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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. The Senate is

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Speaker 1: set for a final vote on the nomination of our

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Speaker 1: Kavanaugh to the Supreme Court, as Democrats continue to complain

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Speaker 1: about the scope of the FBI investigation into sexual assault

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Speaker 1: charges against Kavanaugh. Speaking with reporters yesterday, Senate Judiciary Committee

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Speaker 1: Chairman Chuck Grassley remained confident in Kavanaugh's confirmation. I feel

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Speaker 1: very good about where this nomination is right now. Now.

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Speaker 1: I don't say that from the standpoint of counting votes.

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Speaker 1: I say that from the standpoint of the qualifications of

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Speaker 1: this candidate. With us here now in the Bloomberg nine

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Speaker 1: studio is Greg Store, Bloomberg News is Crack Supreme Court reporter,

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Speaker 1: and we're going to talk about what just happened a

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Speaker 1: moment ago on the Senate floor. Maybe you can explain

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Speaker 1: to our listeners, you know it was. It's called the

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Speaker 1: procedural vote, a key vote, a test vote, a culture vote.

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Speaker 1: But what really just happened there, Well, technically, what that

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Speaker 1: does is it means that they can go ahead with

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Speaker 1: the final vote. Uh. The senators cast votes that may

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Speaker 1: or may not give indications of what they're gonna do

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Speaker 1: on the final vote. It means that we will know,

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Speaker 1: uh tomorrow whether Brett Kavanaugh is a Supreme Court justice,

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Speaker 1: but we don't know for sure how that vote is

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Speaker 1: going to come out. And I was struck to see

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Speaker 1: just how some of these key centrist Republicans did. Senator

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Speaker 1: Jeff Flake, the retiring senator from Arizona, was a yes

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Speaker 1: on cloture. Senator Susan Collins, another key centrist Republican from Maine,

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Speaker 1: also a yes, Lisa Murkowski of Alaska voting no. And then,

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Speaker 1: of course the big shocker. There were literally gasps on

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Speaker 1: the floor reportedly of the Senate when Senator Joe mentioned

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Speaker 1: a centrist Democrat from West Virginia, in a state greg

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Speaker 1: that candidate Donald Trump carried by forty two percentage points,

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Speaker 1: voted yes. He voted with Republicans to advance this, but

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Speaker 1: as you mentioned, he very well could vote yes on

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Speaker 1: culture and no for final passage. Right, That's exactly right,

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Speaker 1: and One possibility is that Senator Mansion could wait to

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Speaker 1: see which way the wind is blowing and in particular,

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Speaker 1: which way Susan Collins votes. So Lisa Murkowski, I should say,

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Speaker 1: just told reporters, big scrum of them, just said quote.

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Speaker 1: In my view, he's not the best man for the

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Speaker 1: court at this time. So she has indicated she is

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Speaker 1: going to vote no on final confirmation. What that means

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Speaker 1: is it's down to three senators we don't know about

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Speaker 1: for sure, Flake, Collins, Uh and Mansion. If Flake votes yes,

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Speaker 1: then it's up to Susan Collins and Joe Mansion may

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Speaker 1: may follow her one way or the other. NBC News

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Speaker 1: is reporting the Flake is telling them that he plans

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Speaker 1: to vote yes on final confirmation. So if that story

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Speaker 1: holds up, we will will really just be down to

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Speaker 1: Collins and Mansion. I think this is one of the

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Speaker 1: more bizarre rituals of Washington, where you have a a

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Speaker 1: what seems like a vote of the United States Senate

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Speaker 1: that Wine and Brett Havana's favor, and yet still we

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Speaker 1: don't actually know the final outcome. So explain why people

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Speaker 1: vote yes on cloture and can still vote no on

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Speaker 1: the final Well, there there is a notion that some

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Speaker 1: Senators still carry that a nominee deserves a vote. So

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Speaker 1: one could imagine Susan Collins, for example, taking the position

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Speaker 1: that I believe he deserves a vote, and I'm going

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Speaker 1: to vote no. We don't know that's how how she's

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Speaker 1: going to come out, but that's at least um a

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Speaker 1: possibility for how it will happen. And of course this

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Speaker 1: all happens against the backdrop of up until the nomination

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Speaker 1: of Neil gorcich Uh, there was the ability to filibuster

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Speaker 1: a Supreme Court nominee, meaning you had to have sixty

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Speaker 1: votes to get to the next stage. You know what

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Speaker 1: I find fascinating is just really how much of a

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Speaker 1: local issue this has become for each of these senators.

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Speaker 1: Senator Susan Collins is not up for reelection until twenty

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Speaker 1: but she faces potentially a challenger from the right. Up there,

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Speaker 1: Governor Lapage, who's a staunch ally of the presidents and

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Speaker 1: has been for quite some time. The President's son Don Junior,

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Speaker 1: campaigning at a main Republican fundraiser over the weekend with

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Speaker 1: Governor Lapage. Then you look at someone like Senator Mansion,

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Speaker 1: where those polls have tightened increasingly, and he of course,

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Speaker 1: being a centrist Democrat, this is fascinating. More nationally speaking,

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Speaker 1: in particular, the NPRPBS News Hour poll that came out

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Speaker 1: earlier this week found the enthusiasm gap evaporate in terms

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Speaker 1: of Democrats and Republicans. Talk to me, Greg about just

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Speaker 1: how much how unique this vote has become for this

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Speaker 1: cultural moment in the US that we're just you know,

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Speaker 1: over a day away from finding out what will happen. Yeah, Kevin,

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Speaker 1: as you said, Uh, this is a highly unusual, if

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Speaker 1: not really the first time in history that we've had

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Speaker 1: a vote so big on a Supreme Court nominee right

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Speaker 1: before an election. So uh, those uh, those those views

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Speaker 1: that you just talked about are going to matter when

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Speaker 1: people go out to vote for for against Joe Mansion. Uh,

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Speaker 1: in just a few weeks. With Susan Collins, it's a

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Speaker 1: little bit of a different calculation. Uh, you know, two

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Speaker 1: years is a long time. Uh, this issue will fade

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Speaker 1: from the headlines. People may have moved on to other things.

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Speaker 1: But she has to weigh the risk that people are

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Speaker 1: going to remember how she voted here and it could

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Speaker 1: come back to bite her. So Greg we have one

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Speaker 1: of the we have one of the best Supreme Court

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Speaker 1: reporters in Washington, d C. I'll brag about you for you.

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Speaker 1: And to be a crime to only talk about politics.

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Speaker 1: Let's talk about the court itself. Um, people talk about

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Speaker 1: Brett Kavanaugh cementing a conservative majority on this court for

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Speaker 1: a generation. He's he's only in his fifties. He could

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Speaker 1: serve on their twenty thirty years easily taught. Let's put

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Speaker 1: let's put ourselves on a time machine and pretend that

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Speaker 1: he has just been confirmed to the United States Supreme Court.

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Speaker 1: What is your story about that? Say? What does this

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Speaker 1: historical moment for the court mean going forward? Well? Uh,

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Speaker 1: as he said, this is a turning point for the court.

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Speaker 1: We're gonna end up with most likely the most conservative

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Speaker 1: court we've had in eighty years since since the New Deal,

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Speaker 1: the Court is unquestionably going to move to the right

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Speaker 1: on big issues like abortion, affirmative action, federal regulation, the

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Speaker 1: power of the president, and really the key factor is

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Speaker 1: going to be how quickly Chief Justice John Roberts is

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Speaker 1: gonna want to go. He's a very conservative guy, conservative

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Speaker 1: justice who has consistently voted conservative, with one big exception

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Speaker 1: that being, uh, the Obamacare fight. But he's also somebody

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Speaker 1: who cares a lot about the Court's institutional standing. He

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Speaker 1: doesn't want the Court perceived as as a political entity. Uh.

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Speaker 1: That that is going to shift with the political winds

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Speaker 1: and shift based on the membership of the Court, which

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Speaker 1: might mean that uh he puts off the day where

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Speaker 1: the Court reconsiders Roe v. Wade, for example, and overturns

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Speaker 1: some other key precedents. But the Court is certainly going

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Speaker 1: to move to the right the I mean, I think

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Speaker 1: the other question a lot of people have is about

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Speaker 1: tempera minutes a word you're hearing a lot these days.

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Speaker 1: We all saw Bret Cavanaugh's testimony um last week emotional,

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Speaker 1: and I think would be a fair word to describe

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Speaker 1: it with just a few seconds that we have left

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Speaker 1: here talk about how the how he might fit in

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Speaker 1: to the current Supreme Court in that way, it will

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Speaker 1: be a challenge for both him and the other justices. Uh.

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Speaker 1: They know they have to work with each other. They

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Speaker 1: probably all have very strong feelings, but they're gonna be

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Speaker 1: there together for a long time. Thank you very much, Greg,

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Speaker 1: We really appreciate your your views on such a busy day.

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Speaker 1: We'rely from the Blueberg Interactive Broker studio, and last night,

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Speaker 1: President Trump addressed a crowd of supporters in Rochester, Minnesota,

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Speaker 1: hitting aggressively the campaign trail ahead of the midterm elections,

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Speaker 1: and he discussed the upcoming confirmation vote for Supreme Court

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Speaker 1: nominee Brett Cavanaugh, who just advanced out of culture. That

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Speaker 1: vote anticipated tomorrow, and in his comments, President Trump continued

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Speaker 1: to target Democrats. Take listen, they want to obstruct, they

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Speaker 1: want to delay, demoral, they want to destroy. That's what happens.

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Speaker 1: That's what happened. And just take a look at what's

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Speaker 1: going on. Democrats have been trying to destroy Judge Brett cabinet.

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Speaker 1: So there you have the President Trump taking this issue

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Speaker 1: to the campaign trail. Mike Dorning, Bloomberg News White House

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Speaker 1: Deputy team Leader joins us now and Mike, when you

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Speaker 1: look at the comments coming from President Trump about this

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Speaker 1: particular issue, he's really trying to rally the base around this. Now, yeah, absolutely,

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Speaker 1: And that's always a problem for the president's party going

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Speaker 1: into mid term elections, is how motivated is the base

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Speaker 1: once the president's in the White House. And here you

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Speaker 1: have a controversy that hits at a key issue for

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Speaker 1: conservative social Republicans who are the sort of the most

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Speaker 1: enthusiastic parts of the base, the Supreme Court nomination. And

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Speaker 1: he's using this and the polarization around this fight to

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Speaker 1: try to rev up his base to get it closer

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Speaker 1: to where the Democrats are. But I thought that, right,

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Speaker 1: the conventional wisdom was that a lot of women voters

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Speaker 1: in particular, would be very upset about the way of

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Speaker 1: our Kavanaugh. You know the testimony from the Professor Ford,

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Speaker 1: the Kavanaugh's rebuttal, you seem to be saying that Republicans

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Speaker 1: are starting to get a little bit of a bump

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Speaker 1: in their base. Explain that now there there's some signs

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Speaker 1: that they are getting a bump. The way the White

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Speaker 1: House views it is the Democratic base was already really

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Speaker 1: rebbed up, and women were already really revved up about

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Speaker 1: Trump to go out and vote against him. Now what

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Speaker 1: they're hoping to do is to bring up the enthusiasm

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Speaker 1: of their base so it's closer to where the Democratic

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Speaker 1: base is, and that, in theory, should even things out.

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Speaker 1: The downside risk is that this will the downside risk

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Speaker 1: for the Republican point of view is that this will

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Speaker 1: also rev up women. But their bet is that women

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Speaker 1: and Democrats are already so repped up that you're not

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Speaker 1: and to rev them up that much more. And should

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Speaker 1: Judge Kavanall ultimately get confirmed, and now we're playing the

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Speaker 1: should have his game, But should he get confirmed, would

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Speaker 1: that enthusiasm bump that we've seen from Republicans last because

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Speaker 1: thirty days in two thousand and eighteen, and President Trump's

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Speaker 1: political arena is an eternity. Right, My bed is it

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Speaker 1: would ebb some personally. But you do have some things

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Speaker 1: that would help that, which is, you're delivering two tangible

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Speaker 1: things close to the election. On the one hand, you

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Speaker 1: are delivering a fifth conservative Supreme Court vote, which shows

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Speaker 1: tangible results for social conservatives. And the other thing is

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Speaker 1: then NAFTA two point oh. Even though a lot of

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Speaker 1: people who look at this closely may sort of scoff

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Speaker 1: and say it's not that big a change from NAFTA,

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Speaker 1: it is nonetheless a trade deal that does change things,

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Speaker 1: that does renegotiate NAFTA, and it's done and it's delivered,

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Speaker 1: and that is something that is of importance to rust

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Speaker 1: belt voters and particularly some of the dairy voters in Minnesota.

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Speaker 1: So one of the oldest cliches in politics is turnout

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Speaker 1: is you know, really what matters? That really is doubly

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Speaker 1: true in a mid term election, and that's why we're

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Speaker 1: spending so much time talking about it right now, and

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Speaker 1: in the larger political conversation explained again why why has

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Speaker 1: turned out so important at this juncture? Well, the most

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Speaker 1: at its simplest is a vote doesn't count if you

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Speaker 1: don't cast it. But for mid terms, why that matters

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Speaker 1: so much is that the turnout is relatively low, especially

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Speaker 1: compared to a presidential election year, so you have a

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Speaker 1: lot more to gain by revving up turnout. And that's

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Speaker 1: something that you've seen basically every UM, every president since

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Speaker 1: two thousand in their mid term elections, they and the

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Speaker 1: opposition party. It's really been turning out the base that

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Speaker 1: matters in the mid terms UM this whole century UM,

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Speaker 1: rather than going after independent, suaitable voters. And I think

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Speaker 1: Craig makes a great point, especially when we talk about

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Speaker 1: turnout and just how much is writing on this Supreme

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Speaker 1: Court pick. And just under three hours, Senator Susan Collins,

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Speaker 1: the centrist Republican remain is set to deliver a speech

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Speaker 1: where she's going to make known Mike what her position is,

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Speaker 1: how she's going to vote on Judge Kavanaugh. Senator Jeff Blake,

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Speaker 1: according to NBC, is reportedly going to be a guest.

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Speaker 1: This all comes down to Senator Susan Collins, and we're

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Speaker 1: going to find that out at three o'clock. What's going

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Speaker 1: through her mind right now, what political calculations is she making,

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Speaker 1: and what pressure is she facing from the White House. Well,

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Speaker 1: I won't um, I won't pretend to know whether she's

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Speaker 1: debating this from a holy um disinterested view or political view.

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Speaker 1: But her political pressures are that she has to win

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Speaker 1: re election in a primary in Maine eventually, and this

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Speaker 1: is something that if she goes against the Conservatives on this,

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Speaker 1: it will really tick off potential primary voters. Now, on

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Speaker 1: the other hand, she has made a very big thing

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Speaker 1: of being having an independent streak, of being sensitive to

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Speaker 1: women's issues, of being sensitive particularly on row versus weight,

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Speaker 1: and this is an issue that both deals with abortion

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Speaker 1: rights and women's place in the world. Now, on top

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Speaker 1: of that, the general buzz is that the Bush family

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Speaker 1: has been lobbying her very heavily on behalf of Kavanaugh,

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Speaker 1: and she is not particularly close to President Trump, but

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Speaker 1: she does have a good relationship with the Bush family.

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Speaker 1: In fact, their summer homes in Maine, and so she's

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Speaker 1: getting a lot of personal lobbying from that front as well.

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Speaker 1: So we know that the President is about to hit

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Speaker 1: the road again, it feels a little bit like he

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Speaker 1: himself is on the ballot. Uh, tell us about you

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Speaker 1: know what, what is the White House thinking on sending

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Speaker 1: Trump himself out there? We've got about thirty seconds there.

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Speaker 1: Thinking is again, the Democrats are as rebbed as they get. Um,

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Speaker 1: he's got to rip up his people. There's nothing to

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Speaker 1: lose by sending him out there and revving him up.

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Speaker 1: That's not necessarily what everyday Republicans do. We're li from

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Speaker 1: the Bloomberg Interactive Broker Studio and we're carefully monitoring what's

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Speaker 1: going on on Capitol Hill. It's all about Judge Brett

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Speaker 1: Kavanall Georgetown prep Alum, those allegations of sexual misconduct. He

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Speaker 1: cleared the cloture vote, and at three pm today we're

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Speaker 1: anticipating remarks from Senator Susan Collins, the centrist Republican from Maine.

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Speaker 1: She's gonna say how she's going to vote Senator Jeff Flake. Reportedly,

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Speaker 1: another key Republican, says that he's going to vote for

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Speaker 1: Judge Kavan also all eyes at three on the centrist

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Speaker 1: Republican from Maine. But this is our nasty and uh

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Speaker 1: Senate Majority Leader Mitch McConnell saying yesterday just how nasty

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Speaker 1: it's become and saying he could do nothing to satisfy

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Speaker 1: the Democrats. Take listen to what he said. There's no

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Speaker 1: way anything we did would satisfy the Democrats. They've always

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Speaker 1: got a reason why the goalposts need to be moved.

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Speaker 1: And joining us now on the line to talk about

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Speaker 1: precisely what's going to happen with Democrats. As professor at

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Speaker 1: Georgia State University Law School, Neil Kincop, Neil, thank you

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Speaker 1: so much for being here, my pleasure, and I want

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Speaker 1: to ask you because you are actually the former counselor

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Speaker 1: to then Senator Joe Biden for the impeachment trial of

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Speaker 1: President Clinton. I've got I was on in the Senate

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Speaker 1: earlier today, Neil, following all of the cloture vote, and

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Speaker 1: I was struck to see how Senator Joe Mansion, the

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Speaker 1: centrist Democrat from West Virginia actually voted with Republicans to

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Speaker 1: move for cloture. Now he could ultimately decide he's going

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Speaker 1: to vote against Judge kavan all tomorrow when this vote

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Speaker 1: is expected. But what do you think the calculus is,

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Speaker 1: Neil for someone like centrist Democrat Joe Mansion, Well, the

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Speaker 1: obvious calculus for him, first of all is he's got

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Speaker 1: to keep his seat right, and so he's got to

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Speaker 1: worry on the one hand, if he votes against Kavanaugh, right,

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Speaker 1: he's from a very red state, that could harm his

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Speaker 1: re election chances. On the other hand, I think even

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Speaker 1: in these very red states, Um, there's a real concern

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Speaker 1: about angering your own base and people not coming out

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Speaker 1: to vote for you. So you see, for example, in

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Speaker 1: red Indiana, Senator Donnelly decided to oppose Judge Kavanaugh. I

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Speaker 1: think it was a long and difficult consideration for him. Um,

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Speaker 1: it was for Senator hide Camp, who came out last

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Speaker 1: night saying she was going to oppose Kavanaugh. Um. It's

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Speaker 1: it's a really difficult calculation for anyone to make. Mansions

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Speaker 1: going absolutely down to the wire, um, And I think

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Speaker 1: maybe he's hoping Senator Collins will take him off the hook.

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Speaker 1: If if Susan Collins ends up being a yes, and

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Speaker 1: Manson's yes is not ultimately the deciding vote, it's sort

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Speaker 1: of he's going along with the pack. And I think

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Speaker 1: you can make an argument in the state where he's

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Speaker 1: running a forty two point Trump win there that supporting

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Speaker 1: Trump's pick for Supreme Court is is probably the way

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Speaker 1: he has to go. I'm sort of curious, Professor in

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Speaker 1: in your view as someone who sort of survived the

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Speaker 1: impeachment wars, you know, unprecedented, Uh is a word we

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Speaker 1: throw around a lot in Washington. Obviously, people who remember

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Speaker 1: the Clarence Thomas hearings, remember the partisan atmosphere there impeachment.

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Speaker 1: You know. Again, I have of of us who lived through that,

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Speaker 1: remember that, you know. Put this on the scale. It

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Speaker 1: feels like we have gone to kind of a new

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Speaker 1: place in Washington where you've had unbelievably partisan invective going

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Speaker 1: back and forth, uh, you know, and again in a

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Speaker 1: very personal way. Obviously, Professor Ford's allegations of a sexual assault,

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Speaker 1: Kavanaugh's very emotional denial kind of help help listeners understand

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Speaker 1: where this fits in on the scale. Have we gone

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Speaker 1: to sort of a new place in Washington? Of kind

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Speaker 1: of scorched earth emotional politics. We certainly have. We certainly have.

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Speaker 1: Sure there were echoes of the Thomas hearings in Judge

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Speaker 1: Kavanaugh's um screaming fit at his hearing last week. But

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Speaker 1: really we have gone to a new level. Like you said,

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Speaker 1: I lived through the impeachment of President Clinton, and that

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Speaker 1: seems like a bipartisan age by comparison to where we

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Speaker 1: are now. I can tell you going into that trial,

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Speaker 1: Democratic senators, including Senator Biden, who I was working for,

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Speaker 1: had an open mind about the possibility that they might

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Speaker 1: have to vote to convict right. They did not go

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Speaker 1: in sort of already decided that they were going to

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Speaker 1: support their president. They went in listened to the evidence

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Speaker 1: with an open mind in a much more kind of

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Speaker 1: bipartisan responsible way. And today it is just absolute tribal warfare.

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Speaker 1: If you're for it, I'm against it. If you're against it,

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Speaker 1: I'm for it. Um. And that that's that's a new thing.

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Speaker 1: And that was pretty interesting last week when we saw

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Speaker 1: the drama unfold inside of the Dirkson Senate Office Building

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Speaker 1: in the Senate Judiciary Committee room, when Senator Jeff Lake

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Speaker 1: meeting with centrist Democrat from Delaware Senator Chris Coons talking

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Speaker 1: about the one week extension to have this FBI investigation,

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Speaker 1: which then got again tied in the middle of all

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Speaker 1: of this, and Democrats saying they need more time, Republicans

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Speaker 1: trying to push it along, and and and all the

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Speaker 1: back and forth, and your all boss, now, former Vice

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Speaker 1: President Joe Biden, we should know in potential presidential candidates

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Speaker 1: saying just within the last twenty four hours that he

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Speaker 1: was invoking in the Anita Hill hearings and saying that

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Speaker 1: he wished that he had done a better job in

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Speaker 1: terms of uh controlling some of the questions that were

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Speaker 1: asked for Anita Hill. I would argue that this is

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Speaker 1: just as much a partisan issue as a generational one.

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Speaker 1: And I think here inside of the Beltway, it's been

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Speaker 1: fascinating to watch all of their critiques, particularly the Georgetown

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Speaker 1: prep angle. But talk to me in terms of what

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Speaker 1: this means for the mid term elections, particularly as you said,

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Speaker 1: Senator Joe Manchin's trying to protect his seat, Neil, But

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Speaker 1: what does this mean in terms of the broader enthusiasm

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Speaker 1: for Republicans and Democrats. So it'll be interesting to see

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Speaker 1: how it works. If Kavanaugh is confirmed, that certainly could

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Speaker 1: diminish the enthusiasm that Republicans have that the base has

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Speaker 1: to show up for the mid term. If Kavanaugh is defeated,

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Speaker 1: then I think you have a fully energized base, right.

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Speaker 1: And it is sort of harkens back to a different

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Speaker 1: confirmation hearing, the Bork confirmation hearings, But the rejection of

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Speaker 1: Robert Borke really energized the conservative base and committed them

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Speaker 1: to judicial politics in a way that continues to resonate today. Um.

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Speaker 1: So I think that that that if Kavanaugh is defeated,

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Speaker 1: that will certainly energize the Republicans. If Kavanaugh has confirmed,

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Speaker 1: the seat's not there, it's not at stake anymore. And

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Speaker 1: while I think Republicans are at the moment energized by this,

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Speaker 1: by the time the mid term rolls around, you know,

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Speaker 1: that's a whole month away, which in political terms, is

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Speaker 1: an eternity. Um that that kind of enthusiasm might not

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Speaker 1: be there. Um. I'd like to throw in a question

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Speaker 1: that we asked to our Supreme Court reporter earlier today

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Speaker 1: in terms of so let's fast forward. Let's say Kavanaugh

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Speaker 1: does make it onto the Supreme Court. What does that

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Speaker 1: look like is he always he and Claire Simons are

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Speaker 1: always gonna be at one end of voting on the

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Speaker 1: conservative side. Can he rise above this? How does the

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Speaker 1: Court embrace its newest member if it is Kavanaugh? Well,

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Speaker 1: I mean, I think it's going to make the court

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Speaker 1: look really bad, right, And you know, it was interesting

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Speaker 1: Lisa Murkowski and her comments today explaining why she's going

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Speaker 1: to vote against him, was it was precisely for that

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Speaker 1: that the Court needs to be above the kind of

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Speaker 1: partisanship that Judge the avan On displayed. And I don't

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Speaker 1: think there's any way for him on the Court to

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Speaker 1: be seen as anything other than that. And it really

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Speaker 1: does tarnish the credibility of that institution. Well, we want

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Speaker 1: to thank Neil Kincole, the professor at George Georgia State

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Speaker 1: University Law School, for coming on. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg m