The Balance of Power. TRANSCRIPT: 09/03/2018. The Rachel Maddow Show

Brigitte Amiri, Nancy Northup

Date: September 3, 2018
Guest: Brigitte Amiri, Nancy Northup

RACHEL MADDOW, MSNBC HOST: Good evening. Thanks for being with us
tonight. I know it is Labor Day. I hope you got some time off.

But, you know, the news does not rest. So here we are.

More than a month after the Trump administration was ordered by a federal
judge to reunite the families that the administration had split up at the
border, nearly 500 toddlers and little kids are still being held by the
U.S. government apart from their parents. When the Trump administration
started this policy of ripping kids away from their parents and not giving
them back, we now know that they thought no one would mind that they were
doing it. One current administration official involved with the policy
telling Jonathan Blitzer at “The New Yorker,” quote, the expectation was
that no one would care.

It turns out people cared. The country cares. And amid the public outcry
against this policy, on June 20th, President Trump formally ended his
administration`s policy of continuing to take parents away from their kids.
So, today, it`s supposedly not the policy anymore.

But because of the haphazard way they implemented it in the first place,
because they literally developed no plan while they were ripping kids out
of their parents` arms, to keep track of where they were sending those
kinds and those parents, we`re now in the situation where even though the
policy is over and the court has ordered the president to give the kids
back, 500 of them still haven`t been given back and the advocacy
organizations, like the ACLU, fighting the administration in court, tell us
that there`s no real sign that the administration is working all that hard
to fix that and to get the kids back, even though now they are under court

So, this scandal, it wears on day after day. Week after week when we do
hear about rare belated reunions between parents and their kids now. The
reports are heartbreaking in a whole new way. Toddlers who crawl away from
their parents at the sight of them because they no longer recognize their
own parents because they have been separated from them for so long. Kids
who seem to have radically changed while being held alone without their
parents by the administration.

Court order or no, that is Donald Trump`s family separation scandal. It
just does not end. It is not fixed.

But you might remember before this particular Trump administration scandal
landed on the country like a moral nuclear bomb, several months ago there
was another big scandal over the Trump administration`s treatment of
immigrant kids and it was the case of Jane Doe. Jane Doe is the pseudonym
assigned by the court for a 17-year-old pregnant girl who the Trump
administration tried to force to give birth against her will last fall.
Jane Doe, 17 years old, was picked up by the Trump administration at the
border. She was put in a shelter in Texas overseen by the U.S. Department
of Health and Human Services.

While she was there she found out she was pregnant. She did not want to
have the baby. She did not want to go through with the pregnancy. In
America, whether you`re an immigrant or not, there is a constitutionally
protected right to get an abortion in this country if you want to have one.
The government is not allowed to stop you from doing that. It is your
right to decide for yourself.

So, teenage girl Jane Doe finds out she is pregnant. She decides firmly
that she definitely wants to have an abortion. She raises the money to pay
for it.

She actually got a Texas court, got a judge to explicitly grant her
permission to make that decision for herself without parental consent,
since she isn`t an adult. She arranged for transportation to get herself
to and from her doctor`s appointment so she could get procedure done. She
doesn`t need any help with any of it. She has arranged for it herself.

But the federal government still blocked her. She was being held at this
shelter overseen by health and human services, a federal agency led by
Trump political appointees and they said no. They would physically not
allow her to leave the shelter to go to her doctor`s appointment. So, the
ACLU sued the Trump administration on her behalf.


BRIGITTE AMIRI, ATTORNEY FOR JANE DOE: They were literally holding her
hostage, blocking the door, preventing her from getting an abortion. I do
believe that was their goal, to hold her hostage until she carried this
pregnancy to term against her will.


MADDOW: You may have seen some of our coverage of that case while it was
under way, while it was being fought over in court. Eventually, the Jane
Doe case landed in a high level federal court, at the federal appeals court
in Washington, D.C. in a hearing from a three-judge panel.

The reason this Jane Doe case is once again national news all over again is
because the three judge panel that got that case at the appeals court in
D.C., that included a judge named Brett Kavanaugh. And Brett Kavanaugh has
now become President Trump`s nominee to serve on the United States Supreme
Court. And his confirmation hearings are due to begin tomorrow.

Well, now, on the eve of his confirmation hearings tomorrow, we`ve got
something. We have a tape that has never before been broadcast, as far as
we can tell. And I know this is – this is – it`s an odd thing. I think
it is an unsettling hallmark at this time that things would otherwise be
massive news stories or even massive scandals, they end up in this era like
pepping for one hot second. And then they just go away.

My theory is that it`s both just the sheer number of ethics and corruption
scandals surrounding so many members of this administration including the
president, but it`s also the fact that there is this one unprecedented
existential scandal about this president and this presidency that makes it
hard to stack up other more normal news stories and scandals and policy
problems besides that big one.

But even though things are the wrong proportion in this era in terms of the
size of news stories anymore, we really are looking at a vacancy on the
Supreme Court right now which in normal times would be the dominant,
biggest news story in the country for months. The retiring justice, of
course, is Anthony Kennedy, who was the decisive centrist vote to uphold
the right to get an abortion in the country. There is a general consensus
that if President Trump`s nominee, Brett Kavanaugh, is confirmed, he would
be a decisive vote to eliminate the right to get an abortion in this

Every year, year after year, the NBC/”Wall Street Journal” national poll
asks Americans the exact same question. Should Roe versus Wade be
overturned? Right now, the highest proportion of Americans ever recorded
says that Roe versus should not be overturned, that we should keep abortion
legal in this country, 71 percent of Americans – 71 percent now say Roe
versus Wade should not be overturned.

That 71 percent even includes a majority of Republicans. That`s the
highest ever result on that question, with a pending nomination of a judge
who would be the decisive vote to overturn Roe if Trump succeeds in getting
him on the court.

And that kind of thing has consequences. A week after Brett Kavanaugh`s
nomination to the Supreme Court was announced, the nonpartisan Pew Research
Center released a national poll that found more Americans oppose the
confirmation of Judge Kavanaugh to the Supreme Court than any other nominee
in recent history. Opposition to Kavanaugh was even greater, the polls
showed, than the opposition against Harriet Miers. Do you remember Harriet

Harriet Miers` nomination was considered to be one of the worst botched
Supreme Court nomination attempts, one of the worst nominees in modern
history, facing a world of criticism, not only from Democrats but also
Republicans. Harriet Miers had to withdraw as a nominee less than one
month after she was picked for the court by George W. Bush in the first
place. Harriet Miers` nomination is a famously, disastrously bad Supreme
Court nomination, right?

A nice woman, everybody said, lovely to be around. The president sure
liked her a lot. Not a person who should be on the Supreme Court,
concluded everyone, including ultimately Harriet Miers, right? So, it`s
not good news right now that President Trump`s Supreme Court nominee is
anywhere near the Harriet Miers standard of disapproval, let alone actually
falling short of the kind of support that Harriet Miers received before she
had to withdraw.

So, right out of the gate, a week out after he was nominated, we`ve got
this stark news that the Kavanaugh nomination was deeply unpopular. It was
more unpopular than the Harriet Miers nomination. That makes it
historically unpopular.

Well, since then, he`s been circulating on Capitol Hill, taking meetings
with senators, right? The White House has been trying to build support for
his nomination. Over that time, Brett Kavanaugh`s poll numbers have gotten
worse. His net support now is actually negative. Negative three, more
people oppose his nomination than support it, which is not only worse than
Harriet Miers who had to be withdrawn for lack of support, it`s worse than
Robert Bork, who wasn`t withdrawn as a nominee but he was rejected by a
large bipartisan majority in the Senate.

This is interesting, though. The very, very, very bad polling for the
nominee at the Supreme Court also shows us why his polling is so bad, why
his numbers are so upside down. It turns out, it`s gender. Brett
Kavanaugh`s net support is negative overall in the country because he is
net minus 18 with American women. That is a huge gap.

By an 18-point margin, American women say do not confirm Brett Kavanaugh to
the Supreme Court. And again, it comes just as we`ve got confirmation that
support for Roe versus Wade is at an all time high, and it comes at a time
when Kavanaugh is seen as a sure bet to overturn Roe versus Wade. And that
sure bet is not just a gut instinct you get from looking at the guy. It is
on the tape that we`ve got, that again, we believe it has never been
broadcast before tonight.

Brett Kavanaugh is already believed by his supporters and his critics alike
to be a surefire decisive vote to overturn Roe. But it`s not a theoretical
or academic argument when it comes to Judge Kavanaugh. It turns out we can
watch him at work on the subject, or at least we can hear him work on the

OK. So, this is the tape. This tape is – it`s from the Jane Doe case
from earlier this year during the Trump administration. Jane Doe as I
mentioned was a teenager being held by the Trump administration in a
shelter after she was picked up at the border. The ACLU sued the Trump
administration on her behalf after that girl realized she was pregnant, the
Trump administration did everything they physically could to block her from
getting an abortion despite the fact that she had the right to do that in
this country, a right that is currently protected by the Constitution,
whether you`re an immigrant or not, whether you`re a teenager or not,
whether you`re in custody or not.

The way that case went down is important. Even the government admitted
that they weren`t allowed to block this girl flat out from getting an
abortion if she wanted one. They had to be sort of cute about it. They
had to make it look like they were doing something else. It was physically
holding her and not letting her leave to go to the doctor to get the
abortion. So, that made it a difficult case to make, right? They`re not
allowed to just block her. They were just blocking her, but they had to
come up with an explanation that made it seem not quite that

So, here`s how the government`s intrepid lawyers tried to explain to the
court. The Trump administration that they were not completely blocking
Jane Doe`s access to abortion because in theory, they might be able to find
a sponsor, like a foster parent, to take custody of the girl and then maybe
that person, that sponsor would let the girl go to the doctor and get the
abortion. So, the government would keep blocking her from going to the
doctor but they said they were sort of looking for someone else out there.
Someone who, who knows, might someday decide to let her go to the doctor
someday. Somehow, maybe, somewhere down the road, right?

That logic is a little bit babanas but it also ignores that Jane Doe had no
control of whether she had a sponsor. The whole process of finding and
vetting and approving sponsors for these kids is conducted and overseen by
the U.S. government. Jane Doe had already been in their custody for weeks.
They had not made any progress finding a sponsor for her.

Well, on the tape of the D.C. Circuit Court of Appeals hearing, on this
girl`s case, the man who is now Supreme Court nominee Judge Kavanaugh,
turns out he really liked that argument from the government about some
theoretical sponsor that might come along sometime, someday, somehow, who
could maybe allow that girl to get an abortion sometime in the future. He
really liked that argument so the government could continue blocking her
abortion, until that fairy sponsor somebody arrived.

Well, this is the audio of the Jane Doe hearing in front of an appeals
court panel that included Brett Kavanaugh. This is October 20th of last
year. You will hear Brett Kavanaugh`s voice here. The other voice you`ll
hear is Brigitte Amiri, the ACLU lawyer who`s representing the teenage
girl, Jane Doe, in this case.


JUDGE BRETT KAVANAUGH: Both sides seem to agree under current Supreme
Court law, the government can`t block the abortion. And my question, I`ll
start with you, as I did with the government. Doesn`t the sponsor option,
if it`s effectuated, resolve the case? If it could be done by Tuesday, for

BRIGITTE AMIRI, ACLU LAWYER: Your honor, I`m not sure that –

KAVANAUGH: Or Friday and we have a couple weeks at most. I realize you`ll
say that each day matters and I understand that. Completely understand
that. But if the sponsor could be identified quickly, a sponsor, isn`t
that a best case scenario for J.D.? Because J.D. has a sponsor then and
also if she chooses, obtaining an abortion that she has so far elected to

AMIRI: I have no doubt that J.D. would rather be with an extended family
member rather than a government funded shelter. But I understand that
process takes a significant amount of time. There must be a vetting
process, a home visit. My understanding, it could take months.


MADDOW: It could take months. And for the teenager who was already
pregnant, who is already being barred from going to her doctor`s
appointments to get an abortion, the clock is ticking, right? And that`s a
point that the ACLU lawyer made sure to press throughout the hearing,
right? Brigitte Amiri keeps making very, very clear that the delays
matter. That the delays here caused and have already caused at that point
real harm to Jane Doe, J.D., by forcing her already to stay pregnant when
she doesn`t want to be. By forcing her into a situation where the
pregnancy keeps getting further and further along.

And, of course, if you push it far enough, at a certain point, it would be
too late for her to actually get a legal abortion at all. And that seems
to be Judge Kavanaugh`s strategy here. I mean, listen to this next part of
the hearing. You`ll hear a third voice toward the end of this clip asking
about the timing. That`s another judge from the panel in this court, Judge
Patricia Millett.


AMIRI: What we`re talking about here is an unaccompanied immigrant minor,
17 years old, pregnant, who has been forced to remain pregnant against her
will for three weeks now because the government has blocked her abortion
decision. Every day she remains pregnant takes a toll on her physical and
emotional health. She is going to be pushed further later into her
pregnancy. She`s already been pushed from the first trimester into the
second trimester. The further we get, the further risks there are for her
and also, if we get so far, she`ll be forced to carry this pregnancy to
term against her will.

KAVANAUGH: At what point would you say that abortion will no longer be a
safe option in this case?

AMIRI: Texas bans abortions at 20 weeks in pregnancy.

JUDGE PATRICIA MILLETT: And she`s 17 right now?

AMIRI: She`s about 15 approximately.

KAVANAUGH: Fifteen is what you said yesterday, right?



KAVANAUGH: Or two days ago in the hearing, right, 15 weeks?

AMIRI: Approximately 15. But your honor, I would say, as you recognize,
every day matters for J.D. It`s been three weeks and it`s been three weeks
too long.


MADDOW: So, Jane Doe`s lawyer red flagging the urgency of the case. You
get the sense listening to the hearing, that Brett Kavanaugh understands.
He acknowledges the tight timeline, right? He asks follow-up questions
about it.

And the answers are very clear. Each passing day makes abortion procedure
riskier and gets the teenage girl closer to a legal barrier after which she
can`t get a legal abortion at all. They are forcing her toward that delay.

Well, after hearing all that, listening and responding and asking
thoughtful sounding questions, Judge Kavanaugh decided that what this
teenage girl really need, what Jane Doe really needed was to wait some more
– actually, to wait a considerably longer amount of time. Judge Kavanaugh
wrote the order in this case, ruling that the Trump administration should
get another 11 days to keep blocking Jane Doe from getting an abortion
while they continued to look for a sponsor for her.

So, that would push her pregnancy from 15 weeks into 16 weeks and into the
start of the 17th week. And at the end of that extra waiting period, Judge
Kavanaugh ordered the girl would still not be allowed to go to her doctor`s
appointment and get the abortion. At that point, she wouldn`t even be
granted the right to come back to Judge Kavanaugh and appeal again. He
ruled that at that point, in her 17th week, after the delay that he was
ordering, he would then order her to go back and start again at a lower
federal court and she could then try on get that lower court to rule again
that she can get the abortion.

And if she did get that ruling in the lower court, Judge Kavanaugh
specifically notes in his ruling, the Trump administration could then,
quote, immediately appeal back to him, where he would start considering the
matter all over again. At which point she would be pushing into her 18th
week if she`s lucky. More likely her 19th week, depending on courtroom
schedules. Abortion becomes illegal in Texas after 20 weeks. So you can
see where this is going.

What was that about 20 weeks? Somebody say something about every day
counts? How much longer can we make her wait?


KAVANAUGH: At what point would you say that the abortion will no longer be
a safe option in this case?


MADDOW: The way this worked out is that Judge Brett Kavanaugh`s ruling in
this case got overturned by the court a few days later and so, Jane Doe did
not have to abide by this schedule he had set for her and she was able to
get abortion that she was seeking. And Brett Kavanaugh wrote a long
blistering dissent, complaining about being overruled in that case. Many
legal observers now say that dissent was clearly part of his public
audition for the Trump administration to pick him for the Supreme Court,
which they did.

The Supreme Court nomination for a million reasons hasn`t been front page
news as much as you might expect, which at this point is a little strange.
Ask Americans if they want this nominee and the answer is no. Particularly
women say no. He is a historically unpopular choice which itself you would
think would make this nomination, if not a scandal, then at least a big
focus of national media.

Republicans have taken the unprecedented step of refusing to release his
paper trail from his time working in Washington before he went to the
bench. There`s even a live and strange controversy over whether Brett
Kavanaugh actually lied to the Senate the last time they held a
confirmation for him back in 2006. The head of the Judiciary Committee
actually referred Brett Kavanaugh to the Justice Department for potential
prosecution for lying to the Senate when he was first nominated to be a

But aside from the process of how they are trying to get him on the court,
aside from the strategy they are trying to use to get him on the court, on
this Roe issue, whether or not you`re part of the 71 percent of Americans,
there is a reason why people watching this nomination are quite perfectly
sure that a Justice Brett Kavanaugh would be the deciding vote to overturn
Roe versus Wade, and make abortion illegal, and part of that is what he did
just last year to try to push this 17-year-old girl, 15 weeks, 16 weeks, 17
weeks, 18 weeks – how far can we push this? Is it too late now? Is it
too late yet?

We`ll be right back.


KAVANAUGH: At what point would you say that abortion will no longer be a
safe option in this case?




KAVANAUGH: At what point would you say that abortion will no longer be a
safe option in this case?

AMIRI: Texas bans abortions at 20 weeks in pregnancy.

MILLETT: And she`s 17 right now?

AMIRI: She`s about 15 approximately.

KAVANAUGH: Or two days ago in the hearing, right, 15 weeks?

AMIRI: Approximately 15 but, your honor, I would say and I think as you
have recognized, every day matters for J.D., it`s been three weeks and
that`s three weeks too long.


MADDOW: That was ACLU attorney Brigitte Amiri pleading with the D.C.
Appeals Court judge named Brett Kavanaugh last fall to allow her 17-year-
old client being held in government custody to be able to physically leave
her shelter in order to obtain an abortion.

And whatever you think about abortion, that is her constitutionally
protected right before Texas makes it illegal at 20 weeks.

Senate Republicans have tried very hard to shift the focus away from Brett
Kavanaugh`s time at the White House where they don`t want to release his
White House records to his record on the D.C. appeals court bench. They
keep saying focus on his record, focus in his time as a judge. Well, his
record on abortion rights on the bench is this one decision in this Jane
Doe case and it absolutely speaks for itself.

Joining us now is Brigitte Amiri, deputy director of the ACLU Reproductive
Freedom Project, who argued this case before Judge Kavanaugh last fall.

Ms. Amiri, thanks for being here. Appreciate it.

AMIRI: Thanks for having me.

MADDOW: So, Brett Kavanaugh`s hearings start tomorrow. You personally
argued the only abortion case that he has heard as a judge. His decision,
had it stood, would have forced your client to have further delayed her
abortion. And it seemed like, listening to that hearing, looking at his
ruling and his ruling and his dissent early on, it seemed like his intent
was to delay things along that she was up against that legal deadline.

Was that your impression while arguing the case?

AMIRI: I don`t know necessarily what his intent was. But I can tell you
exactly how he ruled. And while the ACLU doesn`t oppose or endorse
nominees to the Supreme Court, we think it is important for the public and
the senators to know exactly what happened in the Jane Doe case. And I can
tell that you the decision that he issued would have forced Jane to remain
pregnant for weeks longer, and that meant not just the 11 days to try to
find a sponsor, which was a futile effort.

We knew that the government had been trying to find a sponsor for six weeks
with nothing to show of it. The process takes a long time. And that at
the end of the 11 days, it is not as if he said she`ll be able to obtain
the abortion. Instead, we would have to start the case all over again, go
back to district court, the government could appeal not just to the Supreme
Court which could have taken weeks as well, pushing her past the legal
limit in Texas.

So, regardless of what his intent was, the action that he took by issuing
this decision caused the delay of her abortion even further and could have
potentially meant that she would have been forced to carry to term, if it
would not been for further court intervention.

MADDOW: Did you know going into this case that he personally, as one of
the judges on the panel, would be a real obstacle for your client?

AMIRI: Everything was happening so fast. I didn`t really have a sense of
what to expect with the panel. And there was sharp questions on both sides
from the judges on the panel. So, I didn`t really have an indication and
then when we got the decision, I really realized what this meant, that we
would have to seek an emergency review of his decision to try to get it
overturned, which thankfully we did.

MADDOW: So, he got – he wrote the ruling. It was overturned. Then he
wrote this very big long, sort of now famous dissent arguing that his
ruling had been overturned. A lot of observers who aren`t necessarily
experts in your area of the law but who have closely watching Brett
Kavanaugh now, see that as his audition to be picked for the Supreme Court,
him trying to sort of display his bona fides as a real hardliner against
reproductive rights.

Do you think that`s a fair assessment?

AMIRI: I think that there are definitely cause for concern in that dissent
and in his original panel ruling that would be reason to think that he
could overturn Roe versus Wade, talking about the abortion on demand and
certain language that is really used by people who are opposed to abortion.
And also, just, you know, actions speak louder than words. What he was
going to do was push her further into her pregnancy, delay her further.

And this was a really easy case. Roe versus Wade says the government
cannot ban abortion. That`s what exactly they did for Jane Doe. It was an
easy issue. For him to say that this was a novel question is completely
contrary to 40-plus years of Supreme Court precedent.

MADDOW: What are you going to be watching for in the hearings when they
start tomorrow?

AMIRI: I`m going to be watching for really detailed questions from the
senators. And we want those questions to be asked about, you know, what,
what happened here and why wouldn`t you retain jurisdiction after those 11
days, and grant access to abortion at that point. And, you know, what was
the purpose of forcing her to wait for a sponsor, in any event, since she
had already gone to state court and gotten permission from a judge to
consent to the abortion on her own.

What was the – what was the purpose for doing that? So, these really
important questions that will peel back the layers of his position on

MADDOW: So, not just the 30,000 feet is Roe versus Wade settled law, but
actually going through with him, what he did when he had a chance to rule
on it in court.

AMIRI: Exactly.

MADDOW: Brigitte Amiri, deputy director of the Reproductive Freedom
Project at the ACLU, thank you for joining us tonight. It`s nice to see
you. Thank you.

AMIRI: Thank you for having me.

MADDOW: We`ll be right back. Stay with us.


MADDOW: The Center for Reproductive Rights is an organization full of
lawyers who fight for women`s access to abortion and birth control. They
lobby lawmakers and when that doesn`t work, they sue.

What they don`t do is politics. They`re a nonpartisan group. They do not
fight for or against Republicans or Democrats. They don`t take political
stances outside their field of policy. Except now.

For the first time in the 25-year existence of the Center for Reproductive
Rights, the groups has for the first time ever just announced that they are
fighting a Supreme Court nomination.

Quote: We do not make this decision lightly. We win cases before a wide
range of federal judges who have been appointed by both Republican and
Democratic presidents. As an organization which litigates cases in federal
courts, including in the U.S. Supreme Court, we are rigorous about factual
accuracy and careful legal analysis. We are a nonpartisan portion that
does not support or oppose political parties or candidates.

But the Center for Reproductive Rights says that Judge Brett Kavanaugh has,
quote, misapplied Supreme Court precedent on abortion rights and has,
quote, praised and applied – excuse me – praised and applied a narrow,
backward looking approach to defining the scope of individual liberty under
the Constitution.

Joining us now is Nancy Northup. She`s president and CEO of the Center for
Reproductive Rights.

Nancy, thank you very much for being with us tonight. I appreciate your


MADDOW: So this is an unprecedented thing and as you say, a decision not
made lightly. Why do something to put your organization on record against
Judge Kavanaugh when no other judicial candidate has ever occasioned that
from your group ever before?

NORTHUP: Well, our mission is to advance reproductive rights as
fundamental rights. And we do that in state and federal courts throughout
the United States. We`ve done it again and again in every major Supreme
Court case on abortion rights since our founding 26 years ago.

And right now, that mission is on the line. The access to abortion rights
for women in the United States is on the line with this nomination. And we
spent a lot of time going through Judge Kavanaugh`s writings, opinions,
speeches, and we have grave concerns about how he is going to decide
reproductive rights cases, and also grave concerns about his judicial

When you spend time going through those speeches, hearing about his
praising as his judicial heroes of justices like Rehnquist and Justice
Scalia and not just praising them generally but specifically for their
dissents in Roe, in Chief Justice Rehnquist`s case, and in Planned
Parenthood versus Casey in Justice Scalia`s case, and he is applauding.
And in those cases, what those justices said was Roe versus Wade was
wrongly decided and should be overturned. That should be high alert for
all of us and that is why we took the unprecedented step for the first time
in our history of opposing a nominee for the U.S. Supreme Court.

MADDOW: In the statement that your group Center for Reproductive Rights
put out announcing this again unprecedented step that you are opposing him,
you specifically say that he misapplied Supreme Court precedent on abortion
rights. What do you mean by that?

NORTHUP: Well, you`ve been talking this evening about the Garza case in
the D.C. circuit with the immigrant teen girl in custody and the way he
blocked her from getting an abortion, and then issued that blistering
dissent, as you say. Now, he purported to be applying the Supreme Court
standard which is that the government cannot impose an undue burden. But
he wasn`t doing that in that case. It was really clear in that case that
she had the right to access an abortion. She had already gone through the
process in Texas in which she had gone to a court and they found her able
to make the decision even though she was 17, that she wanted to have the

And despite that, Judge Kavanaugh would have kept her from being able to
effectuate this. That`s not following – and if you read the other
decisions in the case, it makes it really clear that he is not following
the current Supreme Court jurisprudence. If you think about it, he is not
following it as a lower court judge. What will happen when he is on the
Supreme Court? And he does not have to follow precedent if he doesn`t
agree with it.

MADDOW: Nancy Northup is president and CEO of the Center for Reproductive
Rights, which again for the first time in its 25-year history has taken a
stance against a Supreme Court nomination with the nomination of Brett
Kavanaugh whose confirmation hearings will begin tomorrow. Nancy, thank
you for being with us tonight. Much appreciated.

All right. We`ll be right back. Stay with us.


MADDOW: To be honest with you, sometimes covering the Trump White House is
like covering science fiction. Does this violate the laws of physics? Can
this actually even happen? The president just invented a country called
Nambia and he pronounces Nepal, nipple, right? It`s like, can my car fly
yet? Do cats have the power of speech?

Like sometimes it is super weird. It feels like covering the Trump
administration is like covering another planet entirely. How do you even
do this?

But sometimes it`s familiar. It is familiar from the last time a
Republican was in the White House. For example, John Bolton is back, old
John Bolton. Remember him from the George W. Bush era?

Elaine Chao, she was labor secretary under George W. Bush. Now, she`s
transportation secretary under Donald Trump.

George W. Bush`s deputy chief of staff was Joe Hagan. Donald Trump hired
the same Joe Hagan for the exact same job last year.

So, on the planet where the Trump administration is just the next
Republican administration after George W. Bush, it was a bit of a yawner
when Trump announced that his latest nominee to the Supreme Court would be,
surprise, a Bush guy. And probably the most Bush guy he could have found.

Dating back to the year 2000 when the Bush campaign dispatched this guy to
work on the Florida election recount. The following year, Brett Kavanaugh
landed a primo position working in the George W. Bush counsel`s office.
Brett Kavanaugh was later promoted to White House staff secretary for
George W. Bush. That`s a low profile but crucial and influential position
in which he managed the flow of all documents across the president`s desk.

Brett Kavanaugh was there at the closest range inside the White House
during the George W. Bush years for a lot of those years. By the time he
was nominated to become a judge on the D.C. circuit court of appeals, it
was actually not a great time for Brett Kavanaugh to be such a Bush guy.
In large part because the country was reeling from revelations that the
George W. Bush administration had been secretly writing policies to try to
legally justify torturing people which they were doing in secret prisons
around the world.

By the time Kavanaugh`s confirmation hearing rolled around in 2006, his
nomination was seen as highly controversial. It languished for years
before they finally get him through. And the Bush torture policy that had
been developed during Kavanaugh`s time in the White House, they had become
a huge political problem for the Bush administration.

So, senators, when he was up for confirmation in 2006, they wanted to ask
Brett Kavanaugh about that issue, both because of his close proximity to
the inner workings of the Bush White House where those policies were
developed but also because the D.C. court of appeals to which he had been
nominated, that`s the court that has exclusive jurisdiction over cases
involving things like Guantanamo. Add all that to the fact that a previous
George W. Bush judicial nominee had actually been confirmed to a federal
court without senators ever figuring out that that guy had actually
authored a key torture memo. They only found out about it after the dude
was confirmed.

And it was clear at that time that senators didn`t want to get caught out
with another of those Bush White House guys. And it was important. It was
a pressing foreground issue at the time for senators to figure out whether
this guy, Brett Kavanaugh, was also involved in the crafting of some of
those torture related policies.


SEN. DICK DURBIN (D), ILLINOIS: What was your role in the original Haines
nomination and decision to renominate? And at the time of nomination, what
did you know about Mr. Haines` role in crafting the administration`s
detention and interrogation policies?

KAVANAUGH: Senator, I did not – I was not involved and I`m not involved
in the questions about the rules governing detention of combatants. And,
so I, do not have any involvement with that.

SEN. PATRICK LEAHY (D), VERMONT: What about the documents relating to the
administration`s practices and policies on torture? Did you see anything
about that? Did you first hear about that when you read about it in the

KAVANAUGH: I think with respect to the legal justifications, or the
policies relating to the treatment of detainees, I was not aware of any
issues on that or the legal memos that came out until the summer, sometime
in 2004 when there started to be news reports on that. This was not part
of my docket either in the counsel`s office or as staff secretary.


MADDOW: I was not involved in questions about rules involving combatants.
That was not part of my docket. Brett Kavanaugh`s answers there did end up
being good enough for the Senate. He got confirmed to the D.C. circuit
court later that year.

Typically, that`s the end of the story when it comes to judicial nominees,
right? After confirmation hearings, judges are left to their own devices.
It`s a lifetime appointment, right? They just do their thing. It`s not
like they check back in with the Senate.

But it didn`t go that way for Brett Kavanaugh. In the months after his
confirmation hearing, we were still learning new things about how the Bush
administration`s torture policies were crafted. In June, 2007, with Brett
Kavanaugh newly seated on the bench at the federal appeals court in D.C.,
the “Washington Post” published a ground breaking news report that included
new details about a big, important, heated meeting at the George W. Bush
White House that had taken place years earlier. It was about the treatment
and legal status of so-called enemy combatants and one of the White House
lawyers who participated in that crucial meeting was Brett Kavanaugh.


ARI SHAPIRO, NPR: In 2002, Kavanaugh was involved in a White House
conversation about detainees. The meeting was about American enemy
combatants such as Jose Padilla and Yaser Hamdi. Kavanaugh used to clerk
for the Supreme Court swing voter, Justice Anthony Kennedy, and he advised
the White House lawyers at that meeting that Kennedy would probably reject
the president`s claim that American combatants could be denied access to a
lawyer. That meeting was first reported in the “Washington Post” and NPR
independently confirmed the details with multiple sources.

Now, remember, Kavanaugh told senators –

KAVANAUGH: I was not involved and am not involved in the questions about
the rules governing detention of combatants.

SHAPIRO: Now, Senator Durbin says he feels –

DURBIN: Perilously close to being lied to. I will just say that he
decided he could split the difference here and give me an answer in
negative, but he had to know he was misleading me and the committee and the
people who are following this controversial nomination.


MADDOW: This controversial nomination, the first time he was nominated.

So, this is kind of a big deal, right? A U.S. senator accusing a federal
judge of basically having lied under oath, deliberately misled the
committee during his confirmation, misleading senators and the American
public in the process, right?

Pretty good evidence to back it up, right? Nobody is contesting this new
public reporting at the time that Kavanaugh did, in fact, take part in
policy discussion and a White House debate even though he denied under oath
that he had done so on this issue.

So, what do you do when this happens, right? He`s already confirmed to
that federal appeals court at this point, lifetime appointment. What are
you going to do?

You do not have very many options. I mean, you could censure that judge,
basically a slap on the wrist, but one that tends to have a lasting impact.
That idea was floated for a millisecond.

You can also try to convince the judge in question to recuse himself from
cases involving this thing he appears to have lied about. That would seem
like a relatively doable fix. After all, judges really shouldn`t rule on
policies that they had a role in creating. Senator Durbin tried that with
Judge Kavanaugh, suggesting he should recuse. But Judge Kavanaugh
apparently did not care. He never started recusing.

Actually by then, it was too late anyway. The very first case Brett
Kavanaugh oversaw on that appeals court once he was a new judge was a case
involving prisoners held in Guantanamo. So, then, the chair of the
Judiciary Committee in the Senate, Senator Pat Leahy at the time sent a
letter to the attorney general at the time, sent a letter to Attorney
General Alberto Gonzalez asking him to open an investigation into Judge
Kavanaugh lying under oath in order to get his seat on that appeals court.
Leahy tried, referring Brett Kavanaugh for possible prosecution for having
lied to the Senate to get confirmed to that seat. But all to no avail.

And so, for the last 11 years, Brett Kavanaugh has been carrying on on that
appeals court, just not commenting at all, not engaging with this question
ongoing question of whether or not he lied under oath in order to get that
seat on that court. And, of course, he has not been recusing himself from
cases involving the policies he apparently helped shaped in the White
House, despite his testimony to the contrary.

Well, now that mess is about to sort of come due finally. Democrats have
said that they`re absolutely planning on bringing this up again when Brett
Kavanaugh`s confirmation hearings for the Supreme Court begin tomorrow.
And this particular controversy, this is why they have been trying and
failing so far to get access to documents from all of Brett Kavanaugh`s
five years in the George W. Bush White House because Democrats on the
Judiciary Committee say that even with the few documents they have been
given access to for his nomination, they`re already seeing evidence in
those documents that further undercuts Kavanaugh`s assertion that he didn`t
have any involvement in terrorism policies.

So, judiciary Democrats say even those documents they have reviewed on the
committee, those are being withheld from public view by the committee
chairman, Chuck Grassley. Democrats want those released so the public can
see it themselves. That`s one thing to keep an eye on, as these hearings
get started tomorrow, to what extent Brett Kavanaugh`s 2006 confirmation
hearing comes back to haunt him tomorrow.

But there`s just one last point I will make on this. That letter written
by Senator Pat Leahy in 2007 asking the attorney general to open an
investigation into whether Brett Kavanaugh lied during his confirmation
hearing, that letter didn`t go unanswered.

Months after Leahy sent that letter, the Justice Department did respond to
him. They said, don`t worry. They said they had, quote, reviewed this
matter and determined that there was not a sufficient basis to initiate a
criminal investigation of Brett Kavanaugh. Justice Department official who
signed that letter, the letter basically exonerating Brett Kavanaugh here,
saying he wouldn`t be prosecuted, that official is named Brian Benczkowski.
At the time, he was the principal deputy assistant attorney general in the
Justice Department.

Now, he too is back as the head of the criminal division in the U.S.
Department of Justice. He is literally the exact guy that excused Brett
Kavanaugh of any wrongdoing for lying to Congress in his 2006 hearing.

Now, Brian Benczkowski is back in the Trump administration fresh off a
stint doing legal work after the campaign for a Russian bank called Alfa
Bank with its ties to Vladimir Putin. Brian Benczkowski is now back at the
Justice Department. And now, he is the head of the criminal division.
He`s in charge of enforcing all federal criminal laws in the United States,
including the crime of lying under oath.

For years now, Brett Kavanaugh has been able to dodge any fallout from
these serious accusations that he lied during his confirmation to get an
appeals court seat. In part, thanks to administration officials who were
there then and are back there now. But it is likely that tomorrow`s
hearings will offer very little opportunity for him to skirt questions
about this particular thing anymore.

Watch this space.


MADDOW: That does it for us tonight. We`ll see you again tomorrow night.




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