Chairman of the senate jacket, he was in judiciary committee. None of them know exactly what senator collins is going to do. Just to set the stakes here, wolf, you named senator jeff flake. Thats 49. If he stays where he is, thats 49 senators, republicans need 50 and the tie breaking vote from Vice President pence. If Susan Collins says she will vote yes on the nomination, that is the vote that they need. Obviously were still waiting to hear from senator joe manchin, whether he plans to maintain his vote as well. A senator who has been undecided for the last couple of weeks, who has been going through a very, very difficult and complex process, a senator who on some of her crucial issues, most notably health care, roe v. Wade
said she feels very comfortable. She spent a lot of time behind the scenes reviewing that fbi report and now she has to make the decision, guys. Well find out soon enough, in the next few minutes. If she says shes going to vote yes in favor of confirmation, thats a huge deal. If she says no, that opens up a whole lot of possibilities. Absolutely. And she has been absolutely in a painstaking way going over all of these documents. She was there until early this morning, i was told, at her office going over it. But she did have, as phil said, good meetings with Brett Kavanaugh. She is somebody who is for abortion rights, even though shes a republican. That was a hurdle she had to get over it before all of this and she did get over it. Joining us political commentator mark short, the former director of legislative affairs forPresident Trump, Gloria Borger and mark chalian and arian dvau dvaugh. What are you hearing from your friends on the hill and the white house since you bridge both . Well, i think right now theres a lot of optimism this will get completed. Its a departure from the way Supreme Court nominations used to go. It wasnt until 2005 we had our first cloture vote with alito. When Clarence Thomas was elected, there was never a minimum vote needed. If she announces shes going to vote against confirmation, it puts an enormous amount of
pressure on the one democrat who voted in favor of moving this process forward, joe manchin of west virginia, who is in a tough reelection bid in his home state. If i was joe manchin at that point, id be running for the hills of west virginia. The democrats will put so much pressure on him. You cannot be the deciding vote here. If you want our help in your race and hes now ahead comfortably but these things can change, if you want any help in your race, forget it, were not going to help you. I can just imagine the conversation that would be had with chuck assuschumer. The best thing for joe manchin is if Chuck Schumer came out against him. That would help him. But not if he so tvoted yes kavanaugh. Joe manchin voted for all of our controversial nominees, neil
gorsuch, pompeo, all the way down the line hes supported those nominees. He understands the importance of an executive getting who he or she wants for his cabinet. Its one thing to vote for all those nominees if youre one of several. Its another if youre the decisive vote that will put judge kavanaugh on the Supreme Court not for four years or eight years but maybe 30 or 35 years. He doesnt want to be the 50th vote, wonderful, but he also stated ive never not voted on cloture the way im going to vote on final. I imagine hell stay true to that this time. I think it would be devastating for him back home if at this point he reversed course here. As much pressure as he may feel to not be the 50th vote, i just this is a state donald trump won by more than 40 points. I just think that joe manchin would have a very difficult time
explaining why he was for the process and letting it get to a final no vote but then at the end of the day had to be against. The reason were talking about joe manchin is were minutes away from Susan Collins making her decision. Youre so right, mark. This historically is not the way it works. Its gotten more and more partisan as time has gone on. And by it, i mean the conformation process. It also means two things for collins. It means, first of all, she was the one who wanted those fbi investigations, right . So it means that when she got that information back, she was satisfied. It also means that she wasnt as upset as some other people might be with judicial temperament. The whole idea that he was too political in that opening statement, that that would bleed over to the Supreme Court and that would be problematic. If she votes in his favor, those two things shes willing to say thats all right. Susan collins did her homework on this. I mean, she was in there reading the transcripts of the calls that came in over the transom and people saying i want to talk to you about x, y and z. The fbi, what was it a thousand pages . 1,500. 1,500 pages, i rest my case. She was reading the calls that came in of people who wanted to be interviewed who were not interviewed and she was interested in what they had to say. And the administration didnt ask for and the senators did not ask for that 1,600 pages. Thats something that the fbi sent up along with the 46 pages of the maybe she asked for it but she read it. Im curious because you covered these members of congress for a long time. The fact that Susan Collins and Lisa Murkowski might vote differently tomorrow during this final confirmation roll call, thats pretty extraordinary. Well, it is in these times. I interviewed them together after they both voted against here she is. The senator will suspend. The sergeant at arms will restore order in the gallery. Sergeant vote no show up for maine women vote no show up for maine women vote no, show up for maine women as a reminder to our guests in the galleries, expressions of approval or disapproval are not permitted in the senate galleries. The senator for maine. Mr. President , the five
previous times that ive come to the floor to explain my vote on the nomination of a justice to the United StatesSupreme Court, i have begun my floor remarks explaining my decision with a recognition of the solemn nature and the importance of the occasion. But today we have come to the conclusion of a Confirmation Process that has become so dysfunctional, it looks more like a caricature of a gutter level Political Campaign than a solemn occasion. The president nominated Brett Kavanaugh on july 9th. Within moments of that announcement, special Interest Groups raced to be the first to
oppose him, including one organization that didnt even bother to fill in the judges name on its prewritten press release. They simply wrote that they opposed Donald Trumps nomination of xx to the Supreme Court of the United States. A number of senator joined the race to announce their opposition, but they were beaten to the punch by one of our colleagues who actually announced opposition before the nominees identity was even known. Since that time we have seen special Interest Groups with their followers into a frenzy by spreading misrepresentations and
outright falsehoods about judge kavanaughs judicial record. Overthetop rhetoric and distortions of his record and testimonies at his first hearing produced shortlived headlines, which although debunked hours later continued to live on and be spread through social media. Interest groups have also spent an unprecedented amount of dark money opposing this nomination. Our Supreme CourtConfirmation Process has been in steady decline for more than 30 years. One can only hope that the kavanaugh nomination is where the process has finally hit rock bottom. Against this backdrop, it is up
to each individual senator to decide what the constitutions advice and consent duty means. Informed by Alexander Hamiltons federalist 76, i have interpreted this to mean that the president has brought discretion to consider a nominees philosophy, whereas my duty as a senator is to focus on the nominees qualifications as long as that nominees philosophy is within the mainstream of judicial five. I have always opposed litmus tests for judicial nominees with respect to their personal views or politics, but i fully expect them to be able to put aside any
and all personal preferences in deciding the cases that come before them. Ive never considered the president s identity or party when evaluating Supreme Court nominations. As a result, i voted in favor of Justices Roberts and alito, who were nominated by President Bush, Justices Sokagan nominate by President Obama and so i reviewed judge kavanaughs 12year record on the d. C. Circuit court of appeals,
including his more than 300 opinions and his many speeches and law review articles. 19 attorneys, including lawyers from the Nonpartisan Congressional Research Service briefed me many times each week and assisted me in evaluating the judges extensive record. I met with judge kavanaugh for more than two hours in my office. I listened carefully to the testimony at the committee hearings. I spoke with people who knew him personally, such as Condoleezza Rice and many others. And i talked with judge kavanaugh a second time by phone for another hour to ask him very specific additional questions. I also have met with thousands of my constituents, both advocates and many opponents regarding judge kavanaugh. One concern i frequently heard was that the judge would be likely to eliminate the Affordable Care acts vital protections for people with preexisting conditions. I disagree with this contention. In a dissent in 7 sky v. Holder, judge kavanaugh rejected a challenge to the aca on narrow procedural grounds, preserving the law in full. Many experts have said that his dissent informed Justice Roberts opinion upholding the aca at the Supreme Court. Furthermore, judge kavanaughs approach toward the doctrine of
severability is narrow when a part of a statute is challenged on constitutional ground, he has argued for severing the invalid clause as surgically as possible while allowing the overall law to remain in tact. This was his approach and his dissent in a case that involved a challenge to the structure of the Consumer Financial protection bureau. In his dissent, judge kavanaugh argued for, quote, severing any problematic portions while leaving the remainder in tact, end quote. Given the current challenges to the aca, proponents, including myself of protections for people with preexisting conditions
should want a justice who would take just this kind of approach. Another assertion that ive heard often is that judge kavanaugh cannot be trusted if a case involving alleged wrongdoing by the president were to come before the court. The basis for this argument seems to be twofold. First judge kavanaugh has written he believes congress should enact legislation to protect president s from criminal prosecution or civil liability while in office. Mr. President , i believe opponents missed the mark on this issue. The fact that judge kavanaugh offered this legislative proposal suggests that he believes that the president does not have such protection
currently. Second, there are some who argue that given the Current Special counsel investigation President Trump should not even be allowed to nominate a justice. That argument ignores our recent history. President clinton in 1993 nominated Justice Ginsburg after the Whitewater Investigation was already under way, and she was confirmed 963. The next year justice three years after independent counsel robert fisk was named to lead the Whitewater Investigation, president clinton nominated justice breyer. He was confirmed 879. Supreme Court Justices have not hesitated to rule against the president s who have nominated
them. Perhaps most notably in the United States versus nixon, three nixon appointees who heard the case joined the unanimous opinion against him. Judge kavanaugh has been unequivocal in his belief that no president is above the law. He has stated that marbury versus madison, Youngstown Steel Versus Sawyer and the United States versus nixon are three of the four greatest Supreme Court cases in history. What do they have in common . Each of them is a case where congress served as a check on president ial power. And i would note that the fourth case that judge kavanaugh has pointed to as the greatest in history was brown versus theBoard Of Education. One Kavanaugh Decision illustrates the point about the check on president ial power directly. He wrote the opinion in a case that challenges the bush administrations military Commission Prosecution of an associate of osama bin laden. The judge had been appointed by President Bush and had worked in President Bushs white house ruled that the conviction was unlawful. As he explained during the hearing, quote, we dont make decisions based on who people are or their policy preferences
or the moment. We base decisions on the law, end quote. Others ive met with have expressed concerns that Justice Kennedys retirement threatens the right of samesex couples to marry, yet judge kavanaugh described the obergafeld decision, which legalized samegender marriages as an important landmark precedent. He also cited Justice Kennedys recent master piece Cake Shop Opinion for the courts majority stating that, quote, the days of treating gay and lesbian americans or gay and lesbian couples as second class citizens who are inferior in dignity and worth are over in the Supreme Court, end quote. Others have suggested that the
judge holds extreme views on birth control. In one case judge coffin kukav h kavanaugh incurred the disfavor of both sides for seeking to ensure the availability of contraceptive services for women while minimizing the involvement of employers with religious objections. Although his critics frequently overlook this point, judge kavanaughs dissent rejected arguments that the government did not have a compelling interest in facilitating access to contraception. In fact, he wrote that the Supreme Court precedent strongly suggested that there was a compelling interest in facilitating access to birth control. There has also been considerable focus on the future of abortion
rights based on the concern that judge kavanaugh would seek to overturn roe v. Wade. Protecting this right is important to me. To my knowledge, judge kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition but rooted in article 3 of our constitution itself. He believes that precedent is not just a judicial policy, it is constitutionally dictated to Pay Attention and pay heed to rules of precedent. In other words, precedent isnt a goal or an aspiration, it is a constitutional tenet that has to
be followed, except in the most extraordinary circumstances. The judge further explained that precedent provides stability, predictability, reliance and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court in brown versus the Board Of Education overruled plessy versus ferguson, correcting a grievously wrong decision to use the judges term, allowing racial inequality. But someone who believes that the importance of precedent has been rooted in the constitution would follow long established precedent, except in those rare
circumstances where a decision is grievously wrong or deeply inconsistent with the law. Those are judge kavanaughs phrases. As the judge asserted to me a long established precedent, its not something to be trimmed, narrowed, disguacarded or overlooked. Its roots in the constitution give the concept of Stare Decisis greater weight such that the precedent cant be trimmed or narrowed simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly. Noting that roe v. Wade was decided 45 years ago and reaffirmed 19 years later inPlanned Parenthood versus casey, i asked judge kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our Legal Framework with the passage of time and that honoring precedent is es