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Senate Prepares for Procedural Vote on Brett Kavanaugh's Nomination to Supreme Court; Brett Kavanaugh Writes Op-Ed Concerning His Testimony before Senate Judiciary Committee. Aired 8-8:30a ET

Aired October 5, 2018 - 8:00   ET

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


JOHN BERMAN, CNN ANCHOR: It all comes down to four senators, three Republicans, one Democrat. At least two of them need to vote in favor of Brett Kavanaugh in order for him to be confirmed.

ERICA HILL, CNN ANCHOR: And just to put all of this in connect, yet another unprecedented moment last night when Brett Kavanaugh penned an op-ed overnight for "The Wall Street Journal" conceding he might have been too emotional in his testimony before the Senate Judiciary Committee. He promised to be independent, impartial as a judge if confirmed. He did not apologize in that op-ed.

A Republican official involved in the confirmation telling CNN it's become clear to the White House over the past several days that questions about Kavanaugh's temperament and his independence were emerging as sticking points for those undecided senators. So will that op-ed have an impact?

Let's being with CNN's Sunlen Serfaty who is live outside the office of Senator Susan Collins, one of those undecided four. Have you seen her yet this morning?

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: We have not, Erica. There has been no activity outside of Susan Collins' office yet. She is, though, indeed one of the four senators who holds Brett Kavanaugh's future in the palm of their hand. She, along with Senators Flake, Lisa Murkowski, and Democrat Joe Manchin, they have not yet said how they will vote. Leadership does not yet know how they will vote. And just underscoring again that even at this late hour Republican leaders do not yet know if they have the votes to get him over the finish line. Our team caught up with the chairman of the Senate Judiciary Committee, Chuck Grassley, just a few minutes ago and asked for his prediction. Here's what he had to say.

(BEGIN VIDEO CLIP)

CHUCK GRASSLEY, (R) CHAIR, SENATE JUDICIARY COMMITTEE: I think it will be very successful.

UNIDENTIFIED FEMALE: Do you know that for a fact at this point?

GRASSLEY: No, I don't. In fact, if you would talk to the leader, he would say something like he told us, that most of the time, like maybe 99 percent of the time, we know how vote is going to go before it goes. This one vote that we probably won't know until the votes are actually cast.

(END VIDEO CLIP)

SERFATY: And Chairman Grassley also asked specifically how he thinks Senator Collins will vote. He did not answer that. He got into the elevator. All this is underscoring, again, how much drama there is and how much -- how many big question marks there are heading into this vote that is now just over two hours away. Erica and John?

BERMAN: All right, Sunlen Serfaty for us on Capitol Hill. Chuck Grassley saying this is one of those votes, those very rare 0.01 percent of votes that we don't know until they are actually cast. They will be cast a little more than two hours from now.

Joining us, former Clinton White House press secretary and CNN political commentator Joe Lockhart, former chief staff to first lady Laura Bush and longtime friend of Brett Kavanaugh Anita McBride, and CNN political analyst and "USA Today" columnist Kirsten Powers. We are really now in full clock mode watching the clock until the first votes, and full counting mode, trying to figure out which way these votes will go. One key development overnight was that Brett Kavanaugh wrote this op-ed in the "Wall Street Journal." He wrote an op-ed explaining why he was so emotional in his testimony before the Senate last week, not apologizing, but explaining it, Kirsten, and saying at times he might have gone too far. Persuasive?

KIRSTEN POWERS, CNN POLITICAL ANALYST: It wasn't persuasive for me, because I think that I totally understand somebody being upset. I think we could all go back and watch Clarence Thomas' response in a similar situation, and he was clearly upset. But he didn't act the way Brett Kavanaugh did. And I think that a lot of people look at this, especially women and people of color, and say, if that hadn't been a white man doing that, I think people would have a very different reaction to it.

And so it's fine to be upset. It's not fine to behave the way he behaved and make his sort of crazy partisan attacks when he's about to be put on the Supreme Court. We have different standards for Supreme Court justices than just about anybody in the world, and for good reason.

HILL: Anita, I know you said in response he was defending himself vigorously. And it is a much different thing to defend yourself than it is to decide a case. We know, though, that he wrote that statement where in the opening he went after Democrats. He went after this as some sort of leftwing concerted effort to go after him. He brought up the Clintons. Is that defending yourself vigorously if you are now turning this into a much more partisan political discussion?

ANITA MCBRIDE, FORMER CHIEF OF STAFF TO FIRST LADY LAURA BUSH: Well, I think that this op-ed, and I agree with Kirsten it may not sway anybody. But I think going back to what Brett Kavanaugh said in the Thursday hearing last week, whether this vote goes up or down, he is going to remind people who he is as a jurist, as a lawyer, as a professional in the legal profession. [08:05:00] And I just think that he felt he had to -- he had to do

that and had to sort of try and describe for people what he was feeling, as he said, as a father, as a son, and as a husband, because that's what's being challenged here, is his character and his integrity, not his ability as a jurist.

BERMAN: Anita just said he had to do it. And in fact that is CNN's reporting on this matter, that Republicans had a sense that a hold up for some of these wavering senators, particularly Susan Collins and Lisa Murkowski, was his temperament and his demeanor in this hearing, and they needed to hear an explanation for it. Whether it's enough, we don't know because we're still watching. We know it wasn't an apology. We also know he wrote this op-ed, Joe, but he also wrote the remarks that he gave that were found to be offensive by some people.

You have watched Republicans for a long time sitting as a Democrat. One thing I often hear for Democrats who are waiting on Susan Collins especially and sometimes Lisa Murkowski, is she wavers, she wavers, she wavers and in the end she is going to vote for Donald Trump, what Donald Trump wants or what the Republican Party wants. Do you have any reason to believe it will be different this time?

JOE LOCKHART, FORMER CLINTON WHITE HOUSE PRESS SECRETARY: Not really. I think there is a choice facing each of these senators who are undecided, particularly the Republicans. It may be more punctuated for Senate Flake whether they want to be big, whether they do something in history, or whether they just want to follow the party line.

If you look at the political philosophy of someone like Susan Collins or Lisa Murkowski, Brett Kavanaugh did almost everything he could to challenge them, and they're still undecided. So that tells me that they don't want to buck the party, particularly Collins doesn't want a primary opponent in 2020. And that's pretty disappointing.

HILL: Lisa Murkowski, though, I mean, it could be different here, right? We're not hearing a lot from her camp, and there was some really interesting reporting, I'm not sure if were able to hear from Gary Tuchman, in Anchorage. He talked to some of these women. One came out, a Democrat, but who often sides with Murkowski, saying she believed that Murkowski was going to be a no, and another who has told Gary she thinks that Murkowski is closer to a no. How different, Kirsten, is the calculation for Lisa Murkowski versus Senator Collins as they are looking at that vote and what it means?

POWERS: I think it's actually very different. I'm actually from Alaska, I grew up in Alaska, so I know a lot about Lisa Murkowski. And she has an interesting coalition of people. For one thing separate from the Kavanaugh issue, she already has a problem with indigenous Alaskans who don't like him who are her core supporters. So already she's going to have a problem if she votes for him.

She also has a lot of liberal women, including my mother and all of her friends, who actually like her, even though she is a Republican, and see her as being a fair person. And so I think that there is a real independent streak in Alaskan women, and I think that Lisa Murkowski could end up showing that. That said, she is a Republican. She is a member of the Republican Party, so you can't predict it. But I think of these people, she's the most likely to vote against him.

BERMAN: What's really interesting is Jeff Flake has all but told us he's a yes vote. Jeff Flake told us that he was happy with the investigation. He saw no corroborating evidence for Professor Ford's claims there. He's basically at yes. Susan Collins, maybe if you read the body language, seems to be leaning towards yes.

You want to know the definition of political mayhem? If Murkowski votes no, If Murkowski votes no, then what happens then? It's going to be a crazy few hours if we start to get a sense that that could happen. And Anita McBride, one thing that's interesting. This is a little mop up of what's happening over the last week. You were in the Bush administration. I know George W. Bush has been calling. He has been lobbying. And to a certain extent, he is a president with more sway over at least three of these four wavering Republicans, than the current president.

MCBRIDE: Well, I think obviously he knows him personally. And like a lot of us who signed letters or dozens of women that know Brett Kavanaugh that walked the halls of the Senate yesterday delivering letters from other hundreds of women that want to be character witnesses for Brett Kavanaugh because they know him personally, like George Bush does, obviously, watched him every day for six years and has been very close to him ever since. And whether that has a sway or not, who knows? And I agree that, you know, really, until that vote starts tomorrow, we won't know.

But I think one of the things, too, Murkowski versus Senator Collins, and I agree, I think Senator Murkowski is going to be a no vote on this for a number of reasons. Senator Collins said something really interesting in an interview the other day, though, about voting, how could she as a woman potentially vote for Brett Kavanaugh.

[08:10:00] She said I'm voting as a senator and looking at all the facts. And she's looking obviously at this investigation very closely. She also said something that I thought was very disturbing about this whole movement. The calls that she's been getting from people saying if you vote yes on Brett Kavanaugh, then the women in your office deserve to be raped. Can you imagine how does this help this entire movement to hear things like that?

POWERS: But who said that? I mean, come on. That is a crazy person. Don't try to make it out of that's the Me Too movement.

MCBRIDE: I'm not Kirsten. I'm saying crazy people are saying crazy things and we need to turn that down.

POWERS: Of course, that's terrible, but everybody gets threats. It is not something that's unique to the right or the left.

MCBRIDE: I agree. I agree. And I wish both the right and the left people that talk like that wouldn't do that. It doesn't help any argument to talk like that. HILL: As we're looking at this and we're gaming this out and we're

watching this clock, right, because we have just over two hours now until that procedural vote, we are hearing from other senators including Senator Chris Coons, who had this to say about where he thinks the voting stands.

(BEGIN VIDEO CLIP)

SEN. CHRIS COONS, (D) SENATE JUDICIARY COMMITTEE: Several of my friends who are undecided have not returned my calls in the last day, and that typically is a way a senator tells you they're busy deciding. I think this will be very close, and we'll have to find out later today, this morning, when we get to the Senate and vote.

(END VIDEO CLIP)

HILL: Joe, I hate to be cynical here. That's the way that they're telling you they're still deciding or a way of saying I'm not going to vote with you. I don't want to have that conversation. I'm not calling back.

LOCKHART: Let me call your cynicism and raise you.

HILL: Right?

(LAUGHTER)

LOCKHART: Lisa Murkowski desperately wants to vote no. So if the others, if they know that they have Collins and they have Flake, they'll let her vote no. But there is a level of cynicism here that we have never seen before. The Supreme Court nominees don't go out and do interviews. They don't write op-eds because they are not running for something. And that's going to have an impact on the court. And the court is becoming so politicized. And Mitch McConnell, Chuck Grassley doesn't seem to care.

The second thing is Republicans I think are going to have a fundamental problem going forward with women. I was struck this morning when you were talking to Ken Starr. Here we had a character witness for someone accused of sexual assault who was forced from his job because he chose to believe his football players at Baylor University who committed multiple and repeated sexual assaults, a character witness here. That's how blind they are to this. So this -- they may win the battle, but they are going to lose the war. I have no doubt about that.

HILL: In terms of that war, I do also want to pick up on what you said about how politicized the Supreme Court is. Who is responsible for that? Because it is not the justices. I think you could easily argue. They do, for the most part, do their best to keep quiet about things. It is politicians on both sides of the aisle.

LOCKHART: Sure.

HILL: Who have pushed this narrative of your vote is going to matter most importantly when it comes to who I nominate for the Supreme Court.

LOCKHART: Right. And there is tens and millions of dollars of dark money coming in, and there's money from both sides coming in. But the difference this time is the nominee chose to fight politics. And he didn't go and talk to all the American people. He chose two venues -- FOX News and "The Wall Street Journal" editorial page. It is a gain, a fundamental problem with the polarization of this country, where Donald Trump and his team think they are only governing for conservative Americans. Donald Trump keeps saying I won the majority of the women's vote in this country. He didn't. He won 42 percent. He won 52 percent of white women because that's all he cares about. He doesn't even think black women exist. And that's why he goes out and tells this lie over and over repeatedly.

That kind of polarization has -- with the exception of maybe Bush versus Gore has stayed out of the court. It is now there, and those four senators that are deciding have a chance to save the Supreme Court. We'll see what they do.

BERMAN: I just want to be clear. Jeff Flake, for instance, has made clear that he feels that Judge Kavanaugh is a conservative judge. Flake is a conservative. He thinks it's a consistent pick with his philosophy there, and he hasn't see something which he thinks would disqualify him.

LOCKHART: But I would argue that when Donald Trump got his list of 25 judges from "The Federalist Society," there's still 24 who are conservative judges who haven't made this about politics and haven't acted like Brett Kavanaugh. So Jeff Flake has a choice of saying no on him. Give me someone else.

BERMAN: And I know we still don't know which way this will go for sure. And we're watching that very closely. I'm very curious about the next few weeks and if not next few years. President Trump last night maybe gave us a window into what he thinks the main lesson learned from this saga has been.

[08:15:03]

He was in a Minnesota -- he was a at a Minnesota political rally, and he went after Senator Al Franken -- former Senior Al Franken and democrat, who resigned after sexual misconduct allegations against him.

And listen to what he criticized Al Franken for.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Boy, did he fold up like a wet rag, huh?

(CHEERING)

Man -

(CHEERING) Man, he was gone so fast -

(CHEERING)

He was gone so fast -- I don't want to mention Al Franken's name, OK. So I won't mention it.

(CHEERING)

He was gone -- he was gone so fast. It was like, "Oh, he did something," "Oh, I resign. I quit. I quit."

(END VIDEO CLIP)

MALE: Anita and Kirsten -- OK, Anita, you first. You're shaking your head very quickly.

ANITA MCBRIDE, FORMER CHIEF OF STAFF TO FIRST LADY LAURA BUSH: I know. It's horrible and unhelpful and -- and offensive. And you know, the reality of Al Franken resigning was because of women in the Senate really sort of forced that on him.

You know, he was a good guy. I wouldn't agree with his politics all the time, but this was a good family man. And he was good senator, and he was representing his state really well. I don't think that's helpful that Donald Trump did that.

But the reality, if we peel back the layers, was the intense pressure by women in the Senate, particularly in the -- in the senator's party, that really forced that.

KIRSTEN POWERS, CNN POLITCAL ANALYST: Yes. I mean Al Franken was accused by eight women. You know, it wasn't just one person. And the democratic women who pretty much forced him out, and I think he did the right thing.

And that Donald Trump's message here -- and you can see this is also what Brett Kavanaugh is probably being told from the White House -- is just deny, deny, deny. As long as you never admit anything, as long as you never take any responsibility for any of your behavior, that -- that's the only tact.

Brett Kavanaugh could've said, "You know what? I was an out of control drinker when I was in high school and college. I was immature; I did a lot of stupid things. There are things I don't remember. I don't remember this. If I did this, that was horrible."

That's not what he did. What he did was he took a page out of Donald Trump's playbook and just wouldn't allow for any possibility that he was anything less than perfect.

BERMAN: Right. Kirsten, Anita, Joe, thank you all very much for the discussion. We appreciate it.

POWERS: Sure. ERICA HILL, CNN ANCHOR: As we continue to watch, to wait, to see what will happen, a gaveling in happening. A short-time from now, we should have that vote, in just over two hours. But still, four key senators, as far as we know at 8:17 am Eastern, are undecided in terms of their vote for Brett Kavanaugh.

Up next, we'll speak with one woman who confronted one of those undecided, Senator Jeff Flake, in dramatic fashion. Her take (ph).

[08:18:00]

(COMMERCIAL BREAK)

[08:21:37]

HILL: In a little over two hours, there's that pivotal Senate vote on Judge Brett -- pardon me -- Judge Brett kavanaugh's Supreme Court nomination. It's hard to believe that it was only one week ago.

But almost exactly, to the minute, one week ago today, the world watched as two sexual assault survivors confronted the, still, as of today, undecided Republican senator, Jeff Flake, in an elevation. Here, again, is that moment.

(BEGIN VIDEO CLIP)

ANA MARIA ARCHILA, PROTESTER WHO CONFRONTED SENATOR FLAKE: What you are doing is allowing someone who actually violated a woman to sit in the Supreme Court. This is not tolerable. You have children in your family? Think about them. I have two children. I cannot imagine that for the next 50 years, they will have to have someone in the Supreme who has been accused of violating a young girl. What are you doing, sir?

(END VIDEO CLIP)

HILL: Joining me now, Ana Maria Archila, who's one of the women who confronted the senator there. She is also the co-executive director of the Center for Popular Democracy. Good to have you with us today. It's hard to believe -

ARCHILA: Thank you so much.

HILL: -- again, that's only been a week. What has this week, Ana Maria, been like for you? What's changed?

ARCHILA: Well, what has changed is that I have felt an incredible outpouring of love and courage from women across the country who saw themselves in Dr. Ford, who saw themselves in Maria (ph) and I in that elevator, who, where inspired by the strength to continue this fabric of stories that we're telling the country -- stories that are becoming a mirror.

What we're doing with our stories is allowing -- trying to have the country (inaudible), look at itself and ask, "Is this what we want to be? Is this who we want to be?" And the nomination of Brett Kavanaugh is a importantly -- tremendously important opportunity for leaders of this country, especially men in power, to say, "I see what's happening here. I do not want to participate in reaffirming a culture that ignores women, that doesn't believe survivors and that allows sexual violence and economic violence and political violence against women to continue."

That's really the opportunity right now, and that's what has changed. You know, a week ago, I was just telling my story and kind of trying to really embrace this part of my life that I had not wanted to -- that I didn't find a way to embrace.

And now, I feel incredible, both responsibility and fear, that -- that -- that our leaders will not meet the challenge of the moment, but also, tremendous gratitude for all the -- the outpouring of courage that women are displaying.

HILL: You're trying to talk to lawmakers; you're trying to talk to senators. Senator Jeff Flake, one of four undecided votes at the hour. Again, only two hours to go until this procedural vote. What is your message to him this morning? What is your message to Senator Collins, Senator Manchin, Senator Murkowski?

ARCHILA: My message is that they can be heroes. They can step into a role of profound leadership. They can say, "I will not," just simply take lineup behind my party, "I will do -- I will try to exercise my role in a way that allows me to really listen to people and to step to the challenge that the country is allowing me to have.

I think that the reckoning that we're going through is here. The question is whether our political leaders are able to step to the challenge and use their political action to signal that we will not continue to make the same mistakes of the past, that we will not reaffirm a culture that ignores women, that ignores survivors and that, by doing that, perpetuates that kind of violence.

[08:25:07]

HILL: Judge Kavanaugh, and I'm guessing you have read it by now, but releasing this op-ed. He wrote this op-ed for the Wall Street Journal which was published late last night.

And in it, he writes, "I was very emotional last Thursday, more so than I have ever been. I might've been too emotional at times. I know that my tone was sharp and I said a few things I should not have said. I hope everyone can understand I was there as a son, husband and dad."

It's important to point out, he didn't say specifically what those things are that he said that he believes he should not have said. He did not apologize, but he really was going out there to make the case that he can be nonpartisan, that he can look at cases in a fair way and that his outburst should not be looked at as how he will, in fact, perform his duties if he is confirmed as justice.

What's your reaction? ARCHILA: I mean we all have emotions. That's not the question here. The question he is are you able to responsibility for your actions? That is the question. I -- he has -- he could have said, "Listen, I -- I am so sorry that I was ever part of Dr. Ford's pain. I feel responsible for helping heal that pain by -- even if I don't remember, even if I -- if I'm not sure I -- of my actions. I do not -- I have a role as a leader to demonstrate a different kind of behavior."

So of course, this is an emotional time. He should know how to behave in a hearing with members of the Senate. He has had a lot of practice on that. But really, the question here is are you able to responsibility, because the Supreme Court is tremendously important to win (ph), where we, as a country, make progress towards what we want to be, this more perfect union, that what I was telling Senator Flake, in that moment, was that the way that justice work -- works is that you have to recognize harm, you have to take responsibility for it and then begin to repair it.

Someone who sits in the Supreme Court has to be able to that in his or her own personal life, and that's essential to their ability to do that for -- in that role as a member of the Supreme Court.

And I don't think Brett Kavanaugh has stepped up to the challenge, not in his personal life and not to the country. So I don't -- I'm not convinced that -- by -- by his op-ed. And he's missing the point -- he's missing the point.

HILL: There was a lot of talk about his reaction in that moment in the elevator, but it's not the only reaction that is getting attention on Capitol Hill there, because more and more people -- more and more Americans are voicing their opinion to their elected official.

Here's an exchange with Orrin Hatch that I want to play for you.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Why aren't you brave enough to talk to us and exchange with us? Don't you wave your hand at me. I wave my hand at you.

(CROSSTALK)

(END VIDEO CLIP)

HILL: Ana Maria, what's the disconnect in the conversation these days?

ARCHILA: That our elected officials do not have that much practice listening to people. We have a democracy that's very broken, because they listen to lobbyists and corporations more than they listen to people.

And this fight about Kavanaugh is really a fight about our democracy. I want -- I hope that the lesson that we draw from elevator and from the encounter that you just played out is that, in order to have a healthy democracy, it is essential for our political leaders to connect with us, to look at us, to not look away, to listen to our stories, to think about the people they love and to -- and it is essential for me that people do not allow them to define what democracy is.

Democracy's not a spectator sport; we have to bring it to life every single day, with our stories, with our visits to elected officials, with our marches, with our protests, sometimes with our angry outbursts when they don't listen to us, when they waive their hands at us.

[08:30:00]