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The Supreme Court Choice Has Been Made, Tuesday Is When The Government Has To Reunite The Youngest Migrant Separated From Their Moms And Dads, Awaiting The Rescues Of The Final Five Kids Trapped Inside That Cave In Thailand. Aired: 12-1a ET

Aired July 10, 2018 - 00:00   ET


CHRIS CUOMO, HOST, CUOMO PRIMETIME: ... into another special hour of "Primetime" Live from Washington, DC, so the Supreme Court choice has been made. Brett Kavanaugh is the President's pick for the high court. The question is, will he be confirmed? And really the bigger question is, will that happen before the midterms? Now, on other side of the ball, when you look at the Democrats, you're going to hear a lot of early and anxious voices about this choice, but can they do anything about it. We've got one Democratic senator who is certainly going to try, Oregon Senator, Jeff Merkley joins us tonight.

There's also other big news. It's after midnight Eastern Time, Tuesday, that means the deadline on that day, Tuesday is when the government has to reunite the youngest migrant separated from their moms and dads. By all indications, they're going to miss that deadline. The question then becomes, why? Why can't the administration get these kids back to their families? Are they really trying?

Plus, we're awaiting the rescues of the final five kids trapped inside that cave in Thailand. We are on scene as crews are racing to beat a monsoon. What do you say? Let's get after it.

Twelve days after Justice Anthony Kennedy announced his retirement, President Trump announced the person he'd like to replace him. He said he wanted to pick a woman, but he didn't. He picked a man named Brett Kavanaugh who checks a lot of boxes for the conservative right. The question now is, will the GOP control the Senate to get him confirmed before the midterms?

Democrats are vowing a relentless confirmation fight, but what can they do? Senator Jeffrey Merkley of Oregon join us now on "Primetime." Good to have you, Senator.


CUOMO: Thank you very much. Appreciate you coming in at the late hour. Unless, you're thinking West Coast which is where you're from and then it's reasonable ...

MERKLEY: Not so bad ...

CUOMO: ... at about nine. So, let me ask you, the first question is there is the can and then there is the should. Can - what can you do? You know, God bless Senator McCain, hopefully he's fighting back his adversary right now. But if he doesn't vote, it's 50-49. If the Republicans hold ranks, it's over.

MERKLEY: Well, certainly, in the end that would be the case, but so many surprises occur along the way. Issue after issue that we've considered including issues - you mentioned the healthcare bill that so many people thought couldn't protect healthcare in America. We succeeded mostly in protecting it, apart from some of the other things that are going on to sabotage it.

But in this case, there is going to be a lot we are going to learn in the coming days, and some of the issues that are already being identified are really massive. I mean, this is a nominee who believes in an enormously expansive vision of Presidential power. Really, ,ore appropriate for a kingdom and a king than for a democratic Republican President.

CUOMO: You're speaking specifically not about a decision of which Kavanaugh gives you as many as any recent nominee, 300 some odd cases that he's decided, plenty to come through. But in 2009, he wrote an article for a Minnesota law review piece where he said, "Presidents should not during their term be exposed to legal, civil, criminal, any type of process," which would mean something like being compelled to testify by Mueller.

MERKLEY: Yes, it means that there would never have been Watergate, for example, because the investigation, he doesn't think the investigation ...

CUOMO: He says impeach him if you have a problem, don't go this route.

MERKLEY: He says the remedy for misbehavior lies with Congress rather than with the courts, and so the whole vision of a special prosecutor disappears. He feels that the President should be able to fire special prosecutor, and he has a very expansive belief that the President can basically ignore laws that the President doesn't agree with.

CUOMO: You think that is why Trump picked him?

MERKLEY: I think this must have had a huge factor, because here we are in an extraordinary moment in American history, where we have a President who is under investigation for possible collaboration with an enemy, Russia, undermining the very foundation of American elections. And so to have that President at this moment be able to have this enormous conflict of interest, and choose who might sit on the bench on issues like can the President pardon himself? Can the President fire a special prosecutor? This is a moment that should not happen. That we should postpone this consideration of his nominee, until he has cleared - until the President is cleared of this investigation.

CUOMO: Unless McConnell - Senator McConnell wants to postpone, is there any way you could make that happen? MERKLEY: Well, no, in the end, there is - there is things we can

certainly be very careful with our research, but to make sure that there is as much going on in the Judiciary Committee as possible, but in the end the majority can control the body.

CUOMO: The senator in charge of how much time and how much paper you get to look at is Senator Grassley, another Republican, he can say, "This is how much time you get, this is how much paper we are going to allow." He's going to have a strong hand on the reins there as well, yes?

MERKLEY: That's right. That's right. Absolutely.

CUOMO: So, it's kind of set up against you here. If you're against this...


MERKLEY: Well, it's set up so that if - as you put it, if the Republicans hold rank. But there may be Republicans who know that the President has said he would nominate only a justice who would strike down Roe versus Wade. There may be Republicans who are concerned about this nominee's opinions in terms of being anti-worker, and anti- consumer, anti-ACA, and so forth. I mean, there is a lot of material there that is really about the powerful versus the people. And after all, we were founded as a, "We, the people" republic.

CUOMO: So when you look at some of those specific issues, Roe v. Wade looms large. I don't know that Kavanaugh, looking at his cases so far has given you much to work with there. When he was up to be a circuit court judge, he said that he respected it as established precedent. It's been tested many times. He would follow it faithfully. Here is the sound bite.


BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: If confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent on the court. It's been decided by the Supreme Court.

UNIDENTIFIED MALE: As to your own opinion.

KAVANAUGH: And I'm saying if I were confirmed to the DC Circuit, Senator, I would follow it. it's been reaffirmed many times, including in Planned Parenthood (inaudible) ...


UNIDENTIFIED MALE: I understand, but what is your opinion. You're not on the bench yet. You've talked about these issues in the past to other people I'm sure.

KAVANAUGH: The Supreme Court has held repeatedly, Senator, and I don't think it would be appropriate for me to give a personal view on that ... UNIDENTIFIED MALE: You're not going to answer the question.


CUOMO: Now, the biggest problem with the process, with all due respect, is this is not about candor and accountability. These men and women all say the same thing when you guys ask them these questions, and you can try to get him to go on record, but they learned from Judge Bork that if you get out over your skis and say how you feel about things, you are at risk. So you probably won't get it revealed from him and any circuit court judge is going to say they respect stare decisis with respect to the Supreme Court. It's once they get a chance to change it as a Supreme Court, what would they do? What's your concern?

MERKLEY: Well, once you are on the court, you are setting precedent. You are not following precedent. And certainly the President, our President, President Trump has said he would not nominate someone unless they were prepared to strike down Row versus Wade.

CUOMO: Right. Leonard Leo ...

MERKLEY: ... on this ...

CUOMO: ... from the Federalist Society, I know you've - I've heard you say that before, Leonard Leo told me, the head of the Federalist Society who put this list together for the President that the President never asked anybody about their feelings on Roe v. Wade. Let me - just listen, so you can believe me that he said it.


LEONARD LEO, TRUMP SUPREME COURT ADVISER: In all of my dealings with the President, and in all of the meetings he's had with prospective nominees, as you mentioned three, I think during the earlier process, the President's never asked a single nominee about Roe v. Wade or abortion or frankly, any other case. And he's never talked to me about it.


CUOMO: Now, once again my guidance on this is it's often what is not said in this particular process you have to pay attention to. Would he be on that list if he had said to Leonard Leo or any of these other people in the midst of the conservative angle, I tell you what I would never overturn that case, I think it's good law.

MERKLEY: No, absolutely not. The President asked the Federal Society to put this list together. And the Federal Society knows what the President's commitment was. So saying that the President has never asked about this is meaningless. Those folks were vetted long before they made it in front of the President.

CUOMO: Otherwise, they wouldn't be on the list. I think that's a fair point. Although, I will tell you guys at home, seeing how you stayed up this late, stay up a little bit longer. Read Page 15 of the speech that Kavanaugh gave to the American Enterprise Institute about Justice Rehnquist. He talked about Rehnquist's dissent in Roe v. Wade, and why he respected it at the time. But he may have boxed himself in. Go ahead and read it. We'll be talking about it a lot in the weeks ahead.

I want to talk to you about something else though, while I have you, Senator. These kids are still separated, well over 90% of the ones that the government has stripped from parents. They are going to miss the deadline that is court imposed. You can negotiate with the courts about that, about how much time. But do you believe in your findings that the government has made the strides it needs to, to create a process of putting these families back together?

MERKLEY: Well, absolutely not. They are in a great state of confusion. That is why tomorrow is the deadline for the children who are under five, and there were just over a hundred of those children. We are hearing that maybe half of them will be reunited with their parents tomorrow. At the time that they separated the kids from the parents, they called them then unaccompanied minors, and they were sent into HHS - Health and Human Services, just as if they had arrived without their parents.

They didn't - therefore, HHS didn't have the information about their parents. They have had great difficulty figuring this out. Now, that's why after here, after two weeks, they are still only 50 kids or a few more who are going to be connected.

So this was really poorly planned all the way through. But here is this, the fundamental fact, let's not forget as the administration unifies some ...


MERKLEY: ... of these kids, they still are insisting on a strategy of inflicting trauma on children in order to push a policy of deterrence, to deter people overseas from coming to America to assert asylum, and that idea, that fundamental idea of inflicting trauma on children is a dark, dark position. No religious tradition, no moral code would possibly allow you to say, "I'm going to injury these kids to send some political message."

CUOMO: What could you do about it?

MERKLEY: Well, we're going to support the Flores decision, which says you cannot establish internment camps for families. That's what the administration wants to do. They said, "We are going to go from family separation to family incarceration." Handcuffs for all.

CUOMO: Now, they're trying to box you in politically. Trump is saying, "Listen, if you care about the kids so much, relieve us of the Flores decision. You are forcing us to separate kids because we can't keep the kids as long as we can keep the parents. Change that law, that will make it better." Will you bite?

MERKLEY: Well, not at all. There is no internment camp future going on here in terms of our support. There is a policy that worked very well, a program that worked very well, family case management program, and the Inspector General of Homeland Security did an audit of it. Found 100%, not 99, not 98, 100% of the families showed up for their hearings.

CUOMO: But the administration did something with that program.

MERKLEY: They trashed it. They trashed it. So, they had a program that kept families together. Treated them with respect until they got their asylum hearing. They trashed that and went to this deliberate infliction of harm on children.

CUOMO: And by doing that, they really set themselves up for this situation. I'm not saying set themselves up for failure, because I don't know that they see this as failure. That is a question for the other side. Senator Merkley ...

MERKLEY: Thank you.

CUOMO: Thank you for being with us. Look forward to talking to you in the days, weeks, and months ahead with this process. Thank you.

All right, so if confirmed, Judge Kavanaugh, what would he do with Roe v. Wade? I referred you to a speech, we are going to go a little bit deeper into it. I know I said it was homework, but we're going to give you a break tonight and do your homework for you. We are going to show you what he said about the law and we have tapes.

We also have a member of a group that is pouring lots of money into the effort to get this nomination through, and a man who says Kavanaugh's selection poses a giant conflict of interest. You know what that makes for, a great debate. Next.

[00:15:16 ]

All right, so the legal spin is going full speed, it started even before we knew that Judge Brett Kavanaugh was going to be President Trump's nominee. Still, there is a lot to get through. You've got the process, you've got the cases that Kavanaugh has given us to look at, and we've got the concerns on both sides. So, what do you say? Let's get after it with Carrie Severino and Norm Eisen, a little episode of "Cuomo's Court." Good to have you both. So, let's starty with why you like Kavanaugh as the pick?

CARRIE SEVERINO, CHIEF COUNSEL AND POLICY DIRECTOR, JUDICIAL CRISIS NETWORK: I think he's one of the most experienced judges on this list, and someone who is widely recognized as an expert, particularly on crucial issues of the constitutional limits on government, separation of powers, the classes he taught at Harvard and Yale, and Georgetown - all of these topics, and all those issues that come through the DC Circuit where he sat.

Major administrative law issues, major broad constitutional questions. He has a record of almost 300 cases he's decided. So, I think if there is anyone we have a real clear sense of what the judicial philosophy is, it's Brett Kavanaugh and it's a very solid record.

CUOMO: Counselor, from what you know, what do you not like?

NORMAN EISEN, CONTRIBUTOR, CNN: Well, Chris, the decisions on Presidential power concerning confining the reasonable balance to the administration state to respect working people, questions about abortion, about healthcare. But the biggest issue, we're facing an unprecedented conflict of interest in American history because you have a President who has been named, named a subject in a criminal investigation. Those around him with guilty pleas under investigation, and he's naming the judge who could decide - be the deciding vote on many of those legal issues. That ...

CUOMO: Wait, so your argument is ...

EISEN: ... conflict of interest.

CUOMO: So, you are arguing against this specific nominee or any nominee? Are you saying that he shouldn't pick a judge right now?

EISEN: Both, Chris. One is - I'm not saying he shouldn't pick a judge.

CUOMO: So, it's not both. Be very clear in "Cuomo's Court." All right, thank you very much.

EISEN: I'm going to be very clear, Your Honor, number one I think there is a conflict of interest presented for any judge under circumstances, but what that means is, that whoever the justice nominee is, he needs to answer questions that they don't normally want to answer, he needs to agree to recuse and if he won't answer, I don't think he should be confirmed.

But this judge, Judge Kavanaugh, he's a good man, but he is way outside of the mainstream. He has extreme views on Presidential power that a President shouldn't be subject to criminal prosecution. He questions existing Supreme Court case law.

CUOMO: All right, so let's deal with that. Let's deal with that specifically. Took him a while to get to it. But that is what he's talking about. In 2009, we are not talking about a judicial system, I saw a lot on Twitter about he decided that a President can't be subpoenaed - none of that is true. He wrote an article for law review in 2009 where he said he doesn't believe a President should be bothered with any type of legal process during their tenure.

He says, if you have a problem with him, Congress should impeach. Are you okay with that position?

SEVERINO: Look, this is something that if he's sitting on the court, he is going to reexamine that based on all of the arguments brought before him at the time.


CUOMO: How do you know?

SEVERINO: Because this is what any judge does, even if it's something they have written on before. They are going to consider that based on the literally thousands of pages that are going to be presented to them in that case. I think the idea that the President couldn't appoint someone or that they couldn't sit on the case, look, the remedy for that, if it were a real issue would be recusal.

But we had Justice Breyer who was nominated by President Clinton, and then sat on the Clinton versus Jones case, and ruled on that case, which actually ended up being unanimous. There is the concept that he would have to recuse simply by having been put on the court by this President is simply without precedent in our history. We have seen, again, that this happened many ...

CUOMO: But there, you've got different facts here. You have different facts here where you would have Mueller, let's just say the most reasonable hypothetical, and please, tell me if you differ. Is Mueller says, "I need you to testify."


CUOMO: President says no. He says, "Well, then I'm going to have to subpoena you. I am going to have to compel you to testify." They are going to say, "We don't think you can subpoena us." That will probably be fast tracked for a writ of certiorari to get reviewed as a de novo question for the Supreme Court. Now you've got a guy sitting on the court who has written, and maybe the only one who has written anything that I know of specifically on the issue who sides with the President going into it, how do you feel about that as a conflict?

SEVERINO: I think there is - the fact that someone has written on a topic does not make it a conflict of interest. We have a lot of justices on the Supreme Court who have written about cases. It doesn't mean they don't get to decide a similar case because we know some of their thought processes going into it.

CUOMO: Eisen ...

EISEN: Carrie, here's what different. We've never had a President who has been named as subject in a criminal investigation who has the people around him guilty pleas under investigation, he's talking about self pardons, subpoenas. We've never had a President in that situation name a Supreme Court Justice who could ...

SEVERINO: President Clinton.

EISEN: No. President Clinton was not a named subject in a criminal investigation at the time. Bob Mueller has said, "President Trump, you are a subject." That means the investigation is speeding down on Trump. He's picking a judge in his own case. It's forum shopping. It's judge shopping. It is an unprecedented situation. It calls for an unprecedented remedy. Number one, contrary to the usual mumbo jumbo, and particularly here where we have these extreme 2009 views, he disagrees with the unanimous Clinton v. Jones court. Where you have these extreme views, he must answer the questions, Judge Cuomo. He must answer the questions.

CUOMO: Well, except, they don't have to in this process. EISEN: Number two, that brings us to number two, if they won't answer

the questions, Carrie said, conflict recused, simply say, "I don't want to answer those questions. I'll agree to recuse."

CUOMO: He's not going to agree to recuse.

EISEN: If he doesn't do that, he shouldn't be considered.

SEVERINO: He simply can't answer the questions. Especially ...

CUOMO: Well, they can. They just don't. Ever since Bork, they don't. They could. They could be completely candid, they just choose not to.

SEVERINO: That doesn't happen in the position of Justices from Ginsburg on for sure.

CUOMO: True.

SEVERINO: They said, "Look, as a legal ethics thing, I cannot prejudge a case. I may think I know where it might go, but I can't prejudge it."

CUOMO: Right.

EISEN: But he has prejudged it in 2009, this is different. It's answering about his writings.

SEVERINO: Look, the fact that - he can speak about his writings, but that doesn't actually determine what he's going to do in a case before him. All of that aside, look, you say this is - he is the lone justice who would believe that way, then what are you worried about? It will be an 8-1 decision and I think that will solve itself.

CUOMO: What may be difficult for you in reconciling this as an advocate of his, will be this is so different than his posture back in '98 when he was working for Ken Starr - is that he was such a bulldog on the most tawdry types of invasion into a President's life legally during his tenure, and then for him to write in 2009, he doesn't think that Clinton should have been exposed to that. What does that tell you about the man? If he was so willing to do something so whole heartedly that he thinks is wrong, what does that tell you about him?

SEVERINO: I don't think there's a necessary conflict there. I also - we don't know in terms of the internal role of crafting the things coming out of the ...

CUOMO: You see the questions that he wrote up for Bill Clinton? Did you see those questions, Carrie that he wrote up for him? I wouldn't even talk like that in a locker room as we've learned as now some type of parallel, you know, some parallel rules for parlance with men. He wrote some of the most tawdry, ugly kinds of questions to form perjury traps which I'm not saying were a part of his job. Lawyers sometime do dirty work, but for him to now say a President shouldn't be exposed to any of that is a hypocrisy there, is there not? SEVERINO: Look, I think - again, if this issue comes before the

court, there will be the opportunity for recusal motions, absolutely. But the question here, and today is, is this someone who is going to be confirmed to the Supreme Court? That is an entirely separate question. And he's not going to be able to comment on what he would do in this specific case because no judge can comment on that.

CUOMO: Well, they can, but they don't. I'll give you that. He will not comment on a specific case of controversy. We know that because that has become the established tradition, and we never get around to changing the process, because it always plays to the side of the benefit of those in power, and they don't want to stop that. Norm?

EISEN: We've never had a circumstance like this one, Chris. We haven't had a President, Carrie, who has been in this situation. We haven't had a President whose lawyers have taken these extreme and bizarre positions that we know ...

CUOMO: But what's the remedy here? He's not going to recuse himself. He won't answer the questions. Now what?

EISEN: ... remedy. I don't agree with Carrie that the recusal motion should come later. Unprecedented circumstances call for unprecedented remedies.

CUOMO: So, how does it work?

EISEN: So, he must answer questions in the Senate.

CUOMO: So, he answers but not to your satisfaction.

EISEN: If he doesn't answer to my satisfaction, I would demand and I hope the senators will demand that he recuse and if he does not recuse, then he should agree for the nomination to wait, if it doesn't wait, this Supreme Court, which already has a black mark next to it, it already has an asterisk ...


EISEN: ... about Merrick Garland ...

SEVERINO: I didn't know that one ...

EISEN: No, not because it was an unconstitutional improper act by the Senate Majority Leader, it was wrong. It already has one strike, this will be a second strike on the Supreme Court. And you know, when we are in court, Chris, we can't argue directly to opposing counsel. So, I'll say through the judge, I implore that as part of making the Garland debacle - the atrocity right, let this nominee, let's all agree, he should answer these questions or if he doesn't want to answer, he should recuse.

CUOMO: But look - and the reason why in court, Carrie and Norm, first of all, thank you for a spirited debate - is not to each other, it's because it's for the benefit of the jury. And this is going to be for the senators. It's going to be about how they decide to do their job and elections have consequences. That is why this President is getting to pick these judges and they will be measured by what they do in this process as well.

I appreciate you giving your take in the advocacy. Thank you very much. Norm, as always best hair in the business. My next guest has been tweeting up a storm tonight about the President's Supreme Court pick. Hillary Clinton's former spokesman Brian Fallon calls Brett Kavanaugh, a wolf in wolf's clothing. And he don't mean Blitzer. Here's here with the stop Kavanaugh mission. Next.


CUOMO: We don't know about the ultimate impact of President Trump's words or any of his policies, but he is putting now two judges on the Supreme Court will cement his place in history. And this time with Brett Kavanaugh, he chose a man that went after Bill Clinton with unique zeal as a pit bull for Ken Starr as the special prosecutor. One thing is clear, Brett Kavanaugh would not have been a pick for Hillary Rodham Clinton had she become President.

So, let's get the take on the choice from the man who was Clinton's National Press Secretary during the 2016 campaign, Brian Fallon. Good to see you, sir.


CUOMO: Brett Kavanaugh, biggest concern?

FALLON: Actually, this is somebody that presents a lot of fertile territory in terms of lines of criticism. There were a lot of people on this list that we know would have had the same positions on issues as Brett Kavanaugh, would have ruled the same way on a lot of core issues, but don't have the track record, don't have the cases that would sort of evidence their position on those issues.

Brett Kavanaugh is an open book. We want to talk about key issues like abortion, and the Affordable Care Act. He's very explicit on those two issues. He thinks that he's gone out and praise the dissent in the Roe case, we know his hostility to Roe. That's Susan Collins standard that she's going to use. If he doesn't meet that standard, if she's true to that standard that she articulated last weekend.

On ACA, he gave a whole speech blasting John Roberts for the rationale he used to uphold the law. And on top of that, we know that Brett Kavanaugh believes that it's unconstitutional to try to ban assault weapons. We know that he's against the Consumer Protection Bureau. We know he's against the Obama Net Neutrality Policy. Take your pick and that doesn't even get into the issue, you were just debating with your last panel with Norm Eisen about his views on the executive power and the belief that the President cannot be indicted while he's in office and that he should be able to fire a special investigator at any moment for any reason.

There is like almost an embarrassment of riches when it comes to opposing this guy. That's why I think that if Democrats were forlorn prior to today and thought that there was nothing we could do because we didn't have the majority in the Senate, I think tomorrow they need to wake up with a sense of fervor. There is a real opportunity to defeat this nominee. We can unite our caucus, pick your reason, we can unite our 49 Democrats in opposition to Brett Kavanaugh and I think we have a good chance of peeling off one or two Republicans.

CUOMO: On the basis of what? Other than the speculation about Roe v. Wade and how that would go, and maybe letting a Murkowski or a Collins.

FALLON: Those are two big issues, and he's outspoken on them. The two most outspoken people on the issue of abortion are Brett Kavanaugh and Amy Coney Barrett.

CUOMO: What do you think his position is?

FALLON: If he had picked Thomas Hardeman - if he had picked Ray Kethledge, these are people that I know, I assume the Federalist Society has vetted them for a reason, because they would have been loyal anti-Roe votes. But they didn't necessarily have the record in their cases to prove it. Brett Kavanaugh does.

He ruled just last year to try to help the Trump administration block an immigrant woman that was trying to exercise her right to an abortion. They tried to keep her in custody and not allow her to go pursue an abortion. That's in addition to the speech that he gave where he singled out then Justice Rehnquist for his dissent in the Roe case.

CUOMO: I think that it depends how you look at the - I hear what you're saying about the Garza case, and I'll talk to you about that, and ordinarily we stay out of the weeds, but now all we have got is the weeds because you've got to look at what you have here. Who knows what questions he's going to answer. The process is totally corrupt as far as I'm concerned, left and right. When your side gets their people up there, they ask them the same banal questions and all the Democrats will say how great this man or woman is.

FALLON: The process is a joke.

CUOMO: Yes - go after him, and nobody answers any questions. But you all keep it, not you, you're not in Congress, but they keep that process because it works to when you are in power and they preserve it for that. However, let's get back to what we are talking about. So here is what he said in the American Enterprise Institute speech, it's on Page 15, if you want to take a look at it on line.

He's talking about Rehnquist's dissent, and this is what he said. "Rehnquist was not ..." no, he doesn't say he was right, but he is featuring it as a decision and he says, his dissent was based on to justify an unenumerated rest in the Constitution, you have to show that it is rooted in the traditions and conscience of our people, and it wasn't then Rehnquist reasoned, so he couldn't get behind Roe v. Wade.

However, if that is what he's so impressed by, you've got 45 years since then where it's been accepted. You have over 60% of men and women in this country who say Roe v. Wade is good law. If this is what his basis is of rewarding Rehnquist, how does he go against Roe v. Wade when it would pass his own standard.

FALLON: That is a fair question ...

CUOMO: I'm saying, does it allay your fears.

FALLON: No, it does not. He praises Justice Rehnquist for stemming the tide against this flow of unenumerated rights. This is basically the sort of whole rationale for the Federalist Society even existing. It basically - this whole conservative movement of which it is now sort of having its climax moment here, where it could retake the court and swing the balance to the far right for a generation, it all grew up out of ...

[00:35:16 ]

FALLON: ... their resistance to the Warren court era when they believed that there was sort of all of these efforts to desegregate schools, creating women's rights and Griswold and Roe...

CUOMO: Loving versus Virginia.


FALLON: For him to single this out, it's a wink, wink, and by the way the timing of it came, I think just a couple of months before he was added to the short list. Brett Kavanaugh was not on the original short list that Donald Trump issued in 2016. These guys on the short list including Brett Kavanaugh were openly auditioning, giving speeches on purpose, sending signals to try get the Federalist Society's attention to get on this list. And in many ways, I think that the Federalist Society is now a victim of its own success.

You heard Carrie Severino from the Judicial Crisis Network in the last segment just trying to argue that, "Oh, Judge Kavanaugh's writings on Presidential authority and whether the President can be indicted don't tell you anything about how he would rule if there is a showdown with Mueller." That is ridiculous. It's all written there in plain English for anyone to read and parse and understand. The public will understand it. He'll be asked those questions in a hearing.

And the Federalist Society is telling us to don't believe our eyes in terms of what we are reading about what Judge Kavanaugh has wrote. The Federalist Society is a victim of its own success. They've created a whole system where they want the people that are the surest things. Brett Kavanaugh for them is the surest thing because he's got such a body of work. He's had to rule on all of the issues they care about, so they know he's going to be a sure thing when these issues come back before him before the Supreme Court.

But now, they have to defend these unpopular stances he's taken in his last few years as a Judge in this confirmation setting and that's a sort of an uncomfortable situation for them. Two other issues that could be wild cards in this confirmation, number one, his work - there is a lot of papers related to his work on the Starr committee that have not been out yet. There is going to be a big effort to try to get the National Archives to release all those documents. They are going to have to go through them, peruse them, see what has to be redacted and then his e-mails from the time in the Bush White House.

When it was Elena Kagan that was put forward, I think there was 170,000 some pages that required 6,000 man hours to go through all of that. So, Mitch McConnell himself indicated in a leaked story that came out in the "New York Times" that he was privately urging the Trump White House to look away from Brett Kavanaugh because he worried that the document production alone with would delay a hearing and potentially throw the schedule off.

CUOMO: But Grassley is in charge of what they are allowed to do and how long they can take.

FALLON: But Grassley has been as aggressive as anybody in forcing past nominees to produce everything. So, he would be a hypocrite now if he didn't insist on the same standard for Kavanaugh. One other thing that I think is going to be relevant, one of Brett Kavanaugh's mentors in life and in his career as a judge is a guy by the name of Alex Kozinski who is a judge on the Ninth Circuit who had to resign in disgrace last year because of the #MeToo Movement.

He was accused publicly on the record by a number of female clerks for having behaved inappropriately in chambers, and he had to resign in disgrace. Brett Kavanaugh is somebody that is friends and was a mentor and personally clerked for Alex Kozinski. I think there's going to be a lot of senators in this hearing that want to know what he knew and when he knew it about Alex Kozinski's behavior.

CUOMO: What he knew if it were happening when he was there, fair line of questioning, him being responsible for somebody else's actions, not fair.

FALLON: Not only was he a clerk for Alex Kozinski, I think in 1990, but Brett Kavanaugh was who was considered in the judicial world as a feeder judge for Anthony Kennedy, who he clerked for in the Supreme Court, as is Kozinski. And oftentimes, Kavanaugh would interview prospective clerks that Anthony Kennedy might have clerked for him on the Supreme Court. And Kozinski would send a lot of clerks to Brett Kavanaugh to interview for clerkships with Anthony Kennedy.

So, the likelihood that Brett Kavanaugh knew what was an open secret in the Ninth Circuit about Alex Kozinski's misbehavior is very high. I think he's going to have to answer questions about that.

CUOMO: I agree there are legitimate questions, but we cannot impugn Kavanaugh with what Kozinski did unless we have knowledge of fact of what he knew at the time.

FALLON: We will only know that if we ask the questions.

CUOMO: But we'll see. The questions have to be asked, but you've got to give him the benefit of the doubt until he answers them. All right, Brian Fallon, thank you very much. I appreciate it. So Brett Kavanaugh's confirmation is not the only battle that Trump is

fighting. He's got a big immigration war on his hands because separated families are being kept apart by his administration in defiance of a court deadline that will come and go in hours. What are they doing about it? There is lots for John Fredericks and Karine Jean-Pierre to take on in a great debate. Next.


CUOMO: All right, kids have been taken from their parents. Overwhelmingly, the American people say this is wrong. The President agreed. He backed off, which we almost never see him do. He put out an executive order that wasn't worth the paper it was written on and the situation has stayed the same, and in some ways, it is worse. Why? Let's bring in people to debate this right now. We have John Fredericks, and Karine Jean-Pierre is here. It's very good. That is the best French I speak by the way.

All right, so first of all, John, do you disagree with anything I just said? What they did was found wrong by the American people, the President backed off, he promised to make it better and it hasn't happened. All facts?

JOHN FREDERICKS, RADIO TALK SHOW HOST : No, he's making it better now. The majority of the infants have been reunited with their parents and that continues to happen.

CUOMO: Not true.

FREDERICKS: They tried very hard to meet the two-week deadline. They have already reunited a hundred of them. But the program was made, Chris, to be a deterrent. They've had to fix it, but the (inaudible) ...


CUOMO: So you admit - hold on, John, John ...

FREDERICKS: ... of illegals that have over at the border have gone down 20%. That was the objective of it.

CUOMO: John.


CUOMO: Hold on. So you admit that the reason that the President separated kids from their parents was to have a message of deterrence?

FREDERICKS: Of course it was for deterrence, Chris because catch and release is basically calling for open borders of the United States.

CUOMO: The President disagrees with you. Jeff Sessions disagrees with you.

FREDERICKS: I'm telling you - the process was designed as a deterrent. And basically what the administration says is ... CUOMO: That's not what they said.

FREDERICKS: No tolerance. If you come over the border illegally ...

CUOMO: That is what they said - all right, let me bring you Karine.

FREDERICKS: ... you're going to get apprehended. And the way the laws work in the United States is, if you get apprehended and you are arrested with your minor children in tow ...


FREDERICKS: ... they take the children.

CUOMO: I get it.

FREDERICKS: That is how it's happening right now in Manhattan, right now in your hometown.

CUOMO: No, not in Manhattan. No, no. Because if they are going to arrest ...

FREDERICKS: That's happens everywhere ...


CUOMO: If they are going to arrest you for a simple misdemeanor, they are not going to take your kids, all right, it's happening here, they are treating it like a major crime, but you just said something that's much more important. Karine. I finally heard a Republican say the truth, that they are taking these kids away from their parents to send a message of deterrence. That that harshness is the intention. It's not just about prosecuting the law as it is written. What do you think of that?

KARINE JEAN-PIERRE, HAITIAN-AMERICAN POLITICAL CAMPAIGN ORGANIZER, ACTIVIST, POLITICAL COMMENTATOR: I think it's shocking to hear, but it's absolutely true. And the way they were able to do that, Chris, was by dehumanizing a group of people. By the President calling them animals or infestations, that is what you do when you want to dehumanize a group of people is that you do these things and then you can do whatever you want to them, which is absolutely abhorrent and immoral, and it set us into a humanitarian crisis what they've done.

They haven't unified hardly any of the children. There is more than 90% of them who are still somewhere around the country ...

CUOMO: That is true.

JEAN-PIERRE: We don't really know where, and they haven't even reunified. Tomorrow, the deadline was to reunify the tender aged kids, under five years old, 101 of them. We found out last week that 38 of them had parents, 19 of them had been deported. The other 19 did - the administration doesn't know where they are, because they were released and didn't keep track of them. Look, When I get a UPS package, I could track that package down to the

minute. You've got a tracking number and they cannot tell us where they - these kids are, that they ripped away from their parents.

CUOMO: But that's because the point of the process with the package is for you to know where it is and for it to have timely differ delivery. John, you were saying earlier, that's not the point here. They don't want an efficient process of knowing where these kids are, an efficient reunification, that would spoil the message, wouldn't it? That would take away the deterrence. That wouldn't scare people as much. That's why they don't have a process.

FREDERICKS: You can't - Chris, you can't confuse incompetence with an act of wrongdoing, all right? Taking children and flying them a thousand miles away was simply an incompetent act because they captured so many people they didn't realize the number they would have and they didn't have the facilities set up, and they had to separate them just like they do again when somebody is arrested tonight in Brooklyn for shoplifting if they have their children, and they are handcuffed, the children are taken away. They are not taken with them to jail, Chris.

CUOMO: That's not true. I know for a fact that's not true.

FREDERICKS: ... they're not taken with them to jail. They are taken with them to jail.

CUOMO: They look for next of kin. They see who else is in the household, they see how long they are going to hold the person. Sometimes, they just take a ticket for a misdemeanor like shoplifting.

FREDERICKS: If there is no one there, they get taken into Child Services.

CUOMO: And you know what? And if they do, they know where the kid is, John. If a kid gets put into the system, you know where they are. But here you don't. I wonder why.

FREDERICKS: That is incompetence.

CUOMO: Why is it incompetence? Why isn't it just them not giving a damn about where the kids go? Because they want it to be a message of deterrence.

FREDERICKS: I don't think that is it.

CUOMO: Which is exactly what you said ...

FREDERICKS: No, the original intent of zero-tolerance was to stop illegals from coming over the border.

CUOMO: You said it was to send a message of deterrence, it's a very different mission.

FREDERICKS: If you come over the border illegally, you are going to be arrested, that is a deterrence, if your children are with you, they can't go with you to jail. That is the way the US system works. As a result of that, illegal crossings were down 20% in June. That is the objective of it.

JEAN-PIERRE: They have no plan - no plan to reunify these kids with their parents. And that's the sad part about this. That is what makes this so morally bankrupt.

CUOMO: We'll see what happens when they miss the deadline, see what happens next. John Fredericks, thank you very much for making the case. Karine Jean-Pierre, always a pleasure. Appreciate it.


FREDERICKS: Thank you, Chris.

CUOMO: Big story, can't give it short shrift, rescuers in Thailand are racing to free the last four boys and their coach trapped in a flooded cave, just in the last hour, new information on the kids that have made it out. We're live in Thailand, there is a monsoon watch. Next.


CUOMO: Breaking news tonight from Thailand. A Thai Navy official telling CNN the rescue operation has resumed. Four kids and one adult are still in that underground cave. But right now, there is heavy rain rolling in. We keep reminding this is monsoon season, and the amount of water and mud that can fill up in the cave very quickly is a scary prospect.

David McKenzie is in Thailand with the new details. Good morning, Dave, thanks for being there. What do we know?

DAVID MCKENZIE, CORRESPONDENT, CNN: Chris, what we know is that those teams are in the cave system in the mountain behind me, but as you can see, the rain is falling down on my head and that's a worrying sign. Now, the next step will be to see if those elite divers, a team of about 18 or so can get the next boys out, and then the coach. The world is being riveted by this story.

The good news is the eight boys that have come out are in good spirits. They asked if they could have chocolate in the hospital. They had to actually get the doctors to cut off the chocolate supply because they are still not ready to take on proper food, but it shows you how successful these rescuers have been in getting these boys out, Chris.

CUOMO: What a story it would be to tell about how they made it for so long in the cave and now, how they are going to be able to get out there. The big concern is obviously time. Because that rain can go from what it is now to wind whipped, funneling of thousands of gallons down into that cave. What do they see in terms of time?

MCKENZIE: The time window is shutting. Certainly, Chris, overnight we were here, the rain came pouring down, bucketing down and in that mountain, it's a catchment area. [00:55:15]

MCKENZIE: ... so as you say, the water can stream in to that cave faster than the water that they are pumping out of the cave and if that happens, it could complicate the divers rescue mission because the flow of the water will be stronger. The water will be at higher levels. We believe that if they can work quickly, this is the best time they have to get them out before the rains really set in, Chris.

CUOMO: All right, David McKenzie, obviously time is of the essence. But God forbid. they're in there and something goes wrong, so they have a lot to balance in terms of competing interest. Thank you very much.

All right, that's all for us tonight. Thank you for watching. "CNN Tonight with Don Lemon" is right up.