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Don Lemon Tonight

Kavanaugh's Fate Only Days Away; A Vote that Will Nail a Lifetime Position; Judge Brett Kavanaugh Fighting for His Confirmation; Senator Heidi Heitkamp Leaning for Brett Kavanaugh; Last-Minute Op-Ed in "The Wall Street Journal." Aired 10-11p ET

Aired October 04, 2018 - 22:00   ET

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

[22:00:00] (JOINED IN PROGRESS)

CHRIS CUOMO, CNN HOST: Maya Angelou gave us the best advice in these matters. When someone shows you who they are, believe them the first time. How will the senators interpret that wisdom here? We will see.

That's it for us tonight. Thank you for watching. "CNN TONIGHT" with Don Lemon starts right now.

DON LEMON, CNN HOST: OK. So Chris, so this "Wall Street Journal" editorial that he wrote. Right? He wrote what he said in front of the Senate judiciary committee as well. He could have simply said this, which was in the Wall Street Journal, rather than saying what he said in front of the Senate judiciary committee. He could have said, in each case that I have ruled on I have followed the law. I do not decide cases based on personal or policy preferences.

CUOMO: Right.

LEMON: I am going to be objective. And what does he say? People on the court don't sit on separate sides of the aisle. He could have said that. listen, I am not guilty of any of this. But let me tell you, if I have the honor of being confirmed for this particular seat, here is how I will conduct myself. I am open to every investigation that you can bring. Open up to an FBI investigation because I am completely innocent. But this is how I will conduct myself as a judge.

And he would not have had to go into all that partisan rhetoric that people say he doesn't have the temperament now criticizing him for not having the temperament to be confirmed.

CUOMO: Yes and no. I'm part of the way with you. I mean, early on he did talk that way. It was only after the allegations came up.

LEMON: Yes.

CUOMO: The early part of the confirmation hearing he comported himself exactly the way you're suggesting he should have. He did.

But once the allegations came he needed to maintain that poise because that's what you do if you want to be a Supreme Court justice. I get that you'd be pissed off if you were falsely accused. So would I. I'd go nuts. I'd fight it every possible way if it was something I didn't do.

But I'm not up for Supreme Court either. And I'm not trying to exercise the demeanor and the manner for that. I'd be fighting for what people say he was doing. He was fighting for his life in there. No, he wasn't.

He wasn't fighting for his life. He was fighting for a reward. He was fighting to be a Supreme Court justice. He could have just walked away and it would have been over. I'm not answering this stuff, I'll go back. You want to impeach me at the circuit court? Bring it on.

LEMON: Yes.

CUOMO: He didn't do that. He wanted the brass ring, so he should have acted the part. I think that's fair criticism. What will it mean to the senators? I don't know.

I think we're saying the same thing. There is a difference, if you're fighting for your life, there's a difference between fighting for your life or what have you or your reputation or your name if you're accused of something as a private citizen. If you're accused of something as a studio executive, if you're accused of something even as a city council member or leader or president or a mayor, it's different.

When you're sitting in the Supreme Court you have to be superb. You have to conduct yourself in a manner that is befitting of that particular office. Same as that position. Same as the presidency.

So, I think we should -- there are unfortunately, the reality is there are different rules for different positions in this society and during those hearings he did not conduct himself in a manner befitting the role of the Supreme Court justice.

CUOMO: You could make that argument. And you can also give yourself political cover. And reasonably so and say look, I would have done the same thing. He's a great judge.

LEMON: Yes.

CUOMO: They proved nothing. There's no corroboration. I want the generation of jurisprudence and he will give it to me. I like what he's about as a judge. You can do that. And I think that's what we'll see.

LEMON: Well, that part, the evidence, no corroborating evidence, what do you do? What do you do? You have to go where the evidence--

(CROSSTALK)

CUOMO: In this forum--

LEMON: Go.

CUOMO: -- in this forum it's over.

LEMON: Yes.

CUOMO: But that was my problem from the beginning. I hate the way this was done. The confirmation is about non-disclosure, not disclosure. It's a Fugazi process. And to avail ourselves of the most difficult cultural question we have. How we deal with these types of non-criminal setting allegations of wrongdoing and do it in the worst place where it's all about politics and advantage where my metaphor today was these cases are like babies. They're sensitive, they're vulnerable, they need attention and care.

And we put them, we put forward on top of a stake in the middle of a cage with lions on one side and tigers on the other. We hope they'll be fair, we hope they'll be fair to the baby. They were never going to be fair to the baby. The baby was in the way of what they wanted. And this was the worst place to deal with something so sensitive. That was my regret. I knew we would wind up here.

LEMON: Fugazi. I've got to go, my Italian brother. I'll see you tonight after the show at the bada bing. See you, Chris.

CUOMO: See you, buddy.

LEMON: Have a good one. This is CNN TONIGHT. I'm Don Lemon.

And man, you could cut the tension with a knife on Capitol Hill. The clock ticking to a preliminary vote on Judge Brett Kavanaugh set for tomorrow morning at 10.30. Just really over 12 hours from now.

[22:05:00] The final vote on his nomination is scheduled for Saturday. Though all of this could change. If GOP leaders don't think they have the votes. OK. So, all eyes are on three Republican senators. Susan Collins, Lisa Murkowski, Jeff Flake. Look there on your screen right now. Who along with red state Democrat Joe Manchin could decide this whole thing.

So if the nomination is anything, right? If this nomination, in this nomination, I should say, nothing is certain. So which is probably why Judge Kavanaugh has written an 11th hour op-ed in the Wall Street Journal making what you could call his closing argument. OK?

Here's a quote, a quote from it, I should say. "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."

That, by the way, was testimony that he wrote. And it comes as protests against Kavanaugh's nomination spread in the capital and across this country.

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LEMON: So it has been a day of drama with senators taking shifts in what's called the Sensitive Compartmented Information Facility, or SCIF, as they call it, reviewing the FBI's information, investigation, findings in secret.

But if you listen to President Trump, this is not about a search for the truth if you listen to this president. It's not about what Christine Blasey Ford says Brett Kavanaugh did to her when they were teenagers.

It's not even about whether or not Judge Kavanaugh is qualified for a seat on the Supreme Court. It's about for him a political hit job by Democrats who want to stop a conservative at all costs.

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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: The Democrats have been trying to destroy Judge Brett Kavanaugh.

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TRUMP: Since the very first second he was announced people see what's happening. And they don't like it. The people of Minnesota and the people of America are going to reject the Democrat politics of anger and destruction and they are going to vote to keep making America great again, greater than ever before.

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LEMON: So it's a theme. A theme that this president is returning to again and again. A real crowd pleaser at all of his rallies.

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TRUMP: No one under any circumstances is allowed to speak up if you're on this side of the equation. But guess what? We're speaking up like nobody has ever spoken up before.

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TRUMP: They want to get the power that they so desperately crave, that was taken away from them. All of the Democrats know and all they really know how to do is obstruct, resist, demolish, destroy, and delay. They've been trying to destroy Judge Kavanaugh since the very first second he was announced.

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LEMON: The president's strategy, blame. Blame Democrats for a so- called attack on conservatives. It's working. You heard the boos. The crowd was eating it up. And it's no accident that Judge Kavanaugh used the same talking point in his testimony last week. The very same testimony he is trying to explain away in his op-ed tonight.

(BEGIN VIDEO CLIP) 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)

LEMON: What does he say? "I am an independent, impartial judge." That's his op-ed.

But this is not politics as usual. It's not just Republicans versus Democrat. There is a not at all subtle undercurrent to all of this. So listen to me closely, OK. Because Lindsey Graham spelled it out. Lindsey Graham spelled tout. This is not just an attack on conservatives. It's an attack on white men.

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SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: I know I'm a single white male from South Carolina and I'm told I should shut up, but I will not shut up if that's OK.

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[22:10:00] LEMON: OK? Don, what are you talking about? So here you go. If that's not blatant enough for you what Lindsey Graham said. There's this. And it's from Congressman Steve King. And he tweeted this.

He said, "old white men," that's a quote, "are relentlessly being racially and generationally profiled by the tolerant," again in quote, "left." "Leftist media outlets and politicians almost universally profiled and stigmatized Republican senators. Looks like racial profiling is back in style if you are a leftist." More? OK. Rush Limbaugh, come on down.

(BEGIN VIDEO CLIP)

RUSH LIMBAUGH, TALK SHOW HOST: These women are angry. Something has happened to them in their lives. And their rage and their anger they take it out now on the country or on all men or men in the powerful majority which are white Christian men and so forth.

(END VIDEO CLIP)

LEMON: He said it. I'm just playing -- they all said it. I'm just playing their sound bites. So don't get mad at me and say, Don Lemon, you're everything's about race. They said it. I just put their sound bites on TV.

If you're going to vote to confirm Judge Kavanaugh, you've got to ignore what Christine Blasey Ford said. I've said it before. You can't believe both of them. So rather than searching for the truth, the president and his party, they're appealing to their base. People who feel victimized, who fear the world is passing them by, feel, fear. People who see all of this as a zero-sum game.

If women or people of color or LGBT people advance, it must be at the -- at someone else's expense.

A recent Pew poll lays it out pretty clearly, OK. Look at your screen. Facts. Republican men were the least likely to say discrimination kept women out of high-profile political office or top executive positions.

And there's also the study that came out a couple months ago, reported in the New York Times, that found that white male voters supported President Trump not because everybody -- as they like to say because of fears about the economy, economic anxiety. No. But because they feared losing status. Facts.

Now, it's no surprise that President Trump and Republicans would turn to an us versus them strategy here. They have used it before. Donald Trump built his candidacy on that old racist birther lie that Barack Obama was not born in this country. It worked.

It resonated with people who saw the 44th president not just as a political opponent but as a usurper who couldn't have won the White House fair and square. It is a strategy that worked for President Trump before. The question is will it work again? Will it work this time?

So let's get to it now. Let's get to our breaking news. Judge Kavanaugh is out with an op-ed in the Wall Street Journal entitled "I am an independent, impartial judge."

Here's Kaitlan Collins. Kaitlan, good evening to you. So let's start with this incredible unprecedented op-ed. What's behind this?

KAITLAN COLLINS, CNN WHITE HOUSE REPORTER: Well, clearly, Don, we know what's going on right now. Those key senators are still weighing whether or not they're going to support Judge Kavanaugh, and a big thing that Democrats and critics of his have raised in recent days, not just the sexual assault allegations, not just whether he misled Congress on his drinking habits, but if he has the right conduct and temperament to even be on the Supreme Court.

That is something that they're considering. Clearly he's heard those criticisms. And that is why he came out to write this op-ed, publishing it just hours before they are set to vote potentially on whether or not to confirm him.

Now, we're told by sources inside the White House, don, that this was his idea. He wanted to come out and apologize for his demeanor last Thursday during that hearing that got very tense at times.

But if you look at, this he apologizes for being too emotional but he offers an excuse for that. He says it's the nature of the allegations made against him and he says it's because his family, his daughters, his wife, his parents were seated in that room.

But Don, he doesn't apologize for the specific instances that caused so much attention last week. And that was -- that one with Senator Amy Klobuchar when he turned around the question on her, asking her if she had ever blacked out. When he asked one Democratic senator what kind of beer he liked to drink. When he asked another if they like to play quarters.

Several of those instances that weren't specifically named in this op- ed, instead it was more of a broad-brush apology, denial, whatever you'd like to call, it really trying to ease those fears of the people that he knows are about to determine the fate of the rest of his life, essentially.

[22:14:58] LEMON: So he -- Judge Kavanaugh writes in this op-ed that he is an independent, impartial judge. And then you hear the testimony, what he says. This is revenge, and I'm paraphrasing, for the Clintons. And because Donald Trump was elected president.

But then he goes on Fox News, which is a partisan political place. And now he has gone back to the Murdoch Fox tent again to say what he said in the journal. What's the reaction inside the White House now?

COLLINS: Well, they are fully standing behind this because they actually stood behind the fact that he got so emotional last week, and they were the ones pushing him to be so emotional when he came out.

Because after President Trump watched that interview he did on Monday night on Fox News he said he seemed wooden and that he wasn't aggressive enough and didn't push back hard enough on these denials.

So President Trump, several key senators, several political -- or several top aides in the White House and including White House counsel Don McGahn advised him to come out and come out swinging during that testimony. So that is why we're seeing him apologize now.

But you've got to remember, Don, when he came out and he said I wrote this myself last night and yesterday afternoon. So clearly he spent a lot of time on that opening statement where he said that this is a political hit job in revenge for working on Ken Starr's team during the Clinton presidency. That's something he wrote himself and he put a lot of thought into before he came forward and testified.

But in the White House's view and in most of his supporters' view they stand by this and they even stand by his behavior last week because they believe he's just simply defending himself against the nature of these allegations made against him.

But Don, that's certainly not the way his critics see it. That's certainly not the way Democrats see it. But the question and the only thing that really matters here tonight is how Susan Collins, Lisa Murkowski, Jeff Flake, and those other key votes see this apology and if they think it's genuine or if they think it's a little too late.

LEMON: We shall see very soon. Kaitlan, thank you. I appreciate your reporting. So the Senate is locked in a battle for every last vote tonight. You heard what Kaitlan said. With a final vote on Judge Kavanaugh looming on Saturday. But here's one more unexpected twist in this high drama. Republican

Senator Steve Danes says GOP leaders may be forced to hold open the confirmation vote overnight as he returns to Washington from his home state of Montana, where his daughter is getting married on Saturday.

So let's discuss all of it. Democratic Senator Cory Booker is here. Senator, thank you so much for joining us. I really appreciate it. Listen, between the timing and the op-ed have you ever seen anything like this before? What is going on?

SEN. CORY BOOKER (D), NEW JERSEY: Look, this I think has really been a painful experience for all of America. I was in a caucus meeting today, which is, no cameras around, nobody's performing. Where senator after senator, male senators were standing up and telling the gut- wrenching stories of the constituents of theirs who are reaching out to them, people that they don't know who are telling for the first time about their sexual assaults, confronting the senators with painful details.

I think that this is one of those moments in American history where the dark corner, one of the dark corners of our culture, and most Americans don't realize, according to the Centers for Disease Control one out of every three women will be a survivor of a sexual assault. Most of those don't come forward.

Well, this is one of those moments where you have a credible witness who has told people about it back in 2012, told people about it years before Kavanaugh was selected, who came forward on her own volition to her congressperson trying to do what she called her civic duty.

LEMON: Yes.

BOOKER: I think this is one of those moments that really touches most Americans in the heart and to see how we're going to deal with this, to put somebody as you've already said to the highest court in the land for a lifetime appointment. It's not an entitlement for him. Is this somebody we really want on the court?

LEMON: So, listen, I have a lot I want to cover with you, but I have to ask you before we move on, usually more upbeat with this, this has really -- this has affected you. This is weighing on you. Why?

BOOKER: You know, since the time I was in college working at a hotline, I think it was my early, sort of late teenage years, and start hearing about what happens on college campuses, my college campus, Stanford University, and just remember how shaken I was when I first woke up to what is a reality for so many Americans.

From the women in my office today, to friends. I had a person that worked with me for years come forward this week. She'd never told me about her sexual assault. This hurts very deeply, to see the way we're treating Dr. Ford.

All the sympathy I'm seeing right now for Brett Kavanaugh while she's being mocked, while she's being demeaned. The message we're sending to folks in this country, men and women, boys and girls, is just to me outrageous.

LEMON: Yes.

BOOKER: This whole process has been unfortunate.

[22:20:00] LEMON: Yes. So listen, I have to ask you about -- you heard -- you were there for the Kavanaugh testimony. And then in his op-ed he said, you know, he said he may have been too emotional, he might have said things that he shouldn't have said. And he's trying to drive home the point that he is impartial tonight. Is he trying to have it both ways? What do you think of that?

BOOKER: I think he surrendered all aspects of impartiality during his testimony. He demonstrated quite clearly, with a venom toward the left, wielding out tropes, sort of Clinton blames, invoking her name or the Clintons' name.

I mean, the whole thing was I think something where he surrendered that ground. He does not have the temperament to be a judge. And I think he wrote that article today in the Wall Street Journal, or editorial, because he understands that people of good conscience are looking at the way he performed.

You have a former Supreme Court justice today, they rarely -- he actually was a supporter of Kavanaugh's. Different political judicial philosophies. But this is something you rarely have ever seen.

A former Supreme Court justice coming out and not on judicial philosophy, not on the allegation, the credible allegation from Dr. Ford, but just on the temperament issue alone said he shouldn't be on the bench.

The Washington Post, and granted, that is a left-leaning newspaper, but they have never come out -- actually, since Bork, since 1987, never come out against a Supreme Court justice. And again, it was on the temperament issue and the veracity issue was he really telling the truth, was he really being forthcoming.

So this is not usual. Americans should realize that there are a lot of folks who are not in the partisan politics of our country who are coming forward and saying it's just wrong for him to ascend to the court because of his temperament, because of the way he talked about things that at best were misleading, at worst were outright lies to the Senate.

And so I'm one of these folks in the scrum right now texting with colleagues, talking to colleagues on both sides of the aisle--

(CROSSTALK)

LEMON: What are you saying -- what are you saying to Joe Manchin?

BOOKER: You know, Joe is a dear -- has become a dear friend. I mean, he and I have a really good relationship. And you know, you talk to the heart as much as you can and have trust and faith that he will -- that he will make the right decision. LEMON: And the reason I ask is because Joe Manchin is undecided. So

that's why I ask that. But listen, before I let you go, I know you probably don't want to show your hand or show your cards here. But do you think that by Saturday evening we'll be saying Justice Kavanaugh?

BOOKER: You know, I'm a prisoner of hope. I really am. And I've seen this moment, this feel I've had. I felt it on the eve of the health care vote, where all signs were that we were going to lose that.

But God, there were tens of thousands of people down here on Washington pushing and pressing and I was praying. And what happened, Lisa Murkowski, Susan Collins, and the late John McCain shifted. We're here right now because a Republican, a guy named Jeff Flake, put us into this pause period because of good conscience, and I'm hoping that that prevails.

And the last thing I want to say to you, Don, you know, watching the president mock women, watching the president not believe women, well, the one collateral benefit of all this is that a whole bunch of people are going to be voting for women and he's going to have to deal with new women senators, new women congress people, and no matter what, America, this is not the last word. That vote will not be the last word on a lot of these issues.

LEMON: Yes.

BOOKER: And I think that you're going to see folk continue to rise up and have more power, more control to change what is unacceptable right now in our country and the institutions, one of which I'm a member of.

LEMON: Senator Cory Booker, I appreciate your time. Thank you so much.

BOOKER: Thank you, Don.

LEMON: So coming up, do they have the votes? I'm going to talk to two women also about what Cory Booker just said. Women are watching, and they will be voting. Coming up in November. We'll be right back.

[22:25:00] (COMMERCIAL BREAK)

LEMON: Tonight we have Justice Kavanaugh making a last-minute closing argument in the Wall Street Journal. The Washington Post for the first time in 31 years weighing in on a Supreme Court justice and saying no. And a retired Supreme Court justice says he shouldn't get the job. Unprecedented times indeed.

So let's discuss now. Margaret Hoover is here, as well as Kirsten Powers.

Good evening. I'm so glad to have both of you on. Margaret, you first. I mean, Kavanaugh's op-ed in the Wall Street Journal. This is highly unusual for a judicial nominee, isn't it?

MARGARET HOOVER, CNN POLITICAL COMMENTATOR: Yes. But Don, there's nothing about this process that has been usual. There's nothing about this -- I mean, I don't think that individual action that's unusual should garner our attention any more than any other part of this entire process.

I mean, this has been not only a deeply emotional process for Dr. Ford, for Brett Kavanaugh, for his family, for the Senate. It's been emotional for the country.

LEMON: Yes.

HOOVER: And it has been -- it's demonstrated the cultural shift. It's hit with this social change that we're seeing that many would argue has come way too late and isn't complete.

All of this, all these forces I think are together in a crucible that make none of this normal, and I don't think you can take any one incident and say gosh, this is odd, maybe we shouldn't do it this way.

LEMON: I just want to get to some of what he said in his op-ed, Kirsten. Because tonight in his op-ed he says, "I do not decide cases based on personal or policy preferences. I am not a pro plaintiff or pro-defendant judge. I'm not a pro prosecution or pro-defense judge. I am a pro-law judge."

[22:29:57] So my question is, can we -- can he really say that and can we believe it after he said that the left was taking revenge on what happened with the Clintons and it was all animosity towards President Trump?

KIRSTEN POWERS, CNN POLITICAL ANALYST: Well, he also said what goes around comes around. So he said a lot of things that I think were very concerning. The thing that's particularly concerning about this claim about retribution for what happened to the Clinton's is that it's just totally nuts. You know there's just nobody who's thinking about that.

That's just not even a factor for anybody that I have ever spoken to that people felt like that's what's front of mind, that people are mad at him about what he did to the Clintons. And so, you know, I think this is him trying to clean up what was a very concerning testimony. He is saying he did it for his wife and children and his parents.

But the Wall Street Journal had reported a few days ago that Don McGahn, the White House Counsel, had actually pulled him aside and pretty much told him to be emotional. So, you know, I don't know what's true exactly. And the other thing I would say is I don't even understand how that would be reassuring to children. You know if I saw my father behaving that way, I would be horrified and embarrassed.

And so I get that he's upset. I totally get that. But if you want to be on the Supreme Court, we're going to judge you based on how you act not just when you're not under pressure but how you act when you're also under pressure. And he is held to a higher standard than almost any other person in this country because he's going to be put on the Supreme Court, which is one of the most revered institutions in the country.

LEMON: Go ahead, Margaret.

HOOVER: And he's also, I think to be fair, had a lifetime of working in high pressure jobs. He's had 12 years on the court where he's had over 300 opinions, where I think what he did say in that op-ed that I think is true and not hard to deny is that he's often ruled in favor of Republican causes and not in favor of Republican causes.

He's not been a partisan, right? He's demonstrated -- you know it's this temperament question that we keep talking about. People are talking about judicial temperament, and how he has ruled, and his history on the court has demonstrated. And his peers have said, more than 100 of his peers have weighed in and said this is a man who has demonstrated excellent judicial temperament.

When you're dealing with defending your integrity in front of a political process that you feel has slandered you and is unfair, you're dealing maybe with a temper in that moment about yourself. But that is not your professional temperament, with which you have demonstrated and conducted yourself in a professional sphere for your entire life.

And by the way, you're not going to be weighing in on cases that deal with yourself. Otherwise, you recuse yourself as a judge.

POWERS: Well, can I just ask a question about that, though, Margaret? So I guess I totally take, you know, everything that you just said. But if he goes onto the Supreme Court, this will now be part of his history, that he has expressed this kind of anger at Democrats and Liberals and people who he is clearly very angry with.

So do you think it's unfair for people to feel that if a Liberal group came before him, for example, that they might be concerned that he can't treat them fairly because this has happened?

LEMON: Hold on. Hold on.

(CROSSTALK)

LEMON: Hold on.

(CROSSTALK)

LEMON: I want to put something else in there. And if he himself did not think there was something wrong with what he said and how he testified, he would not be writing this apology.

HOOVER: That's right. And I think, you know one of the worst parts about that testimony and that sort of testimony of his is that he was in this really untenable position of having to defend his integrity and the political strategy that was thrust upon him. And to answer your question, Kirsten, I think that he said things that were exceedingly political there, that I think he regretted.

And I think you have to take that in the context of an entire career of both serving as a Judge and being political, and weigh it against each other. That was a moment, a very intense and incendiary moment in one's life. And so I don't know if he's the kind of person or anybody is the kind of person where one moment changes how they view -- the rest are like -- especially with 12 years of history of seeing both Liberal and Conservative causes come before him, and weighing those things and determining the outcomes of those cases impartially.

LEMON: But do you get to write a ruling when you're a Supreme Court Justice and then the next day say, after it has been ruled upon, you know, do you get to say you know what, that ruling I did, I am sorry. I did it the wrong way.

HOOVER: This was about himself. He was implicated here. He's not ruling on things that involve himself, right?

(CROSSTALK)

HOOVER: Third-party arbiter...

(CROSSTALK)

LEMON: You can't remove him from the process and who he is.

HOOVER: Independent adjudicator. Between you're a third party, between varying parties who are contested. You're not ruling on your own cases. He is there talking about his own integrity. And so you can understand why that would be a bit more emotional than being an independent third-party judge...

(CROSSTALK)

[22:34:57] LEMON: I understand what you're saying, Margaret, but I don't understand what his integrity has to do with being partisan and political. What does his integrity have to do with that? I know we're over, producers. I am sorry. But what does his integrity have to do with being partisan and political?

HOOVER: I guess I don't understand the question.

LEMON: Well, him saying this is retribution for the Clintons. This is -- that is definitely partisan.

HOOVER: There is no doubt...

(CROSSTALK)

LEMON: He sat around and had days to write and think about. He said I didn't show this to anybody else. I wrote this myself. This is how I feel.

HOOVER: I mean...

LEMON: This is how I feel.

HOOVER: Not so sure he had days to write it. I think he wrote it in response, right, because he saw Christine Blasey Ford's testimony...

(CROSSTALK) LEMON: No, he said he didn't see it.

(CROSSTALK)

LEMON: He said he didn't watch the testimony.

HOOVER: Well, I think what I am saying is -- and he acknowledges and we all admit it seems to me that that was a low moment for him that didn't reflect the impartiality that he has demonstrated throughout the course of his career.

LEMON: OK. I am sorry. I have got to go. Thank you both.

HOOVER: As a judge, that is.

LEMON: Thank you. We'll be right back.

(COMMERCIAL BREAK)

LEMON: Judge Brett Kavanaugh fighting for his nomination tonight with a last-minute op-ed in the Wall Street Journal, saying he may have been too emotional in his testimony last week. That, as attorneys for Christine Blasey Ford, well, they are slamming the FBI's investigation in a letter to Director Christopher Wray.

So let's discuss now with General Michael Hayden. He's the Author of "The Assault on Intelligence." General, I appreciate you joining us. Thank you so much.

GEN. MICHAEL HAYDEN, CNN NATIONAL SECURITY ANALYST: Sure, Don.

LEMON: So what do you think of this? Christine Blasey Ford's attorney saying hey, look, this investigation, basically saying it was a sham. The Republicans saying we've done everything. He's been investigated seven times. What do you think?

[22:39:55] HAYDEN: Well, you know, being of my background, I immediately thought of similar circumstances for the agencies I was a part of. Do you remember the Benghazi talking points, Don?

LEMON: Yes.

HAYDEN: Where CIA was pushed into a point of high political torque because the White House did not want to handle it itself. And frankly, the only right answers there for the agency was to say we don't write talking points. You write them. We'll check the spelling. Now, the FBI can't do that. They do, do investigations. They do background investigations.

And so when this is thrust on them, they've got to do it. But they are in this moment of high political torque because the Senate didn't have either the wisdom or the courage to decide this on its own. And frankly, Don, you follow this closely. I follow this closely. I really want to know what the bureau was told to do. What were their instructions? And you know there are no national security implications of those

instructions. So I think the bureau, in its own self-defense, one way or another, is going to push that out the door so that the rest of us can see what they were told to do and not do.

LEMON: While I have you, can we talk about the FBI's reputation, because it's really taken some hits lately. Some Conservatives have hammered them over, you know, Peter Strzok, Lisa Page, that scandal. Accusations of improper surveillance on Trump Tower -- excuse me, the Trump campaign. Democrats are mad as hell. What will this Kavanaugh saga do to the FBI's reputation, do you think?

HAYDEN: Well, I mean it does put it somewhat in jeopardy, because they've been pushed into this political environment where they should not be, and hence, the self-defense mechanism to put the instructions out there. But Don, there's another aspect to this too. I mean after all, we've been hearing from the administration and many Republicans on the Hill that we really can't trust the bureau. And now, now, the bureau is their life preserver.

LEMON: Yeah.

HAYDEN: They've thrown this to the bureau and say, well, whatever the bureau says that'll be fine. That's at least inconsistent if not fundamentally dishonest.

LEMON: Should the bureau come out and explain what the, you know, parameters were on the investigation?

HAYDEN: I think there will be a cost for the bureau within the administration for doing that. But like I said, Don, there's no national security implication. This is not an American secret. And I think the bureau for its own self-defense will and should put that out.

LEMON: General Hayden, thank you for your time. I appreciate it.

HAYDEN: Thank you.

LEMON: We've got much more on Judge Kavanaugh's 11th hour defense with the Senate vote looming. Will his op-ed actually change any minds?

(COMMERCIAL BREAK)

[22:45:00] LEMON: Judge Brett Kavanaugh taking a pretty unheard of step tonight defending his Supreme Court nomination with a newspaper op-ed that senators pored over a highly anticipated FBI report on accusations against the Judge by Christine Blasey Ford. And other women all day today, they did that.

But did that report change anybody's mind? Let's discuss. Frank Bruni's here, David Axelrod as well.

Gentlemen, good evening to you. So David, we have to start with Judge Kavanaugh's op-ed in the Wall Street Journal tonight. Why do you think the Judge made this unprecedented last-minute pitch, saying I am an independent, impartial judge?

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: Well, because I think he knows one of the principal arguments that have arisen out of his testimony is that he doesn't have the temperament or the impartiality to serve on the Supreme Court. That was an appalling display last week. And, you know, you can be sympathetic, I guess, to the argument that he was emotional because he was being attacked in a way that was deeply disturbing to him and his family.

But as has been pointed out by you and everyone else who has spoken tonight, some of these most egregious things that he said were written and contemplated and part of the testimony that he says he himself, he himself composed. And so you know, those -- the -- calling it a calculated political hit and attaching it to the Clintons and saying it was all about President Trump.

That was something that he considered in advance. That wasn't a spontaneous display of anger and emotion. And I will say this, Don. It was also part of a strategy that I think the Republican members of the committee were involved in to go tribal, because they understood that she was compelling as a witness, and they wanted to make it as political as possible because they wanted to rally the base behind Judge Kavanaugh.

LEMON: So if you want to claim, right Frank, that you're impartial and you first go to Fox News -- no, I am being honest. It's not a criticism of Fox News. That's what they do. They're conservative. They're partisan. They tell you that. It's, you know, it's baked into the cake. So you go there and then you go in front of the Senate Judiciary Committee and the country, and say oh, well, you know, it's a Clinton hit or, you know, revenge and Donald Trump and all of that.

And then again, you go to another Rupert Murdoch-owned entity to make your case, but then you're saying you're impartial and non-political. How does that make sense?

FRANK BRUNI, CNN CONTRIBUTOR: David used the key word, which is tribal. He's saying that he's impartial and not political and all this not hyper-partisans who saw him being -- well (Inaudible) behaving in precisely that fashion. He's playing solely to a conservative Republican audience. For Fox News, with his behavior and with the text that he wrote out during that Senate Judiciary Committee hearing, and then now by placing this in the Wall Street Journal.

You know I find this op-ed really distressing, Don. He says in it that we're to understand his demeanor when he testified as the demeanor of a husband and a father and a son, you know, who was kind of speaking to his parents, his children, his wife, etcetera. He wasn't there to tell them who he was. They know who he is.

He was there to talk to the members of the Senate Judiciary Committee and to talk to the American people. And there's something -- again, this word keeps coming up with Brett Kavanaugh. There's something very disingenuous about saying well, what you saw there was a husband, father, and parent. He keeps trotting out these labels that are supposed to tell us he must be one kind of good person when they're not even appropriate in those contexts.

LEMON: The key voting bloc is going to really help decide the midterms. And that's women.

BRUNI: Yeah.

LEMON: And so where does Brett Kavanaugh stand there? How does he affect the midterm elections? We'll talk about that coming up.

(COMMERCIAL BREAK)

[22:50:00] LEMON: So back with me now, Frank Bruni and David Axelrod. So this is North Dakota Democratic Senator Heidi Heitkamp, David, who is fighting to keep her seat in November today said this.

(BEGIN VIDEO CLIP)

HEIDI HEITKAMP, (D) UNITED STATES SENATOR: It's a lifetime appointment. This isn't a political decision. If this were a political decision for me, I certainly would be deciding this the other way. But you know there's an old saying, history will judge you, but most importantly, you'll judge yourself. And that's really what I am saying. I can't get up in the morning and look at the life experience that I have had, and say yes to Judge Kavanaugh.

(END VIDEO CLIP)

LEMON: Wow. So she's one of the most vulnerable Democrats by the way, David, up for re-election. One could say she has a conscience. You could see she was emotional there. Is this going to hurt or help her?

AXELROD: Yes. Well, I think that Donald Trump carried that state by I think 36 points. And what we've seen -- I said earlier that they sort of tribalized this issue of Kavanaugh. If you look now, 40 percent of Americans think he should be confirmed, 52 say no. It's almost precisely the President's numbers. And the gender gap is there, as well.

But in red states like Heidi Heitkamp's state, you -- I am sure the opinion is much lopsided in favor of Judge Kavanaugh. And she understood that when she made that decision. I think Republicans may benefit at least in the short run from this in the polling in red states. But in the congressional districts in the suburbs, which are going to tell the story about who controls the House, I think this is going to be a major negative for them, largely because of how women react there.

LEMON: Yeah. I am glad you mentioned the polling, because Frank, there's a new poll out. It's from Quinnipiac. And it shows Kavanaugh losing support among women. And here's what it says, 55 percent now say that they oppose Kavanaugh's confirmation. That is up from 47 percent just a few weeks ago. And then President Trump's handling of the situation has approval of 42 percent of voters while 49 percent disapprove. You say House Republicans be the most impacted by this. Why is that? BRUNI: Well, I mean in many of the most competitive House races House

districts, you have suburbs and you have a lot of women voters. And so Heidi Heitkamp might not benefit in a statewide race in North Dakota, but the competitive House districts tend to have a lot of suburban female voters. And they're the ones who you're seeing in those polls are very turned off by this whole process.

And the question is whether that will last till November 6th and whether they will turn out and vote. And I think they will.

[22:55:03] LEMON: All right. Frank, David, thank you for your time. I appreciate it. As Judge Kavanaugh is defending his emotional testimony, what about the words of Christine Blasey Ford?

(COMMERCIAL BREAK)

LEMON: This is CNN TONIGHT. I am Don Lemon. Judge Brett Kavanaugh taking his Supreme Court nomination into his own hands tonight, writing a last-minute op-ed in the Wall Street Journal with the vote looming, and here what he writes. He says at times my testimony, both in my opening statement and in response to questions, reflected my overwhelming frustration at being wrongly accused without corroboration of horrible conduct completely contrary to my record and character.

My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled. I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times.