WEBVTT - Third Kavanaugh Accuser Comes Forward Before Hearing

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. We've got some

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<v Speaker 1>breaking news coming over the Bloomberg terminal when it comes

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<v Speaker 1>to Supreme Court nominee Brett Kavanas and a Judiciary Committee

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<v Speaker 1>Chairman Grassley now saying that Kavanaughs hearing is going to

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<v Speaker 1>go forward as planned tomorrow. This after Schumer has been

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<v Speaker 1>calling for the hearing to actually be suspended or postponed,

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<v Speaker 1>saying Republicans need to immediately suspend the proceedings related to

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<v Speaker 1>Kavanaugh's nomination. That coming from Senate Democratic Leader Chuck Schumer.

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<v Speaker 1>So joining us now to bring it all together, as

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<v Speaker 1>Bloomberg Supreme Court reporter Greg Store to sort of help

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<v Speaker 1>us sort through all of the fast movie. What does

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<v Speaker 1>this call it? A fire hose of news and information? Yeah,

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<v Speaker 1>no kidding, so uh Amy. The latest this morning is

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<v Speaker 1>that there is a new accuser, represented by lawyer Michael Avanati,

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<v Speaker 1>has submitted a sworn statement to the committee saying that

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<v Speaker 1>Brett Kavanaugh in high school took part in efforts to

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<v Speaker 1>get girls intoxicated so that a number of boys could

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<v Speaker 1>have sex with them. Uh. These allegations are perhaps the

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<v Speaker 1>the the worst of any that Brett Kavanaugh has faced. Um.

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<v Speaker 1>They are certainly coming in at the last minute. Uh.

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<v Speaker 1>There were some questions about whether the hearing would go forward,

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<v Speaker 1>but as you said, Chuck Grassley has said, now it

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<v Speaker 1>will go forward. Tomorrow has planned and we have the

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<v Speaker 1>statement that Kavanaugh will give to the Judiciary Committee tomorrow. Um.

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<v Speaker 1>It has been released. Uh, and in it, Kavanaugh acknowledges

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<v Speaker 1>some behavior in his teenage years, including uh, drinking to excess,

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<v Speaker 1>but he denies the allegations uh sexualsconduct. Yeah. This statement

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<v Speaker 1>tracks very closely with what he said on Fox News

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<v Speaker 1>the other night in the interview. Uh. It is mostly

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<v Speaker 1>focused on the what's supposed to be the subject of

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<v Speaker 1>the hearing tomorrow. The first set of allegations by professor

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<v Speaker 1>Christine Blossie Ford about who accuses him and a friend

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<v Speaker 1>of taking her into her room, and she says that

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<v Speaker 1>Kavanaugh tried to force himself on her uh and take

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<v Speaker 1>off her clothes before she got away. The statement, does though, um,

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<v Speaker 1>you know, talk about uh, you know, other last minute smears,

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<v Speaker 1>as Kavanaugh puts it, and says that what's going on

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<v Speaker 1>is quote grotesque and obvious character assassination. What are you

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<v Speaker 1>expecting to hear tomorrow when they tested? I mean, I know,

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<v Speaker 1>just throw a dart, I guess. But what are you

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<v Speaker 1>what are you looking for? Well, one of the things

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<v Speaker 1>that certainly gonna look for, so so Senate Republicans have

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<v Speaker 1>hired a a sex crimes prosecutor UM, a woman named

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<v Speaker 1>Rachel Mitchell out of Merricopa County in Arizona. H Uh.

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<v Speaker 1>She will be asking at least some of the questions

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<v Speaker 1>that republic during the Republican time. It will be interesting

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<v Speaker 1>to see whether the Republican all of whom are men,

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<v Speaker 1>or whether the Republicans are also asking questions of of

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<v Speaker 1>Christine Ford and Brett Kavanaugh. Um. And certainly all eyes

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<v Speaker 1>are gonna be on Christine Ford because we have not

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<v Speaker 1>heard from her out loud yet, we don't know we

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<v Speaker 1>had nobody has had a chance to uh, you know,

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<v Speaker 1>see what she sounds like and judge her credibility, and

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<v Speaker 1>that uh pretty clearly is going to be very important,

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<v Speaker 1>important both for public opinion, and those senators who say

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<v Speaker 1>they're still unsure how they're going to vote. And we

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<v Speaker 1>do now have word from a White House a spokesman,

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<v Speaker 1>a new a new statement from Brett Kavanaugh on this

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<v Speaker 1>latest accusation, this third one with this sworn statement quote.

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<v Speaker 1>This is ridiculous and from the twilight zone. I don't

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<v Speaker 1>know who this is and this never happened. So, Um, Gregg,

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<v Speaker 1>does Kavanaugh make it through or not? Boy, Peter, I've

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<v Speaker 1>given up predicting a long time ago. Um. The senators

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<v Speaker 1>to to watch are are the ones that we've always

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<v Speaker 1>been watching. Susan Collins, Lisa Murkowski, Uh, two women who

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<v Speaker 1>who support abortion rights and and have suggested they are

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<v Speaker 1>concerned about these allegations. And then Senator Jeff Flake, who

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<v Speaker 1>is on the committee. Uh no, big friend of of

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<v Speaker 1>President Donald Trump. Uh. You know, they have all sort

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<v Speaker 1>of collectively said we want to hear from these women.

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<v Speaker 1>They're only gonna hear from one tomorrow, Christine Ford. It

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<v Speaker 1>will be interesting to to see whether these new allegations

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<v Speaker 1>and somebody else who is not going to be heard tomorrow,

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<v Speaker 1>whether that makes any difference in how those senators think

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<v Speaker 1>about this. Talking about the Alpha davits, they're talking about

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<v Speaker 1>other people who can actually speak. We're not going to

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<v Speaker 1>hear from anybody that right, Kavanaugh and Ford, and that's

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<v Speaker 1>it correct. At the hearing tomorrow, we will hear from

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<v Speaker 1>Kavanaugh and Ford. It's, of course certainly possible that uh,

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<v Speaker 1>one or more of these women will choose to speak

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<v Speaker 1>in some other forum. But but in terms of the

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<v Speaker 1>hearing tomorrow, it's just those two witnesses. Is there an

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<v Speaker 1>a chance that Republicans could acquiesce and allow the FBI

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<v Speaker 1>to investigate all of this, Well, you know the Democrats request,

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<v Speaker 1>I'd hate to say there's no chance. They've been pretty

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<v Speaker 1>firm on that, um and and they tried it out.

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<v Speaker 1>Some video of Joe Biden back during the Clarence Thomas

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<v Speaker 1>hearing saying that, you know, an FBI investigation is not

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<v Speaker 1>going to be conclusive in that case, um and Republicans

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<v Speaker 1>are saying, look, um, you know, FBI investigation is only

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<v Speaker 1>going to delay this. It's not going to give give

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<v Speaker 1>us a clear answer to this obviously. Uh. You know,

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<v Speaker 1>things are changing quickly, but for the time being, it

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<v Speaker 1>doesn't seem like Republicans are going that direction. All right, Greg,

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<v Speaker 1>we got about a half a minute ago. I'm wondering

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<v Speaker 1>he gets let's say he gets confirmed, he seated on

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<v Speaker 1>the Supreme Court. Is this a cloud that's gonna hover

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<v Speaker 1>over the Supreme Court? I mean, what does this do

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<v Speaker 1>to people's opinion of the court one way or the other? Well,

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<v Speaker 1>I mean, because it's part Yeah, it's so partisans getting

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<v Speaker 1>even more partisan. And if he gets confirmed, you're gonna

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<v Speaker 1>have somebody who, at a minimum a lot of people

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<v Speaker 1>in the country are gonna alide his way onto the

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<v Speaker 1>Supreme Court. Uh. And certainly that will take a while

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<v Speaker 1>to to dissipate, and that could hurt the credibility of

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<v Speaker 1>the court. It certainly could. And uh, I'm sure Chief

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<v Speaker 1>Justice John Robertson in particular is going to be very

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<v Speaker 1>mindful of that as we get this new conservative majority

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<v Speaker 1>on the Court. If that's how it turns out, all right,

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<v Speaker 1>we're gonna keep watching it with you. Bloomberg Supreme Court

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<v Speaker 1>reporter Greg Store joining us now in our Bloomberg Downing

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<v Speaker 1>nine one studios here in Washington, taking three insight appreciate

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<v Speaker 1>it as JUDG. Brett Kavanaugh and Dr Christine blaisie Ford

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<v Speaker 1>prepare for a Senate hearing tomorrow. President Trump is lashing

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<v Speaker 1>out again, saying that the Democrats are playing a dangerous

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<v Speaker 1>game during a u N meeting yesterday. It would be

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<v Speaker 1>a horrible insult to our country if this doesn't happen,

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<v Speaker 1>and it will be a horrible, horrible thing for future

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<v Speaker 1>political people. Judges. Anything you want to be a horrible thing,

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<v Speaker 1>it can not. It cannot be allowed to have. Joining

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<v Speaker 1>me is Arthur Hellman, a professor at the University of

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<v Speaker 1>Pittsburgh Law School. Arthur, would it be such a horrible

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<v Speaker 1>thing as Trump claims? Isn't the confirmation process supposed to

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<v Speaker 1>be about making a decision about whether a candidate is

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<v Speaker 1>qualified to have lifetime tenure on the courts, on the

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<v Speaker 1>country's highest court. Sure, it's about that, And the question

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<v Speaker 1>is what sort of processes and what kind of accusations

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<v Speaker 1>are going to be taken seriously and in what way?

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<v Speaker 1>I think the concern that some people have is the timing,

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<v Speaker 1>the lack of corroboration, and the fact that the regular

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<v Speaker 1>channels were not pursued by people who had the information

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<v Speaker 1>process is what's particularly important here. So, but what happens now,

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<v Speaker 1>what what should be done? Now that the process hasn't

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<v Speaker 1>been followed, as you say, but now these allegations, including

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<v Speaker 1>there is a third accuser who's come forward, So what

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<v Speaker 1>should the Senate Judiciary Committee do now? I think what

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<v Speaker 1>the Senate Judiciary Committee has to do is to do

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<v Speaker 1>preliminary private investigation of accusations and then determine whether those

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<v Speaker 1>require a further examination, either in public or through additional

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<v Speaker 1>private investigation. It's very hard to investigate what happened five

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<v Speaker 1>years ago, but something, something has to be done so

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<v Speaker 1>that people have confidence, or as much confidence as people

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<v Speaker 1>can have these days, that the accusations have been adequately investigated.

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<v Speaker 1>So so then, from what you're saying, the committee hearing,

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<v Speaker 1>where it's just going to be Judge Kavanaugh and Dr

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<v Speaker 1>Ford will not be able to accomplish that. I don't

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<v Speaker 1>think so at this point. I think yesterday it appeared

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<v Speaker 1>that it would, but this may be the first of

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<v Speaker 1>several such hearings, although as I say, that would depend

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<v Speaker 1>on what the private investigations by private, I mean not

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<v Speaker 1>part of the public hearing um would would reveal. I

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<v Speaker 1>just want to tell you about some breaking news. President

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<v Speaker 1>Trump has tweeted about Michael Abanati and his clients saying that, um,

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<v Speaker 1>he's looking for attention and doesn't want people to look

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<v Speaker 1>at his past record and relationships, and he's a third

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<v Speaker 1>rate lawyer. That's about the latest accusations from Avanati from

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<v Speaker 1>his client on Brett Kavanaugh. Arthur, you teach judicial ethics.

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<v Speaker 1>What's your take on Kavanaugh's unprecedented TV interview? Is that

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<v Speaker 1>in keeping with the image of the justices? Well, it's

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<v Speaker 1>certainly not the first TV interview that UM A well,

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<v Speaker 1>UH sitting justices have done TV interviews. UM. Justice Ginsburg

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<v Speaker 1>recently has done several. There was actually one many many

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<v Speaker 1>years ago now with Justice Black talking about his judicial philosophy.

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<v Speaker 1>For the fact of a TV interview by a judge

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<v Speaker 1>is not unique. It's unusual, certainly for a judge who

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<v Speaker 1>was a nominee to the Supreme Court to do that.

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<v Speaker 1>And I don't recall any off hand by nominees. But

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<v Speaker 1>there have not been this kind of last minute accusation.

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<v Speaker 1>So we're entirely in uncharted waters here. I want to

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<v Speaker 1>go beyond the hearings for a moment. If Kavanaugh is

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<v Speaker 1>confirmed and Democrats retake the House, some Democrats have said

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<v Speaker 1>they will start impeachment proceedings against him based on some

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<v Speaker 1>of his sworn testimony to the committee. It has been

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<v Speaker 1>done before, and the political climate with a conservative majority

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<v Speaker 1>on the court would be heated. What would be the

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<v Speaker 1>result of those well, the first attempts to impeach a

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<v Speaker 1>sitting Supreme Court justice was in the very early days

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<v Speaker 1>of the Republic. It was just a Samuel Chase, and then,

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<v Speaker 1>as now, there was a bitter partisan divide that Chase

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<v Speaker 1>was a Federalist and the UM Congress had been taken

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<v Speaker 1>over by the UM that Democratic party of that year

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<v Speaker 1>at Jefferson's party. So in some respect it was a

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<v Speaker 1>very parallel kind of situation, a change in who controlled

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<v Speaker 1>Congress and the presidency and an impeachment effort directed at

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<v Speaker 1>a sitting justice appointed by the prior president. But it

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<v Speaker 1>was so clear that they were trying to impeach him

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<v Speaker 1>and remove him from office that that effort failed, and

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<v Speaker 1>that has been taken ever since as a signal that UM,

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<v Speaker 1>no matter what the circumstances are, you don't try to

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<v Speaker 1>impeach a justice because of his views on legal issues. Now,

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<v Speaker 1>of course, this is not what would we be ostensibly

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<v Speaker 1>facing here. The argument would not be that we should

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<v Speaker 1>impeach him because he's a conservative. The argument would be,

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<v Speaker 1>we should impeach him. I take it because we believe

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<v Speaker 1>he committed perjury during the process of confirmation to the

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<v Speaker 1>Supreme Court, So that would be something different. But it

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<v Speaker 1>would certainly seem too many people to be a kind

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<v Speaker 1>of payback, just as the impeachment of Justice Chase was

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<v Speaker 1>seen and has been seen historically as a form of payback.

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<v Speaker 1>So now, if Kavanaugh is not confirmed, can he just

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<v Speaker 1>go back to his old job as judge on the

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<v Speaker 1>d C Circuit Court of Appeals when a judicial complaint

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<v Speaker 1>has been filed against him related to his allegedly perjured

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<v Speaker 1>testimony to Congress. Well, those are two separate issues. Certainly

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<v Speaker 1>he can, and I assume would go back to his

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<v Speaker 1>would resume decide in cases. And if you look at

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<v Speaker 1>some of the other failed nominations, Judge Ginsberg, the other

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<v Speaker 1>judge Ginsberg went back to his job. The closest parallel

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<v Speaker 1>actually is back to the Nixon era. Nixon nominated a

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<v Speaker 1>judge named Clement Hainsworth who was voted down based on

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<v Speaker 1>ethical allegations or allegations of ethical wrongdoing, which, by the way,

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<v Speaker 1>a number of people later admitted I was they probably

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<v Speaker 1>did not um treat him right. But he went back

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<v Speaker 1>served as a judge of the Fourth Circuit with great

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<v Speaker 1>distinction for many, many years after that. Now, the separate

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<v Speaker 1>question is what happens when a misconduct complaint is filed?

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<v Speaker 1>And I gather one has been and Congress has established

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<v Speaker 1>a pretty elaborate process for handling complaints of misconduct or

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<v Speaker 1>disability by federal judges, and the first step is a

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<v Speaker 1>review by the chief Judge of the Circuit, which happens

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<v Speaker 1>to be Merrill Garland. Now, in this particular instance, I

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<v Speaker 1>believe that Judge Garland will use a procedure that is

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<v Speaker 1>provided for the new rules. He will ask Chief Justice

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<v Speaker 1>Roberts to transfer this misconduct proceeding to another circuit. All right,

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<v Speaker 1>thank you, Thank you so much, Arthur. We will of

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<v Speaker 1>course be looking forward to what's happening tomorrow and talk

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<v Speaker 1>to you again. That's Arthur Hellman, a professor at the

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<v Speaker 1>University of Pittsburgh Law School. Thanks for listening to the

0:14:46.760 --> 0:14:50.120
<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

0:14:54.120 --> 0:15:00.520
<v Speaker 1>slash podcast. I'm June Brasso. This is Bloomberg. Check the

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<v Speaker 1>dependent duck of the