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Heritage Foundation's John Malcolm Weighs In On Kavanaugh Nomination

MARY LOUISE KELLY, HOST:

Back in July, when Kavanaugh was named as the nominee, among the people gathered at the White House for the big announcement was John Malcolm. Malcolm is with The Heritage Foundation. That's a conservative think tank here in Washington, a think tank which President Trump has credited with helping to inform his thinking on judicial nominees. John Malcolm joins me now.

Welcome.

JOHN MALCOLM: It's a pleasure to be with you.

KELLY: Am I right in thinking you are pleased with how the confirmation vote appears to be shaping up?

MALCOLM: Yes. I'll be more pleased after it's done tomorrow. But it is now looking increasingly likely that Brett Kavanaugh will be the associate justice on the Supreme Court. And I'm very pleased about that.

KELLY: Yeah, the numbers are there. I'd let you address some of the questions that have been raised, that will continue to be raised in light of his testimony...

MALCOLM: Sure.

KELLY: ...And specifically questions about his temperament. More than 2,400 law professors from across the political spectrum have signed a letter arguing that he demonstrated a lack of judicial temperament...

MALCOLM: Yeah.

KELLY: ...When he was testifying, that this should be disqualifying. And then I want to play you a little bit of John Paul Stevens, the former Supreme Court justice, who weighed in last night and said he no longer believes Kavanaugh should be confirmed. Here's Justice Stevens.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN PAUL STEVENS: He's a fine federal judge, and he should have been confirmed when he was nominated. But I think that his performance during the hearings caused me to change my mind.

KELLY: John Malcolm, so these are not "he said, she said" questions that are being raised. These are...

MALCOLM: Sure.

KELLY: ...Serious questions about his temperament. What do you think?

MALCOLM: Sure. Well, we don't have to guess about Judge Kavanaugh's temperament. We have 12 years of experience with him being on the D.C. Circuit Court of Appeals. The American Bar...

KELLY: And a lot of people who know him well say the justice that they have known before was not the man on display last week while testifying.

MALCOLM: Well (laughter), that is certainly true. I think that there were some people that would have preferred that Brett Kavanaugh, in the midst of an incredible onslaught against him, his reputation and his family - that he would have acted like an automaton. And had, by the way, he acted like an automaton, I think the response would have been - well, clearly he must be guilty because a truly innocent man would have expressed righteous indignation at the charges that he was facing. So I think that Brett Kavanaugh was put into a position where he was damned if he did and damned if he didn't. The American Bar Association, of course, interviewed well over a hundred of his fellow judges and lawyers and said that he has an outstanding judicial temperament. And he will as a Supreme Court justice as well.

KELLY: People weighing in and continuing to weigh in on both sides of this, absolutely right. Let me ask you this. Why should we have confidence that a man who said under oath with no evidence that he was the victim of a revenge plot on behalf of the Clintons, that he was the victim of a big left-wing conspiracy - that this man will be able to serve as an impartial, nonpartisan justice going forward?

MALCOLM: Well, I - sure. One, Brett Kavanaugh has a history of caring about the rule of law and not basing rulings based on any political or personal beliefs. And he is not about to sacrifice that well-deserved reputation for integrity by throwing it all away on the Supreme Court. I would note, by the way, that, you know, obviously Ruth Bader Ginsburg had some harsh statements to say about Donald Trump before he went on the - you know, became president. I don't hear too many people questioning her integrity, and I certainly won't either.

KELLY: But to that specific remark, he went on to say he was the victim of a calculated and orchestrated political hit. I mean, do you have confidence that he will be able to operate in good faith on cases involving politics?

MALCOLM: Absolutely. I think there is no question that he found the tactics of some of the members of the - Democratic senators on the Senate Judiciary Committee to be opprobrious. But when it comes to ruling on constitutional, statutory cases, Brett Kavanaugh has a history of respecting the Constitution, respecting separation of powers. He is not going to throw all of that away because he's mad that Cory Booker had his Spartacus moment.

KELLY: In his - the op-ed that he published last night in The Wall Street Journal...

MALCOLM: Yeah.

KELLY: ...He didn't really apologize. He offered an explanation for some of his testimony. He said, there are some things I shouldn't have said. What things...

MALCOLM: Yeah.

KELLY: ...What should he not have said?

MALCOLM: Well, he gave some examples of that, actually, during the hearing. So for instance, when he came back after a break, he apologized to Senator Klobuchar for asking her whether she had a drinking problem. There is no question that he was hot under the collar. But my God, I think anybody who had been accused of spiking women's drinks and facilitating gang rape - if that will not get one righteously indignant, then I don't know what will.

KELLY: And very briefly - we have a few seconds left - on the politics, should he have said that?

MALCOLM: (Laughter) You know, I think there is no question that the Democrats - you know, at least some of them - engaged in the timing of this for maximum advantage and had a political tinge to it. And I do not fault him for responding to that. It will not affect what kind of a justice he will be - not one iota.

KELLY: John Malcolm, thank you.

MALCOLM: Good to be with you.

KELLY: That's The Heritage Foundation's John Malcolm, an early backer of Brett Kavanaugh for the court, and one of many voices we are hearing on this story throughout the program.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.