Did FBI interview enough witnesses in the Kavanaugh probe?

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Did FBI interview enough witnesses in the Kavanaugh probe?

Democrats question Supreme Court legitimacy following Kavanaugh confirmation. Former Senate Judiciary Committee counsel Gregg Nunziata provides insight.

This is a rush transcript from "Journal Editorial Report," October 6, 2018. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: Welcome to the journal: editorial report. I'm Paul Gigot.

We're live this week with the special coverage of the confirmation of Brett Kavanaugh, who was sworn in last night as an associate justice of the Supreme Court.

The final 50-48 vote followed a bitter 90-day battle marked by uncorroborated allegations of sexual assault and unprecedented scrutiny of Kavanaugh's high school and college behavior.

But his fate all but sealed on Friday with the announcement by Senator Susan Collins, of Maine, that she would vote in favor of his confirmation.

(BEGIN VIDEO CLIP)

SEN. SUSAN COLLINS, R-MAINE: Certain fundamental legal principles about due process, the presumption of innocence, and fairness do bear on my thinking and I cannot abandon them. The allegations failed to me the more likely than not standard. Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the court.

(END VIDEO CLIP)

GIGOT: Let's bring in Wall Street Journal columnist and deputy editor, Dan Henninger, Columnist Kim Strassel, editorial page writer, Kate Bachelder Odell, and columnist and Manhattan Institute senior fellow, Jason Riley.

Dan, you've written that this whole confirmation fight is a Watershed moment for American politics but tell us why.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Yes. I think it was both a watershed and defining. I guess the best way to describe that, Paul, would be to put inside the context of Susan Collins' speech on the floor of the Senate, which was a long speech, but she took us through the Kavanaugh confirmation process. We all recall how the hearings began. We went to the first phase of the hearing. And that was about Brett Kavanaugh's jurisprudence. They talk to him about Roe v. Wade, abortion, gay rights, the administrative state, the authority of the president. You can agree or disagree on those things. You can say, I would not vote for Brett Kavanaugh on the basis of his responses. Then the hearings went into a second phase, surprisingly and suddenly. That was the testimony of Christine Blasey Ford, which ultimately came down to her word, no corroboration. And it sustained that level. So you saw the country dividing with people that say, "I believe Christine," or as Susan Collins made clear, are there still standards of due process in this country? That was, I think, the watershed. It was surprising to me really, how many people, how many liberals, how many Democrats decided to simply say, I don't care what the details are, I believe this one uncorroborated accusation.

GIGOT: Jason, who do you think, in the end, after that moment, who saved the nomination for Brett Kavanaugh, because it was in jeopardy for a while?

JASON RILEY, COLUMNIST & SENIOR FELLOW, MANHATTAN INSTITUTE: I'd have to say it was Susan Collins who saved it. I think her speech for -- I have a take away from the speech that Dan did. They could find nothing in the jurisprudence that was disqualifying so they switched, moved the goalpost and they made it about his character and his temperament. And Susan Collins brought it back to the fundamentals. She talked about fairness and the presumption of innocence and due process. Unfortunately, many on the left wanted to throw that out the window in order to stop President Trump from appointing someone to the court. She said, as a country, that would be a very slippery slope.

GIGOT: Kim, what about the role of Brett Kavanaugh himself? It seems to me he played a decisive role in saving his own nomination by the performance he gave at that hearing. He got a lot of criticism for his forcefulness there, but I think, had he not said what he said and even challenged the Democrats on their strategy, it would not have given the Republican Senators the confidence to stand by him.

KIM STRASSEL, WASHINGTON COLUMNIST: Yes, I fundamentally agree. That's what he had to do at that hearing. Some people will say that's what lost him Lisa Murkowski's vote, Lisa Murkowski, from Alaska. She claims it was his judicial temperament, that that was the reason she voted against him, but I don't buy that. I think she had other reasons, that she was already intending not to vote for him.

But, overall, Paul, this was a team effort. I think a lot of people get credit. It isn't just Brett Kavanaugh or Susan Collins for sticking to her principles. It was Mitch McConnell, who made clear this vote would happen one way or another. And that people were going to have to go and declare where they were. It was Chuck Grassley who worked very hard to make sure all of the Senators, especially the nervous ones, had everything they needed to be able to say they had looked through this carefully. And the White House for sticking with the nominee as well, too. So a lot of people deserve some credit for this moment.

GIGOT: Kate, do you think that Joe Manchin, the West Virginia Democrat, would have voted yes if Susan Collins had not?

KATE BACHELDER ODELL, EDITORIAL PAGE WRITER: That would be the apocalyptic scenario, Paul, is that Collins would vote no and then Joe Manchin would reverse his vote and say I'm also voting no.

(CROSSTALK)

GIGOT: What do you think would have happened?

ODELL: I think that's probably what he would have done, given it was in a profile in courage that he announced he would say yes on Brett Kavanaugh only after Susan Collins went to the floor and announced she was also a yes.

GIGOT: What about President Trump's role here? Did he help or hurt, Kate?

ODELL: For the most part, I think he was mostly helpful and that he stayed mostly quiet. I think his one foray into this did not improve the process.  I think Dr. Ford, from Congress, got a very respectful, decent treatment that she deserved about theabout the allegations she was making. I think President Trump, for the most part, was helpful but mostly by staying silent.

GIGOT: Dan?

HENNINGER: Well, Republicans were nervous about this. They were nervous when, how women might react to Christine Ford's accusations. So the hearing ultimately ended up being an emotional event, by and large. And we have the credit Lindsey Graham as well for taking the spirit of the moment and just attacking the Democrats in a way that I think, that, Trump's fortitude, pulled the Republicans together. They stayed the course. Judge Kavanaugh stayed the course. And there were a lot of moments where it could have gone the other way.

GIGOT: We will have more on the nomination. Still ahead, the Democrats attack the Supreme Court's legitimacy in the wake of the Brett Kavanaugh confirmation. Was the process leading up to yesterday's vote fair? And what are the prospects for future judicial nominations in the Senate?

(COMMERCIAL BREAK)

GIGOT: Democrats now questioning the legitimacy of the Supreme Court following yesterday's confirmation of Justice Brett Kavanaugh. Critics charge that the FBI's investigation of Kavanaugh, which was reopened amid allegations of sexual misconduct, was limited and incomplete.

Senator Dianne Feinstein tweeting, yesterday, quote, "Confirming Brett Kavanaugh in the face of credible allegations of sexual assault that were not thoroughly investigated and his belligerent partisan performance in last Thursday's hearing undermines the legitimacy of the Supreme Court.

Gregg Nunziata served as nominations counsel to the Senate Judiciary Committee during the confirmations of Justices John Roberts and Samuel Alito.

Welcome back. Good to have you with us again.

GREGG NUNZIATA, FORMER NOMINATIONS COUNSEL TO SENATE JUDICIARY COMMITTEE:  Thanks for having me.

GIGOT: So you've written -- you wrote this week that the FBI handling of this probe, the second probe in particular the last week, was exactly by the book in how they should have handled it. Explain why.

NUNZIATA: This is a typical process. And Senators should know that. The FBI does a comprehensive investigation. Occasionally, something comes up later in the process that the Senate decides, if the FBI maybe missed something.

GIGOT: Right.

NUNZIATA: Maybe missed something. May be useful for them to talk to a few more people. That order or request, what is called a supplemental investigation. That's what happened here. A supplemental investigation is limited by its nature. The idea is they go out and conduct interviews that they didn't conduct before. They get more information in front of the Senate. They plug in a couple of holes. Senators knew that. That's why when Feinstein and Schumer were demanding a supplemental investigation, they kept saying this will only take a couple days. They knew what they were asking for. They got what they asked for. And now they're trying to characterize it as something unusual, and it wasn't.

GIGOT: But should have they have interviewed more witnesses? Some people are saying they didn't interview, the FBI didn't interview Mrs. Ford again, for example. Was it incomplete?

NUNZIATA: I think that confuses with the nature of this is. The FBI, when it looks into a background, they're not trying to come to a conclusion.  They're trying to gather information for the Senate to consider. The Senate had already heard from Dr. Ford for over three hours. On top of that, she testified under oath she had nothing more to add. It would be peculiar to me if they went and interviewed Dr. Ford.

GIGOT: Do you think this report, these pages which only Senators and staff have seen, should be made public?

NUNZIATA: I know some have been asking for that. The former speaker, Nancy Pelosi, has called for a FOIA request here. It might be helpful, frankly, to show the American people how -- what was in there. We have to assume the FBI would have talked to at least 100 people, multiple times over six investigations, and the Senate made a decision about Judge Kavanagh are based on that record. Which I suspect was quite glowing. The problem is this whole system of background investigations works the way it does because it's confidential. That's how you get so many former colleagues and associates, people who may practice before the Supreme Court someday, willing to go and tell an FBI investigator what their experiences with a nominee was, including things that are perhaps sensitive.

GIGOT: Some of what you see in those background checks -- because I have seen one done on me, for example, many years ago -- it's hearsay. It's just somebody just talking off-the-cuff. And you see that sort of stuff.  And you have to ask if that questions of fairness there.

NUNZIATA: That's true. There are confidential sources, completely confidential, even from the Senate, who say, hey, I've heard this. Look, when the FBI speaks to 100 of your former associates, former romantic partners, disgruntled business associates, they will find a few people who have something has nasty to say about you, which may not be true. So, again, the FBI report is not findings. It's not a conclusion. It's just gathering raw data and testimony.

GIGOT: When people start to say, this throws into doubt the legitimacy of the Supreme Court, what does that mean? Does that mean people will somehow stop following the Supreme Court rulings? That they will just say, no, I will not enforce that?

NUNZIATA: No. It doesn't. I don't see any real reason that it throws into question the legitimacy of the court, except that some Democrats find it helpful to start talking that way. Just a few months ago, these same Democrats were very concerned that this president one used the phrase "so- called judges." They thought that undermined confidence in the judiciary.  This is dangerous talk their engaging in now, trying to convince the country to disrespect final rulings of the highest court in the land.

GIGOT: Some Democrats also talking about impeachment if they take the House. The House impeaches. The Senate then goes to a trial. Is that something you would see possible here? They're talking about maybe perjury and his temperament.

NUNZIATA: Sure. I think it's possible. I think it would be a mistake for them to go down that road. I can't imagine a world in which they would get a supermajority needed in the Senate to remove Justice Kavanaugh from office, based on this terribly thin record and, frankly, trumped up charges on perjury. It will not result in Justice Kavanaugh being removed from the court. But will they try to hold hearings or have an investigation? They may. I'm not sure that's a good campaign message for them. I think a lot of folks are ready to turn the page on the messiness of this circus we've seen for the last few weeks.

GIGOT: Gregg Nunziata, thanks very much for being here. Appreciate it.

NUNZIATA: Thank you, Paul.

GIGOT: Still ahead, Democrats are vowing not to give up the fight following Kavanaugh's confirmation yesterday. So what do they have planned if they take back the House in November?

(COMMERCIAL BREAK)

GIGOT: Democrats vowing not to give up the fight following yesterday's confirmation of Supreme Court Justice Brett Kavanaugh.

Congressman Jerry Nadler, of New York, telling the New York Times that Democrats will open an investigation into allegations of sexual misconduct and perjury against Brett Kavanaugh if they win control of Congress in November. Mr. Nadler, who is set to become chairman of the Judiciary Committee if Democrats flip the House, is accusing Senate Republicans and the FBI of overseeing a whitewash investigation into the now Supreme Court Justice.

We're back with Dan Henninger, Kim Strassel, Kate Bachelder Odell and Jason Riley.

So, Kate, how seriously should be take the Nadler comments about what will happen is they win the House.

ODELL: Very seriously. But I ultimately don't know that they would be able to do that because the bars of success on impeachment are so high.  And I've noticed they've stopped talking about impeaching the president for the purposes of the midterms, right, because they know that will turn the public against them. I don't know how seriously to take it but I'm inclined to think it's just fictional.

GIGOT: Do you think it's a winner political for them running up to the midterms?

ODELL: Absolutely not. No. I think that's why they've stopped talking about impeaching the president because the American public elected Donald Trump in 2016. It would be a completely ridiculous circus to start removing him and his entire government.

GIGOT: Kate, also in these -- excuse me, Kim, also in these hearings, we saw three potential Democratic candidates for president. Kamala Harris, Cory Booker and Amy Klobuchar all were on stage. They looked to be doing something of an audition for president and the nomination. How do you think they did? How did they look?

STRASSEL: That audition was for one particular group, for the liberal base, the progressive movement, and to the degree there's nothing you could do too radical to turn off that base. In fact, that's what you do to excite them. They all performed very admirably with their Spartacus moments, et cetera. The question always will be, does that -- however, it might help them in a primary and on that platform and get better known in those communities, but is that a winner overall for the Democratic Party?  Again, it's more evidence of the shift left that we are seeing on that side.

GIGOT: Jason, talk about the illegitimacy of the Supreme Court. Think about that for a second. What does that mean --

RILEY: Well --

GIGOT: -- when you hear that? What do you think it means? Or is it a slogan?

RILEY: I think it's a slogan. But what struck me about the tweet you showed earlier was that it came from Dianne Feinstein. This is not some hard-left progressive. This is not Kamala Harris or Elizabeth Warren or Cory Booker.

GIGOT: Right.

RILEY: This is Dianne Feinstein questioning the legitimacy of the Supreme Court. I see a natural progression here. First, they went after the executive branch. Donald Trump is illegitimate. He didn't win the popular vote. Or Russian bots go him elected or so forth, or Jim Comey got him elected. But he's not legitimate. And now they've moved on to the judiciary. It seems to me they're only -- their only standard here is, if they don't control a branch of government, it's not legitimate.

GIGOT: Remember, in the 1950s, we have brown people in education, right, that said we're going to integrate the schools in the south. And there was what was known then as massive resistance by southern governments saying the Supreme Court is illegitimate. What you had to do was you had to have federal officials help to integrate the schools. Is that where we are as a nation?

RILEY: It seems that way. Go back to the comments made a little ways back by Maxine Waters, harassed people on the streets. Very few people are walking that back. They agree with her. And other leadership officials agree with her as well.

GIGOT: A lot of chatter about how the divided the country is, Dan. Some serous people even saying maybe as divided as before the Civil War. Do you agree with that?

HENNINGER: I think the country is divided. Polls have started to show that polarization started with George W. Bush. Another, quote, unquote, "illegitimate president" the left said because of the Florida recount, hanging chads.

GIGOT: Right.

HENNINGER: That's when it started. Then the polarization actually increased during Barack Obama's years. Everybody thought Obama was kind of a calming personality. No, polarization increased. So the divide is very serious. I think the big question, Paul, is not so much on the right -- the Alt-Right disappeared in this, it's just Republicans and conservatives.  On the left, the question is, are all Democrats going to follow the lead of the progressives and the kind of resistance Jason was describing. Donald Trump in his rallies has now begun to describe them as the radical Democrats, the radical left. They are self-defining themselves that way.  And will that carry with the general electorate?

GIGOT: If they've taken Dianne Feinstein over to that, that suggests maybe they will.

RILEY: But it's also, they showed a willingness to politicize the court to a degree we haven't seen before, I think, or not in a very long time. The Republicans have been much more willing to vote for Democratic nominees to the court than the reverse, and that's become more so in the more recent nominees. This is not advise and consent on the court for Democrats. This is a grudge match.

GIGOT: Kim, if Democrats retake the Senate in November, and next year, win the Senate, will they confirm any presidential nominee for the Supreme Court or even the appellate courts?

STRASSEL: No, absolutely not. And everyone needs to understand that.  Lindsey Graham was on television today holding that list of judges that Donald Trump put together, and he said, is there a single person that Chuck Schumer would ever agree to. And of course, the answer is, no. They will shut down that and make sure the president cannot do anymore in terms of a judicial remake.

GIGOT: Wow. OK.

When we come back, amid accusations of political bias, Brett Kavanaugh gets set to take his seat on the Supreme Court this week. We will look at that term ahead and what kind of justice he will be.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BRETT KAVANAUGH, U.S. SUPREME COURT JUSTICE: This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about the President Trump and the 2016 election, fear that has been unfairly stoked about my judiciary record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

(END VIDEO CLIP)

GIGOT: That was an angry Brett Kavanaugh at last month's Senate Judiciary Committee hearing. And as he prepares to take his seat on the Supreme Court, critics are pointing to that performance to argue that Kavanaugh lacks judicial temperament. They also claim that the political nature of his remarks will require that he recuse himself from certain high court cases going forward.

Elia Shapiro is editor-in-chief of the Cato Supreme Court Review.

Welcome. Good to have you again.

Let's take the judicial temperament point first. Do you think this will affect this trial, that the judge has been through, will affected him, his jurisprudence?

ELIA SHAPIRO, EDITOR-IN-CHIEF, CATO SUPREME COURT REVIEW: Well, it might affect his psychologically. Clarence Thomas has written that his trial by fire sort of steeled himself and made him a different judge than he was before. Brett Kavanaugh seems very well-adjusted. There's a difference between judicial temperament when you've been accused of gang rape and all the rest of it versus 12 years on the bench and glowing reviews. I've seen him in person how he's acted as a judge and no complaints in that regard.  I think he'll be just fine being on the bench and settling in. The first year on the Supreme Court it's always an adjustment process being among the nine. But in terms of that kind of temperament, I don't see a problem of him quickly settling in.

GIGOT: The Supreme Court justices I've talked to say every time a new justice arrives, and somebody leaves, the dynamics within the court changed somehow. Sometimes in unpredictable ways. How do you think Brett Kavanaugh will change this court?

SHAPIRO: I think that's right. Even if his vote on a given case would be exactly the same as Justice Kennedy, the seat he's filling, would have done, in terms of which area of law he's most interested or expert in, like administrative law, pushing back on the executive state or constitutional structure, separation of powers. Kennedy wasn't necessarily focused on those things. So maybe he will write more in those areas, speak up more in those kinds of cases, even if his eventual vote would be like Kennedy's.  Behind the scenes, a small group dynamic, psychologists will tell you, really will change. In unpredictable ways.

GIGOT: So people are saying, well, there's now a solid 5-4 conservative majority. But it depends how you define conservative. Give us some examples -- you mentioned the administrative state. Give us some examples of other issues where you think an actual ruling could change.

SHAPIRO: There's very few of the big high-profile ones. I did a piece a couple months ago looking at what the scientific survey of my Twitter feed and what the sort of top-eight areas that progressives were most upset about. And most of them, there's no change. Kennedy was already with the conservative on arbitration and worker rights and corporate power, campaign finance, et cetera, et cetera. The biggest one, I think, that will -- has the potential of changing is affirmative action and racial preferences.  The trial starts in two weeks in Boston, a lawsuit against Harvard University. If and when that gets up to the Supreme Court, in two years or so, that could be a big change in this 40-year-old experiment with use of racial preferences. Other things may be Roe v. Wade or abortion gets talked about. But remember, John Roberts is in the middle of the court, the chief justice. We haven't had a chief justice in the middle of the court jurisprudentially in quite some time, since the ‘30s I think. So things like that will only go as far and as fast as he wants to take them.

GIGOT: Let me give you another example and see what you think about it, and that's gun rights. For example, the court has not taken a case challenging state and local regulation of gun rights in quite some time, maybe since, a major case since the two big ones, Heller and McDonald, several years ago. I believe they didn't take it because they didn't know that -- the conservatives didn't think that maybe they had a 5-4 majority, but with Brett Kavanaugh, that could be the difference.

SHAPIRO: I think that's right. You need four votes to take up a case. If the four more conservative justices than Roberts vote that way to take up these cases, I think the court will have that majority. I think it should take up the case, however it ends up ruling, because there's really been chaos and civil disobedience in the lower courts about the scope of the right that Heller introduced. In the Supreme Court, it's about time. It's been a decade and they really need to flesh it out.

GIGOT: You mentioned Chief Justice John Roberts being the centrist on the court. I guess it depends on how you define centrist. But I would define him more as an Incrementalist and an Institutionalist. He's not somebody that wants to say, oh, boy, I have a majority here so, let's have a bunch of 5-4 decisions and roll over all kinds of precedents willy-nilly. He's going to do things slowly, by degrees. He might even try to get Elena Kagan and Stephen Breyer on his side to form a majority for some of these decisions.

SHAPIRO: I think that's right. We saw that dynamic a little big in the previous eight-justice court after Justice Scalia died, where, indeed, there was this centrist coalition with left and right dissenters or concurrences. And you're right, just because Roberts is the medium vote, the middle of the court, doesn't mean he's a centrist himself. He is a conservative but he's a minimalist. So as we've seen in various areas or law, from campaign finance to voting rights to other things, it takes several cases to move in a particular direction, so he is certainly not looking, off the bat, to overturn cases or set broad precedents.

GIGOT: Because he's the chief, he a certain ability to steer opinions, if he's in the majority, to certain judges who might write a more minimalist opinion.

SHAPIRO: That's right. He only gets one vote but, if he's in the majority, he will assign the writing. We have to be careful about this.  If it's five or six justices in the majority and he makes an assignment and it turns out the other three or four think that's too narrow, then he will lose his plurality effectively.

GIGOT: Right.

All right, thank you, Ilya Shapiro. Appreciate you coming in.

SHAPIRO: My pleasure.

GIGOT: Still ahead, the Kavanaugh confirmation coming just weeks before the midterm elections. Has the bitter fight moved the poll numbers in key races? We will ask Karl Rove, next.

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(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: Over the past few weeks, every American has now seen the profound stakes in the upcoming election.  You now see it. We have been energized. We have been energized.

(CHEERING)

(END VIDEO CLIP)

GIGOT: The Kavanaugh confirmation coming at a pivotal time, with just a month to go until the midterm elections. And mid the bitter fight over his nomination, voter enthusiasm among Republicans has soared, with a new poll showing a once-clear Democratic advantage all but disappearing. In July, that poll showed a 10-point gap between the number of Democrats and Republicans saying the November elections were very important. Now that is down to just two points, a statistical tie.

Wall Street Journal columnist and Fox News contributor, Karl Rove, is a  former senior advisor to President George W. Bush.

So, Karl, the majority leader of the Senate, Mitch McConnell, says, I want to thank the mob for mobilizing Republicans. Is that what you're seeing in the polling across the country?

KARL ROVE, COLUMNIST & FOX NEWS CONTRIBUTOR: I think the general issue is what's motivating them. I think, in particular, two things. One is the sense this was a last-minute hit with no corroboration. And secondly, the Democrats seem to assume that if you make the allegation, you don't have proof, that individual is still guilty. Those two things, the process and the standard to be applied, is what has energized Republicans. The question will be whether or not they feel that strongly in 30-some-odd days when they go to the polls and start to vote.

GIGOT: Do you see any evidence now in any particular races that it is making a difference?

ROVE: I think it already made a difference in North Dakota. Kevin Kramer had been doing so well that, at the end of the day, Heidi Heitkamp decided, since she looks like -- right now he leads by, I think, an average of eight points, seven points in the RealClearPolitics average, I think Heidi Heitkamp basically said, I'm going to pretty up my resume for service in the next Democratic presidential administration and came out against him.  But, yes, I do think it's a problem, particularly for Joe Donnelly, in Indiana, who on the 28th came out against Kavanaugh saying we need to have an FBI investigation. Later that day, the FBI began the follow-up review.  So now he's got to be in a place where he says, I came out against them because I wanted an FBI investigation but somehow or another the effort hasn't done a sufficient enough job to sway my concern. So he's got a problem. But, yes, it's a problem in every state were Trump won by a big margin, Montana, West Virginia, where Manchin solved the problem by voting for him. But I think it's also a problem for Democrats in states that are much more narrowly balanced. In Nevada, Jacky Rosen, the Democrat, has yet to run a TV ad attacking Dean Heller on his vote, though she has done a digital ad. In Arizona, Kyrsten Sinema, the Democrat, kept very quiet on this all the way to the end.

GIGOT: If you were the Republican candidates in those races, would you use the Supreme Court as a wedge issue to try to generate more enthusiasm and pull some Independents to your side or do you risk mobilizing the other side more?

ROVE: This issue will be used by Democrats to mobilize their base. No if's, and or buts. Here's the trick, the problem, the challenge, if you will. Take a look at two polls last week. NPR and the Marist poll asked, if there is still a doubt about whether the charges are true, should Brett Kavanaugh be confirmed or not? And 40 percent said confirm him, 52 percent said did not. On the Harvard/Harris poll, though, said, if the FBI reveals these allegations, finds no corroboration, should you vote to confirm? And 68 percent confirm, 40 percent don't confirm. Whoever makes the better argument. The Democrats will go out there and say, there are doubts.  Republicans need to go out there and say, with all due respect, the FBI did a review, they found no corroboration, the four people named by Dr. Ford, with all due respect to her, none of them could corroborate or verify her claims. And fairness dictates that we, in America, we believe in the presumption of innocence until proven guilty. None of the people identified by either Dr. Ford or Ms. Ramirez were able to corroborate the charges. But the Republicans have got to make the case.

(CROSSTALK)

GIGOT: But would you go up with an ad that maybe tried to polarize the race along these lines? Or is that too risky for either side, either Democrats or Republicans in a very close election?

ROVE: I think -- I think it's a case-by-case basis. If the Democrats go up with an ad, the Republicans have to go up with an ad. In the case of Indiana, I've got up with an ad because Donnelly put himself in a bad place. I'm voting against him because I want an FBI review, I want them to investigate these charges. Well, now they've done that and he still voted no.

GIGOT: Have any of the Senators, other than North Dakota, in your view, really established, broken out in either party to substantial leads that  look like they're pulling away?

ROVE: There are only two, North Dakota for the Republicans, and West Virginia for the Democrats. Take a look at the RealClearPolitics average for the other races: Arizona, 3.4. Florida, 2.4. Indiana, 2.5. Montana, three, and closing dramatically over the last month. Nevada 2.3.  Tennessee is now a two-point advantage for the Republicans, but it's moved dramatically. I think that's on the verge of breaking into the Republican column pretty effectively and strongly. But the other races are very much up for grabs and we've got plenty of time for either side to sway the argument their way.

GIGOT: Do you think that Joe Manchin, in West Virginia, with his vote for Kavanaugh has put his race away? Certainly taken away one of Patrick Morrisey's best issues.

ROVE: Yes. I think it will be tough. It may have been political, it may not have been political, but it certainly helped him in a state that loves Donald Trump and where Donald Trump -- let's see if the White House goes back in and makes the case that they got his vote when they didn't need it and the president needs someone who will be with him in tough times.

GIGOT: All right, Karl, thanks for coming in. Appreciate it.

ROVE: You bet.

GIGOT: Still ahead, much more on the political fallout from the Kavanaugh confirmation fight. Will outrage on the left help or hurt Democrats in the midterms? Our panel weighs in, next.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER, D-N.Y., SENATE MINORITY LEADER: And to Americans, to many millions who are outraged by what happened here, there's one answer.  Vote.

(END VIDEO CLIP)

GIGOT: Angry protests marking yesterday's confirmation of Supreme Court Justice Brett Kavanaugh. Will that anger and the left's tactics during the bitter confirmation fight help or hurt Democrats in the midterm elections?

Here is Senate majority leader, Mitch McConnell, yesterday.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, R-K.Y., SENATE MAJORITY LEADER: As unpleasant as it's been, it's been worth it. They made a tactical mistake that really helped me unify my conference and turn over the Republican base going into the election. Maybe I ought to say thank you.

(END VIDEO CLIP)

GIGOT: We are back with Dan Henninger, Kim Strassel, Kate Bachelder Odell and Jason Riley.

Kim, you heard Chuck Schumer in the previous segment make a statement on the Senate floor saying, vote, vote, vote, vote. This is what you have to do. Do you think this was -- and pretty clearly said Christine Blasey Ford will be one of their political symbols through November. Do you think that was maybe the strategy all along here? If they can't defeat Brett Kavanaugh, use it in the election.

KIM STRASSEL, WASHINGTON COLUMNIST: Right, it was voter mobilization, all along. I think they were also hopeful they could stop the judge. But this was about firing up their base. I think this is what is being missed.  When Judge Kavanaugh was put into office this weekend, sworn in, it basically set off a referendum on his nomination and his seating on the Supreme Court. What you are seeing is they made a clear plea from the floor, Chuck Schumer, saying you need to go out and vote if you don't like what happened here. The Republicans are starting to do that, too. So far, they been running on a positive message, saying look at the economy, look what we've done for you. Now they're out there saying, this is what you will get, this circus you saw for the last three weeks if Democrats are in charge, and you need to be afraid.

GIGOT: Jason, anger at losing, on the court, is usually a bigger motivator than relief at getting Judge Kavanaugh on the court. Is that maybe a better advantage for the Democrats?

JASON RILEY, COLUMNIST & SENIOR FELLOW, MANHATTAN INSTITUTE: I don't think so. I think they overplayed their hand, Paul. They have a relatively unpopular president and they thought they could make up something about his judicial pick and put it past the American people. Republicans are divided on any number of issues, but their very much united on choosing conservative Supreme Court Justices. I think this was not the fight that - - it didn't turn out the way Democrats thought it would turn out. The goal is to motivate your own voters and not the other team's voters.

GIGOT: Kate, a lot of commentary around that this fight united Donald Trump with a lot of Republicans who were not all that happy with Donald Trump. I guess that depends, in the next month, for the election and how Donald Trump behaves. But do you buy that argument that this has been a unifying fight for the conservative movement?

KATE BACHELDER ODELL, EDITORIAL PAGE WRITER: I do. The heroes of the story are Susan Collins and Lindsey Graham, who have not been conservative favorites for eight years. This has been a very unifying experience on the Republican side.

I would add to Jason's point that, if you think about the voters who are very angry that Kavanaugh was confirmed, a lot of the them live in progressive cities that don't elect Republicans anyway. Whereas, I think some of the more moderate Independent voters who looked at this process and thought it was a complete sham and that Kavanaugh was mistreated, a lot more of them might live in North Dakota or Missouri or places where Democrats really need to perform.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, let's talk about moderate voters. Clearly, one of the strategies of the Democrats here was to turn women, especially women in the suburbs, against the Republican Party as anti-women.

GIGOT: Right.

HENNINGER: I'm not so sure that worked, Paul. My reading is that a lot of women out there watching this, mainly mothers and wives, concluded this could happen to my husband or to my son, an accusation without corroboration. I'm not sure the Democrats have really succeeded in pulling, as they thought, all women to their side. Also, the #metoo movement. Clearly, now, the liberals are beginning to say that is owned by progressives. Conservatives cannot be part of the #metoo movement. This is the definition of polarization, Paul, and it looks to me as though the Democrats, in some ways, are marginalizing themselves with these arguments.

GIGOT: The psychology I asked Ilya Shapiro this, Jason. I want to know what you think about the psychology of going through an ordeal like this for somebody like Kavanaugh. Some people may think when he gets on the court he will spend some time trying to win over those critics and does he move to the middle somehow. Or does it basically say -- I mean, what do you think?

RILEY: Well, we have examples of both happening. You have the Clarence Thomas example. He was put through the ringer during his confirmation process. It did not result in him moving to the left. But Republicans also remember Sandra Day O'Connor. They remember Justice Kennedy that is being replaced --

(CROSSTALK)

GIGOT: They were easily confirmed.

RILEY: They were easily confirmed. But the question then became, did they seek validation from the mainstream media? Did they care what CNN or the New York Times wrote about them? And has been the case sometimes with Republican picks for the court, subsequently, over the years, they do start to care and shift leftward. It remains to be seen. Nothing in Judge Kavanaugh's jurisprudence on the federal bench suggests he will be anything other than a solid conservative. I hope he has the fortitude of Clarence Thomas.

GIGOT: Kim, one quick thing. Susan Collins, in her speech, I thought made a very pointed plea to -- it's subtle, but pointed nonetheless, that, you know, I don't think you will overturn Roe v. Wade. And Kavanaugh knows that Collins provided the key vote. Will that matter?

STRASSEL: She was trying to define him and where he could go. The point is he's actually a pretty careful judge anyway, so I wouldn't expect major big changes there.

GIGOT: All right, thank you, Kim

We have to take one more break. When we come back, "Hits & Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for our "Hits & Misses" of the week.

Start us off, Kim.

STRASSEL: Paul, in 2015, Barack Obama massively overstepped his authorities and the law by designating 5000 square miles of a presidential monument in the Atlantic Ocean. It wasn't even connected to U.S. territorial waters. Huge blow to the commercial fishing industry. This is a miss to the federal judge, James Mossberg (ph), who, this week, rubberstamped that novel reinterpretation of the law. If you want to know why the Supreme Court fight matters, this is it. It's judicial activism and that's why we should be happy that Kavanaugh is on the court.

GIGOT: Jason?

RILEY: A hit for the U.S. economy, Paul. A good jobs report got buried under the Supreme Court news this week. But our unemployment is at a 49- year low. Wages are up for blue-collar workers, low-income workers. All those people that said the Obama slow-growth economy was the new norm have been proven wrong. The bottom line is that Republicans have a lot more than Supreme Court picks to run on in November.

GIGOT: Kate?

ODELL: Paul, I'd like to give a hit to Mike Bloomberg who, this week, said he would throw in another $20 million to help Democrats retake the Senate.  I think it's great he is spending money on things that are important to him. But one thing we did not hear this week was about the corrupting influence of billionaires and money in politics. I think it's a pretty nice reminder that campaign-finance reform is not about taking billionaires out of politics. It is about people that we disagree with not being able to spend money on politics. So I expect the Democrats to cash all of his checks.

GIGOT: Touche.

Dan?

HENNINGER: I'm giving my hit to the Noble Peace Prize which was given this week to Congolese doctor, Denis Mukwege, and Yazidi activist, Nadia Murad, for their efforts against horrifying acts of sexual violence. I read Nadia Murad's book, "The Last Girl," about the Islamic State fanatics' mass rape of Yazidi women in Syria. Paul, this is one of the most-deserved Noble Peace Prizes in a long time.

GIGOT: Every so often, they get one right, Dan.

HENNINGER: They did this year.

GIGOT: Remember, if your own hit or miss, be sure to tweet it to us, @JERonFNC.

That's it for this week's show. Thanks to my panel. Thanks to all of you for watching. I'm Paul Gigot. Hope to see you right here next week.

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