Today, Explained - But his emails!

Episode Date: September 6, 2018

Brett Kavanaugh’s emails are spilling out and they’re causing waves on Capitol Hill. Learn more about your ad choices. Visit podcastchoices.com/adchoices

All right, Sarah Cliff, Vox reporter, maternity leave, but you're here today to talk about Quip electric toothbrushes. Yeah. And Max is here as well. Hi, Max. Looking adorable. We haven't yet talked about you using the toothbrush that you got at getquip.com. Yeah, we haven't talked about that yet, but we definitely should do that today. Let's do that today. Lizo, you report on Congress here at Vox,

and you were at the confirmation hearing for Brett Kavanaugh today. And once again, things got explosive. What happened down there? Things went off the rails pretty much immediately. I think a lot like the first day of the hearings, you saw Democrats actively trying to protest what was happening. And I think this time around, what you saw was that they were upset that there's this trove of documents that have been labeled as confidential for the committee. They think that it was done unfairly. It was something that Republicans kind of just unilaterally decided.

So they opted to protest that. And I think what you saw that culminate in is Senator Cory Booker ultimately say, I'm going to release the email about racial profiling. And I understand that the penalty comes with potential ousting from the Senate. And if Senator Cornyn believes that I violated Senate rules, I openly invite and accept the consequences of my team releasing that email right now. That's a big breach of Senate rulesiciary Committee, staying behind the scenes. Is this like a long established precedent or what? Yeah. The Senate Intel Committee deals with a ton of confidential documents just because they're simply classified. So only senators can see that. They can't talk about it in public.

They can only talk about it in a closed session. So that's normal. I think the part that's not normal, which Dianne Feinstein talked about, is that Republicans have predominantly been the ones making these calls. No Senate or committee rule grants the chairman unilateral authority to designate documents committee confidential. So I have no idea how that stamp, committee confidential, got on these documents. And on top of that, normally you would have the National Archives kind of leading the review of all of the documents related to Kavanaugh. But instead, you have George W. Bush's private attorney, Bill Burke, reviewing these documents.

Weird. Republicans have been the ones deciding what's confidential, and they've been the ones in touch with Bill Burke. So Democrats just feel like they've been completely cut out of the process. Is this typically how it goes, that a president's attorney might decide what gets seen in a confirmation hearing for a Supreme Court justice? That is not precedented. And I think I heard the word unprecedented used probably countless times this week just because of how nuts this process has been compared to past ones. I think the other thing that's really complicating this is that Bill Burke also worked with Kavanaugh in the Bush White House. Oh, wow. So there's this question of, okay, they work together.

There's a conflict of interest. On top of that, you know, he's represented members of the Trump administration. And so this guy who's kind of at the center of this whole documents fight is kind of an interesting character himself. And then on top of that, the whole documents fight is kind of been ongoing throughout this process. So to be clear, Cory Booker says, I'm going to release these documents. It's a huge break with Senate tradition to do so. And then he does it? Right. The kind of asterisk there, which Judiciary Chairman Chuck Grassley was very quick to know, is that there was actually an agreement that was made between

Senator Booker, Senator Grassley, other folks on the Republican side to release some of these documents through kind of a traditional manner of putting them on the committee website. Like that happened beforehand? Right. Grassley came out and said, we made this agreement before the hearing even started this morning. And they were well aware of this. And so it's interesting, I think, that even after kind of being notified about this, there was some grandstanding about what was open and available to the public. Right. There's a lot of talk of Cory Booker just taking the spotlight. Didn't he say, like, this is my Spartacus moment? Yes, he did say that with, like, a relatively straight face.

Now, I appreciate the comments of my colleagues. This is about the closest I'll probably ever have in my life to an I am Spartacus moment. I think he also referred to what he was doing as civil disobedience and really wanted to say, you know, I'm taking a stand. But is it still civil disobedience if you and Senator Grassley already agreed that it was cool to release the documents? I think that's really the point

that Republicans were trying to make. I think the subject line of the email was actually like the not-so-disobedient role breakers or something of that effect. So did people like they did with Spartacus join in with Cory Booker and follow him? I'm Spartacus. I'm Spartacus. Were there any of the other Democratic senators getting on board? Yeah, I think Senator Dick Durbin was very aggressive.

And I just want to say to my colleagues, particularly my colleague from New Jersey, I completely agree with you. I concur with what you are doing. I'm Spartacus. I'm Spartacus. Let's jump into you are doing. I'm Spartacus. I'm Spartacus. Let's jump into this pit together. I'm Spartacus. Some of the other people who have been pushing the release of committee confidential documents include Maisie Hirono. I thank my colleague. Call me in too.

I'm Spartacus. I'm Spartacus. I'm Spartacus. I'm Spartacus. I'm Spartacus. I'm Spartacus. I'm Spartacus. I'm Spartacus. It really seemed like it was another collective effort to call attention to just how bonkers this process has been. So this was like a small mini fight and just a larger fight that's been going on for a long time. So do we have any idea how many of these committee confidential documents are behind the scenes and how many were eventually released to the public today?

The sense is that only a very small fraction were released. And they were specifically the emails that senators have called attention to. So these are ones that they've cited in questions to Kavanaugh. And I think that's part of the reason they were ultimately released. OK. But I think there are thousands that are actually behind the scenes. No one knows, you know, what they contain except for lawmakers who can only really allude to them in a very opaque way. So what was it like in the room once Cory Booker and the rest of the Democrats sort of took this stand against the Republicans in the room, against Brett Kavanaugh, against Senate tradition.

It got tense pretty quickly. And I think you can see that from the reaction from the Republican side. There's kind of this act people put on on both sides of the aisle about maintaining decorum and maintaining rules. Right. You constantly hear my friend, my friend, my colleague, my friend, who worked before, my friend. Right. Like, I really appreciate you. They clearly don't like each other that much. Right. And so I think John Cornyn, he's one of the top Republican senators,

really took personal issue with the way that Booker was handling things and even implied that he would be open to starting proceedings that could kick Booker out of the Senate, which would be the harshest punishment for doing something like this. No senator deserves to sit on this committee or serve in the Senate, in my view, if they decide to be a law unto themselves. Obviously, that is a huge stretch, and I think everybody knows that. But for somebody to say that about their colleague still says something. What would Cory Booker do if you weren't in the Senate anymore? What could he possibly do? I don't know. I feel like there's some opportunities coming up down the line.

Okay, Sarah, the moment has arrived. Let's hear about how you feel about that quip. It's good. Yeah? I like it. So I've had it for about a week. That's enough time to judge it, right? It's enough time.

My teeth feel clean. That's good. So that's a positive. I like the timer that it has. So it has like a two-minute timer because you're supposed to brush your teeth for two minutes. I hope my dentist doesn't listen to this because I don't always make it to two minutes because usually Max will start crying or something.

He doesn't like it when you brush your teeth. He doesn't like when I do anything that's not holding him. He's getting a little cranky right now. What's that, Max? I think it's cute. He's just excited. He's like, yeah, that new toothbrush. That new toothbrush doesn't go off in the middle of the night exactly yeah so that's a huge plus it has not gone off unexpectedly great teeth feel clean has a nice timer so i'm digging it so the whole getquip.com

slash explain experience went pretty well it did i've i've only positive reviews caris swisher you're joining me in the studio all week to talk about your podcast, the Recode Decode podcast. And I hear you have an episode that hits pretty close to home for us here today. Explain. Yeah, I had April Underwood. She's the chief product officer of Slack, which I think everybody uses. We use here at Vox. And she's one of the few prominent female executives in Silicon Valley, but running a company that's very hot.

I'd love to hear more about Slack. The history of that company is interesting. It started as a failed game company. Is that what it was? Slack was used to Slack each other back and forth by the founder, Stuart Butterfield. And it was an extra product they made just internally so they could develop games. And so when he was about to hand the money back to venture capitalists, he said, well, I've got this other thing. Do you want me to try to make a product out of it?

And they said, oh, whatever. You lost all our money. And then it became this. Wow. Yeah, I know.'ve got this other thing. Do you want me to try to make a product out of it? And they said, oh, whatever. You lost all our money. And then it became this. Wow. Yeah, I know. Recode Decode podcast. Find it wherever you find your podcasts. So, Lee, the million dollar question, what's in the emails?

It's always the question. It's always. It's a recurring theme in our contemporary politics. I think the first thing is that because they're emails, you're getting a more unique insight into how Kavanaugh thinks about different things in a way that you're not going to potentially in a public forum. And so one of these issues that was really explosive was his views on abortion and Roe v. Wade specifically. And I think the cop out answer that Kavanaugh has given repeatedly on Roe v. Wade is that he sees it as settled law, which is a precedent and he respects precedent. So he's going to keep it around. The issue is in this email, he literally invalidates what he said. He says the court can overturn precedent at any time. That is a real contradiction of, I think, the kind of message he's trying to put out there in a public forum. And when was it from? Was it from his time during the Bush administration?

Yes. Yeah. It was from his time at the Bush White House and some of the other emails that have come out have also been from that time and have been used, I think, to point out some more inconsistencies in the way that he's viewed things. So the one that Senator Booker is known for calling out is that Brett Kavanaugh was looking at a case related to the Department of Transportation and a policy that they had around advancing minority businesses. And basically in the email, he uses the term. These are your words now. Use a lot of legalisms and disguises to mask what is in reality a naked racial set aside. And that term is so loaded. It's tied to just so many negative connotations of how you would characterize government programs that might benefit minorities. And so when Cory Booker said that, I think there was, in the audience, there was this audible reaction because it's just such a stark and very charged term. And I think Kavanaugh himself was taken aback and asked to see the email. What are you reading from, sir?

Sir, I'm reading from an email dated August 8th. These are your words, but I don't need to know. Can I get a copy of it? You certainly can. But let's ask you what you believe now. And I think his shock actually compelled this other senator to question whether Booker was mischaracterizing the email. Tom Tillis actually jumped in. We just saw an example there where I even believed that the words that were being repeated

were words in an email authored by Judge Kavanaugh. I think it'd be helpful if we could suspend for long enough to have the documents available to the judge so that he can be answered in proper context. Is that an appropriate request? Later, that all came out. That was proven. And in terms of other things, I think

there was also an email that looked at how Kavanaugh was involved in surveillance programs. And then there was another that Senator Hirono was especially interested in concerning the constitutionality of certain protections for Native Hawaiians. Okay, so we've got a nice mix of Roe v. Wade, affirmative action, maybe some racial profiling in there catch him off guard. And he didn't really have a good response. Besides, I think going back to a claim he's made repeatedly, which is that he's personally advanced diversity. He's hired a record number of women, a record number of minority clerks, all of which are admirable things. But I think Sandra Booker especially was like, just because you're personally doing all these great things doesn't mean that the decisions you've made on a systemic level don't have negative impact on people.

Was part of the problem with Kavanaugh that he spent so much time in this presidential administration making calls that he did for the Bush administration is an ongoing open question. I think what's interesting, if you step back a little bit, is that Kavanaugh was actually nominated for the D.C. Circuit in 2003. But even at that time, his nomination was controversial enough that he didn't get a vote from the committee until 2006, which is a pretty long gap. And I think even in that hearing, a lot of the Bush administration policies came up, questions about torture, which we heard again this week. And I think what Democrats are trying to imply is that in that 2006 hearing, Kavanaugh said he was not involved in policies related to enemy combatants. And specifically, I think that speaks to torture policies, a lot of which happened during the Bush White House that were considered highly questionable. And I think Kavanaugh stood his ground and said, no, I was telling the truth in 2006, and I'm telling the truth now. And senators sought to highlight examples of his work related

to torture policy to basically suggest that his answers were misleading. I mean, it seems like Senator Leahy's going even a step further and implying that Judge Kavanaugh may have perjured himself in either those hearings or these. Yeah, yeah. I think he is trying to suggest that he may have, you know, I think people have kind of not used the word per about, which is that in the early 2000s, there was a hack of Senate Judiciary Democrats. And that hack exposed a ton of documents that showed how they felt about different judicial nominees. So that would basically give Republicans an advantage. Like if you're trying to confirm somebody, you already know what your opponent's going to say or do. And Kavanaugh did see some of those documents when he was a member of the Bush White House. But he's said, I did not know those were hacked.

I think those are just documents that were obtained by someone on the staff and they were shown to me. But what Leahy is trying to suggest is that all of these documents have clear markings on them that basically suggest like Democrats only or, you know, some kind of legalese that would suggest that this is a document as a Republican person, you're getting kind of under the table. Do the Democrats seem to have any other tricks up their sleeves? They're running out of time here, huh? Yeah, I think there was another thing that Senator Harris alluded to in her questioning last night, which was basically asking Kavanaugh if he's had a meeting with the Kazowitz law firm, which was started by President Trump's personal attorney, about the Mueller investigation.

How did Kavanaugh reactalled a lot, I think, for almost five minutes. And I think the issue was the question was quite broad. Have you discussed Mueller or his investigation with anyone at Kasowitz, Benson and Torres, the law firm founded by Mark Kasowitz, President Trump's personal lawyer? And I think he was like, well, there are a lot of people that work at this law firm. I need you to tell me a name and a place kind of thing. I need to know the, I'm not sure I know everyone who works at that law firm. They go back and forth a bunch of times on that. Watching the clip yesterday, you wonder why she asked the question so broadly. Yeah. Like she must have had a reason. Right. And she was trying to catch him in a lie, it seemed like. Yeah. Yeah. And I think like if for whatever reason there's a concrete meeting on the books that she can point to and he denies it, that's kind of an obvious claim of perjury potentially.

And I think he knew that, too, in case there was something that she was referring to. But it seemed like a lot of talking around this, like there's the idea that a meeting happened, but not entirely clear what it entailed, who it entailed, all of that. I would like to know the person you're thinking of, because what if there's... I think you're thinking of someone and you don't want to tell us. So, I mean, if there is this attempt to suggest that Kavanaugh has been misleading, maybe he's lied about things, maybe he's perjured. Is there a chance that that has consequences or is it a done deal? There's a lot of Democrats and Republicans saying, oh, we know this is basically the last day of the last job interview you'll ever have all day today. It sounds like, you know, the fix is in.

Yeah, I don't know what the procedure looks like if there is a legitimate claim of perjury. I think at that point, even Republicans, I'm guessing, are going to have to ask themselves, can we put a judicial nominee on the highest court in the U.S. if there's clear evidence that he perjured himself? And I think that's a pretty tough question to answer. But at the same time, I do think Kavanaugh is a very popular nominee among Republicans. And in the Senate, they have the majority. So unless I think a Republican decides to break from the group, it's not looking likely that there's going to be a huge impact from what's happened this week. Sarah Cliff, before we go, I should say that you and Max don't live alone. There's a husband involved.

Yes. Did he go to getquip.com slash explained as well when you did? Was he inspired? He did not. So he still has a different electric toothbrush. His was not struck by whatever rapture hit mine. So now we're a house divided. But if it ain't broke, don't fix it.

Exactly. But if it is broken. Fix it. Fix it. Quip it. Go to getqu yes. But maybe one day. But if it is broken. Fix it. Fix it. Quip it. Go to getquip.com slash explain. Thank you.