Supreme Revenge: Linda Greenhouse Interview
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Supreme Revenge: Linda Greenhouse Interview


Let’s start with where you are and where the judicial world is when the word comes that Robert Bork may be the nominee of Ronald Reagan in his nearly last year of his presidency. Well, to back up a bit, so Justice Powell, the swing justice of his time, announced his retirement. That took people by surprise. That had not been anticipated. The Supreme Court term had just ended. It was obvious the seat where Lewis Powell sat was crucial for the future of abortion rights, for the future of affirmative action. He had been the key justice in the[Regents of the University of California v.] Bakkecase that had come down just a few years earlier. So the Democrats went—Joe Biden (D-Del.), head of the Judiciary Committee, went to the White House, as I understand it, and said: “We’ve seen your list of potential nominees. That’s great. Anybody but Bork.” The next day, the president nominated Bork. They knew the president was going to nominate Bork. The previous year, there had been a kind of silly, confusing fight over the elevation of William Rehnquist from associate justice to chief justice in 1986. And I remember, I didn’t understand why the liberal groups were making such a fuss about Rehnquist, because if by some chance he didn’t get confirmed, he’d still be on the court. So it wasn’t “Rehnquist, goodbye”; it was Rehnquist, chief justice or associate justice. I remember saying to people: “Why are you doing this? Why are you investing so much in trying to block this promotion?” And I was told at that time: “It’s a dress rehearsal. It’s a dress rehearsal for Bork. He’s going to be next.” So people knew that. People expected that. And that’s why that very afternoon, Sen. Ted Kennedy (D-Mass.) came out with that famous, now notorious statement, “in Robert Bork’s America.” He didn’t write that off the top of his head, if in fact he personally wrote it at all; I don’t know. But it was because there was no surprise that it was Bork. Robert Bork, Jr., we interviewed him, and he was there at the White House when Reagan nominated his father. He goes down to the White House Counsel’s Office; they’re opening champagne; they’re all drinking. And they see Ted Kennedy on television delivering this speech about Robert Bork’s America. Where were you when that—did you see that speech actually on television or in person or just read about it, or what do you remember about it? I was in the Senate press gallery, and I didn’t see him deliver it, but it was handed out as a press release in full text. And I remember very well reading it thinking, whoa, this sounds a little over the top.” I knew Robert Bork. He’d been a professor of mine, and I liked the guy. And the depiction in that Kennedy speech of somebody that I knew, not intimately but in more than a passing way, it didn’t quite connect with me. But certainly my journalistic instinct was: “OK, the fight’s on. The fat’s in the fire. This is really going to be something.” What was at stake for Kennedy and the other Democrats with the nomination and potential elevation of Robert Bork? Well, so the Democrats had just taken the Senate in the ’86 midterms. We’re in the last year of the Reagan administration. The Reagan administration, of course, had cast a very long shadow over the country for the previous seven years, but yet had not accomplished a couple of major parts of its agenda, which I would put under the general heading of “Take back the courts, take back the Constitution.” We had Attorney General Ed Meese, who had deep connections to the Heritage Society, and so on. And they had a very particular vision. They were propounding this notion of originalism, which is not actually an originalist idea for interpreting the Constitution, but was kind of cobbled up in that era. So the stakes were really who’s going to control the court going forward, and is the Reagan administration, having failed in key parts of its legislative agenda, going to be able to hijack the court in its waning months to accomplish through the court what it couldn’t accomplish through the Congress? Wonderful. So the Democrats have had a couple of years, as you say, or certainly a year, to get ready. They’ve built a war chest; they’ve created a war room, which seems almost unique from what we can tell. They’ve got Gregory Peck, who’s going to do some TV ads; they’ve got newspapers. And they have the formidable intellect in murder boards and other things of Professor Laurence Tribe from Harvard, who’s been advising, knows Kennedy already and seems to be an integral part of the brain trust. Is that a fair reading of what was happening on the Democratic side? Yes, I think that’s a very fair reading. They were geared up to a fair-thee-well in ways that I think were not in real time totally discernible. It looked like a series of kind of discrete moves. Oh, they’ve got TV ads. Oh, we know we’ve got Larry Tribe spending the summer advising Joe Biden. We’ve got this; we’ve got that. And it’s only when the story then unfolds through good reporting later that we understand that it was a guiding political intelligence that the whole thing was stitched together. It was very impressive. And on the Republican side, it’s almost like they were—we’ve talked to Alan Simpson (R-Wyo.), we’ve talked to others recently, and they freely admit that they were completely flat-footed. They knew Bork might be a little controversial, and they kind of worked with him, but he wasn’t cooperating with the murder board. Bork was going to be Bork. His son tells us, “You’re not going to tell my dad what to say or what not to say,” and we all knew that about him. And Simpson will freely admit they were caught flat-footed by the formidable Democrat presentation of what was happening. Take me to the Republican side right before the hearings started. What had they done? What are they worried about? What are they prepared for? I think the Republicans had a great sense of entitlement, entitlement to the seat. They kind of bought into their own narrative that this was the most qualified, most brilliant, most profound person in America to get this crucial nomination. And, you know, in retrospect, that fell short of reality. In fact, what Robert Bork was, was a quite distinguished law and economics guy. He was extremely influential in antitrust, in regulatory policy. He was no kind of constitutional scholar. He was a polemicist, and he had sound bites about the Constitution, which proved not to be able to sustain a really compelling conversation that could persuade under smart questioning not only from Democrats but from [Pennsylvania’s] Arlen Specter, who at that time—he later became a Democrat, but he was a Republican, Yale Law School graduate on the Judiciary Committee who engaged Bork in a very probing set of constitutional conversations. So the Republicans didn’t anticipate any of that. They thought this guy was going to just shine as God’s gift to the Supreme Court. And the fact that he said he didn’t need the murder boards, he didn’t need the practice sessions, “You’re not going to tell me what to do; I am who I am,” I think didn’t truly alarm the big guns. It alarmed people like Tom Korologos, who was a very savvy, old Washington hand who was the Reagan administration’s liaison to Congress, who had handled many different kinds of confirmations, not only judicial. And I remember talking to him after the fact, and he knew this was trouble. But the political people, the big shots on the political team just didn’t. They thought they would send Bork up and he would just dazzle. And he did dazzle, in an opposite direction. So when you’re sitting there in that room on that first day and on the days that followed, the long days that followed, what was the vibe in the room? How did it feel from the beginning to—as you go across the arc of those days? It was a highly charged atmosphere, because the hearing was not until September. So there had been weeks of buildup, and the ads were running. And of course the Kennedy speech had initiated the entire pre-hearing period. So the question was, OK, how is this guy going to present himself? What’s going to be the drill? And he came out with, I think, a very good opening statement. He said, “This is going to be a hearing about judicial philosophy.” That’s refreshing. Most nominees say anything but that. That’s refreshing. “I’m going to tell you my judicial philosophy. I’m going to tell you my approach to the Constitution,” and so on. So he had schooled himself to be kind of professorial but not combative. But then, you know, Joe Biden, fully primed by his mentor, Professor Tribe, started going at him, and Arlen Specter, we saw the emergence of the young Orrin Hatch (R-Utah), whose role was to sort of rehabilitate the witness and lob a bunch of softball questions that would let Judge Bork shine. And that was pretty much of a flop. The famous set of questions had to do with abortion, had to do with Roe against Wade, and Hatch was very well prepared. And he read a list of well-known liberal or moderate, famous constitutional scholars who had criticized Roe against Wade, and that was absolutely correct. And he then said to Judge Bork, “Now, Judge Bork, you’ve heard this; all these famous liberal law professors have criticized Roe against Wade.” He kept saying “the so-called Roe against Wade.” And he said, “Judge Bork, can you think of any other major opinion that has evoked so much criticism?” And Bork said, “Brown against Board of Education,” the desegregation case. That was the wrong answer. That was a tone-deaf answer. Hatch was shocked, and he said, “Well, maybe you meanDred Scott [v. Sandford].” And Bork said, “Oh, yes, Dred Scott.” Now, to unpack that exchange, I think, tells us a great deal about the hearing. Bork was absolutely correct, that Brown against Board of Education, when it came down in 1954, evoked a fair amount of criticism inside the legal academy, not because of the outcome. Everybody thought obviously that segregation should be ruled unconstitutional. That wasn’t the issue. The issue was the reasoning, very short opinion, wasn’t well reasoned. Did the court take the right approach to understanding the Equal Protection guarantee, so on and so on? So Bork was not incorrect; he was just tone-deaf. In 1987, that’s not what you say about Brown against Board of Education, which had long since entered the canon of being totally beyond criticism. So that exchange, I think, was a key moment that tells us a great deal about what went wrong in that hearing. There’s also the wonderful exchange between Biden and he aboutGriswold [v. Connecticut], a sort of back-and-forth and back-and-forth. It was like watching a fencing match almost. Yes. The back-and-forth between Biden and Bork over the birth control decision, Griswold against Connecticut, 1965, which initiated the right to privacy and the notion in 1987 that there was a time within the memory of everybody in the room that a married couple could not legally use birth control in the state of Connecticut—alsoat that time, the state of Massachusetts, those were the only two states—just strikes people as bizarre. And Bork was totally dismissive of Griswold, not that he was saying he thought it was a good idea to make birth control illegal, but that he saw no basis—he saw no basis in the Constitution for the holding that the court had come up with. There was another exchange between Biden and Bork that was very indicative of what the problem was. Bork had written something to the effect of if some group of people have their rights expanded, then necessarily another group of people have their rights diminished or contracted. And Biden asked him about that and gave him a chance to walk that back. Biden said, “You know, my view is that if my rights expand, everybody’s rights expand.” And Bork said something to the effect of, “Basically, it’s a zero-sum game.” And the moment kind of passed, but I remember I singled that out, and I wrote about it at the time, because that seemed to me to crystallize the two ways of looking at the regime of constitutional rights; that if your rights are expanded, I’m living in a society where there are expanded rights, and that’s a good thing. To Bork, it was a threat, and ultimately the Senate decided that was a threat they chose not to take. When did you know Bork’s goose was cooked? Really not until the very end. It was the last day of the hearing, the famous last day of the hearing, when Alan Simpson gave that long, long peroration and read from the Rudyard Kipling poem, and it was just an amazing performance. And then he asked the ultimate softball question, which was, “Judge Bork, why do you want to be a justice on the U.S. Supreme Court?” Now, at the end of five days of hearings, that’s got to be a pretty easy question. And we know the answer. The answer was, “It would be an intellectual feast,” not “It’s my chance to do justice; it’s my chance to help the country live up to its highest constitutional ideals.” Now, I give Bork credit. He didn’t say those other things because that wasn’t him. That wasn’t true. That wasn’t what he thought. He really thought it would be an intellectual feast. But again, that was a tone-deaf answer, and you could see the kind of deflation there, and I thought, you know, it’s not going to happen. I had assumed it would happen. I totally bought into the fact that it would happen. Maybe I was coming late to the party to think, OK, it’s actually not going to happen. Wow. The aftermath of Bork’s loss, I understand that [Anthony] Kennedy gets on and all of those steps. We’ll deal with them sort of very efficiently, I think, in the film. But the idea of what happened as a result of the loss, maybe the energizing of the Federalist Society, groups like that. Maybe other things. Certainly the creation of a verb. So what’s your calculation of the aftermath? What happened as a result of Bork’s defeat? So in the immediate aftermath, when Anthony Kennedy is nominated and confirmed and seated, the question was, who won the Bork battle? And the answer was not obvious, because it was going to depend, at least at the front line, it was going to depend on how Kennedy turned out. If Kennedy turned out to be what some people said, “Bork without the bite,” same votes but just a little less flamboyant, then the Bork battle maybe wouldn’t have been worth the candle. If Kennedy turned out to be something different, as of course he did, then one could say, “OK, the liberals won the Bork battle because they didn’t get Bork; they got Kennedy.” That was the kind of—I believed that for quite a long time. But I have to say in the last few years, it’s become obvious—maybe I’m late to this party—became obvious to others, that there’s a whole other way of looking at the aftermath of the Bork battle, which was the forces for Bork who suffered that very painful defeat didn’t give up, didn’t go home to sulk. They went underground and built an infrastructure to create a new reality, a new political reality, a new reality for our judicial politics. And create institutions and fund those institutions and create idea tanks to put forward their vision. And we’ve emerged with that. So it’s an ambiguous legacy. I mean, had Bork been seated on the Supreme Court instead of Anthony Kennedy, we would be living in a different constitutional world. That is true. But looking at the world to come, that’s going to be a different constitutional world on the other side of the ideological divide because of the response by those who were defeated in the Bork battle and the great energy and creativity and money they put into building a new reality for themselves. This is the long, long game of people like Mitch McConnell (R-Ky.), [Federalist Society’s] Leonard Leo and others? Right. I mean, Leonard Leo, yes. Mitch McConnell opportunistically was smart enough to take what he was given and make the most of it in a very brilliant move. We found a piece of stock footage of Mitch from the Senate floor right after Bork loses standing up and shaking his finger at the Democrats and saying: “You will rue the day when this happens. The courts, the battle for the courts, the justices, the lifetime appointments. We will get involved and engaged in this.” And I think he was talking both—and people we’ve talked to said he was talking both practically in terms of what you’ve just articulated, which is, “We’re going to build a mechanism; we’re going to build a system.” And he himself, besides his campaign financing impulses, was also very strongly interested in finding a leadership position so that he could get the courts going. It’s like an origin moment for something. Yeah, boy, hats off to him, I have to say. Let’s go to [Clarence] Thomas now. Oh, and of course, one of the things that the Republicans learn is OK, this war room idea, okay this—and having a nominee not talk too much about what they believe ideologically, and having even a long record becomes sort of weirdly criteria for who you pick to be the nominee, so that when they come around to Thurgood Marshall leaving, it’s time for the black seat to be filled, if possible, with a conservative African American. Those other things are on the table as well when Jack Danforth (R-Mo.) and [Reagan’s Chief of Staff] Kenny Duberstein and others create their own war room over on the fourth floor of the EEOB [Eisenhower Executive Office Building]. So it’s Thomas. So Thurgood Marshall announces his retirement, which was no surprise by that time in his life and had been anticipated. And so on the D.C. Circuit was sitting a very young man, an African American. Clarence Thomas had been on the D.C. Circuit for, I think, about a year and a half by that time and had been put on the D.C. Circuit to be ready to be served up as a Supreme Court nominee by a Republican president when the time came when Thurgood Marshall left, because we couldn’t, obviously, go back to an all-white Supreme Court, which the Supreme Court had always been until Lyndon Johnson nominated Thurgood Marshall. So what to do about Clarence Thomas? That was the question. And it was a very tricky answer for a lot of people. It was a tricky answer for African American organizations, for sort of moderate people in the Senate. Their instincts told them that this was not a justice they were going to be happy with, but kind of what to do about it? There was a lot of floundering around. Clarence Thomas had in his previous capacity as head of the Equal Employment Opportunity Commission, had gone around the country giving speeches about originalism and kind of the Heritage Society/Borkian sound bites. And Sen. Biden was determined to try to probe that and take it as a Bork battle redux because there was a paper trail. But unlike Bork, who said, “Yeah, these are my views, like them or not,” Thomas disavowed everything and said, “When I became a judge on the D.C. Circuit,” he said, “I stripped down like a runner. I shed all my ideology. All I do is just follow the law, and I look out the window from my courtroom, and I see the prisoners lined up to get on the bus to be taken to Lorton,” the local prison. “And I think based on my compelling life story, up the bootstraps from Pin Point, Ga., I think there but for the Grace of God go I.” That was pretty compelling. And it was working. It was going to work. It had worked, in fact. He was squeaking through. And the groups who were determined to defeat him by any means possible in those last days were not going to give up. And that’s when they brought forward Anita Hill, and the whole tenor, of course, changed, and it became a battle not over ideology but over personal behavior. And the legacy for that one can debate, but it was a very unnerving and dispiriting sequence of events that I think left everybody unsatisfied at the end. … Do you have any sense why Anita Hill—is there more to it than the obvious thing, which is this emerged, Biden had sort of held it off, and then he let it happen? The information moves along. Well, I think Anita Hill was the tip of the iceberg in the sense that the liberal groups had been scrambling desperately to do opposition research and find personal dirt on Clarence Thomas, especially once they realized that he was not going to be defeated based on ideas. Because I remember getting a phone call in the middle of the summer—I remember I was out of town. I was visiting my mother, and I got a phone call. And the caller was a Democratic Hill staffer who said, “Why isn’tThe New York Timesin the courthouse down in someplace in Virginia looking at Clarence Thomas’ divorce records?” And maybe I was naïve, but I was pretty shocked, and I was also pretty offended. And I said: “I’ll tell you why not. It’s because they don’t pay me enough.” And I hung up, because I just didn’t see that as my role in life. Maybe I was a very inadequate journalist in those days. But it was very indicative of what was going on. So the groups who brought out the Anita Hill story and peddled it to people who would rise to the occasion, that was part of a very deliberate strategy, and it was saved for the end when it was perceived as being needed. If you think about the role of television as part of the national civics lesson about the court and Congress that people did or didn’t pay attention to, McCarthy, Watergate, Bork. Suddenly, this soap opera. If Bork was the first reality TV show we all watched in common—maybe Watergate was—but I think Bork was a human drama, watching this guy burn up and picking heroes on the panel, whatever it is. Suddenly it’s a show trial. It’s literally a he said/she said without any of the cumbersome rules of evidence or anything else right before our eyes. It was incredibly compelling television. You know, she was gorgeous, composed, obviously projecting sincerity. He was in a controlled fury. His life was on the line. And it was—you couldn’t have made it up in terms of how dramatic it was. It was just riveting, and the country was just holding its breath. … Talk a little bit about the difficulties for the Republicans in that moment, to be wherever they were or do or not do whatever they did. Well, I think the Republicans wanted to be anyplace but where they were. They had to deal with this. They wanted it to stop; they wanted it to go away. They reacted very badly in turning on her and making her the victim twice over. Speaking of optics, we had the women of the House of Representatives marching up the steps of the Capitol in a fury over what they were seeing. That made an amazing picture. So I think it was a real challenge to the Republicans in how to respond. And it was a challenge which on one hand they failed to meet as human beings, but they met it in the sense of they got what they wanted, which was they confirmed Clarence Thomas to the Supreme Court. Simpson talks about being on his knees next to Thomas while he’s writing the “high-tech lynching” response to Hill. When you heard that phrase, what did you think? I thought it was brilliant. I thought it was rhetorically absolutely brilliant. And I thought it probably sealed the deal for him. So, you know, pictures matter, but words matter, and I think he also projected sincerity, a kind of fury, but sincere fury. It didn’t seem like an act. And so you have these two very sincere people with completely opposite accounts of their personal interactions. Fortunately, the country’s never seen—well, until very recently—seen anything like that. We were free for a generation, I’ll say, of seeing anything like that. Let’s go to the death of Justice [Antonin] Scalia and the response to that death by Leader McConnell. Jack Goldsmith yesterday said if the court—the court on the day before he died was about to listen to, deal with, narrowing abortion a little bit. There was a union case that was up; there was a climate change case that was up. There was one other that I’m not remembering now. Affirmative action. It was an affirmative action case before—that Scalia’s death put all of those in some level of jeopardy that they may or may not have been in if he would have been alive. How important was his death to the Republican, the conservative—whatever you want to call it—agenda for the court? I’ll give one example of that, which was the labor case. So Justice [Samuel] Alito had been on a crusade for some years to get the right case up to the Supreme Court to provide a vehicle for cutting the legs out from under public employee unions. And there had been a couple of cases that hadn’t quite presented the First Amendment question of free speech rights of anti-union employees that Alito needed to accomplish his goal. They finally had such a case. It was a case calledFriedrichs [v. California Teachers Association], and it had been argued in the court’s January sitting, January 2016. And it was obvious from the argument, which all nine justices were there, especially Scalia’s questioning, that the vote was going to be 5-4 on Alito’s side to rule that public employees who didn’t want to join the union had a First Amendment right not to be assessed any of the dues to cover the collective bargaining activities from which they all benefited but they didn’t want to pay for. That was pretty clear. So the way the court works, they hear an argument, and later that week, they meet in closed-door conference, and they take a vote, a straw vote. And on the basis of that, the chief justice, if he’s in the majority, assigns the opinion to one of his colleagues. And we know in retrospect by putting a few pieces together that the vote was, in fact, 5-4 and that the chief justice, in fact, did assign the opinion to Justice Alito. So let’s assume he started writing right away, and he was going at it. He finally had gotten what he was trying so hard to get, and then Justice Scalia died, and the court was left 4-4. And a tie vote in the Supreme Court simply affirms the lower-court ruling, and the lower-court ruling had been in favor of the union. And they had no choice. And we know that that’s what happened because from that January sitting, Justice Alito did not have an assignment. No opinion emerged from the January sitting with his name on it, so it’s kind of obvious. That’s just the tip of the iceberg of what Scalia’s death, or the vacancy in the seat that Scalia had held for a quarter century, what that was going to mean. A chipping away by the conservatives was underway, was happening. Yes. I mean, the conservatives were in control of not every piece of the agenda, but a lot of it. And the power structure was 5-4, and Scalia, of course, was an essential part of that five. And that seat really mattered. And if President Obama was—of course was the immediate assumption. He was the president, and here was a Supreme Court vacancy, and it was February 2016. So, of course, the obvious assumption was it’s President Obama’s seat to fill. That would have changed the balance on the court for sure. It doesn’t take very long. It takes about an hour and a half or so for Leader McConnell to issue a release of his intentions. Where are you when that announcement is made, and what did you think? That was a Saturday afternoon. I was out of town visiting a friend. I had gotten a call earlier that afternoon from my husband who said, “Scalia died.” I said: “What do you mean Scalia died? How do you know?” He said, “It’s on Facebook.” I said: “What? What is going on in the world?” Then, of course, my phone started ringing from various media organizations and so on, so obviously it was true, and we were watching television. And the word comes out that McConnell had said that nobody who President Obama nominated was going to be confirmed because nobody should be confirmed because it was an election year. And I thought, yeah, right. I mean, I just didn’t believe it. I mean, I believed he said it, but I didn’t believe he could carry that through. It just seemed ridiculous to me. So, you know, I guess that shows you what I know, right? Unprecedented? I mean, I understand not unconstitutional, but unprecedented? Important that a level of— Well, “unprecedented” is a tricky word because Lyndon Johnson tried to make Abe Fortas chief justice in the last year of his presidency, and that didn’t happen. OK. I would stay away from “unprecedented,” but it was—in context, it was very shocking. Obama names Merrick Garland. What’s he trying to do? I think by naming Merrick Garland, President Obama was trying to nominate somebody who was going to be confirmed. I think he sincerely believed that he could make it happen. He nominated somebody who key Republican senators had expressed a great deal of respect for over the years, somebody who was very well known on the Hill, somebody who, I think, was portrayed, maybe a little bit over-portrayed, as a “moderate,” whatever that means, I think certainly not a flamboyant liberal, we would say, but somebody who had an excellent reputation—chief judge of the D.C. Circuit, one of the most important judicial positions in the country. I thought the Rose Garden announcement was very effective. I thought Chief Judge Garland came across as very appealing. But it was sort of sad, too, wasn’t it? Because if you—especially maybe looking at it now, because we know he’s not going to make it, but it was so bittersweet in lots of ways. It was a sweet ceremony, and I persuaded myself that it was going to accomplish the goal. And I thought, you know, how could members of the Senate with their bare faces hanging out stop this very appealing nominee about whom not really a bad word could be said? And again, I mean, we’re living in an era where every norm is being shredded in front of our eyes, and that was a norm that was just sitting there to be taken down. If you go backward just a little bit to almost the entire Obama administration, and the president’s effort to offer up judges for the district courts, appeals courts, and McConnell’s effort to slow-walk, drag it along without going into details about blue slips and over things, it’s clear that this was McConnell’s appetite, and it was clear that there were going to be these vacancies, and they were just going to be there, and that was a way that the game could be played and that other things were going to change along the road—the filibusters, the nuclear option and all of that. Give me just a sense of what McConnell was doing to Obama for his own goal of supreme revenge of building a court that would be consistent with what Republicans wanted. One thing we see from what happened in that period is that the courts, getting control of the courts, was a frontline goal of the Republicans and had never been a frontline goal with the Democrats. So Democrats controlled the Senate for the first two years of the Obama administration, and the administration pretty much sat on its hands in terms of filling the numerous vacancies that it had inherited and that occurred during that time as judges retired or took senior status. I gather that the word inside the administration was: “We’ve got to get the health care bill passed. We don’t want to create obstacles to that. That’s our priority. We can’t do two things at once, and that’s the one we’re going to do.” That was Rahm Emanuel from inside the White House. That was his marching orders. So they really squandered an opportunity to move the courts in a direction. So by the time the Republicans were in control of the Senate, it was obvious that the dynamic was such that it was just not going to happen for the Obama administration. It was very slow, and I think ultimately the administration stopped sending up names for some prominent vacancies, for instance, on the Fifth Circuit, which is Texas, Louisiana, because it knew that whatever names they sent up were not going to be confirmed. And it’s really an extreme hardship to nominate somebody who’s going to be hanging in limbo for a year or two years and ultimately isn’t going to make it. So nominations were not even being sent up to the Senate, and the nominations that were there were just being slow-walked. So, you know, what we saw was the playing out of these two different approaches to judicial politics. One, “We care about it above many other things, and we’re going to have it our way.” That’s the Republicans; that was under McConnell’s leadership. And the other was, you know, “We have a lot of legislative priorities, which by the way, the Republicans on the Hill don’t. We have things we want to accomplish, and we can’t let the judiciary issue get in the way of those.” Then, of course, in 2016, McConnell, as a very smart political operator, realized that by keeping the seat open and making the court a front-and-center political issue, it was a way of delivering a message to the Republican base to motivate them in a way that the open seat, the blockade of the Garland nomination, was somehow never able to motivate the Democratic voters. And it just shows they’re two different orientations. So that when you think of words, adjectives to describe McConnell’s leadership through this, what are the words you use? Strategic, smart, single-minded, goal-oriented, not to be knocked off the path that he set himself on. And nobody looking at it in retrospect can say anything other than he showed brilliant leadership. You know, in the Obama/Romney—Obama’s last campaign, the Supreme Court didn’t come up a single time in the presidential debates. I remember being flabbergasted by that. It was a non-issue. And McConnell, by keeping this vacancy open, made it a front-and-center issue in 2016, and he has said it’s the thing he’s most proud of in his political career. And he should be. From his point he should be. So this sets the table for a case study. That night, the night of Scalia’s death, there’s a debate in South Carolina. The Republicans—Donald Trump has basically vanquished almost everybody. He talks, and even has a couple of names of potential judges, which sort of knock a lot of people’s socks off. “Oh, my God.” Don McGahn has delivered those names to him. After no time at all, Trump is in Washington, is taken over to Jones Day. McGahn is with him; Leonard Leo is there; Jim DeMint is there. Trump knows he has a problem with the evangelicals and the conservatives. Is he really our guy? Could he really be our guy? And somebody has told him, or maybe he knows, that the Supreme Court is the litmus test for him and his conservatism. And we’ve talked to people who say this was the moment that elected Donald Trump in terms of activating his base anyway. So this is the time to talk about the list and the creation of the list and your thoughts about the list and its impact on Trump’s victory. Yeah, the list was an amazing development because two things. One, it certainly seemed to me that Donald Trump, as a person, did not recognize a single name on the list that had been handed to him. We can assume that that’s the case. And two, it was a list of people who pretty much any Republican candidate, I think, would have had on a list. They were highly credentialed, a lot of Supreme Court law clerks, a lot of fancy law schools. So nobody could look at it and say, “Gee, if this guy’s president, he’s going to drag people off the street and stick them on the Supreme Court.” So it was very clever. It was really astonishingly smart. And from that list emerges, eventually, certainly Neil Gorsuch, who’s not on the list, but eventually there’s a second list, and then there’s a third list. Gorsuch is on the second list, and [Brett] Kavanaugh is on the third list, I think is the way that it goes. We haven’t talked at all about the Federalist Society. Let’s just do a little tiny bit about that because he emerges from their preparation. … So the Federalist Society came across as a group of law students, chapters around the country, get together, discuss, debate ideas. I’ve participated in a number of Federalist Society events. They’re stimulating; they’re well done. They have very good food, well-attended. And it’s only gradually that we see that it’s become—and this is not to take anything away from them; I give them a lot of points—a kind of employment market so that it becomes a certifier for law students who would like to get clerkships with judges who themselves are affiliated with or are friendly toward the Federalist Society. And those judges, in turn then, of course, get certified as being eligible for elevation to a higher judicial post. And it becomes a kind of a feedback loop, a set of self-fulfilling prophecies that makes it ever more prominent both in the law schools and in the legal world and in the world of judicial politics, a lot of this enabled, obviously, by a network but also by a lot of money. There’s a lot of money flowing to the Federalist Society. And if you put them side by side with the kind of would-be, might-be, couldn’t-quite-be Federalist Society on the progressive side, the American Constitution Society, they struggle for funding because I think the funders on the Democratic side have never quite gotten it, never quite bought into the model that the funders of the Federalist Society saw instantly: that you build a network from the ground up. You build networks of smart young students who are going to find their way through clerkships and through jobs into an ever-expanding, self-fulfilling network. And that hasn’t really happened on the progressive side. … What do those companies get out of the Federalist Society? I think what the funders get out of their investment in the Federalist Society is a network of increasingly well-placed lawyers and judges who are very responsive to the needs and desires of corporate America, for one thing, who have been successful, just to name one doctrinal area, in converting the First Amendment’s guarantee of free speech into a powerful tool of deregulation, because you can make everything look like speech, and you can interpret the First Amendment to say government can’t regulate there, and not so much on the, I would say, social issues necessarily. I view the Federalist Society as more of a libertarian kind of corporate sensitive outfit. There are other groups that carry much more water for evangelicals and social conservatives, so I see it more as a corporate-friendly, ever-more-powerful network of lawyers and judges. Is it fair to say that if you don’t have that credential nowadays and the president is a Republican, you’re not going to get a nomination? It seems right now that if you don’t have that credential and you have ambition, you’re not going to be invited in, whether it’s a judicial position or some other kind of position in the executive branch and DOJ, for instance. So it’s become ever more important. Why Kavanaugh? Why did they pick him? Why did they pick Brett Kavanaugh? Yeah, why Brett Kavanaugh as a nominee? Is there anything about him that was especially different, problematic? So in a way, the Kavanaugh nomination was surprising. He was not on the first two lists of potential Trump judicial nominees. I think nothing against Brett Kavanaugh, but he is a creature of the Washington establishment, and sitting on the D.C. Circuit, born and raised in Washington, D.C., and the president who was going to drain the swamp did not initially, or his advisers did not initially, see Brett Kavanaugh as a very obvious person to put forward. So why on this round Kavanaugh as opposed to others on the various lists? I don’t know the answer to that. I think he was viewed as confirmable, mainstream, tried and tested. Seemed well known to everybody. So I think the decision by Justice [Anthony] Kennedy to retire, although not a total shock, had not been necessarily anticipated by the time it came on the last day of the Supreme Court term, which is late to get somebody up there. Justices who have retired in recent years have usually made that announcement in April, in March or April, to give the president a little more time. Kennedy, for whatever reason, didn’t do that, and it’s almost July. So I think the thinking might have been we know Brett Kavanaugh; everybody knows Brett Kavanaugh. Let’s send him up. He’d be reliable and confirmable. The things we’ve learned, you and I, by talking about this, the things you’ve learned about how to get ready to do a confirmation from Bork, from Thomas, all the way along, and being run by Mitch McConnell, who we now know is a great politics guy—he may not be a policy guy, but he’s a good politics guy. They’re in a run. They know there’s a midterm coming in October. They’ve got to rush it along. They know about Kavanaugh’s record, which is millions of pages of material that the Democrats might want to try to get their hands on. But if they could rush it along, is what it feels like, they could get this done. They stay for the August session; they shove it along. Set that scene for me, will you? What are the stakes, and how is it going, and from what we’ve learned about war rooms and everything else over the decades, [what] are applying to the Kavanaugh nomination? There were reams of material. There was a lot of material to go through. He’d been an active judge, a speaker, very well known in Washington, and groups immediately started going through them compiling lists on what are his views on abortion, what are his views on regulation, what are his views on everything. And, you know, nothing that came out was particularly startling. This was a Trump nomination, so I think there was very little chance that something was going to go off the rails until guess what? It did. And once again, it’s a déjà vu moment. When you start hearing the rumblings that there may be a letter, there may be a person, there may be an accusation, whatever it was you heard, what were you thinking? My first thought, just as a citizen, is, you know, whatever this is going on about was like a really long time ago, and we’re talking about a teenager. And my first thought was, you know, nice try, but this can’t possibly amount to much, and it can’t possibly work. I’m not the greatest forecaster of how events unfold, but that was my initial reaction. When she comes out and testifies, once again, he’s probably 90, 95 percent of the way there. But now she comes out and testifies. What did you think at the end of her testimony? Did you think he could be derailed, plausibly be derailed based on what she said and how she said it? She was a very impressive witness. I watched it in an airport lounge because I was in transit at the time. I think I was in the American Airlines lounge in Chicago. I asked for them to put it on TV, which they did, and everybody in the lounge sat there. Nobody said a word. All these passengers with planes to catch just sat there and watched. It was very compelling testimony. What was the crowd’s reaction? People were just very quiet. I mean, everybody was like listening and then had to leave and catch their various planes. But, you know, people were very attentive and took it [as] something serious was happening, definitely. And what did you think? Did you think it could have derailed him? I didn’t think so. I didn’t think so until we saw his reaction, his bizarre, over-the-top reaction. So your thoughts as he walks out and sits down and delivers? Well, so my thought after her testimony was—I thought it was powerful. I was very sad for her. I didn’t doubt what she said. I had no reason to doubt it. From his reaction, I think everybody had a reason to doubt his judicial demeanor, or lack thereof. That was pretty surprising, the screed that he unleashed about conspiracies and Democrats out to get me and so on. Of course the Democrats were out to get him, that’s true, but that’s not how one expects a nominee to respond. But it was a done deal. When he survives, especially after the demeanor question, a lot of people are now sitting around saying, “What does this mean about the reverence for the court by the American people?,” or, “We’ve watched so many of these things happen now between Bork and Thomas and McConnell on the Garland thing, and now this.” So now we’re in the summary moment of our conversation. What are your thoughts about what has happened with people’s sense of reverence or respect of the court? I think this is a very delicate moment for the court. You know, you hear people throw around phrases like “a crisis of legitimacy” and so on. The court’s had trouble before. I don’t want to suggest that the courts always had an easy time of it in the maelstrom of American politics. But what we have right now for the first time, I believe in history, we have a court divided 5-4 by the ideology of the president who appointed those justices. There’s no crossover. So all five of the conservatives were put there by Republican presidents; all five [sic] of the so-called liberals were put there by Democratic presidents. So it’s very hard for the public to look at that and not see those justices carrying forward an ideological promise that put them there. So the proof is going to be in the pudding. I think it’s not going to be the messy confirmation processes that we’ve lived through. Those are unfortunate, but that’s what happened. It’s, what is the court going to do going forward? And, I mean, just one example, for instance. The court has decided to weigh back into the Second Amendment, into the gun rights issue just at a time when it appears that the public is finally turning on the gun rights issue and realizing that more regulation of firearms is in the public interest—more, not less. So we have a court now that may be ready to drive the law, drive the Constitution in the opposite direction from where public opinion is going, and I think that will be a destabilizing force for the court. The same thing on the power of organized labor. Just at the time when teacher strikes are making headway, when polls indicate that the public is more favorable toward organized labor than it’s been for a very long time, the court has managed to issue an opinion at the end of the last term that’s very damaging to public employee unions. So the court’s future is really in its own hands. Not to suggest that the justices should stick their fingers in the wind and just go by public opinion. That’s not what I’m saying. But what I’m saying is when you have a court that is inherently going to be seen as political because of this polarized 5-4 split, I think it’s a court that has to be very self-conscious, very careful of not seeming to opportunistically take this occasion to nail into the Constitution a set of values that don’t reflect the values arrived through democratic processes, through legislative processes, through what the public hopes for from its court and its Constitution. Let’s see what we missed? …This is a question you asked, and then the phone rang, which was, was Thomas, his refusal to get into details on something like abortion or reaction to what had happened to Bork, that strategy? Yeah, I think the marching orders after Bork was say as little as possible. Disavow any idea that you ever had. Present yourself as a blank slate and that’s the only way to win… …Trump and McConnell, what they’re doing, you wrote about the fact, and you defined it, as “the weaponization of the federal judiciary.” Explain that. Explain their tactics and how it should be understood. So part of what McConnell managed to do was to turn the abstract concept of the federal judiciary and the actual existence of vacancies on the federal bench into political weapons that could be used to motivate the base and then ultimately accomplish goals of the Republican majority; goals of making the country more receptive to corporate interests, for instance, to turn the court in the opposite direction on the hot-button social issues. Abortion, affirmative action, the role of religion in the public square, the role of separation between church and state—all those are up for grabs now because of the priority that Leader McConnell has put on getting control of the federal courts. Thank you. We done? I just have one more. Can I ask? OK. On the list, on the Federalist list, you talked about it already, but you defined it as a pre-digested, pre-approved list of potential nominations from which to choose. What it ended up doing was, in some way, you were talking about the fact that it became an insider’s game with no transparency. So just talk about just the list and sort of what’s the bigger effect of that and why it’s important to understand what was happening there and what Trump approved. Do you mean the list he put out that night of Scalia’s death or what? No, the list that he was given that he had decided that he was going to work with during the campaign, that he has worked with; a list of people that, as you said, he probably didn’t know one of the people on that list. What’s the danger of that? I think in one piece, you wrote [about] the fact that this becomes an insider’s game with very little transparency. So there’s a danger there. Just that issue, I think, is important. I’m just thinking through what—I think the impact of the list was, from candidate Trump’s point of view, was to certify him as a serious potential player in this Supreme Court nomination game, because it was a list of perfectly well-qualified judges. They were, I think, almost all but maybe one who was a senator, all sitting federal judges. It showed that this was something to be taken seriously, even though as I’m sure was the case, Donald Trump had never heard of a single one of the people on that list. It was, of course, the result of a process that was anything but transparent. It came out of the Federalist Society that most people in the country had never heard of. Didn’t know who they were, where their money was coming from or anything like that. It just kind of emerged in the hands of this presidential candidate and turned out to be a very effective tool that has served up to us now two sitting justices of the U.S. Supreme Court.

9 Comments

  • Narkel NaRu

    These are such superb interviews. Partisan or not, the Democrats have always played defense on nominations. And that's a good thing, such also as in gerrymandering.

    The Bork nomination is clearly one I wish had worked out better. But, only Republicans have made bad nominations (approved or not, such as Harriet Myers (?) whom W Bush nominated.)

    Democrats should focus on their own work and doing their tasks fairly, because ideas only tend irretrievably towards liberalism and not conservatism.

    Superb piece of "reporting." Thank you.

  • 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.

  • Gino Furzi

    Love these in depth interviews because they show the good, bad, the ugly on all sides of the aisle. Context and depth are everything in understanding a messy process regardless of your political perspective.

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