Nina Totenberg on Breaking the Anita Hill Allegations
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Nina Totenberg on Breaking the Anita Hill Allegations


So let’s start with Bork. Let’s start with the environment that exists on the court and in the perception of the court by Democrats or liberals and conservatives at the moment that Bork is announced. Why all the hullabaloo about Bork? He’s replacing Powell, right? Right. So at that moment, Lewis Powell was the centrist vote on the court, the swing vote. The court was not nearly as conservative as it is now, and the Reagan administration, and President Reagan in particular, they didn’t play “hide the ball.” They campaigned on the notion that they were going to transform the court and make it much more conservative. So when Bork was nominated, and Bork was sort of the hallmark of conservative—perhaps I should say ultra-conservative—legal thought. When he was nominated, this was going to dramatically change the court. It was going to change it in a far more conservative direction than it was then. And everybody knew that. The nominators knew that, and the confirmers knew that. And since Reagan had very deliberately said he wanted to change the ideology of the court, the Democrats understood that they had to fight back on a somewhat similar ground, and their ground was that he was out of the mainstream. And he was out of the mainstream then; he was completely out of the mainstream then. Life has changed a lot since then, but then he was. So they organized hearings. Joe Biden (D-Del.) organized hearings, in which for the—I wouldn’t say the first time, but they were in power. The Democrats were in power. Nobody thought originally that the Democrats had any chance of defeating Bork. They were going to try, but nobody thought that they really had a shot at it except Ted Kennedy (D-Mass). Let’s start with the Kennedy speech, then, or go to the Ted Kennedy speech. What was the impetus? How did it happen, and what was the effect? Kennedy basically said to his staff, “We’ve got to make this fight.” And he went to the floor with the purpose of sort of calling a halt, making everybody pause, throwing down the gauntlet and saying, “There’s going to be a real fight here.” And he did lead that fight. Behind the scenes, he contacted campaign contributors; he contacted thought leaders. He was working the phones constantly. But that speech was throwing down the gauntlet, saying, “I’m planting my feet right here to really try to stop this nomination.” Accompanying it—of course, at least we read about—a kind of war room that’s created that has commercials by Gregory Peck, funding of the newspaper ads, bringing in Larry Tribe to help game out the cross-examination of the nominee. Tell me a little bit about that and how unique was—it was almost like a campaign event rather than a nomination confirmation. Well, today we see that all of these nominations are campaign events, both pro and anti, but this was the first one that I recall that was so organized. In hindsight, you know, we tend to think of it as more organized than it really was. But, People For the American Way had ads—in hindsight people think, oh, there were ads all over the country. No, they didn’t have much money for those ads where Gregory Peck makes the pitch against the Bork nomination. They were mainly aired in Washington, D.C., to sort of give other senators a notion of what this would look like in any future campaign, re-election campaign. And you have to remember that the Senate then had moderate to liberal Republicans, a significant number of them who in the end voted against Bork. It wasn’t nearly the kind of lockstep, divided kind of Democrat/Republican Senate that it is today. How much impact do you think Tribe and his testimony and his presence actually was? You know, in the last analysis, I think that Bork was the critical factor and that Tribe enabled people who were really thinking about this to frame their thoughts and to talk about it. But in the end, I really think it was Bork who doomed himself. Because? Well, the first thing that Bork did was he wouldn’t do what are called murder boards, moot courts at the White House. He just refused to do them. And so he didn’t have—he was a judge; he was a professor; he didn’t have any political instincts… And he had a beard and—I mean, all the—I’m telling you all the reality, the realpolitik is that he was not charming. And then Kennedy caught him in a dead, flat-out lie. He kept saying that precedent was important, that he would follow precedent. And then Kennedy played a tape from only I think a year earlier, a speech that Bork had given at—I think it was Canisius College, somewhere in upstate New York, I think, and in that speech somebody said to him, “How important is precedent?,” and he said, “Oh, it’s not very important.” So he had not prepared himself well, because he didn’t understand the field he was playing on. And he was every bit as conservative as the liberals painted him to be, and any attempt to sort of hide that came off as fake. And the power of the moment is that it was on television. It was a little bit—if you go back and watch, it’s a little bit like a civics lesson for people who hadn’t really seen a lot of these things. They saw Watergate hearings; they saw the McCarthy hearings. And now suddenly here this is, and it feels—even if it wasn’t supposed to be, but I think it was—like here’s something that’s really epic that’s happening in our democracy. … Well, it was epic. I mean, they were discussing very serious things. And if you go back and actually watch hours of the Bork hearings, the senators were far more prepared than they usually are for these kinds of hearings. … They were engaging with Bork about very complicated legal ideas, but they had thought through how to present them and how to discuss them so that regular people could understand what the conversation was about. And Bork was way more conservative than most people in America at that time. A lot of people we talk to now say that this was a starting pistol for a certain kind of conservative Republicans. They see this as this incredible injustice. They see this as the Democrats, which they’ve already been railing against the idea of the Warren court, the Burger court, “Oh, my God, here we go. We have to defend ourselves against this.” And a lot of Republicans said, “This is something really horrible that’s happened, and it’s never happened before.” Many Republicans view the Bork hearings as the original sin. And Democrats, I don’t think, regret it at all. And the reason is they view it as, “What were we supposed to, just cede the battlefield to you; let you nominate people we completely disagree with and not have a fight about it?” … One of the things that we’re also following that seems to happen or get energy from being “borked” is the Federalist Society getting its oxygen from it in some way. It had already started. It already had [Antonin] Scalia and Bork as its advisers. But to the extent that you can, can you give me the 25-cent version of the creation of the Federalist Society and what it was and what it was then? Then it was really a pretty small, conservative Republican academic group of students. The Federalist Society started out, and still is, for law students, conservative law students. And today, I would imagine that if you have any plans to be active in politics on the Republican side, you join the Federalist Society whether or not you’re conservative. The range of conservatism is far bigger. But then it was true, true believers, and it was a tiny little group. And I would have to say that I never would have foreseen that it would have become as powerful as it has and that a new president of the United States, for example, would essentially outsource his judicial picking to the Federalist Society. But I didn’t foresee that then, and I would suggest to you I doubt that even Antonin Scalia foresaw it then. He wanted to—it was a way for people of like minds to discuss a serious subject, to write about things, to exchange ideas with each other. I think he would have been flabbergasted to see how powerful it is today. Let’s go to the [Clarence]Thomas/[Anita] Hill episode, whatever you want to call it. One of the things that happens to us when we’re making one of these films is you’re looking for who was doing things that were fighting the last war, so fighting the Bork war and the Thomas moment, and some of the Thomas moment will emerge in the Kavanaugh moment. Set the scene for Thomas for me, will you? It’s [Thurgood] Marshall’s seat. It’s an African American—if you can find one—moment. George Bush at Kennebunkport has rolled him out in a kind of strange—if you watch that stock footage—embarrassing-feeling moment. But take me there. What is the circumstance? What are the Republicans trying to do? What is Bush trying to do with him? Well, I think Republicans thought Thurgood Marshall, one of the great legal figures of our times and the first African American to serve on the court, was resigning, and that you could not replace him with somebody who was white. It would make the court back into an all-white institution. You just couldn’t do that. And Clarence Thomas had been one of the obvious potential nominees at least for, I would guess, a couple of years. That’s why they put him—that’s why he was nominated to the D.C.
Circuit, so that he could get some creds if they decided to nominate him. … And they also were unhappy—I think at least the Federalist Society folks were unhappy. I’m not sure that George Bush was unhappy, but the Federalist Society folks were unhappy that David Souter, the previous nominee, had turned out to be relatively moderate, so they wanted to have a sure bet. They wanted somebody African American, and Clarence Thomas was the pretty obvious choice. And he did have murder boards, and their instructions to him were say nothing. And if you go back to those hearings, he says nothing. He even says he had never had a discussion about abortion or about Roe v. Wade when he was in law school, which is palpably ridiculous, number one. And number two, in one of the books written after the Bork hearings, there were fellow conservatives who said that he had discussed Roe with them at length. But that first hearing was—he was like a steady brick wall. And if you look at those hearings, that’s much more like what we see today than what we ever saw prior to that, even in far less contentious times. He just wasn’t going to answer anything, and he didn’t. Tell me about Kennedy and Biden, two different people by the time they get to the Thomas hearings than they were, certainly, in the Bork hearings. Explain why in some way. Well, politically they were in a very difficult position. It’s very difficult to attack an African American judge, and they made it—they really felt they couldn’t—they wanted to befriend him, not attack him. Certainly that was true for Biden. Kennedy may have been more suspicious, but he wasn’t going to go full-bore against him at that point. Let’s go to Anita Hill. So it looks like Thomas is going to walk through it. He’s got the “Pin Point strategy”—that’s all working just fine. Got a nice, good, tangible life story that seems to pull on the heartstrings. He’s not talking about anything controversial. He’s definitely not Bork material. And it looks like it’s all over. And then? Well, all summer long, I had been getting calls about allegations that Thomas had sexually harassed staff members, or a staff member. To be truthful, I never got a name or anything like that. And it sort of made me less than happy to be going to do that kind of a story. I mean, it just seemed a little intrusive. That may seem terribly old-fashioned today, but at the time it didn’t. It made me queasy unless I had something real. … So I’m sitting at the vote in committee on Thomas, and I can see that senators all have some document that’s in a big, brown manila envelope, and they’re all looking at it. They’re taking it out, and they’re looking at it. And I sort of notice that. And then Biden says something about: “There have been personal—people have tried to smear you with personal allegations, smear Justice Thomas with personal allegations. We’re not doing that here.” And I thought, what? We haven’t had anything in these hearings that’s personal. It’s all been about court ideology and stuff like that. And so I just started kicking tires, and it was just one of those moments where stuff started—I managed to get stuff. And pretty soon I had Anita Hill’s name, and I called her up, and I had some cockamamie story initially—I don’t remember what about—why I was calling her. She knew why I was calling her, and she said that she wouldn’t talk to me unless I obtained her affidavit to the Judiciary Committee. So that’s sort of like waving a red flag in front of a bull. And it was hard, but I got it, and I got other confirmation of it. And again, this is—we’re talking about 1991. This is a long time ago, when we didn’t have—not only did we not have cell phones and computers; we didn’t have the current news environment, 24-hour bang, bang, bang. And I simply couldn’t understand why they hadn’t raised this with—since they had this information. And I couldn’t get to Biden. He simply did not return my phone calls. He did not return. I tried everything I knew—staff, Delaware. We’re talking a weekend here when I finally got—she finally did the interview. I think it was a Saturday. And I had managed to talk to other people who confirmed that she had told them this story contemporaneously, but I couldn’t get Biden on the phone. And I waited 24 hours trying to do that, which is unthinkable today. And finally, I did get Sen. [Paul] Simon (D-Ill.),
the late Sen. Simon, to talk to me, and we did the story Sunday morning. I had no idea what would happen. I mean, Anita Hill could have sort of gone underground, gone away, not talked to anybody, and nothing would have happened with this story. NPR wasn’t what NPR is today, either. But it was just a giant explosion. I mean, I walked up to Capitol Hill on Monday morning, and… it was like a mushroom cloud. And, what I hadn’t counted on also is there were a lot of women reporters who covered the Hill, and they were vixens. They were on—they were beating a path on this story. And they carried the ball a lot. Today, I should have followed up probably even more than I did then. I think the vote was scheduled for Tuesday, so we’re talking the very end of the process. My story airs Sunday; the vote was scheduled for Tuesday. And I remember doing a Morning Edition live shot, interview, with the host of Morning Edition, who said, “Is the vote going to take place today?,” or, “Is he going to be confirmed?” And I said, “Well, there will be a vote today if Bob Dole, the Senate Republican leader, thinks he has the votes. And if he doesn’t have the votes, there won’t be a vote today.” And they canceled the vote. He and [Maine] Sen. George Mitchell, who was the Democratic leader, made a deal to have very quick hearings days later with almost no time to prepare, and that led to those—the incredible hearings with Thomas and Hill making alternating appearances. … I will skip ahead for a moment and just say at the [Brett] Kavanaugh hearings, everybody thought after Christine Blasey Ford testified that it was pretty much over for Kavanaugh. And I said: “No, it’s not. I thought that after Anita Hill had testified, and it turned out not to be that way.” And it happened all over again. So everybody thought it was over when she testified. After the “high-tech lynching” statement, or testimony, the Republicans are tough fighters. I think in some ways they’re tougher than Democrats. They just don’t give up, and they prevailed by a hair, but they prevailed. “High-tech lynching”: … his words, or did somebody help him—did somebody buck him up and get him out there and fire him up the way [Don] McGahn fired Kavanaugh up? I suspect that—I’ve read his book; I read [Sen. John] Danforth’s (R-Mo.)
book, and I certainly believe that he was crushed by these allegations. But I think his fury was genuine and that he did view it as a high-tech lynching. So I don’t know if it was his expression or not, but if you ask me to bet, I would bet those were his words. Some of the people we’ve talked to about this say one of the opposite of Profile [in] Courage moments for Joe Biden was that there wasn’t a follow-on. There were a lot of other witnesses who were prepared to come forward. There were a lot of other things. This all resonates with Kavanaugh as well; that this was a moment where they could have launched some level of investigation so she wasn’t standing alone or sitting alone at that moment. What are your observations about that? You know, Joe Biden then was your quintessential class president. He loved to be loved. I think probably over time, he’s a tougher guy than he was then. But he wasn’t a tough guy then. You have to remember how uncomfortable everybody was with this whole subject. I remember looking into a camera, a PBS camera, because we were doing a joint hearing—joint PBS/NPR hearings live—and I remember looking into the camera and talking about “Long Dong Silver” and thinking, oh, my God, my mother’s watching; what is she thinking? Times are different. People were not nearly as vulgar; politics wasn’t nearly as raw. And this was hard for people on both sides. It was just awful. When you talk about tough Republicans, I think of [Wyoming’s Alan] Simpson, I think of [Utah’s Orrin] Hatch, different kinds of tough. But those two— I think of Boyden Gray over at the White House [Counsel’s Office] running the show. And he’s a tough, tough guy. He’s tougher than Joe Biden. OK. So the effect on Thomas—by the way, we’ll spend one second thinking about him, was—at least at the end of Jane Mayer and Jill’s book, they say he makes a kind of promise, revenge for—I’m 43 years old—revenge for the next 43 years about this. Does that comport with your understanding or memory of what it was like for him at the end of the—or what he felt like at the end? Well, he and I had this contretemps if you go back and get the video of that. He and I had this contretemps, and when I walked out of the studio—this is one of those times that I thank God that I was in my 40s and not in my 20s, because there I was on TV; I’m being attacked as the messenger, and I looked at the clock, and I waited out my time, and I took the last 45 seconds and had the last word. And when I walked out of the studio, the producer said to me, “Do you want to not see Simpson?” I said, “Yeah, get me out of here.” So I went out to the car, and as I was getting in the car, Alan Simpson, who I hasten to add has become a good friend over time, but Alan Simpson, who’s a big, towering guy, held the door open and threw something in my face. He said I was an unethical journalist and he wouldn’t let me go. He wouldn’t let the car go. And finally, I got out of the car, and I stood up, and I think Al is about 6’7”. And I can’t repeat what I said to him. I said he was a certain kind of bully, and I used a very improper word to describe what kind of bully he was. And I got in the car, and I said to the driver—and I shut the door, and I said to the driver, “Let’s go.” And we drove off, and he pulled around the corner, and he looked at me—this will never make air. He looked at me, and he said, “Lady, you need a gun.” Then when I got home, my husband, who had been a United States senator and had been a Republican and a Democrat, this is one of those football things where—nights where it was delayed, so he went to bed. I’m on Nightline. Whatever. Who cares? And as the door opens, I come in, and he comes downstairs looking all kind of wild, wild hair and had bottoms in his PJs, and he takes one look at me, and he says, “What’s wrong?” And I said, “Alan Simpson was mean to me, and I said bad words to him,” proving what a tough, tough person I was, right? But I think it was sort of interesting, because Republicans were very determined to confirm Thomas, but they did come to understand that there was a bit of a price for this fight, just the way the Democrats came to understand there was a bit of a price for the Bork fight. They were different prices. Can you enumerate the prices in a sentence or two? Well, the price was that suddenly women were quite energized. The subject of sexual harassment was front and center. And it’s not like this hadn’t been going on for a long time, but even women didn’t discuss it with each other. They thought they were the only ones. Now they were discussing it, the number of EEOC complaints skyrocketed, and women started running for office and for the United States Senate. And they ultimately won. Four new ones. Dianne Feinstein (D-Calif.),
Patty Murray (D-Wash.). I mean, people who have become real presences, leaders in the Senate. That was the year that they broke away from some local stuff they were doing and ran for big-time office and won. And even some people who voted for Thomas regretted it privately. And others regretted it politically. And it made the Senate look like a white men’s club, and Republicans were a bit on the defensive for that. Again, this won’t make air, but I was on some panel with Phil Donohue and other people and Bernie—used to be on CNN. African American, Bernie— Sanders. Bernie Sanders?
Bernard Shaw. Bernie Shaw. Sorry, not Sanders. That’s a different Bernie Sanders. That’s a different one. That’s a different Bernie. So I’m on some panel in New Orleans, and it’s some huge thing, and somebody said, “Do you like your job?” And I said: “Well, I love my job, but I’m like anybody else. I like to be liked, and sometimes when you do things, you can’t be liked.” And a young woman came up to me afterward and said, “Miss Totenberg, I just want you to know I like you, and I’m Alan Simpson’s daughter.” Well, his daughters, his wife, said to him: “You can’t do this this way. It’s not good for you.” And it sort of made him pause. I can’t remember what the intervening event was, but I had some indication that he felt badly about our encounter later. So I invited him to the Radio and TV Correspondents’ Dinner, and he accepted, leaked it, and we were the stars of the dinner. He brought me a corsage; we had a great time. We have been good friends ever since. I go to events where he invites me. I invite him to events if I know he’s here. I really like [and] respect the man. I just think the Thomas hearings brought out the worst in everybody. Let’s catch up with the Federalist Society and the interregnum between Thomas and [Merrick] Garland. What’s happening with that group? Well, they become more and more influential, more and more powerful, especially in Republican politics. And as the base of the Republican Party has become so conservative, particularly about social issues, and that fits in with the Federalist Society view that the court should stay out of those issues. It’s not their business, and these are not rights that the Constitution enumerates and that should be enforced by the courts. So those ideas fit with people who, for much more personal reasons, are against abortion or gay marriage or think that their religious views are being trampled upon by legalizing abortion or gay marriage, those kinds of things. So they fit together. And when Donald Trump was elected and really didn’t know anything about picking—Donald Trump was pro-choice for a long time. So now he’s running for president, … and the Federalist Society and the Heritage Society give him this idea: “In order to convince people that you really are a social conservative, because you’ve made all these other comments—before, you were pro-choice—why don’t you make out a list that you say you’ll choose from to persuade people that you’re on the up-and-up about this stuff?” So he has the first list, and it’s such a huge success among conservatives and social conservatives and political conservatives and legal conservatives and sort of base voters that he says to them, “Let’s do it again,” and he has a second list. And then he picks from that list. But in order to do that, he basically outsourced the choice to the Federalist Society working with Don McGahn, his counsel. But he picked the person he liked best or that they recommended most strongly. I can’t pretend to know exactly how they got down to the final list and how they got rid of this one or that one, but it’s not really terribly important. What is important is that he outsourced the choice. And then when he got a second nomination, I think Kavanaugh probably would not have been his first choice. Initially, all indications were that this is a Bushie guy. “This is a Bush guy. This is an establishment guy. I’m not an establishment guy. I want somebody much more—not a Washingtonian type.” Not a swamp dweller. Not a swamp dweller. But Kavanaugh had gotten on that second list. McGahn made sure he got on that second list. And there was a big push for him, because everybody understood that Brett Kavanaugh is incredibly smart, able, knowledgeable about government, has been in the executive branch, and the Federalist Society are basically executivists. They may have hated some of the things that Obama did, but Republican presidents would be happy to do those things squared. And they really made a big push for Kavanaugh, and they got him. Let’s go back for just one second, and then we’re going to go back to this moment. Scalia dies mysteriously and surprisingly, and in no time at all, Mitch McConnell (R-Ky.) from vacation announces that the president need not bring a nominee forward in this last 10 months of his presidency. Because the nominee won’t be considered. He said: “Doesn’t matter if you name anybody or not. We’re not considering anybody because it’s too close to the election.” How shocking was that to you? It was amazing to me. I mean, they can say, “Oh, there’s precedent.” This was unprecedented. For almost a year, initially they wouldn’t even meet with him. Eventually, a few people did meet with him, but they wouldn’t give him a hearing. They wouldn’t consider his nomination in any way, shape or form. It was a dead letter. And over at the Obama White House, I remember at one point one of my White House sources saying to me, “Is there something we could do that we haven’t done?” And I said: “Well, you know, I can’t think of anything. If they won’t do it—the party in power, the party that controls the Senate controls what happens on the floor and in the committees.” At some point, I think [Chuck] Grassley (R-Iowa) was edging toward saying, “Well, maybe we ought to give him a hearing.” McConnell shut him down. …. Senator Moran from Kansas said he thought maybe there should be a hearing. And McConnell just said to him, “You keep talking like that, and I’m running a primary opponent against you,” and Moran backed off. McConnell was ruthless and brilliant. And this was not the first thing he did in the judiciary in the Obama administration. He had slow-walked, even as minority leader, slow-walked a lot of judicial nominations. There was a backlog for all of those things. He was making a pretty big bet, given that Hillary Clinton was likely to be the winner of the presidential election. Before we move forward to that, tell me a little bit about how he was slow-walking those nominations, how he was clogging up the judicial nominations for President Obama. You know, Mitch McConnell is a brilliant tactician and strategist, and he has always cared deeply about judgeships. He’s the person who first, for example, got the NRA to take positions on lower-court judgeships. The NRA had never taken positions on them, and he used that as a wedge issue, from then on. He was always thinking, how could he populate the federal judiciary with his brand of conservative judge and justice? And even when Obama was president, he slow-walked those judgeships, even the noncontroversial ones, especially the noncontroversial ones. The pipeline just got jammed up like it had glue in it. And Obama bears some responsibility for this, because he took so long to name people. So by the time he actually had his machine going, oiled, McConnell already had the pipeline gummed up, and it took often two, three years even for noncontroversial nominees to be confirmed. So on election night, McConnell [is] watching the election returns, happy that he saved the Senate for the Republicans, but also super-happy that he got the bonus gift of a Supreme Court nominee and the change of—and the opportunity to change the kind of judges at the district and appeals court level that could be rolled out as fast as possible. … And McConnell says this is his greatest accomplishment, that he has started—he’s not only won confirmation for two Supreme Court justices; he has managed to stack the—seriously stacking the lower courts. And they kept open a lot of these court of appeals seats for years on the theory that if they could win in 2016—I doubt they thought it was going to be with Donald Trump, but if they could win in 2016, they could fill those seats, many of them seats previously held by more moderate judges, both Democratic and Republican, and fill those seats with much more conservative judges. When they nominate Kavanaugh, help us understand how the process by last September, August, July, whatever it was, is different than or has been changed by Bork, Thomas, to this moment with Kavanaugh? Well, so Anthony Kennedy retires. Anthony Kennedy is the swing vote. The court is now more than—I’ve covered the court for—let’s put it this way. I have covered the court longer than any current sitting justice has been on the court, and I have never seen the court as starkly divided on most of the big controversial issues of our times—not just the social issues, [but] also the role of the courts, how far the president can go in exerting his executive powers, what congressional powers are, what the powers at the agencies are. All of those things, the very structure of our government, I have never seen the court as divided as it is now between liberals and conservatives. And the liberals are liberal—don’t get me wrong—but they are not the same brand of liberal that the conservatives are generally. They are much more sort of, I would call it, standard liberal ideology. The conservative ideology today is quite different than the conservative ideology 25 or 30 years ago. So those are the stakes. Those are the stakes when— Those are the stakes. So Kennedy retires; he is the liberals’ last hope of prevailing on most issues where there is a closely divided court. He retires, and Kavanaugh, who has an ironclad conservative record, is nominated to the court. And there’s no doubt that he’s fully qualified and a really distinguished thinker and writer on the lower court. Any hint from you, any—do you know why Kennedy resigned? Did somebody talk to him? Did he get a message when the [Neil] Gorsuch thing happened? Well, I know the Federalist Society people. They tried everything. They tried. There were rumors that he was not well. That really was not true, and that didn’t work the year before. Every time we got to June, all of us who cover the court were sitting there going, “Huh, huh, huh.” And on the last day of the court, he didn’t retire in the morning. There was no announcement, and we all thought we were home free in terms of a vacancy. And then in the afternoon … again. Kennedy actually apologized to those of us who cover the court for having it be so late in the day. But he wanted to tell the White House, and they didn’t know. So they announced their last opinions, and he called over to the White House, or somebody—I think somebody at the court, I think the chief justice’s top person, called over to the White House and said, “Justice Kennedy would like to come over.” And they jiggered a time at 1 or 2 o’clock. He went over; he told them he was retiring. Who would he see, McGahn or Trump himself? He saw Trump. And there were even rumors that—there were rumors that ranged from Kennedy trying—Kavanaugh had clerked for Kennedy, and so had Gorsuch, for that matter. … And Kennedy said there was no discussion about who his replacement would be. All of that was sort of Washington in its most fevered pitch. And he believed—and believes—that major precedents once set, major rights once established, will not be eroded. So I think he thinks that at least his gay marriage opinion is not going to be reversed, and I actually think that’s likely. I think it’s too hard to unwind that. But the next chapter of cases about … what kinds of public accommodations there have to be for people who are openly gay and whether you have to serve them and whether you have to provide—whether a florist has to provide flowers for a gay wedding or a cake for a gay wedding, all of that is unresolved, and discrimination in employment against gay people, maybe even discrimination in housing, none of that is resolved. And that will come now. And one of the last opinions that advanced that last week of the court was partisan gerrymandering. And basically the court dodged the question. It simply dodged it. It left it for another day. And that question now, I think, the people who had hoped that there would be some limits on partisan gerrymandering, I think that is probably not going to happen. If Kennedy had remained there, it might have in a very limited way. Kennedy had been the fifth vote in Justice Ginsburg’s opinion upholding the constitutionality of independent redistricting commissions, which is what voters have voted for in many states now in order to get around the problem of partisan gerrymandering. And I think that precedent might be on shakier ground because he was the fifth vote. So what do the Democrats when Kavanaugh—Trump is elected, and they know the Federalist Society is providing lists; they know the conservatives are happy; they know the base is happy; Kavanaugh gets picked. Trump’s a little wobbly about Kavanaugh. It’s not really his guy. As you say, he’s a Bushie. That wobbliness will be tested during the hearings and the Dr. Blasey Ford moments. The Democrats know they can’t—I guess they know they can’t stop— They don’t have the votes. They simply don’t have the votes. They’re not a majority in the Senate. If the Senate were controlled by the Democrats, I think there would have been a good shot that Kavanaugh would have been voted down. But they didn’t have a majority. And— So what can they do, anything? I mean, I watched the tape of the first day. Grassley walks him in. Photographers spread. In it goes, tap, tap, tap, And within 13 words, the Democrats are on him. The fight has begun. The microcosm of our society is playing out on television right before us. But is that all they can do? Well, you know, one of the things that has eroded—I think the last committee chairman, Judiciary Committee chairman, who totally honored all of the traditions of the way judgeships are handled was Pat Leahy (D-Vt.), to the great consternation of the Obama White House and some of his fellow senators who said: “You know, basically the Republicans screwed us the last time they had the majority. They didn’t honor some of these rules. You shouldn’t honor some of these rules.” But he did. Grassley honored some of them, but the Democrats were—every time I called a Democratic aide, for example, to say, “What have you gotten in terms of papers turned over from the Kavanaugh era?,” all of that stuff, talk about slow-walking. There were vast quantities, tens of thousands of documents that they simply didn’t get access to. So that hearing that day, their actions were preprogrammed, preplanned? Yes. They were just shouting and—? And they were pretty mad, and the Republicans were playing hard ball. They were giving them as little information as they could. Now, they can give you documents, data, the number of pages that—but … if they give you 50,000 pages and they don’t give you 1,000 pages that are embarrassing or say something, doesn’t matter. And they weren’t getting those. In the second round of hearings, some of that stuff finally got pried loose, but it was sort of buried. I mean, the fact is he—somebody told us that if you’re in the chair in front of the committee, you’re 90 percent of the way there anyway most of the time? I don’t know. Anything can happen in a confirmation hearing, as proved by the Bork hearings. I think the odds of him being confirmed were probably 90-1, and it didn’t turn out that way. So bad stuff can happen in hearings. There’s every reason to worry about them. If you get the nomination, you’re probably 70 percent of the way there. But it can blow up in your face. Well, they had 11 lawyers at the EEOB [Eisenhower Executive Office Building] prepping him. Talk about murder boards, talk about practicing, talk about lessons learned from Bork through Thomas through everything. And yet, and so he almost is cruising until the Blasey Ford letter, the letter with the allegations, finds its way into the public realm. When do you hear about it? When are you plugged in on that? I mean, you agree that he was almost there when— He was almost there. But, you know, I heard about it before I actually knew any details. And there were a lot of Democratic strategists who were not thrilled about this because it dated back to high school, right? Somebody must have been saying in those councils of power, and maybe saying to you: “Don’t do this. We’ve seen this movie before. We know what happens to the woman in this circumstance before, and we know that the guy gets away with it,” right? There were people who—before her letter surfaced, who knew about this, and I think thought it was better– let sleeping dogs lie. This is going to be very tough; she doesn’t have enough—any kind of real corroborative evidence. And it’s hard. You know, you don’t want to—but these things have a momentum of their own. And once it’s a tiny little—it’s like a leak in your roof. It starts really small, and you think you can just patch the ceiling, and it doesn’t work that way. And pretty soon it’s gushing water into a pail, and that’s what happened. And then it happens all very quickly as well. And therefore you had these hearings where after she appears, everybody thinks—everybody, including a lot of Republicans, thought, oh, my God, this is done; we’re going to have to—this nomination is cooked. But what happened in Clarence Thomas happens again, and the Republicans come back, and he comes back, and he’s enraged and outraged at being treated this way. And Lindsey Graham (R-S.C.) makes his thing that Lindsey Graham does, and he is—then it’s down to Susan Collins (R-Maine). So then Dr. Ford speaks and once again, the optics—before she speaks, the optics are just terrible, once again. Yes, there are women and minorities on the Democratic side, but for the Republicans, it’s all white guys all the time. Right. Up until this moment as we sit here, in January of 2019, that committee has remained on the Republican side all male, all white. Now, I hear they’re adding two women because they understood then that the optics were so awful. … [Blasey Ford] comes in and talks, and everybody, including—I hear at the Oval Office, there’s not a dry eye. They’re sitting there like, my God, they believe her. And I think Trump is thinking, the guy on Fox News in that interview, facing her, up against her, following her? He’s trying to reach McGahn; McGahn won’t answer the call from Trump. McGahn is in a room over at the Senate Office Building and prepping him, I think stiffening him up and saying, “You’ve got an audience of one out there.” Well, yeah. See, Trump has a really almost a genetic instinct for how things will be perceived, and he sees this relatively weak-looking, proper guy on Fox News, and everybody’s believing Christine Blasey Ford, and he basically says, “You know, if he can’t do better than that, I’m going to pick somebody—my kind of guy.” … So McConnell certainly is not ready to throw in the towel. And McGahn, who has campaigned for Kavanaugh, is definitely not willing to throw in the towel. And by the time Kavanaugh appears, he understands he has an audience of one, and that is Trump. It’s not even whether he can persuade the country, although God knows I’m sure he wanted to persuade the country. He understands that he has to persuade Trump. And, you know, at the very beginning of his testimony he says, “I wrote this.” And I remember, I’m sitting in the booth overlooking the hearing room, we’re carrying the hearings live, and I’m thinking to myself, hmm, maybe he didn’t write that, because when people start off by telling you, “I wrote this,” why would you think he didn’t write most of it? And the part that I hope he didn’t write is the most political part. The denial is one thing, but then he goes on to say, “And this is a vicious Democratic plot, the revenge of the Clintons against me because I worked for Ken Starr.” And even he later said something sort of fey, like, “I perhaps went too far.” And I’ve always wondered, did you write that, or did somebody else write it for you and you said it? Doesn’t really matter. It was really injudicious. It was not the way a judge is supposed to think or talk. And that is what really stuck in the craw of most of the judges I know who watched that performance. Then the back-and-forth with Sen. [Amy] Klobuchar (D-Minn.), you know, back-and-forth about, “Do you black out?” “What do you mean?” Well, the moment with Klobuchar was—what’s the word I’m looking for? The moment with Klobuchar was so dramatic and telling, because you can forget an event without having blacked out. But she’s trying to find out from him whether he could—in a way, she is saying: “Is there an out here? Is it possible that you just had drunk too much and you don’t remember?” And he’s saying, “I never blacked out.” But he also says to her, “Did you ever drink? Did you ever black out?,” and the look on her face, which is sort of like a mother saying: “OK, kid. You’re in real trouble now.
You answer my question.” And I think at some moment at the very end of it, he realized that he’d dug himself quite a hole. And if you play that over and over again, it’s a great moment for her and a terrible one for him. Yeah. So at the end of that day, what is the status? You’re perhaps the most experienced reporter about the court in the country. What do you think? Where do you think it stands, and what do you think the stakes are at that moment? Well, the stakes are whether they have to go back to the drawing board and start all over again or whether they can get him through. My guess is that McGahn and McConnell together understood they had to get him through. But it was tough because the women on the Republican side were not thrilled. And Lisa Murkowski (R-Alaska) ultimately said, “I’m not voting for him.” Heidi Heitkamp (D-N.D.), who had voted for Gorsuch, said: “It’s just a matter of conscience. I can’t do it. I know too many women with stories like this. I’ve heard these stories too many times. I’m not going to vote for him.” And so it’s down to Susan Collins. And Susan Collins may have once voted against a judicial nominee—I think maybe some district court nominee, I’m not sure—but she doesn’t vote against judicial nominees, not Democrats, not Republicans. She’s not a lawyer; this is not her shtick. She is a very diligent senator, and she would have happily voted for Garland. And she gives this speech on the floor laying out what I thought was the best case for Kavanaugh. You can disagree with that case, but I thought it was the best case you can make for confirmation. I’m not sure what McConnell said to her at lunch. They had lunch I think the day or the day before, and I’m sure she had help writing that speech. But it’s not her way to buck him on a judicial nominee. She’ll vote for Obamacare. That affects her constituents big time. But it did not surprise me that she voted for Kavanaugh. And when they got her vote, he was to be confirmed. I’m not sure she’s going to—this will not make it to air because of the timing, I think, but she’s still not 100 percent sure she’s going to run for re-election, and if she doesn’t, I think it will be because of this. Why? I think it would be a much harder—it’s a much harder fight for her. There are lots of people who love Susan Collins in Maine. She’s a very good senator. But this time, they will not forget this vote. And if they can get a good candidate, it’s possible she will have a hard, hard fight. The idea that—and now to the question of the impact on the court, the idea that he was so political and that the court itself, through all these processes as we’ve gone over the last 30, 40 years, but that it’s now here’s the first justice who is there by virtue of a really bald political declaration from him that reveals in so many ways who he is, and maybe a questionable temperament: What do you say about that? Well, all I can say is I actually know Brett Kavanaugh, and the Brett Kavanaugh at that hearing, that second hearing, is not the Brett Kavanaugh I know. Now, that doesn’t mean I actually know him. I don’t know. That person is not the person I have known for probably 15 or 20 years. One hopes that he is not that partisan. And the chief justice of the United States and other members of the court, Democratic and Republican nominees both, have gone out of their way to try to portray the court as perhaps divided along ideological lines but not partisan lines, and they’re trying to keep as low a profile as they can this term and not accept any interesting cases, if at all possible. But the Trump administration is making that very difficult. It’s leapfrogged cases over the appeals courts and said to the Supreme Court: “Please take this case now. Forget the usual way you do it.” And so they do that on asylum; they do that on abortion cases; they do that on other kinds of cases. Soon executive-power cases? Executive-power cases—well, the asylum case is an executive-power case—and other kinds of cases. And it’s making it very difficult. So far, the court has declined to take up those kinds of cases that are being thrust upon it earlier than they normally would be. That doesn’t mean they won’t get there, but they are not, as of the moment we do this interview, going to get there. But who knows? You know, these are big, huge executive-power issues, and this president, more than any president in our lifetimes, is breaking the established rules and saying, “I have more power than previous presidents thought they had.” And certainly Brett Kavanaugh is a person, having lived through 9/11, who strongly believes in executive power and who in one discussion long ago suggested that perhaps the Nixon tapes case, even, was wrongly decided by the Supreme Court. Let’s see what we’ve missed. Just a couple things. Just to go back to Thomas/Hill, the questioning of Anita Hill by the all male group of senators where they asked, “Were you a woman scorned, and why did you stay in the job?,” can you just describe sort of how she was questioned and why there was the reaction to that? Well, the Republican questioning of Anita Hill was—treated her as if she were either malicious or crazy. “So were you a woman scorned?” At one point, they read some district court opinion from somewhere in Utah in which a woman had ostensibly had erotomania or something like that. So they accused her of erotomania. They put on a witness who said that she had been overly interested in him, that she was an aggressive female, something of that sort. It was sort of—you know, when you put it into today’s terms, it’s almost like a crazy movie. But it happened. And people would say periodically, “Isn’t there some way to reconcile what both of them are saying?” And the answer to that is no. One of them was lying. … Just one point more. So Mitch McConnell, when Kavanaugh’s nominated and Kavanaugh comes over to meet McConnell, he’s held open the Scalia seat to maintain that under Republican—how important for him would the Kavanaugh nomination be to the project that he’s been undertaking for so long? … So this is just before the election. It’s the Kennedy seat. If they don’t confirm Kavanaugh, it is the fight of the century in Senate contests all over the country. And it might help them, but it might hurt them, too. I don’t think anybody was 100 percent sure how this was going to turn out. If they lost this battle, if they couldn’t confirm him, they were in for the fight of their lives over the Senate, who would control the Senate. And then if the Democrats actually could control the Senate, it would mean that they would have to accommodate the Democrats because of what they’d done to Garland. Democrats were not going to say: “Oh, heigh-ho, we’re just going to confirm a real conservative who’s very qualified just because you want it. We’re going to slow-walk that nomination. We might slow-walk it into the next—to the year before the election, and we’ll make it a big fight the way you tried to do to us.” You know, those words of McConnell, “You will rue the day,” back in the Bork fight, those equally applied to him if he lost the Kavanaugh fight because the Democrats, if they controlled the Senate after this election, he would rue the day of what he’d done in Garland. Wonderful. Anything, Jim? Just two things. But he did win. Kavanaugh did win. He did win. Was this basically a dream come true? Was this a thing that he’d been trying to basically work on for a decade? Oh, yeah. I mean, Kavanaugh is the perfect McConnell nominee. He’s very conservative on economic issues, on executive power issues, on free speech in the sense that he doesn’t believe in regulation of campaign finance. He’s the perfect blending of establishment and sort of red state-based politics in terms of his ideological views. And he even, it appears from at least one opinion he wrote, a dissenting opinion, he really doesn’t think that gun control is constitutional, for all practical purposes. So he’s a perfect nominee. And he’s incredibly smart and able, and nice. He’s a nice man, normally. He’s a very nice man. People will like him on the court. He will be influential ultimately. And it’s taking the Kennedy seat, it’s moving the court from basically conservative with some centrist leanings to a really very, very conservative court. That’s the life dream of McConnell. And that’s McConnell’s dream from the time he was first in the Senate. And maybe his dream when he went into politics. … Just one last question, which is a question for the end, which is following all of this, as you have from Bork up until now, you talk about how the court has become more conservative than it was. But what about the legitimacy of the court, the politicization of the court— Is that diminished? Where are we at the end of this story that we followed through all these confirmations now? Well, you know, the court still has an approval rate that is far, far, far higher than the presidency, the Congress, what we do, journalism. You know, it’s still in most polls that I’ve seen, I don’t know what the view is at this nanosecond of a moment, but it’s still—most people, or at least the majority of Americans, still trust the court more than any other institution of government. But it’s way down from what it once was. It dropped significantly after Bush v. Gore, but then 9/11 happened, and that just became almost like a footnote in terms of the Supreme Court. Approval of the court went back up. But, you know, this continued sort of fight has hurt the court’s legitimacy, which is why all of the justices really try to portray a picture of the court that is a little more amicable—let’s put it that way—and more nonpartisan than people think. And now just think about your friends, the ones who are outraged by the influence of corporate money, etc., in government. They’re furious at the court for striking down campaign finance regulations. They think that’s immoral, terrible for the government, etc. The ones who are opposed to abortion think the court is immoral, that it’s done something it absolutely shouldn’t do. And we could go ticking down the list of things. But these are—[Alexis] de Tocqueville once said that every major controversy in American life will eventually make its way to the Supreme Court. You cannot dodge these issues. People on the court have to decide these cases. They’re the ultimate arbiters. They may want to step back a lot and leave it to Congress more, but if you leave it to Congress more, you may be saying, on the other hand, for example, “Congress, you should legislate campaign finance regulations; you should legislate election rules,” and other people will say, “No, you shouldn’t do that; that’s a violation of our rights.” You can’t win on this. And these issues are so important, and they end up inevitably at the Supreme Court. And there’s no—in the last analysis, the court goes slowly, but it can’t dodge the bullets. There’s no way.

12 Comments

  • ron sharon

    Ambulance chaser hooky reporting totenberg. Shame on you for bringing that Anita Hill contrived story and shamming a good man. Much like the christine blasey ford circus that failed. It's people like you that could give a rats ass about trying to destroy great men like Thomas and Kavanaugh just to further your career. You gloat and laugh about it on the PBS special. Let me guess.. your a democrat? I used to be a Dem til I smartened up and left that disgraceful party!

  • Ranxerox1911A1

    Amazing. Nina, you’ve just verified and corroborated everything Mark Levin says in his new book, “Unfreedom of the Press.” You, and all the Democrat shills in this mockumentary have absolutely PROVEN that media and the DNC share exactly the same agenda and ideals: the utter corruption and destruction of the ENTIRE Bill of Rights, and the end of the entirety of our Constitution that undergirds our rights as Citizens, forcing all of us outside of California and New York and Illinois to bow down to the tyranny of mobocracy. You, and your government-directed propaganda arm of the DNC, with your ignorant, know-nothing anti-freedom shills like Annalisa Quinn seek NOTHING but the single-party fascist rule of America, with known traitors and felons in the seats of power.

  • dave ortwine

    Clarence Thomas never sexually harassed or assaulted Anita. She knows she is lying. Just typical liberal/left/democrats ploys to smear republicans they don’t like. It’s sad. They have no conscious.

  • Dennis Nelson

    Yes, she is right, Corporate Democrats did start how thing are today. Even then Hollywood fund's like the Russians try to undermine our democracy. Interference from Soros David Brock like China & N. Korea overthrow the people

  • Ronald Backer

    The problem with this doc is it plays both siderism. The Federalist Society is a small organization in each law school representing 1-3% of students. But it represents a near 100% of Republican judges. Republicans only pick from the most conservative of lawyers. On the flip side Democrats pick center right corporate lawyers. The 10% of truly liberal lawyers are not even in consideration. Where is the ACLU lawyer, or the Green Peace lawyer or The SPLC lawyer up for judgeship? Democrats did not start this fight, they fought back when it became clear that the Republicans had abandoned the idea of picking moderate judges, and would only pick from this tiny 1% of lawyers who are in the Federalist Society. The Dems pick from the other 99%. Which of these two process is radical?

    Second, this docs fails to mention that the Republicans have had a majority of Judges since Reagan. But where the bar was set for considering conservative justice kept changing. Sandra Day O'Connor was a very conservative judge by any historical standard. The fact that she became a swing vote does not change that. It just shows how right the court moved with Republicans only picking people who were in their society of radicals. After she retired, Kennedy was the swing vote. Kennedy is on the record saying he uses the Federalist Society to find his clerks. Kennedy is more conservative than O'Connor, but than is the swing vote.

    This idea that Democrats changed the game is nonsense. Democrats reacted to Republicans changing of the game in a radical way.

  • Chandrasekhar Ghanta

    What is the "mainstream" anymore if it is not based on originalism? Nina is doing revisionist history here. The reason the supreme court became so political is the democrat tactic of using the court to achieve what they could not legislatively and democratically, circumventing the will of the people. The republicans realized this and wised up. Roe Wade was not adjudicated by law rather written into law by judicial fiat

  • Chandrasekhar Ghanta

    Bottom line elections have consequences and the president gets to choose qualified judges that fit His and His party's ideology. Liberals from their way of thinking and conservatives likewise

  • Commercial Communication

    Whenever I see Totenberg, I think of an interview she did on NPR, right before the 2016 Democratic convention. She was campaigning hard against Bernie Sanders, and in her discussion with an NPR host, after giving a long, tedious, error-laden and heavy-handed disparaging of Senator Sanders, she squealed, "No one in congress respects Bernie Sanders!" and then cackled with glee. Bizarre. That's when it was clear that the Emperor has no clothes. That comment was false, amateurish, and manipulative and revealed her motivations…it was a desperate attempt to damage Senator Sanders on the eve of the primary. Totenberg I guess is probably near 80 years old, yet does not seem to realize how transparent her attempts at manipulation are.

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