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Trump Picks Brett Kavanaugh as His SCOTUS Nominee; Protesters are Outraged of Trump's Decision; Democrats Running for Re-election Face Tough Decision; President Trump to Travel to Europe Tomorrow For NATO Summit And Meeting With Vladimir Putin. Aired 10-11p ET

Aired July 9, 2018 - 22:00   ET



UNIDENTIFIED MALE: But I think it's not a, yes, let's go get them, kind of moment for Trump.

CHRIS CUOMO, CNN HOST: All right. I've got to leave it there. I'm out of time. I owe Joan Biskupic a final thought. We're not done yet, though. You can join us at midnight eastern if you really want, Joan, you can come back. That will be 9 p.m. Pacific.


CUOMO: For a special edition of CUOMO PRIME TIME. Right now, it's "CNN TONIGHT." Don Lemon will pick it up tonight. Don?


CUOMO: A night that will make history in this country.

LEMON: Absolutely. We got a lot to talk about. Some of what you discussed. Well, of course people are concerned about what this means for a woman's right to choose, about Roe v. Wade, and what it means for same-sex marriage, and gay rights, and on and on.

But I think what people are talking about is what you hit on there, and that is what this means for the Mueller investigation with someone who has said that he believes a sitting president should not be indicted. That's what people are really talking about right now.

CUOMO: And he also wrote, though, when he was working for Ken Starr that lying was enough for impeachment. We've always thought it was lying under oath would be enough legally, but he went farther than that. Yet, Trump still picked him.

LEMON: Yes. So why is that? Was that the main reason or just a small one?

CUOMO: I think that Roe v. Wade was the biggest part of the litmus test. And we can call it that because Trump did too during the campaign.

LEMON: See you in two hours, my friend. Thank you very much.

This is CNN TONIGHT. I'm Don Lemon.

This is our breaking news coverage. President Trump announces his pick to replace Justice Anthony Kennedy on the Supreme Court.


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



LEMON: But fasten your seat belts because this is just the beginning. It's only the beginning. Those who are familiar with Kavanaugh are calling him, quote, "an unrelenting, unapologetic defender of presidential power, some of what we just discussed there, Chris and I.

So what's -- what will his nomination mean for the Russia investigation? Get ready for a battle. That's going to last all summer. Tens of millions of dollars spent. Rallies, marches, protesters and counter protesters is already outside the Supreme Court tonight. You're looking at pictures now.

One GOP operative telling CNN, quote, "we're prepared for an all-out war."

There is a lot to discuss right now. I want to bring in now CNN's Ariane de Vogue. She is live for us at the Supreme Court. Chief Political Analyst, Gloria Borger is here, and Chief Political Correspondent, Dana Bash are in Washington. And former U.S. Attorney, Harry Litman, and CNN Legal Analyst, Michael Zeldin is here with me in New York.

We've assembled a great group of people here especially Harry. You know him. Michael, you have expertise in this. Everyone here does. But Ariane, I need to start with you. Protests tonight outside the Supreme Court about this announcement. What is the latest?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: Well, absolutely. There are big crowds here tonight, and they're getting bigger. These are bigger crowds than we get for some big decision days. And for a while, they were being allowed to set up on the steps out there.

Really, they understand what's at stake here and how much this building behind me is going to change with the new pick. Anthony Kennedy was the key swing vote on issues like abortion, LGBT rights, affirmative action. Now he'll be replaced with somebody who's younger and who's more conservative.

And most of the protesters here are talking about Roe v. Wade tonight. You've got the opponents of abortions. But on the other side, you've got people already chanting hey ho, Brett Kavanaugh's got to go.

And way behind me, there's a light on in some of the chambers. I don't know whose chamber it is, but Anthony Kennedy has got to be smiling somewhere because this is the second time one of his former clerks has been nominated to the bench. So it's a big night. And don't forget, he only announced his retirement 12 days ago.

LEMON: Interesting. All right. Thank you very much, Ariane. I want you to stand by. I want to bring in everyone else now and get your opinion on the president's announcement tonight.

Michael, first of all, I want to turn to you because we've learned that the president's Supreme Court team looked at Brett Kavanaugh's past comments on indicting a sitting president. I have a quote here. And this is what he wrote when he worked with Ken Starr in his book back in 2009.

He said, "The indictment and trial of a sitting president moreover would cripple the federal government, rendering it unable to function with credibility and either the international or domestic arenas."

So the question is, how much do you think the president's self- interest in terms of his own legal issues played into his selection today?

It's hard to know. Kavanaugh's quote that you just read pretty much mirrors the office of legal counsel opinion on the indictment of a sitting president. So to the extent that he's saying that was the office of legal counsel has previously said, there's no big news there.

MICHAEL ZELDIN, CNN LEGAL ANALYST: What's interesting to me, however, is two things. First is when he worked for Ken Starr and wrote the report that led to the impeachment of President Clinton, he said lying to the American public is an impeachable offense. That's clearly at play in the Mueller investigation. As well, lying under oath is an impeachable offense according to Kavanaugh.

[22:05:04] And so, if the president gets interviewed and lies, then you have a justice who has, if he gets confirmed who has said that's an abuse of office and impeachable defense.

But the thing that I think that really needs to be fleshed out through the hearing process is whether Kavanaugh should be required to recuse himself from any matter that becomes a part of the litigation that Mueller brings.

That is whether a president can be indicted, if that comes to pass, and/or perhaps more importantly whether or not the subpoena that Mueller issues for testimony, if that is the case, is something that he should recuse himself from because it looks like the potential of an appearance of conflict.

LEMON: But before I get to you what is the likelihood of that happening, do you think?

ZELDIN: I don't know. I don't know. It depends on Kavanaugh's own sort of sense of judicial propriety. If he believes that it will taint his future on the court for participating in a decision about which led to potentially his selection, maybe he does step aside.

LEMON: Harry, you know him.


LEMON: What do you think of this?

LITMAN: About the recusal theory? So I think he probably would not, and he would cite the Nixon case where three justices Nixon had appointed sat on the case and ruled against him. The Clinton v. Jones case. Two justices that Clinton had a appointed sat on the court that wound up ruling against him.

I do think, I mean, it's important to note that he sees this as having undergone a major conversion. What you read about, Don, actually post dates his time with Starr. He's on the bench and he says having spent time in the White House, he came to understand that he had been wrong in the '90s to be so vigilant and punitive in going after Clinton.

So there are two -- on this very important question, there are two Brett Kavanaughs. And they will both have to answer in the confirmation hearing.

LEMON: I hear you, Gloria, but how does he view presidential powers then?

LITMAN: He is more than anybody of his generation, maybe any justice ever, bullish on presidential power. That is in many different ways, he's very strong on presidential powers for terrorists. Very strong on presidential power against agencies.

In general, he's an article 2 kind of guy. That's a very hard thing to explain to the American people. The consequences of it are huge, but that's probably his defining trait jurist prudential.

LEMON: I want to bring Gloria in.


GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: You know, and that's why he's such a fit with Donald Trump because Donald Trump is all about presidential power. And when it comes to the question that Michael was talking about, about a potential subpoena here, you do have a nominee, whether it's before conversion or after conversion, who is on the record saying that the president should be exempt from time consuming and distracting lawsuits.

So that does not only apply, I might add, to this question of Mueller, but it also might apply to civil lawsuits like Summer Zervos, who is suing the president. This has implications for him. And you can be sure that it's going to be really central to Democratic questioning of Kavanaugh when he appears before Congress.

ZELDIN: That's right. And made the right thing. And to your point on recusal, it is true that three justices on the court were appointed by Nixon and ultimately ruled in that case, but none of them were -- none was appointed during the time of the litigation.

LITMAN: That's true.

ZELDIN: And so you have, this is where I say there's an appearance issue. This is during active litigation where the person who may be the subject of the decision is appointing you. That creates an appearance to me that I think Kavanaugh has to be very sensitive to.

LEMON: Well, this is Kavanaugh 2009 from the Minnesota Law Review. "Provide sitting presidents with a temporary deferral of civil suits, of criminal prosecutions, and investigations." Dana, weigh in. How much of a factor was this, do you believe?

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: I mean, we won't know until we hear from the president himself or we have a chance to do some reporting on this particular issue. Knowing the president and his focus on this, it's hard to imagine it wasn't a factor.

And you know, Gloria mentioned this, that this is not academic. This is not well, what if there's ever a situation where a president could potentially be indicted and the Supreme Court would have to hear it.

It's potentially like now, soon. This fight that the president's legal team is having with the Mueller team about whether the president should sit down for an interview, if they say no, Mueller could subpoena him and it could end up -- would end up in the Supreme Court. So depending on the timing, that could come before Brett Kavanaugh.

[22:09:56] So, it's a real world situation that we're talking about here. But there are obviously -- this is one slice of a much, much larger pie, conservative pie, that President Trump promised on the campaign trail over and over again he would deliver.

And although, some conservatives say that he's not necessarily a movement guy. He's an establishment guy. He's a conservative through and through. I mean, he was called by a Democrat, Dick Durbin I believe it was, when Brett Kavanaugh was going through the Senate confirmation process to be on the circuit court, he was called the Forrest Gump of Republican politics because he's been part of so many big events of the last, I don't know, quarter century.

LEMON: Yes. I was listening to Jake earlier. And he said he was a political operative, Gloria.

BASH: Yes.


LEMON: So the big question from conservatives is always, it's an activist judge. He's an activist judge. So as a political operative, can he be seen as an activist judge?

BORGER: Well, you know, we don't know the answer to that at this point, but I'll tell you as a political operative, Don, what he does have is a huge paper trail.


BORGER: And you know, not only did he serve as staff secretary to George W. Bush, but he's written over 300 opinions. There are lots of e-mails that he wrote when he was at the White House that I assume people are going to try and get a hold of. And one of the question--


BASH: Democrats are already calling for it.

BORGER: OK. There you go. And one of the questions that Mitch McConnell raised apparently with the president was, look, the Democrats in seeking these documents can also seek to delay this confirmation process because there is such a mass of material here, you know.

As Dana points out, he's been at the crossroads of a lot of major issues. You know, not only Ken Starr but Bush v. Gore, Elian Gonzalez, you know, and torture issues during the Bush administration. So Democrats are not going to leave any stone unturned here, and it could require more time than the president really wants to give it.

LEMON: Well, according to Manu Raju, he said Chuck Grassley earlier not saying specifically who the person would be but saying Chuck Grassley told me earlier tonight that someone with a long record will take time to go through the full record.


LEMON: And this is a quote again from Manu. And would not commit to holding confirmation hearings before September. So that really pushes it back. Ariane, I want to get back to you. Because Axios put together a graphic based on analysis from political scientists that Kavanaugh is a lot more conservative than Kennedy. He's closer to Clarence Thomas. I mean, that's significant when we're talking about the balance of this court.

DE VOGUE: Well, don't forget that Anthony Kennedy had two kinds of clerks. He had liberal clerks, but he also had conservative clerks. And Neil Gorsuch was one of them. And Brett Kavanaugh is one too. Keep in mind, this establishment pick, he has over 300 opinions, as Gloria was saying. And they're issues that the Republicans or the conservatives really like on issues of executive power and religious liberty. But there are some controversial ones too.

He had a controversial opinion on the Affordable Care Act and another one about some kinds of abortion restrictions. So those are out there, and these hearings are also going to feature George W. Bush for his time there. And some people wonder really, do they want to relitigate those issues, things that happened during the Bush years, during those hearings. It's for sure going to come up.

LEMON: A classic Washington insider George -- from the George H.W. Bush administration. All right, everyone. Stick around. You can see Ariane is there at the Supreme Court where there are protests going on. We have a lot more to cover. You guys will come back. The Democrats who might hold the key as the presidents tries to seal

the deal in the Senate. Four of them were invited to the White House for tonight's announcement. And they turned down invitation. Is it a sign of things to come?


LEMON: Our breaking news tonight, President Trump picks Brett Kavanaugh as his nominee to the Supreme Court, setting up for a now holds barred senate battle over a conservative who could shape the direction of the court and the country for decades to come.

Back with me now, Gloria Borger, Dana Bash, Harry Litman, and Michael Zeldin.

Harry, I'm going to rely on you a little heavier here. Because again, you know him. I want to talk to you about this the 2009 Minnesota Law Review and also having served in both the George W. Bush and H.W. Bush but a much larger role in the George W. Bush administration.

LITMAN: That's right. In the George W. Bush administration, he's really -- his staff secretary. All pieces of paper go through him. I believe he's married in the White House. I mean, he's really in the middle of things.

He was technically in the George H.W. Bush administration, but he was really a one-year fellowship in the solicitor general's office. Of course, the solicitor general who appointed him, Ken Starr who later became independent counsel.

LEMON: So as I'm reading this Kavanaugh 2009 Minnesota Law Review, basically what it's saying is the president's job is so unique and so unusual, it's seemingly saying that he's above the law or he should not be indicted or even brought up for trial or criminal investigation.

LITMAN: I think he is saying that. He's saying mea culpa. I hounded Clinton to death 10 years ago, but now I understand. I've been in the George--


LEMON: But the caveat you said is what? Legislation?

LITMAN: So there's one caveat in Minnesota Law Review, which is that he's saying Congress should pass legislation to make this law. He's not saying that the Constitution inherently -- that presidential power prevents the way the question would come up now.

LEMON: Yes. Who's that? Gloria or Dana?

BORGER: But what he's saying also is that the president is so malevolent and so terrible, there's a political solution. And there is impeachment.

LEMON: Right. BORGER: And so if you feel that that's the case, then impeach the president, but what Ken Starr did was not -- was not the right thing to do. I mean--


LEMON: Let my give you the quote, Gloria.


LEMON: Because he said, "A possible concern is that the country needs a check against a bad behaving or law-breaking president, but the Constitution already provides that check. If the president does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. The president's job is difficult enough as it is, and the country loses when the president's focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution."

Go ahead, Gloria.

BORGER: Well, this is the same argument that Donald Trump's attorneys are making and have made all along, which is that this has been a distraction for the president for foreign policy, et cetera, et cetera.

[22:20:04] Rudy Giuliani whom, and Dana can talk more about this. Rudy Giuliani, you know, says the same thing, that impeachment is out there. If you think he should be impeached, go impeach him. But legally, Mueller should not be allowed to indict him and should leave him alone.

LEMON: Dana, let's--


LITMAN: That's with Zervos, by the way, no civil suits. He shouldn't be subject to those.

BORGER: Right. Summer Zervos.

LEMON: Yes. Assuming to Summer Zervos.

ZELDIN: That's right. But that's been resolved in Clinton versus Jones.

LITMAN: Constitutionally.

ZELDIN: Constitutionally. He has no opportunity unless they're going to overturn that. And he believes in precedent. For sure he'll say it over and over in his hearing. That has been dispose of. They can be subject to civil depositions.

LITMAN: That's why he says you need legislation. ZELDIN: That's right. Summer Zervos and anybody else who is suing him

civilly should be able to proceed. This question of impeachment versus indictment is at the heart of the matter. He has not repudiated the possibility of impeaching a president for lying to the public.

During the Clinton impeachment proceedings, he really was the attack dog on Ken Starr's team. He wrote that report. He was the one who supported the notion of lying to the public is an impeachable offense, so he's going to walk back a lot more than just this indictment point.

LEMON: Go ahead, Dana.

BASH: Yes. I mean, I think that the idea that he put forward back then lying to the American public is an impeachable offense, it's hard to imagine that that is not going to be something that is drilled down on by Democrat after Democrat at these hearings. And certainly, in and around the hearings.

But obviously before we get to all of this, we have to see the vote, the confirmation hearings and then the vote. And one thing I just wanted to throw in here is there's been a lot of discussion about the reality of the razor-thin majority that the Republicans have in the Senate. They basically have one vote, which means one to spare.

And they have to rely, or they hope to rely on red-state Democrats to give them a little bit of comfort with their margin.

I've been talking to sources tonight who say with this pick, it is going to be harder for red-state Democrats in really tough re-election battles to vote against him. Not impossible but a lot harder.

LEMON: Can you just -- can you hold that thought?

BASH: And remember, the three Democrats we're talking about who voted for Gorsuch a couple of -- of last year were Joe Donnelly, Joe Manchin, and Heidi Heitkamp. All three of whom are facing really tough re-election battle in November.

LEMON: I have to get some other news in, Gloria and Dana, both of whom have reported on this. Because a source close to first Gloria, Michael Cohen is telling me that Cohen sees his role a little like John Dean's role during the Nixon administration. That he wants to tell the truth not for his own career or fear of going to jail but because he thinks it's the right thing to do. In a way, he wants to set the record straight. What's your reaction to that, Gloria?

BORGER: Well, I think that according to my sources, Michael Cohen feels under attack by Rudy Giuliani and the president. He believes that they're trying to send him a signal publicly, which is so long as you tell our version of the truth, you'll be OK.

And I think what he's doing -- one source said to me this is his version of July 4th, which is Independence Day. That he's no longer going to take a bullet for the president. And that he's going to go in whatever direction he feels he needs to go in. Now, let me just say here, we don't know what Michael Cohen has, if anything, on the president of the United States.

LEMON: He hasn't been charged.

BORGER: He hasn't been charged. We don't know if the prosecutors are interested in what he may or may not have or whether his lawyer, Guy Petrillo, has even talked to the prosecutors.

So I think what we have going on here is sort of a battle for the hearts and minds, but we really don't know what's going on in the Southern District of New York at this particular moment.

LEMON: Yes. Here's what his source says. The message Giuliani is that Cohen feels it is time to tell his version of the truth. Cohen's version of the truth, and I think it's important to say this, and this according to the source. Cohen's version of the truth is not Giuliani's version or Trump's version, which is the opposite of the truth.

Dana, this one is for you. Friends say that the most important thing that was said in the Stephanopoulos interview on ABC was the hindsight is 20-20, OK. He said, "Cohen feels, and he said, it's been overlooked he believes in the coverage. Cohen feels that he thought some of his decisions were in his best judgment but in hindsight, they may not have been right. And Cohen no longer recognizes the man he knew and worked for. To him, there's a different man at 1600 Pennsylvania Avenue than he knew and worked for."

This is the tip of the iceberg of what Cohen needs to do to make things right.

[22:25:00] BASH: That is really so key, Don. Because this is Donald Trump's protector, fixer. I mean, he -- Gloria referenced this. He had said that he would take a bullet for the guy. I mean, he absolutely adored Donald Trump.

And the fact that he is voicing a very, very different perspective and opinion of this man is really a big deal. It really is. In the sort of annals of Donald Trump and all the characters in and around him, how things ebb and flow, this is a moment.

We don't know whether the moment will lead to anything because Gloria mentioned this, not only do we not know if the prosecutors are interested in hearing from Michael Cohen, we don't know if he has anything to offer.

The Trump team insists publicly and privately--


BASH: -- that they don't think in the raid the FBI got anything that is detrimental to the president. But there might be more that he knows or might be willing to say that is not in the raid.


BASH: We just don't know the answer. (CROSSTALK)

LEMON: I've got to run, Dana. But also, according to sources, it's being reported that Cohen supposedly asked to speak with Mueller. The source is saying that never happened. Never asked to speak with Mueller.

OK. Thank you, both. Great reporting today, Gloria and Dana, on the Cohen stuff. I appreciate all of you for joining us this evening.

When we come back, President Trump's pick represents a political deal he made with conservatives. If they backed his candidacy, he would fill the courts with judges of their choosing, someone who would go with what they wanted. Who is getting the better end of this deal? We're going to discuss that. That's next.


[22:30:00] LEMON: We're back now, and we're following the breaking news here on CNN. President Trump picks Brett Kavanaugh as his nominee to the Supreme Court. I want to bring in Rachel Brand.

Rachel Brand is a former third ranking official at the Justice Department, and she joins us now on the phone. Rachel, I appreciate you joining us. Thank you so much. It's a very busy night. What's your reaction to the selection?

RACHEL BRAND, FORMER THIRD RANKING OFFICIAL, JUSTICE DEPARTMENT (via phone): I'm delighted. You cannot imagine a better Supreme Court nominee than Brett Kavanaugh. Not only among the candidates that the President had that really -- it's hard to theoretically imagine a better nominee than Brett. So, I'm just delight the President picked him.

LEMON: How well do you know him?

BRAND: Pretty well. We worked together in the White House Counsel's office in the beginning of the Bush administration, when he talked that night about running out of the gate at the White House on 9/11. I was doing the same thing. We worked together during that time. So I've seen first hand his work ethic, his integrity, his dedication to public service, his brain. He's a -- he's a great person, a great lawyer, great judge.

LEMON: Rachel, we've been discussing here how he feels about executive power. And you may have heard our coverage. And I'm sure you've heard people wondering about how he feels about this because he may be in the position to rule on key questions pertaining to the Russia investigation, if it gets to the Supreme Court. And he's known to give great deference to presidential power. Do you have any concerns about as it pertains to this investigation, and the integrity of it?

BRAND: You know, I actually think one of the things that makes him a great judge is that he is skeptical of government power in many respects. It's interesting. You know, people are criticizing him for being too deferential to government power.

And other people are criticizing him for his opinion for striking down government actions. He's had some opinions being skeptical of the administrative state. He's very thoughtful. He doesn't believe in the constitution in which embodies separation of power and members of government. And so I don't have any concerns about that at all. I think he's right on, and very balanced in his approach to that.

LEMON: I want to ask you because Michael Zeldin was on in the block before you. And he said that he believes that he should possibly recuse himself for anything -- any cases pertaining to -- anything that has to do with the Russia investigation, or anything that contains something that has to deal with presidential power. Do you believe that?

BRAND: I can't imagine why he'd have to recuse himself. Every judge makes decisions based on the facts, you know, known to him, and that affects his own personal interest. But recusal doesn't come into play because a judge has had some involvement in the (Inaudible) here in the past.

And recusal comes into play when the judge has a personal conflicts of interest or something like that. And you know, I'm not aware of any reason that Brett Kavanaugh would have to recuse from that investigation.

LEMON: So we know how he feels about presidential power and independence of organizations, and of agencies. Where do you think he stands on the FBI, and the Department of Justice, and their independence as well?

BRAND: You know, I think judges come at cases not having a position on the parties. I think judges come to cases with enough legal issues presented to them. And so I'm sure if a DOJ or FBI case came before him, he would treat it like he would treat a Department of Energy case, or a case involving any other party, which is look at the facts and the law, and decide the case without regard to who the parties are.

LEMON: Rachel Brand, you're very knowledgeable, and you've been very helpful. Thank you so much for joining us. We appreciate it.

BRAND: My pleasure.

LEMON: Thank you.

BRAND: Good to be here.

LEMON: Absolutely. Now I want to bring in CNN Global Affairs Analyst Max Boot, the author of "The Road Not Taken," and CNN Contributor, Michael D'Antonio, the author of "The Truth About Trump." Gentlemen, good evening. Max, what did you think of the conversation I just had?

MAX BOOT, CNN GLOBAL AFFAIRS ANALYST: Well, I mean, that's pretty much what you'd expect Rachel Brand to say because she's obviously a conservative Republican. But I think, you know, from everything that I've seen, Don, I almost don't necessarily line up ideologically exactly where Brett Kavanaugh is.

I think I'm more of a middle of the road conservative, and more of an Anthony Kennedy or Sandra Day O'Connor, but he certainly seems to be well qualified for the Supreme Court. I mean, he has an impeccable pedigree.

So, the case for confirming him seems pretty strong. But you know, to my mind, that still is not an argument for why Donald Trump is a great president as some of the conservatives think he is. Because they need to recognize they're paying a very high -- and I would argue, an unacceptably high price to get the kind of judges that they wanted, the kind of judges that any Republican president would appoint.

LEMON: This is what he ran on, Michael. He ran on this. Now he's delivering on those judges. Was this the best deal, you think, Trump has ever made?

MICHAEL D'ANTONIO, CNN CONTRIBUTOR: Well, I think the wild card in this is Judge Kavanaugh's integrity. This is a thing that Donald Trump never knows how to plug into his calculus.

[22:35:04] Does this judge have the integrity to be independent minded, to rule in a way that -- or join in concurrence with justices who want to rein in the president's power when he exceeds it, or is he going to do as the president wishes? This is all Russia.

This is all about the President's concern that he's illegitimate, that he'll be either indicted or pursued civilly, and he wants to protect himself from that. So we've yet to see whether this choice runs afoul of the president on matters of integrity. I suspect it may.

LEMON: How much does this have to do -- this have to do with the Russia investigation?

BOOT: It's very hard to say, Don, because obviously all these nominees come prevetted by the federalist society so that they all, you know, line up on this.

LEMON: It's actually their list.

BOOT: It's their list. And so it's not clear how much Donald Trump actually got into the specifics of this. I mean, one thing we can pretty well guarantee, he did not read a single opinion. He did not read a single law review article written by any of the nominees.

So who knows why he made the decision. It may be on Russia. It may be on personal chemistry. A lot of it, I think, is actually very superficial, somebody he thinks looks like a Supreme Court justice. And It's been reported he likes the Yale-Harvard type of pedigree. So, you know --

BOOT: He wanted Ivy League.


BOOT: And maybe -- LEMON: Simple say, young, nice family.

BOOT: Right. I mean, it may be a mistake to read too much into this, and just go with the shallow, superficial explanation. That may actually be the right one.

LEMON: But don't you think someone said this guy believes a sitting president should not be indicted.

BOOT: I absolutely believe that. And I think that his base wanted Coney Barrett, especially the anti-abortion base. They're very disappointed tonight. I think Mike Pence is very disappointed. He went with Pence to woo the evangelical and catholic base.

Now that they have not received their ideal nominee, you know, it's clear that the President is acting really in his own interest. It may wind up being in the interest of the country, and that would be a happy accident.

LEMON: This is what your piece is called today, Max. It says, consider the cost of your dream court, conservatives. And you wrote -- you said, Trump is doing long-term damage not just to the country in general, but to the rule of law in particular.

The same rule of law that judges are supposed to uphold, tolerating his reign of error would not be worth it even if he filled every seat on the Supreme Court with Antonin Scalia clones. But clearly, your former party -- your former party, as you said, because you're not a Republican any longer, they disagree with this.

BOOT: They do, but I think they're turning a blind eye to the damage that Donald Trump is doing to America and to the world, specifically look at the rule of law because judges are supposed to enforce the rule of law. That's supposedly what these picks are all about.

But look at the damage that Donald Trump is doing to the rule of law by firing the FBI director to stop an investigation of his own ties to Russia by maligning the attorney general, by smearing the Special Counsel who, by the way, was a law hero by proclaiming that he has an absolute right to do what he wants with the Justice Department, an absolute right to pardon anybody, including himself.

He is not somebody who believes in the rule of law. And to me, it's deeply -- you can applaud this choice. You can say it's the right choice. It's the choice that any other Republican president probably would have made, but you have to acknowledge that Donald Trump is not another typical Republican president.

He is somebody who's actually a threat to the very values that conservatives claim to champion. And I wish that conservatives would at least acknowledge the trade-off that they're making by rooting for Donald Trump, and the huge cost of getting the judges that they want. To my mind, that cost is unacceptably high.

LEMON: All right. Thank you, gentlemen. I appreciate it. What has Kavanaugh said in the past about Roe v. Wade? We'll discuss that when we come back.


LEMON: So now that the President has nominated Brett Kavanaugh to the Supreme Court. The President and the Republican leaders in the Senate will work to get him confirmed. Let's bring in now CNN Political Commentator, Steve Cortes, a former Trump campaign adviser, and Neera Tanden, former policy director to Hillary Clinton.

Good evening to both of you. Neera, I know that you're at the Supreme Court. There are protests going on. It's going to be a little bit loud. But I think we can make it work. So thank you, both, for joining us. Steve, you don't love the Supreme Court pick. Why?

STEVE CORTES, CNN POLITICAL COMMENTATOR: Well, you know, don't love might be strong. It was not my first pick. You know, I was public about this. Both publicly and privately to the White House said I wanted Amy Coney Barrett to be selected. I think Judge Kavanaugh is immensely qualified. I do. I think he'll make a terrific justice.

I think he is not going to be -- and here's, I guess, what I would also caution to people on the left or Democrats who are going crazy. I don't think he's terribly different from Anthony Kennedy, for whom he clerked, by the way.

I think this is in many ways a continuation of that. And I would say to those on the right, be patient. We're going to -- when Donald Trump wins a second term, and he will, we're going to nominate a much more originalist, constitutionalist, conservative justice in the second term.

LEMON: Yes. Let me just put this up because this is one from Axios, right? They put together this graphic, and it's based on analysis from political scientists, that Kavanaugh is a lot more conservative than Kennedy. He's closer to Clarence Thomas. And you're saying that you don't think he's that conservative, Steve?

CORTES: Look, I would disagree with that. Again, I'm not here to trash Kavanaugh. I think he absolutely should be confirmed. I think he will be confirmed. But I think that was the main reason he was nominated. I think the President looked at the situation.

He's a pragmatist, and he said this is the most likely justice who believes in constitutional -- interpreting the constitution as it's written who can be confirmed.


CORTES: And I think that's why he nominated him. So, I'm not faulting the president. I would have preferred Amy Barrett. I would have preferred something more bold quite personally, but I'm not the president.

LEMON: I've got more questions for you, but I need to bring Neera in. Neera, there is a protest going on. Is this pick a disaster for Democrats? NEERA TANDEN, FORMER POLICY DIRECTOR TO HILLARY CLINTON: No, I think

the truth is this picture of a disaster for the American people. And the reality is that Trump forces can spin this.

But Brett Kavanaugh is a judge who has voted against -- who has supported essentially opposing Roe, who is also unusual in his opposition for particular people like the President to be investigated.

[22:45:09] That's an unusual decision that he's made. And also, he has also opposed the Affordable Care Act. So I think from conservatives, from the perspective of conservatives (Inaudible) by the American people, it's a real problem.

LEMON: OK, can -- looks like -- sounds like obviously protesters on both sides there. Someone who is saying abortion is murder, overturn Roe. And then you have people saying the Affordable Care Act is here to stay, and shame, shame, shame on the President for nominating this person.

TANDEN: I'd say the vast majority of people here are opposed to Kavanaugh. We do have one or two people who are using the cameras to attack Roe.

LEMON: So, I just want to play something that Kavanaugh said about Roe v. Wade. This was back in 2006 when he was a nominee to the D.C. Circuit Court of Appeals. Watch this.


BRETT KAVANAUGH, SUPREME COURT NOMINEE: 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.

UNIDENTIFIED MALE: I asked you your own opinion.

KAVANAUGH: And I'm saying if I were confirmed to the D.C. Circuit, Senator, I would follow it. It's been reaffirmed many times, including in Plan Parenthood --

UNIDENTIFIED MALE: I understand. But what is your opinion? You're not on the bench yet. You've talked about these issues in the past to other people, I'm sure.

KAVANAUGH: The Supreme Court has held repeatedly, Senator, and I don't think it would be appropriate for me to give a personal opinion.

UNIDENTIFIED MALE: Answer the question.


LEMON: So, again, that was in 2016. That was then. But now we're talking about him actually being on the Supreme Court. Does that change everything?

CORTES: Are you asking me, Don?

LEMON: Yes, Steve.

CORTES: Yes. You know, listen, I think -- here's the thing with Roe v. Wade. While I think that was a terrible decision personally, stare decisis (ph) means something. Reliance as a principle of judicial, you know, review means a lot.

And I don't think -- the idea that -- I think there's a scare tactic going on right now from the left, that Roe v. Wade will be overturned tomorrow if we confirm the next justice that Donald Trump appoints. I don't think that's the case. I do think what will happen is, we will see representative democracy start to work a lot more.

LEMON: So, Steve, listen, with all due respect, I understand, I just want an answer --

CORTES: -- in states where they want to --

LEMON: -- relating to what Kavanaugh said in 2006, and not what you think is going to happen.

CORTES: Right.

LEMON: Do you think this is all different now that he's on the court, that he's going to change, or that he might actually answer the question a different way, that he won't dodge? That's my question to you.

CORTES: I don't think I'll answer the question a different way. My guess is once he's a justice, he will rule that the states do have rights to restrict.


CORTES: And to put some sensible restrictions around abortion, to say that you cannot abort a child a day before birth, which is what Roe v. Wade instituted in most of this country. So we're going to have a rational, reasonable negotiation and discussion about it.

That's where I believe, and that's where it should be, not five people in black robes deciding for the entire country what is the definition of life, but rather the Democratic process deciding it. My guess is -- my hope is that's where Kavanaugh will land.

LEMON: OK, great. Thank you for answering that. So, Neera, please weigh in. I know it's loud. Go on.

TANDEN: Yes. No, I think that just tells you exactly what the game plan is here. The game plan that the right has, and Kavanaugh will pursue is to say that Roe should be up to the states, which is just another way of saying that in 22 states, Roe will be overturned.

And I think the reality is that Kavanaugh -- any judge, but Kavanaugh in particular, will try to have a kabuki theater of saying he supports -- he supports the essential, you know, precedent and things like that.

But, I think, those judges in the Supreme Court is a critical issue. And senators cannot let that stand. They have to ask where judge Kavanaugh stands on Roe v. Wade. And I think the truth is, he's already supported the dissent in Roe v. Wade. He's argued for its being overturned. And he is someone who will likely overturn Roe v. Wade.

LEMON: So I've got to ask you, and I don't know if you saw Mitch McConnell today, the Senate Majority Leader. He was blasting Democrats, what he called unfair tactics on the left. And he wrote this. There was a press conference, and he wrote this. This is a tweet.

He said, Justice Kennedy's resignation letter had barely arrived in the president's hands before several of our Democratic colleagues began declaring their blanket opposition to anyone at all that the President might name, #SCOTUSnominee. So, do you see hypocrisy in this, Neera, in the Majority Leader tweeting that, and saying what he said today given the way he treated President Obama's nominee, Merrick Garland?

TANDEN: It's ridiculous hypocrisy.

[22:50:00] The fact that Mitch McConnell totally opposed Merrick Garland, and stopped anyone from actually having a hearing with him, stopped any hearing of his nomination, would not let -- he really discouraged people from even meeting with him. It's ridiculous, and the fact that Mitch McConnell is making that argument, I think makes it more real to people that this is all a game, even minorities.

LEMON: Steve, do you see any hypocrisy in that? Go ahead, Steve.

CORTES: No, I don't. And here's why -- by the way, I'm no fan of Mitch McConnell. I think I've been on your show reaping on him quite a bit. But here is why there is a key difference, you had there an outgoing president who was term limited, who had nominated a Supreme Court nominee.

That is a very different scenario than right now, whereas Donald Trump -- well, even if the Democrats, let's just say they could hold up the nomination, he's still going to make the next nomination after the elections.

If we were to say that we can't have judges confirmed in any election years, that means we can only confirm judges in odd-numbered years? I mean, that seems odd, quite frankly, to me. That's absurd, but at the end of a presidential term, it's a very different precedent than we have right now.

TANDEN: There is no precedent. This was a manufactured precedent by Mitch McConnell. There is no precedent for this. And the reality is, I just hate to say that Mitch McConnell broke the rules with the way they traded Merrick Garland, and I think the fact that --

CORTES: Justice Kagan -- LEMON: We've got to get to the break guys. Thank you so much.

CORTES: Justice Kagan was confirmed in 2010 --

LEMON: I'll see you next time. We'll be right back.

CORTES: -- in a midterm election year --


LEMON: We are back now with our breaking news. President Trump's nomination of Brett Kavanaugh to the Supreme Court is just the beginning of a very huge week. Let's get out live now. I want to show you what is happening at the Supreme Court. This is a Supreme Court now, there are protests going on.

Most of the people there, we are told by our folks who are on the ground, are opposed to this pick by the President. And there are a few there obviously who are in support of it as well. As you heard in our last segment, someone saying that Roe v. Wade should be overturned, because they believe that it is murder.

Again, this is the beginning of a very long week, a very busy week, because the President leaves tomorrow for a big European trip. And that includes the NATO Summit, the dinner with -- the dinner with the embattled British Prime Minister Theresa May, tea with Queen Elizabeth, and his summit with Russian President Vladimir Putin a week from today. That is a lot.

So I want to bring in now CNN National Security Analyst, James Clapper, former Director of National Intelligence, and is the author of "Facts and Fears: Hard Truths from a Life in Intelligence." Good to have you on, sir. Good evening to you.


LEMON: The Supreme Court nomination just the beginning, as I said of this really busy week for the President. Can his foreign trip deliver the way he has with the Supreme Court with this nomination? I mean, he's facing some big challenges overseas.

CLAPPER: Well, yes, it is a big week. And what I kind of expect is that the juxtaposition of what has been tradition -- long tradition, long history where he'll berate NATO, the members that are not stepping up to the two percent threshold, which is in my view somewhat artificial anyway, and more probably be very solicitous of Vladimir Putin, and his berating of NATO, of course, plays to Putin's interests. So that is kind of what I'm going to be watching, and I think most concerned about.

LEMON: How much does this president have the ability to weaken NATO?

CLAPPER: Well, I think a lot. Just the fact that he constantly berates NATO, his at one point recusal to affirm Article V, which is the key provision, it's a big deal to NATO nations, particularly those who are right on the periphery of Russia. And I think even the near mention of, you know, redeploying forces, or

moving them around makes NATO nations very nervous. And I think that is basically the unease that he creates by, you know, his criticism, and frankly, his demeaning of the alliance, which in my view, has served the interests of this country as well as those in Europe for, you know, about 70 years. So, he seems to be taking that down.

LEMON: His schedule, Director Clapper, while in the U.K., has been planned to minimize exposure to protesters. It might be hard for him to miss some of them, though. What kind of reception, do you think he's going to get?

CLAPPER: Well, I think it's going to -- it's going to be hard to hide a lot of the opposition, and rather strong feeling in many of these countries, notably the U.K., and so I know they are going to try to shield him, insulate him from that. But I think -- I think that is going to be pretty hard.

LEMON: Yes. I want to ask you about Vladimir Putin here, because a meeting with President Putin in Helsinki, also his allies, has some Americans concerned, given how often the President flatters Putin, are you worried about what the President might agree to?

CLAPPER: Well, I don't -- I'm not sure what he would agree to, unless he did something like endorse the seizure of Crimea, which would be a terrible message to lot of people, but personally, the Ukrainians. And so, I hope he doesn't do that.

I don't expect him to take up the issue of meddling in our election, and specifically in meddling in our political processes, because I don't -- given his past demeanor, and interactions with Putin, I just don't think he's going to do that.

LEMON: Given --

CLAPPER: Or if it is it will are perfunctory.

LEMON: I've just got a few seconds here, about 10 seconds. Given what's happening right now, do you think this is a good time for them to be meeting?

CLAPPER: No, I don't. In fact, I don't know why we are having a summit with Russia anyway.


CLAPPER: What has Russia done of late to merit a summit meeting with the President of the United States? With their behavior, I don't think they deserve it.

LEMON: Director Clapper, thank you for your time. I appreciate it.

CLAPPER: Thanks, Don.

LEMON: Yes. That's it for us tonight. Thanks for watching. I'll see you right back here tomorrow. Our coverage continues now with Anderson Cooper in Washington.