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New Day

May Survive Brexit Crisis; Trump Nominates Brett Kavanaugh; Judge Rejects Request to Alter Flores Rules. Aired 6:30-7:00a ET

Aired July 10, 2018 - 06:30   ET

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

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[06:32:49] ALISYN CAMEROTA, CNN ANCHOR: Well, British Prime Minister Theresa May is meeting her reshuffled cabinet today while she is embroiled in the political fight of her life. Two members of her cabinet resigned within hours of each other over a dispute with her Brexit strategy. All this happening ahead of President Trump's visit there this week.

So CNN's Nic Robertson is live at 10 Downing Street in London to bring us up to speed.

What's the latest, Nic?

NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: Yes, good morning, Alisyn.

Look at that photograph of Theresa May's cabinet around the table there. Mostly smiles. It's business as usual for the prime minister. She thinks that she's weathering the storm that erupted yesterday with these resignations, but it's far from over. Boris Johnson harbors (ph) ambitions of leadership. He may have sort of gone quiet right now. But I think the belief is that this isn't the end of it.

But right now the hope is on her part that over the next couple of weeks that will take her into the summer recess for parliament, if she can survive that long, then she'll be doing just fine. So, yes, she should be in office when President Trump arrives here. It does seem that many of the conservative MPs in her party are saying, look, let's not bring her down just now. Let's see if she can deliver on the type of Brexit, the type of leader in the European Union that we want.

A lot of questions remain over that. She still has a lot of work to do. She's commemorating today the 100th anniversary of the British Royal Air Force. President Trump arriving later this week. The fortifications around where he'll be staying in London are going up. Heavy concrete and fence barriers. Police check posts going in around there. It will be a tumultuous week here later as well when the president arrives. Expecting some big protests.

John.

JOHN BERMAN, CNN ANCHOR: All right, Nic Robertson for us in London. Nic, we're watching that very carefully. Thanks so much.

So, who is Brett Kavanaugh, now nominated to fill the seat in the Supreme Court? Two friends, former co-law clerks, will join us to tell us everything they know about him.

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[06:38:33] (BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Judge Kavanaugh has impeccable credentials, unsurpassed qualifications and a proven commitment to equal justice under the law. Throughout legal circles, he is considered a judge's judge. A true thought leader among his peers.

(END VIDEO CLIP)

CAMEROTA: President Trump praising his nominee for the Supreme Court. But who is Judge Brett Kavanaugh?

Joining us now are two of Kavanaugh's former clerks, Justin Walker and Jennifer Mascott. They know him well and they can give us insight.

Great to have both of you here.

JENNIFER MASCOTT, ASST. PROFESSOR OF LAW, GEORGE MASON UNIVERSITY: Thanks so much for having us.

CAMEROTA: Jennifer --

MASCOTT: Yes.

CAMEROTA: Your impression. Tell us what we need to know about him.

MASCOTT: So Judge Kavanaugh, the top thing to know about him is he's an independent, fair minded judge. He's got one of the sharpest legal minds in the country. I think "USA Today," in a story yesterday, said that on paper he may be the most qualified Supreme Court nominee in generations.

But in addition to that, he's also extremely approachable. He's a great mentor to former clerks. I clerked for him his first year on the bench. So finished my clerkship 11 years ago. And he's still one of the first people that I contact if I have a professional question.

He's hired a diverse array of law clerks, majority of which are women, and he's a terrific family, community man. He coaches his daughter's basketball teams and serves meals in the community through his church.

CAMEROTA: So you're not a fan. No, just kidding.

So, Justin, what were your impressions working for him?

JUSTIN WALKER, ASSISTANT LAW PROFESSOR, UNIVERSITY OF LOUISVILLE: Well, ditto to everything that Jennifer just said. [06:40:01] You know, getting to work for Judge Kavanaugh was an

amazing honor and it was exciting to be in his chambers. It was exciting to be around someone who has that kind of reverence for the Constitution, someone who takes mentoring and family as seriously as he does. And someone who was always an independent thinker. You know, every case they came to us, whether the litigants were right, left or center, regardless of whether the government was involved, criminal defendants, corporations, small plaintiff, he just wanted to know, OK, what does the law say? What's the text? What is the structure? What's the history of the Constitution or the statue that's involved?

And so it was just a great learning experience. And, you know, like Jen, I just think the world of him.

CAMEROTA: So, Jen, having been around him so much, do you have a sense of how he will vote if a challenge to Roe versus Wade comes up?

MASCOTT: Well, you know, the thing about Judge Kavanaugh, as Justin mentioned, is with every case he looks at the issues one by one. He's very careful to look at all of the relevant law and keep an open mind in each case. So, you know, of course you can't speak to his position on any particular case, but that he always keeps an open mind and looks fairly at both sides of every issue.

CAMEROTA: But, I mean, Justin, the fact that he had said during his confirmation process for the appeals -- for the circuit court that it is something to the effect of decided precedent and that he would faithfully and fully honor it. Do you think that that changes, that he would look at it with new eyes once he were on the Supreme Court?

WALKER: Judge Kavanaugh has actually written the -- co-written the leading treatise on what to do with judicial precedence. So it's not a mystery, you know, what he will do with every single precedent of the Supreme Court that comes before him. And what his book says is, you give enormous weight, you give great weight to the factors that go into whether or not to apply a settled law and you only overturn a judicial precedent of the Supreme Court under extraordinary circumstances.

CAMEROTA: And yet he seemed to -- I mean I hear you and that's really helpful. How do you both explain his about face when it comes to his views, it appears, on investigations into sitting presidents?

So, Jen, as you know, he helped Kenneth Starr lead the charge of the Whitewater investigation into Bill Clinton. But then, years later, I think in 2009, Judge Kavanaugh said that he did not think that a sitting president should be able to be investigated because the investigation can be so onerous it could get in the way of presidential duties?

MASCOTT: Well, again, I think, you know, on every issue Judge Kavanaugh looks at the text of the statutes, the text of the Constitution and he's going to look, you know, case by case. Each case raises a new set of issues and a new set of facts. And as a judge on the D.C. circuit, he's got an extremely long record that folks can look at. He's written close to 300 opinions, been a thought leader there, and I expect that he would continue to, in the same way, in a fair minded way, apply the law and the Constitution were he to be confirmed in the Supreme Court on this issue and any others.

CAMEROTA: But just help us lay people, who do not have the legal expertise that you both have, Justin, understand. Does that mean that he would support the ongoing investigation, the Robert Mueller investigation into President Trump, or he would not?

WALKER: You know, I have given up being the -- actually, I never went into the prediction business. What I know is the record of Judge Kavanaugh. And the record of Judge Kavanaugh is, whatever the issue that comes before him is, he's going to figure out, OK, what is the Constitution, what does the statute say? And he's going to consider that without any regard to partisanship, any -- he's going to do it in the most even-handed, independent, fair-minded way. So that's the prediction I can make is no matter what the issue is, he's going to approach it in that kind of -- in the way he's been approaching issues on the second most important court in the country for the past 12 years.

CAMEROTA: Yes, sure, and I'm not really asking for your predictions. I mean I'm asking for you guys to share your experience with him.

And, Jennifer, how do you -- how can you help us understand why he seems to have had an about face in terms of that particular issue?

MASCOTT: Well, I think, you know, as you're asking on this particular issue, Justin and I both had the opportunity to clerk for various justices on the Supreme Court after clerking for Judge Kavanaugh. And I think one thing that you mentioned lay people would be surprised about with the Supreme Court is, you know, there are many issues actually that don't end up reaching the Supreme Court. Many of the issues that do are issues that have broad based agreement along the spectrum of all the justices. They, more frequently than folks have realized, reach unanimity on issues. So I think some of these questions about, you know, how Judge Kavanaugh would rule on this or that issue, some of those issues just are not necessarily even going to come before the court in a direct way because a lot of the issues that the Supreme Court looks like are more nuts and bolts issues of applying law and not necessarily the big political issues that would always come before Congress or the president because it's an independent judicial branch.

[06:45:01] CAMEROTA: All right, we shall see.

Justin Walker, Jennifer Mascott, it is so helpful to have two people who know him well and know how he thinks. Thank you so much for sharing your experience with us.

MASCOTT: Thank you for having us.

CAMEROTA: John.

BERMAN: All right, a big legal setback for the Trump administration and its efforts to detain parents along with their children apprehended at the border. This as it does seem the administration is going to miss a deadline to reunite children younger than five with their parents.

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BERMAN: A federal judge has rejected the administration's request to allow long-term detention of immigrant families, calling it a cynical attempt to undo a long standing court settlement. Also today is the deadline to reunite 102 children under the age of five separated by their families from the U.S. government. Only about half, 54 of those children, are expected to be reunited today. In other words, the government's going to miss the deadline on more than 40.

Joining me now, Democratic Congressman Dan Kildee of Michigan. He visited a tender care facility in Michigan last week.

A lot of these kids have been sent to Michigan and are currently being detained there. So this is something that directly affects you and your constituency.

[06:50:04] First, if I can get your reaction to this federal court ruling by Judge Dolly Gee overnight saying that we are not going to go around Flores. Flores basically said that children can't be held for longer than 20 days.

REP. DAN KILDEE (D), MICHIGAN: Right.

BERMAN: You're not going to be able to hold parents and their children together.

KILDEE: Well, we had a program that was able to accommodate the Flores ruling. And that is the Family Case Management Program. It was initiated under President Obama. It worked. So there is a way to deal with asylum claim, to keep families together and have them appear for their initial hearings without having to take the brutal step of separating children from their parents and keeping them apart until their case can be determined. That's just not who we are. We shouldn't be doing that at all.

BERMAN: But not detain them. To be clear, your position, you support a program that does not detain parents who cross the border as the Trump administration claims illegally?

KILDEE: Unless there is some determination that that particular case requires detainment. But what the Trump administration has said is that everyone crossing the border has to be detained. And if there are children involved, those children should be detained separately from their parents. That -- that's brutal.

BERMAN: But the Democratic position, as far as I understand what you're saying, is that no parents who cross the border with children should be detained.

KILDEE: The Family Case Management Program had a 99 plus percent record of parents, asylum seekers showing up for that hearing. They know that that hearing is their opportunity to get safe harbor here in the United States. So I think unfortunately what happens is, the Trump administration tends to paint anyone crossing the border, anyone coming to the United States with a broad brush. And these are -- these are true asylum seekers.

I asked the people at Bethany (ph) what the stories were like. They said, these are folks who are really, generally fleeing violence.

BERMAN: And these are kids. These are kids, in some cases younger than five, who are being held in detention thousands of miles apart from their parents. I get that. I mean I get that there's a situation here. The judge, Judge Dolly Gee, basically said that it's on the administration, but also said that Congress hasn't done anything of it.

Let me just read you one quote. It's apparent that the Trump administration requested the cynical attempt to shift responsibility to the judiciary. For over 20 years of congressional inaction -- so she blames Congress, you guys -- but also ill-considered executive action that has led to the current stalemate.

The ill-considered executive action is the administration's decision to separate children from their parents.

KILDEE: Yes, and to keep in mind, they made this decision because they felt it was a tactical move that they could make to try to dissuade others from coming to the United States for asylum. They made it clear that taking a child away from a parent was intentionally done to try to dissuade others from doing the same thing. That is a very cynical use of government authority.

BERMAN: John Kelly said this was -- this idea sprang from being a deterrent. The fact that the government is not going to reunite these children with their parents on schedule, is there anything you do about it?

KILDEE: Well, I mean, I think part of the problem here is, they did not have a plan when they began separating children from their parents. When I was at Bethany, I spoke to caseworkers who said they were calling detention facilities throughout the United States to try to locate the parents of the children that they had under their care. They did not know where these parents were.

So the very idea that the Trump administration launched in this effort separating children from their parents without something as simple as a way to track where the parents and the child might be, says that this was -- this was really intended as a -- as a political effort to try to dissuade others from coming here and really not an effort to try to deal with this question of asylum.

BERMAN: Secretary Azar -- and I think this was June 28th or 29th -- claimed that he could go sit down at a computer terminal with a few key strokes locate any child or parent. Do you think that's true?

KILDEE: Well, I know it's not true because I spoke to the people who are taking care of those young kids and they could not locate parents of children that were under their care.

BERMAN: That's what bothers me in this scenario is it doesn't seem as if the federal government has an exact count. He uses an estimate of fewer than 3,000 kids. How can you have an estimate? Don't you know exactly how many kids you separated from parents?

KILDEE: They should know. I mean this is one of those cases where policy is important, but you actually have to be competent at what you do. And the administration seems so focused on perception, on the way they are perceived by the public, that they really don't understand that running a government requires a level of competence and care, especially -- and I think the real concern is, what could have been in their minds when they're separating a child from his or her parent that they were so cavalier about it that they didn't take extra precaution to make sure that they could figure out how to get these people back together again. They obviously did not think about that at the time. That says a lot.

BERMAN: We're going to hear a lot more from them. Again, they may not meet their deadline today or we have no idea if they'll meet a deadline for reuniting all the children that they can't count right now. So, we'll see.

[06:55:04] Dan Kildee from Michigan, thanks so much for being with us on it.

KILDEE: Thank you.

BERMAN: I really appreciate it.

Alisyn.

CAMEROTA: OK, John, the rescue effort is underway in Thailand. Already they've brought out at least two boys this morning and we understand there is still one boy left and his coach in the cave. They are trying to save them. We'll bring you all of the latest from the scene, next.

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ANNOUNCER: This is CNN breaking news.

BERMAN: Good morning. Welcome to your NEW DAY.

We are following breaking news this morning. Remarkable breaking news.

Divers in Thailand have rescued three more boys from the flooded cave. I think we have some live pictures from the cave entrance -- near the cave entrance. Back behind those trees, crews are racing to save the one remaining boy and the soccer coach. They are still inside that cave. They've been trapped there now for 18 days.

CAMEROTA: It's just such an incredible story. And we hope that during NEW DAY we can bring you more developments.

[07:00:02] Meanwhile, our other top story, the battle to confirm President Trump's Supreme Court nominee begins. Brett Kavanaugh's judicial record is already being scrutinized, of course. Critics are particularly interested in whether he believes a sitting president