out soon. jonathan caphart, jen, charlie, thanks. that will do it for this hour. "mtp daily" with chuck todd starts now. good evening. thanks for being with us tonight. i know it is labor day. i hope you got some time off. but the news does not rest. so here we are. more than a month after the trump administration was ordered by a federal judge to reunite the families the administration had split up at the border, nearly 500 toddlers and little kids are still being held by the u.s. government apart from their parents. when the trump administration started this policy of ripping kids away from their parents and not giving them back, we now know that they thought no one would mind that they were doing it. one current administration official involved with the policy telling jonathan blitzer at "the new yorker," quote, the

expectation was that no one would care. it turns out people cared. the country cares. and amid the public outcry against this policy, on june 20th, president trump formally ended his administration's policy to continue to take parents away from their kids. today it is supposedly not the policy anymore. because of the haphazard way they implemented it in the first place, because they literally developed no plan while they were ripping kids out of their parents' arms, to keep track of where they were sending those parents and the kids, the court has ordered the president to give the kids back, 500 of them still haven't been given back and the advocacy organizations, like the aclu, fighting the administration in court, tell us that there's no real sign the administration is working all that hard to fix that and to get the kids back, even though now they are under court order. so this scandal, it wears on day

after day. week after week when we do hear about rare belated reunions between parents and their kids now. the reports are heartbreaking in a whole new way. toddlers who crawl away from their parents at the sight of them because they no longer recognize their own parents because they have been separated from them for so long. kids who seem to have radically changed, being held alone without their parents by the administration. court order or no, that is donald trump's family separation scandal. it just does not end. it is not fixed. you might remember before this particular trump administration scandal landed on the country like a moral nuclear bomb, several months ago there was another big scandal over the trump administration's treatment of immigrant kids and it was the case of jane doe. jane doe is the pseudonym assigned by the court for a

17-year-old pregnant girl who the trump administration tried to force to give birth again her will last fall. jane doe, 17 years old, was picked up by the trump administration at the border. she was put in a shelter in texas overseen by the u.s. department of health and human services. while she was there she found out she was pregnant. she did not want to have the baby or go through with the pregnancy. in america, whether you're an immigrant or not, there is a constitutionally protected right to have an abortion if you want one. the government is not allowed to stop you from doing that. it is your right to decide for yourself. so teenage girl jane doe finds out she is pregnant. she decides firmly that she definitely wants to have an abortion. she raises the money to pay for it. she got a texas court, got a judge to explicitly grant her permission to make that decision for herself without parental consent, since she isn't an adult. she arranged for transportation to get herself to and from her doctor's appointment so she could get procedure done.

she doesn't need any help with any of it. she has arranged for it herself. but the federal government still blocked her. she was being held at this shelter overseen by health and human services, led by trump political appointees and they said no. they wouldn't allow her to leave the shelter to go to her doctor's appointment. so the aclu sued the trump administration on her behalf. >> they were literally holding her hostage, blocking the door, preventing her from getting an abortion. i believe that was their goal, to hold her hostage until she carried this baby to term. >> you may have seen our coverage of the case while it was under way, while it was being fought over in court. eventually the jane doe case landed in a high level federal court. at the federal appeals court in washington, d.c. in a hearing from a three-judge panel. the reason this jane doe case is once again national news all

over again is because the three judge panel that got that case at the appeals court in d.c., that included a judge named brett kavanaugh. and brett kavanaugh has now become president trump's nominee to serve on the united states supreme court. and his confirmation hearings are due to begin tomorrow. well, now, on the eve of his confirmation hearings tomorrow, we've got something. we have a tape that has never before been broadcast, as far as we can tell. and i know this is an odd thing. i think it is an unsettling hallmark at this time that things would otherwise be massive news stories or even massive scandals, they end up in this for one hot second. and then they just go away. my theory is it is the sheer number of ethics and corruption scandals surrounding so many

members of this administration including the president, but it is because there is this one makes it hard to stack up other more normal news stories of policies and problems besides the big one. even though things are the wrong proportion in this era in terms of the size of news stories anymore, we really are looking at a vacancy on the supreme court which in normal times would be the dominant, biggest news story in the country for months. the retiring justice, of course, is anthony kennedy, the decisive centrist vote. to uphold the right to get an abortion in the country. there is a general consensus that if kavanaugh is confirmed, he would be a decisive vote to eliminate the right to get an abortion in this country. every year, year after year, the nbc/"wall street journal" national poll asks americans the exact same question. should roe versus wade be overturned? right now, the highest

proportion of americans ever recorded said it should not be overturned. that we should keep abortion legal in this country. 71% of americans. 71% say roe versus wade should not be overturned. that even includes a majority of republicans. the highest ever result on that question. with a pending nomination of a judge who would be the decisive vote to overturn roe. if trump succeeds in getting him on the court. and that kind of thing has consequences. a week after brett kavanaugh's nomination to the supreme court was announced, the nonpartisan pew research center released a national poll that found more americans oppose the confirmation of judge kavanaugh to the supreme court than any other nominee in recent history. opposition to kavanaugh was even greater, the polls showed, than the opposition against harriet meyers. do you remember harriet meyers?

the nomination was considered to be one of the worst botched supreme court nomination attempts, one of the worst nominees in modern history. facing a world of criticism, not only from democrats but also republicans. she had to withdraw as a nominee less than one month after she was picked for the court. it was a famously disastrously bad nomination. a nice woman, lovely to be around. the president sure liked her a lot. not a person who should be on the supreme court. concluded everyone, including ultimately harriet meyers. so it is not good news right now that president trump's supreme court nominee is anywhere near the harriet meyers standard of disapproval, let alone actually falling short of the kind of support that harriet meyers received before she had to withdraw. so, right out of the gate, a

week out after he was nominated, it was more unpopular than the harriet meyers population. that makes it historically unpopular. since then, he's been circulating on capitol hill, taking meetings with senators, the white house has been trying to build support for the nomination. over that time, brett kavanaugh's poll numbers have gotten worse. his net support is negative. negative three more people oppose his nomination than support it. it is not only worse than harriet meyers, it is worse than robert bork, who was not withdrawn as a nominee but he was rejected by a large bipartisan majority in the senate. this is interesting, though. the very, very, very bad polling for the nominee at the supreme court shows us why his numbers are so upside down. it turns out, it is gender. brett kavanaugh's net support is

negative overall in the country because he is net minus 18 with american women. that is a huge gap. by an 18-point margin, american women say do not confirm brett kavanaugh to the supreme court. it comes at a time when kavanaugh is seen as a sure bet to overturn roe versus wade. and that is not just a gut instinct you get from looking at the guy. it is on the tape that we've got. again, we believe it has never been broadcast before tonight. brett kavanaguh is already believed by his supporters and critics alike to be a surefire decisive vote to overturn roe. it is not a theoretical or academic argument. it turns out we can watch him at work on the subject.

or at least we can hear him work on the subject. this is the tape. it is from the jane doe case from earlier this year during the trump administration. jane doe was a teenager being held in a shelter after being intercepted at the border. the aclu sued on her behalf after that girl realized she was pregnant, the trump administration did everything they physically could to block her from getting an abortion despite the fact that she had the right to do it, a right protected by the constitution, whether you're an immigrant or not, a teenager or not, whether you're in custody or not. the way that case went down is important. even the government admitted they weren't allowed to block this girl from getting an abortion if they wanted to. they had to make it look like they were doing something else. it was physically holding her and not leave. that made it a difficult case to make. they're not allowed to just

block her. they had to come up with an explanation that made it seem not that straightforward. the trump administration that they were not completely blocking jane doe's access to abortion because in theory, they might be able to find a sponsor, like a foster parent, to take custody of the girl and then maybe that person, that sponsor would let the girl go to the doctor and get the abortion. so the government would keep blocking her from going to the doctor but they said they were sort of looking for someone else out there. someone who, who knows? might someday decide to let her go to the doctor someday. somehow, maybe, somewhere down the road. that logic is a little bit bananas but it also ignores that jane doe had no control of whether she had a sponsor. the whole process of finding and approving and vetting sponsors is conducted by the u.s. government.

jane doe had been in their custody for weeks. they had not made any progress finding a sponsor for her. well, on the tape of the d.c. circuit court of appeals hearing, it turned out he really liked that argument from the government about some theoretical sponsor that might come along sometime, someday, somehow, who could maybe allow that girl to get an abortion. sometime in the future. well, this is the audio of the jane doe hearing in front of an appeals court panel that included brett kavanaugh. this is october 20th of last year. you will hear brett kavanaugh. the other voice you'll hear is bridget, the aclu lawyer representing the teenage girl, jane doe in this case. >> both sides seem to agree under current supreme court law, the government can't block the abortion. my question, i'll start with you.

as i did with the government. doesn't the sponsor option, if it is effectuated, resolve the case, if it could be done by tuesday, for example. >> your honor, i'm not sure that -- >> or friday and we have a couple weeks at most. i realize you'll say that each day matters and i understand that. completely understand that. but if the sponsor could be identified quickly, a sponsor, isn't that a best case scenario for j.d.? because j.d. has a sponsor then and also if she chooses, obtaining an abortion that she has so far elected to have. >> i have no doubt that she would rather be with an extended family member rather than a government funded shelter. i understand that process takes a significant amount of time. there must be a vetting process, a home visit. my understanding, it could take

months. >> it could take months. for the teenager who was already pregnant, who is already being barred from going to her doctor's appointments to get an abortion, the clock is ticking. that's a point that the aclu lawyer pressed throughout the hearing. making it clear that the delays matter. the delays caused and have already caused at that point real harm to jane doe, j.d., by forcing her already to stay pregnant when she doesn't want to be. by forcing her into a situation where the pregnancy keeps getting further and further along. of course, if you push it far enough, at a certain point, it would be too late to get a legal abortion at all. and that seems to be judge kavanaugh's strategy here. listen to this next part of the hearing. you'll hear a third voice asking about the timing. that's another judge from the panel in this court. judge patricia. >> what we're talking about here

is an unaccompanied immigrant minor, 17 years old, pregnant, who has been forced to remain pregnant against her will for three weeks now because the government has blocked her abortion decision. every day she remains pregnant takes a toll on her physical and emotional health. she is going to be pushed further later into her pregnancy. she's already been pushed from the first trimester into the second trimester. the further we get, the further risks there are for her and also, if we get so far, she'll be forced to carry this pregnancy to term against her will. >> at what point would you say that abortion will no longer be a safe option in this case? >> texas bans abortions at 20 weeks in pregnancy. >> and she's 17 right now? >> about 15. >> 15 is what you said yesterday. 15 weeks? >> approximately 15. but your honor, i would say, as you recognize, every day matters for j.d. it's been three weeks and it's been three weeks too long. >> so jane doe's lawyer red flagging the urgency of the

case. you get the sense listening to the hearing, that brett kavanaugh understands. he acknowledges the tight timeline. he asks follow-up questions. the answers are clear. each passing day makes abortion procedure riskier and gets the teenage girl closer to a legal barrier after which she can't get a legal abortion at all. they are forcing her to that delay. after hearing all that, listening and responding and asking thoughtful sounding questions, judge kavanaugh decided that what this teenage girl really needed, what jane doe really needed was to wait some more. actually, to wait a considerably longer amount of time. judge kavanaugh wrote the order in this case ruling that the trump administration should get another 11 days to keep blocking jane doe from getting an abortion while they continued to look for a sponsor for her. so that would push her pregnancy from 15 weeks into 16 weeks and into the start of the 17th week.

and at the end of that extra waiting period, judge kavanaugh ordered the girl would still not be allowed to go to her doctor's appointment and get the abortion. she wouldn't even be granted the right to come back to judge kavanaugh and appeal again. he ruled in her 17th week, after the delay that he was ordering, he would then order her to go back and start again at a lower federal court and she could then try on get that lower court to rule again that she can get the abortion. and if she did get that ruling in the lower court, the judge notes in his ruling, the trump administration could then immediately appeal back to him, where he would start considering the matter all over again. at which point she would be pushing into her 18th week if she's lucky. more likely her 19th week, depending on courtroom schedules. abortion becomes illegal in texas after 20 weeks. so you can see where this is going. what was that about 20 weeks? somebody say something about

every day counts? how much longer can we make her wait? >> at what point would you say that the abortion will no longer be a safe option in this case? >> the way this worked out is that judge brett kavanaugh's ruling in this case got overturned by the court a few days later and jane doe did not have to abide by this schedule he had set for her and she was able to get abortion that she was seeking. and brett kavanaugh wrote a long blistering dissent, complaining about being overruled in that case. many legal observers say that dissent was clearly part of his public audition for the trump administration to pick him for the supreme court, which they did. the supreme court nomination for a million reasons hasn't been front page news as much as you might expect. which at this point is a little strange. ask americans if they want this nominee and the answer is no. particularly women say no.

he is an historically unpopular choice which itself you would think would make this nomination, if not a scandal, then at least a big focus of national media. republicans have taken the unprecedented step of refusing to release his paper trail. there's even a live and strange controversy over whether brett kavanaugh lied to the senate the last time they held a confirmation for him in 2006. the head of the judiciary committee referred him for potential prosecution for lying to the senate when he was first nominated to be a judge. aside from the process of how they are trying to get him on the court, aside from the strategy they are trying to use, this roe issue, whether or not you're part of the 71% of americans, there is a reason why people are sure that a judge kavanaugh would be the deciding vote to overturn roe versus

wade, and part of that is what he did just last year to try to push this 17-year-old girl, 15 weeks, 16 weeks, 17 weeks, 18 weeks -- how far can we push this? is it too late now? is it too late yet? we'll be right back. >> at what point would you say that abortion will no longer be a safe option in this case? -i've seen lots of homes helping new customers bundle and save big, but now it's time to find my dream abode. -right away, i could tell his priorities were a little unorthodox. -keep going. stop. a little bit down. stop. back up again. is this adequate sunlight for a komodo dragon? -yeah. -sure, i want that discount on car insurance just for owning a home, but i'm not compromising. -you're taking a shower? -water pressure's crucial, scott! it's like they say -- location, location, koi pond. -they don't say that.

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at what point would you say that abortion will no longer be a safe option in this case? >> texas bans abortions at 20 weeks in pregnancy. >> and she's 17 right now? >> about 15 approximately. >> that's what you said yesterday in the hearing. 15. >> i would say and i think as you have recognized, every day matters for j.d.

it's been three weeks and that's three weeks too long. >> she was pleading with the d.c. appeals court judge named brett kavanaugh last fall to allow her 17-year-old client being held in government custody to be able to physically leave her shelter in order to obtain an abortion. and whatever you think about abortion, that is her constitutionally protected right before texas makes it illegal at 20 weeks. senate republicans have tried very hard to shift the focus away from brett kavanaugh's time at the white house where they don't want to release his white house records to his record on the d.c. appeals court bench. they keep saying focus on his record, his time as a judge. well, his record on abortion rights on the bench is this one decision in this jane doe case and it absolutely speaks for itself. joining us, bridget amiri, from

the reproductive freedom project, thanks for being here. >> thanks for having me. >> so brett kavanaugh's hearings start tomorrow. you personally argued the only abortion case that he has heard as a judge. his decision, had it stood, would have forced your client to have further delayed her abortion. and it seemed like, listening to that hearing, looking at his ruling and his ruling and his dissent early on, it seemed like his intent was to delay it. >> i don't know what his intent was. but i can tell you how he ruled. while the aclu doesn't endorse nominees, we think it is important for the public and the senators to know exactly what happened in the jane doe case. and i can tell that you the decision that he issued would have forced jane to remain pregnant for weeks longer, and that meant not just the 11 days

to try to find a sponsor, which was a futile effort. we knew that the government had been trying to find a sponsor for six weeks with nothing to show of it. the process takes a long time. and that at the end of the 11 days, it is not as if she'll be able to obtain the abortion. instead, we would have to start the case all over again, go back to district court, the government appealed to the supreme court which could have taken weeks as well pushing her past the legal limit in texas. so his decision caused the delay even further and could have meant that she would have been forced to go to term. if not for further court intervention. >> did you know going into this case that he personally, as one of the judges on the panel, would be a real obstacle for your client? >> everything was happening so fast. i didn't really have a sense of what to expect with the panel. and there was sharp questions on

both sides from the judges on the panel. i didn't really have an indication and then when we got the decision, i really realized what this meant, that we would have to seek an emergency review to get it overturned. which eventually we did. >> so it was overturned. then he wrote this very big long now famous dissent arguing that his ruling had been overturned. a lot of observers who are not necessarily experts in your area of the law but closely watching brett kavanaugh now, see that as his audition to be picked for the supreme court. him trying to display his bona fides against reproductive rights. do you think that's a fair assessment? >> i think there are definitely cause for concern in that dissent and in his original panel ruling that would be reason to think that he could overturn roe versus wade. talking about the abortion on demand and certain language that

is really used by people who are opposed to abortion. actions speak louder than words. what he was going to do was push her further into her pregnancy, delay her further, and this was a really easy case. roe versus wade says the government cannot ban abortion. that's what they did for jane doe. it was an easy issue. for him to say that this was a novel question is completely contrary to 40 years of supreme court precedent. >> what are you going to be watching for in the hearings when they start tomorrow? >> i'll be watching for really detailed questions from the senators. we want those questions to be asked about what, why wouldn't you retain jurisdiction after those 11 days, what was the purpose of forcing her to wait for a sponsor, in any event,

since she had already gone to state court and gotten consent to the abortion on her own. what was the purpose for doing that? so these really important questions that will peel back the layers on his position on abortion. >> so it is actually going through with him when he had a chance to rule on it in court. >> exactly. >> bridget, thank you. nice to see you. we'll be right back. stay with us. back. stay with us you coulda fixed it with a pen. maybe you should take that pen and use it to sign up with a different insurance company. for drivers with accident forgiveness liberty mutual won't raise their rates because of their first accident. liberty mutual insurance. ♪ liberty. liberty. liberty. liberty ♪

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the center for reproductive rights is an organization that fights for women's access to abortion and birth control. they lobby lawmakers and when that doesn't work, they sue. what they don't do is politics. they're a nonpartisan group. they don't fight for or against republicans or democrats. they don't take political stances outside their field of policy. except now. for the first time in the

25-year existence of the center, they have just announced they are fighting a supreme court nomination. quote, we do not make this decision lightly. we win cases before a wide range of federal judges who have been appointed by both republican and democratic presidents, we are rigorous about factual accuracy and careful legal analysis. we are a nonpartisan portion that does not support or oppose political parties or candidates. but they say that judge brett kavanaugh has, quote, misapplied precedent on abortion rights and has praised and applied a narrow, backward looking approach. joining us now, nancy northrup, the president and ceo of the center for reproductive rights. thank you for being with us tonight. i appreciate your time.

>> thank you. >> so this is an unprecedented thing and a decision not made lightly. why do something to put your organization on record against judge kavanaugh when no other judicial candidate has ever occasioned that from your group ever before? >> well, our mission is to advance reproductive rights as fundamental rights. we do that in state and federal courts throughout the united states. we've done it again and again in every major supreme court case on abortion rights since our founding 26 years ago. and right now that mission is on the line. the access to abortion rights for women in the united states is on the line with this nomination. and we spent a lot of time going through judge kavanaugh's writings, opinions, speeches, and we have grave concerns about how he is decide these cases and about his judicial philosophy.

when you spend time going through those speeches, hearing about his praising as his judicial heroes of justices like rehnquist and scalia and not just praising them generally but specifically for their dissents in roe, in chief justice rehnquist's case, and in casey in scalia's case, and he is applauding. and in those cases, what those justices said was roe versus wade was wrongly decided and should be overturned. that should be high alert for all of us and that is why we took the unprecedented step for the first time in our history of opposing a nominee for the u.s. supreme court. >> in the statement that your group put out announcing this again unprecedented step that you are opposing him, you specifically say he misapplied precedent on abortion rights.

what do you mean by that? >> you've been talking this evening about the garza case in the d.c. circuit with the immigrant teen girl in custody. and the way he blocked her from getting an abortion. and then issued that blistering dissent, as you say. he purported to be applying the standard that the government cannot impose an undue burden. but he was not doing that. it was really clear that she had the right to access an abortion. she had already gone through the process in texas in which she had gone to a court and they found her able to make the decision even though she was 17, that she wanted to have the abortion. and despite that, judge kavanaugh would have kept her from being able to effectuate this. that's not following -- and if you read the other decisions in the case, it makes it really clear that he is not following the current supreme court jurisprudence.

if you think about it, he is not following it as a lower court judge. what will happen when he is on the supreme court? he does not have to follow precedent if he doesn't agree. >> again for the first time in its 25-year history, it has taken a stance against a supreme court nomination with the nomination of brett kavanaugh whose nomination hearings will begin tomorrow. nancy, thank you for being with us. much appreciate. stay with us. us much appreciate. stay with us does this map show the peninsula trail? you won't find that on a map.

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sometimes it is familiar. it is familiar from the last time a republican was in the white house. for example, john bolton is back. remember him from the george w. bush era? elaine chow. she was labor secretary under george w. bush. now she's transportation secretary under donald trump. george w. bush's deputy chief of staff was joe hagan. donald trump hired the same joe hagan for the exact same job last year. so, on the planet where the trump administration is just the next republican administration after george w. bush, it was a bit of a yawner when trump announced that his latest nominee to the supreme court would be, surprise, a bush guy. and probably the most bush guy he could have found. dating back to the year 2000 when the bush campaign dispatched this guy to work on the florida election recount. the following year brett kavanaugh landed a primo position working in the george

w. bush counsel's office. he was later promoted to white house staff secretary. that is a crucial and influential position in which he managed the flow of all documents across the president's desk. brett kavanaugh was there at the closest range during the george w. bush years for a lot of those years. by the time he was nominated to become a judge on the d.c. circuit court of appeals, it was not a great time for brett kavanaugh to be such a bush guy. in large part because the country was reeling from revelations that the bush administration had been secretly writing policies to try to legally justify torturing people which they were doing in secret prisons around the world. by the time kavanaugh's confirmation hearing rolled around in 2006, his nomination was seen as highly controversial. it lanuished for years. and the bush torture policy that had been developed during kavanaugh's time in the white house, they had become a huge political problem for the bush administration. so senators, when he was up for

confirmation in 2006, they wanted to ask brett kavanaugh about that issue. both because of his close proximity to the inner workings of the bush white house where those policies were developed but also because the d.c. court of appeals to which he had been nominated, that's the court that has exclusive jurisdiction over cases involving things like guantanamo. add all that to the fact a previous george w. bush judicial nominee had actually been confirmed to a federal court without senators ever figuring out that that guy had actually authored a key torture memo. they only found out about it after the dude was confirmed. it was clear. senators didn't want to get caught out with another of those guys. it was a pressing issue at the time for senators to figure out whether this guy, brett kavanaugh, was also involved in the crafting of some of those torture related policies.

>> what was your role in the original haines nomination and decision to renominate? and what did you know about mr. haines' role in crafting the interrogation policies? >> senator, i did not, i was not involved and am not involved in the questions about the rules governing detention of combatants. and, so i, do not have any involvement in that. >> what about the documents relating to the administration's practices and policies on torture? did you see anything about that? did you first hear about that when you read about it in the paper? >> i think with respect to the legal justifications, or the policies relating to the treatment of detainees, i was not aware of any issues on that or the legal memos that came out until the summer, sometime in 2004 when there started to be

news reports on that. this was not part of my docket in the office or as staff secretary. >> i was not involved in questions about rules involving combatants. that was not part of my docket. his answers did end up being good enough for the senate. he got confirmed to the d.c. circuit court that year. typically that's the end of the story. after confirmation hearings, judges are left to their own devices. it is a lifetime appointment. they just do their thing. it's not like they check back in with the senate. but it didn't go that way. in the months after, we were learning new things about how the bush administration's torture policies were crafted. in june, 2007, with brett kavanaugh newly seated in d.c., the "washington post" published a ground breaking news report that included new details about a big, important, heated meeting at the george w. bush white house that had taken place years earlier. it was about the treatment and

legal status of so-called enemy combatants and one of the white house lawyers who participated in that crucial meeting was brett kavanaugh. >> in 2002, kavanaugh was involved in a white house conversation about detainees. the meeting was about american enemy combatants. kavanaugh used to court for anthony kennedy, and he advise the white house lawyers that kennedy would probably reject the president's claim that combatants could be denied access to a lawyer. that was reported by the "washington post." kavanaugh told senators -- >> i was not involved and am not involved in the questions about rules governing combatants.

>> i will just say that he decided he could split the difference. but he had to know he was misleading me. >> this is kind of a deal. a u.s. senator accusing a federal judge of lying under oath. misleading the american public at the same time. so, what do you do when this happens? he's already confirmed to that federal appeals court. lifetime appointment. what are you going to do? you could censure that judge. basically a slap on the wrist, but one that tends to have a lasting impact. that idea was floated for a millisecond. you can convince the judge to

recuse himself from cases involving this thing he appears to have lied about. that would seem like a relatively doable fix. judges should not be able to rule on policies they had a role in creating. senator durbin tried that but judge brett kavanaugh didn't care. he never started recusing. by then it was too late anyway. the first case he oversaw was a case involving prisoners' health in guantanamo. the chair at the time sent a letter to the attorney general at the time, sent a letter to alberto gonzalez asking him to start an investigation into judge brett kavanaugh lying under oath in order to get a seat on that appeals court. he tried to get prosecution for kavanaugh having lied to the

senate to get confirmed to that seat. but all to no avail. so brett kavanaugh has been carrying on on that appeals court, just not commenting at all about this question of whether he lied under oath in order to get that seat on that court. he has not been recusing from cases involving these policies, despite his testimony to the contrary. now that mess is about to sort of come due finally. democrats have said that they're absolutely planning on bringing this up again when brat kavanaugh's confirmation hearings for the supreme court begin tomorrow. this particular controversy, this is why they have been trying and failing so far to get access to documents from all of brett kavanaugh's five years in the george w. bush white house. democrats say that even with the few documents they have been given access to, they're already seeing evidence that undercuts

his assertion he didn't have any involvement in terrorism policies. even those documents they have reviewed on the committee, those are being withheld from public view by the committee chairman, chuck grassley. democrats want them released so the public can see it themselves. that's one thing to keep an eye on, to what extent brett kavanaugh's 2006 confirmation hearing comes back to haunt him. and just one last point i will make on this. that letter written in 2007 asking the attorney general to open an investigation into whether brett kavanaugh lied during his confirmation hearing, that letter didn't go unanswered. months later, the justice department did respond to him. they said, don't worry. they said they had, quote, reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation of brett kavanaugh. justice department official who signed that letter, the letter basically exonerating brett kavanaugh is named brian benchkowski.

at the time, the principal deputy assistant attorney general in the justice department. he is literally the exact guy that excused brett kavanaugh of any wrongdoing in his 2006 hearing. now he is back in the trump administration fresh off a stint doing legal work after the campaign for a russian bank called alpha bank. he is now back at the justice department. and now he is the head of the criminal division. he's in charge of enforcing all federal criminal laws in the united states, including the crime of lying under oath. for years now, brett kavanaugh has been able to dodge any fallout from these serious accusations that he lied. in part thanks to administration officials who were there then and are back there now. but it is likely that tomorrow's

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that does it for us tonight. we'll see you again tomorrow night. with lawrence o'donnell. >> good evening and welcome to our special labor day edition of the last word. we are now 64 days away from election day and the latest nbc news wall street journal poll shows 50% of voters want democrats to take control of congress. 42% want republicans to keep control. enthusiasm for democratic candidates in special elections helped democrat connor lamb take a house seat away from republicans in pennsylvania and doug jones win a senate seat in alabama, which hasn't elected a democratic senator since 1992. voters are telling pollsters they are more enthusiastic about voting in this term than previous midterms.