Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. The Senate is
Speaker 1: set for a final vote on the nomination of our
Speaker 1: Kavanaugh to the Supreme Court, as Democrats continue to complain
Speaker 1: about the scope of the FBI investigation into sexual assault
Speaker 1: charges against Kavanaugh. Speaking with reporters yesterday, Senate Judiciary Committee
Speaker 1: Chairman Chuck Grassley remained confident in Kavanaugh's confirmation. I feel
Speaker 1: very good about where this nomination is right now. Now.
Speaker 1: I don't say that from the standpoint of counting votes.
Speaker 1: I say that from the standpoint of the qualifications of
Speaker 1: this candidate. With us here now in the Bloomberg nine
Speaker 1: studio is Greg Store, Bloomberg News is Crack Supreme Court reporter,
Speaker 1: and we're going to talk about what just happened a
Speaker 1: moment ago on the Senate floor. Maybe you can explain
Speaker 1: to our listeners, you know it was. It's called the
Speaker 1: procedural vote, a key vote, a test vote, a culture vote.
Speaker 1: But what really just happened there, Well, technically, what that
Speaker 1: does is it means that they can go ahead with
Speaker 1: the final vote. Uh. The senators cast votes that may
Speaker 1: or may not give indications of what they're gonna do
Speaker 1: on the final vote. It means that we will know,
Speaker 1: uh tomorrow whether Brett Kavanaugh is a Supreme Court justice,
Speaker 1: but we don't know for sure how that vote is
Speaker 1: going to come out. And I was struck to see
Speaker 1: just how some of these key centrist Republicans did. Senator
Speaker 1: Jeff Flake, the retiring senator from Arizona, was a yes
Speaker 1: on cloture. Senator Susan Collins, another key centrist Republican from Maine,
Speaker 1: also a yes, Lisa Murkowski of Alaska voting no. And then,
Speaker 1: of course the big shocker. There were literally gasps on
Speaker 1: the floor reportedly of the Senate when Senator Joe mentioned
Speaker 1: a centrist Democrat from West Virginia, in a state greg
Speaker 1: that candidate Donald Trump carried by forty two percentage points,
Speaker 1: voted yes. He voted with Republicans to advance this, but
Speaker 1: as you mentioned, he very well could vote yes on
Speaker 1: culture and no for final passage. Right, That's exactly right,
Speaker 1: and One possibility is that Senator Mansion could wait to
Speaker 1: see which way the wind is blowing and in particular,
Speaker 1: which way Susan Collins votes. So Lisa Murkowski, I should say,
Speaker 1: just told reporters, big scrum of them, just said quote.
Speaker 1: In my view, he's not the best man for the
Speaker 1: court at this time. So she has indicated she is
Speaker 1: going to vote no on final confirmation. What that means
Speaker 1: is it's down to three senators we don't know about
Speaker 1: for sure, Flake, Collins, Uh and Mansion. If Flake votes yes,
Speaker 1: then it's up to Susan Collins and Joe Mansion may
Speaker 1: may follow her one way or the other. NBC News
Speaker 1: is reporting the Flake is telling them that he plans
Speaker 1: to vote yes on final confirmation. So if that story
Speaker 1: holds up, we will will really just be down to
Speaker 1: Collins and Mansion. I think this is one of the
Speaker 1: more bizarre rituals of Washington, where you have a a
Speaker 1: what seems like a vote of the United States Senate
Speaker 1: that Wine and Brett Havana's favor, and yet still we
Speaker 1: don't actually know the final outcome. So explain why people
Speaker 1: vote yes on cloture and can still vote no on
Speaker 1: the final Well, there there is a notion that some
Speaker 1: Senators still carry that a nominee deserves a vote. So
Speaker 1: one could imagine Susan Collins, for example, taking the position
Speaker 1: that I believe he deserves a vote, and I'm going
Speaker 1: to vote no. We don't know that's how how she's
Speaker 1: going to come out, but that's at least um a
Speaker 1: possibility for how it will happen. And of course this
Speaker 1: all happens against the backdrop of up until the nomination
Speaker 1: of Neil gorcich Uh, there was the ability to filibuster
Speaker 1: a Supreme Court nominee, meaning you had to have sixty
Speaker 1: votes to get to the next stage. You know what
Speaker 1: I find fascinating is just really how much of a
Speaker 1: local issue this has become for each of these senators.
Speaker 1: Senator Susan Collins is not up for reelection until twenty
Speaker 1: but she faces potentially a challenger from the right. Up there,
Speaker 1: Governor Lapage, who's a staunch ally of the presidents and
Speaker 1: has been for quite some time. The President's son Don Junior,
Speaker 1: campaigning at a main Republican fundraiser over the weekend with
Speaker 1: Governor Lapage. Then you look at someone like Senator Mansion,
Speaker 1: where those polls have tightened increasingly, and he of course,
Speaker 1: being a centrist Democrat, this is fascinating. More nationally speaking,
Speaker 1: in particular, the NPRPBS News Hour poll that came out
Speaker 1: earlier this week found the enthusiasm gap evaporate in terms
Speaker 1: of Democrats and Republicans. Talk to me, Greg about just
Speaker 1: how much how unique this vote has become for this
Speaker 1: cultural moment in the US that we're just you know,
Speaker 1: over a day away from finding out what will happen. Yeah, Kevin,
Speaker 1: as you said, Uh, this is a highly unusual, if
Speaker 1: not really the first time in history that we've had
Speaker 1: a vote so big on a Supreme Court nominee right
Speaker 1: before an election. So uh, those uh, those those views
Speaker 1: that you just talked about are going to matter when
Speaker 1: people go out to vote for for against Joe Mansion. Uh,
Speaker 1: in just a few weeks. With Susan Collins, it's a
Speaker 1: little bit of a different calculation. Uh, you know, two
Speaker 1: years is a long time. Uh, this issue will fade
Speaker 1: from the headlines. People may have moved on to other things.
Speaker 1: But she has to weigh the risk that people are
Speaker 1: going to remember how she voted here and it could
Speaker 1: come back to bite her. So Greg we have one
Speaker 1: of the we have one of the best Supreme Court
Speaker 1: reporters in Washington, d C. I'll brag about you for you.
Speaker 1: And to be a crime to only talk about politics.
Speaker 1: Let's talk about the court itself. Um, people talk about
Speaker 1: Brett Kavanaugh cementing a conservative majority on this court for
Speaker 1: a generation. He's he's only in his fifties. He could
Speaker 1: serve on their twenty thirty years easily taught. Let's put
Speaker 1: let's put ourselves on a time machine and pretend that
Speaker 1: he has just been confirmed to the United States Supreme Court.
Speaker 1: What is your story about that? Say? What does this
Speaker 1: historical moment for the court mean going forward? Well? Uh,
Speaker 1: as he said, this is a turning point for the court.
Speaker 1: We're gonna end up with most likely the most conservative
Speaker 1: court we've had in eighty years since since the New Deal,
Speaker 1: the Court is unquestionably going to move to the right
Speaker 1: on big issues like abortion, affirmative action, federal regulation, the
Speaker 1: power of the president, and really the key factor is
Speaker 1: going to be how quickly Chief Justice John Roberts is
Speaker 1: gonna want to go. He's a very conservative guy, conservative
Speaker 1: justice who has consistently voted conservative, with one big exception
Speaker 1: that being, uh, the Obamacare fight. But he's also somebody
Speaker 1: who cares a lot about the Court's institutional standing. He
Speaker 1: doesn't want the Court perceived as as a political entity. Uh.
Speaker 1: That that is going to shift with the political winds
Speaker 1: and shift based on the membership of the Court, which
Speaker 1: might mean that uh he puts off the day where
Speaker 1: the Court reconsiders Roe v. Wade, for example, and overturns
Speaker 1: some other key precedents. But the Court is certainly going
Speaker 1: to move to the right the I mean, I think
Speaker 1: the other question a lot of people have is about
Speaker 1: tempera minutes a word you're hearing a lot these days.
Speaker 1: We all saw Bret Cavanaugh's testimony um last week emotional,
Speaker 1: and I think would be a fair word to describe
Speaker 1: it with just a few seconds that we have left
Speaker 1: here talk about how the how he might fit in
Speaker 1: to the current Supreme Court in that way, it will
Speaker 1: be a challenge for both him and the other justices. Uh.
Speaker 1: They know they have to work with each other. They
Speaker 1: probably all have very strong feelings, but they're gonna be
Speaker 1: there together for a long time. Thank you very much, Greg,
Speaker 1: We really appreciate your your views on such a busy day.
Speaker 1: We'rely from the Blueberg Interactive Broker studio, and last night,
Speaker 1: President Trump addressed a crowd of supporters in Rochester, Minnesota,
Speaker 1: hitting aggressively the campaign trail ahead of the midterm elections,
Speaker 1: and he discussed the upcoming confirmation vote for Supreme Court
Speaker 1: nominee Brett Cavanaugh, who just advanced out of culture. That
Speaker 1: vote anticipated tomorrow, and in his comments, President Trump continued
Speaker 1: to target Democrats. Take listen, they want to obstruct, they
Speaker 1: want to delay, demoral, they want to destroy. That's what happens.
Speaker 1: That's what happened. And just take a look at what's
Speaker 1: going on. Democrats have been trying to destroy Judge Brett cabinet.
Speaker 1: So there you have the President Trump taking this issue
Speaker 1: to the campaign trail. Mike Dorning, Bloomberg News White House
Speaker 1: Deputy team Leader joins us now and Mike, when you
Speaker 1: look at the comments coming from President Trump about this
Speaker 1: particular issue, he's really trying to rally the base around this. Now, yeah, absolutely,
Speaker 1: And that's always a problem for the president's party going
Speaker 1: into mid term elections, is how motivated is the base
Speaker 1: once the president's in the White House. And here you
Speaker 1: have a controversy that hits at a key issue for
Speaker 1: conservative social Republicans who are the sort of the most
Speaker 1: enthusiastic parts of the base, the Supreme Court nomination. And
Speaker 1: he's using this and the polarization around this fight to
Speaker 1: try to rev up his base to get it closer
Speaker 1: to where the Democrats are. But I thought that, right,
Speaker 1: the conventional wisdom was that a lot of women voters
Speaker 1: in particular, would be very upset about the way of
Speaker 1: our Kavanaugh. You know the testimony from the Professor Ford,
Speaker 1: the Kavanaugh's rebuttal, you seem to be saying that Republicans
Speaker 1: are starting to get a little bit of a bump
Speaker 1: in their base. Explain that now there there's some signs
Speaker 1: that they are getting a bump. The way the White
Speaker 1: House views it is the Democratic base was already really
Speaker 1: rebbed up, and women were already really revved up about
Speaker 1: Trump to go out and vote against him. Now what
Speaker 1: they're hoping to do is to bring up the enthusiasm
Speaker 1: of their base so it's closer to where the Democratic
Speaker 1: base is, and that, in theory, should even things out.
Speaker 1: The downside risk is that this will the downside risk
Speaker 1: for the Republican point of view is that this will
Speaker 1: also rev up women. But their bet is that women
Speaker 1: and Democrats are already so repped up that you're not
Speaker 1: and to rev them up that much more. And should
Speaker 1: Judge Kavanall ultimately get confirmed, and now we're playing the
Speaker 1: should have his game, But should he get confirmed, would
Speaker 1: that enthusiasm bump that we've seen from Republicans last because
Speaker 1: thirty days in two thousand and eighteen, and President Trump's
Speaker 1: political arena is an eternity. Right, My bed is it
Speaker 1: would ebb some personally. But you do have some things
Speaker 1: that would help that, which is, you're delivering two tangible
Speaker 1: things close to the election. On the one hand, you
Speaker 1: are delivering a fifth conservative Supreme Court vote, which shows
Speaker 1: tangible results for social conservatives. And the other thing is
Speaker 1: then NAFTA two point oh. Even though a lot of
Speaker 1: people who look at this closely may sort of scoff
Speaker 1: and say it's not that big a change from NAFTA,
Speaker 1: it is nonetheless a trade deal that does change things,
Speaker 1: that does renegotiate NAFTA, and it's done and it's delivered,
Speaker 1: and that is something that is of importance to rust
Speaker 1: belt voters and particularly some of the dairy voters in Minnesota.
Speaker 1: So one of the oldest cliches in politics is turnout
Speaker 1: is you know, really what matters? That really is doubly
Speaker 1: true in a mid term election, and that's why we're
Speaker 1: spending so much time talking about it right now, and
Speaker 1: in the larger political conversation explained again why why has
Speaker 1: turned out so important at this juncture? Well, the most
Speaker 1: at its simplest is a vote doesn't count if you
Speaker 1: don't cast it. But for mid terms, why that matters
Speaker 1: so much is that the turnout is relatively low, especially
Speaker 1: compared to a presidential election year, so you have a
Speaker 1: lot more to gain by revving up turnout. And that's
Speaker 1: something that you've seen basically every UM, every president since
Speaker 1: two thousand in their mid term elections, they and the
Speaker 1: opposition party. It's really been turning out the base that
Speaker 1: matters in the mid terms UM this whole century UM,
Speaker 1: rather than going after independent, suaitable voters. And I think
Speaker 1: Craig makes a great point, especially when we talk about
Speaker 1: turnout and just how much is writing on this Supreme
Speaker 1: Court pick. And just under three hours, Senator Susan Collins,
Speaker 1: the centrist Republican remain is set to deliver a speech
Speaker 1: where she's going to make known Mike what her position is,
Speaker 1: how she's going to vote on Judge Kavanaugh. Senator Jeff Blake,
Speaker 1: according to NBC, is reportedly going to be a guest.
Speaker 1: This all comes down to Senator Susan Collins, and we're
Speaker 1: going to find that out at three o'clock. What's going
Speaker 1: through her mind right now, what political calculations is she making,
Speaker 1: and what pressure is she facing from the White House. Well,
Speaker 1: I won't um, I won't pretend to know whether she's
Speaker 1: debating this from a holy um disinterested view or political view.
Speaker 1: But her political pressures are that she has to win
Speaker 1: re election in a primary in Maine eventually, and this
Speaker 1: is something that if she goes against the Conservatives on this,
Speaker 1: it will really tick off potential primary voters. Now, on
Speaker 1: the other hand, she has made a very big thing
Speaker 1: of being having an independent streak, of being sensitive to
Speaker 1: women's issues, of being sensitive particularly on row versus weight,
Speaker 1: and this is an issue that both deals with abortion
Speaker 1: rights and women's place in the world. Now, on top
Speaker 1: of that, the general buzz is that the Bush family
Speaker 1: has been lobbying her very heavily on behalf of Kavanaugh,
Speaker 1: and she is not particularly close to President Trump, but
Speaker 1: she does have a good relationship with the Bush family.
Speaker 1: In fact, their summer homes in Maine, and so she's
Speaker 1: getting a lot of personal lobbying from that front as well.
Speaker 1: So we know that the President is about to hit
Speaker 1: the road again, it feels a little bit like he
Speaker 1: himself is on the ballot. Uh, tell us about you
Speaker 1: know what, what is the White House thinking on sending
Speaker 1: Trump himself out there? We've got about thirty seconds there.
Speaker 1: Thinking is again, the Democrats are as rebbed as they get. Um,
Speaker 1: he's got to rip up his people. There's nothing to
Speaker 1: lose by sending him out there and revving him up.
Speaker 1: That's not necessarily what everyday Republicans do. We're li from
Speaker 1: the Bloomberg Interactive Broker Studio and we're carefully monitoring what's
Speaker 1: going on on Capitol Hill. It's all about Judge Brett
Speaker 1: Kavanall Georgetown prep Alum, those allegations of sexual misconduct. He
Speaker 1: cleared the cloture vote, and at three pm today we're
Speaker 1: anticipating remarks from Senator Susan Collins, the centrist Republican from Maine.
Speaker 1: She's gonna say how she's going to vote Senator Jeff Flake. Reportedly,
Speaker 1: another key Republican, says that he's going to vote for
Speaker 1: Judge Kavan also all eyes at three on the centrist
Speaker 1: Republican from Maine. But this is our nasty and uh
Speaker 1: Senate Majority Leader Mitch McConnell saying yesterday just how nasty
Speaker 1: it's become and saying he could do nothing to satisfy
Speaker 1: the Democrats. Take listen to what he said. There's no
Speaker 1: way anything we did would satisfy the Democrats. They've always
Speaker 1: got a reason why the goalposts need to be moved.
Speaker 1: And joining us now on the line to talk about
Speaker 1: precisely what's going to happen with Democrats. As professor at
Speaker 1: Georgia State University Law School, Neil Kincop, Neil, thank you
Speaker 1: so much for being here, my pleasure, and I want
Speaker 1: to ask you because you are actually the former counselor
Speaker 1: to then Senator Joe Biden for the impeachment trial of
Speaker 1: President Clinton. I've got I was on in the Senate
Speaker 1: earlier today, Neil, following all of the cloture vote, and
Speaker 1: I was struck to see how Senator Joe Mansion, the
Speaker 1: centrist Democrat from West Virginia actually voted with Republicans to
Speaker 1: move for cloture. Now he could ultimately decide he's going
Speaker 1: to vote against Judge kavan all tomorrow when this vote
Speaker 1: is expected. But what do you think the calculus is,
Speaker 1: Neil for someone like centrist Democrat Joe Mansion, Well, the
Speaker 1: obvious calculus for him, first of all is he's got
Speaker 1: to keep his seat right, and so he's got to
Speaker 1: worry on the one hand, if he votes against Kavanaugh, right,
Speaker 1: he's from a very red state, that could harm his
Speaker 1: re election chances. On the other hand, I think even
Speaker 1: in these very red states, Um, there's a real concern
Speaker 1: about angering your own base and people not coming out
Speaker 1: to vote for you. So you see, for example, in
Speaker 1: red Indiana, Senator Donnelly decided to oppose Judge Kavanaugh. I
Speaker 1: think it was a long and difficult consideration for him. Um,
Speaker 1: it was for Senator hide Camp, who came out last
Speaker 1: night saying she was going to oppose Kavanaugh. Um. It's
Speaker 1: it's a really difficult calculation for anyone to make. Mansions
Speaker 1: going absolutely down to the wire, um, And I think
Speaker 1: maybe he's hoping Senator Collins will take him off the hook.
Speaker 1: If if Susan Collins ends up being a yes, and
Speaker 1: Manson's yes is not ultimately the deciding vote, it's sort
Speaker 1: of he's going along with the pack. And I think
Speaker 1: you can make an argument in the state where he's
Speaker 1: running a forty two point Trump win there that supporting
Speaker 1: Trump's pick for Supreme Court is is probably the way
Speaker 1: he has to go. I'm sort of curious, Professor in
Speaker 1: in your view as someone who sort of survived the
Speaker 1: impeachment wars, you know, unprecedented, Uh is a word we
Speaker 1: throw around a lot in Washington. Obviously, people who remember
Speaker 1: the Clarence Thomas hearings, remember the partisan atmosphere there impeachment.
Speaker 1: You know. Again, I have of of us who lived through that,
Speaker 1: remember that, you know. Put this on the scale. It
Speaker 1: feels like we have gone to kind of a new
Speaker 1: place in Washington where you've had unbelievably partisan invective going
Speaker 1: back and forth, uh, you know, and again in a
Speaker 1: very personal way. Obviously, Professor Ford's allegations of a sexual assault,
Speaker 1: Kavanaugh's very emotional denial kind of help help listeners understand
Speaker 1: where this fits in on the scale. Have we gone
Speaker 1: to sort of a new place in Washington? Of kind
Speaker 1: of scorched earth emotional politics. We certainly have. We certainly have.
Speaker 1: Sure there were echoes of the Thomas hearings in Judge
Speaker 1: Kavanaugh's um screaming fit at his hearing last week. But
Speaker 1: really we have gone to a new level. Like you said,
Speaker 1: I lived through the impeachment of President Clinton, and that
Speaker 1: seems like a bipartisan age by comparison to where we
Speaker 1: are now. I can tell you going into that trial,
Speaker 1: Democratic senators, including Senator Biden, who I was working for,
Speaker 1: had an open mind about the possibility that they might
Speaker 1: have to vote to convict right. They did not go
Speaker 1: in sort of already decided that they were going to
Speaker 1: support their president. They went in listened to the evidence
Speaker 1: with an open mind in a much more kind of
Speaker 1: bipartisan responsible way. And today it is just absolute tribal warfare.
Speaker 1: If you're for it, I'm against it. If you're against it,
Speaker 1: I'm for it. Um. And that that's that's a new thing.
Speaker 1: And that was pretty interesting last week when we saw
Speaker 1: the drama unfold inside of the Dirkson Senate Office Building
Speaker 1: in the Senate Judiciary Committee room, when Senator Jeff Lake
Speaker 1: meeting with centrist Democrat from Delaware Senator Chris Coons talking
Speaker 1: about the one week extension to have this FBI investigation,
Speaker 1: which then got again tied in the middle of all
Speaker 1: of this, and Democrats saying they need more time, Republicans
Speaker 1: trying to push it along, and and and all the
Speaker 1: back and forth, and your all boss, now, former Vice
Speaker 1: President Joe Biden, we should know in potential presidential candidates
Speaker 1: saying just within the last twenty four hours that he
Speaker 1: was invoking in the Anita Hill hearings and saying that
Speaker 1: he wished that he had done a better job in
Speaker 1: terms of uh controlling some of the questions that were
Speaker 1: asked for Anita Hill. I would argue that this is
Speaker 1: just as much a partisan issue as a generational one.
Speaker 1: And I think here inside of the Beltway, it's been
Speaker 1: fascinating to watch all of their critiques, particularly the Georgetown
Speaker 1: prep angle. But talk to me in terms of what
Speaker 1: this means for the mid term elections, particularly as you said,
Speaker 1: Senator Joe Manchin's trying to protect his seat, Neil, But
Speaker 1: what does this mean in terms of the broader enthusiasm
Speaker 1: for Republicans and Democrats. So it'll be interesting to see
Speaker 1: how it works. If Kavanaugh is confirmed, that certainly could
Speaker 1: diminish the enthusiasm that Republicans have that the base has
Speaker 1: to show up for the mid term. If Kavanaugh is defeated,
Speaker 1: then I think you have a fully energized base, right.
Speaker 1: And it is sort of harkens back to a different
Speaker 1: confirmation hearing, the Bork confirmation hearings, But the rejection of
Speaker 1: Robert Borke really energized the conservative base and committed them
Speaker 1: to judicial politics in a way that continues to resonate today. Um.
Speaker 1: So I think that that that if Kavanaugh is defeated,
Speaker 1: that will certainly energize the Republicans. If Kavanaugh has confirmed,
Speaker 1: the seat's not there, it's not at stake anymore. And
Speaker 1: while I think Republicans are at the moment energized by this,
Speaker 1: by the time the mid term rolls around, you know,
Speaker 1: that's a whole month away, which in political terms, is
Speaker 1: an eternity. Um that that kind of enthusiasm might not
Speaker 1: be there. Um. I'd like to throw in a question
Speaker 1: that we asked to our Supreme Court reporter earlier today
Speaker 1: in terms of so let's fast forward. Let's say Kavanaugh
Speaker 1: does make it onto the Supreme Court. What does that
Speaker 1: look like is he always he and Claire Simons are
Speaker 1: always gonna be at one end of voting on the
Speaker 1: conservative side. Can he rise above this? How does the
Speaker 1: Court embrace its newest member if it is Kavanaugh? Well,
Speaker 1: I mean, I think it's going to make the court
Speaker 1: look really bad, right, And you know, it was interesting
Speaker 1: Lisa Murkowski and her comments today explaining why she's going
Speaker 1: to vote against him, was it was precisely for that
Speaker 1: that the Court needs to be above the kind of
Speaker 1: partisanship that Judge the avan On displayed. And I don't
Speaker 1: think there's any way for him on the Court to
Speaker 1: be seen as anything other than that. And it really
Speaker 1: does tarnish the credibility of that institution. Well, we want
Speaker 1: to thank Neil Kincole, the professor at George Georgia State
Speaker 1: University Law School, for coming on. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg m