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Don Lemon Tonight

Judge Kavanaugh to be the Next SCOTUS Justice; Another President Trump Victory; Kavanaugh's Election Draws Division; Democrats Still Oppose Kavanaugh to be on the SCOTUS. Aired 10-11p ET

Aired October 05, 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)

DON LEMON, CNN HOST: Right.

CHRIS CUOMO, CNN HOST: You allowed it to stay bad. You participated in something that was bad. Fix it. That's your challenge. We judge whether it's good or bad. You're supposed to make it better. They have to do that because we can't survive another one of these procedurally. The outcome is what it is, man. The outcome is what it is.

(CROSSTALK)

LEMON: Well, you and I both predicted the outcome before all of this happened. I didn't think that it would change anything especially given the time line for the investigation, and then they finished the investigation two or three days earlier.

I mean we saw it coming before it came down the pike. But, listen, the process is flawed. But, again, it is what it is. And there is no corroborating evidence. You can understand that side.

But then women are also feeling on one side that they're not heard. So what do you do?

Back to my point, it's a big divided country. We've got to do something to come together. I think the best -- the best thing I heard all day was Lisa Murkowski's speech saying if there is a small way that we can reach out and try to have some common ground or some comedy -- then not -- comity, not comedy -- then we should try to do it. But that's not so easy to do.

CUOMO: Well, look, it used to be in the Senate.

LEMON: Yes.

CUOMO: I mean that's what the Senate does. That's why John Dean was saying earlier, and I just know this because from doing homework, it was 67 votes. And often with justices, you had 99, 96, 94. You know, this is the first or second closest vote we've ever had.

And once you make it a simple majority, it's going to be a blood sport. It's going to be thunder dome because there's desperation by the side that doesn't have the power because the power is almost absolute with a simple majority. That's what we saw here. Unless Kavanaugh was completely derailed, he was always going to get through. They can't stop it.

LEMON: But you realize the minority of the country and people in the Senate, in the Congress who represent a minority of America are actually leading America and making laws right now, by the millions. By the millions.

There are millions more people who are from bigger urban areas or from bigger states, and they don't have the representative. That's the whole thing, the popular vote versus the Electoral College.

CUOMO: Well, look, you have endemic challenges. We had Eric Holder on the other night. He's got a very clever way to test the waters for running for president. He's big on gerrymandering, re-districting. That's where the Democrats got their highness (Ph) whooped is at the state level. They lost all of these state legislatures all across the country. That's where the districts are done.

So you're going to have a not trickle down but you're going to have a bubble up problem with these kinds of things.

LEMON: Yes.

CUOMO: But that's politics in power. What I'm saying is in this country, you've got to find common ground. You have to find points of accommodation. You have to.

LEMON: But you know what? This is our system. We saw it playing out for us in front of our face in real-time this week and the last couple weeks, and that's what it is. So we have to embrace it, and we have to move forward and then try to figure out how we do it better.

CUOMO: Well, you accept the result.

LEMON: Yes.

CUOMO: The result is legit, but they have to change the process, not because of the out, but because of how they arrived at it, what they ignored--

LEMON: Yes.

CUOMO: -- what they wound up sacrificing. That matters for the -- for Christine Ford, for that body of truth, for those women who went to the senators in those elevators after this cultural cataclysm where we at least came to some recognition that, hey, we got to treat these things with more respect. We have to understand these allegations with more respect. That was sacrificed here.

Ford never had a shot at getting a real review like what we promise anywhere else in society right now. She never had a chance.

LEMON: Here we go. Term limits would help, the people, and we have to get people in both Houses of Congress who represent the diversity of this country rather than people who just represent older people or just one ethnicity.

CUOMO: I'm with you on that. I believe diversity is strength.

(CROSSTALK)

LEMON: I got to go, Chris.

CUOMO: I think it helps. It's never going to be one thing, Don. It's going to be a lot of different things all pushing you in the same direction.

LEMON: Yes, that would help. That would help. Representation would help. Thank you, sir. I appreciate it. Have a great weekend, OK?

CUOMO: You too, pal.

LEMON: This is CNN TONIGHT. I'm Don Lemon.

So no matter what you think about the prospect of Brett Kavanaugh on the Supreme Court, and the country is bitterly divided about that tonight. We just said that. There is no question that this will be a big victory for President Trump. It may be honestly the best day of his presidency. And assuming that Judge Kavanaugh is confirmed -- and let's face it. The chances that he won't be are slim to none even in a nomination process as wild as this one.

The president has changed the shape of the Supreme Court for years to come, maybe generations, for a lifetime. And he has kept one of his biggest campaign promises. But the country is paying a price for his victory.

[22:04:56] This fight has been so brutal that nobody is really coming out of it looking good. Senators who are voting in favor of Kavanaugh, struggling to explain how they came, how they can in good conscience, ignore everything Professor Ford told them.

(BEGIN VIDEO CLIP)

CHRISTINE BLASEY FORD, BRETT KAVANAUGH'S ACCUSER: Indelible in the hippocampus is the laughter, the uproarious laughter between the two and their having fun at my expense.

(BEGIN VIDEO CLIP)

LEMON: Everything she said she's 100 percent sure he did.

(BEGIN VIDEO CLIP)

SEN. PATRICK LEAHY (D), VERMONT: Dr. Ford, with what degree of certainty do you believe Brett Kavanaugh assaulted you?

FORD: One hundred percent.

LEAHY: One hundred percent.

(END VIDEO CLIP)

LEMON: So I've said it before. You cannot believe both Professor Ford and Judge Kavanaugh. You hear that a lot. Well, I believe both of them. You can't believe both of them. You can't support him and still believe her. And senators are trying to have to explain their support for Judge Kavanaugh.

(BEGIN VIDEO CLIP)

SEN. JOE MANCHIN (D), WEST VIRGINIA: I made my decision, and I gave my reasons for my decision. Ours went out, and we wanted to make sure.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: You can listen to the people here. Are you concerned about--

(CROSSTALK)

MANCHIN: I'm very much concerned basically with the sexual abuse that people have had to endure and very much concerned we have to do something as a country. But I had to deal with the facts ahead in front of me.

(END VIDEO CLIP)

LEMON: And of course there is President Trump slamming Christine Blasey Ford after she testified in excruciating detail about being sexually assaulted.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Thirty six years ago this happened. I had one beer, right? I had one beer. Well, you think it was -- no, it was one beer. Good. How did you get home? I don't remember. How did you get there? I don't remember. Where is the place? I don't remember. How many years ago was it? I don't know. I don't know.

(APPLAUSE)

TRUMP: I don't know. I don't know! What neighborhood was it in? I don't know. Where's the house? I don't know. Upstairs, downstairs, where was it? I don't know, but I had one beer. That's the only thing I remember.

(END VIDEO CLIP)

LEMON: Disgusting. And Judge Kavanaugh claiming the charges against him were a partisan political hit job.

(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: I'm going to say it again. Nobody is coming out of this looking good, certainly not Chuck Grassley, chairman of the Senate Judiciary Committee. When asked today whether he thinks there should be more women on the committee -- I just talked about diversity, right? Representing all of the country.

This is what he answered about more women on the judiciary committee. He says, "You've got to have a desire to serve. We've tried to recruit women, and we couldn't get the job done."

But there's more. In answer to a question about why he can't recruit women, he answered this. "It's a lot of work. Don't forget, compared to a lot of committee meetings, we have an executive every Thursday. So it's a lot of work. Maybe they don't want to do it."

I bet there are plenty of women who want to do that work and can handle it and do it very well, especially after hearing that. But in the middle of all of this, here's something to consider. Whether or not you agree with Senator Susan Collins' decision to support Judge Kavanaugh, this moment is something we should all think seriously about.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS (R), MAINE: We live in a time of such great disunity as the bitter fight over this nomination both in the Senate and among the public clearly demonstrates.

It is not merely a case of differing groups having different opinions. It is a case of people bearing extreme ill will toward those who disagree with them. In our intense focus on our differences, we have forgotten the common values that bind us together as Americans.

(END VIDEO CLIP)

LEMON: So let's talk about one word here, conscience. Conscience is the key to all of this. Senator Lisa Murkowski said it.

(BEGIN VIDEO CLIP)

SEN. LISA MURKOWSKI (R), ALASKA: In my conscience, because that's how I have to vote at the end of the day, is with my conscience. I could not conclude that he is the right person for the court at this time.

(END VIDEO CLIP)

[22:10:07] LEMON: Democracy doesn't work the way it should if all we care about is who wins and who loses. Who squeaks by with just enough votes and who doesn't. That's the tyranny of the majority, or some might argue in this case the minority.

When you look at the percentage of the country that supports President Trump, 41 percent in the latest Quinnipiac poll, or the percentage of the country who supported Brett Kavanaugh, 42 percent.

But my point is you've got to be able to vote your conscience no matter where that takes you, no matter how much pressure your party puts on you, no matter how loudly other people protest. Now and I -- you and I both know that some people vote strictly on the basis of what's best for them politically, not what's right. That happened in this situation as well.

And it can be pretty easy to vote when your conscience, vote your conscience when your conscience and your party are in sync. But when they're not, whether you're a red state Democrat or a blue state Republican, you should still be able to vote your conscience. And if you can't, well, we'll never be anything other than a polarized, partisan mess.

And by the way, just as you're entitled to vote your conscience, protesters are entitled to have their voices heard.

(BEGIN VIDEO CLIP)

(CROWD CHANTING)

UNIDENTIFIED FEMALE: Senator, are you going to let our democracy going? Are you going to let our democracy die?

(END VIDEO CLIP)

LEMON: That is what America is all about, giving voice to everybody. It's messy sometimes, and this whole process proves that.

A lot of people will argue that the result of this confirmation process is not good for America. But do you want to live in an America where we silence people who, in good conscience, don't believe what we believe? That's not America. That's not what I want.

Every night on this show, people speak their minds, and I disagree with some of them. I hold them to the truth because when you come on here, this is a privilege, not a right. And if you're speaking directly to the American people, then I think you owe them to be honest to them. You owe them that.

But there are voices, even if I disagree with them, deserve to be heard. They deserve the chance to argue their positions in good conscience. That's what truly makes America great.

Lots to talk about including whether the best day of the Trump presidency may be a bad day for America.

[22:15:00] (COMMERCIAL BREAK)

LEMON: Barring any last-minute surprises, though -- I mean let's face it, there have been plenty of those certainly -- Judge Brett Kavanaugh is set to be confirmed to the Supreme Court. And there's no question that a fifth consecutive justice, conservative justice, is a big victory for President Trump and for his party. But what does having Kavanaugh on the bench mean for the court itself?

Let's discuss it now. Carl Bernstein is here, Abigail Tracy and David Kaplan. David is the author of the book "The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution." Now, that is the name of a book. OK. Thank you all for joining us.

So, Carl, I'm going to start with you because President Trump has been remarkably effective in reshaping the court, not just the Supreme Court but even at the appellate level, right? Even statewide he's been appointing conservative justice -- judges. So he's going to get a conservative justice now. So it's good for Trump, but is it good for the country?

CARL BERNSTEIN, CNN POLITICAL ANALYST: Well, I think this whole process has been awful for the country in the following way. I mean I listened like most Americans, I think, to Susan Collins' civics lesson today.

And what I did not hear from Susan Collins in this civics lesson was anything about Donald Trump and how he conducted himself through this search for justice, anything about what Judge Kavanaugh said that was an offense to the senators and an offense to the court as well as an offense to the truth during his confirmation hearings.

My offense to the truth, I'm not going to address the specifics of Dr. Ford but rather about his life.

There was an FBI investigation that has been constrained by the White House and the Republicans on the judiciary committee. And like the Mueller investigation, the president of the United States does not want to see the truth, whatever it is, wherever it leads, and I'm not going to say where it leads because I don't know.

But they -- the president, those on that committee, on the Republican majority, did not want that FBI investigation to go forward in an open way to whatever conclusions it should have by talking to the proper people, including Kavanaugh and Ford.

LEMON: Yes. As I said in the open, no one really came out of this looking good.

(CROSSTALK)

BERNSTEIN: But this is part. You know, my colleague Bob Woodward has called this a war on truth in this presidency, and this is part of it. We had the opportunity with what Flake and his colleagues did by calling for this investigation to find out what we needed to know.

LEMON: But sticking -- but sticking with the courts--

(CROSSTALK)

BERNSTEIN: And it didn't happen.

LEMON: Because I want to play this women. I think it's important. This is Justices Kagan and Sotomayor -- Sotomayor. They were at an event today. They both spoke about the image of the court. Watch this.

(BEGIN VIDEO CLIP)

ELENA KAGAN, ASSOCIATE SUPREME COURT JUSTICE: It's an incredibly important thing for the court to guard, is this reputation of being fair, of being impartial, of being neutral, and of not being simply an extension of the terribly polarized political process and environment that we live in. And, you know, this is a challenge.

SONIA SOTOMAYOR, ASSOCIATE SUPREME COURT JUSTICE: Now we're eight justices, eight justices that we have to rise above partisanship in our personal relationships. That we have to treat each other with respect and dignity and with a sense of amicability that the rest of the world often doesn't share.

(END VIDEO CLIP)

[22:19:59] LEMON: David, the significance of both of them speaking out now?

DAVID KAPLAN, AUTHOR, "THE MOST DANGEROUS BRANCH": Well, this was a previously scheduled appearance at Princeton, and no doubt they're both upset that they had to be there in the current maelstrom. But Carl mentioned this is bad for the country.

This is terrible for the Supreme Court, and those two justices and all the others recognize that they will now be in the center of the storm for years and potentially decades. They hate this. This further politicizes the institution.

But at the end of the day, as I argue in the book, they're fundamentally responsible. The reason Supreme Court hearings have become a circus, the reason a single vacancy is so freighted, is because the court for decades now has insinuated itself into so many key social and political issues instead of deferring to Congress and state legislatures.

LEMON: Abigail, Jeffrey Toobin here on CNN emphatically says that Roe v. Wade will be overturned, perhaps as soon as in the next couple years. Do you agree with that assessment?

ABIGAIL TRACY, STAFF NEWS WRITER, VANITY FAIR: Well, I think obviously today we saw both Murkowski and Collins come out and say that they don't believe that Kavanaugh will do that.

I think one of the interesting things when you look at the departure of Kennedy and now if Kavanaugh is officially confirmed, sort of how that changes the dynamic. I've spoken with a number of sort of experts on the court who say that, you know, somebody like John Roberts, he might not want to see sweeping social change or really frontal attack on something like Roe v. Wade, but there's a lot of ways that you can sort of tear down the law and the ruling, sort of killing it with a million paper cuts type of a thing.

KAPLAN: I would disagree with Jeff. I think they, Roberts, and probably Kavanaugh will not vote to explicitly overturn Roe, but they will still uphold any number of more restrictive regulation.

(CROSSTALK)

LEMON: Do you think it will be challenged on the state level? KAPLAN: Well, it will be. But there will be a particular state

regulation that cuts back on the right, and they'll uphold that, but they won't specifically overturn Roe because they don't have to.

LEMON: Well, this is what I've been saying when I talk about the representation of the court because in the last two elections -- let's see. Six out of the seven last elections, excuse me, wrong, six out of the seven, Republicans have lost the popular vote, yet they're on the verge, Carl of having a five-four conservative on the conservative side. Do they risk or do they risk the court being out of step with Americans politically?

BERNSTEIN: Well, the president gets to appoint the justices of the Supreme Court and of course it was denied, that opportunity was denied by the Republicans--

LEMON: Merrick Garland.

BERNSTEIN: -- within in the Garland case during the Obama administration by the Republicans. I think the idea of the court being a reflection of the people is not really the notion of the court we need to consider.

That what we want to look at is the history of the court in terms going back, say, to Brown versus board of education, in dealing with the great problems of this country and applying the Constitution to those problems and establishing a body of law that is consistent with the history of the country, with the history of the Constitution, and also somewhat reflective of what is going on socially and culturally in the country.

We now have a court, if it moves to the right as far as some people think it might, that might no longer be that reflection. At the same time, now, this is probably just whistling at nothing, but Susan Collins today, in what she said about the paragon that she thinks that Judge Kavanaugh is both legally and in terms of his person, has given him an opportunity to succeed Judge -- Justice Kennedy and be a swing vote.

Now, I don't believe it's going to happen, but I suppose it's possible. But everything she said would establish Kavanaugh in that mold if it were true about Kavanaugh. But what we have just witnessed is a triumph of Donald Trump.

Donald Trump set the tone, the horrible, hideous tone for all of this. The disinterest in the truth. The disinterest in following through with the FBI investigation in a meaningful way. Mocking Professor Ford in a way that inflamed his base and took the day.

I don't think there's much question about if you talk to Republicans on the Hill, they will tell you it was the president of the United States who set the tone and enabled us to pull this thing through without having a real FBI investigation.

Let's look at the question of blackout drinking, which is one of the reasons those senators wanted an investigation in the first place. [22:24:54] KAPLAN: The court has gotten itself in trouble

historically when it has been too far out in front or behind public opinion. And you know Brett Kavanaugh said infamously last week during his testimony, what goes around comes around.

LEMON: Yes.

KAPLAN: The court may learn that in the years ahead. And if it takes positions on the reach of federal power, leave aside Roe or same-sex marriage. If the court starts striking down the ability of federal agencies like the EPA on the Clean Air Act or the Clean Water Act or on the reach of the Securities and Exchange Commission or OSHA over the workplace.

If the court starts striking down federal power, Congress, particularly a Democratic Congress may -- and public opinion may revolt. That has hurt the court in the past. They are not all- powerful.

TRACY: I think -- I think kind of two, both your point. I think one of the most interesting things or the most interesting thing that Murkowski said today was right now we're in a state -- in a position where, you know, the public doesn't trust the president or the executive branch. That's something that's been going on, that erosion of trust in the executive branch for a while. They don't trust Congress so her hope was, hey, at least we could try to instill or keep any sort of trust in the court--

(CROSSTALK)

KAPLAN: This is not going to help.

LEMON: Yes, this is--

(CROSSTALK)

TRACY: Exactly. I think that's kind of the key moving forward. This isn't going to instill trust in the court any more than what's already been happening.

LEMON: That's got to be the last word.

(CROSSTALK)

KAPLAN: But the court's numbers have gone down since Bush v. Gore for 20 years. They will go down more.

LEMON: Thank you, all. I appreciate your time.

Washington showing us this week how extremely partisan it can be, but Kavanaugh's bare confirmation battle mean for the bigger picture of American politics? What does it mean?

[22:30:00] (COMMERCIAL BREAK)

LEMON: Judge Kavanaugh all but certain to be confirmed in a matter of hours, capping a fight that has divided this country. And what happens next could have enormous consequences for American politics.

Let's discuss now. Julie Hirschfeld Davis is here, Michael Bender, and Adam Serwer. So good to see all of you again. Thank you for coming back on the show.

ADAM SERWER, STAFF WRITER, "THE ATLANTIC": Thank you for having us.

LEMON: Julie, I'm going to start with you. Judge Kavanaugh looks set to be confirmed by a narrow margin. It was bitter partisanship all the way, a partisan battle. But how does the White House feel right now, you think?

JULIE HIRSCHFELD DAVIS, WHITE HOUSE CORRESPONDENT, "THE NEW YORK TIMES": I think the White House feels terrific because they're -- you know, the president is getting the nominee he wanted. Their M.O. throughout this whole couple of weeks of back and forth on Brett Kavanaugh's confirmation at times thinking that it might be dead, at times being more optimistic, was just push ahead, push ahead. Keep pushing it forward. And that strategy seems to have worked for them.

And, you know, I think that the president feels -- we've heard him talk about it publicly. We've seen him tweet about it, that this fight has just galvanized his base, has really energized core Republicans to feel that, you know, Brett Kavanaugh was treated unfairly and that all this was really was a proxy fight over him, Donald Trump, and that he won that fight.

And I think he's going to point to the confirmation vote tomorrow as proof of that. And on the other side, I think we see that Democrats are just as energized, if not more so, saying that this process was unfair, that this is a person who doesn't belong on the court, and that the process exposed that.

And so I think what you have is just a much more profound divide even than you had a couple weeks ago, which didn't seem possible going into the midterm elections.

LEMON: You are right on that. I think the country, we, meaning the country, are more divided than we were before this. And we -- I didn't think that it could get any more divided. Adam, you think the Senate Democrats -- Senate Democrats fought the Kavanaugh nomination badly. Explain that.

SERWER: I just think that they -- they had a bad hand, but they also played it poorly. They didn't really try to nail down the elements of Kavanaugh's denial which weren't consistent with the facts.

They didn't emphasize the fact -- look, this is a guy who, you know, stood up there in front of the entire country and identified the -- you know, the opposition party as his enemy, and then vowed revenge. I mean, by his own standard, Kavanaugh's own standard, he was unfit for the court. He said a judge should never be partisan. Well, he explicitly identified himself as a partisan and then Republicans confirmed him anyway.

LEMON: Yes. SERWER: I think, you know, more than anything else, you know,

regardless of where you stand on the allegations, that's just like -- that's a fundamental thing that a judge can't do. And no previous judge, no previous nominee has done it.

LEMON: Yes. So, Michael, if you look at the recent polls, right, they show that support for Kavanaugh was deeply divided along partisan lines. Do Republicans get Kavanaugh confirmed by keeping their party together? What did they do right?

MICHAEL BENDER, CNN POLITICAL ANALYST: Well, yes. What they did right is they're going to get 51 votes on this, and they absolutely kept everybody together. You know, and that was the end goal here, right? I mean this is Mitch McConnell's legacy. He blocked Merrick Garland. He got in -- you know, rushed through Neil Gorsuch, ran through Neil Gorsuch, now has Brett Kavanaugh, and there was no point at which McConnell was going to lay down for this.

I do think, though, that there will be some long-term effects. There could be some long-term effects for Republicans here. They're heading into these midterms facing some real questions about whether they were going to find voters outside the white male base of their party.

The biggest question in a few weeks is going to be how suburban women respond to the party, and I don't think they did themselves any favors over the last couple of weeks here. They had to be dragged kicking and screaming to approve -- to go along with an FBI report based on sexual assault allegations from an accuser that even President Trump found credible.

You know, the Senate shows up an average of, what, a few days a week to work in a given year. The one moment this year that the entire country was tuned in on the day of the hearing, they outsourced most of that job to someone else.

LEMON: Yes.

BENDER: So I don't think they did themselves a lot of favors here other than, as you point out, a huge victory for the party sometime tomorrow.

LEMON: So, Julie, what does a conservative majority on the court mean for Trump's political power?

DAVID: Well, I think it could mean quite a lot. I think that's going to be what we're all looking toward and what certainly Democrats on Capitol Hill are going to be looking at. We already have heard House Democrats say they want to try to impeach Brett Kavanaugh when he is installed on the court if the vote goes the way people think it will tomorrow, the way it looks almost certain to tomorrow.

[22:35:07] You know, one of the things that Susan Collins was very concerned about in her consideration of Brett Kavanaugh was whether he would uphold the precedent in Roe v. Wade, and she had said previously that she felt comfortable after having talked to him that he would and that he would not vote to overturn Roe, and that was a huge thing for her.

I think that's very much in doubt. We don't know what he's going to do. We don't know what the conservative majority may decide to do on that question. And certainly the last couple of weeks of his appearances on Capitol Hill put in some doubt whether what he told senators behind closed doors is what he would be saying publicly when the court is dealing with precedents like that, affirmative action, gay marriage.

There's lots of areas where they could be, you know, very -- they could make very consequential decisions but probably none more so than the question of presidential powers.

What happens if, for instance, Democrats take back the House of Representatives and there's a legal fight that goes all the way to the Supreme Court about whether the president needs to show his tax returns? You know, the Supreme Court and Brett Kavanaugh and a conservative majority could have the final say on that. And so that's going to -- it could be quite a big change that we're about to see.

LEMON: And we thought this was a mess. Maybe only just the beginning. Thank you all. Have a great weekend.

DAVIS: Thank you.

LEMON: A lot of Democrats are angry tonight at one of their own for his planned vote to confirm Judge Kavanaugh. But does Senator Manchin believe he's doing the right thing by the red state he represents?

Former Democratic Senator Max Baucus, who himself represented a red state, joins me next.

[22:40:00] (COMMERCIAL BREAK)

LEMON: Welcome back, everyone. The Kavanaugh nomination exposing a deep political divide in this country. Republicans and Democrats in the Senate voting in lockstep with their leaders, except for two. Republican Lisa Murkowski voting against Kavanaugh, and Democrat Joe Manchin from the red state of West Virginia voting yes.

So let's discuss now. Max Baucus is here. He is a former Democratic senator from Montana. So you know all about this because -- good evening by the way. You are a Democrat from a red state, correct?

FORMER SEN. MAX BAUCUS (D), MONTANA: Correct.

LEMON: So you understand the challenge here. A lot of Democrats how there tonight are upset with Joe Manchin, by the way. And, again, you know what it's like representing a red state in the Senate. Are they right or wrong to be upset with him, senator?

BAUCUS: Well, I know Joe quite well. I know Lisa quite well. I know Susan Collins quite well. I served with them. In my judgment, they're all three very strong, good people. They're class acts, all of them. All three of them. I can't say the same thing for some others in the Senate, a little bit beady-eyed, but those three are very solid. Now, the responsibility of a senator is to represent his or her people

in his or her own state. The party comes second. The people you represent comes first. Joe Manchin is doing what he thinks is right by the people of West Virginia as is Lisa Murkowski and Susan Collins. They're doing what they think is right.

LEMON: Yes. OK. One thing. Are they voting their conscience? Are they voting what the constituency wants?

BAUCUS: That's the ultimate question that every representative faces. When do you vote what your people want? When do you vote what you think is right? And 99 percent of the time, they're in sync. When they're not, my judgment is you've got to vote what you think is right because you've got to live with yourself.

And if you vote according to what you think is right, you can then do a good job explaining to your people back home why you did that. Most people at home want you to do what you think is right, and if they think you're listening to the other side you are considering other arguments, they'll pretty much give you a pass.

LEMON: So you think that's what--

(CROSSTALK)

BAUCUS: A couple of times I had to do that.

LEMON: Do you think that's what Manchin and Murkowski did? Do you think that they voted -- or even Collins to a certain degree. Do you think they voted their conscience, or do you think they voted what the people at home wanted in order for them to stay in power or to be re- elected?

BAUCUS: It's -- yes, yes, yes. It's complex. I mean it's -- there's no black and white answer to that question. Susan Collins, for example, representing Maine, she is an independent person. She's very thoughtful, as is Lisa Murkowski and as is Joe Manchin.

I think they did what they thought was right by the people in their own state. And I also think based upon the evidence, by and large, it was the right thing to do. It's hard. It's very hard. A couple times I had to do it. I voted for the Feinstein ban on the manufacturer of assault rifles in 1996. The next election I almost got beat.

LEMON: Yes.

BAUCUS: I got very unpopular at home--

(CROSSTALK)

LEMON: What would you have done in this case--

BAUCUS: -- but it was the right thing to do. Well, you know, when I was in the Senate, I voted for, I think, two Republican Supreme Court nominees. I voted against three Republican Supreme Court nominees. You got to call them as you see them. And some are pretty conservative. Bork, I voted against. Justice Roberts I voted for. I thought he was a little more moderate conservative.

In this case I think I would have voted against Judge Kavanaugh. All things considered, I think he's a little too partisan.

LEMON: Yes. And that's what many people said. They were -- the concern was that they were looking at this just as what was the corroborating evidence when it came to Christine Blasey Ford. But then after his performance, there was a major concern about partisanship.

BAUCUS: Yes.

LEMON: And you think that was fair.

[22:44:59] BAUCUS: Yes. Well, there's a deeper concern of mine, and that's what's happened to the court. It's -- this is so damaged, the court. It's damaged the judicial selection process. It may be a bit glib.

I think the Senate should go back and revisit the 60-vote requirement because that forces senators to work better together. It forces the president to more likely nominate somebody that's going to get 60 votes in the Senate. It's a bit glib. It's a bit easy to say.

But I think when we, the Senate -- and I was there when this happened. When we dispensed with it, that enabled the president to appoint a more partisan nominee, enabled the majority in the Senate--

(CROSSTALK)

LEMON: Wasn't that Harry Reid? Is that his fault?

BAUCUS: Yes, that's right.

LEMON: Yes.

BAUCUS: Well, he was so frustrated -- he was so frustrated because he couldn't get -- Republicans wouldn't let any nominees through.

LEMON: So Senator Tester there is -- Senator Tester in Montana has a tough race as well. He's been really quite a foe of President Trump. Will his no vote hurt him in your state, Senator Baucus?

BAUCUS: I don't think so. People know Jon. You know, we're a state with not a lot of people. There are only about a million of us. Huge geographic area. In Montana, we like to say Montana is one big small town. We just have to know each other. And people know Jon. They've known Jon for the last 12 years and they trust his judgment. I think it won't hurt him very much.

LEMON: Bigger picture. Are you concerned that there are such wide swaths of the country, swaths of the country where there are practically no elected Democrats and wide swaths where there are no elected Republicans?

BAUCUS: Yes, I am very concerned. It's interesting you ask that question because when I was first in the Senate, we didn't have this designation, red states or blue states. That's something that came up at a later date, and that tends to put people in boxes. It tends to force maybe mid country states to think they're red and coastal states to think they're blue. I don't like that at all.

I think there's another dynamic going on here. The senator of the country tends to think that the coastal states are a little elite. There's a little anti-elitism among mid-states and red states, and we just -- it goes to the basic point we've got to listen to each other more. That's the main thing.

I remember when I was running for office, my inspiration was a former Senator Mike Mansfield. He said, remember, Max, you're the guy who's not always wrong, and you're not always right. And I remember that always. You just got to keep that in mind.

LEMON: I don't know what that's like. I'm always right. Kidding. Thank you. I really -- come back anytime. It was a pleasure having you. Have a great weekend.

BAUCUS: You bet. Yes, you bet. Thanks, Don. You, too. Bye.

LEMON: We'll be right back.

[22:50:00] (COMMERCIAL BREAK)

LEMON: Judge Kavanaugh only hours away from his expected confirmation to the Supreme Court ending one of the nastiest nomination battles in decades.

Mark McKinnon is here. He is with me to talk about it. He is a former adviser to George W. Bush, and John McCain, an executive producer of The Circus airing Sunday nights on Showtime. It's time for our fireside chat as we often do here. Thank you so much. What a week.

MARK MCKINNON, EXECUTIVE PRODUCER, SHOWTIME'S "THE CIRCUS": This is a week where I almost don't want to do our show. You know, such a car wreck. There were body parts everywhere. And you know, we're all kind of feel like we're standing by the side of the road and there's mangled bodies everywhere and we're trying to figure out who was driving.

LEMON: So, a big win for the president, for Mitch McConnell and for Grassley. What are the long-term political costs and payoffs here do you think?

MCKINNON: Well, it could be short term win, long-term loss. And the physics have moved quickly because just a week ago, when it looked like they were going to push forward with the vote, the Dem -- you could really feel the energy on the Democratic side when they feel it's going to push through.

Then they got the extension, kind of the overtime. And then I went out into down Texas and Tennessee during the week. You could see the Republicans suddenly got played because they felt like the Democrats forces overtime or were kind bending rules and they hadn't got their nomination. But now that the -- now that the -- it looks like the nomination is

going through and he will be confirmed, I think that what -- the question is who is madder? That's where the energy comes from. And so the Democrats are madder.

LEMON: Madder. And the energy comes from the--

(CROSSTALK)

MCKINNON: That's where it comes from. They're angry. And so I think they'll be re-energized. They're pretty energized already.

LEMON: But don't you think Republicans are energized now because of that -- you don't think?

MCKINNON: No, I mean, there are some complaisance. We got our judge, you know, we're good.

LEMON: But in a way, they're right. It doesn't really -- I mean, honestly, it all matters. But in the scheme of things, the judges are what's really important here.

MCKINNON: Well, that's--

(CROSSTALK)

LEMON: Maybe even more important than who is actually sitting in the Oval Office.

MCKINNON: No question. Because the last, a lot -- you know potentially, decades what's happening on the courts. And it's something that the Republicans have done very deliberately and Democrats have been kind of asleep at the switch and finally now with we demand justice and other organizations are kind of getting on the program now of understanding how important it is to be pro active and have a long-term strategy that the Republicans have done for a long time.

LEMON: Can you imagine being a Democrat in West Virginia this week? You know who I'm talking about, Joe Manchin.

MCKINNON: Yes, I do.

LEMON: I just talked to Max Baucus about him because he, you know, he was a Democrat in a red state. Joe Manchin is a Democrat in a red state. You got to speak with him before the vote today, watch.

(BEGIN VIDEO CLIP)

SEN. JOE MANCHIN, (D) WEST VIRGINIA: People can say anything they want to say during these types of a really highly charge.

MCKINNON: Sure.

MANCHIN: But we can't forget about the victims either. You know, I'm hearing from people I never heard or thought of. I started thinking about my sisters and my daughters and granddaughters. You can't not know this has been traumatic for anybody through this type of sexual abuse. You never can forget about them.

Now on the other hand, still yet, there's a lot of claims that made on people that just aren't true. So shouldn't a person have a right to clear their name too? And I think that's where I want to have that balance.

(END VIDEO CLIP)

[22:54:59] LEMON: OK. So let's -- I have a couple of questions here. It's really impossible position. This isn't impossible. A very difficult position. Is he damned if he did, damned if he didn't?

MCKINNON: Well, if you'd ask me, if you told me a kind of fact set of the situation, asked me a year ago what Joe Manchin would do, I'd say he's going to vote yes.

So I just think that constitutionally that's where he is now where he was last year and where he's kind of always been. He's a very -- he's probably the most conservative Democrat in the Senate from a very conservative state that Trump won by 42 points.

But listen, I don't question his motive, you know. And I don't question -- I like to believe that most of these people and it's just naive and the cynics would howl me out of the room, I thought Susan Collins speech was very good.

I mean, I thought, you know, it was a very credible speech. And so I'd like to think these people took these positions then because that's -- you know, what a tough position they're all in.

LEMON: I got to go. Let me -- how many cities did you visit? Like, what was your travel schedule?

MCKINNON: My travel schedule this week started in New York, went to Texas, went to Tennessee, went to Washington, went to New York, back to Texas. Washington this morning, and back here.

LEMON: That was bad for me because I was like D.C., Atlanta, New York. That's no big deal compared to--

(CROSSTALK)

MCKINNON: I'll probably have to go somewhere else tomorrow.

LEMON: I can't wait to see. Thank you, always a pleasure.

MCKINNON: Kick it, captain.

LEMON: Kick it hard.

MCKINNON: Amen.

LEMON: The Circus airs Sunday nights on Showtime. Mr. Mark McKinnon. Next, the future of the Supreme Court in the age of Brett Kavanaugh. Is the institution about to be changed forever?

[23:00:00] (COMMERCIAL BREAK)