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

Guests: Brigitte Amiri, Nancy Northup

Show: THE RACHEL MADDOW SHOW 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 order.

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 country.

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 Miers?

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 subject.

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 straightforward.

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 example.

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 have.

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 judge.

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 abortion.

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 time.


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 philosophy.

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 abortion.

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 paper?

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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