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What Was Missing: The Search For Truth; What Will Scope Be Of FBI's New Kavanaugh Probe?; Can New FBI Probe Make Definitive Conclusions?; Does Kavanaugh Calendar Corroborate Ford's Claim?; Deciphering Kavanaugh's 1982 Calendar Entries; What Will Kavanaugh Fallout Be For GOP?; ; What The Kavanaugh Hearing Reveals About Gender Roles; Our Digital Paper Trails. Aired 9-10a ET

Aired September 29, 2018 - 09:00   ET



MICHAEL SMERCONISH, CNN HOST, SMERCONISH: I'm Michael Smerconish in Philadelphia. We welcome our viewers in the United States and around the world. The Senate vote on Brett Kavanaugh delayed because of Jeff Flake's request for an FBI probe. This entire elaborate process mostly being done to convince a few key swing votes that will make all the difference, but what will we learn from an FBI probe?

And could Brett Kavanaugh's calendar that he supplied end up corroborating Christine Blasey Ford's claim?

Plus, might republicans win the battle, but lose the war. Will confirmation of Judge Kavanaugh come at the expense of GOP prospects in the midterm elections?

And the strikingly different demeanors of Kavanaugh and Blasey Ford says a lot about what society expects and accepts from men and women.

Plus, with so much attention to a single page of Kavanaugh's high school year book, shouldn't that be a warning to today's teens about their own digital paper trails?

But first, I was able to watch or listen to every minute of Thursday's remarkable hearing before the Senate Judiciary Committee. In fact, I tweeted contemporaneously both to share my thinking and record my thoughts before all the spin set in. My 63 tweets are still available. You can access them. They serve as a round-by-round recap. Here's a taste. About Dr. Ford I said, "Gut check on her opening statement. No flamboyance in her presentation, straightforward and yes, credible."

About Judge Kavanaugh I said, "Question, is this what you think a man wrongly accused looks like? Thus far, yes." In other words, I found them both to be credible, but as an attorney, I found the process to be lacking. Too much grand standing, not enough search for the truth. I think it's disgraceful that senators on both sides of the aisle weighed in on whether they believed one or the other before ever hearing them speak.

The five minute questioning format was disjointed, not fair to the special prosecutor engaged to question Dr. Ford. It prevented her from establishing any kind of rhythm as to her questioning.

And there were missing witnesses, one in particular, or as I tweeted, "If Kavanaugh is confirmed, which is increasingly in doubt by the minute, without calling Mark Judge, then this is a kangaroo court. This is a story about three people." Which is why I think the week ended with the right outcome, more investigation.

No republican senator could have withstood being asked by a constituent months from now how they voted to confirm Justice Kavanaugh without first hearing from Mark Judge, Kavanaugh's high school friend who Ford said was in the room during the assault.

By hitting pause for an FBI probe, Senator Jeff Flake did the nation a favor and here's what needs to happen now. The FBI needs to interview the three other people Dr. Ford remembers being at the high school house party in 1982. That would include Judge P.J. Smith and Leland Ingham Kaiser.

Barebone statements that they issued through counsel to-date are insufficient. They don't corroborate Dr. Ford, but nor do they exonerate Judge Kavanaugh. Judge said that he has no memory of the alleged incident, Smith said he has no knowledge of the party in question and Kaiser has said she has no recollection of being at any party or gathering where Kavanaugh was present, with or without Ford.

They have nothing further which is relevant to offer, but the investigation should not end until they've been thoroughly questioned by a neutral investigator. I don't think we're going to get a clear outcome, but at least the allegations will have been handled with the seriousness they deserve.

Now, I want to know what you think. Go to my website,, right now and answer today's survey question. What impact will the new FBI investigation have on Judge Kavanaugh's nomination? Will it hurt his nomination, will it help his nomination or will it have no impact? I'll give you the result at the end of the hour.

Joining me now, two FBI veterans, Tom Fuentes, he's the former FBI Assistant Director, and James Gagliano, retired FBI Supervisory Special Agent. James, what now takes place and who carries out this probe?

JAMES GAGLIANO, FORMER FBI SPECIAL AGENT: Sure. Michael, 28 years ago when I became an FBI special agent, that fall we had the Anita Hill- Clarence Thomas hearings and in that instance, the FBI was but a footnote in the investigation there. Here, the FBI has been thrust unwillingly, but front and center. What are they going to do? Well, they're going to conduct basically, another, reinvestigation or ground check of Judge Kavanaugh.

[09:05:04] And when FBI agents do this, when they -- when they -- when they process these for judicial nominees, like in this case a potential Supreme Court justice, this is a special inquiry so there's going to be headquarter's oversight and agents are going to look into nine different things: character, associations, reputation, loyalty, abilities, finances, potential biases, alcohol and drug use. So agents are going to go back to their drawing board. They normally only go far as back as their 18th birthday of somebody being investigation. In this instance, Judge Kavanaugh was apparently 17 when the allegations were supposedly took

place. Agents will have to dig a little deeper this time.

SMERCONISH: Tom Fuentes, so much of the focus seems to be on judge Kavanaugh and fact checking his testimony. Does Dr. Ford also run some risks in this process?

TOM FUENTES, FORMER FBI ASSISTANT DIRECTOR: She does, Michael, because when they get investigation this, her credibility is essential. If she can't recall where this took place or who was there or can't quite place all the facts, that's going to be a major difficulty for her story to carry forward.

But I think that this could come for both of them in the old, "be careful what you ask for," because when the FBI starts looking into her background, what she was like in high school, did she have a problem drinking too much, or using drugs or promiscuous or what was she up to?

If she's 15 years old and she's at parties with older boys who are drinking, what does that say? And that she can't recall how she got there, because she couldn't have driven herself there so somebody had to take her. That somebody might have known more about what occurred that evening. So there's a lot to her story that needs to be verified and may not be able to be verified.

SMERCONISH: James, this is a voluntary process, right? No ability for a search warrant to be executed, no grand jury subpoena. If these witnesses choose not to participate, they've got the ability to do so.

GAGLIANO: Michael, you're correct. Now, congress has subpoena power. So if they wanted to subpoena, let's say for example, Mark Judge and put him in front of the committee, they could do so. But the folks that are being interviewed on the background investigation by FBI agents, there's no compunction that they must participate in this.

If they say I'm not interesting in talking, absent a Grand Jury subpoena, to your point, or Congress forcing them to come testify in front of the Senate Judiciary hearing, FBI agents don't have must to go on except to make a note, went to go interview this person and they declined to comment.

SMERCONISH: Tom Fuentes, you're a former assistant director of the FBI ...

FUENTES: Michael, if I could add -- if I could add to that ...

SMERCONISH: Yes. Go ahead.

FUENTES: Nobody has -- nobody has to talk to the FBI. The only stipulations are if they lie, they can be prosecuted, but they could tell the FBI, "I don't want to talk to you," and can't be compelled whether it's subpoena or Grand Jury or anything else. So in this situation, if the other names that have come up do not want to get involved, do not want to make statements to the FBI, that will be the end of that.

SMERCONISH: Tom Fuentes, you are a former assistant FBI director. You and I have had conversations here over the span of the last year about the harm that's been caused to the bureau because of all the political back and forth with this administration. Who do you think is running this probe? Because these names are now household names to Americans in a way they wouldn't have been previously.

FUENTES: Well, Michael, what's different in this case is it's not a criminal investigation. Background investigations are directed by the White House. For the thousands of people in the country that get appointed to executive brand positions, secretary positions, judicial positions, U.S. attorneys, all of those require backgrounds by the FBI and the background -- who to do the background on is directed by the White House. Where the results are obtained, witness statements obtained by the FBI, that would go, normally, to the White House attorneys for their review.

Now, in this case, you have one more step because you have a committee, senate committee, involved in this, but this is different than a criminal investigation where the FBI would be independent and it would be up to the FBI and the Department of Justice to determine what needs to be done and how to go forward with the investigation. This is a little bit different because it's a background.

SMERCONISH: Final question for both of you. James, you go first. What's the likelihood that this entire process brings us to some clear conclusion?

GAGLIANO: Michael, if you were to ask me today, something occurs today, 36 years from now could the FBI come back and do a reasonable investigation and to get to the bottom of it? And I'd say absolutely because of technology, the maturation and evolution of police sciences and forensic evidence harvesting.

But to do this 36 years back, back to 1982 when we didn't have the same footprint, we didn't have the digital exhaust of laptops and cell phones and license plate readers and E-ZPass scanners, this is going to be damn daunting.

[09:10:01] I don't think they come up with anything, any related smoking gun here that's going to make this a clear cut case of she's accurate in this.

SMERCONISH: Tom Fuentes, where does it end?

FUENTES: Well, it may not and I agree with Jim that we could be just as far away from what happened a week from now as we are today. But the one thing that might come up is the FBI is going to be out asking people questions that knew both of these individuals in high school and there are things that could come out that we just don't foresee at the moment that may be large.

Just for example, when Kavanaugh was testifying, who would have expected all of the discussion about how much beer he drank and how much he liked it and what he did at parties and did he drink and pass out? And then he made counter allegations against the Senator, didn't you? Have you ever passed out?

I think that that makes it very difficult to avoid that topic now. What kind of drinking was going on? And again, that cuts both ways. Did Kavanaugh drink too much? Did he pass out? If they could ever -- if there was one time that he passed out and didn't remember it, then that lends credibility to Ford saying it happened whether he remembers it or not.

On the other hand, as I mentioned earlier, what is she doing hanging out with these guys who are drinking and she's 15 years old?

SMERCONISH: Thank you, gentlemen. Thrilled to have both of you here for your expertise. Folks at home, make sure you're voting at Go to my Facebook page. I'll read some responses throughout the course of the program, but today, I'm asking at, how does this probe cut? Does it help or hurt his nomination? Catherine, what have you -- what do you have?

"Michael, right off the bat says both were credible. No, Michael, one lied, one didn't. One wanted an FBI investigation and one didn't. You need to get off the fence."

Gmoney, I don't know in the end who's telling the truth or not. I tweeted in real-time as I watched their testimony and I found both of them to be credible. By the way, could be possible that both of them are telling the truth, right? That she was a victim the sexual assault and that he wasn't the perpetrator.

I don't know. What I most object to are the members of that Senate Judiciary Committee who weighed in before they ever heard any of the testimony. That's part partisanship and there's no place for it in a search for the truth like this should be.

Up ahead, as part of his proof of innocence, Judge Brett Kavanaugh provided his calender from 1982, but could his notes on one particular date actually help corroborate Christine Blasey Ford's story?




SMERCONISH: Trying to prove that he didn't commit the assault that Christine Blasey Ford accuses him of doing 36 years ago, Judge Brett Kavanaugh produced his detailed calendar from the era of their alleged encounter, but one of the dates might actually help her case. Here's Senator Sheldon Whitehouse in Friday's committee hearing.


SHELDON WHITEHOUSE, UNITED STATES SENATOR: Here's Kavanaugh's calendar. Dr. Ford said that Kavanaugh and Judge and P.J. and at least one other boy were all at a house. Well, we know Brett Kavanaugh was there because it's his schedule and here's Judge and here's P.J.. Here are all those three named boys and others at a house together just as she said.


SMERCONISH: So this is one of the many loose ends, which is why democrats kept pushing for the FBI investigation that is now finally happening. Joining me now is Zack Beauchamp. He's a senior reporter for "Vox" who wrote this piece, "Five Key Questions the Ford-Kavanaugh Hearings Left Unanswered".

Zack, let's scrutinize. In fact, going to put back up on the screen that July 1 entry and break it town. It puts Judge and P.J. there, right? But for example, there's no reference to any girls having been present. So how does this really cut?

ZACK BEAUCHAMP, SENIOR REPORTER, "VOX": So it's a big problem for his testimony. The reason why is it seems like his defense was going to be, from his opening statement, that he didn't drink on week days. Yet, under questioning from Senator Cory Booker, he admitted the "skis" in that July 1st calendar refers to brewskis. That is to say, beers.

And since it was a Thursday and some of the people who were attending were, in fact, the people that she named, that Ford named, as being present at the party, it would suggest that that's at least a plausible candidate for when the attack might have taken place.

SMERCONISH: So how about the fact that there are no girls who are referenced in the entry, right? So if you're thinking, you know, two of the people now that were referenced by Dr. Ford are there on that particular day, and they're drinking, but there's no reference to Dr. Ford having been there, nor is there any reference to any other women, girls, at the time, having been present.

BEAUCHAMP: Right. Now, the important thing about that is that according to the people -- and I believe one of the boys who was attending at the time, Tom, the reason that Dr. Ford was there is because she was dating the guy named "Squee" (ph), Chris Barrett, at that particular time. She refers to it as going out and she was a peripheral member of their friend group.

So it would suggest that she wasn't noted because she was somebody that Chris Barrett perhaps brought along with him, not necessarily someone that Kavanaugh was really close with or would have written down on his calendar. It was an informal gathering at which the partner, girlfriend, whatever term you want to use, of one of the people attending showed up. That's not uncommon for high school boys.

SMERCONISH: OK. But -- and again, this is me just trying to be an arbiter ...


SMERCONISH: Trying to be a trial lawyer, trying to be fair about the process. Squee (ph) wasn't referenced in her testimony, in her recollection, in her statement to Dianne Feinstein. And you would think that she would remember her former boyfriend, if that's what he was at the time, having been present.

BEAUCHAMP: That's absolutely true. You would think anyway and that's one thing the FBI really ought to drill down when they're looking at this.

[09:20:03] The only thing I would say, thinking about this, and according to the psychology that we know about trauma, is that the event itself, if somebody is sexually assaulted, can remain very sharp in their memory, but the details surrounding that event -- how she got home, for example, who else was there -- those things get a little bit fuzzy. So it's possible that even an important detail like that kind of got erased from her memory by the sharpness of the attack itself, which she described in such vivid detail during her testimony.

I think it's impossible for me to sit here and say that's the date. I know it, obviously.

SMERCONISH: Right. Right.

BEAUCHAMP: I don't know that. Nobody knows that, but it is something that's plausible and consistent with the evidence that we have.

SMERCONISH: Well, you would think. And I'm sure you heard my opening segment where I chatted it up with two former high-ranking members of the FBI. You would think that item number one on the agenda list would be to identify who is Timmy. I think we know who Timmy is.


SMERCONISH: And now try and establish how proximal Timmy's residence was to the country club. I think "The Washington Post" has already done that and established that Timmy's mother then owned or rented a house 11 miles away from the country club. Again, 11 miles, is that close enough to meet Dr. Ford's description? I don't know.

BEAUCHAMP: I would say so and I can that with some authority. I grew up not actually very far from the area in question. I knew kids who went to Georgetown Prep. Everyone drove around there and around that age and so 11 miles from a country club to somebody's house, that's a really short drive out in the suburbs. It's very plausible to me that she could have been driven from swimming at the country club there to the party and it wouldn't have taken very long.

SMERCONISH: Hey, Zack, I like your focus in this "Vox" piece and I recommend that people check it out because we've only covered one of the open questions that you identified. So thank you for being here.

BEAUCHAMP: Oh, sure. Hey, happy to be here as always.

SMERCONISH: Let's check in on your tweets and Facebook comments. What do we have? Twitter's exploding, I'm told.

"Smerconish, I'm still surprised at the lack of focus on his lies to the following: Devil's Triangle, boof, six F's, Renate Alumni. Answers, lied."

Look, Steven, you're not alone in that regard. He said Devil's Triangle was a drinking game similar to quarters. I don't remember referring to it back in the day as Devil's Triangle. These are aspects that will easily be nailed down by the FBI questioning -- a shame it's come to this, but questioning Georgetown Prep alumni and asking what was the colloquial meaning of Boof?

What was the multiple F reference? Was it his buddy with a stutter when he was dropping the F-bomb? Because that's what I heard in his testimony. Or was it the fine blank, blank, blank, blank because I've since learned all that? These are the sort of things that I think we all just need to catch our breath and analyze.

One more thing. I wish I would take the whole blanking hour and tell you what I think about this case today, but time is in a rarity. But I simply want to say this. The only reason to rush it is a partisan reason because whether it's Judge Kavanaugh as Justice Kavanaugh or someone else, we're talking about someone who, for the next 30 years, is going to have outsized influence on all of our lives. So let's all calm the hell down and let some fact-finders assist us in figuring out what transpired. And until then, keep an open mind.

Go to Answer this survey question. What will the new FBI investigation -- what impact will it have on Judge Kavanaugh's nomination? And I will give you the result at the end of the hour.

Still to come, after the FBI investigation, the dust settles, Judge Brett Kavanaugh may still be confirmed to the Supreme Court, but will that help or hurt the GOP when it comes to the midterm elections?




SMERCONISH: If Brett Kavanaugh is confirmed, the GOP has won the long game because he'll be on the court for decades, but what could be the possible fallout of this controversy for the GOP come the November midterms?

The Judicial Crisis Network, the conservative group that's been sponsoring ads on Kavanaugh's behalf, turned his testimony immediately into a another one called "Fighting Back". Take a listen.


BRETT KAVANAUGH, CIRCUIT JUDGE OF THE UNITED STATES COURT OF APPEALS: I will not be intimidated into withdrawing from this process. You've tried hard, you've given it your all. No one can question your effort. Your coordinated and well-funded effort to destroy my good name and destroy my family will not drive me out. The vile threats of violence against my family will not drive me out. You'll never get me to quit, never.

UNIDENTIFIED FEMALE: Tell your senator, confirm Kavanaugh.


SMERCONISH: Joining me now is Gayle Trotter who's a spokesperson for The Judicial Crisis Network and an attorney. By the way, you just got a free play internationally so there you go.


SMERCONISH: Do you worry -- do you worry that you'll win the battle, but lose the war. In other words that, OK, he gets confirmed, but now you have so incensed democratic opposition that it'll cause a big blue wave in the November midterms?

TROTTER: No, definitely not. When you look back to the 2016 presidential election, exit polls showed that one out of five voters said that the primary reason they voted in the presidential election was because of the Supreme Court and the President's power to nominate for vacancies. And of those who were polled, 58 percent of those voted for President Donald Trump and this should be affixed to the idea that presidents lose in the midterms after they've been elected in the first term.


And I think if you specifically relate it to the hearings we did polling on Thursday night that showed that support for Judge Kavanaugh was up after the hearing. And so Joe Manchin is going to have to decide whether he wants to go with the far left partisans in his own party or if he wants to respect the wishes of his voters. And I think that will have ramifications across the country not just for Senator Manchin.

SMERCONISH: Can you and I agree that Joe Manchin and every other senator ought to be withholding judgment until we see? What's the end result of the FBI probe?

TROTTER: The result of the FBI probe is that the Democrats want delay, delay, delay and there's a complete misunderstanding of the FBI's role. Advice and consent is a constitutional duty of the legislative branch. It's not for the FBI to do a criminal investigation in this case.

The Senate Judiciary Committee has more staff that are assigned to these types of allegations. And any statements that are given to the Senate Judiciary Committee like all of the witnesses that Dr. Ford mentioned who said that this party did not happen. They have no recollection of it, they're under the same obligation of perjury law --

SMERCONISH: OK. But -- wait a minute --

TROTTER: -- with those statements than if they submit them to the FBI. SMERCONISH: Respectfully I think you're bias is showing because you're telling me essentially you will not accept the outcome of the FBI probe. Believe me I know the rules. I know they don't come to a finding --

TROTTER: Correct.

SMERCONISH: -- but if in fact they show -- if in fact they show something that corroborates Dr. Ford's account, if there's some finding that is problematic for Judge Kavanaugh will you be unaccepting of that?

TROTTER: I base my opinion and so does our organization on the facts. And it's not about the -- it's less about the credibility of Dr. Ford, the credibility of her (ph) ---

SMERCONISH: How do you know what the facts are respectfully?

TROTTER: We have had so many sworn statements by the very people who Dr. Ford mentioned as corroborating witnesses including her friend Leland Keyser. All of them say that they have no recollection with this.

Dr. Ford doesn't know where it happened. Dr. Ford doesn't know when it happened. So any fair minded independent person can look at the facts and evidence in this case and understand that it does not substantiate Dr. Ford's claims. So we can --


SMERCONISH: I don't know --

TROTTER: -- have an FBI probe but if that makes Senator Flake more comfortable, if that makes Senator Manchin more comfortable, then that's great. That is where we are now.

SMERCONISH: OK. Here's -- here's my --

TROTTER: But there -- I believe that there is not going to be more evidence revealed through this FBI investigation.

SMERCONISH: And there might not be. In my commentary at the outset I said I don't anticipate that it gets brought to a clear conclusion much as I would like that to be the case. But I'm sitting here with an open mind because if there's something out there that's unaware to either of us we ought to be willing to accept it.

One final thought that I want you to respond to.


SMERCONISH: Dr. Ford's claim is that there were three people in that room. How in the world can the Senate make a judgment? Shame on those who weighed in already without knowing in full what judge has to say because he was the third person present. And I know before you tell me about what he gave to a lawyer -- I'm not relaying on some two paragraph meaningless statement. Let's hear what he's got to say.

Wouldn't you agree you want to know?

TROTTER: Dr. Ford gave many contradictory accounts about how many people were there. We will never know. It was 35 years --


SMERCONISH: Yes, in the room -- wait a minute. In the room there were two men present.

TROTTER: No, at the gathering -- it was the party -- correct. That is what she said.

SMERCONISH: But in the room the judge was present. She says --

TROTTER: This cannot be underscored enough. Both of those men deny that happened. They have -- Judge Kavanaugh said 100 percent certainty, 100 percent certainty, and you have to hold that in light of entire record. There are hundreds of women who went On the Record, publicized their names even in this hostile environment --

SMERCONISH: I hear you.

TROTTER: -- of threats who said that this is completely against Judge Kavanaugh's character. Women who knew him from high school, college, when he worked in the Bush administration, when he has been a judge advocating for empowerment of women for 12 years on what essentially is the second highest courts of the land.


SMERCONISH: OK. I got it. I got it. I got it. I understand.

I'm making -- respectfully I'm making a very specific point. Mr. Judge may or may not have witnessed a sexual assault.

I think he needs to be questioned extensively and I'm not about to accept -- my God in a court room we would never take some lawyer's two-paragraph denial of it. Let's meet the man, let's find out what he's got to say.

Final word. Go ahead you can have 10 seconds.

TROTTER: He agreed to cooperate -- sure. He agreed to cooperate but it's so funny that sometimes this is treated like a legal process and sometimes it's not. So if you want to treat it like a legal process give Judge Kavanaugh the presumption of innocence and not the presumption of guilt.

SMERCONISH: OK. I think it's fair.

[09:35:01] I think that's fair. I want to treat it more like a legal process.

I really as an attorney found it appalling what I witnessed. Senators being given five minutes and instead blowing four minutes and 30 seconds of it to grand stand instead of to ask probing questions of both of them.

Thank you being here.

TROTTER: And we will agree on that.

SMERCONISH: OK. Up ahead. Judge Kavanaugh -- do I have time for a tweet, Catherine (ph)? Can you show me something? No. I told you I'm limited on time today.

Up ahead, Judge Kavanaugh and Ford's demeanor in the hearing displayed a clear gender divide. What does that say about our culture's view of how men and women are allowed to express themselves?

Plus, when it comes to the current news cycle the timing for tonight's SNL's season premier couldn't be better. Will they take on Brett Kavanaugh the way they took on Clarence Thomas over two decades ago? Watch.


KEVIN NEALON AS SENATOR JOE BIDEN: Judge Thomas there have been charges by Professor Hill that you talked casually with her about graphic scenes and porno movies. Is that true?


NEALON: And did that work? Did it break the ice?


MEADOWS: No, senator. It actually offended her.




SMERCONISH: This week's Kavanaugh/Ford hearing provided a dramatic demonstration of the gender roles that persist in American society. While Kavanaugh expressed anger and frequently interrupted his questioners, Ford took a soft spoken accommodating approach. Watch.


DR. CHRISTINE BLASEY FORD, KAVANAUGH ACCUSER: I'm here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. JUDGE BRETT KAVANAUGH, SUPREME COURT NOMINEE: This confirmation process has become a national disgrace. The constitution gives the Senate an important role in the confirmation process. But you have replaced advice and consent with search and destroy.


SMERCONISH: At the end of the day both were praised as effective and convincing. But would the same be true if their tones had been reversed?

Joining me now is Zoe Chance, a professor of marketing at Yale School of Management. Professor, what if the demeanor had been reversed, what would we be saying today?

ZOE CHANCE, PROFESSOR OF MARKETING, YALE SCHOOL OF MANAGEMENT: We would be saying today that this is an angry woman. We don't believe her. Dispositionally she's angry. Maybe she's hysterical, maybe she's a bitch.

And we would probably be listening a little bit differently to Kavanaugh as well because we see his emotions as being indicative of a terrible situation. So we have dispositional anger for women and situational anger for men.

SMERCONISH: As between the two of them he was more prone toward tears. I was thinking that if that had been the reverse, we'd have different outcomes as well.

CHANCE: We're use to seeing women crying more than men and women get discredited especially in a professional environment when they shed tears. And for men it's so rare that we see them shedding tears that we paid more attention and again we believe that they're experiencing a stronger emotion in an appropriate way when a man shed tears especially if he's a leader.

SMERCONISH: Professor, I said that I found his anger appropriate in so far as I was asking myself as I watched giving him the benefit of the doubt. How would I expect someone wrongly accused to react? I would expect them to be pretty damn angry.

Others interpreted that as being intemperate and over the line. How did you see his anger in particular?

CHANCE: There are different types of anger. So what research says about anger in gender is that when men get angry they're more persuasive. We find them more credible. We find them more competent. It's exactly the opposite for women.

And Kavanaugh's anger it wasn't this sort of righteous indignation that we saw from Lindsey Graham which was very persuasive for many viewers. But he was accusatory and he was finger pointing. So there's a question of, if anger for men is effective, was his type of anger effective in the way that he wanted it to be?

One thing that he did do well I thought. SMERCONISH: Here's what I - yes, go ahead.

CHANCE: He was careful not to be attacking Blasey Ford. Because if he was attacking her defending himself against having attacked her, that wouldn't have worked well. He was attacking the Democrats and he was using a common enemy strategy to appeal to the group of Republicans who's probably going to vote him in.

SMERCONISH: He was a bit acerbic. Can I quickly show the Amy Klobuchar interaction? Put that -- put that up, Catherine (ph). Let's show it to the professor.


SEN. AMY KLOBUCHAR (D), MINNESOTA: You're saying there's never been a case where you drank so much that you didn't remember what happened the night before or part of what happened?

KAVANAUGH: It's -- you're asking about, you know, blackout. I don't know. Have you?

KLOBUCHAR: Could you answer the question, judge? And just so you -- that has not happened. Is that you're answer?

KAVANAUGH: Yes, and I'm curious if you have.

KLOBUCHAR: I have no drinking problem, judge.


SMERCONISH: I thought that was over the line. To be fair to him he apologized when they came back from break. What was the impact of that exchange?


CHANCE: This was a really important exchange because what determines how we feel about how the high school incident, if it happened, should effect his Supreme Court nomination depends on, do we frame it as a bad choice made in high school which all of us can probably relate to? Or do we frame it as disrespect for women and abuse of power?

And what he showed to Senator Klobuchar was definitely disrespect for women. So is he still that person that he potentially was in high school?

SMERCONISH: Thank you, Professor Chance.

I want to remind everybody to answer the survey question at, "What impact will the new FBI investigation have on Judge Kavanaugh's nomination?" Go do that now.

Still to come, the accusations against Brett Kavanaugh involve digging up 36-year-old calendars and yearbook pages. Today's teens are leaving much more of a digital foot print. Are they aware of the long term implications? (COMMERCIAL BREAK)


SMERCONISH: Regardless of whom you believe, there are many lessons to be learned from the brouhaha over Brett Kavanaugh's youthful behavior, the most important of which is that young and old men need always to treat women with dignity and respect. But we should also be cautioning our kids that this type of dispute is going to play out much differently in the future.

Consider that Kavanaugh's 1983 yearbook page from Georgetown Preparatory School has been subject to great scrutiny, notwithstanding that it contains just five photographs, four if we don't count his formal portrait picture, and just three if we discount one taken of him as an infant. Remaining is a beach shot with three buddies, another showing him playing basketball, and the final captures him on the football field. Whatever he and his friends might have preserved that didn't make the yearbook photographic cut was probably filmed on a Kodak pocket instamatic, so long as somebody was willing to sit in the drive through line at Fotomat.

Hence, we've been left parsing the meaning of written yearbook entries such as, "100 kegs or bust." "I survived the FFFFFFFourth of July." And, "Beach Week Ralph Club."

Well, just try explaining that to our kids because should such allegations surface in the future about somebody now in high school or in college, the visual documentation will include digital images saved on iPhones, plus, remember just post it on Facebook pages, Instagram and Snapchat. There won't be that one picture of a party that somebody held onto all through the years. There will be multiple versions saved across a variety of platforms.

Who was there? What was the mood? What occurred? Might all be preserved which is both good and bad.

And it won't just be visual. Some have mock Kavanaugh for just keeping a calendar from 1982, what looks like a give away from Northwestern Mutual Audubon Society which has handwritten notations for the prom, parties, a father son dinner, weightlifting, college interviews, beach week and Rocky 3, to name a few. There were even a few that reveal that he was grounded.

But many dates are left blank, and that too will be different in the future. Not only do many smart phones double as calendars, but the ability to cross reference information sources to determine whereabouts and behavior have grown exponentially. Our smart phones keep track of everywhere we go, who we talk to, even what we are thinking based on our online comments, posts and searches.

So if this weekend there's a Maryland High School drinking party or a drinking game played at a Yale dormitory that in the future becomes the focus of national debate, the matter won't be evaluated solely based on yearbook entries, smudged calendars, and faded memories, it will be scrutinized against the backdrop of Uber maps, cell phone triangulation, contemporaneous texts and tweets, and PayPal receipts. So in the age of digital technology, teach your children well.

Still to come, your best and worst tweets and Facebook comments. And we'll give you the final results of this survey question at "What will the impact be of the new FBI investigation on Judge Kavanaugh's nomination?"



SMERCONISH: Time to see how you responded to the survey question at "What impact will the new FBI investigation have on Judge Kavanaugh's nomination?"

Survey says 8679 votes, 66 percent say it will hurt, 22 percent say none, 12 percent say it will help. Fascinating. I will leave the question up for the remainder of the day.

Now what else are you thinking? Give me some of the social media that's come in during the course of the program.

"Watching your show and surprised you let that guest say why was Dr. Ford at a party at 15 with drinking, blaming the victim again? That was disgusting and even more that you didn't say anything."

Grandma, it's hard. You're right. Let me start it this way.

If I were on top of my game, I would have pushed back on that because it certainly doesn't represent my view. I would be a hypocrite, having attended many parties back in the day and not thinking less of any of the women who were there drinking with us.

Visit my Instagram page right now, you can see my high school write- up, and guess what? It refers to drinking. But it is hard within the time constraints of a show and guests to always be able to confront everything. But that was an odd statement. I agree with you.

Give me another one. "What amazes me is that the women are harder on Dr. Ford than the men are."

Valerie Jarrett Fitzgerald, let me just say this as a trial lawyer. It is something I always noted with the juries that I was picking. Women can be very circumspect with regard to other women.


So don't think it's going to be a complete gender lineup as to who we believe.

See you next week.