, drunk, sexual predator, and he took offense to it and he did get mad, and I'm not sure I wouldn't have gotten mad under the same circumstances. In fact, I'm very sure I would have.

HARLOW: So, Senator, we have one of his law clerks joining us in just a little bit. So a fair point there. And we'll hear what she has to say.

Let me ask you, if you be first, on the FBI report, this latest one that you and all of the senators have now read or are continuing to read before the vote. You said, and I quote you -- to reporters yesterday, "I wish you could read the report." And by the way, so do we. "There are things in here that make me really angry." What did you see that made you angry and why?

KENNEDY: Well, I can't tell you that because I'd be breaking the law and I'm not going to do that. I think --

HARLOW: Can you give us a sense of the general topic area? KENNEDY: I think -- I will. I think -- I think you could see some

politics involved in this. Look, the FBI interviewed nine witnesses. One wouldn't talk. They were the five witnesses suggested by Dr. Ford and by Miss Ramirez. There wasn't any corroboration. I know Dr. Ford's attorneys wanted her to be interviewed, but the FBI reached out to her attorneys and said, please submit to me any new evidence or to us any new evidence and they didn't.

But I think we're making a big mistake not releasing this report. It's not my call. It's the White House and the Justice Department, Senator Feinstein, Senator Grassley. The American people need to make this decision on their own and they are entitled to draw their own conclusions. And I would trust them and I think we're making a big mistake not releasing it.

HARLOW: So given that point that you think all the American people should see this and be able to read it fully to make up their mind.

KENNEDY: Yes. Yes.

HARLOW: If Judge Kavanaugh is confirmed, Senator, to the high court or if he is not but the American people aren't privy to all the information in this latest FBI probe, what do you think this, A, will do and has done to America as a whole, and will do to the court which is supposed to be an independent body which has never seen -- if this comes down to a party line vote, has never seen in modern history a Supreme Court nominee confirmed along party lines?

KENNEDY: Well, the American people see the United States Supreme Court as an institution, as a political institution. It's not. It's not supposed to be. But what matters is how the American people see it. They see this -- they see the law as politics, practiced in a different way. And this process has contributed to that.

Now the confirmation process is a mess. We need to clean it up. We've got a choice here after this is over no matter what happens. We can ride the anger for political reasons so we can solve the problem. I hope we'll try to solve the problem. Part of the reason that the people see the court as political is Congress, not just the way we've acted in the last 90 days, but Congress keeps pointing the tough issues to the U.S. Supreme Court instead of deciding it themselves.

[09:10:07] SCIUTTO: Understood. No, it's advice that, listen, I hope the country follows it, frankly.

I want to ask, if I can, about the women involved here, principally of course Dr. Ford, but also the women who were inspired by her testimony. Do you believe that this process will discourage women who allege that they have been assaulted from coming forward, coming in public in this kind of context?

KENNEDY: I don't think we know yet but I hope not. The Me Too Movement in my opinion has helped this country immensely. I didn't know the extent of sexual harassment. I've talked to friends of mine who happen to be women. Their response to me is generally what planet did you just parachute in from? It is a problem. It needs to be dealt with. I think in dealing with it, it's important we treat both the accuser and the accused with respect and fair mindedness and most of all due process.

I think we tried to do that in this process. Some disagree. But I've said before this is no country for dirty (PH) old men. It's not. We need to fix that. But this is no country at all without due process.

SCIUTTO: Well, Senator, thank you very much for taking the time. We know you're just moments away from a critical vote, as are your colleagues there. We look forward to keeping up the conversation.

KENNEDY: Thanks, guys.

HARLOW: Thank you, Senator.

The stakes are high today. A critical vote for Brett Kavanaugh is just moments away. Literally moments away. A vote that will shape the future of the Supreme Court for years to come. We're on all the developments.

We are following --

SCIUTTO: And we are following some other breaking news this morning. To be clear, a new jobs report just out just moments ago puts unemployment in this country at a 49-year low. You've got to go back to 1969 to see numbers like this.

Let's bring in Christine Romans. She's the chief correspondent for CNN Business.

So actually the jobs numbers were a bit off the average, but the unemployment number did come down.

CHRISTINE ROMANS, CNN CHIEF BUSINESS CORRESPONDENT: Yes, because of Hurricane Florence. That's why some of the hiring wasn't as robust as we thought.

I want to show you what that chart looks like because 3.7 percent, it's really a remarkable number. This is what we call essentially full employment. You got to go back five decades to get a number like this.

The jobs added 134,000 net new jobs. Look, you had some upward revisions of the prior couple of months. It's still robust hiring. It was Hurricane Florence that dampened that just a little bit. So you would have had stronger numbers if it hadn't been for Hurricane Florence.

The labor market is so strong, you guys. I got to tell you, at some point you've got to find more workers. Those are going to have to be workers coming off the sidelines. It's going to have to be immigration. It's going to have to be people who are out of the workforce coming back because the economy is so robust here. You pretty are -- pretty much here are matched workers for open jobs.

Let me show you annual job growth. That's the jobs out of the last year. Let me show you annual job growth. We're showing here almost two million this year. This has been now several years of strong jobs growth, 10 years after the financial crisis, we have added, you know, 10 million, 14 million new jobs.

And where they've been adding right now, this is in information services this month. Very good there. Health care up 26,000. Manufacturing up 18,000. There have been 278,000 new manufacturing jobs created this year. You can talk to -- you can credit the president's trade policies on this one. Also some new jobs in mining as well.

So this is another strong report. It shows a strong economy and the headline here is the unemployment rate the lowest since any of us were alive.

HARLOW: OK. All right. Christine, thank you very, very much for that.

SCIUTTO: So we promised you news as the minute comes.

HARLOW: And we do have --

SCIUTTO: And we got some new news. This on the Kavanaugh vote. Joe Manchin, senator from West Virginia, a deeply red state, very heavily in favor of Donald Trump, saying that he remains undecided on this, and we're going to give you more details on that as they come.

HARLOW: And we know he was going to go down to SCIF to read the rest of this.

SCIUTTO: That's right.

HARLOW: This morning. So, you know, he may be there finishing this. But I mean, he could make or break this for the Republican Party.

SCIUTTO: Remember, because they need -- well, they don't need, but if they lose a Republican, they will need --

HARLOW: The vice president.

SCIUTTO: Well, it depends, if they lose a couple --

HARLOW: Right.

SCIUTTO: Couple of Republicans they may need one of those red state Democrats.

HARLOW: Right. All right. Much more on the breaking news next. Stay with us.


[09:15:00] JIM SCIUTTO, CO-HOST, NEWSROOM: Well, we promised you news this morning and it's coming in literally by --

POPPY HARLOW, CO-HOST, NEWSROOM: Yes -- SCIUTTO: By the minute here, we just heard that the key Democratic

swing vote Joe Manchin from West Virginia remains undecided on this. In just minutes, the Senate is going to be back in session a little over hour before the first critical vote on Kavanaugh and we're watching all of this very closely.

HARLOW: And it does come down to these four swing senators in this as you said. Joe Manchin, West Virginia, red state Democrat undecided. Let me read you what he told our Phil Mattingly just minutes ago. "I am still undecided and 'will probably be undecided until I walk into the door to vote at 10:30 a.m." That is not how Mitch McConnell --


HARLOW: Wants to see it go or Chuck Grassley, but that's the way this is going, let's discuss. Our legal analyst Shan Wu is with us, Nia- Malika Henderson; our senior political reporter joins us and Susan Page; Washington Bureau Chief for "USA Today".

So Nia, to you, look, they don't know and Grassley was so clear with that this morning. Manchin still reading it this morning, Murkowski, what are you feeling?

[09:20:00] NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: Yes, I don't know either, we don't know, we will know all once they start casting these votes. Very interesting that Manchin says I guess a bolt of lightning is going to strike him when he walks in and he will know what his vote will be then.

But until then, we don't know. He says he's weighing everything, he's got to be weighing the fact that he's in West Virginia --

HARLOW: Yes --

HENDERSON: A state that is heavily Republican, few Democrats there who --

HARLOW: Only two days from the mid-term election --

HENDERSON: Yes, he's not able to win there by being independent from his party, right? He didn't even endorse Obama the last time he ran in 2012. So we'll see what he does, at least, other folks, Murkowski got these competing pressures in Alaska as well, Collins; somebody who probably will face a pretty tough challenger if she votes.

But then you've got to figure it, you've got to know that these folks are Republicans, right? This is their party, this has been their party for a long time, and this has been the dream of the Republican Party, to have a Supreme Court that's conservative, that will rule a certain way on any number of issues.

Roe v. Wade, affirmative action, voting rights, redistricting all of those things. So you know, I'm sure if you're Collins, you're weighing what it would mean if she were to essentially walk away --

HARLOW: Yes -- HENDERSON: From her party at this moment --

HARLOW: Right --

SCIUTTO: You say Republicans have been laying the ground work for this for years, decades --

HARLOW: Yes --

SCIUTTO: Including grooming folks like Kavanaugh --

HARLOW: Yes --

SCIUTTO: For a seat like this. Susan Page, there is a skeptical camp out there who says that all of this last minute kind of hand-wringing and so on is a little overdone, that at the end of the day, things are going to turn Kavanaugh's way. Do you buy that?

SUSAN PAGE, WASHINGTON BUREAU CHIEF, USA TODAY: Well, I think Republicans always want to vote the Republican way, right? The easier thing to do if you're a politician is to vote with your party. So you really need a pretty powerful incentive to vote against your party. And if you have that as your landscape, I think that probably it does -- I think it does look like Judge Kavanaugh has those.

Not quite a guarantee yet, but I think once we heard Senator Collins and Senator Flake talk yesterday about being reassured by this --

SCIUTTO: Good point --

PAGE: Delay of a week --


PAGE: By the FBI report that that was a signal that he was going to be confirmed. And the only question really is, the big question was, will it be on a totally party line vote, something that we've never seen happen --

SCIUTTO: Right, well, essentially, at the end of the day, the FBI report, an extension in the fact of the background check could turn out to be political cover right for --

HARLOW: Sure --

SCIUTTO: Right provide political cover for Republicans on the fence.

HARLOW: But here is the thing, Shan Wu, it is -- you know, his "Wall Street Journal" opinion piece basically saying, I apologize --


HARLOW: For part of the way that I acted in that testimony. Addresses the issue outside of what senators think from the FBI probe and what they read in the SCIF, and that's what did he display in terms of his temperament and how partisan he may or may not be on Thursday.

And that's completely different. And you can see that weighing on these --


HARLOW: Undecided senators. And I just wonder when you read his editorial in the "Wall Street Journal" this morning, would his excuse, Shan, have held more water if he had not been reading from prepared remarks when he made the partisan --

PAGE: Right --

HARLOW: Comment about the Clintons for example or expressed that anger? Those were remarks he carefully wrote the day or days before, prepared. It wasn't heat of the moment.

SCIUTTO: That's right --

SHAN WU, FORMER FEDERAL PROSECUTOR & CNN LEGAL ANALYST: That's a good-leading question, Poppy.


HARLOW: Over to you, we're in cross-examination here.

WU: That's right. No, absolutely, I mean, it's very hard to argue that I was just carried away in the moment when you're reading from a script. And I think the reason he's addressing the partisan issue is he has to stay away from the sexual misconduct issue. That's a third rail for him.

He can't talk about that, there's nothing he can say about that, and of course rather ironic today, a Nobel Peace Prize was just awarded to --

HARLOW: Yes --

WU: Two activists against sexual violence. So that, necessarily, you just have to stay away from. He can only try to remind people, hey, remember the Judge Kavanaugh that you saw before this came up. I was the non-partisan guy, I want to remind you of that guy. That's what he's trying to do right now.

SCIUTTO: Or perhaps, forget the Kavanaugh from the Ken Starr investigation. Anyway --


HARLOW: They put that at the operative, Kavanaugh --

SCIUTTO: There is a political --

HARLOW: All right --

SCIUTTO: History there. HARLOW: Yes --

SCIUTTO: John Paul Stevens --

HARLOW: Yes --

SCIUTTO: Now retired Supreme Court Justice clearly, this issue of partisanship and those political jabs that Kavanaugh was throwing his testimony last week caught his attention. Have a listen to what he said about Kavanaugh overnight.


JOHN PAUL STEVENS, RETIRED SUPREME COURT JUSTICE: I think that his performance during the hearings caused me to change my mind. He has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities. And I think there's merit in that -- in that criticism.


SCIUTTO: Beyond the view of a retired justice, Susan Page, you have a lot of cases that are to come up before this court in the coming weeks and months that are political third rail issues very divisive, and this process is not going to be forgotten then, assuming Kavanaugh is on the court.

[09:25:00] PAGE: And that's going to be one of the -- assuming that Judge Kavanaugh is confirmed, that will be one of the lingering questioning as we move forward. If he votes in each case in a way that is consistent with say what conservative Republicans would want him to do, does that raise questions about whether he's really showing judicial independence --

SCIUTTO: Right --

PAGE: That will be a question that he'll have to answer. And let's not forget how extraordinary it is for a former Justice to speak out against the nominee --


PAGE: For the court. And if you're looking at this, former Justice nominated by a Republican president --


PAGE: This is -- this is really extraordinary. We overuse the word unprecedented --

HARLOW: But day four --

PAGE: But it's like --

SCIUTTO: But it could happen -- PAGE: Six times a day --

SCIUTTO: And this is the thing, that is a bipartisan concern about the reputation of the court as an impartial arbiter --

HARLOW: Could be for --

SCIUTTO: We heard it from John Kennedy just moments ago --

HARLOW: And he also said -- to Jim's point, we have to learn from this, and we have to do differently next time. Do you --

HENDERSON: I think everyone agrees --

WU: That's it --

HENDERSON: They have to --

HARLOW: Yes, wait --

HENDERSON: Do differently --

HARLOW: What can mean --

HENDERSON: What could be different --

HARLOW: Because, again, we've never seen -- I mean, think of RBG. She was confirmed 96 to 3 --

PAGE: Yes --

HARLOW: I think, you know, Scalia unanimously.

HENDERSON: And one of the things he seems to be getting at is this idea of whether or not people will press for him to recuse himself from cases that are before --

HARLOW: Like gerrymandering cases --

HENDERSON: Like gerrymandering any of these cases that could be brought by Democratic AGs or Democratic groups are because he did evince such partisanship in his statement talking about the Clintons, talking about this being a hangover from Trump's election.

You wonder about that -- going forward, you feel like this kind bitter partisanship with this process, where does it go? I mean, I think if you are a Republican --

HARLOW: Right --

HENDERSON: You see it in some ways as energizing and Democrats see it as energizing as well --

HARLOW: What does it do, Shan, to the court? I mean, the words he used about the Clintons on Thursday orchestrated political hit --

SCIUTTO: Right --

HARLOW: What does this do to the high court?

WU: That really calls into question the legitimacy of his appointment, and that's going to be a problem that if he's on, he's going to have to work to overcome that. You know, and to the point of what do we do going forward, there is a new random factor here, it's not just the partisanship, it's the whole issue of the Me Too movement and the sexual misconduct.

And frankly, neither side has had to deal with that, the way they have had to suddenly deal with it with this intensity in only a couple of years.


WU: So, it's unknown how you move forward with those kinds of issues.

SCIUTTO: Nia-Malika, Shan Wu, Susan Page --

HARLOW: Thank you all --

SCIUTTO: Thanks very much. Again, the news keeps coming this hour, we're just over an hour away from critical vote on Capitol Hill. Will Brett Kavanaugh move ahead to a final confirmation vote? That all hinges on the decisions of key -- three key Senate Republicans as well as a couple of Democrats.

HARLOW: Yes --

SCIUTTO: We'll be live in their home states when we come back.