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ANDERSON COOPER 360 DEGREES

President Trump Nominates Brett Kavanaugh To Supreme Court; Federal Judge Rejects Trump Administration Bid To Alter Rules On Detaining Minors; Thailand Rescue Operation. Aired 11-12a ET

Aired July 9, 2018 - 23:00   ET

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


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ANDERSON COOPER, CNN HOST: It is 8:00 p.m. on the West Coast, 11:00 p.m. here in Washington, D.C., where President Trump tonight unveiled the second Supreme Court nominee of his young administration, and protesters spent much of the evening marching outside the court speaking out on both sides of a single divisive issue, abortion rights. That his one vote may change after 45 years of settled law.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Tonight it is my honor and privilege to announce that I will nominate Judge Brett Kavanaugh to the United States Supreme Court.

(APPLAUSE)

(END VIDEO CLIP)

COOPER: Judge Kavanaugh, the D.C. circuit court of appeals, the father of two daughters. A long time fixture in the Washington Republican law and politics. He served on Ken Starr investigation on Bill Clinton and was staff secretary of the George W. Bush White House. Now before all of that, he clerked for a justice he was chosen to succeed, appoint he mentioned first in his remarks tonight.

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, NOMINATED AS UNITED STATES SUPREME COURT JUSTICE: Mr. President, I am grateful to you. And I'm humbled by your confidence in me. TRUMP: Thank you.

KAVANAUGH: Thirty years ago, President Reagan nominated Anthony Kennedy to the Supreme Court. The framers established that the constitution is designed to secure the blessings of liberty. Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.

(APPLAUSE)

(END VIDEO CLIP)

COOPER: Judge Kavanaugh promised to keep an open mind in every case, though he has never expressed outright opposition to the 1973 Roe v. Wade decision, he was vetted by the conservative federal society on that and other social issues. Judge Kavanaugh does not have any paper trail to speak off on marriage rights. He is on record of whatever the question of whether a President should be shielded from civil and criminal litigation until they leave office.

He has written that they should, and that could, of course, become very consequential. In any event, as you saw at the top, his nomination has sparked protests already, and already lobbying is underway by the White House to overcome it. The target wavering Republicans in red state, Democrats. Phil Mattingly joins us now from Capitol Hill. So, what is the reaction there you are getting so far?

PHIL MATTINGLY, CNN CORRESPONDENT: Yes, Anderson, you get a sense of dynamics on Capitol Hill right now. You need only look to the two leaders in the senate, Senate Majority Leader Mitch McConnell calling Judge Kavanaugh a very impressive nominee, well qualified for the position. On the other side, Democratic Leader, Chuck Schumer saying he will oppose Judge Kavanaugh's nomination for everything he has, and he hopes the bipartisan majority will join him.

The reality here is this, the vast majority of Republican in the Senate Republican Conference will align with Senator Mitch McConnell. The vast majority of Democrats in the Democratic caucus, they will align with Chuck Schumer in opposing the nomination. But it really all comes down to right now is five Senators, two Republicans, Senator Susan Collins, Senator Lisa Murkowski, who are very key on abortion rights. That will be a big issue for them.

On the Democratic side, three Democratic Senators, all of whom voted for Judge Neil Gorsuch, all of whom are in tight reelection battles in Trump won states. Joe O'Donnell in Indiana, Heidi Heitcamp in North Dakota and Joe Manchin in West Virginia. They will be key in the weeks ahead, Anderson, they will be the Senators to keep a close eye out for. And they will be the senators who will likely decide with Judge Kavanaugh becomes Justice Kavanaugh over the course of the next couple of months.

COOPER: Both sides clearly are ready for a fight with confirmation process. How is it going to play out, I mean in the coming weeks?

MATTINGLY: Look, this is going to be a bruising battle. I've talked to several sources with outside groups, one of whom told me expect tens of millions of dollars to be dumped in on both sides trying to pressure both the Republican Senators, and those Democratic red state Senators to come around, to one side or the other. The reality when you look at the dynamics that are currently at play right now is this is going to be a bruising battle.

But not one that is going to be done any time soon. It will be a process of about eight or nine weeks I'm told. It will start tomorrow. Vice President Mike Pence will join Judge Kavanaugh in his first meetings with Senators. And these aren't necessarily pro forma meetings, these closed door meetings may be crucial to how Senators end up deciding where they are going.

After that, there will the Senate Judiciary Committee holding a hearing. And then towards the end of September I am told, will be the final vote. I think the key issue right now, is when you talk to Democrats, it is all about healthcare and abortion rights, when you talk to Republicans, all about keeping things on track.

Remember, Anderson, Republicans, if they stay unified, if all 50 present Republicans vote in support of the nomination, he will be confirmed.

[23:05:00] If one or two start to peel off, that is where those red state Democrats become extremely key. You mentioned the key issue here that I'm told Democrats are keeping a very close eye, a very lengthy paper trail from Judge Kavanaugh's time in the Bush administration. Expect Democrats to key on that and more than anything else as I noted, Healthcare, abortion rights, those are the two issues they want to talk about.

Those are the two issues they want to bring to the forefront, while they recognize Anderson, on their own, they can't block the pick, their belief, when you talk to top Schumer allies, their hope is that they can drive some type of grass roots reaction to this to help not only keep their red state Democrats unified with rest of the caucus, but also peel off at least one of those possible Republicans to come to their side, Anderson.

COOPER: All right. Phil, thanks very much. The upcoming confirmation hearings going to be closely watched not just by the left, but also by conservatives. Many of whom see new members has now the opportunity to revisit Supreme Court decisions and arrange on what happen in cultural issues. Joining us tonight, former Republican Senator, presidential candidate, Rick Santorum.

Senator Santorum, first of all your reaction to Kavanaugh's nomination tonight, are you pleased with the choice?

RICK SANTORUM, CNN SENIOR POLITICAL COMMENTATOR: Look I thought all four of the candidates were extremely well qualified, and they have tremendous records, you know, certainly Judge Kavanaugh has as big a record as anybody out there. And is someone who I think overall is a good -- certainly qualified for the job. I think there were concerns from some even on the right that, you know, his record on some of the issues that you talked about hasn't really been out there. And that, you know, the fact that he is such a long-term D.C. type of

person that has raised some concerns from across the country. So, I think he has a little bit to prove there, but I don't think it's going to be a big hurdle for him, but the fact that he is sort of a creature of Washington is probably from the right the biggest drawback in his nomination at this point.

COOPER: You were a vocal advocate for Judge Hardiman. You talked to the people in the administration on Capitol Hill, not only leading up to the nomination, but during the last vacancy before Gorsuch was nominated. I think you have known Hardiman for 25 years. Have you gotten any reaction from him tonight?

SANTORUM: Look, I mean, I talked to Tom, you know, just after I got off the show here about an hour ago. And you know, he this morning when he got the call, he said, you know, look, let me help Brett, I think Brett will be a great justice, and he'll do whatever he can to be supportive of him, and you know, Tom is just -- he is a great guy. He is a, someone who I think, you know, respects the jurisprudence of Judge Kavanaugh, and you know, I don't -- I don't disagree with that.

I think he is certainly a very bright man, and simply has a great record. And the area that I think that the administration at least from my take has made the decision is, you know, the President really wants to go after the administrative state. I mean that is a really important issue to him, it is important to his base. And there is probably no one has a bigger record on that, and certainly been as aggressive on that as Judge Kavanaugh.

So I think he is tried to -- he is itching for a fight on going after the power of the government, you know, this whole chevron deference case, which I'm sure has been discussed here. That to me is really part of why the President picked Judge Kavanaugh to make sure that we had someone who is going to really focus the nomination on those issues, maybe not some of the other issues that you talked about earlier.

COOPER: I mean, obviously, you know better than anyone how contentious the Senate confirmation process can be, is Kavanaugh going to face a tougher confirmation battle than others would? I mean, because as you said because of the volume of documents from the 12 years he is had on the U.S. Court of appeals for the D.C. circuit?

SANTORUM: It's not really as much -- I don't think as much as his volume of work on the D.C. circuit, I mean, Judge Hardiman had more opinions than Judge Kavanaugh. I think it's really the other things that he did. White water, and --

COOPER: The Bush White House.

SANTORUM: The Clinton impeachment, the Bush White House, I mean there is literally millions of pages of documents that they are going to have to review. That is sort of, you know, the question. Is there something out there? Is there some sort of smoking gun? Now, obviously I'm sure the administration has done a great job in looking at the background and those sorts of things, but that is -- that is the only, you know, the only thing is just the volume of things that Judge Kavanaugh has been involved with is something that should cause a little concern, but, again, I'm not -- I'm not saying there is something out there. I'm just saying that that is something that people have to be concerned about.

COOPER: Senator Santorum, Santorum stay with us if you can. I want to bring in our political panel, David Axelrod, Gloria Borger, Dana Bash, Jeffrey Toobin, James Schultz. Jeff, let's start off with you. What do you make of this pick? You obviously have been, you know, very publically saying you think abortion will become illegal in -- within 18 months in 20 states.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I do. I think Donald Trump promised the conservative movement during the campaign in very explicit terms, in interviews, in the debates with Hillary Clinton, he said, I will appoint pro-life justices who will vote to overturn Roe v. Wade.

[23:10:14] I think what he meant by that, was he will appoint pro-life justices who will vote to overturn Roe v. Wade, and I think that what he is done. He is got two of them. I think this nomination is more consequential than the Gorsuch nomination, because he is replacing Anthony Kennedy, who voted in favor of abortion rights, who voted in favor of same sex marriage, who voted in favor of affirmative action. I think all those things are out the window now. I mean, I think elections have consequences, and this consequence is going to be enormous in the country.

COOPER: What about the implications for the Mueller investigation?

TOOBIN: I think, you know, one of the really remarkable things about Judge Kavanaugh is that he has expressed not that -- on many subjects he has been pretty circumspect, on this one he hasn't. The President should be shielded from investigations, that they should be shielded from questioning. They should be shielded from having to produce documents, and of course, they should be shielded from being indicted. And you know, I don't think Donald Trump is much of a legal scholar, but I bet that law review article that he wrote on that subject jumped out at the President and he said you know what, I like that.

COOPER: I want to put that up actually up on the screen, and ask Jim about it. Even the lesser burdens of a criminal investigation including preparing for questioning by criminal investigators are time-consuming, and distracting, he went on to say, and a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

TOOBIN: If I could just add one point, I mean, he didn't say that when he was investigating Bill Clinton, when he was investigating Bill Clinton, he didn't care about how busy Bill Clinton was. So I think there is a -- there is a -- there is a creepiness about the timing there, too.

COOPER: Not riddled by guilt.

UNIDENTIFIED MALE: Creepingness or creepiness. TOOBIN: Creepiness. It's a legal phrase you may not be familiar

with.

COOPER: Jim, do you think this has a big implications on the Mueller investigation.

JAMES SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: The office of legal counsel opinion is clear that the President can't be indicted while he is sitting as President. Mueller -- there has been reports that Mueller certainly says he agrees. This is not something new. And I think the fact that Judge Kavanaugh, you know, has that opinion is not, you know, he has been through it. He understands it. And I don't think it's all that creepy, because he has been through it, and he understands it. So I think there is a very, you know, a person --

COOPER: Is it weird though that he has been through it on the other side, I mean doing the investigation?

SCHULTZ: No, I don't think it's weird. Because you learn from your experiences, right? And he is come out and made these observations, in the wake of what he worked on under Judge Starr, and I don't find it all that -- all that surprising, or intriguing or, you know, the fact of the matter is that the -- this investigation is taking its course. And it's going to run its course. And the investigation is ongoing. The investigation isn't going to stop because Judge Kavanaugh is confirmed as Justice Kavanaugh.

GLORIA BORGER, CNN CORRESPONDENT: You know, there is a question and Michael Zeldin raised this earlier in the evening about whether Judge Kavanaugh would have to recuse himself, because he is written about this. And should Trump's -- should the Special Counsel Mueller decide that he is got a subpoena -- that he is going to subpoena the president.

TOOBIN: I don't think recusal is a good idea.

SCHULTZ: Yes, exactly. I mean, we should have --

BORGER: This is going on currently.

SCHULTZ: There is no personal --

DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR: On this issue of subpoenas, because I think you are right. I think Mueller, there is a -- there is a widely held belief that he may just issue a report and leave it up to the house to decide what to do. There is this question about whether he can compel the President to testify and what implications are there in Kavanaugh's words on that issue?

TOOBIN: That is the key issue. You are right. I mean, the issue of indictment is off the table, but the fact that he wrote that he shouldn't be questioned, that is likely to become before the Supreme Court.

BORGER: The civil litigation as well. DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: Right. Exactly. And

this isn't just academic. This is pending. I mean, this is -- it's not definite that it's going to happen, but it certainly could. And when I say it, I mean that there -- irreconcilable differences in a potential interview between Trump and his legal team, and Robert Mueller, and as a result, Robert Mueller decides, OK, I need -- I need your testimony. I'm going to subpoena you. And it will have a fast track to the Supreme Court depending on the timing, Brett Kavanaugh will be (inaudible) --

COOPER: Senator Santorum, do you see this having an impact on the investigation?

SANTORUM: No, actually, I don't. I mean, I think this idea that you write a law review article and you have to recuse yourself or somehow or another you shouldn't be able to rule on things is absurd. He has not been directly involved in this investigation in either side of it.

[23:15:00] So, you know, I actually agree with the position that Judge Kavanaugh has taken, and I think frankly I believe most of the court would, too. And David Axelrod, if this were happening to a Democratic President and others would probably feel the same way. I mean, the President needs to be removed from these types of games played, you see this going on in several states where people are indicted, who are in public office and it's just all political. And the President can't be bogged down with things like that. There is a place for this to be handled, and it's through the impeachment process.

BORGER: Well, this is --

COOPER: David, do you want to?

AXELROD: Well, I mean, look, there is an impeachment process, there is no indication that this Congress would ever act on that. So essentially when you are saying if there is no recourse, and there is no way to compel testimony, and you can't indict and it's up to the house, and the house is in the thrall of the President as this house has been, you are essentially crippling any attempt to move forward on an investigation.

SANTORUM: That is not true. David, there is all sorts of people you can interview, we are saying you can't interview the president, you can interview anybody else, you just cannot interview the President. So, the idea that you are not going to be able to conduct an investigation without interviewing the President, that is simply not true. Most cases, you know, there is all sorts of people interviewed before the main person is even brought into the whole scene. So, I just don't buy that. Richard Nixon wasn't interviewed, and he was brought down why? Because of all the people around him that gave testimony. There is plenty of opportunity for political mischief by a special prosecutor without having to talk to the President or subpoena him.

SCHULTZ: The constitution contemplated all of this, right? It was by way of impeachment. That is the rules of the game. As dictated by the founders of our country. COMPTON: Although, Jeff, if you are trying to get to intent, don't

you have to interview --

TOOBIN: Absolutely. And let's not forget that the Supreme Court has dealt with this question at least indirectly in Clinton v. Jones. In the Paula Jones case, the Supreme Court said, we don't care how busy Bill Clinton is, he has to give a deposition in the Paula Jones case.

Now, historically, the courts have been even more solicitous of grand jury investigations. So you would think the logic of Clinton V. Jones is that the President would have to give grand jury testimony as well. So, you know, it's not like we writing on a blank slate here. Kavanaugh's position as outline in that (inaudible) article is much more solicitous of the President's position than the Supreme Court.

BORGER: Kavanaugh's position is Donald Trump's lawyer's position, period. They have been saying all along from day one that you shouldn't be bothering the President with all of this right now. That some of this can be taken care of if you have civil suits, it should be done after he leaves office, et cetera, and by the way, they don't believe that Mueller, they are betting that Mueller is not actually going to try and subpoena the President. Whether this affects Mueller's decision, we have no idea, but don't forget one thing, the President has said that he wants to testify publically.

COOPER: We have to take a break. We will have more with this panel, we will talk more about the stakes involved here, as well as the politics of playing the confirmation process. And of course the midterm election as well. There is also more breaking news even as the White House asked for more time to reunify migrant families, a Judge says no to detaining children for longer than 20 days. The details ahead on what could be a serious legal blow to the administration on that.

[23:20:00] (COMMERCIAL BREAK)

COOPER: We are back talking about the second Supreme Court pick of the Trump administration, perhaps a decisive voice and a whole host that happens in social issues, abortion, amongst them. Protesters for and against gathered outside the court tonight. Certainly before the announcement. I spoke about it former Planned Parenthood President, Cecile Richards. With exemptions to the vetting process that every candidate underwent.

(BEGIN VIDEO CLIP)

CECILE RICHARDS, FROMER PRESIDENT, PLANNED PARENTHOOD: I mean he obviously sort of contracted out this whole process. It's the most political process I've ever seen for a Supreme Court nomination. And he has said very clearly, gave it to federalist Society. They want a Judge that would overturn Roe. This is a right that women have had in this country for more than 40 years, and I think that is why women in this country are concerned. I think you will see mobilization all across America, we already saw it the day after the inauguration, but women are deeply concerned that this president is committing to eroding rights to healthcare access, birth control access and safe and legal abortion.

(END VIDEO CLIP)

COOPER: We are back now with the panel. It is part of the Democrats strategy to try to draw out of confirmation process in getting this close to the midterms as possible?

BASH: Yes, that is definitely part of it, because the more you draw it out, the sliver of a chance that won't go through, it becomes a little bit more of this sliver, but more importantly, the more they draw it out, the more that they can continue to energized the Democratic base. Not that it doesn't seem to be as much more energize that it does and it has, but, you know they will take what they can get, because the goal in November is to take back the house to maybe even the Senate, but that actually a very difficult thing for the senate to really focus on the Democrats in particular, because you have this red state Democrats. (Inaudible) particular who voted for Neil Gorsuch or in huge Trump states. I mean, where Trump won by double digits, plus, plus. And they have to have this balancing act of appealing to the voter who voted for Trump, but also has voted for them and there are a lot of them.

COOPER: Like Joe Manchin.

BASH: Like the Joe Manchin or Joe Donnelly in Indiana or Heidi Heitcamp, but then not depressing the energy in the liberal pockets of this red states. Not to mentioned the fact that they need money nationally, for the liberal groups who might get upset if they end up voting for Trump nominee.

AXELROD: And you know I think, that the base is demanding a fight to the death on this for all other reason that had been discussed, but also raises that expectation about what can be accomplished. This is a very, very, steep climb to try and block this nomination and I do think one answer. It may be that the president -- that the fight here will actually make it easier for some house seats to be flipped Democratic in suburban areas where women are already geared up and angry about the policy of this president and it could be that the president is in some ways trading House Seats and Senate Seats here, if in fact Senate Democrats are damage in these red states and I think, they are on a vice here, it is a choice of just exactly what you said which is the base expects you to fight to the end and swing voters want them to give the president.

[23:55:26] BORGER: So I spoke with a Republican strategists tonight who said to me they are going to make this the number one issue for Claire McCaskill in Missouri that she's and they believe she's been wrong on Supreme Court picks and that this is a very common issue for them and that it's all gonna be about Kavanaugh if she decides to vote against and I think it's gonna it's going to turn it around for them.

SCHULTZ: And that's a real tight spot -- Senator Joe Manchin, Patrick Morrisey, the Attorney General for West Virginia made it his business to challenge the Obama administration on Obama care energy issues for the state for the state of West Virginia which was tremendously hurt by the by coal issues and things that Donald Trump ran on as then candidate Trump and now President Trump and fulfilling this and voting for Kavanaugh is something that is going to be real tough issue.

BASH: I am going to go out on the list and say that, Joe Manchin, Joe Donnelly and maybe even Heide Heitcamp it will be very difficult for them to vote against.

BORGER: I also think Lisa Murkowski and Susan Collins will have a hard time they voted for Kavanaugh for the D.C. court and the Republicans and I think they are to have that these Republican moderates are going to have a hard time saying no to the president on this.

TOOBIN: But if the issue becomes Roe v. Wade, somewhere around 60 or even 70 percent of the country wants Roe v. Wade to be kept. That wants abortion to remain legal is that of a political winner for Republicans is that of, I mean, I asked my political better here.

AXELROD: I think there are some thank you for that. I think there are some areas in which as I mentioned in some of these suburban house races I think even though her house doesn't vote on these things it will perhaps energize the Democratic base even more, it's tended in the past to be more of a voting issue for, I mean the court generally for Republicans than Democrats and --

BASH: And that is interesting, whether or not this is going to help turn that tide, because of the last generation it had been a rallying cry of desertion to the court, I mean it is why Donald Trump got the nomination despite the fact that historically is for abortion rights. It is because he made a promise for this list and you know, he is picking from on the Supreme Court Democrats haven't been energize.

AXELROD: You know that one of the reasons I think that that Judge Barrett wasn't selected here was because she was a bright red flag on the Roe versus Wade issue in and on my guess is a Kavanaugh is going to be evasive on this question. So they have to impute to him of the intent of doing away with Roe versus Wade will site the presidents statements on it, but it will create enough for those people who want to be with them with Fort Collins for Murkowski. Now that could change and the pressure could become enormous, but I expect that he will be very schooled and practiced and answered.

COOPER: There is a quote that he had said earlier during earlier confirmation hearing where he talked about that its precedent.

AXELROD: Right and --

TOOBIN: Brett Cavanaugh has been on a rocket ride to the Supreme Court for a long time. One reason why Democrats delayed this nomination for so long in during the George W. Bush presidency as they knew he looked like a future Supreme Court Justice and Chuck Schumer was asked a whole bunch of questions about Roe v. Wade which he answered by saying I'm just a lower court judge, I have to follow Roe v. Wade like any other president. It's been refer that is an answer that works well when you're being nominated for an appeals court. You have to figure out other ways to dodge the --

COOPER: I got to get in a break in, just had exactly who is Brett Kavanaugh, detailed look at his background next and what is written about later the very latest on that dramatic rescue northern Thailand which is just resumed its daytime now they are still for kids and adults are trapped inside that cave.

[23:30:00] (COMMERCIAL BREAK)

COOPER: His life of course changed forever the moment President Trump made the announcement a couple of hours ago in the East Room. Brett Kavanaugh was born in Washington. He has been (INAUDIBLE) there as a federal judge since 2006. Randi Kaye tonight has a detailed look at the most recent nominee to the Supreme Court.

(BEGIN VIDEOTAPE)

BRETT KAVANAUGH, JUSTICE: Justice Kennedy devoted his career to securing liberty. I am deeply honored to be nominated to fill his seat on the Supreme Court.

RANDI KAYE, CNN CORRESPONDENT (voice-over): Judge Brett Kavanaugh has been on the D.C. Circuit Court of Appeals since 2006. The 53-year-old Kavanaugh is a former law clerk to Justice Anthony Kennedy.

KAVANAUGH: Justice Kennedy is a student of history. He is a student of the Supreme Court. He conveyed to his clerks and certainly conveyed to me to use one of his favorite phrases, the essential neutrality of the law. I am forever grateful to Justice Kennedy for the opportunity to clerk for him.

KAYE (voice-over): Still, Kavanaugh is not without his critics. Many of them suggest he has been part of the establishment for too long. He helped investigate President Bill Clinton along with Independent Counsel Kenneth Starr.

It was Kavanaugh who helped lead the investigation into the death of Vince Foster, A Clinton aide, and helped write the Starr Report to Congress, which outlined grounds for President Clinton's impeachment. After that, Kavanaugh served as a close aide to President George W. Bush.

KAVANAUGH: This is what I call an honest broker for the president, someone who tries to ensure that the range of policy views on various subjects in the administration are presented to the president in a fair and even-handed way.

KAYE (voice-over): With President Trump's administration under investigation for colluding with Russia during the campaign, no doubt Kavanaugh's writings from 2009 will be getting a closer look. That year, he wrote the nation's chief executive should be exempt from time-consuming and distracting lawsuits and investigations, which would ill serve the public interests especially in times of financial or national security crisis.

[23:34:59] Some have interpreted this as opposition to the indictment of a sitting president. CNN had learned that the Trump team was aware of these comments during the vetting. On health care and abortion, Kavanaugh has already made controversial decisions. Last year, he sided with the Trump administration to block an abortion for a pregnant immigrant teenager in federal custody, noting the government's permissible interest in favoring fetal life. In the nomination process for the Supreme Court, he did have the backing of Breitbart and Ann Coulter.

KAVANAUGH: My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law.

KAYE (voice-over): Judge Kavanaugh was born in Washington, where his mother was a public school teacher. In his younger days, he attended Georgetown Preparatory School, then went on to Yale University and Yale Law School, graduating in 1990.

Kavanaugh has two daughters with his wife Ashley, who worked as the personal secretary of George W. Bush when he was governor of Texas. Judge Brett Kavanaugh has ran the Boston Marathon twice, so he may just have the stamina that will be required of him to serve on the highest court in the land.

Randi Kaye, CNN, New York.

(END VIDEOTAPE)

COOPER: We are back with CNN Chief Legal Analyst, Jeffrey Toobin. Also joining us, former U.S. acting solicitor general, Neal Katyal. He argued against the president's travel ban before at the Supreme Court.

Neal, what about precedent, because we talked about this before, in 2006, when he was asked about this on his confirmation hearing for the D.C. Circuit Court. He said, "if confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It's been decided by the Supreme Court."

A lot of people have been tweeting that out tonight and saying, look, all this talk about Roe v. Wade being done away with is much to do about nothing.

NEAL KATYAL, FORMER U.S. ACTING SOLICITOR GENERAL: Yeah, that means absolutely zero. The difference --

COOPER: That statement.

KATYAL: That statement. It's nothing against Judge Kavanaugh but, you know, what you say on the lower court is obviously bound by Supreme Court precedent. It's almost like two different professions. What happens on the Court of Appeals, what happens at the Supreme Court indeed as advocates, the Supreme Court lawyers --

COOPER: So do Supreme Court justices take precedent about what previous Supreme Court -- I mean, do they -- does that weigh heavily on them?

KATYAL: It weighs. I would not say weighs heavily and particularly not in constitutional cases. So what Judge Kavanaugh there said has no bearing whatsoever and how it be on the Supreme Court. What does have bearing is what Donald Trump said during his campaign. He promised that he would put two or three justices on the court who would overrule Roe vs. Wade. And that is an explicit evidence of the country from Judge Kavanaugh. I think we should all assume that is his position.

COOPER: Jeffrey, (INAUDIBLE) about it, I mean, you do have cases like Justice Souter who people didn't quite know much about him and didn't were surprised by how he ended up.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: I think of this as the myth of the surprised president, the idea that the presidents turn out to be surprised. If you look at all nine justices and I would include Kennedy in this, there are no surprises on the court, that that the scrutiny that goes on today is different from the scrutiny that went on even when Georgia Herbert Walker Bush nominated David Souter in 1990.

These justices are picked because of how they are going to vote. And if you look at the four Democrats, Sotomayor, Kagan, Ginsburg and Breyer, all came out exactly as expected, and it's true for Alito, it's true for Roberts, it's true for Thomas, and Kennedy even -- remember Kennedy was picked because Robert Bork had been defeated. So they knew they had to pick someone more moderate and they got someone more moderate.

KATYAL: I'm always a little worried to disagree with my friend, Jeff, but on this, think about Justice Kennedy. Even President Reagan thought that he would be the swing vote to create gay marriage in this country or uphold affirmative action or uphold abortion restrictions as he did in 1992.

Those are all the types of precedents that are now at risk in this nomination. That's why this is such a big deal. This is unlike last year's fight. This is the fight of basically the future of the Supreme Court for the next 40 years.

COOPER: For the next 40 years?

KATYAL: Possibly, yeah, absolutely. I mean, these two are young jurors (ph), yeah.

TOOBIN: You know, when the Constitution was written in the late 18th century, people were expected to die in their 50s. The framers never contemplated that these terms would regularly go to 30 plus years as they do now. And, you know, that -- I'm glad everybody is living longer but that's what raises the stakes on his appointment on this nomination fight so much -- so much more because they surface so long.

KATYAL: I want to say, you know, (INAUDIBLE) 37 cases before Justice Kennedy. Every single one of those, you knew he kept an open mind. He tried really hard. I think in one of your pieces, you called him the agonizer (ph) or something like.

[23:40:00] That was very true. And I think, you know, the recent nominees -- I agree with you -- the recent nominees on both sides, maybe struggled a little bit less into than in the coming with a little more of a preconceived notion than some of the earlier justices.

COOPER: Neal, thank you. Jeff as well. Coming up, federal judge rules the Justice Department must adhere to a decade-old settlement that limits to 20 days, the time the government can keep immigrant children in custody. Only about half of the kids under five who were separated from their parents will be reunited by another court imposed deadline tomorrow. We will have details on that.

Also a bit later, the latest from Thailand where it is daytime now. Rescuers are resuming their effort to save the four remaining children and one adult still trapped in an underground cave.

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COOPER: A California federal judge ruled tonight that a decade-old settlement limiting the length of time immigrant children in custody must be adhered to. That limit as you probably know is 20 days and the Justice Department had asked for modification.

This is only about half the kids under five who were separated from their parents at the order will be reunited with their parents by tomorrow which is a deadline imposed by a different court.

Ed Lavandera is at the southern border for us tonight. So what is the latest on the reunifications?

ED LAVANDERA, CNN CORRESPONDENT: Hi, Anderson. Well, tomorrow is this deadline that you talked about.

[23:44:57] This is applying to children under the age of five, described as a tender age, that a judge several weeks ago ruled that they would all have to be reunited with family members by tomorrow. But it's clear that the federal government won't be able to fully meet that deadline.

During a court proceeding earlier today, federal government attorneys essentially saying that a little more than half of the more than 100 children under the age of five would be in position to be reunited by tomorrow. So what exactly happens to the rest of them, there are many families and obviously immigration attorneys up and down of the U.S. southern border are waiting to see how all of this is going to play out.

But the significant headline here tonight is that even though this deadline is looming, less than 24 hours away now, it is clear that not all of the children under the age of five will be reunited.

COOPER: So, wait a minute, I mean, what is incredible -- does that mean that the U.S. government with all its resources just doesn't know how to reunify half of these kids who were under five? I mean, they don't know where their parents are? They don't know which kids belong to which such parents? Is that why they can't reunify them by the court deadline? LAVANDERA: It's it's hard to give this wide ranging blanket statement as to why exactly not all of these children will be able to be reunited. The federal government says in some of these cases that they are trying to make sure that these kids are being reunited with proper relatives, make sure they are not being put into dangerous situations.

But it's really kind of hard at this point, Anderson, to give a blanket reason for why are all of these reunifications aren't happening.

COOPER: And parents who have been searching for their kids, what are they saying? What options do they have?

LAVANDERA: They still wait. I mean, that's really been -- all of this is brought out, Anderson, clearly is that there was no plan in place, and we have heard this from some Republicans in Congress as well. So clearly no plan in place to reunite these families that were separated because of the zero-tolerance policy.

So many of them continue still are either A, trying to figure out where their children exactly were taken to and still many of them nearly two months into all of this still trying to make a connection with their -- with their children and figuring out exactly where they are.

It is amazing that at this late stage in this game and in this process that there are still a number of people that were hearing from directly who say that they are still trying to piece together just the most basic of information.

COOPER: Ed Lavandera, appreciate the update. I want to get more on this now from Jeffrey Toobin. It does sort of boggle the mind. I mean, whatever you think about this policy, that it was so badly executed, that they hadn't thought out how you would end up reunifying, that you would have five-year-old separated from their parents and not be able to connect them.

TOOBIN: And, you know, you are talking about kids who don't know their parents' names. I mean, it is, you know, they are too young. I mean, it is a spectacular fiasco. What even more complicated about this is that the judges who are making these orders, they don't have great ways of enforcing it.

They can't tell the federal government to do something but they can -- yes, they can theoretically hold people contempt but who do you find? It is an interesting example of the limitations even of judges who theoretically have power over the federal government.

COOPER: So this ruling tonight against the the administration to modify the length of the floor's settlement, the Justice Department says they are reviewing the decision. What happens next?

TOOBIN: Well, they can appeal or they can go back to the judge and say, look, can we modify it this way? And, you know, judges in this whole area have been somewhat amenable to negotiating with the government. But if the judge holds fast, the judge is going to have to figure out some remedy that is not -- if it's not entirely clear what the judge can do.

COOPER: It is --

TOOBIN: The judge doesn't run the federal government.

COOPER: It is amazing to me that General Kelly when he was head of Homeland Security, he was talking about this kind of policy more than a year ago. The idea that it's not like they had been -- hadn't had time to plan the stuff.

TOOBIN: They didn't care enough.

COOPER: Jeffrey Toobin, thanks. Coming up, we are going to take you live to Thailand for the latest on the rescue attempts of remaining children and one adult still trapped in that cave.

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COOPER: There is breaking news tonight from Thailand. The Thai Navy official telling CNN that the rescue operation has resumed. Four kids and one adult are still in the underground cave. Our David McKenzie is on the scene for us tonight. So the condition of the eight other kids who have already been rescued, what do we know about them?

DAVID MCKENZIE, CNN INTERNATIONAL CORRESPONDENT: Anderson, we got that news just moments ago. Remarkably, seem to be in pretty good condition. They are able to talk, move around, eat food. You know, they said to the doctors they want chocolate. The doctor said, you can have some, and they said they wanted more.

So, they are very fine. They are getting test sense to Bangkok. They are put in isolation, have met their parents through the glass. They are doing amazingly well considering the rescue that is ongoing.

COOPER: Let's talk about the operation that is going on at this moment. I know they restarted to work for the day. 2 MCKENZIE: That's right. The Thai Navy source saying in that mountain behind me, deep in those cabins, the elite divers have gone and again to try bring the remaining four boys and their coach out. Even though they succeeded twice, Anderson, this is still going to be a very difficult operation. They never tried like this before and the whole country is holding its breathe to see if they can pull it off for the third time, Anderson.

COOPER: It's also -- I can see it looks like it's raining. How much of concern is that? Another some concerns about the water level inside the cave rising.

[23:55:04] MCKENZIE: That's right. It's raining down on my head. It has been for several hours. And that is a big concern. They are pumping as much water as they can out of the cave as quickly as they can. But the rain is coming in. That's a catchment (ph) area behind me, as it streams into the cave. They will be working against the clock. They managed to pull off the impossible. The question is, can they do it again? And the last one out will be that coach. Twelve boys and their coach in the most sophisticated and difficult rescue of its kind ever entertained.

We will be watching closely. In the next few hours, we could see if those boys and their full-faced mask and their wet suits are brought out by stretchers and then rush to the nearby hospital where those boys are already saved.

They are doing well. They seem to be eating, talking, interacting with their family, even though they spent more than 16 days in the depths of that cave, Anderson.

COOPER: We wish them the best and lots of luck. David McKenzie, appreciate it. We are going to continue to follow that throughout the evening. Thanks for watching 360. Chris Cuomo continues. CNN's live coverage on this very big night, coming up right after this quick break.

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