Tonight, it really looked like dr. Fords lawyers and the republican chairman of the Senate Judiciary committee might be on about track to negotiate some sort of mutually agreeable terms under which dr. Ford would appear in some way before that committee to discuss her allegation. The fact that those negotiations were under way tonight is publicly known. The written communication from dr. Fords lawyers to the committee which sort of started off those negotiations today, that statement is also publicly known. Ill share that with you in just a second. As of tonight, heading into air time tonight, we thought those negotiations were far enough along that dr. Fords lawyer would be able to join us live to tell us tonight right here what was going to happen, but no. It sort of fell apart at the last moment. Now theyre very nice about it. Im not mad. My feelings are not hurt. But the reason they gave us for cancelling sort of at the last minute tonight may itself be news. Dr. Fords legal team telling us tonight that they couldnt be on the show, and they cited, quote, active efforts to reach the committee as their reason why dr. Fords lawyer couldnt appear with us live. So we infer from that that these negotiations were continuing into this evening, and for some reason, dr. Fords lawyers believed it might have impeded the prospects with them coming to some sort of negotiated conclusion for them to do any live interviews at this moment while these negotiations are under way. So heres basically the status as far as we know it. Justice Anthony Kennedy announced his retirement months ago. The vacancy on the Supreme Court created by his retirement has been there for more than 70 days. The Supreme Court is not in session at this point. We know there is no special freshness date after which a Supreme Court vacancy goes bad and starts to stink up the fridge. We know that because republicans held open a vacancy on the Supreme Court for nearly a year rather than allow president barack obama to have his nominee considered to fill the seat that was vacated by Justice Antonin Scalia after scalia died in winter of 2016. Given that, we know there is no external constraint here. There is no ticking time bomb that is going to go off if the Brett Kavanaugh nomination process is slowed down to allow for the consideration of this new serious allegation against him. We know that in part because of the Antonin ScaliaMerrick Garland example where they held that seat open forever. But we also know that because today there was no vote on Brett Kavanaugh in the Senate Judiciary committee. They were planning on voting today. They didnt vote today. So the kavanaugh nomination process is already delayed as of today. Today there was no vote, right . The kavanaugh nomination process is already delayed. How long it will be delayed while this allegation is considered is something for which there is no external rules. There is no set time frame. They can take as much time or as little time as they want to make sure they have thoroughly considered this nominee and what it would mean to put him on the Supreme Court for the rest of his natural life. But despite that fact, despite the fact that they really can take all the time they want, the committee chairman, republican senator Chuck Grassley has informed the lawyers for Christine Blasey ford that she has a deadline. Shh has a deadline of 10 00 a. M. Eastern time tomorrow by which time she must inform the committee whether or not she intends to testify on monday. And the republicans thus far have been saying thats it. Thats her only chance. Its monday or nothing, and she has to commit by tomorrow morning whether or not wl she is going to be there on monday, and thats her only chance. Times it. Because of this imaginary imperative they have newly imagined this week, thats what theyve been demanding of her. Thats it. Thats your only chance. Deadlines tomorrow morning. As we reported last night, the main Sticking Point appears to be whether or not republicans in the senate and the white house will allow the normal procedure that is usually followed in cases like this to apply to this case too. I mean, Brett Kavanaugh is not the first nominee for the Supreme Court or the first nominee for any other highranking Senate Confirmed position who has gone through the process of confirmation hearings only to see a serious allegation of some personal nature raised against him by a member of the public late in the process that has happened to other nominees before. There is a system for dealing with this. That is of course what happened to judge Clarence Thomas after his confirmation hearing were concluded in 1991, and then law professor anita hill came forward with serious allegations of Sexual Harassment against him. Our Steve Schmidt from the george w. Bush white house and the John Mccain Campaign reminded us today that a similar dynamic was at play when george h. W. Bush nominated senator john tower to be secretary of defense. Deep into john towers nominating process, serious allegations came forward about towers personal life, including infidelity and particularly allegations about excessive drinking. In both the Clarence Thomas case and the john tower case, it was an absolutely mundane noncontroversial part of those controversies that went late allegations emerged about those nominees, as part of the fbi standard role in doing Background Investigations on nominees, in both of those case, the fbi reopened those Background Investigations and looked into these new allegations, when those new allegations arose during the confirmation process. The fbi part of it is not a high profile part of the history of those controversies. If you ever take a class where you study the controversial nomination of larens thomas, or the controversial and ultimately failed nomination of john tower, if you ever study those matters, the fbi looking into the allegations wont come up in class because its such a mundane, normal part of the process. Its not even remarked upon in those controversies. But when the history of the Brett Kavanaugh nomination is some day told, the thing that will stand out on this one like a tenfoottall hat on a kneehigh horse is that for some reason with this one republicans in the senate and the Trump White House couldnt even explain the reasons why they absolutely insisted the fbi must not be allowed to do that in this case. The fbi must not be allowed to reopen and complete their Background Investigation on Brett Kavanaugh to account for this new allegation. That would be regular order. Thats the way that it always goes whenever there is a controversy that arises during the confirmation process. Fbi reopens its Background Investigation process, accounts for these new allegations, reports on what they find. Its factored into the confirmation process that is a normal part of the process. Republicans in the white house insist that that cannot be part of the process this time. Why not . Well, tonight Christine Blasey fords legal team is apparently negotiating with the Senate Judiciary committee about the terms under which dr. Ford might testify about this allegation. In her legal teams letter to the Judiciary Committee, her attorneys told chairman grassley today that there really ought to be an investigation of her claims before she sit downs with senators. Quote, her strong preference continues to be for the Senate Judiciary committee to allow for a full investigation prior to her testimony. Now as a Statement Released moments ago by senator Chuck Grassley confirms that discussions have been taking place, but so far no announcement as to what they have decided. I have to say, just as an observer of this process, i would like to hear a reason from the republicancontrolled Senate Judiciary committee as to why they are insisting the fbi shouldnt look into this, why they are insisting that the normal procedure for dealing with this shouldnt apply in this case. They really havent even made an argument why they want this departure from normal order for kavanaugh specifically, but here is what else dr. Fords lawyer said to senator grassley tonight, quote, as you are aware, she has been receiving Death Threats which have been reported to the federal bureau of investigation, and she and her family have been forced out of their home. She wishes to testify provided that we can agree on terms that are fair and which ensure her safety. A hearing on monday is not possible, and the committees insistence that it occur then is arbitrary, in any event. So we dont know how these negotiations are ultimately going to land. If we get a call while were on the air this hour, he will let you know as soon as we know. But as far as we can tell, the bottom line here is that her attorneys are saying monday is impossible. Some other day next week might be possible. They want terms that they believe are fair and that, quote, ensure her safety. Were not exactly sure what that might mean, what kind of assurances they might be looking for there, but also, again, dr. Ford is expressing her, quote, strong preference that there be a full investigation prior to her testimony. Now, how could that full investigation happen . They dont want the fbi to do it for some reason. They wont say why they dont want the fbi to do it, but they wont let the fbi do it, even though thats what would normally happen. I dont know if thats still tennell, if thats still going to hold, but that still seems to be what theyre sin assisting on. Chairman grassly, chairman of the committee has insisted that his own staff can do the whole investigation, and that will be fine. Thats good enough. A couple of problems have emerged with that approach over the past day or so. Number one, its clear from the letter from dr. Fords attorneys that dr. Ford and her attorneys dont consider Chuck Grassleys own staff looking into it to necessarily count as a full and impartial investigation. Also, members of Chuck Grassleys committee seem to have a problem with this idea from their chairman. You might remember how you might tlaeb this is how chairman grassley announced that his own staff was taking care of it. He said online, quote, no other outside investigation is necessary for the committee to do its investigation. Committee investigators are following up on leads from dr. Fords allegations and news stories. Committee investigators are following up on leads. Democratic senator Sheldon Whitehouse of rhode island is on that committee. He responded to that from Chuck Grassley, quote, really . When . Who will locate and interview witnesses . Has the Judiciary Committee hired independent investigators that we dont know about . When will the witness statements be taken . When will they be shared . Will the minority get to call the witnesses or will that just be the republicans who get to call witnesses . Senator grassley has also run into a problem in the form of his top staffer on the committee, the person who he has apparently tasked with investigating this attempted Rape Allegation. The investigator is named mike davis. He says that he is the chief counsel for nominations working for chairman Chuck Grassley on the Judiciary Committee. Last night mr. Davis decided for some reason to get on twitter and let it all hang out in terms of how the supposed investigation is going. He said online, quote, i personally questioned judge kavanaugh under penalty of felony and five years of imprisonment if he lies. Im still waiting to hear back from the accusers attorneys. Which means by his own description, hes the guy who is personally conducting the investigation of this matter when Chuck Grassley says that the Committee Investigators are following up on leads and doing these apparently who he is talking about is mike davis. I personally requested judge kavanaugh. I am waiting to hear back from the accusers attorneys. The very next tweet in mike davis timeline, also from last night, is this one. Unfazed and determined, period, we will confirm judge kavanaugh, confirmkavanaugh, scotus. Okay. So you can see the problem. If this is the lead investigator that Chuck Grassley has put on this matter, this guy who is confirmkavanaugh all the way. Already proclaiming himselffunf problem that has arisen in this confirmation process. And there is Chuck Grassley saying no outsiding investigation is necessary and nobody should have any reason to doubt their impartiality and whether they have an open mind on these matters. Confirm kavanaugh. After posting his unfazed and undetermined confirm kavanaugh last night, mike davis deleted those tweets and he locked his twitter account. So there is no explanation still from the white house or from republicans in the senate as to why they will not let the fbi include this matter, this serious allegation against judge kavanaugh in their kavanaugh background check, which would be standard procedure. Obviously now there are seemingly untenable problems with Chuck Grassley insisting that he and his staff can look into this himself. It would be a totally unbiased. Look, why would you think theyre biased, confi biased, confirmkavanaugh. Unfazed, determined. We believe that negotiations continued into this evening. As to whether or not there will be any investigation of this matter and the question of whether there will be testimony by dr. Ford on this issue, this is a totally live concern. This is unsettled. We really do not know how this is going to go, either in terms of whether or not kavanaugh is going to be withdrawn from consideration, whether he will be confirmed if indeed they go forward with it. We dont even know whats going to happen in terms of the next steps of how this element of his confirmation process is going to be handled. It is totally open. Anything could happen here. Given that, i want to leave you with three little points that you might not have seen in the news today, even if you were following this closely, but you should know if you are trying to figure out where this is going to go next. I should also tell you that in just a moment were going to be live with senator pat leahy, who is one of the senior democrats on this committee. He was there during the Anita Hill Thomas clarence controversy. He is helping to lead the democratic side of this fight right now. Im going to put three little pins on this map, and then were going bring in senator leahy. So number one, first thing you should know is that the New York Times reports tonight and nbc news later reported tonight that on the republican side, they have apparently decided theyre going to hire an outside lawyer, an outside counsel not to investigate this allegation, but rather to perform the questioning of dr. Ford if she does ever end up testifying on this matter before their committee. This means republican senators themselves dont want to be seen on tv asking questions of this witness. They are apparently engaging and they are apparently going to pay an outside lawyer to question her for them. Even as they are unwilling to allow the fbi to investigate this matter or to appoint an outside counsel to investigate this matter as a factual basis, they are still going to appoint an outside counsel just to do their questioning so they dont have to do it. Thats one thing you should know. The second thing you should know, and this is not directly materially relevant to how this controversy is going to unfold, but i think its very politically relevant. Nbc news has just published new polling data on kavanaughs nomination. The first time they polled on kavanaugh was in july, and in July Kavanaugh had historically low levels of support in the nbc poll. The raw numbers were 32 of americans wanted to confirm him. 26 did not. Its sort of easiest just to look at the total the right column there, right . 32 in support. 26 not supporting him. That means he was plus 6 in terms of the difference between the number of people who wanted him on the court and the number of people who did not want him on the court. Plus 6 is really, really low for a Supreme Court nominee that was july. Then the next month in august, nbc did the exact same poll, and his support actually dropped a little bit. He went from plus 6 in july down to plus 4 in august. Well, now nbc tonight has just unveiled new polling thats been in the field since this serious allegation was made against Brett Kavanaugh by dr. Christine blasey ford and support for him already historically low by just plus 6, plus 4, support for him now has fallen off the cliff. The support now sat minus 4 by a 4point margin, more americans want h