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Susan Collins to Vote Yes on Kavanaugh. Aired 3-3:30p ET

Aired October 5, 2018 - 15:00   ET



PHIL MATTINGLY, CNN CORRESPONDENT: And just to set the stakes here, Wolf, you named Senator Jeff Flake. That's 49.

If he stays where he is -- and he says he's planning to at this point -- that's 49 senators. Republicans need 50 and a tie-breaking vote from Vice President Mike Pence. So, if Senator Susan Collins comes to the floor and says she will mirror that procedural vote from earlier today, and vote yes on the nomination, that is the vote that they need.

Now, obviously, we're still waiting to hear from Senator Joe Manchin, whether he plans to maintain his yes vote as well. But that's how big this is, a senator coming to the floor making a speech, a senator who has been undecided for the last couple of weeks, who has really kind of been going through a very, very difficult and complex processes, a senator who I will note that on, some of her crucial issues, most notably health care and Roe vs. Wade, has said she feels very comfortable with where Brett Kavanaugh is.

But, obviously, the sexual assault allegations have really thrown everything up in the air. You guys know well she spent a lot of time behind the scenes yesterday reviewing that FBI report, finished the entire thing, she told reporters. Now she has to make a decision, guys.

WOLF BLITZER, CNN ANCHOR: And we will find out soon enough in the next few minutes.

If she says she's going to vote yes in favor of conservation, that's a huge deal. If she says no, that opens up a whole lot of possibilities. .


And she has been absolutely, in a painstaking way, going over all of these documents. She was there until early this morning, I was told, there at her office going over it. But she did have, as Phil said, good meetings with Brett Kavanaugh.

She is somebody who is for abortion rights, even though she's a Republican. And that was something that -- a hurdle she had to get over before all of this. And she did get over it before the allegations. And joining us to talk about this and more, CNN political commentator Marc Short. He's the former director of legislative affairs for President Trump, CNN chief's political analysts, Gloria Borger, CNN political director David Chalian, and CNN Supreme Court reporter Ariane de Vogue.

Marc Short, you were in this -- in the catbird's seat, trying to push over the first Supreme Court nomination for President Trump, successfully so. It was quite a different scenario. What are you hearing from your friends on the Hill and the White House, since you bridge both?

MARC SHORT, CNN POLITICAL COMMENTATOR: Well, I think, right now, there's a lot of optimism that this will get completed.

I do think it's still a dramatic departure from the way Supreme Court nominations used to go. I think one thing that's lost in this coverage is that it wasn't until 2005 that we actually had our first cloture vote on a Supreme Court nominee with Alito.

Back in -- when Clarence Thomas was confirmed, there was a lot of controversy, a 52-48 vote. But there was never a 60-vote threshold required, because, generally, senators had courtesy on Supreme Court nominations. And it's become far more politicized in recent years.

BLITZER: If she announces, Gloria, that she's going to vote against confirmation tomorrow -- and let's see what she announces -- it puts an enormous amount of pressure on the Democrat, the one Democrat who voted today in favor of moving this process forward, Joe Manchin of West Virginia, who's in a tough reelection bid in his home state.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: If I were Joe Manchin at that point, I would be running for the hills of West Virginia.


BORGER: Because the Democrats will put so much pressure on him to, you cannot be the deciding vote. We cannot have a Democrat be the deciding vote here. And if you want our help in your race -- and he's now ahead comfortably, but these things can change. If you want any help in your race, forget it. We're not going to help you.

I mean, I can just imagine the conversation that would be had with Chuck Schumer. And, honestly, I don't know what Manchin would do.

SHORT: The best thing that's for Joe Manchin is if Chuck Schumer came out against him. That would help him in West Virginia.


BORGER: But not if he voted yes on Kavanaugh. I mean no on Kavanaugh.

SHORT: Joe Manchin voted against -- he voted against the administration taxes and on health care, but he's voted for all of our controversial nominees, whether it was Gorsuch, whether it was Pompeo, Haspel.

All the way down the line, he has continued to support those nominees. I think he will be supportive of this...


BORGER: I actually -- I do, too. I mean, that's...

BASH: He's a former governor who understands the importance of an executive getting who he or she wants for his Cabinet. The Supreme Court isn't...


BLITZER: But it's one thing to vote for all those nominees if you're one of several. It's another thing if you're the decisive vote that will put Judge Kavanaugh on the Supreme Court, not for four years or eight years, but maybe 30 or 35 years.

SHORT: He doesn't want to be the 50th vote, Wolf. You're 100 percent right on that.

But he also stated previously, I have never not voted on cloture the way I'm going to vote on final. That's what he said in the past, so I would imagine he will stay true to that this time.

BORGER: I think you're right.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: And I think it would be devastating for him, quite frankly, back home if at this point he reversed course here.

As much pressure as he may feel to not be the 50th vote, I just -- this is a state Donald Trump won by more than 40 points. This is -- I just think that Joe Manchin would have a very difficult time explaining why he was for the process and letting it get to a final vote, but then at the end of the day, he had to be against him.

BASH: And the reason we're talking about Joe Manchin right now is because we're just minutes away, maybe even less than a minute away, from Susan Collins making her decision, and because this is so -- you're so right, Marc.


I mean, this, historically, is not the way it worked. And it's gotten more and more partisan as the years have gone on. When I say it, I mean the confirmation process for any Supreme Court nominee on both sides of the aisle.

But if Susan Collins says that she's going to vote yes on the confirmation, just like she did this morning on the procedural vote, then Manchin would be gravy.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: But it also means two things for Collins. It means, first of all, she was the one who wanted those FBI

investigations, right? So, it means that when she got that information back, she was satisfied. And it also means that she wasn't as upset as some other people might be with judicial temperament.

The whole idea that he was too political in that opening statement, that that would bleed over to the Supreme Court, and that would be problematic, if she votes in his favor, those two things, she -- she's willing to say, that's all right.


CHALIAN: Oh, sorry.

BORGER: Susan Collins did her homework on this. I mean, she was in there reading the transcripts of the calls that came in over the transom, and of people saying, I want to talk to you about X, Y and Z. The FBI, what was it, 1,000 pages, Ari?

DE VOGUE: Sixteen hundred.

BORGER: Sixteen hundred pages -- I rest my case -- of transcripts. And she was reading the calls that came in of people who wanted to be interviewed who were not interviewed, and she was interested in what they had to say.

DE VOGUE: And the administration didn't ask for and the senators did not ask for that 1,600 pages. That's something that the FBI sent up along with the 46 pages of the...

BORGER: Maybe she asked for it, because she read it.


BLITZER: I'm curious, Dana, you know, because you have covered these members of Congress for a long time. The fact that Susan Collins and Lisa Murkowski might vote differently tomorrow during this final confirmation roll call, that's pretty extraordinary.

BASH: Well, it is in these times, because I interviewed them together after they both voted against -- oh.

BLITZER: Here she is.

UNIDENTIFIED MALE: The senator will suspend.

The sergeant at arms will suspend until the -- the sergeant at arms will restore order in the gallery.



(SHOUTING) UNIDENTIFIED MALE: As a reminder to our guests in the galleries, expressions of approval or disapproval are not permitted in the Senate galleries.

The senator for Maine.

SEN. SUSAN COLLINS (R), MAINE: Mr. President -- Mr. President, the five previous times that I have come to the floor to explain my vote on the nomination of a justice to the United States Supreme Court, I have begun my floor remarks explaining my decision with the recognition of the solemn nature and the importance of the occasion.

But, today, we have come to the conclusion of a confirmation process that has become so dysfunctional, it looks more like a caricature of a gutter-level political campaign than a solemn occasion.

The president nominated Brett Kavanaugh on July 9. Within moments of that announcement, special interest groups raced to be the first to oppose him, including one organization that didn't even bother to fill in the judge's name on its prewritten press release.

They simply wrote that they opposed Donald Trump's nomination of X.X. to the Supreme Court of the United States. A number of senators joined the race to announce their opposition, but they were beaten to the punch by one of our colleagues, who actually announced opposition before the nominee's identity was even known.

Since that time, we have seen special interest groups whip their followers into a frenzy by spreading misrepresentations and outright falsehoods about Judge Kavanaugh's judicial record. Over-the-top rhetoric and distortions of his record and testimony at his first hearing produced short-lived headlines, which, although debunked hours later, continued to live on and be spread through social media.


Interest groups have also spent an unprecedented amount of dark money opposing this nomination.

Our Supreme Court confirmation process has been in steady decline for more than 30 years. One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.

Against this backdrop, it is up to each individual senator to decide what the Constitution's advice-and-consent duty means. Informed by Alexander Hamilton's Federalist 76, I have interpreted this to mean that the president has broad discretion to consider a nominee's philosophy, whereas my duty as a senator is to focus on the nominee's qualifications, as long as that nominee's philosophy is within the mainstream of judicial thought.

I have always opposed litmus tests for judicial nominees with respect to their personal views or politics, but I fully expect them to be able to put aside any and all personal preferences in deciding the cases that come before them. I have never considered the president's identity or party when

evaluating Supreme Court nominations. As a result, I voted in favor of Justices Roberts and Alito, who were nominated by President Bush, Justices Sotomayor and Kagan, who were nominated by President Obama, and Justice Gorsuch, who was nominated by President Trump.

So I began my evaluation of Judge Kavanaugh's nomination by reviewing his 12-year record on the D.C. Circuit court of Appeals, including his more than 300 opinions and his many speeches and law review articles.

Nineteen attorneys, including lawyers from the nonpartisan Congressional Research Service, briefed me many times each week and assisted me in evaluating the judge's extensive record.

I met with Judge Kavanaugh for more than two hours in my office. I listened carefully to the testimony at the committee hearings. I spoke with people who knew him personally, such as Condoleezza Rice and many others.

And I talked with Judge Kavanaugh a second time by phone for another hour to ask him very specific additional questions.

I also have met with thousands of my constituents, both advocates and many opponents, regarding Judge Kavanaugh.

One concern I frequently heard was that the judge would be likely to eliminate the Affordable Care Act's vital protections for people with preexisting conditions. I disagree with this contention.

In a dissent in Seven-Sky v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow procedural grounds, preserving the law in full. Many experts have said that his dissent informed Justice Roberts' opinion upholding the ACA at the Supreme Court.

Furthermore, Judge Kavanaugh's approach toward the doctrine of severability is narrow. When a part of a statute is challenged on constitutional grounds, he has argued for severing the invalid clause as surgically as possible, while allowing the overall law to remain intact.


This was his approach in his dissent in a case that involved a challenge to the structure of the Consumer Financial Protection Bureau. In his dissent, Judge Kavanaugh argued for -- quote -- "severing any problematic portions, while leaving the remainder intact" -- end quote.

Given the current challenges to the ACA, proponents, including myself, of protections for people with preexisting conditions should want a justice who would take just this kind of approach.

Another assertion that I heard often is that Judge Kavanaugh cannot be trusted if a case involving alleged wrongdoing by the president were to come before the court. The basis for this argument seems to be twofold. First, Judge

Kavanaugh has written that he believes that Congress should enact legislation to protect presidents from criminal prosecution or civil liability while in office.

Mr. President, I believe opponents miss the mark on this issue. The fact that Judge Kavanaugh offered this legislative proposal suggests that he believes that the president does not have such protection currently.

Second, there are some who argue that, given the current special counsel investigation, President Trump shouldn't even be allowed to nominate a justice. That argument ignores our recent history.

President Clinton in 1993 nominated Justice Ginsburg after the Whitewater investigation was already under way. And she was confirmed 96-3. The next year, just three months after independent counsel Robert Fiske was named to lead the Whitewater investigation, President Clinton nominated Justice Breyer. He was confirmed 87-9.

Supreme Court justices have not hesitated to rule against the presidents who have nominated them. Perhaps most notably, in the United States vs. Nixon, three Nixon appointees who heard the case joined the unanimous opinion against him.

Judge Kavanaugh has been unequivocal in his belief that no president is above the law. He has stated that Marbury vs. Madison, Youngstown Steel vs. Sawyer, and the United States vs. Nixon are three of the four greatest Supreme Court cases in history. What do they have in common?

Each of them is a case where Congress served as the check on presidential power. And I would note that the fourth case that Judge Kavanaugh has pointed to as the greatest in history was Brown vs. the Board of Education.

One Kavanaugh decision illustrates the point about the check on presidential power directly. He wrote the opinion in Hamdan vs. the United States, a case that challenged the Bush administration's military commission prosecution of an associate of Osama bin Laden.

This conviction was very important to the Bush administration, but Judge Kavanaugh, who had been appointed to the D.C. Circuit by President Bush and had worked in President Bush's White House, ruled that the conviction was unlawful.

As he explained during the hearing -- quote -- "We don't make decisions based on who people are or their policy preferences or the moment. We base decisions on the law" -- end quote.

Others I have met with have expressed concerns that Justice Kennedy's retirement threatens the right of same-sex couples to marry, yet Judge Kavanaugh described the Obergefell decision, which legalized same- gender marriages, as an important landmark precedent.

[15:20:17] He also cited Justice Kennedy's recent Masterpiece Cakeshop opinion for the court's majority, stating that -- quote -- "The days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court" -- end quote.

Others have suggested that the judge holds extreme views on birth control. In one case, Judge Kavanaugh incurred the disfavor of both sides of the political spectrum for seeking to ensure the availability of contraceptive services for women while minimizing the involvement of employers with religious objections.

Although his critics frequently overlook this point, Judge Kavanaugh's dissent rejected arguments that the government did not have a compelling interest in facilitating access to contraception.

In fact, he wrote that the Supreme Court precedent strongly suggested that there was a compelling interest in facilitating access to birth control.

There's also been considerable focus on the future of abortion rights based on the concern that Judge Kavanaugh would seek to overturn Roe v. Wade. Protecting this right is important to me.

To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself. He believes that precedent is not just a judicial policy; it is constitutionally dictated to pay attention and pay heed to rules of precedent.

In other words, precedent isn't a goal or an aspiration. It is a constitutional tenet that has to be followed, except in the most extraordinary circumstances.

The judge further explained that precedent provides stability, predictability, reliance, and fairness.

There are, of course, rare and extraordinary times where the Supreme Court could rightly overturn a precedent. The most famous example was when the Supreme Court in Brown vs. the Board of Education overruled Plessy vs. Ferguson, correcting a grievously wrong decision, to use the judge's term, allowing racial inequality.

But someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent, except in those rare circumstances where a decision is grievously wrong or deeply inconsistent with the law.

Those are Judge Kavanaugh's phrases.

As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight, such that the precedent can't be trimmed or narrowed simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to

do by stealth that which one has committed not to do overtly.

Noting that Roe v. Wade was decided 40 years -- 45 years ago, and reaffirmed 19 years later in Planned Parenthood vs. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent.


He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold vs. Connecticut, a case that struck down a law banning the use and sale of contraceptions.

Griswald established the legal foundation that led to Roe eight years later. In describing Griswald as settled law, Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today.

Finally, in his testimony he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as precedent on precedent.

When I asked him, would it be sufficient to overturn a long- established precedent if five current justices believed that it was wrongly decided, he emphatically said no.

Opponents frequently cite then candidate Donald Trump's campaign pledge to nominate only judges who would overturn Roe. The Republican platform for all presidential campaigns has included this pledge since at least 1980.

During this time, presidents -- Republican presidents have appointed Justices O'Connor, Souter, and Kennedy to the Supreme Court. These are the very three justices, Republican president-appointed justices, who authored the Casey decision which reaffirmed Roe.

Furthermore, pro-choice groups vigorously oppose each of these justices' nominations.

Incredibly, they even circulated buttons with the slogan, "Stop Souter or women will die."

Just two years later, Justice Souter co-authored the Casey opinion, reaffirming a woman's right to choose. Suffice it to say, prominent advocacy organizations have been wrong.

These same interest groups have speculated that Judge Kavanaugh was selected to do the bidding of conservative ideologues, despite his record of judicial independence. I asked the judge point blank whether he had made any commitments or pledges to anyone at the White House, to the Federalist Society, to any outside group on how he would decide cases. He unequivocally assured me that he had not.

Judge Kavanaugh has received rave reviews for his 12-year track record as a judge, including for his judicial temperament. The American Bar Association gave him its highest possible rating. Its Standing Committee on the federal judiciary conducted an extraordinarily thorough investigation, soliciting input from almost 500 people, including his judicial colleagues.

The ABA concluded that his integrity, judicial temperament and professional confidence met the highest standards.

Lisa Blatt, who has argued more cases before the Supreme Court than any other woman in history, testified -- quote -- "By any objective measure, Judge Kavanaugh is clearly qualified to serve on the Supreme Court. His opinions are invariably thoughtful and fair."

Ms. Blatt, who clerked for and is an ardent admire of Justice Ginsburg and who, is in her own words, an unapologetic defender of a woman's right to choose, says that Judge Kavanaugh fits within the mainstream of legal thought.

She also observed that Judge Kavanaugh is remarkably committed to promoting women in the legal profession.