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UPDATE: 8:15 a.m., Oct. 5, 2018
Our top story on Midday edition the nomination of Brett Kavanaugh to the U.S. Supreme Court comes down to its final confirmation vote this weekend. Right now we're monitoring the Senate floor Susan Collins Senator Susan Collins is expected to speak and to announce how she'll vote tomorrow on the Cabinet nomination if Brett Kavanaugh gains a place on the court. This intense confirmation battle and the questions left unanswered maintained his entire tenure in the past nominees have often taken their names or had their names taken out of consideration when it appeared their confirmation could compromise the integrity of the court. That hasn't happened this time. And one glaring question is why. Joining me is legal analyst Dan Eaton. And Dan welcome to the program thank you Maureen. Good to be here. Now President Trump has said on many occasions he has a list of nominees for the U.S. Supreme Court when these questions and accusations erupted about Kavanaugh why not go to the next name on that list a couple of reasons one is tight and it would be very difficult to get a replacement nominee confirmed. The other is a matter of principle that is to say if these sort of allegations were enough to throw someone out of the box it could make getting someone through more complicated. And so there was some argument for staying the course in going with the nominee. You picked after presumably a careful vetting of that nominee but they don't have much time. If Kavanaugh for whatever reason doesn't make it to the Supreme Court wouldn't it still be possible though to fill that high court position during a lame duck session after the midterm when the GOP is definitely still in control of the Senate no matter what possible but very difficult. You're talking about a period of six to seven weeks where you have a holidays intervening in that period because of the procedural obstacles that could be put up. It would be difficult without at least a couple of Democrats agreeing and vans to move forward with the next nominee who presumably would be Amy Connie Barrett out of the Seventh Circuit. And we don't know that for sure. So that's really the short answer that question. But if anybody could do the lame duck session is probably Mitch McConnell who has shown that he is a very determined and very effective majority leader. Now not all Supreme Court nominees themselves have been as determined as Brett Kavanaugh to fight any opposition to their nomination to the Supreme Court. Have there been others who've taken their names out of consideration. But it's very very rare and in recent history you one can only think of really three going back 50 years ago almost to the day Maureen October 1st of 1968 when Abe Fortas withdrew his name to be chief justice of the United States he was then sitting associate justice and he later retired resigned rather and he was nominated by Lyndon B Johnson. More recently then you had Douglas Ginsburg remember who was nominated by by President Reagan for this very seat by the way. Justice Kennedy was the number three pick and then of course most recently Harriet Miers who ultimately withdrew her name George W. Bush withdrew her name and she was replaced as by Samuel Alito as the nominee of the court. So it's quite rare. You're not going to see many lawyers slash judges who have been nominated to the highest honor in our entire profession withdrawing and when they do. The voluntary nature of the withdrawal is highly suspect it means basically they don't have the votes. They don't have the votes and someone pressures on. That's right. Now some nominees of course will go forward and actually have a vote on the floor Robert Bork comes to mind. Clement Haynsworth and Harrold cars and so forth so there are nominees who will go the full distance but if they don't have the votes probably better to withdraw. Isn't this fight for Kavanaugh also one of the most partisan Supreme Court confirmation battles ever. It will if he gets through by 51 votes or 50 votes with a vice president taking the unprecedented step of being the decisive vote to confirm a Supreme Court nominee to be the most no votes in the history of the United States Supreme Court. Clarence Thomas who is also confirmed to me that something about October he was also confirmed in October of 1991 he was confirmed by a vote of 52 to 48. And if if Mr. Cavanaugh if Judge Kavanaugh gets a 49 or 50 no votes it will be the most in history. Now yesterday retired Supreme Court Justice John Paul Stevens said Brett Kavanaugh is not qualified to sit on the high court Stevens said he originally supported the Cabinet nomination but I think his performance during the hearings caused me to change. How surprising is that from a former justice. Very surprising is Rancourt for retards. We were just generally don't speak out like this but most interestingly today just today the A.P. issued a letter to Chairman Chuck Grassley of Judiciary Committee saying it was re-evaluating its well qualified rating of Judge Kavanaugh in light of his performance at the at the hearing last Thursday. But they said that they would not be finished with that re-evaluation valuation in time for the Senate's confirmation and therefore its original rating of well qualified stood so and also Judge Kavanaugh has actually written an op ed. Another unusual move here for a Supreme Court nominee. Trying to sort of walk back his performance before the this the Senate Judiciary Committee is isn't that right. It is more when I read the op ed a fascinating op ed. Three quarters of which was essentially a recapitulation of his original opening statement. Remember he had the four days relatively placid hearings but then the last part of it said there were things that I said that I shouldn't have said. I was very emotional I'm speaking as a father a husband a son. It's clear that what he was trying to do was reaffirm the fact that he's an independent judge and that he has the temperament to sit on the highest court. Why don't Supreme Court nominees why are these moves by Judge Kavanaugh appearing on Fox News and writing the op ed. Why are they so unusual. Why don't nominees normally do this because Supreme Court justices are supposed to be above it all and engaging in the media is entering into the fray in a way that Supreme Court justices generally don't like to do because they are supposed to rule as umpires and so forth understand the very appearance before the Senate Judiciary Committee by nominees is an invention of the 20th century that didn't happen in centuries prior. So this engagement in the political process and the media process even worse is unusual and it compromises at least this perception that Supreme Court justices are are detached from a lot of the other things that regular politicians are subject to. Well we are involved in the media process right now because what we're waiting for is Senator Susan Collins to announce whether or not she is going to vote for a judge Kevin or Kevin that is on to Supreme Court tomorrow. And I have been speaking with Dan Eaton legal analyst and attorney with seltzer Kaplan McMahon Witek in San Diego. Thank you Dan good to be with you Maureen
Brett Kavanaugh's nomination to the Supreme Court cleared a key procedural hurdle after the Senate voted to limit debate on Friday. A final vote on his confirmation is expected over the weekend.
Read original story below.
The Senate is set to vote Friday morning on the first step to confirming Judge Brett Kavanaugh to the Supreme Court following the release of an FBI report on allegations of sexual misconduct by Kavanaugh.
Yet there were several senators who had still not publicly stated their position,. Among them is Sen. Susan Collins, R-Maine, who said she would vote in favor of moving the nomination forward, but said she would announce her final decision on whether he should be confirmed Friday afternoon.
In a speech leading up to the vote, Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, said, "The resistance is located right here on Capitol Hill'" and urged his colleagues to "say no to mob rule" by voting to confirm Kavanaugh.
The top Democrat on the panel, Sen. Dianne Feinstein of California, said Republicans have "largely chosen to ignore the testimony" of Christine Blasey Ford, who accused Kavanaugh of sexually assaulting her when they were teenagers.
President Trump, in a tweet Friday morning, criticized what he termed "the very rude elevator screamers," who he said are "paid professionals only looking to make Senators look bad!" Without evidence, he alleged the protesters, several of whom said they have been sexual assault victims were "paid by [financier George] Soros and others."
Senators had one day to review a confidential supplemental background check into Kavanaugh's behavior in the early- to mid-1980s when he was in high school and college. The closely guarded collection of interviews is celebrated by Republican leaders as concrete proof that Kavanaugh did not harass or abuse women. Democrats say the interviews, which they originally requested, are incomplete and inconclusive.
The FBI report has done little to alleviate a bitter partisan fight over Kavanaugh's nomination. Senate Majority Leader Mitch McConnell, R-Ky., says the Senate will proceed anyway on a Friday procedural vote that could pave the way for a final confirmation vote on Saturday.
"What we know for sure is the FBI report did not corroborate any of the allegations against Judge Kavanaugh," McConnell said at a news conference on Thursday. "The second thing we know for sure is that there's no way anything we did would satisfy the Democrats."
Kavanaugh took an unusual step to boost his nomination Thursday evening, writing an op-ed in The Wall Street Journal expressing regret for the heated tone of his testimony before the Senate Judiciary Committee last week, including comments decrying Democratic attacks, that was seen by some wavering senators as too partisan.
"I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said," Kavanaugh wrote.
The White House defended Kavanaugh's demeanor during the hearings.
"Any human being who has been falsely accused of a range of things including gang rape has a right to be upset, has a right to be angry, and that's what we saw last week," said White House spokesperson Kerri Kupec during an interview with Morning Edition.
McConnell needs 51 votes to clear the procedural hurdle on Friday. Republicans have enough votes to meet that bar on their own, but only if they win the support of Collins as well as Sens. Lisa Murkowski, R-Alaska; and Jeff Flake, R-Ariz., who have withheld judgment while the FBI completed its work.
All three spent hours in a secure room in the basement of the Capitol on Thursday reviewing the roughly 45 pages of FBI interviews. Collins and Flake both say the investigation was thorough, but neither would say if they are now prepared to vote to confirm Kavanaugh.
Flake forced Republicans to launch the additional investigation last week after a tense negotiation with Senate Judiciary Committee Democrats. Flake spent a large portion of the afternoon reviewing the FBI work and said he saw no new evidence to corroborate any of the claims against Kavanaugh, which Flake had previously indicated would mean he will vote to confirm.
Democrats saw something very different in the report. Several criticized Republicans for limiting the FBI investigation to just nine interviews. They said the process ignored many potential witnesses, including Christine Blasey Ford, the woman who first accused Kavanaugh of sexually assaulting her at a high school party in the 1980s.
The FBI also did not interview Kavanaugh.
Senate Minority Leader Chuck Schumer, D-N.Y., said those issues raised serious doubts about Kavanaugh and his qualifications.
"Judge Kavanaugh stated at his hearing that the individuals at the incident involving Dr. Ford refuted her version of events," Schumer said Thursday. "From their own public statements, we knew that to be false, and nothing in this report changes that."
Similar concerns moved Sen. Heidi Heitkamp, D-N.D., to announce Thursday that she would oppose Kavanaugh. Heitkamp is one of the most vulnerable Democrats on the ballot in November and has seen her poll numbers slip in recent weeks. She's running for re-election in a state president Trump won in 2016 by more than 35 points.
Heitkamp said she was troubled by Kavanaugh's aggressive appearance before the Senate Judiciary Committee and the message his confirmation would send to women and girls across the country.
"When considering a lifetime appointment to Supreme Court, we must evaluate the totality of the circumstances and record before us," Heitkamp said in a statement. "In addition to the concerns about his past conduct, last Thursday's hearing called into question Judge Kavanaugh's current temperament, honesty, and impartiality."
Her opposition leaves Sen. Joe Manchin, D-W.Va., as the only undecided Democrat. He is also in a tough re-election campaign and was silent on Kavanaugh in the days leading up to the vote.
The nomination now hangs on the decisions of Collins, Murkowski, Flake and Manchin.
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