Kavanaugh Says He’s `Not Going Anywhere’

on Fox News last night. Sitting next to his wife, Kavanaugh said he wouldn't let what he called false accusations drive him away from the process. We're looking for a fair process where I can be heard and defend the my integrity, my lifelong record, my lifelong record of promoting dignity and equality for women, starting with the women who knew me when I was fourteen years old. I'm not going anywhere joining me is Neil Kincough, professor at Georgia

State University Law School. Neil, this is unprecedented for a Supreme Court nominee or even a federal Appellate Court judge. It seems more akin to what a politician might do before an election. How does this fit in with the

esteem projected by the justices on our nation's highest court. Yeah, I can't help but sort of picture the rest of the justice is actually just cringing over this because they really closely guard and highly value their privacy and the sort of being the proverbial man behind the curtain, right they they issue the opinions and their their private lives are entirely that private and really they're not known to the public. They don't seek to have a public or

political profile. Um. And so this this reality sort of upsets that in a way that I think it's got to make them all quite uncomfortable. What is the strategy behind this, as far as you can see, What advantage would it give him over testifying on Thursday. Well, I think he's trying to, um, first of all himself look sympathetic, um, to sort of you know, prepare the audience for Thursday, so to create first impressions that can then help color

how people view the hearings on Thursday. UM. I also think it serves a kind of a trial run, which is helpful because boy, it's going to be high stakes and nerve wracking on Thursday, and best to sort of get your your positions out there in practice, articulating them in front of a friendly audience, and they don't come any friendlier than Fox News. He avoided the most difficult questions, as he did in his confirmation hearings over and over. So what do you expect on Thursday? More avoidance or

maybe the Democratic Senators really nail him down. Well, so his strategy will be avoidance, right, That was his strategy throughout the throughout the hearings, and it was a strategy last night, and it will continue to be a strategy on Thursday, I'm sure, and the Democratic Senators are going to try to put him down. And I think that's

that's the game right there. The Justice is, particularly the Chief Justice John Roberts, say over and over again that the Supreme Court is not a part as an institution. You hear that in so many speeches. Does this interview in this confirmation process belie that assertion, Well, I don't think it. It undermines the claim that the Court is not partisan, um. But that's different from the claim that

it's not political. Right, And certainly the justices have very strong commitments um to constitutional principles that themselves link up to political agendas. And so while I don't think the justices vote based on Democrat versus Republican um, it's not at all surprising that the conservative justices adhere to conservative values and the progressive justices the progressive ones um. And so this kind of pulling back the curtain tends to expose that to the public in a way that justice

is like justice Roberts really prefer to keep hidden. Only one Supreme Court justice has been impeached in our nation's history, Samuel Chase in No. Four. Although he was not removed from his seat by the Senate, senator quitted him. Now. Democratic Senator Sheldon white House has suggested that if Democrats win in November, they'll look into the accusations leveled against Kavanaugh if he is in fact confirmed. What what would that look like? Well, sure, so that I don't see

how that could work. Frankly, Um, it could. You could hold hearings in in the House, and the House could even draw up articles of impeachment and pass them if there's a Democratic majority, I suppose. But in order to win a conviction and removal from office, that requires a two thirds vote in the Senate, and that's just not going to happen. Well, a Fordyce went through the beginnings of this and he resigned from the Supreme Court. That's true. Um,

he was nominated while he was an associate justice. He was nominated to be the chief Justice, and some significant allegations of improprieties while on the bench um um were raised to the point where he lost bipartisan support. Um. He was eventually given he was eventually given a vote, which he lost. Um. But you know, so it is possible that a sitting justice who engages and really significant

impropriety um can be impeached and removed from office. But it would be really remarkable for that impropriety to be from the period we're talking about with respect to Judge kaffanaugh Right. So Justice Fortis was Justice Fortis when he when he engaged in the problematic behavior. He wasn't high school student or college student. Fortist. Now, UM, let's talk just talk about the idea of a lifetime appointment and whether this leads to questioning whether that's a wise thing.

There are a lot of reasons to question whether lifetime appointments are a wise thing. At the time of the framing a lifetime appointment was was effectively about a twenty year deal. Chief Justice John Marshall outlasted that by a little bit. But for the most part, and for the most of the nation's history, the average tenure on the Supreme Court was around twenty years. But the recent trend has been to a point younger and younger justices, so they can serve longer and longer, and I don't think

that helps institutionally with the Court. So there's some really serious UM people who suggested term limits, like twenty year terms rather than lifetime tenure, which I think gets closer to the original design that the Framers had in mind. So what's your take on whether or not Kavana will be confirmed? Do you have an idea right now of what's going to happen. I think it's hanging by a

threat at this point. The allegations are quite credible. When when last we spoke, UM, Dr Blasi Ford had not yet come forward, had not issued her the allegations had gotten out, but she said she didn't want to come forward. She didn't want her name to be known. We didn't know her name at that point, Um, and she didn't want to test by. But now that she's come forward that others have come forward. Um the denomination in critical shape, and I think I think Kevina is going to have

to pull off a masterful performance on Thursday to survive this. Right, we will be watching. Thanks so much, Neil. That's Neil Kincoff. He's a professor at Georgia State University Law School. The future of Deputy Attorney General Rod Rosenstein remains uncertain amid reports that he was either fired or offered his resignation. Will get more clarity on Thursday when Rosenstein meets with President Trump. Press Secretary Sarah Sanders discussed the situation on

Good Morning America today. They had an extended conversation and decided to continue it, and they're going to do that on Thursday, and both agree that it was best to have a conversation like that in person, and that's what they're gonna do in two days. Joining me is Jimmy Carule, professor at Notre Dame Law School. Jimmy Trump's main concern with Rosenstein, as expressed, is over the Mueller investigation. What happens If that is what Trump wants to discuss with Rosenstein,

what can Rosenstein tell him? Well, again, I think it would be inappropriate for the President to engage in any conversation with the Deputy Attorney General regarding a pending investigation, criminal investigation, and in particular, a criminal investigation that is targeting members of the Trump campaign and perhaps even the President himself. So he should just refrain from getting any detail into any details about the investigation whatsoever. That doesn't

leave much because that's what that's what you know. That seems to be where he's been aiming his tweets and his comments. Well, again, I think the concern is even more more broader than than that. I think that that he wants to remove Rosenstein from overseeing the Moller investigation, and that's a means to an end. The ultimate end is to have the investigation con terminated, and I think that would require the firing of Mueller, and right now

Rosenstein Rosenstein stands in the way of that happening. Let's discuss the difference between what could happen if Rosenstein resigns and if he's fired legally as well as politically, because if he resigns, Trump can replace him with another Senate approved confirm me. But what happens if he is fired? Yeah, if he's fired, that's going to add some some fuel to the fire, so to speak, to the obstruction of

justice claim. That would then be the second major Department of Justice official has been fired by the President who is connected in a very direct way to the Muller investigation, And of course I'm referring to former FBI Director James Comey, who was fired in last year, in two thousand seventeen, So that would strengthen I think the obstruction of justice argument that is being investor sigated by by Mueller. How

is let's talk about what Mueller is doing. Do you see signs that he has preserved his investigation in various ways so that if something does happen to him, the investigation can proceed or at least the evidence that they've gathered,

I think absolutely yes. With respect to individuals that have agreed to to cooperate in the Muller investigation, and they're quite a number, including most recently Paul Mantaford, the the chairman of the two thousand and sixteen from presidential campaign, I'm certain that with respect to those cooperating individuals, what do they know about the that's relevant to the investigation has been codified either in grand jury testimony again under oath or in police FBI reports again that that again

it's a it's a felony to light of the FBI. So what they know, their knowledge has been reduced to grandjury transcripts or FBI reports who was codified and in that manner, So what would be the greatest danger forgetting politically, what would be the greatest danger to the Muller investigation if Rosenstein is either fired or resigns, well, assuming that

that it's not complete or perhaps not even near completion. Uh, the person that that replaces Rosenstein then would be in a position to conceivably fire Muller or slow the investigation down, or with respect to recommendations made by Mueller involving the ongoing investigation, the person that the new deputy Attorney General could could deny those requests and and in that effort slowed down the investigation for the benefit of the president.

So it has some potential far sweeping consequences in a negative way with respect to the pending investigation. You know, we forget that Rosenstein has other things to do in his job besides supervised the Mueller investigation, and uh, you know, discussed to discuss things with President Trump. And he has. His service has spanned three different presidents. Tell us about his job outside of the Mueller investigation, how high profile

and intense it is. Well, he's basically the Deputy Attorney General, is basically the chief operating officer for the Department of Justice, and so he's responsible or she's responsible for overseeing the day to day operations of the Department of Justice, and that includes the the efforts of the investigations of the FBI, the d e A, the Bureau of Alcohol, Tobacco, and Firearms.

He's engaged in overseeing virtually every high profile criminal investigation that's being conducted by a d J federal law enforcement agency. And so again, the Mueller investigation, while important and certainly a priority, it's one of many priorities that are that the Deputy Attorney General rosen Stein is overseen. Will rosen Stein still have a job on Thursday, and what about after the mid terms? I think it's I think it's

highly unlikely. I think that that his days are are certainly numbered, and I certainly would not be surprised to learn on Thursday that he has submitted his resignation to President Trump and President Trump has accepted it. Now what's interesting after that is what happens next, and so is the President going to move another Senate confirmed appointee into that position and who is that likely to be? And I think that the greatest concern, and perhaps why the

President is most conflicted, is that is that decision. Is that going to be uh? Is that going to consume all of the media's attention over the next several weeks leading up to the mid term elections. And I'm sure the president and doesn't want that. He doesn't want the Muller investigation to be the lead story every day over the next five weeks, but instead he'd want the confirmation of Kavanaugh, assuming it happens, and tax cuts and other issues.

You have to leave it there, Jimmy, that's Jimmy Garoule, a Notre Dame Law School professor. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg