tv After Words Mollie Hemingway and Carrie Severino Justice on Trial CSPAN September 22, 2019 6:05pm-7:01pm EDT
washington, d.c. and around the country so you can make up your own mind. created by cable in 1979, c-span is brought to you by your local cable or satellite provider. c-span, your unfiltered view of government. >> up next on booktv's "after words," the federalist's mollie hemingway and judicial crisis network's carrie severino examine the confirmation of supreme court justice brett kavanaugh and the future of the court. they're interviewed by david is savage. >> host: well, last summer washington saw a particularly fierce political fight other president trump's nomination -- over president trump's nomination of judge brett kavanaugh to succeed justice anthony kennedy on the supreme
court. not always an edifying experience. it was a mean and ugly fight at times we know how it turned out. judge kavanaugh, now-justice kavanaugh, was narrowly confirmed on a largely party-line vote. but it was a memorable fight, so why did you two choose to retell this story in a book-length form? >> guest: carrie and i were both involved in the confirmation battle, working on the confirmation, covering it as journalists. we knew that we had a good story here, we knew that we had good access, and we wanted to lay it down, get the record down. and so we interviewed more than 100 people including the president and various other people at the white house, supreme court justices, people in the senate, and we are so glad we did because this was
something that gripped the nation last year. and when you're in the chaos of it in the moment, it's worth reflecting on after the dust has settled about lessons to learn from it, what were some of the things that happened behind the scenes, and we're really glad that we got to do it. >> guest: that's true. i think for me in particular, i saw the remay of many of the events from the types of attacks even going on before the confirmation got crazy. obviously, the allegations followed a very similar pattern. and i knew the next phase wasn't one where they go home and say, well, we couldn't keep him off the court. what we've seen since justice thomas' confirmation, the people in realtime believes thomas over hill, men, women, black, white. there's been a constant drum beat ever since then of trying to rewrite that narrative and reimagine that story.
i thought it was going to be really important to make sure the facts were out there, to help get ahead of the revisionist history here so that we could learn from -- and probably learn on both sides, from the ugliness. i don't think the american people want to see this level of viciousness and vitriol in future confirmations, and i know we certainly don't. >> guest: i think putting it in context helps people. it was a horrific thing for people to go through on all sides, and seeing how it is part of the confirmation process that we've seen and being able to go through some of that history going back hundreds of years, but more particularly in recent decades, i think, is helpful. >> host: so you did talk to a lot of people. there's a lot of reporting in this book. what would somebody who sort of followed the news but didn't delve into it, what would they learn -- what did you learn that was sort of new in recounting this story? >> guest: so many things, it's hard the even pick out just a few. one of the exciting things to learn was really to get to see some of the human side of the
way that the kavanaugh family was dealing with the process. is so it's everything from the kind of fun and exciting things of what were they thinking in the leadup to the nomination. there's some really fun stories of how both he had to try to sneak into the white house and be really careful that he didn't let his own wife or family know after the president had told him he was going to get the nomination and kind of kept that secret as long as possible. how ashley kavanaugh and her girls had to escape their house. this was already a media stakeout in front, and they knew people were at barrett's house too, remember the slow motion chase a few years before -- [laughter] they felt they just needed to, whatever the result was before they knew he'd been nominated, we're just going to leave the house, and they managed to sneak out the backyard, and then they wouldn't be able to tell if they were there or not. it's fun stories like that but also seeing how these kind of allegations affected them in
real life. how to you go through, you know, having to just live in the same community where really a lot of the families involved and the people who they all went to school with with are still there, and it's really a local story as well as a national one, and you've got, you know, the girls are going to school and working through that. there's a lot of support we saw from their friends on both sides of the aisle and neighbors, you know, ashley kavanaugh is a town manager for chevy chase, so as this is all going right before her husband is nominated, she's hosting a july 4th party. and then right in the middle of the defeat of these allegations, she is hosting a neighborhood barbecue at their house. it's so amazing to think what this must have meant for the people as they were going through. of and you see the strength of character that it took to survive of this level of attack and opposition. >> host: yes, you do tell a story sort of perseverance and survival and really tough. no one would want to be in the position, i think, sometimes of
justices. because if you're, you know, in effect, like your whole life and your whole career is right before the world, and you're under attack during that period. the confirmation process is, has become a very ugly situation, and it seems like all the justices view it that way. republicans and democrats view it that way. ty you come away with any thoughts about what could be -- this was a really bad process. do you have any thoughts about how the confirmation process could be made different or better? >> yes. so one of the things that was interesting when speaking with various supreme court justices and whether they, you know, nobody had a confirmation process like this maybe or few people did -- >> host: justice thomas, yeah. >> guest: but whether they had one that you thought was relatively mild or something more serious, they all loathe the confirmation process. and i think whether these people are appointed by democrats or republicans, these are judges who have -- now-justices who have care about their
reputation, who have cared about how they've lived their lives. and to have their integrity questioned by people, by senators who sometimes don't show that same integrity is galling for a lot of these people. people say, okay, the senators were bad. the senate process broke down. and there is truth in that. there was, after the thomas hearings, a procedure set in place precisely to avoid things like this, an actual way that if you have an allegation to make against a presidential nominee, it can be handle9 discreetly and for reasons that are not entirely clear, senator dianne feinstein circumvented that process and went the route she chose to go. or the way the first round of hearings went with outbursts from various senators. and i understand people being upset about that. there is frustration in how the media handles some of these allegations and how they reported on this story. but it's also a case of the court itself which is as the court has become more political in its decision making when, you
know, when it makes, when it makes law rather than interpreting the law as it is written, that creates a very political situation, and it's not altogether surprising that it becomes, that the process itself becomes more political. so there is some role for the court itself to tamp down some of these actions just by behaving in a less political fashion. >> do you like the old, what used to be the standard that everybody would say is if the president makes a nomination and that nominee is well qualified, the senate should basically confirm that nominee. that was 30, 35 years ago. that was sort of always said to be the standard. do you think that should be the standard now? judge brett kavanaugh, by every standard, was well qualified for the job. but most of the democrats were not going to vote to confirm him, and if you ask them, they'd say, oh, well, so was merrick garland, and he wasn't confirmed. anyway, what's your view?
do you think it should be the old standard, or is it it sort of depends on the political makeup of the senate? >> guest: the old standard has actually been gone for a very wrong time. i mean, by any realistic standards, judge robert bork was absolutely and unquestionably qualified for the job, and we're talking in the '80s. so that standard has been abandoned for a long time. and it was abandoned first by the democrats, then we kind of went back, you know, and we tell some of the story in "justice on trial." i think there are many times when republicans were hoping they could kind of return to that. you saw justices breyer and ginsburg had almost unanimous confirmations, and i think what we have seen is it's taken a while for republicans to realize that that standard hasn't been followed. and, actually, you saw a little of from frustration coming from lindsey graham who is one of the people who absolutely
ascribes -- >> host: he wasn't the only one. >> guest: recall his outburst at the final confirmation where he said tell justice kagan and sotomayor hello, because i voted for them, and you are not following that standard. i think he's frustrated because he would like that to be the standard. that simply isn't the standard that's being followed. i think there should be -- if qualifications are clearly important, but there's an advise and convent role the senate has to play, and looking at judicial philosophy is part of that. you take an oath as a senator to uphold the constitution, so it's incumbent to make sure that someone ooh's going to be in the role is unsomeone who will uphold the constitution, and i think that clearly means someone who's going to look at the text of the constitution as it is written and not believe that they have -- not entirely blank slate, but a great degree of leeway to play with the constitution as it is, because that circumvents our constitutional process. there's an amendment process for that. it is not called -- it's not
amended by five votes of the justices on the supreme court. so i think that's something that is fair game to debate. i think the politics of personal destruction is where it becomes a real problem absolutely off the table. and i'm very proud that, for example, during the merrick garland confirmation that that is absolutely out that we can talk about his record, we can talk about whether the senate wants to proceed to a vote, and that's the way that two-thirds of the supreme court nominees that haven't been confirmed simply because they haven't had a vote. it's been totally a regular way of not having someone confirmed. but having attacks like we saw with the kavanaugh confirmation, having the hysteria against smears, that is something that, i think, should be taken off the table for both. >> guest: we have a story in our book of merrick garland actually being worried that he would be subject to these personal character attacks. and people are definitely upset with how his confirmation wasn't
consider by the senate, but he didn't receive personal attacks of that nature, and he was even told by friends i actually don't think you have to worry about that at all. they're not going to do that. there are consequences for how you fight. it's understandable these are hard-fought battles, there are conventions. -- consequences. republicans did face some consequences, some good and some bad with the garland situation. by and large, there was a little bit of character assassination, but mostly what they tried to do was filibuster him. they ended up losing the filibuster for supreme court justices, but it was still within the bounds of -- [inaudible conversations] >> host: so you wish to keep the personal attacks out of these fights, but basically aren't we in a situation now where it's almost entirely political? that is, the president makes a nomination, and he, it's always been a he, has majority control in the senate, the nomination
will be confirmed. if not, we're now in a situation where it's -- i'm not sure that a new supreme court nominee can be confirmed if the other party controls the senate. in other words, if the, if president trump were reelected and, so we're going to talk hypotheticals here. president trump is reelected and the democrats have control of the senate, my guess is they would not cop firm another -- confirm another trump nominee. >> guest: looking at the people on his list, i think that's true. i think it's interesting, there's only one member who has been confirmed by a senate of the opposing party, clarence thomas. and so it's really, that actually will show you a little bit of the change -- [laughter] >> host: right. >> guest: because even with the level of controversy there, he stilled that democrats that vote for him and republicans that voted against. but i think the challenge is wasn't, you know, how do we get past that. and justice scalia, and we quote him in "justice on trial," talked about it. he said if judges are acting
like politicians, then it makes sense to have this at as a political thing. how do we expect them not to be treated this way? this is why i actually think origin amism and textualism would be a very healthy approach for, i think, judges across the board to take because then what your doing is looking at the next law and that's a law as passed by democrats and republicans. it doesn't matter the content of the law, you will often have justices who embrace originalism who will not like the results that maybe the law they're enforcing but actually feel like -- [inaudible] that puts it back in congress. those are our elected representatives. that's where the constitution places it. and then we all know it's going to be -- but the politics has to happen somewhere, it should happen in that political process. the judges are supposed to be insulated from that. they have a political check p at the front end, but then they're on for life tenure.
it's not politics, it's the law. we don't have to fight it much about what, you know, their personal beliefs are and all these controversial issues. that shouldn't be relevant. it should be are you following the law closely and then, you know, let congress pass the kind of laws that you want. >> host: i like that a lot in theory. [laughter] it's a matter of great controversy in how it plays out, you know? congress passed the obamacare act, and there was a move to overturn it in the courts. big fight. the voting rights act extension was almost passed unanimously, and congress in 2006, and then essentially overturned by the supreme court on a 5-4 vote -- >> guest: there is, this is because the constitution is one of the laws. the supreme law of the land, they still have to include it as well, of course. but in general, if you're just talking about interpreting a statute, you have to -- [inaudible] that's why i'd take issue by
rewriting the statute. you don't get to maintain it by rewriting the statutes. you don't get to rewrite the words of the law even if it means so you can avoid a constitutional problem. >> you're talking about the second -- >> well, the second case was almost more an explicit rewriting of the statute. but i think reinterpreting a penalty as a tax is similarly doing justice to the statute. but we digress from kavanaugh. >> host: yes. well, let's talk about the mystery woman, christine blasey ford. there were rumors about her in the middle of the hearing, i believe, and apparently as you said, dianne feinstein's office had gotten this complaint. at some point her name came out, and there was a long procedure about would he or would she not testify. she came and testified. i think a lot of people who watched it on television said, my goodness, she's got a very vivid memory of a painful
experience in high school. she was about 15, she says. brett kavanaugh was then about 17. she says she was sort of grabbed or attacked in this room and roughed up or something, and it lasted 5 or 10 minutes. but to this day she has seemed to have a particularly vivid memory of it. and judge kavanaugh said it never happened. he didn't know this -- he knew, i think had a heard of her name somewhere but didn't know her. one of the other people who were in the room had any confirmation of it. but what grow make of christine blasey ford, and how do you understand what she said, and what do you believe about her testimony? >> guest: right. well, this was actually one of the interesting things to report on because t not such a cut and dry or black and white type of story. i would take issue with this idea that she had a vivid memory. i mean, partly, yes. partly one of the things that
was frustrating for people who were trying to evaluate the veracity of the memory was how there were no specifics to go along with it whether it was when it happened, where it happened, who was involved with when it happened. sometimes the details were changing, sometimes the details just weren't there. but to go back to the nomination process, what i'm saying is we learned that we thought was interesting was about how once you get on the short list to be a nominee, you go through what's called an sdr where you are interrogated about sex, drugs and rock and roll. it has been built into the process since the ginsburg nomination where he got in trouble for -- oh, yeah, sorry. [laughter] not ruth. he got in trouble for smoking marijuana with some of his graduate students, i believe. this is built into the process right away because people know if something comes out, it could cause problems. the white house team always understood that something might come out, and one of the things
that made them believe now-justice kavanaugh when he flat out denied the education was what, how they had seen him be throughout the process. when they saw anymore that first round of hearings, he is so cautious about how to answer questions that he avoids the perjury trap. so if someone trying to suggest something, he's very careful how he responds. into when this allegation comes out, he just frat out denies it -- flat out denies it. and it gave the white house team confidence. he was firm, could not have been firmer in that denial. we go through what the allegation is and also what evidence is there in support of it and what evidence brett calf gnawing has to -- kavanaugh has to support his claims, and that was a very interesting part of the process. we spoke with quite a few people who know and like christine blass city ford, who knew her from child hide. it wasn't a complicated picture. yes, she had no evidence to
support her allegations, but people thought she was nice, they had member memories of her in high school of her being a party girl, which i don't think came out in the media coverage. but it was not such a -- these were real people with real lives whether it is christine blass city ford or brett kavanaugh, who she accused. >> host: how did her friends interpret her testimony? that she was telling a true story she remembered or she made this up? what was, what do people think about -- and why would you come and go on national television and tell some story like this? it's sort of, from an outsider point of view, why? why would she do that? >> i think that that's a question that a lot of people asked and continue to act. there were a lot of things that didn't line up. she did say early on she didn't want to come public.
anita hill was told initially you won't ever p have to -- >> would be delighted to go on number television to tell a story like this. >> however, it always seems inconsistent that she says she doesn't want to go on television, but then the first call she made was to the washington post. she's simultaneously saying i want to keep this completely under perhapses but when they didn't respond to her initial calls to the tipline, she said, well, i can always go to the times on this. [laughter] again, we don't know what's going on specifically in her heart of hears, but we tries to put together the evidence that we have here. the judiciary committee's going to give her a hearing, and then they backed off, and then under these circumstances, let's move it later and later. it's a very complicated picture we have of one story, you know,
we're trying to keep this quiet, but there's a very large public relations effort around it. so whether that's her event or people around her, the democrats, her lawyers, whether t her friends, that there's definitely an effort pushing this forward into the limelight in or organizing a campaign. >> people ask us about her ve rahs deor motivation, and i don't think we can speak to the note veation. but it is also interesting how people kind of forget some of what happened during that second round of testimony where rachel mitchell who's the prosecutor who's brought in to question blass city ford goes through -- blasey ford goes through a series of questions. i found her to be one of the most fascinating characters in this book. she has a very good reputation for interviewing victim are -- victims of sex crimes. she's a nationwide expert x. she even tells, when she's interviews, if you're looking
for a bulldog, that's not me. i have a clear to go back to, i am very conscious of the need to protect sexual assault victims. she comes in and starts going through the testimony. we were told leading up to the second, the reopening of the hearings that christine blasey ford could not make it to d.c. because she was terrified of flying. that was a message convey between her attorneys, and just gently pursues whether that is a true payment or not. how did you get here earlier this summer when you were visiting your family? she flew. do you glio? yes, regularly. then it turns out that on her resumé she lists that one of her interests is surf travel, that she flies all over the pacific island-hopping. not something that matches with the claims we were told, that she was so terrified of flying
that they want to delay the hearing for days and days. i think it is important you say why would someone not tell something that's true. it's also true that times people believe themselves to be telling the truth that is not necessarily reliable, and we speak with memory experts who said one of the problems they had with her testimony was something was indelible. that can be manipulated. so it's important, again, for journalists and hose who are outside the process to be critical and not just lean into a narrative without checking some of the facts that are underlying it. >> host: but so you two suggest at one point that this could be one of those recovered memory situations perhaps where somebodies that a strong memory now, but they didn't talk about this 30 years ago, and now it's a strong memory, and you're not clear that it's necessarily -- i
remember that whole thing in the 1980s where, you know, people talk about having their children being molested in daycare or whatever. out became sort of clear that these were sort of manufactured memories. sort of created memories. i don't know whether you were suggesting this could be that or what. >> guest: well, there's a specific category where someone has no memory and develops one in theory. it's not clear that she's claiming that. what we know is that she doesn't tell anyone until therapy. but this one of the things, and rachel mitchell brought this out. on one side they were using notes as evidence, and as a lawyer, if you were using it as evidence, you would expect that a court if it was a legal situation, the court would then be able to examine them. it is very significant, this is
what the experts we spoke to talked about, there are known therapeutic techniques that can suggest memories or can manipulate the content of those memories so you could attack the wrong person to a traumatic event, and this can happen through they were, just through regular -- through therapy, through discussions with people, it's been known to happen in police interrogations. we have to be careful and we don't know enough facts about it because the records weren't released to be able to even assess the validity of that. and this is why it's so important and, you know, rachel mitchell working with people in these situations often felt like she had to go back and do what had never been done, unfortunately, til this process which is a more forensic interview where you try to just get the facts out. that wasn't really ever done and is a very important step in any investigative process to know whether there's enough evidence to move forward with. what she ended up concluding in
her professional opinion was not only is this not enough evidence to actually win a case at trial which would be beyond a reasonable doubt in a criminal case, this isn't actually enough evidence to get a search warrant. her testimony. and that was compelling particularly to some of the undecided senators. initially after the hearings to present it to a group of republican senates that night, they were the ones who had brought her on to do that, and she told this group of senators all in kind of laid out systematically her, that what she had uncovered in terms of the inconsistency and at the end received a standing ovation. she stayed two more days to write up a report which later was published by the senate judiciary committee taking everyone through the allegations, how they had changed over time. and there was something, you know, some people concerned -- [inaudible] before disclosure. she said this is typical.
>> guest: they really strongly wanted to hear what her story was. and everything was handled through attorneys. it's hard to know, were the attorneys telling stories that were at odds with reality? with the flying example, that's an issue where it was both the attorneys and christine blasey ford that made a claims that didn't match up. but, for instance, she said the her testimony that the allegation was revealed to her husband in part of their going
to therapy because she wanted a second door added to her house because she has such fear as a result of this incident that happened. and one of the things that came out after the hearing was that the send door, there was a second door add to the house as a part of a renovation for a unit that could be rented out, and that also made people wonder, well, is it her story the real reason or not? other people wrote in to senate judiciary committee that they had known her for decades and had never known her to have a need for a second door. so she didn't have a lot to work with, and what she did was not necessarily compelling for people. and, again, these are delicate issues and dealing with sexual assault is something where different people will respond differently to it. it's also true that when you make an allegation, you need to have evidence in support of that. and as they waited for it to come in, it just didn't come in, and it didn't seem to me anywhere near the standard to not just not have this perp on the supreme court, but to -- person on the supreme court, but
to basically forever tar him in the minds of the country as a sexual abuser. >> guest: and it's frustrating because the difficulty it would have been for her to testify, obviously, incredibly difficult for him and his family to go through this process. and the frustrating thing is there is a system for dealing with these things and taking them seriously so you don't just ignore allegations against a nominee, but have a way of doing that to protect all the parties. it was developed specifically because of what happened with anita hill and clarence thomas. so there is a process. that's a confidential system, it is out put in an fbi background file. again, very, you know, honored by the white house, honored by the senate. and so why that wasn't followed, i think that went against the interests of every single person involved. the only, the only benefit from that, i guess, is for those that would have liked to see a media circus and a national kind of
fiasco created -- >> guest: not in the interest of victims. >> guest: right. it hindered the investigation process as well. even when the fbi was later back doing its information process, the ideal way was to be able to talk to these people separately before they've read about it in the paper, then you don't have to worry have the witnesses already been tainted by what they've read. that wasn't done, and it made it much harder to get to the bomb of what was going on -- to the bottom of what was going on here, and that was a real shame. >> host: one of the strong points on judge kavanaugh's side was there was something like 40 or 50 young women -- they were young women when he was a young guy in high school -- who signed letters sort of on his behalf saying i knew brett kavanaugh in high school, and i never saw any sign that brett kavanaugh would do something like that. i went to high school like you guys went to high school, and i would think that, you know, you
would sort of assume if somebody was sort of a bad actor around women or in some other ways, at least some of the high school friends would say, oh, yeah, i remember so and so was a little bit -- and isn't that your sense, is that it was quite, i think, a strong card on his side was that a lot of people who knew him in high school, women who knew him in high school came forward to speak up for him. >> guest: right. we looked at that. there were actual efforts by high school friends to get out into the public record that they felt this way about him. we spoke with one individual who said there were maybe five men in her whole life who she would come out and defend their integrity and honor and maybe only one -- [laughter] and he was one of those people. the people who knew him seemed to speak all in the same way about him, the people who knew him well. you also saw though people who
were alumni of holton arms signing a letter that got a ton of media attention even though it didn't mention that the people who were signing this letter in support of christine blasey ford may or may not have even been at the school at the same time as her by a matter of decades. this was one of the things that was helpful to him throughout the process, he actually addresses this in his testimony at the reopened hearings, how much friends have meant to him and how much those friendships he developed from a young age had been meaningful to him. >> host: just as an observer writing about it, it would have been, i think, an entirely different situation had several women from his high school years come forward and say, oh, yeah, that sort of comports with what i saw of brett kavanaugh during that period. i think it would have undercut him quite a bit, but the reverse was true. >> guest: they said there were guys that they would have been like, yep, i can see that, but he wasn't one of them.
there were women whod had dated him, and there was one from college who said i remember we were dating, and i was in his room and had to change, he turned his back to give me privacy, and she thought that really spoke to his -- he was a real gentleman with her. so i think it was very telling to see the women close to him stand up. >> host: am i correct in saying the sort of low point for brett kavanaugh and his family was, i guess, the morning that christine blasey ford testified and came across very well on television and then it was his turn, don't you -- you quoted and cited a number of people, senators and whatever, who thought, oh, this is not good that she comes across as a very compelling witness. >> guest: so i don't actually think that was the low point for justice kavanaugh. i think for him he was from the moment that first allegation comes out, he is desperate to
clear his name and be able to defend his character and reputation. so that day is actually finally getting to the point -- >> host: the low point for him was when the allegations came out, you mean? >> guest: not just even the allegation. i would say midway through the process. the allegation comes occupant, it's obviously a huge -- comes out, and it's obviously a huge shock. we learned in our reporting that was a very difficult day, difficult to have that, have that allegation made, difficult to convey it to other people, difficult to convince other people of your innocence. that was rough. but if you recall, there were many days before the allegation and the eventual reopened testimony, and there are other other allegations coming out. >> host: increasingly. >> guest: so that in one way i think the team that was working to advance the nomination found that to be helpful in that everyone could see that wasn't just, this wasn't necessarily,
like, a very serious thing that had to be dealt with seriously so much ap absurd situation that needed to be dealt with decisively. but there was always concern that the senators would lose their confidence, and that concern was legitimate. we did definitely talk to people who told us that republican senators were not necessarily stalwarts throughout this process, and that day of the reopened hearings christine blasey ford gives her testimony, many people in the media found it compelling, maybe more than people in their homes watching from home. but one republican senator on the judiciary committee goes to senator susan collins and says, how about we go over to the white house and tell them to drop this nomination? and she says that she would like, that she's, believing in due process, would like to hear from judge kavanaugh before she makes her decision. that shows you how -- this was a very narrow voting situation, and people who you night even expect -- might even expect to have been not of any worry to
the trump team turned out no not necessarily be as the steadfast as they might have hoped. >> host: you tell the story at this point there was a discussion with the white house counsel about are you a bush nominee or a trump nominee, that he was very close to george w. bush, worked for him. george w. bush put him on the appeals court, but he's now a donald trump nominee. what does that mean? >> guest: yeah. it was an interesting dynamic that we learned. western hearing as we were interviewing people that people would talk about, well, this isn't some idea that -- >> guest: sometimes people telling us were themselves bushes -- [inaudible conversations] >> guest: scratching our heads, like who are the bushies? finally we realized they were talking more about an attitude, not so much about a specific person sometimes. and it was really, you know, even at that final moment as he's going into his testimony, there were some people who were saying, well, you need to just be a little more, you know,
recognize where she's coming from, give her a lot of credit for it was hard to come forward and just talk about playing up sympathy and a softer approach. and then you had white house counsel don mcgahn who there's a really amazing story in there about they had loved sports analogies, and there's a movie called miracle about the miracle on ice, 980 winter olympics -- 1980. and judge kavanaugh loves the line where one of the player says i play for the united states of america. it's a very patriotic person. don mcgahn said, no, actually what we have right here is this moment where the coach comes in the locker room, they have not been playing well, and he's trying to get them fired up to go out there can and actually to their best, and he's knocking over a table with the gatorade on it and really fire them up, and he says that's this moment. you are not a bush nominee, you are a trump nominee, and trump fightings. it's interesting, in some ways it kind of freed him. we were trying to figure out who
was -- we saw kind of a very different judge kavanaugh on martha maccallum earlier that week when he -- >> host: right. >> guest: and then on thursday when he really came out strong, and it was fascinating to learn that, in fact, that was the person he really had been early on. they were doing practices and just said, oh, wow, you have to practice answering some of these really intense questions, but he was doing so well from day one, they actually had very few follow-ups because they didn't want to start sounding overrehearsed which i think some people felt did end up happening despite best efforts. but he was finally freed to give vent to that frustration going, you know, i have lived my whole life in the public eye. i have been so careful to be respectful and, you know, encouraging of young women. a lot of people have talked about how great he was hiring women law clerks and the women in his life talking about how special he was, and you are
calling me a sexual assailant, you're calling me a rapest? this is horrible. so he really let that passion show, and i think that was powerful for the american people to see. >> host: do you think it might have made the difference that as he came out fighting to fight for his honor and fight for his good name, do you think -- because there were people on the left afterwards that said, oh, he was, he was so emotional and angry e that it may have undercut his, i don't know, reputation as a judge, a calm judge. but i take it a lot of people thought that's what he, that really made the difference, that that sort of shored up his support and assured his confirmation. >> guest: right. we do look at that issue of temperament, because leading up into this reopened hearing, everything's being talked about sexual assault. he does such a good job refuting that that people then move to a different talking point which is that his temperament is in question. but it's absolutely true that he
came out, we were just talking about it, he came out fighting. it wasn't really the testimony, but the subsequent questioning from senators where he starts being very aggressive with them. which i think that brought out that talking point. he ends up having to write an op-ed in the "wall street journal" which is something of the many things that happened in this confirmation battle that hadn't happened before. that was something that we hadn't seen before. there were ways in which his behavior in both rounds of testimony were the same. in the first round of testimony, he wanted to be eager and open to any questions. sometimes people respond to this by trying to say as little as possible about their judicial philosophy. he takes a very different approach. he is, he is giving people as much of an answer as he can and being eager to respond to it. so i think that carried through with the second round of hearings. but when they start, when some democratic senators started going after him about lines in his yearbook and things that he finds to be absurd, he starts punching back. we write about how when he does
it to amy klobuchar, senator amy klobuchar, that was a bridge too far for many people, and he ends up coming right back out of a break to apologize to her. so the temperament is an issue, and it has to be dealt with following that. but it is interesting to reflect after a full term on the court this is a now-justice who had a reputation for 12 years as having an excellent temperament. the american bar association has said as much when they recommended him, and after a full term on the court, it seems that when he's not having to defend himself against allegations that he is a serial gang rapist and having to deal with the effect of that and his reputation and his young daughters, he is the brett kavanaugh that people were familiar with. >> host: it's a little bit unfortunate, i have friends from the wife and family, i get to see kavanaugh in court, and he is a very congenial, very pleasant guy, very focused. and a good part of the american public only remembers that
testimony where he was sort of angry and emotional, defending his good name. and i don't know how it, that's just the way life is. but the strange thing about the supreme court, you're confirmed then, you go behind almost like closed doors, nobody sees that person anymore. they read about them in the papers and there's photos of them, maybe this is a still photo, but i see kavanaugh in the court every day, and he's a seemingly congenial, civil, nice guy like the old brett kavanaugh. but i think millions of people who have only seen him in that tv appearance might have a different impression. >> guest: we did learn that one justice -- well, and if on that note i think it is worth noting that when he is seated on the court, the other justices go out of their way to welcome him and be open and make public displays of how he is one of them. when he has a formal swearing-in
at the white house, they're all there. we did learn that one supreme court justice thought that his, he was very similar to justice kennedy, but the shakespeare references have been replaced with sports references. >> host: he does have a lot of sports references. >> guest: yeah. when you've had 12 years on the court already, he -- i think what you do is go back to same, you know, approach in the court where you ask questions, the way you with write opinions that you've had before. and i think that's, that's the strength of appointing people with a long record. you don't have to wonder are they going to suddenly skew off in some kind of crazy direction. we know how he's going to be a judge because he's done so for over a decade. >> host: tell me who you think some of the heroes and villains of this story are you've got, i think, some detailses on both. you would like to say heros of this story? and/or villains of the story. >> guest: we've talked about
several people, rachel mitchell is someone we enjoyed learning more about. one that was impressive was leland kaiser, and this, of course, was christine blasey ford's close friend from high school and one of the other people who was named to have been at the party, the only woman who was said to have been at the party. and what we've learned is she's someone who is a lifelong liberal. she did not want breath with9 kavanaugh on the court -- brett kavanaugh on the court. >> host: she knew him in high school? >> guest: she stated she did not think she'd ever -- >> host: you report that she didn't actually know him, didn't remember knowing anymore high school. >> guest: correct. yeah. and it said she remembered that summer very well, it was a formative summer for her because she's a professional golfer, and this was when she got started playing golf. when she heard about the allegations initially, she was displayed, i can't believe this
is my close friend, i feel horrible that i hadn't realized, that i didn't notice a change, i would have picked on and was wracking her brain where she could corroborate it and couldn't come up with any. she made that first statement saying i simply can't, you know, i don't remember this, i can't verify it. that was interesting because it was something that the people who were working on the nomination thought was, that was the silver bullet. we had already had all of the men she identified at the party say they didn't remember it happening, and then this is the final person to who you would have thought would be the witness that she maybe would remember, because it was her friend, and she said she didn't. and that the kavanaugh team thought, this is it, this is going to be great, this is where things are turning around, and when they learned it got very little media coverage when that came out, that was when they felt like now we're really in trouble because even this isn't breaking through. >> host: so let me clarify, she said i don't remember this, but i believe, something like, i believe christine is telling the truth? >> guest: right. and, in fact, some of that, the
modification of the statement was even the result laterover discussions with common friends who said she was frustrated because there were people who were saying this refutes your testimony. it doesn't really refute it just because i don't remember it, but then people were trying to convince her to shade that more strongly than she felt comfortable with. look,ty i still don't remember it. i believe christine, i don't remember. that is the statement she gives. and later when the fbi investigation comes about, she does speak to the fbi. and then twice, in fact, goes back and lets them know about some of the encouragement she was getting to change her statement, and she begins to feel not only that she can't corroborate it, but the more he has the opportunity to really reflect on that summer going this doesn't actually line up with the kind of event that would have happened at all. >> guest: she comes to actually lose confidence in the story as she gets time to reflect on it.
she never remembers it from the beginning, but i thought that was, you know, that took -- >> host: she can't believe that it did not happen. >> guest: again, on a political basis and also -- >> guest: lifelong friends. >> guest: you want to be able to support your friend, but she also felt a very deep conviction that she had to be 100% truthful on this, and that took a lot of courage. >> host: villains? >> guest: well, i was just thinking of another hero real quick, susan collins. learning more about what she went through which begin before brett kavanaugh is even named as the nominee. she starts receiving threatening packages in the mail from people who want her to vote against whoever the nominee is. and she shows just an unbelievable amount of discipline, hiring additional staff to help her go through his record. she had a command of the record that went down to the footnotes. she's not even on the judiciary committee, but she took her role very seriously. she did it, by the way, with
every nominee that has ever come before her including merrick garland who never got serious consideration by the senate. she goes through the record, she takes so much time with him, by all accounts her meeting with brett kavanaugh is the one that is the most detailed and coming -- that she is the most informed. and then she really starts to get the pressure from opposition groups, and she just refuses to be bullied, considers the case very seriously, and i thought that showed tremendous courage because it also involved, you know, it ends up being that her home is a victim of an alleged ricin attack. it wasn't -- [inaudible] put on lockdown. >> guest: right. she has neighbors threatening her, and to just show that courage when it would have been easy to succumb to it, i think, is worth noting. >> host: she ended up being the crucial senator again, right in. >> guest: not just her vote, but her speech where she lays out what standards of evidence are, and she shows a very
compassionate attitude towards the accuser. she also becomes this sort of moral conscience for the senate in how she dislikes certain things that are happening, certain tactics that were deployed by people who were in the anti-kavanaugh forces. it's interesting. >> host: you mentioned dianne feinstein doesn't come across looking very good in your book, right? it seems like she should have acted sooner on this report so that it could have been handled. >> yeah. it's very discouraging. although it's interesting, we also uncovered a definite tension between her and her staff. her staff was, in many cases, pulling her farther to the left than she would have have been. i think as someone who's been in the senate a long time and wants to work well others and knows the other members of the committee and the other senators well, she was much more inclined to try to work with them even earlier in the process at the document review where she had come to an agreement, in fact,
with senator grassley, the chairman of the committee, that would have resulted in even more documents being released than already, the half million that were released. but, actually, her staff had to walk back this agreement because they had taken the position that, a basically, we'll accept nothingless than every single piece of paper that went through the bush white house. and that also really harmed the democratic senators and senator fine stein in the eyes of some of -- feinstein in the eyes of some of the swing votes. >> guest: right, we do detail a scene where that tension between feinstein and her staff, you know, the democrats and their staff just boils over into an almost comical situation in the anteroom off of the senate judiciary hearing room with senators so frustrated with some of the political game playing, you know, and these are professional politicians who do political game-playing for a living. they're so frustrated that they nearly come to blows as people are shoved in, fighting and a
long summer and early fall of tension boils over. >> host: but your notion is that the staff may have had something to do with leaking this name -- >> guest: we spoke with people who really did have high regard for senator feinstein and had low regard for the staff. so i don't know if this is, you know, obviously there was a limited pool of people who had access to this letter, and feinstein was one of that limited pool, and it did get out, and we do know that when she received the letter, she didn't put it through the normal procedure that protects people who are accusing or whistle blowing. she arranged an attorney who was known for high profile cases. so so that is something that she and her staff did, and that's part of the story. >> guest: went directly from them to the press or through them, her lawyers had access to it, obviously, so could have -- i mean, her friends. but there is a limited group that had access to it, so, you know, there's only a few
potential -- >> host: so we all sort of agree that the ideal process is not to go through all of the confirmation hearings and then get ready to vote and then a major, new development. as you say, i never thought i'd live long enough to see it twice in my lifetime, but it was very similar to the way that clarence thomas, iowa knee eta -- anita hill revelations came out after the first round of thomas hearings, and i covered those first round of thomas hearings, and nobody remembers that. everybody remembers the second. you would not think it could happen twice in 30 years, but it did. well, thank you very much. it was great to talk with you, and the book is "justice on trial: the kavanaugh confirmation and the future of the supreme court." good luck on the book and thank you very much. >> guest: thank you. >> guest: great to be here. >> this program is available as a podcast.