is lawyering up with a high-powered attorney. it is down 11%. one big investment firm says it will go down to 225. two big stories, kavanaugh, tesla, big deal, neil cavuto. it is yours. neil: stuart, thank you very much. ahead of that 1:30 vote to yea or nay to get him out of the committee. the clock would roll on to week long debate we're told on a tuesday vote. what is remarkable ahead had of that, what is going on with the markets. we're finishing the month and the quarter, what is remarkable through all of this, the crosscurrents on the judge, whether he makes it or not to the supreme court. the back and forth on trade. whether we secure a deal with canada, let alone china. all the concerns back and forth about rod rosenstein, whether the president fires him, let's him stay on. stocks have been up in the quarter alone, that will be over

with by the end of the day. the dow up close 9%. s&p 500 up better than 7%. the nasdaq up nearly 7%. does that look like a market fretting over all the developments? there could be occasionally surprise, might step them back. i find it interesting not to read too much into the accuracy of these folks because they're no more prescient than you and i but they bet many, money that is, where things are going. they're not really worried about where things are going. they like tailwind better-than-expected earnings. strong pronouncements out of corporate america to reinvest tax cuts and money not only back into the stock and their companies but sharing the loot with their workers not all of workers and not all the companies. that is backdrop for much better-than-expected economic performance. that is ruling the roost. we'll follow that as we wind up 90 minutes away from the crucial vote in the committee. the backdrop is amazing

performance, tesla notwithstanding what is happening at the corner of wall and broad. i always find that fascinating. it is a nerd obsessions forgive me, a backdrop to amazing economy and consumer sentiment numbers. even in the face of tariffs and like make the shopping more pricey. people don't seem to care. whether you want to buy what investors are saying, what shoppers are saying, your call, democrat or republican, the fact of the matter most americans feel upbeat going on in the country, this political drama notwithstanding. i thought i would get that off right away. meantime the drama in washington, d.c., predictably it will be a party-line vote. we confirmed that after jeff flake said i will be a yes vote on brett kavanaugh. fox senior producer on capitol hill chad pergram.

>> not successful to have a committee vote to the floor but with flake, it will get out of committee 11-10. it goes to the senate floor nor procedural vote and debate on the nomination on saturday and sunday. you would have a vote to cut off debate on monday and confirmmation vote sometime late in the day on tuesday. brett kavanaugh is much closer now to being confirmed than he was about 24 hours ago. the reason, bob corker, last night, republican from tennessee he announced he was a yes. jeff flake, as you say the republican from arizona announced he was a yes. i talked to jeff flake last night in the basement of the capitol. he was pretty anguished. he was sweating what this decision was going to be. we have another bit of news before we came on the air in just the past 20 minutes, joe donnelly, democratic senator from indiana, facing challenging re-election in fall, he is announced he is a no. i will read you a little bit of donnelly's statement, he was thought to be somebody in play for the democrats.

i have deep reservations about brett kavanaugh. i will oppose the nomination. there has only been 113 persons whoever served on the supreme court. i think this is a bridge too far with kavanaugh. neil: that is very interesting. now if he is definite no vote as he said, people will look i guess at joe manchin right now get a sense from him. then it really comes down to all republicans have to be on board. the most they can lose. >> i said before it is about the math. it is about the math, it is about the math. susan collins and lisa murkowski. mike ends enzi, wyoming, he doesn't announce the votes until roll call. that is his custom. do they get manchin or maybe heidi heitkamp. mazie hirono, democratic senator from hawaii earlier today after

she walked out of the committee in protest along with kamala harris, democrat from california, there are still senators undecided. we can still defeat this nomination. another thing that happened interesting this morning during the committee, this was very reflective what happened in 1991 where you had house democratic women going over to the senate to talk about anita hill, clarence thomas. similar moment in the committee, 20 democratic women standing at committee, staring at chuck grassley of the committee, and staring daggers and republicans how they feel they handled the nomination. right now brett kavanaugh is a little closer. nothing is done yet. it is about the math, neil. neil: it is about the math. remind us from very beginning. chad breaking that news, one of those democrats happening their hopes on republicans, joe donnelly, up for re-election in indiana, a state president won appreciably is going to vote no.

he will vote no. the only democrat getting this much scrutiny is west virginia's joe manchin held open the possibility he would go either way. if it ends up being all democrats voting no. that is putting pressure on republicans who can't lose more than one. "daily caller" news foundation editor-in-chief, chris bedford. what do you think? >> joe manchin in west virginia is in a tough position. he is still ahead in the polls in west virginia. he has 10 to 12 points in the polls. but if he votes no on the supreme court nominee, that is the kind of thing that really, really is going to hurt him in west virginia. he could drop eight, nine, points, suddenly end up in competitive race. he is not showing a lot of courage right now. unless something comes out to corroborate this further he plans to vote yes but he won't announce anything because he is watching collins and murkowski, last republican holdouts. if he says i will vote for the

nominee, go against the the party. he needs one of them to pass. looking good. roller coaster, neil. sometimes in the morning it looks good for kavanaugh. in the evening it looks absolutely terrible. we don't know what will happen. neil: you could argue joe donnelly indiana weighed the same issues ultimately decided to go the other way. that too could cost him in indiana, a state the president won handily. what do you think? >> i think it will. i'm surprised the chuck schumer has been so iron fisted with the senate. there is a lot of pressure from the liberal base that they have to tow the line of resistance. fight president trump at every level. for a guy like joe donnelly, i don't understand why the democratic leadership pushed them on hard votes on taxes or on the supreme court. you should give your senators in this much trouble a little room to breathe, especially if it looks like it might pass anyways. neil: maybe this whole drama over brett kavanaugh and charges of christine ford gave him some wiggle room, some cover he

normally wouldn't have had, he is using it, what do you think? >> yesterday was intense. we were watching the hearing the entire day. people had to come away thinking either one of those two people is sociopathic liar, or someone there who is mistaken, probably professor ford, because they gave such intense and such passionate defenses of their point of view. but at the end of the day it was a he said/she said. there is still cover for donnelly. i don't think enough not to get the republican base really riled up. neil: we shall see. chris, thank you very, very much. >> thank you. neil: lindsey graham has been making some memorable remarks on this, so too again today on setting precedent. listen. >> this has never been about the truth. this has been about the delay and destruction. and if we reward this, it is the end of good people wanting to be

judges. neil: all right, mercedes cullen. let's assume by the skin of his teeth the judge gets through and become as supreme court justice. a number of democrats will not forget this, follow up on this, initiate impeachment proceedings against him had, even if he makes it, even when he is on the high court. what now? >> difficult to impeach a job. certainly one at supreme court level. it will be a long uphill battle if that is their endgame. frankly it is vote your conscience, vote what you have the information ahead of you. if you believe, senators believe they have enough evidence to push the nominee forward, 1:30 this afternoon, so be it. vote your conscience. if you don't abstain. to have this lofty idea somehow later on you're going to be able to impeach the judge, that is a very, very difficult road to hoe. neil: what do you make the american bar association view, let's have that investigation?

yeah it doesn't make a final conclusion but the fbi would have the power to talk to any and all witnesses or, you anyone having to do with this? >> right. neil: did that change or alter this debate or is it finished? >> it is amazing because the bar association had initially approved the nomination. neil: right, right. >> up until recently they approved it. certainly their 180 what they felt was a saw two very compelling witnesses. all of us were riveted by what we saw yesterday. these were two very credible, compelling witnesses. they sat back, if we're attorneys i personally do these investigations in corporate america routinely. if you have any strings of evidence, if there is any evidence out there, you don't stop at accuser and accused. why is the bar association is stepping forward, this is what we do, many of us do on routine basis in corporate america. some of those in city government, they do it in a criminal case. frankly that is what you have to do. neil: if it just meant the fbi

being final stamp of approval, it makes no conclusion, either side could use that to their liking. witnesses some who did remember, others who didn't. you know what i'm saying? >> exactly. neil: would it offer much conclusion one way or the other? >> that is a great point, neil. there is no final conclusion by the fbi. the fbi would be a third party conducting investigation as to underlying witnesses, documents, whatever there is that is out there, they believe there might be concerning what happened to dr. ford. they would pursue it. but frankly you would have no conclusion whatsoever. the fbi would not lead you to any conclusion. they're not trier of fact. they're an investigative body. it would be just to fortify the knowledge, the information that we know. neil: okay. mercedes thank you very, very much. >> thanks, neil. neil: we're following a lot of developments again. we're a little bit more than hour 20 minutes away from the vote in this committee. everything tends to get pushed back yesterday.

they were off by i think seven hours yesterday. i'm going to debate how long that would take with the accuser and the accused. ford and of course hearing ultimately from brett kavanaugh. they could be off on this as well. but the plan is at about 1:30 eastern time, a vote within committee. there are 11 republicans, 10 democrats. that is expected to be the way it will go. 11 will vote to say yes. brett kavanaugh, you should be a supreme court justice. get that out of committee. 10 democrats saying no, you should not be. battle royale, and clock ticking for debate on capitol hill through this weekend. likely tuesday vote in the full senate. the indication with jeff flake voting yes, the prospects are looking better that the judge will become a supreme court justice even though we just learned as well, joe donnelly, democrat of indiana, up in the re-election battle of his life is a no vote, despite pressure on him in a state donald trump won big. so you never know. more after this.

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take it up. at issue making individual cuts permanent. also extending some tax relief and further benefits to businesses and writeoffs and that sort of thing. again, chairman kevin brady, the house ways and means committee led this effort. again it is not expected to go anywhere. republicans use it on the stomach to say they're pursuing it. doesn't look like the senate will take it up. there is tesla, what is going on here, looking at the worst trading day in five years. charlie gasparino is the reason why. he is on top of it. >> well we were talking about mr. kavanaugh hearing yesterday, while the other big news yesterday elon musk is phasing fraud charges over his funding secured tweet. we were the first to break the story that the sec launched aning aggressive investigation with subpoenas that whether he had funding secured to take the can

for 420 was secured. a week before that the sec sent out those subpoenas. in about six to eight weeks the sec wrapped up an investigation that included taking depositions, sending a wells notice where you give the target a chance to say, don't charge me. and filing the paperwork. that is extremely fast. that means they believed they have got this guy nailed and they think it is an open-and-shut case on this one issue. remember there is another outstanding issue whether the company was misleading investors about the timing of its various products, its various cars whether they come out on time but on this thing i think they have him nailed. this is the stuff we broke today here at fox business first to report that elon musk was offered a time-limited ban from the securities industry. i heard it was two years, where he would not be ceo or chairman of tesla for two years. someone else would have to come in. he could potentially end that

arrangement, something that happened with her insider trading stuff. he turned it down. and he turned around and hired two aggressive lawyers, the same two lawyers that represented mark cuban when he successfully back sec insider trading violations. the entrepreneur was charged with insider trading. he took them on. aggressively fought them. he hired two guys, chris clark, former u.s. attorney, one of the top litigators at lath that many and watkins in new york. his partner defending cuban, a guy named stephen best, two very experienced white-collar attorneys he hired. from what i understand he was somewhat unhappy with his current team. his current team was raul campos, long time figure in washington, former sec commissioner. steve farina, a very good litigator at williams and connelly, but more of the laid-back variety. he went out and hired these two

guys who are known to mount vigorous defenses, which means he is going to fight this thing. whether he should or not is a whole another story but he is going to fight it. people i know close to the sec believe they offered him a very fair settlement, a two-year ban. neil: two year ban for those who invest in tesla without the edge legendary founder would be a financial hit. >> maybe could be on creative side as a genius. but he said no. other interesting thing, neal, brought my attention a very good short seller whose name is -- he wondered why this sec case was filed in the southern district of new york and not in the northern district of california where the case was initially being vecked by the sec? it is very weird that the new york office may be involved in this. the sec's new york office which signals a very expansive

investigation. maybe it is because the new york office already had an existing investigation on to some of the statements coming out of the company for their model 3 and other, whether they were matching up to reality. neil: right. >> very odd that the southern district is somehow involved in this. should have been filed out there. lo and behold it is filed out there. neil: is this road map to criminal charges? >> we know they're looking at it. i would say this, they would really, it is a harder case to put someone in jail over this. listen, go through it sequentially. he hates the short sellers. they're bringing up all sorts of stuff about him, questioning his finances, by the way legitimate questioning. stock is starting to tank. he looks to stick -- basically goes out and says i want to take this private. he has some marginal conversations about taking it private but he cites the whole thing is done except for a shareholder vote and cites a price. neil: right. >> none that was really, none of that comports with reality.

is that necessarily something that will put you in jail if you actually did have some marginal conversations with someone? you know what i'm saying? the bar, intent bar to fraud is much higher on a criminal case. just speaking to enough attorneys and doing this for a while he would need an email where he says okay, i know i'm lying, or i want to really stick it to the shorts and who cares whether i got this or not. you would need that level of detail, at least according to lawyers i speak with to put them in jail for this. the existential threat, as i always told you with him is in the sec charge and in, because they can ban you from the securities & exchange commission -- here is the thing if you don't take the deal and prosecute and win. they will not be easy on you. they may want him out for good. that is another thing if you're a shareholder of tesla you have to factor into the stock. another thing i think you have to factor into the stock, i

don't know why the board isn't doing this, they need a number two. maybe a number two is afraid to look at the books. i don't know. these are questions that don't make sense. neil: but you do. >> answers that don't make sense to these questions i should say. neil: charlie gasparino, he is the best. meantime take you back to washington right now. the back and forth is going on in the judiciary committee. the chairman chuck grassley is letting everyone have their say even if they go over their time. this 1:30 thing could be a moving target. that is the time the committee will vote along party lines, 11-10 to make judge kavanaugh a justice on the supreme court. the ultimate battle will be in the full senate. while some pieces are coming together for brett kavanaugh, not all are. we still don't know how republicans like susan collins will vote or lisa murkowski of alaska. the bottom line we heard from jon tester of montana, he is

democrat. he is up for re-election what a safe republican state, although doing very well in the polls he is definite no vote. add him to joe donnelly, democrat in indiana, tight election of his own. he is a no vote. have not heard from joe manchin, the battle of his life in west virginia. he has a comfortable 10-point lead in some polls. if this were to factor out all democrats voting we don't know that. all republicans would have to vote,. that is how it is coming down. a lot more attention normal to the susan colins, and sues can murkowskis, that is where the battle royale will be. not to the committee but the full senate where the debate will ensue going forward. more after this. urprised it meas in my kitchen. so, that means no breakfast? voya. helping you to and through retirement.

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>> welcome back to "cavuto: coast to coast," i'm connell mcshane on the floor of the new york stock exchange following up on charlie gasparino's fine reporting with a look at shares of tesla today getting hammered as charlie was talking about with this sec lawsuit accusing elon musk of fraud down by 11 1/2% today. the sec saying musk made a number of false and misleading statements taking tesla private, but we'll look at some other auto stocks as well. i want to point out some interesting analyst comments that have come in on tesla it set of today as you look at other automakers, ford and general motors. citigroup downgrading tesla to a sell. no doubt if musk departs the company it would hurt the brand and barclays, says if musk leaves that is worth $10 billion worth of market cap for tesla. speaking of market cap, you may remember all the stories out there in august of last year, august of 2017 saying that tesla had overtaken general motors, as the most valuable car company in

the world. not true anymore. with the decline in the market today, that $35 drop for tesla stock price, general motors passing tesla. it is worth more in terms of market cap. we'll follow to see how low it goes, neil but for now it is back to you. neil: connell, thank you very, very much. still keeping an eye on this hearing. keeping an eye on trade talks. i believe we have until tomorrow, the canadians do to cobble a deal with the united states. if tomorrow is the deadline to scrabble a deal together with the canadians t wouldn't be with canada but a u.s.-meggs be -- mexico trade agreement. terry duffy, good to have you. >> thank you, neal appreciate it. neil: what happens first off, democrats said there is no nafta without canada but right now there is no canada looking to do a deal with us on nafta so what happens if it is no canada?

>> well, i am not quite sure, neil. we haven't seen this in quite some time since the original deal was inked back in the '90s under president clinton and commerce secretary daily. we'll see where it goes. appears from what i'm seeing, the canadian part of the nafta agreement they could still come in. it doesn't prohibit them even though the deadline is supposedly today, tomorrow or the next day. you could get through the canadian elections. i know the folks down in mexico are looking to have this as part of their legacy. so it seems to me more of a political timeline, than a timeline for a good trade agreement down the road. neil: speaking of a lot of stuff your exchange covers, a lot of the commodities that have been running up save for some of the agricultural items because of the trade back and forth with china, what have you, we have interest rates in and out of

seven-year highs. oil in and out of four or five-year highs. stocks continue to do well. almost every key group is doing well. i'm wondering what you just make of that odd phenomenon? >> well i think, you know, funny you mentioned it, neal, i was thinking about this today. i was looking at united airlines as a great example. the so the airlines are a good proxy what is going on. oscar munoz has done a tremendous job at united continental and they're trading just a couple dollars off their 52-week high, yet oil is trading in the higher echelon. so that normally doesn't coincide together at the same time. maybe the price of oil is finding a new normal. businesses are adapting, adjusting. the united states of america is producing roughly 11 million barrels a day under 18 billion consumption. the rest of the world is producing oil. maybe this is a new normal. when oil hit $26 a barrel a lot

of companies were in a world of hurt at that price as well. that is something we need to look at. normally the airlines would never do quite this well with the oil prices where they're at, if you look at the grind markets, the grains have not done a thing last six months. they're in a small range. nafta with the milk and dairy issues, milk basically in the same price range it has been january to date. not a whole lot of volatility in these products and yet we're still seeing the growth in the economy and the stock market. now you're saying interest rates at three-year highs but they're still at historic lows. to me it's a pretty interesting time we're living in. neil: you know what is interesting, you can extend soybeans to that, that is the first group hit but china would stop soybeans, we're told, i don't know that it is true, you know better than i, chinese buying them up again not near the numbers prior escalations and soybeans were close to getting back to where they were

before all of this. i don't know why that would be. is it the presumption traders thinking this never comes to blows or that the market can absorb all of this, get through all of this? the wind at everyone's back is improving economy, to your points about interest rates rising and oil rising, reflect as improving economy so that wins all? >> yeah. i think that is exactly right. and listen, neil, we're talking about food products and how we need to feed the world sometimes we get, these get thrown into a trade war or trade talks. then eventually people start to forget about the trade, they think about how will we feed people around the world? there is roughly 8 to 9 billion people, 7 billion, number in total, that is a lot of people need to be fed. if you ever have situations, where you have bad crops, things of that nature, these products go away in a hurry. yes, doesn't surprise me a bit to see traders bidding these up

a little bit even in lieu of trade wars. neil: what i see, we are out of a quarter as we are now in trading, a lot of people reposition the portfolios a little bit. they might say i don't have enough commodities or specific commodities or need more exposure to what is going on in the agricultural arena, to your point, energy arena, bond futures, all of that, how much is likely to come into the play in the weeks ahead as people sort of rejigger for the final three months of the year? >> you know that is another good question. the way i measure that, neil, i look at open positions on cm ebooks today. since we trade all the asset classes you referenced, i look at open positions by the different asset classes. we're sitting roughly 120, to 122 million open positions spread throughout interest rates, energy, agriculture, in other products and equities. you know what? all of them are pretty much stable compared to the way they were a year ago which is fairly interesting how people are

positioning their portfolios which is telling me that diverse citycation of people's cash portfolios is reflection on future side. we're already seeing a great diversification of people's portfolios leading up into either trade wars or elections. neil: something is going on behind the scenes. terry, very good seeing you. terry duffy, cme group chairman and ceo. thank you, sir. switching to washington. we're watching that the brett kavanaugh hearing going on with the judiciary committee deciding his fate. a little more than an hour from now, chuck grassley, chairman of that committee, letting everyone have his or her say, even if it goes beyond the normal time limit for these guys to state their case before or against judge kavanaugh. given republicans have 11-10 edge on that committee it is expected to go party vote. that the judge will be voted out of committee with 11-10 approval. the battle is in the senate. the clock ticks over the weekend

up to a tuesday full senate vote. we're dotting the is, crossing the ts on unknown votes. jeff flake arizona said he would be a yes vote. joe don't nelly, running for re-election in indiana with some folks with early indication he would vote no on brett kavanaugh. no word from joe manchin. it will come down increasingly to two republicans, getting closely scrutinized right now. sues can collins of maine and lisa murkowski of alaska. if they were both to vet yo, assuming all other republicans vote yes, the judge become as justice. they cannot afford, republicans to lose more than one vote. in the case of one vote, 51-49 republican senate. you would have to have the vice president of the united states be the tie-breaker. it is a moot point if two republicans vote against the judge. we know a vote is coming up in

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neil: we're getting word that rod rosenstein, the deputy attorney general has agreed to meet with house judiciary committee chair bob goodlatte. congressman goodlatte and his committee have been very angry at the deputy attorney general for not being more forthcoming not only with testimony and data, paperwork, files, all of that, going back in some cases years. so the fact they're meeting, timing of the meeting could be next few weeks, seems to telegraph the president of the united states will keep him on board. they have not had a one-on-one pow-wow here. they find it interesting, that is, mr. rosen stein agreed to

meet with the judiciary committee. that mow would you -- pow-wow was put off yesterday with the kavanaugh drama. that one of the more not worthy developments of the day. the other development is the tax cut 2.0. it might die there because the senate is not expected to take it up before the midterms. kevin brady house ways and means chairman, big proponent of making tax cuts permanent, tying up lose ends to make it more palatable to voters of all sorts. it might stop at the house. that might be good enough issue for them to run on in the house. we shall see. google looking to meet with lawmakers over the question of censorship. the question how far will they go and how far will he go? jeremy owens and our own susan li. susan, what is latest you're hearing about this.

>> he is very busy because sundar pichai will testify. kevin mccarthy is very vocal of the criticism of google and pichai. google is shaking hands, pressing palms, i think they have to at this point. neil: jeremy. are the bias worries real or legitimate? >> not really. google wants its platform to be unbiased just like journalists to be unbiased. it is not always that way. the problem they're building this platform and allowing people to look say this is wrong, we need to go after that. if a lot of people are going after one side, you will see the side get hit a little bit more often. so it is really a user-controlled platform at this point and that is the results are not going to be something

that google is truly controlling or facebook or any of these other platforms that we deal with. neil: susan, one of the arguments in google's response we're best at search of traditional media thaw cull through when you make the search. if you use the premise, many in the mainstream media, this is not blanket indictment, lean left, that you will get material that leans left. that is not google's fault. >> you remember the report as week ago when we had the emails being leaked that maybe google was trying to alter their algorithms but trying to alter search results in reaction to the first travel ban in january of 2016, remember? you saw the reaction in the leaked video in the day after the elections of 2016. i'm not sure it is as neutral as jeremy puts it, i think they try at least. neil: jeremy, one thing with

these guys, we know how many of them personally feel. that is fine. we have all our personal biases. seeing reaction of people after the election. jack dorsey many comes before twitter shareholders and media, i personally am liberal,, i lean left. fine. but is there a left lean that seeps in how they do business? >> look at "the wall street journal" article you referenced they were looking at fake news that was coming across on youtube and google. in response to the travel ban and others. they were talking about how do we approach this, how do we change? that is not trying to stifle conservative views besides what the headline says. that is simply trying to give an algorithm that gives people the best search results when it comes to google. neil: you don't think on the part -- if you had a company and whatever, you leaned to the left that your inclination is going to be to look and stack things that lean to the left, either

accidentally or unintentionally through algorithms and the like to test metrics you only seem to think are fair? >> i don't think if i owned the company, that that would be the goal. the goal would be to make as muchs money as possible. neil: you're a fair and balanced guy. some people are max gnat on the left and can apply to the right as well. what do you think? >> i think google is thousands and thousands of people and all these people have a hand in this. you can't say this one person has this. they have oversight. people are there to look at it. if they don't, we need to be able to say that, you will need oversight. that is what we're seeing right now. neil: that is the big worry, careful what you wish for the oversight could be the government. i don't know if that is such a wonderful idea but what do you think? >> i agree with you. the republican party is about less oversight, less government but they should be careful because recently at the jeff sessions held meeting of attorney generals this week the one company that was mentioned more than any other tech company was google when it came to

privacy concerns, when it comes to antitrust. everyone always looks at number of commanding 90% of search, right? neil: good point. we'll see where this goes. but they have got the battle align drawn here. looking at corner of wall and broad. we're closing the month. good quarter despite all these crosscurrents. more after this. reak free from conventional thinking. we are a different kind of financial company. we are athene, and we are driven to do more.

neil: all right. the hearing still going on right now, for brett kavanaugh here, the judiciary committee. and it is chairman chuck grassley, allowing every single member, republican or democrat to state their case for or against. they ultimately votes on the judge's fate after that drama, it is expected to be 11-10 along party lines with majority of republicans having the say, by 11-10 vote submitting the nomination to the full senate, expecting to be taken up on tuesday, maybe wednesday, by which time we'll have a yea or ney on whether he does make it to the supreme court. increasingly looking like he just might squeak by. facebook said an attack on its computer network exposed

personal information on up to 50 million users. this has been firmed by ap, reuters, yahoo! we're trying to find out more. that it discovered this security issue affecting nearly 50 million accounts. that the investigation is ensuing f we find out more on that, then we'll keep you posted. all of this on the final trading day of september and for the quarter. been a very big quarter. it has been an okay month but the fact of the matter is the bull roars on, the read from market watchers, dennis gartman, gary b. smith. how long it does. dennis, what do you think? >> it will continue to go until it stops, that is the best one can say. it has surprised me how much it has gone, how much pricing advance. he have time i sell it short i prove to be absolutely incorrect and wrong. every time i buy it is right thing to do. it will continue until it stops. there is nothing else one can say. i've been at this 45 years. that is the best i can come up

with. neil: i like it. i like it. just about what i would come up with. gary, why do people look at all the things going on normally would rattle investors, a rise in interest rates, rise in oil? raising this with the chairman of the cme where all that stuff is traded. he is sometimes a little confounded by it. it is what it is. what do you think? >> exactly. i think the biggest thing to look at. i was on with maria this morning. they had nouriel roubini out, dr. doom. neil: oh, yeah. >> that is always fun. >> when dr. doom makes a lot of appearance i start doing that with my hands, i think this market will start to run. people say oh, it can't last so long, it can't last so long. there must be a black swan out there. to dennis' point there always is. i think the market still has good legs right now. neil: i mentioned as we are going in what is going on with washington, kavanaugh drama,

everyone talks about, all financial networks, news networks rivet on the hearing, i know generally i'm told smart guys like you don't focus on outside developments, what if they don't go to script? what if they don't go as expected? all of sudden what they thought was certain, he makes it to the supreme court, what doesn't happen? >> i think what ends up happening politically it will inenvisioning rate the right to go to the polls in anger on thursday in november, i don't think the market is anticipating. the market understands and expects fully the house goes to the left. that the senate remains with the republicans. propensity on part of republicans going to the polls will be greatly enhanced. neil: tuesday election day, little more than five weeks now you think that surprise would rattle them? >> i do but here's what we've seen the last two big political rattles if you which, they proved to be buying opportunities. remember "brexit." the markets got slammed.

turned out to be a good buying opportunity. trump's election, everyone, not on this network, say you have to sell, this is the end of the world. buying opportunity. neil: facebook real quickly, news developed right now revealed that they could have compromised security on 50 million of its accounts? >> doesn't bother me. never been on facebook. probably only american. i have no friends. i have no friends at all. >> facebook has bigger issues. people are migrating to other platforms t could be a buying opportunity if it really dips. neil: all we can say on the facebook news, an attack occurred on its network, exposed 50 million users personal information. the stock is down as you can see more than 3%. more after this. so i got an offer on the business,

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a trillion dollars in assets under care? jay. sarah. so i have a few thoughts on that early retirement... by focusing our mind on whatever's on yours. neil: all right. we are getting more news on facebook. the stock is down close to five bucks, almost 3%, on news that it had its computer network compromised by attackers, affecting 50 million users. according to the "new york times" the company discovered the breach after earlier this week finding attackers had quote, exploited a feature in facebook's code that allows them to take over user accounts fully. facebook fixed the vulnerability, did notify law enforcement officials, now notifying the rest of the world. facebook says it doesn't know the origin or identity of the attackers but that it was sweeping in scope, the attack. it quantified it at 50 million

users whose accounts had been compromised. 90 million users were forced to log out of their accounts this morning, a common safety measure for compromised accounts, even though 40 million of those were not among the users affected. 50 million exposed. this sounds like a redundant story in the technology community. it's happened many, many times and no doubt will catch the attention of washington which is already breathing down the neck of big players like google and others, who many on capitol hill say don't play fair and now of course, maybe this is going to add fuel to the fire for a different reason about how much we can rely on them to protect our anonymity. also looking to washington right now and the kavanaugh hearings that are ensuing. chuck grassley, chairman of the senate judiciary committee. a vote is scheduled for the next half hour, could be pushed back. let's get the read from edward lawrence on the time line. reporter: some developing news

here. we learned that two senators, senator jeff flake, who was once seen on the fence, is now saying he's heard enough to say he's a yes vote for judge brett kavanaugh. also, senator joe donnelly also considered on the fence, who voted for neil gorsuch, says he will vote no on kavanaugh. because of the flake turn on this, the judiciary committee is now more likely to give a favorable recommendation for kavanaugh going forward. sources are saying that president george w. bush, the former president, has been making calls to those senators who are on the fence in support of kavanaugh. kavanaugh worked in his administration. in fact, during this judiciary committee hearing today, three democrats actually got up and left the hearing, saying that kavanaugh's more of a political appointee than a judge. >> he was so nakedly political and when he came up for his nomination hearing in 2006, there were a lot of concerns that he was a political operative, and he showed that in

spades yesterday, that that is what he is. we do not need a political operative under this kind of cloud being on the united states supreme court. reporter: senator chris coons, democrat, going into that hearing, said they are all just ticked off at each other. the ranking member, dianne feinstein, on the defensive, saying she's not the one who leaked the allegation by dr. christine ford at the 11th hour, also saying she did not like kavanaugh's tone yesterday. >> this was not someone who reflected an impartial temperament, or the fairness and even-handedness one would see in a judge. this was someone who was aggressive and belligerent. i have never seen someone who wants to be elevated to the highest court in our country behave in that manner. reporter: republicans are saying they haven't heard any evidence that ford's accusations are true. in fact, pointing to the fact that everyone who ford identified who was at that gathering denied that the

gathering even happened. senator lindsay graham adding that democrats are playing politics with this. >> if i am chairman next year, if we keep the majority and senator grassley moves over and i hope he doesn't, because i think he's done a great job, i'm going to remember this. there's the process before kavanaugh and the process after kavanaugh. reporter: senators will likely be here through the weekend. they are looking at a saturday vote going forward and that leads to a full confirmation vote with the full senate on tuesday. neil? neil: all right. edward, thank you very, very much. bill gavin is former assistant fbi director, his read on this. bill, there is precedent for this and the way judge kavanaugh responded, and that is to use the attack line that clarence thomas took in 1991 to go after his accusers in the senate, not anita hill, but his accusers in

the senate who he said stacked the deck against him. he ultimately made it. i don't know whether the same will apply to judge kavanaugh. it's not as if this is something new. but leaving that aside, what role would there be for an fbi investigation? it can't make a conclusion. i guess it could go to witnesses, get their stories. would it have any special cache here? what's your sense? >> well, neil, i think there's a couple things that come into play here. first of all, if in fact the background investigation were reopened and it can't be reopened by the fbi itself. it has to be reopened by the white house, the request part, the fbi can do backgrounds, reopen backgrounds in cases involving their own employees, but not something coming out of the white house. with that said, i don't think even if the fbi was asked to go out and get these additional statements, i don't think we will get anything different either from dr. ford or from

judge kavanaugh. but with that said, you interview all the alleged witnesses, non-witnesses, the people who have had statements to make, and take statements from them. if, in fact, it turns out to be exactly the same, the needle isn't moved at all by opening of the background investigation. one side is going to be totally unhappy versus the other side. if, in fact, something does come up, suppose you interview somebody and they said well, you know, i'm having second thoughts, maybe ralph or mary jane or somebody was at that party and they just don't want to come up and say so, then you have to go and interview them, too. that changes the deflection of the needle a bit as well. so i don't know what can come out of it. the fbi in the bottom line, though, is not going to make a recommendation. they will furnish this information back to the white house and probably to the senate -- to the house committee, then see where it goes from there. neil: apparently the american bar association would welcome that, says it might be a good

idea. what do you think? >> the american bar association needs then to petition maybe the white house, because it's not the fbi they need to petition. they need to go to the people that can make this happen again. neil: it's not that chuck grassley can make that request. it would have to come from the white house? >> i think this is going to have to come from the white house and that's probably why it hasn't been initiated at this particular point in time. neil: very, very interesting. thank you very, very much. as we told you earlier, president bush, former president bush, 43, was speaking on behalf of judge kavanaugh, recommending him strongly to gop senators, pretty much any and all he could get to on the phone. the former assistant secretary of state under bush 43, robert charles, with me now. what effect would that if, in your opinion, former president calls you up, you are a senator,

you might be on the fence, i don't know how many are who he called, he's saying this guy is a good guy, he should get your vote? >> i think it reinforces the credibility of the nominee and i think that's a good thing. you know, i think the average american is sickened by this. i think it's sort of a national nightmare that they are living through and i will just point out three tactical points. first, dr. ford in many ways was betrayed by someone on the democratic side, because there was a violation of her privacy and her request for anonymity without fingerprints. it's a typical washington trick and it has to have come out of dianne feinstein's office or congresswoman eshoo's office. that's an issue by itself. the second is a criminal referral. i ran a committee for five years. a criminal referral, if any one of your viewers was a united states senator, they could take a piece of their stationery out or go to the committee of which they are a part and use theirs, and request an investigation based on data they have. that could have been done in june. here we are all the way toward

the end of the process and it's all come out by surprise. the third thing, i will just note that this is not a situation, strategically what you are witnessing is the politicization of a process that was typically not so political. what that means is, you are damaging the supreme court, you are turning this into a political circus, you are suggesting that decisions that will be reached by the court are somehow political, and that's not what we have ever done before. this is a process that really is supposed to follow a set of rules and the notion of people walking out of a committee hearing because they disagree with a nominee, i think it sickens the average american. this is not living up to the rule of law. it really is -- it diminishes the respect people have for the senate, for this committee, for the democrats sitting on this committee and frankly also endangers the respect that we have to have for the rulings of the supreme court. so my feeling is this was not a healthy process. it could have been done behind closed doors, suspend the five-minute rule, do a normal cross-examination of both parties for half an hour, an

hour, come back with an understanding of what you know and then be very tight in the way that you manage this publicly. instead, it has become public grandstanding and i understand the midterms are around the corner but i think people look at this with a jaundiced eye. i don't think they like what they see. neil: a lot of them remembered in the case of, you know, the president of the united states going back to the first president bush and how he wanted a go-slow approach when allegations against clarence thomas first came up regarding anita hill, the fbi was going to look into that then, they say that same standard should be applied now. you say? >> well, here's the thing. the average american trusts this process or they have reason to. it's a constitutional process. if you have any doubt about what should happen here, just take a quick glance at the sixth amendment. the sixth amendment to the constitution is dedicated to the idea that you protect the accused even in a criminal environment. so what's happened here is a sense of unfairness.

americans resist unfairness. if dragging the process out added to fairness i think we would support it but i don't think it adds to fairness. it only extends this idea of political grandstanding. i look at what happened in the original hearing with senators booker and harris and you have two senators, the senator from connecticut and the senator from hawaii, who both publicly said this nominee should not be entitled to due process. now, that's an absurdity to me. i don't understand how that fits within the constitutional framework. i think they should go back and review the fourth, fifth and sixth amendments, maybe also the first amendment, and understand what this is really about. they are duty-bound to give advice and consent. they are not duty-bound as the nominee beautifully said to do a search and destroy mission. i will say a hat tip to lindsay graham. his soliloquy was absolutely perfect. neil: my staff will kill me on this. he also said if the republicans keep the majority and he's the chairman of that committee, i guess he's next in line if chuck grassley wants to step down

running that committee, things will be different, i'm paraphrasing here. what did he mean by that? >> i think what he meant is there will be a return to fairness in the seat. i don't fault anyone on the republican side for what they have said and done, but i think what graham is saying is he voted for sotomayor, he voted for kagan, who was not even a judge, and got to the supreme court. and what he's saying is a president has a prerogative, president obama had the prerogative and president trump has the prerogative to pick a nominee. they have picked an absolutely stellar nominee. you get these last-minute kinds of attacks and in the old world they used to call this a political roar-back. that's when you throw out an accusation that's uncorroborated in the 11th hour and you hope it will stick. unfortunately, that pushed a good man to have to really defend his soul yesterday. i personally teared up watching him saying he and his daughter prayed for the accuser. that's a beautiful, beautiful statement and i think it speaks to the beauty of the american heart but i also think we are in a situation where we have to get

back to fairness. neil: i felt for his kids. >> i did, too. very much so. neil: thank you very, very much, robert charles. we are getting word right now on tesla back and forth. we told you earlier the s.e.c. is suing, recommending elon musk's forced removal from the company. now reports he could, he could settle. we shall see. stock down 12%. ♪

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neil: it has happened again and it is a biggy for facebook, right now acknowledging it had a security breach. hillary vaughn will get into the details. it impacts about 50 million of its users' accounts. what happened? reporter: well, facebook is saying that 50 million users' information was exposed as a result of a cyberattack on their social media platform. the company says they found out about this breach about three days ago and the attackers were able to gain access by exploiting facebook's code that lets them take over user accounts. facebook says the feature was breached. this is part of facebook that lets users see how their profile looks to different groups. so what people of the public would see when they try to look up your profile versus what maybe friends of friends see versus what your actual friends see what they look at your profile page.

the hackers were able to use this feature to steal what facebook calls digital tokens that basically let users stay logged into their account without having to re-enter their password every time they visit facebook. the vulnerability has been fixed and facebook says for now, they turned the feature off as a precaution. they are still investigating this. 90 million users were forced to log out of their accounts today as part of the safety fix and facebook says they still don't know the full scope of the attack. they're not sure where the attack came from, or who was behind it. neil? neil: hillary, thank you very, very much. meanwhile, more details coming out on elon musk and what is happening at tesla. is he ready to go to trial or might settle to avoid going to trial. to our securities fraud attorney. if he takes on the s.e.c., what does he have to look forward to? >> well, i think he will have a fight on his hands, since he engaged in some conduct that's pretty clear that he shouldn't have engaged in. but that being said, i think

ultimately, this is going to be a fine. i think he will pay a very large fine. it's not the kidnapping of a lindbergh baby, okay, it's not. if the s.e.c. forces him to resign and they remove him, i think you will have some really upset tesla share holders, you will see a massive plunge in the price of tesla and it won't be a good day for any of those investors except for the shorts. neil: now obviously the securities and exchange commission, if that doesn't enter into our thinking, if for example he is guilty of some of the things the s.e.c. seems to be intimating, this could easily escalate into a criminal inquiry, couldn't it? >> yes, and there have been some reports that the department of justice is already investigating. so it's not just a simple problem he has. neil: what would we be talking about here? >> we would be talking about securities fraud, because he intentionally made, allegedly, false statements to impact the share price, to crush the shorts, and that is potentially

criminal conduct and obviously, it's really, really serious. neil: you have to prove it. if you want to make a settlement with the s.e.c., and apparently one of the ideas they offered to him, we don't know, you probably know better than i, in fact you definitely know better than i, is two years, you can't be associated with the company in any management capacity. after that, maybe you can return. let's say that was offered, he turned it down, now it's back on the table, who knows what's right. how would that go down? in other words, you are out of the company for a couple of years but you're not out of the company forever. >> yeah, that might be the best long-term solution. let him get out of there for a period of two years. he can come back and there's no question he would still provide guidance to the company. it's like kabuki theater. he would do that. the biggest concern you have with musk leaving is that you no longer have his vision. if you let this be the solution, meaning you can't be affiliated with the company for two years, i think that's probably the best solution, along with paying a very, very large fine. neil: you do clearly get the

idea, don't you, you shouldn't have any doubt he's so associated with this company, that he's not part of it, investors want no part of it, right? >> yeah, no, it's true. i guess i keep coming back to this. remember the wendy's commercial, "where's the beef." well, where's the board. we have a ceo involved in problematic conduct. remember when he tweeted something out about the cave rescuer potentially being a ped on fi pedofile? he has a history of doing things he shouldn't do. the board are the ultimate steward of the company. neil: and who is the number two if that happens? thank you very, very much. >> any time. neil: talking about another company, a lot of people are asking, they are going to stores that will have -- they will be cashi cashier-less. and their expansion into brick and mortar, period. which way are they going? you can do both.

we are live at a new york store where that is exactly what they're doing. reporter: that is exactly what they're doing. it is an experiment and we will see how it turns out. this is a four-star store so it is as it sounds. every single item from every single category that is in here has at least a 4.4 review, star review from customers online. you can see basically everything from smart homes and wearable tech, they have fire tv displays on sale. also, everything is organized by age, almost organized in the same way as amazon did in bookstores you would browse. we will show you with our cameraman, there are two prices on every item. there's one price if you are not an amazon prime member, the second price is if you are. for this fire tv stick, it is a 43% discount, pretty healthy there. to your point, a lot of these tech companies are experimenting

with brick and mortar. amazon of course buying the grocery chain whole foods. that's its first entry back into something physical that people can come, pick up, take to the counter. what i want to point out about this store as well is that it is cashless. we will show you people waiting online. if you have an amazon account, if you have it on your phone, the app, you can either pay on your app or just go up, you can actually take a physical item, you can still pay with a plain old credit card as that gentleman is there. for the moment, this seems to be working, if you judge by the stock price. we know amazon stock year-to-date is way outperforming the s&p 500 and nasdaq. it is up 73%, as we know, s&p 500 up 9% and nasdaq up 16.5%. back to you. neil: incredible. thank you very, very much.

all right. in the middle of this judiciary committee meeting on the fate of judge kavanaugh, whether he gets to be a supreme court justice, it's expected to be voted on in a matter of minutes and then the clock starts ticking. they go through all these procedures and everything else with a vote tuesday, wednesday at the latest. that will decide whether he ever makes it to the supreme court. democrats almost united in saying no. republicans fairly united in saying yes but we don't know all republicans. after this. we've been helping you prepare and invest for retirement since day one. why would we leave now? because i'm retired now. so? we're voya. we stay with you to and through retirement... with solutions to help provide income throughout. so you'll still be here to help me make smart choices? well, with your finances that is. we had nothing to do with that, uh, tie. or the suit. or the shirt. voya. helping you to and through retirement.

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neil: all right. it looks like they are set to vote on the brett kavanaugh nomination in the judiciary committee. blake burman at the white house with early reaction what the president and others are looking at there. reporter: there has been a full-on media blitz from the white house today defending brett kavanaugh in the wake of his testimony on capitol hill yesterday, and as we are about to get this vote from the senate judiciary committee moments from now.

the white house continuing to stand behind brett kavanaugh, the white house staying close to the process here. they support kavanaugh 110% and ask whether or not there was contingency planning going on should the votes on capitol hill for some reason not break in their favor, i was told if it gets to that point, they will worry about it then. they are not worried about that scenario or thinking about it right now. the press secretary, sarah sanders, earlier today was asked if there's a cloud that's overhanging the potential next supreme court justice and this was her response. >> no, because an fbi investigation, as senator biden has said and everybody else has said, those are not conclusive. there is a process in place, we watched it unfold in front of the entire world yesterday, and those individuals got to ask questions of these two people. they sat through hours worth of that q & a session and we saw that play out. reporter: in about 20 minutes from now here at the white

house, president trump will meet with his counterpart from chile. those two will be spending about an hour together. couple different on-camera possibilities, we are told, from the white house over the course of that hour. it's possible we get fresh reaction from president trump himself. neil: was there any reaction to indiana democratic senator joe donnelly saying he's a no on this? reporter: in the leadup to this, many felt that donnelly and some at this white house in the onset of the kavanaugh process thought he would be a yes, especially considering that he voted yes for neil gorsuch. part of the argument that some were making leading up to this was that donnelly, joe manchin and heidi heitkamp, the three democrats in red states who went yes for gorsuch would do so for kavanaugh. now that he is a no, it is very clearly a big question mark if the other two will follow that same road and really, the focus here appears to be on mer kou

s murkowski and collins because if republicans get those two, it is just about a done deal from there. neil: blake, thank you very, very much. we are monitoring this very, very closely. any minute now, the vote is expected to be 11-10, indicating the party breakdown of that committee. what do you think? >> the big news was this morning, when jeff flake, the senator from arizona, who is retiring, sent out a press release saying senator flake will vote yes on brett kavanaugh so that took the suspense out of the judiciary committee vote, although there appears to be a lot of chatter right now because people are going into back rooms and meeting, they are standing and whispering to each other so people are wondering if democrats are trying to talk jeff flake out of this or whatever. but if jeff flake does what he announced today, then they will have 11 votes on the committee to move this nomination to the senate floor. neil: lindsay graham said

something interesting, that if he were chairman of that committee, republicans still hold the majority next year and chuck grassley steps down from chairing that committee, he says something he doesn't want to see, that things will be different and he will remember all of this. what do you think he meant by that? >> well, the one thing about the u.s. senate is that it's a really rough place. there's all this outward courtesy and everything, my distinguished colleague, the gentle lady from so-and-so. boy, behind the scenes it's just a knife fight. what goes around does come around in the senate. i know that republicans feel that they have been completely ambushed and sandbagged by the democrats during this whole process and you know the complaints, that the democrats waited until the last minute after the kavanaugh hearings to bring all this stuff up, et cetera. and look, they will take some opportunity, the republicans

will, to stick it to the democrats in the future. neil: long memories, president obama's supreme court pick, there was going to be hell to pay for that, now republicans promising the way their judge pick was handled is going to be consequences for that. this doesn't end. >> well, it usually ends when one party gets a big majority for awhile. right now, republicans in the senate have a 51-49 majority. you can't get any tighter than that and have a majority. so of course everything is a struggle, everything is just a desperate fight. but you know, get up to 58, 59, 60 votes, as the democrats had for a little while in 2009, then they get to do what they want. i think that basically, any time the two parties are very, very closely balanced, everything is a fight but when one party pulls ahead, has a big majority, things settle down a little bit. neil: what do you make of this

threat from some democrats that if the judge makes it to the supreme court, they are not done with this? they are going to move to, i don't know, make his life miserable. i never heard that. >> i have not, either. now, we know with president trump they were talking about impeaching him before he took the oath of office. i had not heard this with a supreme court judge or any other sort of judge. very unusual. by the way, it looks like right now, mote strst strategists wou republicans are going to keep control of the senate after the midterms. that could change, but that's what we think right now. on the other hand, does look like democrats have an excellent chance to win control of the house which is where any impeachment proceeding would begin. so what you hear now are senate democrats saying listen, we will remember this, we are going to continue to pursue this if democrats have the gavel in the house of representatives, they are going to impeach him.

of course, then the whole process would send the impeachment to the senate where it would fail, but it would be an unprecedented act. neil: all right. byron, good catching up with you, my friend. thank you very, very much. that is the scene right now in washington. the senate judiciary committee expected to take up this vote very, very soon. we are told a number of democrats said they would protest by not even being in the room. don't know how truthful that is. but the bottom line, one way or the other, they expect this could get out of committee and it would be a vote for, in favor, that is, of judge kavanaugh. then the clock starts ticking on the debate rules and everything else that would go through the weekend, then presumably a tuesday vote. then we shall see. more after this.

neil: all right. this is running a little behind schedule. you might notice that there are no democrats in this room. this is the senate judiciary committee room. of course, this is where they

had yesterday the testimony from christine ford and brett kavanaugh. but the democrats, there was a story going around that they were going to protest this vote by not even being in the room when it was carried, realizing that it was a foregone conclusion, that the 11 republicans were going to vote in favor, and that's why you don't see anything going on right now, because the democrats aren't in there. i can't make out who is. it looks like republicans, i did see the back earlier of jeff flake so he's in there. i could be wrong on that. we are monitoring this very, very closely because this is going to be along party lines here if the democrats vote at all. i'm told that's not necessary. if they don't want to show up to vote, they don't have to. 11 republicans do, that's the end of the story, it gets referred to the full senate and the vote ensues after debate over the next few days that will end up in a tuesday vote. charlie gasparino here on all of this. just incredible. >> incredible, you know. i have been circling back with some of the people who gave me that initial story about how kavanaugh was told by his advisers he needed to fight back, that the fox news

interview with martha maccallum came across way too tepid. neil: he had to do a clarence thomas. >> trump wasn't too happy with his appearance as well, thought he gave up, again, too laid-back, gave up too much information. neil: show some passion. by the way, just as it did 17 years ago with clarence thomas. >> it worked then and may work now. we should point out that what these advisers are saying is kavanaugh made this decision at almost the last minute. he agreed that he was being way too judicious, like he was acting like a judge when he was given the interview with martha maccallum. this is an appellate court judge, a fair-minded guy. everyone who has seen him on the court will tell you that. he's not a rabble-rouser but he agreed they are coming after his heart, his soul, his family. we're not even talking about dr. ford. we are talking about the senate democrats.

neil: the same senate democrats who brought it to this sort of circus were the ones furious at him for politicizing saying that is not very judge-like. >> yeah, but these are the ones who threw everything at him and he said okay, it's time to fight. we should point out his advisers still aren't sure if he has the votes to win. there's those three, manchin, murkowski, collins. we don't know yet. the other thing is very interesting. it's interesting in the democrats' attack on him, they kept -- when they were pressed to say what evidence you have, right, their fall-back position wasn't like oh, all the great evidence dr. ford presented because dr. ford gave a compelling testimony, but her evidence for obvious reasons because it's based on memory -- neil: hold on. what the heck is going on here? we just don't know. this vote is clearly delayed. what's going on? reporter: i'm kind of talking

like we are at a golf tournament because i'm in the back of the committee hearing room. all of the democrats are out in the ante room. we heard there's an effort to try to get jeff flake to switch his vote. the democratic senator from hawaii said earlier she hoped that he had searched his soul. now, let's be clear here. you don't have [ inaudible ] to propel the nomination to the full [ inaudible ]. neil: we want to correct that audio and it's not your fault. it's the conditions you're under. he's in this committee room and had to speak in a low voice, but they are trying to work on jeff flake, the outgoing arizona republican senator said this morning he would be a yes vote. for brett kavanaugh.

and some of the democrats are trying to work with him to flip that vote. obviously it would flip this in committee and it would be 11-10 presumably against judge kavanaugh. that doesn't necessarily mean that he's still cane out of comm committee with a negative vote, the senate vote will ultimately determine this. charlie gasparino, your view of that, that complicates this a little more. >> it would be unprecedented for him to change. i think they are still worried about the three i mentioned. what's fascinating about yesterday, again, the democrats keep pointing out about an fbi, only the fbi can investigate. i know a lot about fbi investigations. if they investigate you and they want to turn you as a witness and they have evidence, they are tough. neil: they're not that tough. chad, you had a chance to step out -- reporter: yeah, i'm sorry, i just stepped outside the room. you can report without a favorable recommendation to the

floor. you can also do it without recommendation. if it's 11-10, you can do those two parliamentary steps as i said with robert bork, he was sent to the floor with an unfavorable recommendation from the committee. in the case of clarence thomas, he was sent with no recommendation from the committee to the floor. if it's 11-10, you are not going to have a tie vote here so they need to figure out where the vote is. you know, one of the questions we raised is there's something else that's come up here. it's been interesting to watch chuck grassley, who has been a real stickler for procedure, you know, he was insistent we will have a vote at 1:30. it's now quarter of two and no vote. so you have all the democrats huddling in the back of the anteroom here and you have grassley, who has been going back and forth from the room. no democrats were in there, when i left a moment ago. this is as high drama as it gets on capitol hill. neil: if the democrats never come back in that room and don't vote, what then?

reporter: you have to have a quorum to do business. but there are ways you can probably forge ahead. even though it might violate some of the -- neil: they are walking in. reporter: i will head right back in. neil: thank you very, very much. maybe they made a agreement, maybe they worked over jeff flake, we don't know. >> or maybe threw in the towel and know they are going to lose on this thing. i will say try to get this done. the fbi investigation is not half as tough as what these guys are doing. neil: we are understanding that dianne feinstein walked out with jeff flake a second ago. clearly to what chad is saying, now you see chairman grassley following out the door, where's jeff going. obviously they are working on flake. can you imagine if he flipped? then what? >> he better join another political party. neil: he's leaving. >> he better just join the democratic party. listen, you can hate donald trump or not like the way he comports himself at times, but

if you watched the evidence yesterday, and you are going to convict -- you are basically going to deny a guy a chance at the supreme court because of something that happened 35 years ago with almost no real evidence that it happened, i'm sorry, that strains credulity of a lot of people. here's the thing. i was speaking with women over the last couple days, women with children, male children, and they're saying i don't want my kid to be treated like this. should my kid make a mistake or if my kid, you know, wrong place, you know, wrong time, if he gets confused with someone, is he automatically guilty without the due process. i think that's what we are coming down to here. you know, one other thing. maybe he's walking out because he's agreeing to an fbi interview that they delay it but i'm telling you, the fbi interview on these things is a

lot easier than any of what these guys are doing. neil: something is going on here, folks. just to update you, this vote was supposed to happen about 17, 18 minutes ago. it is delayed. part of the drama seems to be around jeff flake, the outgoing arizona republican senator who early this morning indicated with heavy soul searching, as he put it, that he was going to be a yes vote for brett kavanaugh. now, some democrats, many on that committee and many who are not on that committee,up apoplectic about it, couldn't understand it. there's a famous video circulating on the internet where he was harassed getting on to an elevator by protesters, you let us down, you let us down. you see some of the prominent republicans, including chuck grassley, chairman of the committee. once he noted dianne feinstein walked out with jeff flake, he was obviously very concerned whether a key yes vote had been turned into a no vote or whether he's trying to secure something

else for jeff flake or that flake's approval might be softening here, but it does add to a little bit of the tension and the confusion. >> he does not look happy, by the way. neil: he does not. the mics are not on there. when they are, be sure to let me know. but this is indicating just how close it is. remember, this committee has 11 republicans on it, 10 democrats. if they went along party line vote, and that was the thinking here that it would, it would be 11-10 approval for the judge and that sets in motion this debate that would go through the weekend. anybody and everybody can speak on behalf or against brett kavanaugh, with a tuesday vote likely scheduled after that. now, we don't know all democrats are in position. let's listen. >> we are going to take action with the motion that's before

us. we've got to make sure we have a quorum. >> as a point of personal privilege, i'm going to call on

senator flake to speak. normally we would start the vote right now, but as a point of personal privilege, i would call on senator flake. >> thank you. i have been speaking with a number of people on the other side. we had conversations ongoing for awhile with regard to making sure that we do due diligence here, and i think it would be proper to delay the floor vote for up to but not more than one week in order to let the fbi continue to do an investigation, limited in time and scope to the current allegations that are there, and limited in time to no more than one week, and i will vote to advance the bill to the floor with that understanding. and i have spoken to a few other

members who -- on my side of the aisle that may be supportive as well but that's my position. i think that we ought to do what we can to make sure that we do all due diligence with a nomination this important. and i want to say that this committee has acted properly, and the chairman has bent over backwards to do investigations from this committee and to delay this vote in this committee for a week so that miss ford, dr. ford, could be heard, and she was yesterday. so that's, with that agreement, i will vote to advance the bill to the floor. >> call the roll. >> wait just one second. can dianne speak? >> could we have a description of -- >> what are we voting on? we are voting on the motion to report the nomination to the floor.

the clerk will call the roll. >> wait. that's not my understanding of what, mr. chairman, let the senator explain it. >> that is -- my understanding, the democrats can speak to it, if chris or you, as we talked about before, the democrats would accept and endorse a one-week fbi investigation, limited in time and scope. >> that is correct. >> so since you're the deciding vote here, we will vote and then if there's any sort of discussion, we will go do that after the vote. call the roll. >> mr. graham. >> aye. >> >> mr. corncornyn. >> aye. >> mr. lee? >> aye. >> mr. flake? >> aye. >> mr. crapo. >> aye. >> miss feinstein? >> on the nominee, no. >> mr. durbin? >> no. >> mr. whitehouse?

>> no. >> miss klobuchar. >> no. >> miss hirono. >> no. [ inaudible ]. >> mr. chairman? >> aye. >> mr. chairman, the votes are 11 aye, 10 nay. >> the nominee will be reported to the floor. >> may i be recognized? >> yes. >> i want to thank my colleague, senator flake, and thank you for giving us the time today to have a conversation. a number of my colleagues have asked for a one-week delay in order that there might be an fbi investigation of what allegations are currently before this committee. i respect senator flake's view that in his opinion, it was best to respect your having given dr. ford the time to be heard yesterday and advance the nominee to the floor, but it is my hope that we could work together on a bipartisan basis to diligently pursue an fbi

investigation within the next week not for the purpose of delay but for the purpose of investigating further either allegations made by dr. ford or others with a goal towards demonstrating a bipartisan commitment to diligently investigating this allegation. thank you, mr. chairman. thank you, senator flake. >> senator feinstein? >> thank you. i would support that motion. i think we do need this investigation. matter of fact, i sort of misunderstood senator flake, what you were doing. i thought it included a one-week investigation. so i would like to support the motion for that investigation. >> mr. chairman? >> we will take turns here. senator? >> i love this committee but we're not the majority leader. senator flake has made clear what it would take him to be comfortable on a final passage vote. it doesn't matter what we say here. this will be up to senator schumer and senator mcconnell.

>> it is completely up to them. >> i think they made themselves very clear. >> senator leahy? senator leahy. >> mr. chairman, i want to make sure because this is somewhat unprecedented. i do agree with the senator from arizona we should have this further investigation. so my understanding is that during the week that that is taking place, that there will be no action on the floor of the united states senate on this nomination. is that correct? >> i cannot say that -- >> let me say again, i can't make that commitment for the leadership. i can only say i would only be comfortable moving forward on the floor, i will move it out of committee, but i will only be comfortable moving on the floor until the fbi has done more investigation than they have

already. it may not take them a week. i understand that some of these witnesses may not want to discuss anything further. but i think we owe them due diligence. >> mr. chairman? >> just a minute. all i have said to senator flake is that i would advocate for the position he took, but i don't control that. senator? >> mr. chairman? >> yes. senator klobuchar. >> mr. chairman, there are other senators as well who may be interested in this negotiation on the republican side, and there's not really a set agreement here. all of us have already said we were voting no. it is simply senator flake working with all of us to say for the good of the senate and the good of the court, the american people deserve to have the facts followed up on, and i really appreciate his willingness to do that. and that is what this is about. this is simply about -- and by the way, if senator mcconnell

wants to go forward in light of that, and we still have several senators that haven't said how they're voting on this nominee, i actually think this is very important, what just happened right now. so it doesn't have to have an agreement. it is >> mr. chairman, i want to express my appreciation for senator flake allowing this process to move forward. there is some difference of opinion among us what exactly the fbi investigation would consist of. some think it has been concluded and supplemented by this committee's investigation. others disagree with that i respect not only senator flake advocated to give dr. ford a chance to appear in front of the committee, which was the right thing to do, also he allowed this process to move forward. subject to further discussions about what the fbi may or may not be able to come up with. certainly he maintains his right to cast his vote yea or ney as

he sees fit and maintains significant leverage that way. i appreciate his support for a full and fair hearing for dr. ford and judge kavanaugh as well as his willingness to allow this to go forward subject to his request. >> mr. chairman? >> senator blumenthal, i think i ought to call on senator feinstein. >> if i through the chair could ask a question of senator flake. does your amendment include continuing the investigation during this period of time? >> if i can respond. there is no amendment. i'm simply stating, that the discussion that we had between us all is that i would hope and i think we had some agreement before that the democrats who have been, i think, justifiably uncomfortable moving ahead could publicly, in an effort to bring

this country together, say that we would feel better, i'm not expecting them to vote yes but not to complain that an fbi investigation has not occurred. and that, this is what i'm trying to do. this country is being ripped apart here and we've got to make sure we do due diligence. i think this committee has done a good job but i do think we can have a short pause and, make sure that the fbi can investigate. my understanding is that some of us would have to, i'm prepared to do it, make a request to the white house to ask the fbi to do that investigation. it would be short, and limited in scope to the current allegations that have been made. >> mr. chairman? >> i would just encourage democrats who we talked to before to endorse that kind of thing, that we can then move on. >> mr. chairman? >> because of the two hour rule,