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Kavanaugh vote hangs in the balance. TRANSCRIPT: 10/4/2018, The Beat w Ari Melber.

Guests: Jeff Merkley, Jackie Speier, Frank Montoya Jr., William Scheuerman, Robert Smith, Joel Heitkamp

Show: THE BEAT WITH ARI MELBER Date: October 4, 2018 Guest: Jeff Merkley, Jackie Speier, Frank Montoya Jr., William Scheuerman, Robert Smith, Joel Heitkamp

CHUCK TODD: Good evening, Ari.

ARI MELBER, MSNBC HOST: Good evening, Chuck.

We are beginning the night with these massive protests over Brett Kavanaugh.



MELBER: You`re looking at the scene that unschooled over much of the afternoon in Washington. That`s directly inside the Senate Hart Building and that is a type of civil disobedience. Fury unleashed there. Officers removing many of the protesters you`re seeing on screen forcibly. And the report, of course, in the FBI has come out today for senators` eyes only, looks into the allegations of sexual misconduct against Brett Kavanaugh, allegations he has publicly denied.

And tonight, we are hours from the scheduled vote for tomorrow morning. And let me be clear right now. Anyone telling you they know what happens next, what`s going to happen tonight or tomorrow morning, is overconfident. Because the only thing that we know from what`s been publicly stated by Senators is a whip count of 48 to 48. Those are public commitments which effectively could change, would tell you the state of play, a tie.

Four key senators remain publically undecided. Now, the protests also put pressure on Republicans gathering there. Strategically, you`re looking at shots inside Senator Susan Collins office. She hasn`t announced her public position. Activists confronting Democratic Senator Joe Manchin, also undecided.


UNIDENTIFIED FEMALE: How are you not listening to us as survivors?

SEN. JOE MANCHIN (D), WEST VIRGINIA: I am listening to you.

UNIDENTIFIED FEMALE: Are you? You`re going to get in this elevator? Look, how are you going to vote? Tell me.

MANCHIN: Step back.

UNIDENTIFIED FEMALE: How long is it going to take you to listen to us?


MELBER: You see the direct pressure there on Mansion who is a Democrat in a red state. Meanwhile, Senator Jeff Flake with the Republican, of course, who is one of the key swing votes is according to "The Atlantic" tonight still having issues. And he`s reached out to a friend, you may have seen them together on TV this week, Senator Chris Coons to discuss all of this. We haven`t confirmed that report at NBC.

Meantime, red state Democratic Senator Heidi Heitkamp announced, and this is new as of today, she is a no vote on Kavanaugh. That`s a change. The five day FBI investigation itself has come under a lot of scrutiny and the reports not yet public and we don`t have a copy of it. It might never make its way out. Democrats asking why only nine witnesses were questioned.

Now, coming up, we`re going to speak directly to Kavanaugh`s Yale classmate who says he wanted to speak to the FBI about all this, but he didn`t get an interview. And I also have on the show tonight, this should be interesting, a conservative retired judge who had supported Kavanaugh and has now like others retracted his support. That`s later in the show.

The politics also boiling over leading Republicans who you may remember spent a lot of time trying to delicately handle the optics, even hiring in a temporary partisan staffer to do the questioning of Dr. Ford. Well, you`re looking at how that`s all changed today. This was the scene they chose. They could have brought anyone out for this press conference but instead, it was all male.

That`s a change from a week ago when they, as I mentioned, they hired a female lawyer to do the questioning. And they unleashed their motions.


SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: Everything about whether he`s qualified to serve has been brought up.

SEN. ORRIN HATCH (R), UTAH: The politics of baseless, personal destruction has no place here.

SEN. JOHN CORNYN (R), TEXAS: The shameful intimidation tactics that have been employed is part of an orchestrated smear campaign.

HATCH: I personally resent what`s been heaped upon him. It just isn`t right, it isn`t fair.

GRASSLEY: They just about destroyed a good person.


MELBER: I`m joined by Senator Jeff Merkley who`s called the Kavanaugh investigation a type of cover-up and he`s trying to make a legal intervention to stop the confirmation vote itself.

I begin with your rebuttal to what we just heard, your response to the chairman of this committee, Grassley, saying that we are on the precipice of destroying Brett Kavanaugh.

SEN. JEFF MERKLEY (D), OREGON: Think about the contrast from 1991. When Anita Hill came forward, there was a thorough background investigation reopened. There were three days of testimony. There were multiple, multiple witnesses. In this case, not a single individual that Debbie Ramirez said, "Talk to these people." She gave a list of 20 people, not one was talked to.

Dr. Ford said here are eight people who have corroborated information, not one was talked to. The FBI is not at fault here. They can only talk to people as instructed by the White House in this situation. It`s not a criminal investigation. They are serving at the call of the president. The president gave a scoping document, as it`s referred to, that basically rigged the situation so that not one of those 28 individuals with corroborated information had a chance to tell their story and provide that information to the U.S. Senate.

MELBER: I wonder what you think is the reason for the shift as I mentioned in our lead report tonight from last Thursday, exactly a week ago, where there was a concentrated effort to have a restrained or even respectful and rational approach to Dr. Ford to what we`re seeing now? My job is to report the news. We search for all sorts of ways to make sense of it, to come up with words and storylines.

What I`m about to show you, Senator, a colleague of yours. My words, not yours, sir, can only really be described as a type of long-running tantrum that Senator Lindsey Graham has been having. More from him today, as well as Mitch McConnell. Take a look.


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: You`ve humiliated this guy enough and there seems to be no bottom for some of you.

UNIDENTIFIED FEMALE: If he would take a polygraph, it will all be over Senator Graham.

GRAHAM: So why don`t we dunk him in water and see if he floats.

SEN. MITCH MCCONNELL (R), KENTUCKY, SENATE MAJORITY LEADER: For goodness sake, this is the United States of America. Nobody is supposed to be guilty until proven innocent.


MELBER: What is your view of that rhetoric, this effort to tap into a kind of anger over this? If a Martian landed today and followed the body that you serve in the Senate, they would think this man was about to lose life, limb, and home, lose his career, when in fact he has at least a standing chance, a decedent chance, 48 to 48 of being promoted to one of the most powerful lifetime posts in the country.

MERKLEY: No, absolutely. Think about the fact that there are so many things that are disturbing here. One is that in 2006, he did a number of presentations that according to senators like Senator Durbin who were there were at best misleading, but pretty much outright lies. And then again in the hearing last week, numerous instances of misleading the Senate or lying to the Senate.

And then, of course, we have this fact that several women came forward at great personal risk to share their story. And how are they being treated? They are being treated as if they are criminals by this Republican majority. They brought in a prosecutor. That whole setting last week that you gave a better description of it, a nicer description of it but they basically brought in a prosecutor to put her on trial.

MELBER: To cross-examine Dr. Ford.

MERKLEY: Yes, to cross-examine Dr. Ford. So the treatment of women here - - I can tell you so many women have called my office to share their story, have written to my office to share their story of the fact that they were assaulted at some point in their life, often not sharing it with anyone, often have reverberations for years and years and years.

It was a gutsy thing for women who are treated often by powerful white men as if they are the problem, instead of an honest presenter of information. And what happened? Well, this group of white Republican men, they are 11 in the committee, persuaded to treat these individuals as if they are dishonest, unacceptable, and even as if they are the criminal that needs to be prosecuted. It`s a horrific, horrific conduct by my colleagues.

MELBER: Well, you put it in the wider context, Senator which is how it`s impacting people across the country, as we continue to reckon with how to adjudicate these issues. And it doesn`t mean we know where every single one of them lands. We certainly, I think to your point, need to afford fairness and respect throughout the process. And some of that is certainly lacking right now.

Senator Jeff Merkley, thanks for spending time with us tonight.

MERKLEY: You`re very welcome.

MELBER: Thank you, sir.

We go now directly to Democratic Congresswoman Jackie Speier who has been a leader on this issues. As well as Frank Montoya, he`s a former FBI special agent in charge with a kin understanding of where the FBI fits into all of this. And also Jennifer Rubin, a conservative writer for "The Washington Post." She says Republicans misogyny under Trump may ultimately come back to "Haunt them".

Congresswoman, I begin with you given what your colleague in the upper house, the upper chamber, Senator Merkley was saying, that this is bigger than Dr. Ford and Kavanaugh, that people around the nation are having these conversations, and that we`re seeing that, of course, in the body with so many people charging the Senate Hart Office Building. What was on your mind when you saw those protests today? And do you think this is still a 48-48?

REP. JACKIE SPEIER (D), CALIFORNIA, INTELLIGENCE COMMITTEE: I must tell you, in many respects, still like the whole process has been rigged. If anyone`s been on trial here, it`s been sexual assault victims. Dr. Ford gave the most incredible testimony. She had the president of the United States saying she was credible. And yet, then he mocked her within days after making that statement.

This is a ram job. This is clearly a McConnell effort to get the Nirvana they`ve been seeking for a long time. Having a majority of conservative justices on the Supreme Court guarantees them 30 years of being in control. And I guess what I`m most concerned about right now is that men and women of this country who are sickened by what they`ve seen will go to the polls and vote because Congress still has a voice here. We still have the power to check and balance the other two branches of government and we need to stand up.

MELBER: Jennifer, what were you getting across in your piece, speaking as a conservative fellow traveler so to speak?

JENNIFER RUBIN, OPINION WRITER, THE WASHINGTON POST: First of all, I just want to comment on that appearance by those senators today. They are so emotional, almost hysterical. I would make a joke about it that they`re behaving, you know, as if it`s their time of the month but this is very very serious.

MELBER: It is serious, Jennifer. Although, you have the right to call the male Senate press conference hysterical on this show. You have that right.

RUBIN: Well, thank you. Yes. I mean I think what we saw in the last week was a transformation. They decided -- instead of going from a respectful van where they were going to defend their guy but not attack her, they decided to make women the object of their ire and their malice. This is a deliberate strategy to whip up their mostly male and mostly white, mostly non-college educated base. And they do this at the expense of women.

They don`t care whether they`re dissuading women from coming forward. They don`t care whether they have made a mockery of their own words assuming the respect for these people. This is a strategy and that`s why you see the hysteria. That`s why you see the president viciously mocking a victim of sexual crime.

MELBER: Let me ask you to build on that. You just used the word strategy. I think that`s important because we were discussing this earlier in planning the show, how emotion can be used as a way to override rationality. We see that in certain court defenses. We certainly see it here. So what you`re saying is we`re seeing Senator Graham freak out and we`re seeing the failings of those male senators in the press conference, which again unlike the judiciary committee, they can bring anyone to the conference. They chose to run it that way. You`re saying it`s not just a freakout, it`s a strategy.

RUBIN: I think there`s an element of emotion because I think these guys are unhinged. They feel like they`re losing something. But it absolutely is a deliberate strategy. When you have the president of the United States come out and attack the victim, when you have his senior advisor come out and say, "Oh, she`s been treated like a Faberge egg," that is meant to inflame. When you hear the president say, "It`s a time that men have to be afraid," that`s an attempt to inflame emotions, to transfer the victimology to a rich, white, appellant court judge and say, "No. You guys are the victims. And aren`t you all mad about it?"

This is what he did throughout the campaign, throughout his presidency. He usually does it with the emphasis on the white. Now, he`s doing it with the emphasis on the white male and this is male part of it, but it`s the same strategy that he`s used against immigrants, that he`s used again, and, again because that`s how he is able to bond with his base, through this anger and this resentment.

MELBER: Frank, as an FBI expert, walk us through what we are to make of a report that, of course, we can`t see, but is being described by some as either inconclusive because they weren`t there to actually do forensics on what happened and by others as Republican say, "Well no, it maybe shows there isn`t corroboration on the underlying allegation."

FRANK MONTOYA JR. FORMER FBI SPECIAL AGENT: I think Jennifer is exactly right when she uses the word mockery. I mean it is a mockery of any kind of a legitimate investigation. There`s a lot of people like to say that this is not a criminal investigation. It isn`t, but even in a background investigation, you are looking for the truth. You`re following the facts and you pull on these threads until there are no more threads to pull on.

In this case, that simply just hasn`t been done. There are a vast number of people, you know, if we`re to believe all the reporting out, that have not been contacted, to be talked about potentially derogatory information about a candidate for a seat on Supreme Court. So one, it makes no sense and two, it is clearly not an investigation in the way that I have always understood an investigation to be defined.

MELBER: Congresswoman, so where do you see this going? We touched on this earlier but as an expert there inside Congress, you`ve got some folks predicting the outcome. You`ve got the questions around Flake and Murkowski. What do you see happening here?

SPEIER: Well, I think that in all likelihood that he is going to be confirmed and it`s going to be a very sad day for the Supreme Court because if you compare Neil Gorsuch and his very moderate balanced approach to a man like Brett Kavanaugh who is attacking, who is vicious, who had a short fuse and who is very political. He has a political hat and should be identified as such. It`s a sad day for the judiciary in this country.

And I would say from the congressional standpoint, the victims deserve a fulsome investigation. That`s what Senator Flake wanted to see. When only 9 out of 40 potential persons were actually interviewed, that`s a sham. And when you don`t have Dr. Ford given the opportunity to expand on her testimony, to give additional information, she only answered the questions that were presented to her. There are many more questions that could be presented to her. And yet they didn`t speak to her and they didn`t speak again to Kavanaugh. I think it`s pretty obvious what they`re doing here.

MELBER: Right. I think what you said makes a lot of sense. There is a question about well, how many people are you going to get when you go after that second and third ring of sort of sources and knowledge and that`s a debatable thing. The notion that you`re looking at an allegiance in the room that allegedly has three people in it and you don`t talk to some of these original three is certainly odd.

Congresswoman Speier, Frank Montoya, Jennifer Rubin, thanks to each of you.

Coming up, we`re doing mainly what the FBI won`t. We`re going to talk to Yale classmate who says the FBI didn`t call him back. The feds didn`t get their side of the story but you will as part of our coverage.

Also, a conservative judge who had supported Kavanaugh pulls back after comments like this.


KAVANAUGH: Revenge on behalf of the Clintons and millions of dollars of money from outside left-wing opposition groups.


MELBER: And I have a special report for you tonight on something that merits more attention before this vote is final. Kavanaugh`s apparent conflicts and where he might have to recuse or disqualify himself.

And then later, my interview with the brother of the red state Democrat in the Senate who is in the news by coming out today no on Kavanaugh.

I`m Ari Melber. You`re watching THE BEAT on MSNBC.


MELBER: Tonight, everyone is talking about the FBI report into Brett Kavanaugh and two of the key Senators that pushed for it are backing it up. Susan Collins saying publically, "It appears to be a very thorough investigation." Jeff Flake saying that he didn`t see any additional corroborating information of Dr. Ford`s claim and says the report is basically, "Reassuring".

Well, that is one person`s opinion. And we, as I`ve stressed, are reporting on something we haven`t seen but we do know some of what`s not in there. This investigation which was set on a pretty artificial political timeline, it turns out has ignored dozens of potential witnesses. And I want to walk through this tonight because it`s important.

The FBI had spoken to nine people. That includes Mark Judge, who Dr. Ford said was in the room when she alleges that Kavanaugh assaulted her, as well as Kavanaugh accuser Deborah Ramirez. But according to NBC, more than 40 people with information never heard from the FBI and some of them have refuted parts of Kavanaugh`s claims. Consider what he said about Ramirez`s allegation that he exposed himself to her at a party in college.


SEN. JOHN KENNEDY (R), LOUISIANA: Are Ms. Ramirez`s allegations about you true?

BRETT KAVANAUGH: Those are not. If that has happened, that would have been the talk of campus in our freshman dorm.


MELBER: That`s quite a lawyerly answer. It would have been the talk of campus. That`s not saying that it was not directly which is potentially important. Because we`re learning that there are over 20 people that Ms. Ramirez`s lawyers told the FBI could be corroborating about the talk of campus with names like Kenneth Appold, a suitemate of Kavanaugh`s at that time who says people in the dorm were talking about it.

And telling "The New Yorker" he first heard about it either the night that it happened or within days and that he -- and this is one person. But he said he`s a hundred percent certain he heard Kavanaugh was the one who exposed himself to her. Now, even though he reached out to the FBI, he never heard back. Meanwhile, here`s something else. This potential perjury, not investigated.


SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: What this word alumnius made in that context?

KAVANAUGH: She was a great friend of ours. Went to dances with her. She hung out with us as a group. The media circus that`s been generated by this thought and reported that it referred to sex, it did not.


MELBER: Now, I want to be very clear, if there were claims of sex or sex that occurred there, none of that is an underlying activity is understood as being wrong for high school kids. But if the judge today can`t give a straight answer or worse, is lying about it under oath, that would be a problem that you`d want to know about in a background check before you get promoted.

And again, cue the evidence, Georgetown Prep student telling "The New Yorker", the claim you just saw there was not true. Now, this particular student is staying, ex-student I should say, as anonymous source and says that they reached out to the FBI and provided a sworn statement saying Kavanaugh talked about that same female student many times and "The impression I formed at the time from listening to conversations where Kavanaugh was present was that was the girl that was, `Passed around for sex`".

And writing, Brett Kavanaugh made up a rhyme about the girl that explicitly referred to sex. Another avenue that these FBI investigators could have probed was whether Brett Kavanaugh was accurate about those, now infamous phrases in his yearbook.


WHITEHOUSE: Devils triangle?

KAVANAUGH: Drinking game.

WHITEHOUSE: I don`t know if it`s buffed or boofed. How do you pronounce that?

KAVANAUGH: That refers to flatulence, we were 16.


MELBER: Again, in isolation, who cares? But if that is a pattern of lying under oath while being a sitting federal judge, that`s a problem. And it goes again to what the FBI was able to look at, Kavanaugh`s freshman year roommate saying this.


JAMES ROCHE, BRETT KAVANAUGH`S COLLEGE ROOMMATE: I was shocked when I heard that because, you know, those words were commonly used and they were references to sexual activities.


MELBER: And then there was this man who shared a room with Kavanaugh. Was he questioned by the FBI?


ROCHE: I was his freshman year roommate. And if you wanted to know how somebody behaved in college, which is a time where -- especially that transition from high school to college where people are likely to have done something that express something that might have been a problem, that they would have contacted me. I`ve never been contacted about Brett by the FBI ever.


MELBER: Never contacted. Meanwhile, today, Dr. Ford`s lawyer saying to the FBI they had a list of names that they did want to interview that were not. Investigators, as I mentioned earlier in the show, didn`t talk to Dr. Ford either or Judge Kavanaugh. The FBI not talking to those people. But, of course, the Senate can talk to anyone it wants to in this process.

We know Kavanaugh`s one of the most controversial nominees, if not since Clarence Thomas, then probably all the way back to Robert Bork. So will we as a nation hear from these people that the FBI didn`t talk to? Well, on THE BEAT tonight, the answer is yes. One of them is here when we`re back in 30 seconds.



SEN. DIANNE FEINSTEIN (D), CALIFORNIA, RANKING MEMBER JUDICIARY COMMITTEE: It looks to be a product of an incomplete investigation.

SEN. TIM KAINE (D), VIRGINIA: The whole thing is a sham. Five days to do the investigation.

SEN. CORY BOOKER (D), NEW JERSEY: It`s very frustrating they didn`t do a thorough investigation.


MELBER: Democrats debating whether this was thorough at all with Republicans who say the FBI has done enough.

Well, my next guest agrees with the Democrats. William Scheuerman went to Yale with Brett Kavanaugh. He writes about living with Brett Kavanaugh and the FBI never returning his call. I`m also joined by Judge Robert S. Smith, a conservative former federal appeals court judge who had supported Kavanaugh but has now withdrawn that support writing, "I blame him for letting his anger impair his judgment. He needs to learn the words I`m sorry."

And as if that wasn`t enough tonight, folks, we have counsel to THE BEAT, Maya Wiley, former counsel to the mayor of New York and an MNSBC legal analyst. Thanks to all of you for being here for a substantive discussion.

I start with you, Mr. Scheuerman. As the roommate, what happened when you tried to reach the FBI? What did you want to convey?

WILLIAM SCHEUERMAN, KAVANAUGH`S YALE CLASSMATE FBI DID NOT RETURN CALL: Well, I wasn`t the roommate. Let`s be clear about this. I lived in Lawrence Hall during the same time --

MELBER: Oh, excuse me. Hall mate.

SCHEUERMAN: Hallmate as well. Yes, I lived down the hall. I put it this way. I lived in Entryway A. The event was -- the alleged event with Debbie Ramirez took place in Entryway B. What I tried to supply to the FBI was a list of names of people who were likely at that party. I had learned from colleagues here at my university that the FBI may not have had that. One can assume these things and I thought that would be useful information.

The FBI didn`t get back to me. At first, I thought nothing of it. I thought they were on top of their game. And then I started getting e-mails from classmates, other residents of Lawrence Hall and it turned out a lot of people, including people who had some truly important information were not being contacted by the FBI. And, of course, this is extremely unsettling.

MELBER: Is your view that you and/or your classmates have reason to think that Ms. Ramirez was credible?

SCHEUERMAN: I think it`s credible. I do think we need an investigation and I think what`s being called an investigation is not. It`s a con job. And I say that -- I don`t say that lightly, but I will say that because, in fact, people I provided names, I know other names were provided by Debbie Ramirez`s lawyer. I know and I think you just mentioned this on the program, one of my old friends can corroborate that Debbie Ramirez talked about this back in 83, `84 with him. He approached the FBI and the FBI did not contact him.

And there seems to be a pattern here of not just the usual sort of bureaucratic neglect or benign neglect, but of a conscious effort to make sure that some of these stories don`t get out there. And that, of course, is extremely problematic. We need an investigation before we can reach, you know, a final judgment on this whole thing and we did not get that.

MELBER: Maya, what does that say to you? Because one of the key ways that you can corroborate claims against people, prominent people, famous people because there can be reasons that people may come forward falsely, is whether there was earlier corroboration.

MAYA WILEY, FORMER COUNSEL TO NYC MAYOR: Right, exactly. I mean anytime you`re trying to assess what happened, your -- and you have two different people saying opposite things, what you`re looking for is what kind of confirms the credibility of either of them. And key evidence to that is whether or not they told people at the time that something that they said happened and whether they tell it in the same way, right.

Does the story change? Does the story stay consistent? And that is corroborating evidence. And I think that is what`s so disturbing about essentially handcuffing law enforcement here by not allowing FBI to do their job.

MELBER: Judge, we live in a world where many people bring their ideology or their hopes to how they view these conflicts. You are a judge so if you were any good, your job --


MELBER: You`re a retired judge. Your job was to look at the evidence, not preconceived notions and you up until recently were a Kavanaugh supporter. What evidence changed your mind?

SMITH: Well, it`s -- for me it`s entirely about the -- Dr. Ford. I`m not worrying about the Ramirez allegation which I regard as unproved and I`m not really in favor of turning over every rock to see if you can prove it. With Dr. Ford, I listen to her story. I found it compelling. I find it almost impossible to believe that nothing happened between her and Judge Kavanaugh. And I was very disappointed in his testimony.

I understand that he`s been through a horrible experience and I want to say that he`s someone I had admired and thought very well of and perhaps in some ways still do because he`s had a distinguished career for decades. But I was very -- I thought it was a very disappointing testimony and I to me you`ve got an allegation of serious wrongdoing. It`s not -- it`s a credible allegation, it`s not credibly denied. If I had to make this decision, I would say it`s just not right to confirm the nominee and I would say that very unhappily because in my opinion is an excellent nominee.

MELBER: Well, that speaks volumes that you may reach that decision with sadness but you reached it based on the evidence. I also want to dig into something that I know you`re careful about I think we should all think about as viewers listen to you. There is a debate over what should be disqualified for nominees and that is a broad debate and we can all acknowledge that some of those standards have changed over time. And then there`s a debate about how nominees go through the vetting process. What was your view of the way Judge Kavanaugh handled himself on Thursday and if you find Dr. Ford credible, does that mean in tandem you found him less than credible or potentially perjurist as a sitting federal judge.

SMITH: Well, I`m not going to throw around the word perjury but I was not happy with it. I`ve already said. I was unhappy with this testimony. I was particularly upset with the one that someone referred to earlier the idea that you use a girl`s name with the word alumnus as a caption to a group of football players and he tried to sell the idea that this was a respectful display of platonic friendship. I just don`t buy it. And it to me it`s upsetting because it suggests that if he`ll deny that what won`t he deny and it doesn`t -- it isn`t the fact that he was once a kid who drank too much and behaved badly -- and I don`t know how badly behaved and it`s probably not disqualifying if we know all the facts but he really ought to recognize that.

MELBER: Maya, I wonder what you think of the Judge`s clear point here that can get lost and the wider and important discussion of how we deal with sexual assault which is that even if you hold out the idea that there could be a genuine disagreement about long ago facts well what the what the judge is saying here on THE BEAT is you have a nominee, a sitting federal judge appearing to mislead in clearly provable ways the Committee as he is considered for this promotion.

MAYA WILEY, MSNBC LEGAL ANALYST: Absolutely. So I think -- we have a judicial code of ethics actually for the federal bench and Judge Smith is someone who has upheld those ethics I think in his career is a perfectly important person to listen to on this. The importance of the bench of the of judges is to be unbiased but also to demonstrate integrity, truthfulness, and honesty as part of that integrity when that is not in evidence or that there are sufficient questions if that`s not the case. We actually lose credibility in our judicial system and that`s thing we have to protect. So even if -- it`s not about whether Judge Kavanaugh is guilty of a crime, it`s about whether Judge Kavanaugh as someone who would become a Justice Kavanaugh continues to uphold the credibility of the bench.

And one other point is the American Bar Association in 2004 gave him the Gold Standard right as the Republicans often say when they evaluated his qualifications. Well, in 2006 they downgraded that in part because they felt like he was demonstrating bias. And then by this nomination process there -- they actually called for a full investigation that has not happened, so part of what we`re seeing is even the neutral bodies including the 1,700 law professors that have said on this issue, on the issue of the credibility of the bench and the appearance of bias and honesty, this is a significant disqualifying issue.

MELBER: It`s put very well here at a panel with people who know a lot about it. I should mention on a personal note, Judge Smith in Maya Wiley know each other from Brooklyn as we say around here BK to the fullest.

SMITH: Yes, that is true. That`s absolutely true. We do know each other from Brooklyn. I am not -- I wanted to associate myself slightly from the idea that Judge Kavanaugh has forever tainted himself from performing as a Supreme Court justice by his performance. I told you I didn`t like his performance, I`m not happy with it. He`s -- and I, if I had a, had a vote and were uninfluenced by political considerations, and you find a senator like that, I probably would vote no.

He may be confirmed. If he is confirmed, I have some hope that he`ll be an excellent justice. He`s been from everything I know an excellent judge for many years. I hope that this will prove an aberration and I really hope that people on both sides of this when it`s over and when it`s come out will respect the result and try -- and try to support the institution even if they`re not happy with the outcome.

MELBER: Well, the way you speak and you don`t get that many retired judges on T.V. and most sitting judges have reasons they can`t do T.V. interviews. What we get from you is something we could all use right now. I`m -- that`s my opinion which is a real measure judiciousness about trying to think through the facts apart from any bias. I appreciate you coming on the show Judge, Counselor, and my other guest Mister Scheuerman. Thank you all.

Coming up Senator Heitkamp is a no on Kavanaugh. I have her brother on the show but first our BEAT special report on potential conflicts of interests and my problems with Brett Kavanaugh`s problems. That`s next.



JEFF SESSIONS, ATTORNEY GENERAL, UNITED STATES: I have now decided to recuse myself from any existing or future investigations of any matter relating in any way to the campaigns for President of the United States.


MELBER: That was the recusal heard around the nation Jeff Sessions following DOJ guidance to recuse from the Trump campaign Russia probe because he was conflicted and too close to it. How does that standard apply to Bret Kavanaugh`s new potential conflicts? The issue matters whether he goes back to the D.C. Circuit or gets promoted this weekend to the Supreme Court. The first question facing Kavanaugh after last week is how should he approach cases of sexual misconduct that come before him on the bench when we know that face with his own allegation, Kavanaugh went well beyond defending himself which he has every right to do, but lashed out had senators from one party and even took up conspiracy theories.

So litigants in his court may argue he violated the federal rules on judicial conduct which bar the appearance of impropriety defined broadly as conduct that leads reasonable people to think the judges honesty integrity and partiality or temperament is impaired. Did Kavanaugh`s angry partisan defense impair his impartiality in future cases where a defendant`s conduct is under scrutiny just like his own? That is the first area for recusal in our special report.

Now, second, how can Kavanaugh rule on cases that involve the entire Clinton administration or Hillary Clinton after publicly blaming the Clintons without evidence for his own predicament?


BRETT KAVANAUGH, NOMINEE, SUPREME COURT JUSTICE: This whole two-week effort has been a calculated and orchestrated political hit fueled with a parent pent-up anger about President Trump and the 2016 election revenge on behalf of the Clintons and millions of dollars in money from outside left- wing opposition groups.


MELBER: That is just rank partisanship which these judicial rules forbid. Kavanaugh himself once said the most fundamental thing is avoiding even a semblance of that partisanship you just saw.


KAVANAUGH: You have to check those political allegiances at the door when you become a judge. You have to shed them. It`s very important the outset for a judge who wants to be an umpire to avoid any semblance of that partisanship. That`s the first probably most fundamental thing.


MELBER: The most fundamental thing. So how will Kavanaugh rule on cases that involve the Democratic senators doing their constitutional duty to vet him? After all, all kinds of laws that will come before his current court, the D.C. Circuit or the Supreme Court are wrapped up with those same senators. And Kavanaugh seems to view their scrutiny of him as an infringement of his rights which importantly violates another Federal Rule four judges stating a judge must expect to be the subject of constant public scrutiny and accept freely and willingly the restrictions that might be viewed as burdensome by the ordinary citizen.

Future litigants can argue Kavanaugh did not accept that freely. He seemed very angry with the scrutiny and then called out senators on a partisan basis saying they were embarrassing and then he threatened consequences.


KAVANAUGH: The behavior of several of the Democratic members of this committee of my hearing a few weeks ago was an embarrassment. A Democratic senator on this committee publicly referred to me as evil. The consequences will be with us for decades. In the United States political system of the early 2000s, what goes around comes around.


MELBER: Yikes. Now, let me tell you tonight, what you saw there not only fails that judicial code about being able to deal with scrutiny, it also violates the very first rule for judges that they must act without fear or favor to uphold the justice system`s integrity and independence threatening what goes around comes around is the very definition of acting with fear and yes, people will reasonably think Kavanaugh will now rule on that basis against his enemies which may be why today a former Republican appointee on the Supreme Court took the highly unusual step of saying Kavanaugh`s testimony alone should keep him off the high court.

Now, Supreme Court justices decide for themselves whether to recuse so take Scalia he bowed out of a famous case about whether the Pledge of Allegiance can reference God because he had prejudged the outcome with public comments saying people were misinterpreting the Constitution. Or Obama appointee Elena Kagan recused from about a third of her cases on the court in the first year because she worked on them in Obama`s DOJ.


ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: I was recused from about a third of the cases about 30. 28 of them were the other eight justices managed to decide, on two they split. The only thing that really made me think was I appear to be expendable.


MELBER: So there you have judges from both parties who took recusal seriously and they take that step by choice because no one can order a judge on the top court to recuse. So does Kavanagh`s recent performance give confidence that he would be as measured and modest as them? A man who publicly violated these several judicial rules I`ve showed you tonight could now be promoted this weekend to a post where he`s the only one to decide whether to follow these rules he`s been breaking. The Senate has got to consider what lessons to take from this and whether Judge Kavanaugh will take the lesson that he got away with something.

Will he act more or less restrained when he gets more power on a lifetime basis. Just as Jeff Sessions recusal was so critical to the independence of the open criminal probe into the White House, Kavanaugh is ruling in a recusal from future cases involving Mueller could impact that entire probe. Now, he has also prejudged some of those issues. He wrote the indictment of asitting president would cripple the federal government or take a look at how he raised his hand in 1998.


UNIDENTIFIED MALE: How many of you believe as a matter of law that a sitting president cannot be indicted during the term of office?


MELBER: Kavanaugh raising his hands there and that means he may not have such an open mind about those potential recusals the way Jeff Sessions did or those past justices on the court. So what do we know? Well, Kavanagh was actually pressed on this very point about recusal and he did something really important. He took the incorrect position that if he did announce the recusal from the Mueller cases that would mean automatically he`s not independent enough to be a good judge which is an incorrect expression of the recusal standard. The moment you`re about to see didn`t get enough scrutiny. Take a look.


SEN. CORY BOOKER (R), NEW JERSEY: Why not just announce right now that you will recuse yourself from any matters coming before the Supreme Court involving the Mueller investigation?

KAVANAUGH: All I would be doing is demonstrating that I don`t have the independence of the judiciary that is of the judging that is necessary to be a good judge.


MELBER: Kavanaugh is wrong to say recusing from a case means you don`t have the ability to be a good judge. It`s actually the opposite. Being a good judge requires the ability to aim for impartiality and then recognize when you`re in a situation that makes that impossible. Like when you`re part of a campaign under investigation or when you`ve publicly prejudged a case. Jeff Sessions knew that, Elena Kagan knew that, Antonin Scalia knew that. Why doesn`t Brett Kavanaugh? That`s a question the Senate has to consider. Up next, when you look at a key red state, Democratic Senator Heidi Heitkamp is a no vote, what does that do to all of this? Her brother actually joins us to explain her thinking, next.



SEN. HEIDI HEITKAMP (D), NORTH DAKOTA: I believe Dr. Ford. I believe her story. I have to vote no on Judge Kavanagh.


MELBER: That was Senator Heidi Heitkamp and her brother joins me now, Joel, who host the syndicated radio talk show in Fargo, North Dakota. Thanks for joining in.


MELBER: What moved her?

J. HEITKAMP: I don`t know that she was moved other than her gut. I mean, she sat there and she saw the testimony. And I don`t speak for Heidi, she speaks pretty doggone well for herself. But I will tell you this, I know that she believes her. She just said she believes her. So she saw the testimony and after that I`m sure it was over.

MELBER: Because you`re casting it as a as a vote of principle. If Brett Kavanaugh is on the way to confirmation by multiple votes, it`s a vote of principle amidst a lot of pressure. Is this hard for her in a red state?

J. HEITKAMP: That`s more than principle, it`s what`s right. It isn`t just OK, sitting there and saying am I going to win am I going to lose over this? It`s -- you got elected to do the right thing. That`s first and foremost. If this cost you the election, it`s a pretty doggone good Hill to die on. But I will tell you this. I believe it`ll help her in many, many ways. It will help her sleep at night --

MELBER: In North Dakota?

J. HEITKAMP: Well, not just North Dakota, you got to be true to yourself. You know, when she brushes her teeth in the morning, she`s got to like the person she sees. And that means you`ve got to trust your instincts and do what`s right, and this is right. Heidi`s right. You know, she is believable. She told the truth. You`ve got a judge -- how would you like to be a Democrat in front of that judge? He doesn`t have the temperament. How many lawyers do we have out there? We got a lot of lawyers and now we got to go to Georgetown Prep to find everyone? I mean, give me a break.

Whatever happened a good old country lawyer with common sense? It`s just doesn`t make sense to me.

MELBER: I like a good country lawyer myself, Joel. So do you have any sense of how it is playing back home, I mean, our people still have an open mind or do people think you know, in Trump country that well anything Trump does it`s got to be the right pick?

J. HEITKAMP: Well, I can tell you this. I`m going to find out a lot more tomorrow on my show on the Mighty 790 KFGO. There I got that in, but I do this.

MELBER: You got to get that in.

J. HEITKAMP: I got to get that in. But I will tell you this. Really what`s happening, Ari, is a situation where you`ve got people here that are honest with themselves. They are. They`re just flat-out honest with themselves. Now, they might be for Judge Kavanaugh, but you know, their wives, their daughters, they know what they went through. And those conversations are going to be had tonight. And my guess is because of the calls I had in my office, this is going to be appreciated and it`s going to be considered as something that when people look at it they can say you know what that took guts.

MELBER: Right.

J. HEITKAMP: That took to do so that`s important.

MELBER: That`s important and that`s antidote to so much of everything else we`ve been hearing. A serious interview, I`ll end on the lighter question. Do people like Fargo in North Dakota?

J. HEITKAMP: Well, yes. I mean the movie Fargo was fine but everybody brings it up it. You know, with all due respect, Ari, I`m a fan of your network but you guys don`t have pundits from the middle of this country. Everybody has got an opinion on the East Coast about the middle of this country, people need to look at what happens in the middle of this country and then maybe they`d connect with what happens politically.

MELBER: I`m always open to constructive criticism. You are saying that live from North Dakota where we have you on the show.

J. HEITKAMP: Absolutely. But you know what, you know, here`s the thing, Ari. How many times have you heard anybody on your show or others on MSNBC live from North Dakota? I mean, I don`t want this to be a war between myself and MSNBC. That`s not the point. The point is everybody thinks --

MELBER: No, it`s a war, Joel. I think we`re at war now.

J. HEITKAMP: Well, everybody thinks that they understand our state, right? You know, Heidi Heitkamp won six years ago. That poll that everybody`s talking about including your network is wrong. I don`t know if she`s ahead or behind but I know this because I travel the state, my radio show is all over the state, she is not behind by ten points. Now I don`t know where --

MELBER: I`ll make -- I`ll make you a deal because now I`m eating into "HARDBALL`s" time. I`ll make you a deal. We`ll have you back and you bring another interesting person policy, political expert, whatever. We`ll do another North Dakota segment, all right, sir.

J. HEITKAMP: It`s a deal, Ari.

MELBER: It`s a deal. Thanks for coming on, Joel Heitkamp. We`ll be right back.


MELBER: Now, that does it for our time tonight. I want to say thank you for watching, everyone out there in North Dakota and the rest of the country. We`ll be back at 6:00 p.m. Eastern tomorrow. "HARDBALL" is up next.