Rep. senators blocked Obama's judicial nominees. TRANSCRIPT: 09/06/2018. The Rachel Maddow Show

Guests: Kamala Harris, Eric Swalwell

Show: THE RACHEL MADDOW SHOW Date: September 6, 2018 Guest: Kamala Harris, Eric Swalwell

RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us this hour. Happy to have you with us.

Burgess Everett is a reporter for politico.com. He covers Congress and out of all the beat reporters in national politics, dedicated congressional reporters are often the most fun to watch, and that`s because of the sort of breath of their beat. Sometimes in Congress, they are covering gigantic stories of national significance and even potentially international significance like confirmation hearings for a new justice for the United States Supreme Court.

Sometimes, they`re covering you know the biggest story you can imagine. But even when there isn`t a huge, earth-shaking story happening like that in Congress, congressional beat reporters still have to be there in Congress, covering whatever is happening on any given day. So, yes, today, a reporter like Burgess Everett at "Politico" got to cover the Supreme Court nomination hearings for Brett Kavanaugh, huge deal, right?

But he also had to cover the other stuff that happened in the Senate today which I learned from Mr. Everett`s Twitter feed today included the Senate apparently passing a resolution today confirming that September is School Bus Safety Month I had no idea.

A couple of weeks ago, he also had this little scooplet. You could put this under the category of might be important, might not, but I saw it. Here it is.

Mike Pence is having a very long chat with Democratic Senator Chris Coons. Hmm, might be something, might be nothing. But for the record, it was observed by a congressional beat reporter and therefore it was reported.

You also just sometimes get public facing complaints about Congress. Quote: Dean Heller still won`t talk to me. Or it`s no tie Wednesday for Bernie Sanders. I wouldn`t have done that if we did not have beat reporters in national politics whose beat is Congress.

Now, is it important? Might be. Sometimes, not always, but I`m glad somebody was there to report it and did so.

And on July 19th, seven weeks ago, Burgess Everett, congressional reporter for politico.com, was apparently right outside Senator Dick Durbin`s office in the Capitol, because he`s a congressional beat reporter, right? But for whatever reason he ended up at that exact spot at a very opportune moment and he was able to report this.

Quote: McConnell withdraws Bounds nomination. I can hear Democrats literally cheering in Senator Durbin`s office. Now, that day in the U.S. Senate, Democrats were not going around in the halls openly cheering and celebrating what had just happened, but they apparently did burst into cheering behind closed doors -- doors that apparently we`re not thick enough to block shoe-leather congressional reporters, at least one of them, from hearing them start to shout and celebrate inside Senator Durbin`s office.

What the Democrats were celebrating that day was this guy not becoming a judge. For everything else, the Trump administration has proven itself incapable of doing, they have been just a juggernaut at confirming conservative judges. Republicans in the Senate under President Obama had a strategy about this. They held open every single judicial seat they could for as long as they could, including even a seat on the U.S. Supreme Court. They just would not let the Obama White House put any federal judges through.

And so, in the Obama years, with Republicans in control of the Senate, the vacancies for judicial seats just mounted and mounted and mounted for years. And then having followed that strategy for years, Republicans finally got their payoff when a Republican president was elected and they were ready, and they launched hundreds of conservative nominees all at once, all for lifetime appointments and there were plenty of vacancies for them to fill because Republicans had held all those seats open.

With control of the Senate, Republicans have been running those nominees through like factory-made chocolates on an out-of-control conveyer belt. Faster, faster, faster. It`s almost like they think this administration might not last so they`ve got a hurry through as many of these nominations as they can.

But on July 19th, despite this well-oiled, if fairly frantic system, one of their judicial nominees failed. His name was Ryan Bounds. He was a conservative prosecutor in Oregon. The Trump administration nominated him to a federal appeals court, just one level below the U.S. Supreme Court.

And again in general, Republicans in the Senate have been ramming through Trump nominees by the fistful. But this Ryan Bounds nomination was stopped, and it was stopped because, number one, all Democrats in the Senate opposed him. Democrats were united in their opposition to Ryan Bounds.

And number two, Senator Tim Scott also opposed him. Senator Tim Scott, the lone African-American Republican member of the United States Senate. Turns out this nominee had a robust lengthy history of really inflammatory racial writings, none of which he had turned over to the Judiciary Committee when they were supposedly vetting him for a lifetime appointment to a federal appeals court.

The nominee had also appointed himself -- associated himself with some racially sort of crass stuff. When he was opinion editor of a conservative campus newspaper, for example, that paper started using this nice angry Indian cartoon caricature to illustrate his section of the paper. They did that apparently particularly because there had been a history of Native American groups objecting to that kind of insensitive racial caricature at that campus. I can say that from experience because I went to the same school as this guy at the same time and I remember those fights.

But despite the racially inflammatory stuff in this nominees, written record in his past and despite the fact that he had apparently tried to hide those writings from the Senate, his nomination did appear to be on track to get confirmed through the Republican Senate anyway on what was expected to be a party line vote, until Senator Tim Scott decided he was not OK with this guy. He was not willing to vote for this judge who had who had publicly mused on Aryan student unions and what he called feel good ethnic hoedowns and, quote, ethnic elites.

According to Burgess Everett`s reporting at the time in politico.com, Senator Tim Scott started to voice his concerns and the possibility that he might vote no on this nominee just one day before the vote was scheduled on Ryan Bounds. Apparently, Senator Scott personally then spoke to the nominee himself to try to assuage his concerns. That did not work.

Then, Senator Scott reportedly went to talk to his friend Senator Marco Rubio about his concerns. The two of them together, Rubio and Scott, decided they would talk together to the nominee. They did so. That still did not work.

Afterwards, Senator Tim Scott apparently said nope, I am not doing it. You cannot have my vote for this nominee. Senator Marco Rubio then reportedly said, OK, if you`re voting no, Senator Scott, then I will join you in that too. And that was all it took, Ryan Bounds` nomination died.

And Burgess Everett effort was there to hear the Democrats cheering about it behind the doors of Senator Dick Durbin`s office. That was seven weeks ago.

Republicans are in control of the U.S. Senate obviously, but only barely. They only have a 51 to 49 majority. At the time of that Ryan Bounds nomination seven weeks ago, that`s when Senator John McCain was out sick. And so, at that point, it wasn`t 51-49, it was 50 to 49. That meant it would only take one Republican defection to sink any judicial nominee or any other vote of any kind in the Senate as long as Democrats stayed unified in opposition.

Well, now, with Senator John McCain having passed, he`s been replaced now by Senator Jon Kyl who is now sworn in in the Senate, now, it`s back up to 51-49. But that still means if only two Republican senators peel off on any one vote or any one nomination, as long as the Democrats are unified, that vote or that nominee is toast. And now after more than 31 hours of confirmation hearings for Brett Kavanaugh`s nomination to the Supreme Court this week, it is becoming clear that Democrats are proceeding on the nomination of Brett Kavanaugh at the Supreme Court with that very, very narrow vote margin in mind.

There have been some -- it`s -- I think the way to say it, forgive me, I think there`s been some quite a lot of facile commentary and I don`t mean that to be snarky or mean to anyone in particular, but I think there`s been a ton of facile commentary and some headlines that you might have seen suggesting that Democrats are trying to make a big spectacle out of the Brett Kavanaugh confirmation process because the Democrats are in the minority and there`s therefore no way they can stop this nomination, so they`re just setting off fireworks pointlessly to try to get attention and make a scene.

And you`ve seen reporting and you`ve seen commentary that that`s in particular what the Democrats have been doing with these stunts they`ve been pulling about, releasing documents from Kavanaugh`s history, documents that the Republicans say should be confidential. You know what? If Democrats were just trying to make a spectacle out of the Kavanaugh confirmation process, if they knew it was a futile effort, he was definitely going to be confirmed anyway no matter what they did, if they just wanted to make a stink there are easier and more fun ways to do that.

That`s not what they`re doing. What`s now become clear after these three long days of hearings is that the Democrats aren`t just trying to make a spectacle of a confirmation process here. They appear to be actually trying to block Brett Kavanaugh`s confirmation. They appear to be actually trying to win.

Democrats are not used to seeing this in their elected officials, so I`m not sure this is being recognized righty coast to coast, but look at what they`re doing. They`re not just making sort of sound and fury here. They`re doing something specific to try to win, to try to stop Kavanaugh`s nomination. And they may not win.

But it -- I think it`s worth being clear that that is what they`re going for. They are apparently aware that it is sort of a close question here for a number of reasons, right? This nominee is actually super unpopular. Nationwide polling shows that this nominee is less popular than any other modern Supreme Court nomination since Harriet Miers. The reason I`m not saying Justice Harriet Miers is because she never made it at the Supreme Court, she had to withdraw her nomination when it became clear that she had nowhere near enough support to proceed.

Public support for Brett Kavanaugh`s nomination is even lower than what Harriet Miers enjoyed before she had to with draw. In at least one national poll, public support for Brett Kavanaugh`s nomination is even lower than what we saw for Robert Bork, who also did not become a Supreme Court justice. Now, Judge Bork insisted on going all the way through to a vote and not withdrawing, the way that Harriet Miers did, but Bork was rejected by a fairly large bipartisan majority in the Senate. That was a failed nomination because he didn`t have enough support.

Brett Kavanaugh`s public support is lower than what Robert Bork had when he failed to get confirmed. And public support isn`t everything, right? The public doesn`t get a direct vote on Supreme Court nominees. But it is striking in this case that support is so low for Kavanaugh and ultimately, that kind of thing does end up mattering to senators if they have reason to really seriously consider their vote here.

Ultimately, it does matter to elected officials particularly right before an election when more Americans don`t want Brett Kavanaugh confirmed then do want him confirmed, and in national polling, Brett Kavanaugh is underwater that way. More people want him rejected then want him confirmed. And in that environment, with a weak and unpopular nominee, having been chosen for the position by a weak and unpopular president who has been named as an unindicted co-conspirator in a criminal felony case and is at the center of a huge counterintelligence and criminal investigation that is literally going to result in one of his campaign aides being sentenced probably to prison tomorrow in the middle of Brett Kavanaugh`s confirmation hearings while jury selection proceeds for his campaign chairman who has already been convicted on eight felony counts and is up for more.

I mean, in that environment, with a weak and unpopular nominee nominated by a weak and unpopular and endangered president, and with a razor-thin Republican majority in the Senate, Democrats are not throwing up their hands and being like we got no choice here, we got no chance, can`t do nothing, let`s just make noise. I mean, Democrats have one small specific task this week and it is not to change the world`s perception of Brett Kavanaugh or the world`s perception of President Trump or to somehow transform the Republican caucus in the Senate somehow. No, all they need to do is peel off two Republican senators, persuade them to decide for their own reasons that they can`t vote for this man.

What Democrats are doing here is not a turn on the sprinkler strategy. This is an aim the squirt gun strategy. For example, there are two Republican senators who say they are pro-choice who have made clear to their constituents back home for years actually in both of their cases for decades that they will not provide the vote that leads to overturning Roe versus Wade and making abortion illegal. Up until now, Senator Lisa Murkowski of Alaska and Senator Susan Collins of Maine have indicated that they are satisfied with Brett Kavanaugh saying he views Roe versus Wade as settled law.

(BEGIN VIDEOI CLIP)

SEN. SUSAN COLLINS (R), MAINE: We talked about whether he considered Roe to be settled law, he said that he agreed with what Justice Roberts said at his nomination hearing in which he said that it was settled law. We had a very good, thorough discussion about that issue and many others.

(CROSSTALK)

(END VIDEO CLIP)

MADDOW: Senator Susan Collins of Maine, one of two Republican pro-choice senators. The other is Lisa Murkowski of Alaska, saying there with apparently indicating some satisfaction that Brett Kavanaugh told her that he considered Roe versus Wade to be settled law. That by Susan Collins his own admission is something that is important to her, something that matters to her in terms of her vote on this nomination.

Well, today, somebody leaked to the "New York Times" and then to NBC News this email written by Brett Kavanaugh in 2003 in which he argues explicitly that Roe versus Wade is not recognized to be settled law because the Supreme Court could very well overturn it. Quote I am not sure that all legal scholars refer to roe is the settled law of the land at the Supreme Court level since court can always overrule its precedent and three current justices on the court would do so. At the time Brett Kavanaugh was writing that in 2003, he was probably right that three justices on the court then would have voted to overturn Roe. Right now, there are certainly four justices who are expected to be votes to overturn Roe and Judge Brett Kavanaugh is widely believed to be the long-awaited fifth vote to do just that if they ever put him on the court.

So, that email first made public today despite it being stamped confidential by the Republicans it raises a few questions. First of all, why was that email marked confidential and not released to the public? What about that was inappropriate for the public to know about Judge Kavanaugh and his views? I mean, that was him commenting on a on a proposed op-ed. What`s the national security sanctity of a proposed op-ed that means we all need to be protected from his suggested edits to that document?

But also, how do senators like Lisa Murkowski and Susan Collins look at that and explain to their constituents that they`re still confident that he`ll treat Roe with settled law, that there`s no chance he believes that it could even be overturned. It`s there in black and white that he doesn`t believe that settled law at all, that he absolutely thinks it could be overturned.

Again, what Democratic senators appear to be pursuing here is not a broadcast strategy to persuade the public, right, to persuade the media. The strategy around releasing the Roe memo and I say it`s a Democratic strategy because NBC News said explicitly today that when they got it, they got it from, quote, Democratic sources. This strategy is aimed at two specific Republican senators. It has an audience, a very specific audience. And those two senators have admitted that they will base their vote in part on that issue.

I mean, whether or not anybody else has moved or persuaded about the certainty of Kavanaugh`s vote to make abortion illegal, right, whether or not this memo persuades anybody about that, the key question is whether Lisa Murkowski and Susan Collins are persuaded by the release of this memo.

Hawaii Senator Mazie Hirono also thwarted the confidentiality that Republicans tried to assert on Kavanaugh`s documents by releasing this one from Kavanaugh`s time in the George W. Bush White House in 2002. This is Brett Kavanaugh writing, June 4th, 2002 to another why official. Quote: I think the testimony needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution.

Now that is a very specific issue. Why would Mazie Hirono be going out on a limb as a senator to break the supposed confidentiality of these documents in order to release this specific document from Brett Kavanaugh`s past? It`s not on a lot of different issues as specific to this one thing. It`s not one statement. Basically, it`s a document.

Now, is this kind of an issue going to turn the national tide against Brett Kavanaugh? No. That specific document might not even garner a single national headline when it comes to Brett Kavanaugh. But you don`t need to turn the tide. You don`t need to turn the whole country. You need two votes. You need to turn two Republican senators.

And so, who is Mazie Hirono targeting here? She`s not being subtle about it. She`s very much spelling it out when she announced that she was releasing this document.

Quote: I referred to a committee confidential document where Judge Kavanaugh questioned the validity of programs that benefit native Hawaiian programs and by extension Alaska natives. And in case it`s still not clear enough that this Democratic effort is specifically targeted, specifically designed, narrowcast to make it impossible for Alaska Senator Lisa Murkowski to vote for this nominee, Mazie Hirono really is willing to put that fine a point on it.

(BEGIN VIDEO CLIP)

SEN. MAZIE HIRONO (D), HAWAII: I think you have a problem here. Your view is that Native Hawaiians don`t deserve protections as indigenous people under the Constitution and your argument raises a serious question about how you would rule on the constitutionality of programs benefiting Alaska natives. I think that my colleagues from Alaska should be deeply troubled by your views.

(END VIDEO CLIP)

MADDOW: My colleagues from Alaska.

So, we`ve got Democrats giving Susan Collins and Lisa Murkowski a reason to vote no on Kavanaugh by showing that Kavanaugh actually doesn`t think Roe versus Wade a settled law. They`ve both said that specific aspect of his record is key to their vote. In addition, we`ve got Lisa Murkowski getting another reason to vote no. Mazie Hirono taking it upon herself to expose to the public this document that shows that Lisa Murkowski might have a real problem back home with the considerable Alaska native vote in her home state if she votes for this nominee who`s absolutely on the record hostile to programs that benefit them or recognize them.

And you might have seen this morning`s -- this morning, Mazie Hirono`s announcement that she had released these documents. It came right after Senator Cory Booker stopped the show today when he announced that he was willing to risk expulsion from the Senate if necessary to release documents that again had inexplicably been marked confidential and hidden from the public. Once he wanted to release included Kavanaugh`s communications about racial profiling and affirmative action.

Thanks to that action by Democrats in the Senate, we now have this document. Here`s Brett Kavanaugh in 2001 calling affirmative action, quote, a naked racial set-aside, and he was not just opining in general. This is him talking about a Department of Transportation program that`s supposed to benefit minority-owned contractors for getting government contracts. He calls it a, quote, naked racial set-aside. He`s also on the record calling a government program for native Hawaiians a, quote, naked racial spoils system.

It`s almost like when Judge Ryan Bounds wrote about the ethnic elites, except, oh wait Ryan Bounds never became a judge, because Republican Senator Tim Scott and maybe even Republican Senator Marco Rubio decided they could not stomach that kind of past writing on a race for a judicial nominee, and they decided that just a few weeks ago. And that nomination failed and at least one reporter heard the Democrats cheering.

They don`t need them all. They don`t need the media. They don`t need -- you know, they don`t need to -- they don`t need to entertain any of us. They just need to votes and those no votes can be for any reason at all that`s important to those two Republican senators.

So, the Democrats did blow up the process again a little bit today by calling Republicans bluff on what Kavanaugh documents could be shown to the public, but it`s not a blind eruption of some kind designed to get attention. When you look at the stuff they`re releasing and the way they`re releasing it and presenting it in these hearings, it`s clear this is a very tightly targeted effort to speak meaningfully to specific Republican senators who really might have concerns with specific, substantive elements of Brett Kavanaugh`s record that would otherwise not have been led out of committee and would not have made it into the newspaper.

I mean, for the most part, it appears that the Republican senators are really being targeted here in this effort are not senators who are members of the Judiciary Committee. So, when Democrats release these documents that have been marked committee confidential, those are documents that otherwise wouldn`t have been seen by anybody off the committee. When they`re releasing these documents, that may be the only way they can let senator Tim Scott know that Brett Kavanaugh says affirmative action is a naked racial set-aside, that may be the only way they can let Senator Lisa Murkowski know what Brett Kavanaugh would do to Native Alaskans. That may be the only way they can lay it out as clearly as possible for Senator Lisa Murkowski and Senators Susan Collins that Brett Kavanaugh really doesn`t think that Roe is settled law, he really does think the court could overturn that.

It`s not just noise here. There is a melody there is a method to what they are doing and alongside that, there are two other things going on here that we`re going to talk about over the course of this evening.

Number one, is this now quite robust Democratic effort to show that on not one, not two, not three, not four but as many as five different subjects Brett Kavanaugh may have lied to the Senate in his last appearance before them he was first up for confirmation as a judge more than 10 years ago? Democrats have been probing around the edges of that allegation since Kavanaugh was named as a nominee to the high court. Today, they started laying out the proof. We`ll have more on that coming up.

And then, in addition, there is the drama that has been unleashed by California Senator Kamala Harris.

(BEGIN VIDEO CLIP)

SEN. KAMALA HARRIS (D), CALIFORNIA: Judge, have you ever discussed special counsel Mueller or his investigation with anyone?

BRETT KAVANAUGH, SUPREME COURT JUSTICE NOMINEE: Well, it`s in the news every day. I --

HARRIS: Have you discussed it with anyone?

KAVANAUGH: With other judges, I know.

HARRIS: Have you discussed Mueller or his investigation with anyone at Kasowitz, Benson and Torres, the law firm founded by Marc Kasowitz, President Trump`s personal lawyer? Be sure about your answer, sir.

KAVANAUGH: Well, I`m not remembering, but if you have something you want - -

HARRIS: Are you certain you`ve not had a conversation with anyone at that law firm?

KAVANAUGH: Kasowitz, Benson --

HARRIS: Kasowitz, Benson and Torres, which is the law firm founded by Marc Kasowitz, who is President Trump`s personal lawyer. Are you -- have you had any conversation about Robert Mueller or his investigation with anyone at that firm? Yes or no?

KAVANAUGH: Well, is there a person you`re talking about --

HARRIS: My question is, have you had a conversation with anyone at that firm about that investigation? It`s a really specific question.

KAVANAUGH: I would like to know the person you`re thinking of, because what if there`s --

HARRIS: I think you`re thinking of someone you don`t want to tell us. Who did you have a conversation with that?

KAVANAUGH: I am -- I am -- I`m not --

UNIDENTIFIED MALE: Mr. Chairman, I`d like to raise an objection here. This town is full of law firms. Law firms are full of people --

HARRIS: First of all, I`d like you to pause the clock. Thank you.

UNIDENTIFIED MALE: The clock is paused.

HARRIS: Thank you.

(END VIDEO CLIP)

MADDOW: That was the cliffhanger that we were left with at the end of last night`s questioning of Supreme Court nominee Brett Kavanaugh. Oh, where did that come from? What does that mean?

Well, Senator Kamala Harris has just had another round of questioning with Brett Kavanaugh. She went back to him again on that tonight. We`ve got that ahead for you in just a moment.

And then we think depending on what happens in that hearing room, we think we may have Senator Harris joining us live tonight on the show. Stay with us.

(COMMERCIAL BREAK)

MADDOW: This was just a little while ago this evening at the Brett Kavanaugh confirmation hearings.

(BEGIN VIDEO CLIP)

HARRIS: You had a conversation about the special counsel or his investigation with the law firm that has represented President Trump. As you`ll recall, last night, I asked you whether you`d had such a conversation and under oath, you gave no clear answer. Then, today, my Republican colleagues raised the issue with you and again you said you don`t recall and that you had no, quote, inappropriate conversations with anyone at that law firm, which has led a lot of people to believe that that was equivocal in terms of a response. So, whether a conversation was appropriate in your opinion is not a clear answer to my question.

My colleague Senator Blumenthal again asked you and you said you were, quote, pretty confident the answer was no. So, frankly, if last night, you had just said no, or an absolute no even today, I think this could be put to rest. But I will ask you again and for the last time, yes or no, have you ever been part of a conversation with lawyers at the firm of Kasowitz, Benson, Torres about special counsel Mueller or his investigation, and I asked, where you ever part of a conversation? I`m not asking you what did you say.

KAVANAUGH: Right.

HARRIS: I`m asking you, were you a party to a conversation that occurred regarding special counsel Mueller`s investigation? And a simple yes or no would suffice.

KAVANAUGH: About his investigation and are you referring to a specific person?

HARRIS: I`m referring to a specific subject and the specific person I`m referring to is you.

KAVANAUGH: Who was the conversation with? You said you had information.

HARRIS: That is not the subject of the question, sir. The subject of the question is you and whether you were part of a conversation regarding special counsel Mueller`s investigation?

KAVANAUGH: The answer is no.

HARRIS: Thank you. And it would have been great if you could have said that last night. Thank you.

KAVANAUGH: Why -- in my -- never mind.

(END VIDEO CLIP)

MADDOW: We were racing towards show time tonight when that happened in the Brett Kavanaugh hearings.

Joining us now by phone is senator who was trying to get that answer. Senator Kamala Harris of California.

Senator Harris, I know you are right in the thick of it tonight. Thank you for joining us. I really appreciate it.

HARRIS (via telephone): I am, Rachel. Sorry, I couldn`t be there in person. I`m on the phone --

MADDOW: It`s OK. If you need --

HARRIS: -- in the back room of the hearing room.

MADDOW: Well, if you need to jump off at any point, just jump. I will understand.

HARRIS: OK, thanks. Thank you.

MADDOW: Help us understand what`s going on here though. You said that you have a lot you received reliable information that this nominee had at least one conversation with people at a law firm that is representing the president and then at one point represented the president in the Mueller investigation and that conversation was specifically about Mueller and his probe. What do you make of the nominee giving you a sort of flat denial on that at last tonight?

HARRIS: Well I -- you know, I frankly don`t know why it took 24 hours to get a final answer that was a firm no.

I`ll tell you that, you know, he has been unable to agree that he should recuse themselves on the investigations if they should arrive at the Supreme Court and he were confirmed. He has not given clear answers on the special counsel in terms of whether the president can fire him and there`s, you know, a lot I think that has been about this thing where he`s just been an evasive in terms of his answers.

MADDOW: He was really pressing you both last night and tonight to tell him who exactly you were asking about? Republicans suggested and the nominee himself suggested a little bit that that was the only way he could answer the question because he wouldn`t have any way of knowing if people he was talking to about the investigation were in fact associated with that firm.

What did you make of that that framing in that effort to try to talk you out of that line of questioning?

HARRIS: I still -- I must admit to you, Rachel, I`m still really unsure about why he keeps equivocating because you`re absolutely right, he wanted clarification about who exactly at the firm? He wanted, you know, a list of the people who are at the firm. He wanted to know what is the subject matter. You noticed even tonight he did that.

And it leads me to believe that there`s to this than he`s letting on, and I frankly that that when we look at his whole record, there`s a lot about his record doing that should leave us with a lot of questions.

MADDOW: Can you share anything with us about the intelligence or information you received that that leads you to believe that this conversation did take place? There`s a lot of speculation that it might have been a conversation with Edward McNally who`s somebody who`s a partner at that firm who he worked with closely in the George W. Bush White House and they`re apparently still friends. Can you tell us anything about the information that you received that led to this line of questioning?

HARRIS: I (AUDIO GAP) and I guess I feel like a journalist at this moment. I received it at the confidential information, (AUDIO GAP) to pop the question and for 24 hours, we went without him getting to a firm answer who he consulted with before he finally could say what he said.

But the burden is on him, frankly. The burden is on him to explain why he has equivocated 24 hours and still seems to want to parse out the question (AUDIO GAP) answer.

MADDOW: Well, I`ll go out at one other way without trying to ask you about your source and the nature of the information. But you raised the issue about him refusing to entertain the idea that he should recuse on anything related to the president, this investigation of the president, the president`s potential criminal liability or the president susceptibility to things like subpoena.

This information that you received, if this nominee has had conversations with people associated with the president`s legal defense about this matter and they haven`t been disclosed to the Senate, would that be cause for him to commit to a recusal on those cases? Is that what you would expect to be the implication of that kind of information coming to light?

HARRIS: Yes, I absolutely would. A recusal (AUDIO GAP) and I actually went through this evening (AUDIO GAP) and I think that is definitely (AUDIO GAP) evidence (AUDIO GAP) presented that that made clear that he was (AUDIO GAP) of these conversations, there`s no question that he should recuse himself.

The American public has a right to know that if certain matters go before the United States Supreme Court involving this president, that they`ll be heard by (AUDIO GAP) justice in Supreme Court, and as now as it relates to the possible scenarios around this president and the various investigations, it is very possible that that very significant questions will need to be answered by the United States Supreme Court and only the United States Supreme Court. So, it`s a serious matter.

And the fact again that as a nominee he has been parsing and kind of, you know, playing around with words before giving a direct answer gives me pause.

MADDOW: Senator Kamala Harris of California, Democrat on the Senate Judiciary Committee where proceedings are ongoing tonight -- Senator, thank you very much for being with us tonight. I know you have to get back to it. Thank you.

HARRIS: Thank you.

MADDOW: See, I should have had her calling on two phones at once so then when it started cutting out on the one phone, I could have been like turn to the other side. It never works that way.

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

(COMMERCIAL BREAK)

MADDOW: A couple of months before the 2016 presidential election, Donald Trump did an unusual thing that no other candidate had ever done before. It was very unexpected. He publicly released a list of all the people he might possibly nominate to the Supreme Court.

He did not write the list. The list was compiled for him by conservative legal groups. It eventually included 21 names. And when Trump released that final list, he said, quote, this list is definitive and I will choose only from it in picking future justices of the United States Supreme Court.

That`s presumably assuaging worries from Republicans who might think that he`s going to, you know, appoint Judge Judy or like pick somebody off Fox or whatever it was.

Sure enough, when Trump won the presidency and took office, his first nominee Neil Gorsuch, came right off that list. A few months later, when rumors started to swirl that maybe Justice Anthony Kennedy was thinking about retiring, Trump said that that were to happen he would definitely be picking his next nominee from that same list, the one he picked Neil Gorsuch from. He said that on May 1st.

A couple of weeks later, Robert Mueller was appointed special counsel, and then something odd happened. That list from 2016, that was the final and definitive list, it suddenly grew some new names that hadn`t been on it before, including a judge named Brett Kavanaugh.

Brett Kavanaugh was not on the original list. He was added after the special counsel was appointed, more than a year after the list was supposedly finalized. And then when Anthony Kennedy did retire, sure enough, Brett Kavanaugh became the front-runner for the seat, even though Senate Republican leader Mitch McConnell reportedly warned the White House repeatedly that Kavanaugh would actually be the most difficult nominee to confirm because of his lengthy paper trail.

Why did Brett Kavanaugh have to be added to the list and then chosen over the objections of the leader of the chamber that would have to confirm him?

Well, one way in which Brett Kavanaugh really does appear to stand out from everybody else on that list is that he`s on the record as having an extremely expansive view of presidential power when it comes to investigations and presidents getting in trouble. He`s a doctrinaire, hard line, very hard line conservative on most if not all policy areas. But specifically on a president`s susceptibility to investigation and potential prosecution, he stands alone. He has written that not only should presidents not be indicted, not only should they not be subpoenaed, but they should not even be investigated. He says they can be impeached but how do you impeach somebody if you can`t investigate them?

At his confirmation hearing this week, as Democrats have pressed him harder and harder on this point, Brent Kavanaugh has refused to answer any questions about whether a president has to respond to a subpoena, whether a president can pardon himself, whether a president can fire a prosecutor investigating him, because that prosecutors investigating him. Kavanaugh has refused to commit to recusing himself from cases directly affecting the president who nominated him, as Senator Kamala Harris was just talking to us about. So, that`s where Brett Kavanaugh came from, right?

Add to that, the fact that the president who nominated him really is now the subject of the most serious counterintelligence investigation of a president ever and he is now a co-conspirator in a felony campaign finance violations case that is going to send his personal lawyer to prison. Add to that, how Republicans have chosen to deal with this issue of Kavanaugh`s lengthy paper trail.

Republicans in the White House decided to handle that by outsourcing the curating of documents from Kavanaugh`s time in Washington, his time in the -- in the Bush White House. They decided they would outsource the curation of those millions of documents to a Republican lawyer who has no government role but he does happen to represent major witnesses in the Russia investigation.

Bill Burck, the lawyer who has been deciding which of these documents about Kavanaugh are released to the committee and of those which documents the public is allowed to see, Burck currently represents former White House chief of staff Reince Priebus, former White House adviser Steve Bannon and the current White House counsel Don McGahn, specifically in the Russia matter, along with at least three other current or former Trump staffers. He`s representing like six people in the Russia investigation and he`s deciding what we`re allowed to know about the nominee who appears to have been picked probably because of the Russian investigation.

It`s starting to feel like the Mueller investigation and the Kavanaugh nomination are not competing stories anymore. It is starting to feel like this is the same story.

Congressman Eric Swalwell joins us next. Stay with us.

(COMMERCIAL BREAK)

MADDOW: When "The New York Times" published that unnerving op-ed yesterday afternoon with an anonymous senior administration official trying to assure the country that although the president is manifestly unfit to hold the job he has, don`t worry. There are people inside the administration who are secretly willing to sabotage him and thwart his efforts to hurt the country, rest easy.

Our next guest responded with this online. Quote: There`s so much wrong about what`s described in "The New York Times" op-ed about Donald Trump, but blame falls squarely at the feet of a Republican Congress`s absolute failure to check the president. They will not check him, so cowardly aides who will not speak up publicly have gone rogue.

Joining us now is Congressman Eric Swalwell, who has a seat on the House Judiciary Committee and on the House Intelligence Committee.

Congressman, thank you very much for your time tonight. It`s nice to have you here.

REP. ERIC SWALWELL (D), CALIFORNIA: Good evening, Rachel. Thank you.

MADDOW: So, we`ve been covering intensely and the country has been following intensely the confirmation proceedings for Brett Kavanaugh`s nomination to the Supreme Court. As a member of the House, obviously, you do not get a vote in that -- in that confirmation proceeding.

But I wonder if you see connections between this Supreme Court nomination, what`s happening in terms of Kavanaugh and the what`s happening with the president, controversy around the president and the Russia investigation specifically.

SWALWELL: I do, Rachel, and Brett Kavanaugh may be legally qualified to be nominated for the Supreme Court, but we shouldn`t fool ourselves to believe that`s why Donald Trump chose him. He was affiliated with the Bush administration and Donald Trump has shown that he does not want to have anything to do with the Bush administration.

So, his late addition to the list I think shows that he`s there for the wrong reasons. So, he`s the wrong judge at the wrong time and right now, we have a president who is more legally exposed than any other president ever, not just criminally but also civilly and we have a judge who believes that that president and any president is above the law.

Rachel, in the law, there`s this issue of ripeness. You know, whether a case is ripe for litigation or not. These issues are ripe for litigation because right now, Rudy Giuliani has just said that the president will not answer in writing or in person to the special counsel request. So, these issues are ripe. The judge will not say that he`s going to recuse or separate himself from his prior beliefs.

So, the issues are ripe but he`s just not the ripe judge to sit on this panel, to join this court.

MADDOW: You bring up the issue of Mr. Giuliani`s comments this evening. I tried to give Mr. Giuliani`s comments a day or so to themselves become ripe to find out if they are going to be rescinded or disavowed by the people for whom he presumably, he purportedly speaks. But you`re right that what he has said tonight is that the president won`t answer any questions in person or in writing, not only about the Russia collusion issue, but also about obstruction of justice.

If the president does try to assert that, if this isn`t just Mr. Giuliani making this up, how do you think that ultimately gets resolved? How does that get settled?

SWALWELL: Well, the Mueller team then would have to decide if they wanted to subpoena the president and go down that legal road, which would ultimately end up at the Supreme Court or just proceed without his information. And you know, Rachel, if the president has not interviewed, even after telling special counsel he will not subject himself to an interview and a report is issued without his interview, he will just pan the report and say, I never had my chance to tell my side of the story.

We`re seeing him do that actually right now with the Bob Woodward book. So, I think the best thing special counsel can do, mindful that they`re doing I think a terrific job right now and giving all the due process in the world to this president, is to subpoena him and show that they`re not going to treat him any differently than any other criminal suspect or subject in an investigation.

MADDOW: Congressman Eric Swalwell, Democrat of California, thank you for being here tonight, sir. Appreciate you being here.

SWALWELL: My pleasure.

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

(COMMERCIAL BREAK)

MADDOW: When Richard Nixon`s former White House counsel testified to the Senate Watergate committee in the summer of 1973, he read from a statement that was 245 pages long, took him six hours to get through it all including a lunch break in the middle. This is the headline the next day in "The Washington Post".

Dean tells inquiry that Nixon took part in Watergate cover-up for eight months. That was 45 years ago -- John Dean to the U.S. Senate.

Now, John Dean is going back. Tomorrow, we expect the Senate to call witnesses in the Kavanaugh confirmation hearings on the list of names called by Democrats is John Dean. He`s expected to testify against Judge Kavanaugh tomorrow, specifically where it comes to Kavanaugh`s views on how to investigate a president or hold one to account. We also expect to hear from Congressman Cedric Richmond. He`s chair of the Congressional Black Caucus.

Senators will hear from Aalayah Eastmond, who survived the school shooting in Parkland, Florida. Also, Elizabeth Weintraub, a developmentally disabled woman who will talk about why it`s important for her in her community to be able to make medical decisions for themselves. Also, Rochelle Garza, she`s a lawyer who helped a pregnant undocumented teenage girl get an abortion even though Judge Kavanaugh did his best to stop her.

Day three of the Kavanaugh hearings are still going tonight right now and there`s still a lot to get to before this thing comes to a vote. Witnesses slated to start tomorrow. Watch this space.

(COMMERCIAL BREAK)

MADDOW: So I have to go. Show`s over.

Quickly though, can I show you where we talked to Kamala Harris from tonight when we got her on the phone? Look. This is where Senator Harris called into our show from a few minutes ago, a closet in the Senate.

You can see next to the mail cart and the box of pretzels and whatever that is in the box over her shoulder that`s labeled plastic tumbler. So, I am sorry the cellphone reception with Senator Harris was not awesome when we spoke with her earlier this hour, but now we know why.

All right. That does it for us tonight. We`ll see you again tomorrow.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Good evening, Lawrence.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END

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