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Key Votes Still Undecided Before Key Vote on Kavanaugh's Nomination; Kavanaugh Pens Op-Ed in Wall Street Journal. Aired 7-7:30a ET

Aired October 05, 2018 - 07:00   ET

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

JOHN BERMAN, CNN ANCHOR: Two mentions in this.

ERICA HILL, CNN ANCHOR: Hey, listen, your name is still in the headlines. Isn't that a win?

[07:00:03] BERMAN: You're right. Maybe you're right.

All right. Thank you to our international viewers for watching. For you, "CNN TALK" is next. For our U.S. viewers, "NEW DAY" continues right now.

(BEGIN VIDEOTAPE)

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: When the noise fades, what's left is the distinguished nominees that stand before us.

UNIDENTIFIED MALE: The op-ed indicates that he knows he screwed up. He acted injudiciously.

KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: Those key senators are still weighing whether they're going to support Judge Kavanaugh.

SEN. HEIDI HEITKAMP (D), NORTH DAKOTA: I can't get up in the morning and look at the life experience I've said and say "yes."

UNIDENTIFIED MALE: I'm grateful to the FBI for doing a thorough investigation.

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER, JUDICIARY COMMITTEE: The most notable part of this report is what's not in it.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: He does have the temperament, but he didn't handle being destroyed well. Enough already. Let's vote.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

BERMAN: Good morning and welcome to your NEW DAY. Alisyn is off. Erica Hill joins me this morning. We are counting votes and we are watching the clock. In a little more than three hours from now, the first Senate votes on Brett Kavanaugh. What will happen? Will he be confirmed to the Supreme Court? We don't know for sure with just three hours to go, but there are

hints, pretty big ones, and as we speak, all eyes are on four senators -- three Republicans and one Democrat. At least two of them need to vote in favor of Kavanaugh in order for him to make it to the court.

So how uncertain is it this morning? Brett Kavanaugh himself did something unprecedented overnight. He wrote an op-ed in the "Wall Street Journal." He conceded that he might have been too emotional in his testimony before the Senate Judiciary Committee, and he promised to be an independent, impartial judge if confirmed. He didn't apologize, but still ask yourself, why did he write this?

The answer is almost definitely because he thought he had to, because he thinks it's that close. Because he knows that his temperament that was shown in his testimony was a problem for some senators and some people, including now one retired Supreme Court justice, John Paul Stevens, who said overnight that the testimony changed his opinion about whether Kavanaugh should be on the court.

HILL: Also overnight, new details on the FBI report itself. Republicans on the Senate Judiciary Committee say the FBI reached out to 11 people, interviewing ten of them, in connection with allegations against Kavanaugh, allegations leveled by Christine Blasey Ford and Deborah Ramirez. Neither Ford nor Kavanaugh were interviewed.

Ford's attorneys blasting that move. Democrats citing it as an example the report itself is nothing more than an attempted cover-up.

All of this as the president at a rally in Minnesota says the Democrat's' resistance is starting to backfire, adding that he has a real good feeling about Kavanaugh's chances.

BERMAN: Joining us now, CNN senior political reporter Nia-Malika Henderson; co-author of "Notorious R.B.G" and senior correspondent for "New York" magazine Irin Carmon; and CNN legal analyst Laura Coates.

Nia, this is a matter of politics now. I want to go to you first. Where are we? Three hours to go, which way are these votes leaning?

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL CORRESPONDENT: They don't have 50 right now because of those four folks you just mentioned. The big four, they haven't declared yet. We saw some movement, obviously, yesterday with Heidi Heitkamp saying "no." But these folks haven't declared yet. We'll see what happens at 10:30, as you know.

This has taken so many twist and turns, it's hard to predict. I think if you're a GOP senator, if you're Kavanaugh, if you are the president, you feel good so far about what you've heard from Collins and Flake, and their assessment of the FBI report that they reviewed yesterday.

They basically sounded like Republicans when they came out. They didn't sound like Democrats. They didn't sound like people who were about to buck their party. But we will see at 10:30, that vote, are they up or down, and does this thing move forward? HILL: What's remarkable is everything that happened in such a short

period last night. So we have the op-ed in "The Wall Street Journal" from Brett Kavanaugh. We had both -- the editorial boards of both "The Washington Post" and "The New York Times" coming out and saying this should be a "no" for some -- some of the same reasons, a couple of different reasons.

And then we're also hearing from retired Justice Stevens, who said his temperament, the way he handled himself, his outbursts during that testimony, "have led me to say I don't think he should be nominated. He should not serve on the court."

Laura, when you look at all of that and put it together, it is unprecedented, to put it mildly, but does it have any impact?

LAURA COATES, CNN LEGAL ANALYST: Well, in terms of Justice Stevens, he's one of the people who's uniquely qualified to know who should be sitting on the court, having been on the court, having served on the court. He's aware of the temperament, probably, required to do so.

And he's not focusing simply on the indignation, perhaps, that one would feel and many think would be justifiable if you feel you're wrongfully accused. He's talking about the partisanship in which he attacks members of the Senate Judiciary Committee, talking about vengeance for the -- on behalf of the Clintons, talking about the political hit job.

He did use some of the rhetoric of Clarence Thomas, in terms of the national disgrace and what it had become. But he had a different sting to it.

[07:05:07] And this is one of the opinions that he wrote in "The Wall Street Journal" that is not going to bode well on his overall breadth of opinions he's ever drafted. This one was really, in a way, trying to excuse himself, although he didn't apologize. But in many ways, trying to say, "Look, I've got the temperament."

But all he did is expose and solidify for people that you have a Dr. Jekyll and Mr. Hyde thing going. Do you want somebody whose temperament wavers in this direction, who feels remorse in other ways and then wants to come out and say it? You need to have consistency and credibility on the court.

BERMAN: He did not apologize, and I think that is important to note. He says he wrote this op-ed himself. That is important to note. But also important to note: that he told us that he wrote his opening statement to the Senate completely himself, and that was part of the statement that people found problematic in terms of his temperament. That's where he said he thought this was all revenge for Hillary Clinton, and basically, what goes around comes around.

Irin, let me just read you a little bit of this op-ed in "The Wall Street Journal," and it's unprecedented for a Supreme Court nominee to do something like this: campaigning, more or less, for himself the day before a vote. He says, "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 hope everybody can understand that I was there as a son, a husband and a dad."

And as I noted, he wrote this because he thought he had to. He thinks that maybe these wavering senators needed to hear this.

IRIN CARMON, CO-AUTHOR, "NOTORIOUS R.B.G.": John, I mean, look, he was there as a son, a husband and a dad, but he was also there as a Supreme Court nominee. This is a lifetime appointment. This is a job that no one person is entitled to, despite the fact that, frankly, Brett Kavanaugh and his supporters act like it is his God-given right to be on the Supreme Court.

And so I think he has to be assessed on the terms in which he is being evaluated. This is a job that is going to be enormously divisive. It's going to be a deciding vote in a court of nine that's going to make life and death decisions, literally life and death decisions on capital punishment, on women's reproductive rights, on access to the courts, on equality, on racial justice, on corporations and public spending. So the faith in our public institutions is what is at stake here.

And I understand that Brett Kavanaugh feels that he is wrongly accused, but I think it's perfectly justifiable for senators to evaluate not, by the way, just his demeanor but also his truthfulness and his credibility when it came to asking very direct questions. A lot of questions have been raised subsequently about his evasiveness at best.

Now, I'm not saying that he committed legal perjury, but I do think that his inability to answer direct questions, and the subsequent refusal of the FBI to grill him directly is something that senators are probably really thinking very hard about right now.

HILL: In terms of what senators are thinking about, Justice Stevens in his remarks also said senators should pay attention for the good of the court, and also, of course, for the good of the country.

But we know, Nia, and you touched on this. We know that this decision for senators is not always about the good of the country, the good of the court, the good of their constituents. There's a larger political play happening here, and that comes from the party and the balance of power.

HENDERSON: I think that's right. If you're Manchin, you're obviously thinking about being a senator from West Virginia, a state that Trump won overwhelmingly. If you are those other three senators who are Republicans, you are thinking about this notion of basically bucking your entire party. I mean, you're essentially going off on your own if you do this as Collins and Murkowski and Flake.

If you're Flake you probably don't have a role in the Republican Party going forward if, all of a sudden, you say no to a party that, really, for decades has wanted to have a Supreme Court that's a conservative Supreme Court that would likely overturn Roe. At least that's -- that's the notion and that's the hope for a lot of Republicans.

So it would be a really tall order and a really bold move, I think, for these Republicans to go out and do this. We'll see. I mean, if they are thinking about the things that John Paul Stevens talked about, obviously, Kavanaugh thinks he didn't quite seal the deal, that Thursday, essentially, in hindsight wasn't a good idea. He didn't win that day. He essentially failed.

And the longer I think that people look at that testimony, I mean, he -- it was probably one of the most bizarre public performances we've ever seen, certainly from a judge. We obviously saw Clarence Thomas there almost 30 years ago. He was angry, but he was also, you know, dignified in his presentation there. And that is something that we didn't see from Judge Kavanaugh on Thursday.

And I think for a lot of people -- and Republicans I talked to, setting aside Ford's allegations, they also felt like what about his temperament? And what about this kind of rank partisanship that he -- he talked about during his testimony?

HILL: Which he tried to address in that op-ed, right? He said, you know, and has tried to go back to "I can be -- I can be fair and impartial." That's one of the things that has been raised in questions by the editorial boards by people who are not comfortable with his nomination; also by Justice Stevens.

[07:10:10] But it's fascinating, too, because we're in this very strange place, right, where you actually have people on both sides saying similar things about how this process is broken and how things aren't working. And it's fascinating.

So we heard from -- let me just play this. We heard from Chuck Grassley saying, "You know what? When this is all said and done, we've really got to fix this."

I just want to listen to those words.

Oh, sorry, we may not have it with us. He basically said when it's all -- when this is all done, this is rock bottom, he said. "I would like to have the future mending thing, so we can do things in a collegial way" that the U.S. Senate ought to do, in particular when it comes to Supreme Court nominations.

So when you hear those words, what's fascinating is, I mean, neither side here has clean hands in terms of where we are now at today here. And so the question is can we -- can we really go back, or I suppose it should be can we move forward?

CARMON: Look, I mean, everybody has a theory about where this started. But for Democrats, it started with Merrick Garland. I mean, the neutral processes that have governed Supreme Court nominations, for example, multiple Democrats voted for Clarence Thomas. Many, many Republicans, including Orrin Hatch, voted for Ruth Bader Ginsburg. The notion of a Supreme Court that is not politicized has gone out of the window.

And I know this is where Republicans like to say, "Well, Miguel Estrada" or they like to say "Robert Bork." And Democrats will say, you know, Merrick Garland didn't even get a hearing.

But I also think this process, we don't have to wait for it to be over to try to figure out, you know, what would be a neutral process. It might involve, for example, one thing that I found really troubling, is that Chuck Grassley himself, they've been releasing negative material about some of the accusers, about Christine Blasey Ford, for example, without giving her an opportunity to respond to the FBI.

So they've been trying this in the court of public opinion, but they haven't had either Brett Kavanaugh questioned in detail by the FBI, and they haven't had Christine Blasey Ford allowed to respond to this. Instead, it's being leaked to the press.

And so I think if you do want to return to the kind of collegiality and the comity that once existed around the Supreme Court, you need to start with your leadership. Because you can't say it's equally divided when one side is in charge of how it's being done and the process is, frankly, not neutral.

They've said from the beginning that their goal here is to confirm Brett Kavanaugh, and that's the way they're acting. They're acting like they don't want to hear anything that's going to change their minds.

BERMAN: Laura, go ahead.

COATES: And one of the things that's so important about not having partisanship, particularly in the Supreme Court, not just that they're a third and independent and autonomous branch of government. But one of the things that Brett Kavanaugh's statements at his confirmation hearing and testimony last Thursday has raised is that the goal of having all nine justices being able to weigh in on a particular case is of paramount importance.

When you have partisanship infused in his discussion, you have the potential for recusal. You will not necessarily have somebody who's able to sit on -- you can imagine a scenario where perhaps, I mean, Hillary Clinton or the Clintons or something related to his opening statement is brought up in the court of law or any aspect of his attack on the Senate Democrats, that he'd have to recuse himself, based on the statements he made, even if he has this exhaustive paragraph in "The Wall Street Journal," talking about how he would really be able to be objective.

That kind of thing, you can't have a hint of impropriety or the hint of not being impartial and actually have credibility on the court over the long term. And that's probably the biggest hit of all, that you had a Supreme Court nominee who, by his own statements, was forced to say, "But I'll still be objective." That idea that "We think the lady doth protest too much," or is pleading too much, must be on the minds of people looking forward at the Supreme Court of the United States.

BERMAN: Laura Coates, Nia-Malika Henderson, Iron Carmon, thank you very much. Great discussion.

I do want to point out one bit of information we got, which confirmed something Nia was saying right at the beginning there. And this is from our Phil Mattingly up on Capitol Hill.

He writes, "As of dawn this morning, Republicans do not have the votes" -- do not have the votes -- "yet to confirm Brett Kavanaugh." That from a person with direct knowledge of the people counting the votes. It doesn't mean they won't get there. It doesn't mean they're not headed there. They're still optimistic. But at 7:15 this morning they are not there. The votes are not there yet.

HILL: Just over three hours to go. We'll continue to watch it.

BERMAN: And we were just talking about the partisanship. What does Brett Kavanaugh's testimony mean for what kind of judge he might be? We're going to speak with somebody who worked with Brett Kavanaugh in an environment that a lot of people saw as very politically charged. Kenneth Starr, who led the Whitewater investigation, joins us next.

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[07:19:08] BERMAN: A key vote advancing the nomination of Judge Kavanaugh to the Supreme Court set to take place just about three hours from now.

Brett Kavanaugh made a final argument, sort of a campaign pitch for his confirmation. Overnight he published an op-ed in "The Wall Street Journal." He described himself as an independent, impartial judge, despite his heated tone during his testimony in the Senate Judiciary Committee.

Joining me now is the former independent counsel who led the investigation of Bill Clinton, Kenneth Starr. He is the author of the new book "Contempt: A Memoir of the Clinton Investigation." Judge Kavanaugh was a prosecutor on Starr's team during the Clinton probe.

Judge Starr, thank you so much for being with us. I just want to get this out of the way. To be clear, you were out of the country during -- during Judge Kavanaugh's hearing last week, is that true?

KENNETH STARR, FORMER INDEPENDENT COUNSEL FOR WHITEWATER INVESTIGATION: Yes, that's true. Friends go on a bicycle trip every year, and we had it planned for six months. So yes, I was in the beautiful country of Croatia.

BERMAN: As far away as you can be from it all. Have you had a chance to see it?

STARR: Yes, I've seen not all of it, but I have a good deal of it. But I have a different perspective. The conversation is all about what happened last week, and that's fair. But I have a perspective born of knowing Brett Kavanaugh, Judge Kavanaugh for 25 years. And I've seen him interact with countless people.

And I think the most relevant thing, John, is that in his 12 years on the bench, he's dealt with in formal settings, in oral arguments, literally hundreds of lawyers. And his reputation for treating people with dignity and respect is just -- it's unblemished; it's perfect. He has an exemplary record as -- those aren't my words alone. It's the words of the profession, the American Bar Association, those are tested, that he passes muster with flying colors with respect to the issue of judicial temperament.

BERMAN: Supreme Court Justice -- former Supreme Court Justice John Paul Stevens agrees with you on that front. He thinks, looking at his record, he has the judicial qualifications to sit on the bench. But Justice Stevens said overnight that he doesn't think he should be confirmed because of what he saw in the testimony when you were in Croatia.

Let me play a little bit of it for you.

(BEGIN VIDEO CLIP)

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

(END VIDEO CLIP)

BERMAN: And that was just part of it. He also threatened what goes around comes around. In a vacuum, is that the kind of language and the type of temperament you think we should see from someone who might sit on the Supreme Court?

STARR: John, I don't look at things in a vacuum, and I think Judge Kavanaugh in this op-ed piece, which we've all read now, has made some very, I think, thoughtful statements about why he was emotional.

I would be emotional, too. The attacks and the assaults happened very, very vicious.

And he has this, again, exemplary record as a person, as a human being. Look at what his law clerks have said about him. They are at his elbow every single day with Sundays off. They work very hard with him. They see the judge over the years, and that's, I think, the measure of the person.

I think there is -- right perspective is to look at the total set of circumstances. I'm glad that Judge Kavanaugh wrote what he did, and it was to say that perhaps he went too --

BERMAN: He didn't -- he did not apologize. Do you think he should have?

STARR: I think he said what was on his heart, which is he's felt strongly about this. And I can appreciate this.

When you're under unremitting assault -- and I recount this in my book about the Clinton investigation -- unremitting, relentless assault, that also goes to your family; when your children are under death attack, you can't help as a person, as a human being to be emotional about it.

BERMAN: I understand.

STARR: Here's the key.

BERMAN: OK, go ahead.

STARR: Yes.

BERMAN: No, sorry. Here's the key -- I'll let you finish?

STARR: Yes, well, I think the key, again, is look at, as we say, the whole body of work. Look at his life in public service. There are very few candidates, certainly, in this -- the last century who have had the public record. And that's what should be measured, as opposed to let's focus on a very heated process.

BERMAN: So -- so John Paul Stevens again -- and again, John Paul Stevens agrees with you on the record, the judicial record. But he also notes Clarence Thomas was under enormous stress and pressure during his confirmation process and faced many of the same types of charges, you know, threats, all of those things. Yet justice Thomas took another path and did not go as heated as Judge Kavanaugh.

This was a choice. Judge Kavanaugh wrote -- the comments that I just played for you, he wrote. It wasn't if that was impromptu in the moment. He wrote those comments; it was a premedicated moment.

STARR: And I will say this. I love Justice Stevens. I've argued many cases before him. I have a lot of personal affection for him. I just respectfully disagree with him. And by the way, he always treated individuals with respect and dignity in the court.

That's the key. How do you deal with people in the court, not in the highly -- well, it was just a high-tense process in the whole Senate confirmation process, which I do think -- this was said after the Bork nomination and the Bork confirmation hearings, and it was said by Stephen Carter of the Yale Law School. There's a confirmation mess. We need to clean it up.

BERMAN: OK.

[07:25:09] STARR: And I hope that's the enduring lesson.

But I stand totally by Brett Kavanaugh as a person of complete honor and integrity and treating every human being with respect.

BERMAN: I think a lot of people are watching you. And every time you come on, they know the history here, and they know that Brett Kavanaugh worked for you during the Clinton investigation.

And it is notable what Kavanaugh argued for during the investigation into Bill Clinton, and let me read you a little bit of what he wrote you in a memo. He says "He" -- Bill Clinton -- "should be forced to account for all of that and to defend his actions. It may not be our job to impose sanctions on him, but it is our job to make his pattern of revolting behavior clear -- piece by painful piece."

And this was a memo where he was arguing for graphic sexual questions to the president of the United States. And I only bring this up now, because Brett Kavanaugh is lamenting, you know, the politics of personal destruction, for lack of a better word. But wasn't he advocating for that when he was working for you?

STARR: No. Reread the very first sentence and then the second sentence. What Brett Kavanaugh, the lawyer, was saying is, "Let's get the facts. Let's get the facts and assess the facts." In other words, don't pull punches. Let's get the facts.

Because the president of the United States, as I recount in my book, engaged in a pattern and practice of lying under oath. And the reason the book is named "Contempt" is because President Clinton, with all of his talents, saw fit to be held by his actions in contempt by a federal district judge. And he didn't appeal that, John.

BERMAN: Understood.

STARR: That's what we were dealing with. He was denying the -- I'm sorry, go ahead, John.

BERMAN: Understood. But Judge Kavanaugh -- and again, I know you were in Croatia and didn't necessarily see it, but Judge Kavanaugh was -- made it seem like he was deeply offended when he was asked questions about minutia, questions that might be personally embarrassing during the hearing. And yet, he is arguing for doing just the same here with President Clinton, and you see no similarities there?

STARR: For one thing, here's the key thing. President Clinton was -- and I don't need to relitigate that, read the book -- was determined to lie to the American people. That's between him and the American people. To lie, I guess, to his family. That's between him and his family. But he saw fit to lie under oath.

To a law officer like Brett Kavanaugh, young lawyer at the time, the commission of perjury and obstruction of justice was simply unconscionable, especially by the president of the United States.

I think we have a totally different set of circumstances here. And what Brett has said is, this did not happen. What Judge Kavanaugh said. He's been emphatic on this, that it did not happen.

And I'm not here to litigate or relitigate the Dr. Ford versus Brett Kavanaugh. But I believe Brett Kavanaugh. I believe him based upon his record and the firmness of his -- of his denial.

He's a very good person. And I so regret that so much that is being said is not taking into account, again, the fullness of his humanity and his decency as a person and his exemplary record as a judge.

BERMAN: Apolitical? Is he apolitical?

STARR: Absolutely. And I think his 12 years on the court show that. The dispassionate judge or justice sets aside his or her political beliefs. There will be differences of opinion on the Constitution. Does the Constitution protect flag burning, or does it not? Justice Stevens says it does not protect flag burning.

BERMAN: But the word you used was -- again, all I'll say is the word you used is "dispassionate," and I know you're describing what you believe to be his 12 years on the bench. Dispassionate was not a word that you could use to describe his time before the Senate Judiciary Committee last week.

STARR: People are going to have different assessments. Righteous indignation, totally justified as one perception. Others will have different perceptions. Again, I do think that our system is not performing as it should. If what is hanging in the balance is anything other than an entire judicial record that's so exemplary.

BERMAN: Kenneth Starr, great to have you with us. Always appreciate the discussions.

STARR: Thank you, John.

BERMAN: So how is this debate over Judge Brett Kavanaugh affecting voters ahead of the midterm elections? Our Harry Enten has been crunching the numbers. There is something about Harry, next.

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