 This film starts with [Robert] Bork. 
This debate has been going on for 30 years. 
What does Bork represent, especially to conservative lawyers and conservative voters? 
What did he represent? 
Why the anger still to this day over what happened?
  There are some people who see Bork as seminal ideologically. 
And I actually see it as being essential nationally, that it was the first moment that you saw all-out war over a Supreme Court nominee. 
We've had disagreements in the past. 
We’ve had nominees that had been put forward and didn’t do well. 
People have had to withdraw. 
But Bork, everyone, everywhere, used every weapon possible to either promote him or destroy him. 
It really was the first example of the politics of destruction of the modern era. 
So you're using every technique and every tool at your disposal. 
And there were no undecideds. 
You loved him or you hated him. 
There's nobody in the middle. 
And we’d never seen that before. 
And the tragedy is that that set the tone for every Supreme Court nomination since then. 
It actually set the tone for almost every controversial political nomination. 
Robert Bork had far more impact than just as a judge or would-be justice. 
Yeah, I feel sorry for everyone who goes through the nomination process now, because there have been dozens who have been borked since Robert Bork.
  What about Bork was so irritating to the Democrats—the [Ted] Kennedy (D-Mass.) speech began it all.
What was it about Bork that sort of brought both sides to war?
  Robert Bork was the last nominee who was completely honest and candid and said everything they thought in the way that they thought it. 
He was the last nominee to ever come forward and say, “This is truly what I think; these are the cases that inform my beliefs.” 
And he opened himself up to so much criticism. 
You're supposed to be nominated because you're qualified and capable. 
You're supposed to be nominated because you can make decisions that aren’t ideological, that they are based on the Constitution, and you have the capability to separate your politics and your partisanship.
Now we know that that’s pie in the sky, that it never is that way. 
But up to that point, it was thought that if you are a—if you have a brilliant judicial mind, if you really understand the legal system, and the opinions that you write are sophisticated and powerful and based on fact, that you would win nomination, that the left would respect you, and the right would embrace you. 
And if it’s a Democrat, it’s the other direction, where Republicans would support a Democratic nominee even if they disagree with them intellectually. 
Bork was the first time that that assumption was destroyed. 
He was the first person ever, I think, to enter into popular culture because of how he was treated and because of how he responded and because of the circus that was created.
  But the left’s, of course, point of view is that he was going to be replacing a swing vote; he was very conservative; that his views were going to drag us back into rearguing civil rights and everything else. 
What of that argument?
  The left thought he was Satan. 
At least that’s how they treated him. 
The left thought that he was particularly dangerous because he was so smart, because his opinions were so strong. 
Their argument was—and the public listened to this—that this guy would write opinions that you could never undo. 
And so for the first time, the ideology trumped everything else. 
And no one said he wasn’t qualified and capable. 
They said that he would overturn decisions that they cared about, and therefore, not only did he need to be defeated; he needed to be destroyed. 
And I want to emphasize that. 
Up to that point, when you disagreed with someone who was a nominee, and they were qualified and capable, you said that. 
You would actually articulate that. 
In this case, they went at his credibility; they went at his—at his character; and they sought to destroy him.
  Right, OK. 
So let’s do [Clarence] Thomas. 
… Looks like he’s going to win; that’s going to be the reality. 
Then Anita Hill comes up. 
So the specter of—what was going on when you remember watching that? 
  Up to Robert Bork, there was a sense of civility to this; that you could disagree without destroying. 
Robert Bork changed that, and Clarence Thomas confirmed it. 
And with the Clarence Thomas nomination, everybody was watching. 
So I'm now in the process—my career has just gotten started, so I'm in the process of polling and focus-grouping for the first time, and I remember with Thomas that people went to their positions, separated and challenged him. 
And no one ever brought up race, although it was an undercurrent. 
And nobody really brought up what he said. 
It was all about whether you believed and agreed with her, not with him. 
She was sharp, and she was articulate, and so was he. 
And you had a situation, for the first time in my professional life, where people could see both sides at the same time, agree with both sides at the same time, and resent the fact that they were presented with this dispute with no way to resolve it. 
“Do you believe him or her?” 
“Yes.” 
“No, I’ll ask you again: Do you believe him or her?” 
“Yes.” 
“Well, which one do you believe?” 
“Yes.” 
And that was part of the ugliness of it, part of the discomfort. 
The topic was difficult for people. 
Remember, this is a long time ago. 
It’s not the same. 
People who are watching it now don’t realize this is decades before #MeToo, decades before Time’s Up. 
It was a different environment. 
And the conversation dealt with male and female relationships. 
It dealt with things that were never talked about, and the public had real trouble processing it and real trouble deciding who was right and who was telling the truth.
  … His use of coming out and the way he defended himself was to—some people say [he] used the race card, using the terminology “high-tech lynching.” 
What was going on there? 
And why was it successful, and how [did it motivate] people?
  You have two different factors at play here. 
The left doesn’t like seeing a black man with a conservative ideology, and it made it very difficult for them. 
They were always seeking, even back then, to play the race card, and they couldn’t this time. 
And then Clarence Thomas uses the phrase “high-tech lynching,” and everyone is now in chaos. 
Everyone is now, “He played the race card.” 
Wait a minute. 
It’s OK for someone on the left, if you're black and on the left, you can say that, but you can't on the right? 
There's no double standard that’s going on here. 
You say that we don’t respect women if we’re challenging her. 
The reason why he was so controversial is that all the assumptions up to that point were blown aside. 
Clarence Thomas didn’t look like a conservative, didn’t sound like a conservative. 
He was coming off the chaos of the Bork nomination and failure, and he was seeking a position, and Democrats really didn’t know how to handle it. 
I know everyone focuses about the anger of the Republicans in their support of Thomas and their indignation over his attacks, and yet the public was more interested in Anita Hill and more interested in watching how Democrats handled Thomas than they were the Republican indignation.
 … What were the lessons after this? 
  The people involved in Bork have a responsibility for changing the way we now nominate Supreme Court justices. 
They now want people with less of a record. 
They want people who are less outspoken. 
We’re now choosing people who are not as distinguished, but they know how to handle themselves in the confirmation hearing. 
We've chosen some great justices. 
But I know that so much of what goes on behind the scenes [is] can this guy survive, or this woman? 
Can they survive a confirmation hearing, rather than how would they vote, and how would they analyze some of the most important cases in American history? 
And that’s a tragedy. 
You are now punished for being candid. 
You are now destroyed for being in any way controversial. 
So everyone communicates as little as they possibly can to win their nomination, and that denies the public a chance to hear about these cases, chance to learn about them. 
Part of the reason why young people know so little when it comes to civility, when it comes to civics and citizenship, is because of these Supreme Court nominations. 
That’s the ultimate opportunity to have a national debate on all the social and cultural and workplace issues that we need to have, and it’s on the highest possible plane. 
And we can't do it anymore, because we’re just too partisan on the left, and too hyper critical on the right. 
And we have lost this chance for what would be such a healthy national debate. 
And it really, it is—it’s not a shame, it’s a crime against democracy that we’re in this position. 
 Let’s go talk about Merrick Garland for a second. 
So Scalia dies. 
… McConnell, 45 minutes later, on vacation, puts out a statement saying, “We will not consider any nominee until the next president.” 
Why did he do that? 
What conservatives—how [did] conservatives [view] that? 
What was your view when you heard that?
  There was no way that Mitch McConnell would be able to hold his conference together and prevent a nominee until the replacement of Barack Obama. 
No way. 
And he actually did it. 
And I don’t know how he did it. 
I talked to a whole bunch of senators within 24 hours. 
And I thought, at the time, this is an impossible strategy. 
I thought that there would be at least half a dozen Republicans that would break with him. 
I credit Mitch McConnell as much as any factor for holding the Republicans together and even helping a relatively strong Republican success in the election, relatively strong, obviously, the president, but in the House and the Senate, because what McConnell did, not only in preventing the discussion of a nominee, but he also demonstrated, which he had not done up to that point, that having control of the United States Senate actually matters. 
If you go back to that time, there's a big fracture that the Senate was not passing anything the House was; that the Republicans had promised so much, so many specific items about taxes, and the budget, and health care repeal, and all these things, and were not delivering it. 
Because of McConnell, because of that strategy, and because of the success of that strategy, they were able to go to the American people and say, “This is what happens if you give us a Republican Senate, that this proves that who controls the Senate matters.” 
And that worked for him on Election Day, and it actually worked for the Republicans in the two years since then, because to my surprise—but polling bears it out—Republicans care more about the Supreme Court than Democrats do. 
As much as Democrats don’t want to overturn Roe v. Wade, and they don’t, and they don’t like some of these laws or some of these rulings against unions or the workplace, Republicans care about the Constitution more than the Democrats do. 
Republicans care about the courts more than the Democrats do. 
These are issues that Republicans prioritize a lot more than Democrats do, and McConnell proved that the Senate matters. 
That will go down as his most effective decision. 
And you have to credit him, to some degree, for Republican success in 2016 and for not getting blown out in the Senate in 2018.
  McConnell, for his entire career, has been focused on judges, always understood the importance of judges. 
And during the Obama years—
  That’s easy. McConnell is a historian. 
I took him through my house once, and he’s looking at all the letters I've got on the wall, and he’s reading every single one—not the translation on the side, but he’s reading the actual historic text in the letter, because he wants to understand the implications. 
McConnell understands implication and consequence better than any United States senator. 
When you vote on legislation in the House and Senate, you're playing for the next election. 
When you put in a judge, you're playing for the next generation. 
And McConnell has always taken the long view. 
It’s not appreciated by political people, but those who study the institutions know that McConnell’s had a bigger impact on the United States Senate than any senator in my lifetime. 
  During the Obama years, why did the Democrats not get it? 
Why did Obama not understand that he was very slow on nominations, that he was being played, that there was a chess game being played between him and McConnell about the courts. 
The Democrats didn’t understand it. 
And when the norms were changed in the Senate, it made dramatic—
  You're missing it. They made—the Democrats made a big decision, because they were angry with the Republicans, so they took the judges down from 60 to 50. 
And what you need to understand, and Congress is, if you make that change when you're in power, it will be used against you when you're out of power.
  Explain that 60 to 50, the filibuster you're talking about.
 … I'm going to try to do this right, because I'm going to put it in context. 
Republicans were accused of obstructing the Obama administration, and it’s not true. 
They disagreed; they had different priorities. 
They did not obstruct. 
That was never a strategy. 
However, it was a strategy to go slow on judges, because they felt that this is the long game; that this is what's going to affect America long after Barack Obama is gone. 
And that strategy—the Democrats were frustrated, and they decided they had to do something about it. 
And so they changed the rules so that you could now approve a judge with 51 votes rather than the usual 60 it took to bring something to a vote. 
Now fast-forward to today. 
When Democrats don’t like that, because it means that Republicans can bring judges to a vote under Donald Trump much quicker, and so the Democrats have found their own way to slow things down by extending debate as long as is legally possible. 
So both sides have changed the rules, and both sides regret it. 
And I believe that in the next Congress that Democrats control, they're going to change everything again and make every vote a 51-vote majority, rather than requiring 60 votes to bring something to the floor. 
If you go back over the last 30 years, you will see a system that has been corrupted, a system that has become toxic, and nowhere is that more evident than over judicial appointments. 
And both sides bear responsibility. 
Both sides themselves did it. 
And we've had a mutually assured destruction, that’s exactly what we got. 
So we now have a judicial system that is grounded to a halt. 
And the American people don’t really know what's going on. 
  And you don’t see it getting better. 
  I don’t see that anything has gotten better over the last 30 years. 
It just seems like it is a slow descent into chaos, where intellect is less important than politics, where judicial decision making is less important than surviving a confirmation hearing, and where we are picking people who don’t have a long trail of provocative, thoughtful, intellectual decisions, because that will automatically disqualify them in this current environment. 
  … A lot of people said [Trump] won the election due to the list [of judges he would nominate], that it gave conservatives the confidence, and it gave him the votes.
  No, I don’t—I don’t buy that.
  Well, give us your point of view.
  Some people think that the reason why Donald Trump is President Trump is because of the list, and I don’t see it that way, because Trump voters did not vote for that list. 
They don’t know who’s on it. 
Most Trump voters don’t even know that list exists. 
So maybe some elites, maybe some at the top of the conservative movement approved of it, but it has nothing to do with Trump’s support on Election Day and nothing to do with Trump’s support now. 
They approve of the judicial nominations that he’s making, but it’s not relevant in politics, because this is—it’s too sophisticated. 
People don’t know. 
  … So let’s talk about [Brett] Kavanaugh. 
  Yeah, because there's nothing about Gorsuch. 
He was just—it was so quick and so easy, it just happened. 
That’s the way it used to be.
  But Kavanaugh, not so easy.
  No, Kavanaugh was very difficult. 
It was guaranteed to be difficult, because you were once again replacing a swing vote. 
It’s easy to replace someone on the left with someone on the left or someone on the right with someone on the right. 
I would point this out. 
When you take a look over time, and this is where conservatives get nervous, such as Justice [David] Souter—go back to Supreme Court Chief Justice Earl Warren, even John Roberts from time to time. 
You’ll see that the judges that become justices from the Democratic perspective toe the line, and they vote with each other consistently. 
And in these big cases, it’s the Republican nominees that tend to break or tend to change. 
And so conservatives wanted to know that they were electing a president who would stay true to an ideology and not appoint people who, like Justice Souter, comes in as a conservative and then ends up as a liberal, as a consistent liberal vote. 
And that is what President Trump has done. 
And I know there are people to this day who support him, not for his economic policy or immigration or trade or anything else; they support him for his judicial nominations, because they are sure that these are people with a belief system and with an intellect that can explain where they are, and why this is either constitutional or not constitutional. 
They don’t want surprises.
  … All right. 
So to the point of the swing vote. 
So we’re at Kavanaugh.
  OK, so Kavanaugh, the issue with Kavanaugh was not his writings; it was not his decisions; it was nothing about him except for this relationship that he supposedly had and what he was like when he was 17 and 18 years old. 
Now I ask people who interview me, “What were you like when you were 17 or 18? 
Did you do drugs? 
Did you drink too much? 
Did you ever break a window? 
Did you ever do something really stupid in your life?,” and most people I talk to didn’t just do it when they were 17; they did it when they were 21 or 22; that this is what you do when you're young. 
And for the first time that became a major issue, and it was a major issue because they couldn’t find anything else about him. …
I was doing focus groups at the time of the hearing, and Democrats said something I was expecting, which is they just didn’t believe him, and they only believed her. 
Republicans believed her, but they believed him at the same time. 
They thought something had happened to her, but he wasn’t the one to do it. 
So it wasn’t trying to rationalize. 
It wasn’t saying, “Well, he was young," or, "He had had too much to drink.” 
That wasn’t the issue. 
The issue was the chaos that was surrounding these hearings, the shouts from the galleries—they had to keep taking people out—the disruptions right outside the chamber, the protests that were going on in the Capitol, people laying down in the streets and blocking traffic. 
And this is the one time when the news media and the protesters were aligned. 
So for three days, every night, we saw thousands of women protesting this nomination in a very loud, aggressive, passionate way. 
And the media, I believe, thought this was a way to undermine his candidacy and a way to help the election that was only a few weeks away. 
And it did exactly the opposite. 
And what Republicans saw, and what they felt, was: “I don’t really like these members of Congress. 
I don’t really like Congress at all anyway, but I don’t want this chaos. 
I don’t want the yelling and screaming, and if this is what I'm going to get, I am going to vote, and I'm going to vote Republican.” 
So underneath this really huge tidal wave for Democrats was a much smaller wave, but important wave, for the Republicans, and it was because of the Kavanaugh hearings.
  But why blame the Democrats, not the Republicans? 
Both sides were shouting at each other.
  If you watched the news, you would see three or four Kavanaugh people absolutely engulfed by 300 anti-Kavanaugh people. 
Morning, noon, and night, everything you saw, everything in the newspaper, everything that was on that camera, everything was why Kavanaugh was horrible, why he needed to be defeated. 
If you remember, they held the elevator of Sen. [Jeff] Flake (R-Ariz.). 
They wouldn’t let him go. 
And that was repeated again and again, because the decision makers, the executive producers of these news organizations thought, at a minimum, that’s news, or just maybe they could tilt the debate.
And what they didn’t realize is that the average American in Ohio or Florida is watching this saying: “I don’t behave this way. 
They're children; they're immature. 
This is awful.” 
This had nothing to do with what Kavanaugh had to say and everything to do with how people were reacting around it, and it changed history as we know it. 
If there had been no Kavanaugh hearings, Democrats would have won the House and the Senate and governorships of Florida, Ohio and in other states. 
But because of the chaos surrounding Kavanaugh—I mean this truly—Republicans need to give Chuck Schumer (D-N.Y.) a donation. … 
  What was at stake with—again, you talked about it. 
This was going to change the balance of the court. 
This was a tried-and-true conservative that was going to replace a swing vote. 
For McConnell, some say that this moment was the revenge against Bork; I mean, it was the dream that he always had.
  No one thinks this way. 
… Every nominee to the Supreme Court is a reaction to the previous nomination, but it’s not a reaction to a nomination that happened 30 or 40 years ago. 
Each one is independent. 
The circumstances are different. 
The people who end up as the stars of the confirmation process are different. 
Kavanaugh was not a reaction to Bork; he was not a reaction to Thomas, even though they had some similar characteristics. 
It is a reaction to what is happening today, and it fueled the Democratic passion to vote, and it fueled Republican passion to stand up and fight back.
And the biggest tragedy—because it is—is that we are now hopelessly divided on the last thing that used to unite us, which is our judicial system. 
Now there's nothing that pulls us together. 
Nothing. 
 … Kavanaugh’s testimony, very divergent point of view about it. 
The president supposedly loved it. 
The Democrats basically saw it as partisan, changed everything forever. 
When you saw it and the people that you were polling—I mean, talking to—what were they saying?
  I had a very different reaction from the people I was polling. 
My reaction was, I cringed. 
I thought this was way too strong, way too indignant, and would cause people to think, "Is this the temperament of a Supreme Court nominee?"
So my reaction, I was tweeting it out. 
I don’t know who prepared him, but I just thought the tone was off. 
But politically, I was wrong. 
That righteous indignation lit up conservatives across the country. 
And within minutes of when he started, you could see the tweet storm. 
You could see the calls into talk radio. 
You could see it on the web and in social media. 
They're like, “Way to go”; “Don’t allow to happen to you what happened to Clarence Thomas.” 
Clarence Thomas was much more passive when they came after him, and he got angry at the end. 
Kavanaugh said, “I'm not going to take this.” 
And to the average core conservative, in a state like Ohio or Missouri, in some of these states where Senate races flipped, Florida, it emboldened conservatives that they like this; that this gentleman was not going to be railroaded. 
And they not only approved of it, but they cheered it. 
And the one who got the most praise of all, Lindsey Graham (R-S.C.), the Republican who so often is criticized by other Republicans for being too soft, suddenly became the hero. 
And the other hero of the day, senator from Maine, Susan Collins.
And as we tape this, she could lose her re-election because of it. 
But we dial-tested her speech on the floor of the Senate about 48 hours after she gave it, and it was incredible how people responded. 
Democrats said, “I don’t agree with her, but she’s looking at this like a statesman, not as a senator.” 
And that is the highest praise you can give somebody. 
  The Graham speech—because we talked to him yesterday. 
Take us to that moment, and why was it so astounding?
  The great moments of politics happen because you're not expecting it. 
They happen because someone does something out of character. 
Michael Bennet (D-Colo.) chewing out Ted Cruz (R-Texas) during the government shutdown—you're not expecting it. 
You expect Cory Booker (D-N.J.) to cry, because he’s an actor as much as he is a senator, and you expect him to use these histrionics. 
You do not expect that from Lindsey Graham. 
In fact, people are always afraid that Lindsey could switch sides. 
And his defense of Kavanaugh was so strong, so well-articulated, and it’s the tone, not just the words. 
And people saw this and said, “I had Lindsey all wrong.” 
I was at a conference that weekend with dozens and dozens of big-time political donors who were all saying to each other, “We’ve got to write him a check.” 
And these are people who never liked him before. 
And it’s because he showed a side of himself that we'd never seen before.
  So in summation, and you’ve already kind of given it to us, but the Kavanaugh—you’ve talked about also how the Bork hearings were seen forever, and will ever be looked back at, and the Thomas hearings are so important. 
The Kavanaugh hearings, how has that changed things? 
How has that moved the dial?
  If you believe that American democracy is at its best when it is passionate but civil, if you believe in a genuine exchange of ideas where people can learn something from them and potentially, potentially take a different point of view than when they walked into that conversation, then we have so poisoned the discourse in this country, and we did it in the one place where we used to come together unified. 
The judicial system isn't played for the next election. 
It’s played for the next generation and generations to come. 
And we have destroyed the civility; we have destroyed the intellectual discourse around it. 
These confirmations hearings are a joke. 
In the Kavanaugh case, it was a circus. 
And our country deserves something better. 
And we need people now, desperately need people, who will stop this and say: “Stop. 
You are destroying the roots of this democracy.” 
I don’t care whether women dress in white or whether Donald Trump goes off script and cracks a joke. 
That will be forgotten in days. 
How you treat a Supreme Court nominee and the destruction of discourse is going to affect us for decades. 
And this country is going to be worse because of it. 
That’s the impact.
  And the fear that Chief Justice Roberts recently talked about, the fact that his great fear is that the public will start seeing the Supreme Court as just another political institution in Washington.
  Justice Roberts was right. 
He’s only 10 years too late. 
It’s exactly how they see the Supreme Court right now. 
And our friends in the United States Senate, on both sides, created that environment, and now we have to live with it. 
And the problem is, we can't. 
