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Don Lemon Tonight

Kavanaugh Vote Set for Tomorrow Morning Just Hours after Hearing; Kavanaugh Refuses Dems' Request to Ask for FBI Probe; Mark Judge Sends New Letter to Judiciary Committee; Brett Kavanaugh and Christine Ford Face Senate Panel; Kavanaugh Vote Set for Tomorrow Morning, just Hours after Hearing; American Bar Association Urges Delay on Kavanaugh Vote. Aired 11p-12a ET

Aired September 27, 2018 - 23:00   ET

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

[23:00:00] (COMMERCIAL BREAK)

DON LEMON, CNN HOST: This is CNN TONIGHT. I'm Don Lemon, 11:00 p.m. live for you with new developments. We're in Washington tonight by the way. A vote on Judge Brett Kavanaugh's nomination to the Supreme Court just hours away. And Senior Republicans are scrambling for every single vote. The Senate judiciary committee is set to meet -- as scheduled I should say at 9:30 in the morning in the wake of a hearing today that was like nothing we have ever seen before.

Christine Blasey Ford and Judge Brett Kavanaugh telling their stories in their own words. But those stories don't agree. And Senators and Americans are going to have to decide who they believe after a day of really wrenching testimony. I've got a whole bunch of folks here with me to discuss this. This is my A team at 11:00, Carl Bernstein is here, Susan Glasser, Chris Cillizza, Jack Quinn, Alice Stewart and Tara Setmayer. Let's listen in today.

(BEGIN VIDEO CLIP)

CHRISTINE FORD, KAVANAUGH'S ACCUSER: One evening that summer after a day of diving at the club, I attended a small gathering at a house in the Bethesda area. There were four boys, I remember specifically being at the house. Brett Kavanaugh, Mark Judge, a boy named P.J., and one other boy whose name I cannot recall. I also remember my friend Leyland attending.

BRETT KAVANAUGH, NOMINATED AS UNITED STATES SUPREME COURT: Less than two weeks ago, Dr. Ford publicly accused me of committing wrongdoing at an event more than 36 years ago. When we were both in high school. I denied the allegation immediately, categorically, and unequivocally.

FORD: I don't have all the answers and I don't remember as much as I would like to, but the details that -- about that night that bring me here today are the ones I will never forget. They have been seared into my memory and have haunted me episodically as an adult.

KAVANAUGH: I'm here today to tell the truth. I've never sexually assaulted anyone. Not in high school, not in college, not ever.

FORD: I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled hoping that someone downstairs might hear me. And I tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes.

KAVANAUGH: Dr. Ford's allegation stems from a party that she alleges occurred during the summer of 1982. 36 years ago. I was 17 years old. Between my Jr. and Senior years of high school at Georgetown Prep. A rigorous all boys catholic Jesuit High School in Rockville, Maryland.

FORD: Apart from the assault itself, these past couple of weeks have been the hardest of my life. I've had to relive this trauma in front of the world. And I've seen my life picked apart by people on television, on Twitter, other social media, other media and in this body who have never met me or spoken with me.

KAVANAUGH: When I accepted the President's nomination, Ashleigh and I knew this process would be challenging. We never expected that it would devolve into this.

UNIDENTIFIED MALE: Dr. Ford, with what degree of certainty do you believe Brett Kavanaugh assaulted you?

FORD: 100 percent.

UNIDENTIFIED MALE: None of these allegations are true.

KAVANAUGH: Correct.

UNIDENTIFIED MALE: No doubt in your mind?

KAVANAUGH: Zero. I'm 100 percent certain.

(END VIDEO CLIP)

LEMON: What a day. That was obviously just a small portion of it. Good evening everyone, thank you so much for joining us. So let us -- I want a really honest heartfelt conversation today. Not that we don't usually do that, but I think this is very important for the country. What did we witness today? Where are we now, Chris?

CHRIS CILLIZZA, CNN CORRESPONDENT: What's hard, what I found hard, I drove home and then I came back here? As I was driving home I listened to the end of the hearings and then just turned off the radio, because I spent whatever nine hours with it. And I thought to myself, golly, at the end of this, what we know is that -- what we know for certain two people's lives have been inalterably changed in ways that I think are -- make their lives more difficult.

[23:05:02] Christine Blasey Ford, you can argue this has been true for the last 30 plus years.

LEMON: You are reading my mind.

CILLIZZA: Brett Kavanaugh certainly since this came out, it's been 11 days. Regardless, two lives changed in ways that are negative, two people who clearly believe they are telling the truth here. You can say what you want about his anger. I thought it was a little off putting, but it seemed to me genuine and I thought she was quite genuine.

So at the end of it, you have -- it's wrenching, it's candidly hard to watch and probably easier for me to watch than people -- I'm not someone who's ever been in a situation like the one Christine Blasey Ford is alleging, but difficult for me to watch, emotionally difficult and at the end, I don't know what's been gained or lost. And I include to whether he makes -- whether Brett Kavanaugh gets on the Supreme Court or not, I feel like what you are watching was sort of the Brett Kavanaugh said you have destroyed my life. You've destroyed my family.

Now, Christine Blasey Ford did not say those words, but it is hard to imagine, she talked about secure locations she had to go to, security guards. She talked about -- forget the last month, she talked about her last three decades that needing two exits in places, claustrophobia, and the anxiety. I hate to say it, it just made me sad. And I'm not sure that means I learned anything or tells us anything about the vote tomorrow. We can get into that. But that is the thing I was left with. I felt exhausted, all I did was watch it.

LEMON: What are you hearing speaking of the vote Susan, tomorrow? Your Republican sources?

SUSAN GLASSER, CNN GLOBAL AFFAIRS ANALYST: Well, on Capitol Hill, right, process often dictates outcome. And the process today was set up to produce exactly the outcome that Chris just described which is a he said, she said situation that is essentially unresolvable. We of course, we didn't learn anything more because there was no investigation, there were no other witnesses. There was no FBI as we know and heard over and over and over again. You know, there were 22 witnesses in the Anita Hill, Clarence Thomas hearings 27 years ago. Several days of testimony. There were one five-minute round of questioning that each Senator was allowed of both witnesses today.

So, you know, truth was not really the outcome of today's hearing. It wasn't the goal of today's hearing and it certainly wasn't the outcome. And given that, I think politically speaking we're largely at the end of the day where we were at the beginning of the day. So we've all gone through this sort of national wrenching trauma in a way and obviously, that trauma means different things to different members of different political tribes in our country, but more or less everybody can agree that it was a wrenching day.

LEMON: You said at the end what I was going to say. I think politically maybe we're not -- we haven't moved the needle was not moved, but I think is I know personally I'm different after listening to her and listening to him especially growing up. I'm the same age. I graduated high school in 1984. I know those characters. You know and I could see her part of her story, I could see part of his story. And I can relate to her story being a survivor. I can relate to his story, because I grew up in the time that he grew up with a lot of those people who were privilege in the summer, all they did was boat and they played tennis all the time and they belonged to clubs. None of which I had the privilege of doing, but I can relate to it, but I feel that I'm altered and she broke the dam. Carl, go ahead.

CARL BERNSTEIN, CNN POLITICAL COMMENTATOR: I feel mournful after watching this spectacle today for the country. In a way that I seldom if ever have. And you know, we're in a cold civil war and today we watched Gettysburg of the cold civil war. It's liable to get hotter. And truth is the first casualty in war.

And in this instance, we have a clear avenue to learning more of the truth. An FBI investigation, which Kavanaugh would not even answer a question about, she was open in every regard to an open investigation to being questioned by anyone, not him, not those 12 Republican Senators who want nothing to do with an open inquiry into the truth. And furthermore, what we watched today, it's like the Mueller investigation. There's a parallel between the two unfortunately between what the Republican Party is doing here. Shutting down avenues of legitimate investigation.

Instead of trying to be open to a fact-based debate. Instead of trying to find out the facts whether it is Mueller or whether in this situation with a great witness, you have other witness who are so obvious to call in these investigation, not just Mark Judge, but those who witnessed Kavanaugh's drinking, they haven't been called in.

[23:10:10] The whole possibility, maybe he is a blackout drinker. That needs to be explored, because that could conceivably explain let me finish this one point. It could conceivably explain his certainty that he didn't do it.

LEMON: But also I think the bigger point is that he could be innocent.

BERNSTEIN: That is the point. That is exactly.

LEMON: Then a thorough investigation will vindicate him. His life will not be ruined. He will be vindicated.

BERNSTEIN: He should welcome the Russia investigation.

ALICE STEWART, CNN POLITICAL COMMENTATOR: Going into today, like many people, I went in with an absolute complete open mind and after hearing her testimony, she came across as someone extremely credible. Extremely compelling, extremely intelligent. And I truly felt that she clearly went through a traumatic experience as a sexual assault victim. And she clearly in my view lives with the trauma of the unrelenting laughter of these men that did this to her and the image of her having, wanting two front doors to have another avenue for exit, that is the telltale signs of victims of such a traumatic experience from what I have understood knowing someone who has been in that situation.

I truly believe this happened to her. At the same time, I truly believe that Brett Kavanaugh believes without a doubt 100 percent he did not do this. He is a man of character and integrity. And when he says he was -- he was not at these parties and he didn't know her in that way and did not do that, I completely believe him. At the end of the day, we have no new evidence coming out of this as we did going into this. And with her stories there are no corroborating witnesses, we have no additional evidence. And you have to go the content of your character and your conviction on to which person you decide to side with.

LEMON: Listen, I respect who you saw. I didn't buy it.

TARA SETMAYER, CNN POLITICAL COMMENTATOR: That is not what I saw.

LEMON: That is not what I saw.

SETMAYER: Yes. That is not what I saw today.

LEMON: I did not buy it.

SETMAYER: And as a conservative woman who would like to see a conservative jurist on the Supreme Court, I saw an institution being sullied today with the politics of this. And for someone, there's absolutely no one any reasonable person that could have watched Dr. Ford's testimony today and believed that she was some pawn in a political operation that she made this up and somehow or that you know, she intended on using this weaponizing her experience to take down Brett Kavanaugh.

That is not -- there is absolutely no one in their right mind that could possibly believe that if you're honest looking at what happened today. Now, when I saw Brett Kavanaugh, and I saw someone that was out of control and that was a side of Brett Kavanaugh that I don't think a lot of people have seen publicly before. And it made me step back to the point where I went whoa, when I saw how aggressive he became, how indignant he became.

LEMON: What if a woman had done that? What do you think?

SETMAYER: There's a double standard on that. And we clearly saw the way that women are treated and survivors and how they're believed and not believed, there's a double standard in this country. And the way that the sexism that I saw by Republicans today was despicable. And the fact that they were so cowardice they had to outsource the questioning to a prosecutor who I thought was backfired on them.

But what I saw from Brett Kavanaugh today was very troubling. I heard someone in the last panel talk about judicial temperament. And I tweeted about that. This is the temperament of a guy we're supposed to believe was a choir boy in high school and wasn't capable of being an aggressive drunk.

SETMAYER: That is not what I saw today. And there were more people that came out, there was a guest on Chris Cuomo's show tonight that went to Yale with him and she said, I drank with Brett Kavanaugh. I saw him become drunk and out of control. I saw him and another classmate push into a room to ridicule a girl who was, you know, making out with a guy and laugh about it. So that was there. And we were disgusted by watching him lie about his character. So, he is capable of putting on that kind of show, what else is he capable of not being completely honest about? And I think that cannot be ignored. LEMON: The reason I say I didn't is because if I'm innocent and

someone said, would you like the FBI to bring in the FBI, bring in a grand jury, bring in the local police station, bring in whoever you want. I did not do this. And I want to be vindicated.

SETMAYER: Yes. That is the strongest point from today.

JACK QUINN, FORMER CLINTON WHITE HOUSE COUNSEL: Look, they were both emotional. And in some ways compelling, but there was nothing about her testimony that I found incredible or doubtful that made me think she might be tailoring her testimony. On the other hand, on multiple occasions, I thought Brett was enormously evasive.

[23:15:05] LEMON: Remember we're talking about performance here, not guilt or innocence.

QUINN: I'm just -- you draw your conclusion from my observation. But my observation was that he was remarkably evasive. Whether it was about whether he would commit to have an FBI investigation, to clear his name by the way. He was evasive about whether or not he would take a polygraph. He was evasive about things like well, and I think frankly, untruthful about certain things like the use of the girl's name in the yearbook, Renata. I think that story he told was not true.

LEMON: And some of the terms they used in the calendar, by the way.

QUINN: The devil's triangle thing. He knew damn well.

LEMON: It is not even tat, and the f, f, f, f, f, there is a meaning to that if you know. There's another meaning of the other thing.

(CROSSTALK)

STEWART: Let me say one other thing.

LEMON: Let him finish.

QUINN: All of that simply says to me that he went into this thing in part to do a performance.

SETMAYER: That was evident.

QUINN: She was genuine. He was doing a lot of performance work.

STEWART: Just really quick to back up --

LEMON: I've got to go, because.

SETMAYER: It's about the lie detector test. He said the lie detector tests, but really wick, he said that lie detector test aren't reliable. In a decision in 2010, he said that the government uses them as a good resource to judge credibility. So, which is it? When the fact meaning for him they are not, they are not credible?

LEMON: Did we hear from Mark Judge today?

SETMAYER: No.

UNIDENTIFIED FEMALE: No, we should have.

LEMON: OK. But we are going to hear from him. He has a new statement out right after the break.

[23:20:00] (COMMERCIAL BREAK)

LEMON: Back now with the experts. And as promised we're going to hear from Mark Judge. This is a new statement from him. OK? Here it says Dear Chairman Grassley and ranking member Feinstein, as I stated in my attorney that is what it says, as I stated in my attorney Barbara Van Gelder, September 18th, 2018 letter, I did not ask to be involved in this matter nor did anyone ask me to be involved. We have told the committee that I do not want to comment about these events publicly.

As a recovering alcoholic and a cancer survivor, I have struggled with my depression and anxiety, as a result I avoid public speaking. Brett Kavanaugh and I were friends in high school, but we have not spoken directly in seven years. I do not recall the events described by Dr. Ford in her testimony. In several years as you should say in my testimony before the U.S. Senate Judiciary Committee today. I never saw Brett act in a manner Dr. Ford describes. I am knowingly submitting this letter under penalty of felony. Sincerely yours Mark Judge and then it is witnesses by the attorneys there.

So that had been sort of the rumor that everyone was saying that he suffered and even Brett Kavanaugh today said that he became an alcoholic. He had problems. And he is an alcoholic.

SETMAYER: He has written about it.

LEMON: What do you think?

SETMAYER: He is very open about that.

CILLIZZA: I just think it is difficult and Carl touched on this earlier. I think you could call many more witnesses, but according to Christine Blasey Ford, there were three people in the room. OK? If you want to get to the bottom of it, all three of those people are alive on earth. Two of them were there today. The other one was in Delaware which is two and a half hours from here. It just even if you say we're not going to bring in all these other witnesses, it's going to be too complicated.

Why would you not have his perspective? They are clearly friends. Were friends when they were young. Christine Blasey Ford has identified him as someone in the room. She didn't say P.J. was in the room or this unnamed person. She said it was Mark Judge. So, even if it's Mark Judge, he can come and say under oath it wasn't me. I wasn't in the room. Again, this is to the point you made Don, like why would you not -- if.

LEMON: Listen, hold on, Tara.

CILLIZZA: You would want to take all these people who say, yes, is he right. This never happened.

LEMON: I have empathy for him being a recovering alcoholic. I get that. I have empathy for him being a cancer survivor. But when you're dealing with this issue.

CILLIZZA: I mean, it's a big deal.

LEMON: And have anxiety.

QUINN: Alcoholism is not an excuse not to submit not to respond to a lawful subpoena.

STEWART: Right. I've never heard of an investigation in which you can.

BERNSTEIN: Alcohol is at the root of what may have happened here. So we need an inquiry by the FBI that goes into the question of the drinking of both of these individuals. Kavanaugh and Judge. It's obviously relevant. What we saw today, let's just back up a minute. We saw a great act of citizenship by a brave woman. If it turns out that she made this up or she is lying, there are means through legitimate investigation or if somehow she was not accurate, there might be a way to find that out through adequate investigation. Just as there are ways -- she was open.

She said please, find out when he worked at the Village Safeway. Let's get that information and then we can date what period I'm talking about here. She was open to inquiry. She took a huge risk and showed up and told her story. Kavanaugh's active citizenship was to come into this hearing guns blazing and to accuse those on the other side of conducting a political witch hunt to say that there was about a vast left wing conspiracy and Clinton revenge and let me just finish this one point.

[23:25:01] To give this whole political speech and he is always been known as aggressive political operative when he worked in the White House and afterwards. And he is the one as a citizen and as a judge no less who knows how you can conduct an investigation to get to the bottom of this.

SETMAYER: Please, let me make this point please. This is why the Dick Durbin questioning was so compelling today and why Chuck Grassley felt the need to jump in and save Brett Kavanaugh.

LEMON: Lindsey Graham.

SETMAYER: No, this was the Dick Durbin --

LEMON: Oh, I got it.

SETMAYER: -- exchange with Brett Kavanaugh over why in the world would you not submit to just say? This B.S. line that the FBI doesn't investigate this or well, I'll do whatever the committee says, that was an evasive answer. If he would have said, listen, I may not control it. Just as the President has selected me I would ask that the President who has the power to ask for the FBI to reopen the investigation, I would ask the President to please do that. Let the FBI do whatever they need to do to clear my name, because I'm an innocent man. He never did that. And that is something that I think sticks with people. There's no explanation, no Republicans have given an explanation as to why would he not do that to clear his name.

STEWART: Clearly the President can make that decision. He clearly doesn't want to.

SETMAYER: If he asks for it, it gives credibility to him and puts the onus on the President.

LEMON: Alice, why won't he let it go?

STEWART: He is going to answer questions. He is willing to --

LEMON: He never said the FBI.

QUINN: He doesn't want it and the President doesn't want it and they have different reasons. The President wants to rush this through and get him on the Supreme Court. He doesn't want it. The only conclusion you can come to is that he is -- the only conclusion one can reasonably come to I submit is that when somebody is so resistant to letting the Federal Bureau of Investigation investigate that they don't want the facts to be out there.

STEWART: He has said from the beginning I want to answer questions. Let's do this now, as soon as we possibly can. He wanted to do when this first came to live, when it was first brought up in the newspaper. And everyone's criticizing his demeanor at the very beginning. He was angry (inaudible).

LEMON: Why didn't he answer the questions? If he wants to answer the questions --

STEWART: His character has been attacked.

LEMON: Alice, you sound like him now, but why didn't he answer the questions then?

SETMAYER: Yes. I'd like to --

LEMON: No. Ask him a question. Would you like the FBI to investigate?

LEMON: I did great in school. I went to an elite college. I did this. I was a model citizen. Why won't you let the FBI investigate? I sacrificed so much. I went to church every Sunday.

Why won't you let the FBI, why won't you, where is Mark Judge?

He submitted a letter. I was a great citizen. He never.

(CROSSTALK) That he was working out.

CILLIZZA: The argument against it Don, the argument against it to play devil's advocate why would he not answer is because they do not want this sitting out any long. They want the vote.

It doesn't necessarily mean that he thinks the FBI investigation would go somehow absolutely 100 percent convict him. They just -- he has spent this time, they know this is not good for them politically. There's a reason the vote is scheduled for tomorrow. They're going to do a --

BERNSTEIN: I'm not doing the right thing.

STEWART: Why this is up against the clock. We're going to vote tomorrow. Captain obvious here, Senator Feinstein had this for weeks and she could have done -- she could have had the FBI investigating this without the information.

(CROSSTALK)

I need to say something here.

Being off the record without people knowing.

Wait a minute. We have to be clear.

QUINN: One more reason because the President doesn't behave this way. He knows that the President would be furious if he agreed to an investigation.

GLASSER: They had a hearing that lasted for more than eight hours today. They've scheduled a vote for 9:30 tomorrow morning. OK? So this was not a process in which the people who held this hearing were interested in what happened in the hearing. OK. If you have an investigation if you're answering questions and you want people to absorb the information, there's not even time to produce a transcript that the Senators can read over before they vote on this.

LEMON: Hold on. Even Alan Dershowitz is out. A lot of people are saying what is Alan Dershowitz -- what is he doing? He is lost his mind. He says I'm supporting the constitution, I'm supporting the law. He is out with a new piece where he argues there needs to be a postponement, they need to postpone this vote and there needs to be an FBI investigation.

Let me read this. He said there should be an FBI investigation. Right now, there are too many unanswered questions to bring the confirmation of Kavanaugh to a vote of the judiciary committee as scheduled on Friday much less to a vote on the full Senate. If Kavanaugh actually did the things Ford alleges. Something he vehemently denied again Thursday, he might honestly not remember the events that Ford described especially if he was as drunk as she says he was, it is also possible that in one -- if one of them -- that one of them is deliberately lying right now, there is no way of knowing for certain which is why the FBI needs to talk to the judge's accusers and others.

SETMAYER: That's exactly right. You know what else? That the reason why they're pushing this through and how the way that Brett Kavanaugh responded to with all of the accomplishments and the way the Republicans responded back with such indignation, apologetic to him, it bothered me because Christine Ford's life is just as valuable and important as Brett Kavanaugh's.

Her life being destroyed and turned upside down and the trauma she experienced for 30 years is just as valid as Mr. Prep school privileged guy that went to Yale who is looking at a Supreme Court seat that he may lose, may not his lifelong dream. And it bothered me that they were not treated the same way.

It just felt as though that the Republican senators approached her as a nuisance and approached him as entitled to what he should have. That to me speaks to a larger problem in this country about the way that we treat sexual assault victims and the way we treat women. That's a larger problem we as a country need to face it.

LEMON: I want to get this in and then get your thoughts. It was Ford's congressman, Anna Eshoo, who encouraged her to write this letter to the ranking member of the Judiciary Committee, Senator Dianne Feinstein, a letter that became a major point of contention today and here's what Congressman Eshoo told me earlier tonight.

(BEGIN VIDEOTAPE)

REP. ANNA ESHOO (D), CALIFORNIA: Dr. Ford called my office. We set up an appointment. She met with me in my Palo Alto district office. We met for over a long period of time at least an hour and a half. I asked her many questions. The story that she shared with me back in July is what she communicated to the full Senate Judiciary Committee today.

And for senators to -- I know that we live in a politically managed system, but there's some wild assertions that are really not based in fact.

LEMON: So you're saying that the Republican -- you said the Republican senators are -- they have it wrong. You're saying because Senator Feinstein -- she addressed it. She said she didn't do it. She turned to her staff. They said they didn't do it. And your office --

ESHOO: That was regarding the charge that she leaked the letter. I know that Senator Feinstein did everything to protect my constituent's -- our constituent's privacy. That is paramount.

LEMON: And you didn't leak it?

ESHOO: Someone -- never, no. Not at all.

(END VIDEOTAPE)

LEMON: You want to respond? In the way that I frame the question as if she orchestrated this, she did not. Ford came forward first to her. Go on.

SETMAYER: Anonymous.

LEMON: Anonymous.

QUINN: This is frankly infuriating0. This woman says she was attacked, the victim of a sexual -- a heinous crime, a sexual assault. And --

LEMON: They're arguing about who came forward.

QUINN: And the Republican argument here is, well, Senator Feinstein didn't handle this properly.

UNIDENTIFIED FEMALE: Even if you gave them that --

QUINN: We need to get to the truth of the matter. And the matter is not how Senator Feinstein handled this. The matter is whether A, her story about being sexually attacked by a nominee is true or not. And B, whether or not in his testimony he was truthful or whether on the other hand, he misled the committee and perhaps perjured himself.

SETMAYER: But it gave an opening to the Republicans to focus on Feinstein and timing. That's all they focused on which took it away. Dr. Ford's allegation and her experience shouldn't have -- got caught up in the political malpractice if you want to call it by the Democrats because of the timing. But that shouldn't diminish what she went through. But that's all they focused on today. That's all they had.

LEMON: Carl, considering what Alan Dershowitz said about the investigation, what happens next?

BERNSTEIN: Well, Alan is saying exactly what we have been saying here tonight. It's a big deal that Alan Dershowitz who has been on the other side of a lot of things having to do with this president said what he did and brings his legal experience to the argument.

But there's one other aspect that we got to look at. This is still a chance at redemption for our system. We have four senators perhaps who can show profiles in courage such as we have never seen perhaps in our adult lives.

And that is for Susan Collins, Markowski, Flake, a couple others to say just what Dershowitz has said, just what we're saying here, pause, investigate.

[23:35:05] Let's learn who these people are. Let's find out about these witnesses. What is the rush here? We waited 400 days with Garland. Look, Mr. President, you're going to get a nominee. Whatever the case, we need to find out the truth here. And this is an opportunity for -- these four senators have an opportunity to literally rescue this nation at a terrible, terrible moment.

LEMON: What's the rush here is that my producers are yelling. I've got to get to the break. Thank you all. I appreciate it. Thank you. We'll be right back.

(COMMERCIAL BREAK)

LEMON: Judge Brett Kavanaugh was emotional and heated today, lashing out at Democrats, slamming what he called a political hit job and blasting the hearing as a circus. All of that played very well with the president, but it may not sit well with the justices of the Supreme Court.

Joining me now to discuss is David Kaplan, the author of "The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution." Thank you for joining us, Mr. Kaplan. I appreciate it.

[23:40:00] If Kavanaugh does --

DAVID KAPLAN, AUTHOR: Good to be here.

LEMON: If he does get confirmed, how will he be received by his new colleagues on the Supreme Court after what we saw today?

KAPLAN: The justices tend to have a short memory when it comes to the travails of nominees at confirmation hearings. We saw that with Clarence Thomas. Almost 30 years ago, he really went through the mill and yet when he got to the court, he established close relationships, cordial relationships with almost all the justices.

And because of his personal skills at the court, he is beloved at the institution by staff and -- and I talk to majority of the justices for my book on a background basis. I can't tell you who I talked to. But they all like him. They don't agree with his politics, but I think -- and Kavanaugh being on the federal appeals court in Washington knows most of them socially and beyond.

I don't think he'll have any trouble fitting in. But the justices hate this kind of thing. They like to tell you that they are not partisans in robes, they're not a political institution, and it's this kind of proceeding that belies that.

LEMON: That's exactly what I thought today. And I thought what is a chief justice thinking? What's going through his head as he's watching this?

KAPLAN: Well, I didn't hear from him tonight, so I can't tell you exactly what he thought. But he can't stand it. He loves the institution even more than whatever projects he has ideologically or in terms of constitutional law. And he understands that this wounds the court.

But I think -- you know, one of ironies is, this doesn't do the court any good. But in the first instance, I think you can blame the court for part of the problem by intervening so often in so many social and political issues and not just this past term but this goes back 10 and almost 50 years to Roe V. Wade.

By getting involved in all these cases, the justices raise the stakes of vacancies. And that's why presidents have become better, more cynical vetters (ph) of candidates. It's why senators put on the show that you see today. I think in the first instance, you can blame the court. And there isn't a lot of recognition of that at the court because they view themselves in certain respects as saviors.

They look at Congress, they look at different presidents and say, they're not doing their job. Who but us to save the country? And that is an arrogant view that I think is bad for the court, it enfeebles Congress, distorts presidential elections.

LEMON: David, what is all this doing to the reputation and the image of the Supreme Court? They're above it all, remember?

KAPLAN: Well, the court is pretty resilient. It took a hit in Bush V. Gore almost 20 years ago but it survived. Sill more respected than Congress across the street or the White House down the road. This doesn't help. At a certain point, the citizenry will come to believe that this is just another political branch of government.

It is nine unelected, unaccountable judges but who essentially operate as just another a partisan body and that's bad for the court. There have been times in American history --

LEMON: Bad for the country, too.

KAPLAN: -- when the court has suffered. Excuse me?

LEMON: It's bad for the country, as well.

KAPLAN: Absolutely. I mean, I don't argue in the book that the court should be impotent. You want the court to be vindicating unpopular rights like those in the First Amendment or the rights of criminal defendants and the Fourth Amendment protecting against unreasonable searches and seizures and regulating the structure of government.

So, it should have gotten involved in partisan gerrymandering this past term but chose not to. But picking winners and losers and substantive political disputes whether it's gun control or campaign finance or abortion, I think the court does best when it stays out of those issues.

Louis Brandeis, a great justice, a liberal from 100 years ago, once said that the most important thing the court does is not doing. And that lesson has been lost. I think the justices watching on a day like today as annoyed and upset as they are, they don't take away that message. The supremacy of the court is something that nobody challenges anymore.

LEMON: Let me ask you, I want to get this in before we run out of time. I've heard earlier in the hour before this one, people were talking about judicial temperament. And Kavanaugh was angry, emotional, even hostile at times.

It's very understandable for someone who feels that he is wrongly accused. But it's not the type of demeanor that you expect and that we usually see from a Supreme Court nominee, let alone a justice imagining him on the court. [23:44:59] KAPLAN: He did not help himself in that regard. Now, he may have had an audience of one today. The president. He needed to keep the man who nominated him on board so that his name wasn't pulled tonight as you could imagine it might have been. But he did not help himself.

But then again, Clarence Thomas pretty much had the same tone 30 years ago and survived. Nobody would argue that Clarence Thomas is the most respected or influential justice on the court. But he certainly has endured. And if Kavanaugh is confirmed and that's by no means a sure thing, I would say 50/50 at best, he'll go in there with wounds.

But I don't think it will affect his functioning within the institution. They've seen enough of this before. They worked together in the marble temple for decades at a time. They tend to forget very quickly what takes place across the street.

LEMON: David Kaplan, thank you for your time. I appreciate it.

KAPLAN: Thank you.

LEMON: Absolutely. So I'm just getting this in tonight. There's some information on the FBI -- possible FBI investigation. Manu Raju, our reporter here on Capital Hill, will be talking to us about that. Don't go anywhere. We'll be right back.

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LEMON: This is breaking news. I just got it in my hands right now. New calls tonight for the Judiciary Committee to hold off on a vote on Judge Brett Kavanaugh. CNN's Manu Raju has that. He joins us now by phone. Manu, take it away. what is going on?

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT (via telephone): Yeah, that's right. I obtained a letter from the American Bar Association president, Robert Carlson, who writes the leader of the Senate Judiciary Committee tonight that they should delay final consideration on Brett Kavanaugh's nomination to the Supreme Court until after an FBI investigation is completed, into the sexual assault allegations that were raised by Christine Blasey Ford. This is unusual because they don't usually weigh in in situations like this.

[23:50:00] They have given Kavanaugh a well-qualified rating. And he himself touted at today's hearing. But in a very strongly worded letter, they say that the basic principles that underscore the senate constitutional duty of advice and consent require nothing less than a careful examination of the accusations and facts by the FBI.

Don, they warn the Senate pretty dramatically here. They say, deciding to proceed without conducting initial investigation will not only have a lasting impact on the Senate's reputation but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court.

This position is mostly a Democrats' position, that they took all day today (INAUDIBLE) Ford's allegations became public, demanding an FBI probe. That's of course something the Republicans have rejected, saying it's not necessary.

They are saying, FBI does not do credibility assessment. They said, we're moving forward to vote in committee on Friday. We'll see how some of the senators in the middle were wavering how they view this, but definitely a notable development today, Don.

LEMON: Today, in his emotional testimony, Kavanaugh said that he was vetted by the A.V.A. The comments really here are striking becuse the organization gave him his highest rating which is a unanimous well- qualified. That was before this. Well-qualified for the Supreme Court.

But they are saying now the basic principles that underscore the Senate's constitutional duty of advice and consent on Federal Judiciary nominees require nothing less in a careful examination of the accusations and facts by the FBI. Very strong words. Do we know where we are on a vote right now, Manu?

RAJU: It's really anyone's guess at the moment. We caught up with all the key senators tonight. Jeff Flake of Arizona, Lisa Murkowski of Alaska, Susan Collins of Maine, the three Republican senators, and even a Democratic senator, Joe Manchin, of West Virginia. All of them have been -- were uncertain or would not comment.

Jeff Flake made it clear. He was torn. Joe Manchin said they were all undecided. Those four members all met behind closed doors after the hearing today. We don't know how it's going to come down tomorrow. If all Democrats vote no, the Republicans cannot lose more than one vote. Right now, it's anybody's guess what is going to happen in the next 24 to 48 hours.

LEMON: Manu Raju with the breaking news. Manu, thank you very much. When we come back, we're going to hear from a former classmate of Judge Kavanaugh. I'm going to get his take on today's hearing.

[23:55:00] (COMMERCIAL BREAK)

LEMON: Let's bring in now Mark Osler, a professor of law at University of St. Thomas and a classmate of Brett Kavanaugh at Yale Law School. Let me just apologize to you. The breaking news took some of your time, so I won't be able to spend as much time with you as I had hoped, but thank you again for joining us.

Before this allegation, you signed a letter supporting Kavanaugh. And now, what do you think after today and the allegation?

MARK OSLER, PROFESSOR OF LAW, UNIVERSITY OF ST. THOMAS: It was quite a day. One thing that happened today was that we saw the effect of not doing an investigation first, because the things we normally have to hold up against the testimony, the testimony of other people or what an investigation would have revealed, we don't have.

That means that there's a focus on demeanor. That's what I hear people talking about. That's not always the most reliable thing. For example, many people are talking about how Brett Kavanaugh's anger, that's how someone who had been falsely accused would react. It's also how someone caught in a lie is going to react. So, it's not as determiner as we might imagine.

LEMON: Do you still support him? Where do you stand?

OSLER: I have to say -- well, I still think there needs to be an investigation. Certainly, Dr. Ford's testimony was compelling and credible. That leaves the same open question. I'm glad to hear that the ABA is calling for the kind of investigation that we need before this vote is taken.

LEMON: He -- Judge Kavanaugh was asked repeatedly if he would support an FBI investigation. He kept dodging the question. Why do you think he refused to answer?

OSLER: I think he knew that's not what the panel wanted to hear. I think he knew that's not what the president wanted to hear, because of the delay that that would entail. But delay is not a terrible thing with the stakes as high as they are right here and how high the stakes are and the issues that are in front of us were really made clear through Dr. Ford's testimony.

LEMON: After today, do you think we're any closer to the truth?

OSLER: Yes. And I think we're closer to the truth in the sense that, it's hard to have heard what Dr. Ford said today and not feel that it's likely that what she testified happened. She pointed to corroborating facts. She asked for more corroborating facts to be examined. But we should not be done yet. This is too important to close things down at this point.

LEMON: All right. Mark Osler, thank you, sir. I appreciate your time.

OSLER: Thank you.

LEMON: What a day. Thanks for watching. Our coverage continues.

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