Online NewsHour: Closed Chambers -- June 15, 1998

CLOSED CHAMBERS

June 15, 1998

The NewsHour with Jim Lehrer Transcript

David Gergen, editor-at-large of U.S. News & World Report, talks with Edward Lazarus, author of Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

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DAVID GERGEN: Ed, you've just written a very controversial book about the Supreme Court based upon your time there as a clerk for Justice Blackmun in 1988/89. And it talks about a very, very divided court. You say there is a spirit of affection and of recrimination. You talk about trench warfare, and about pathologies. You go on to say the current court remains a place shattered, lacking not only a center but a leader and a shared sense of purpose. What in the world is going on?
The Supreme Court: deeply divided over issues of race and states' rights.
EDWARD LAZARUS: Well, I think it really started to come to light in the Bork hearings. What we saw and the failed nomination of Robert Bork was almost a civil war in our culture. Liberals on one side felt that the conservatives wanted to roll back 30 years of progress in civil rights and civil liberties. And conservatives on the other side felt that the liberals were really soft sentimentalists. So we'd gotten away from the original purposes of the Constitution and were conducting a kind of judicial coup d'etat. And that same sense of recrimination and faction that you saw in the Bork hearing was really absorbed into the court during the period I write about in Closed Chambers. And although it is lessened today-we don't have Justice Brennan, Justice Marshall, and Justice Blackmun on the left wing of the court-the court remains very, very deeply divided over the issues of race and states' rights, issues that really date back all the way to the Civil War.
DAVID GERGEN: You centered on race as one of the three issues that was most divisive during the time you were there. How does that reflect itself in the judgments of the court and the laws that actually affect the way people live?
EDWARD LAZARUS: Well, I would say two sets of cases my term were-had a profound effect. First of all in Richmond Vs. Quincy the court dramatically cut back on affirmative action, and that is still today the law of the land. And second of all in a series of civil rights cases involving employment and similar issues the court did an about-face again, retrenched a bit on civil rights to the point where Congress actually passed the Civil Rights Act of 1991 to reverse the court. So there was a sea change at the court when I was there, and it was extremely hard fought--as I say, the liberals on the one side trying to hold onto the legacy of the Warren era and the conservatives trying to roll things back.
DAVID GERGEN: And you worked for a "liberal justice" in Justice Harry Blackmun and you felt that the court's conservatives were rolling back the liberals in those times.
Is the current Supreme Court waging a counter-revolution on civil rights?
EDWARD LAZARUS: Well, I think that's right. I think that the Rehnquist Court was engaged in a kind of counter-revolution on civil rights, but I try to be very careful in the book to say that the problem at the court was not the bottom line results that were reached but the arguments that were used. We all want the court to be a place of principles and of reasoned argumentation. And during the period I was there both the conservatives and the liberals, it seemed to me, were resorting to transparently inappropriate arguments in this terribly divisive area of law.
DAVID GERGEN: And the clerks, themselves, seemed to get into shouting matches, even shoving matches.
EDWARD LAZARUS: Well, there's certainly no doubt about that. We ended up with two of them in a fist fight. But the problem wasn't one of sort of physical confrontation but of mirroring the divisions of the justices and exacerbating those divisions.
DAVID GERGEN: Actually in the book you talk about the distrust of the judicial system that pervades the black community, and you say that that distrust is legitimate.
EDWARD LAZARUS: Well, I think that the distrust I was really focused on was a distrust inside the court between the two sides. If you're a liberal and you see a justice, let's say rolling back affirmative action using arguments that you don't believe that those justices themselves believe in, there's a sense of hypocrisy, charges of bad faith that are actually made in the opinions. On the conservative side if you see Justice Brennan, for example, in a major civil rights case, adopting technical arguments that you know he doesn't agree with, in order to win, you say this is wrong, these people aren't fighting fair. And it breaks down the kind of collegiality that is necessary for a court to operate. And so that's the kind of bad faith that I tried to focus on in the book.
DAVID GERGEN: Is it so surprising there would be such deep divisions if people actually do disagree about principles? Isn't it possible that the conservatives just believe that the decisions of the Warren court are based on the wrong principles?
"What we want is an example for society of how we can agree to disagree."
EDWARD LAZARUS: There's no doubt that they do feel that quite sincerely and that liberals think that those decisions were right quite sincerely. The problem comes when the arguments that they use are not arguments of principle but are arguments of politics or ideology. The law is different from politics. There are legitimate arguments and not so legitimate arguments. And it's not that we want a compromise on everything at the court. We'll never compromise on those issues. But what we want is an example for society of how we can agree to disagree. And that's not why the court was provided.
DAVID GERGEN: Based on your perspective, should we have less respect for the decisions that come from the Supreme Court?
EDWARD LAZARUS: I don't think that we should have less respect for them when they're persuasive. That's the key to me--is persuasiveness of argument. And some of these decisions that have been handed down, both by the right and the left, simply aren't persuasive. And sort of my book's mission is to say you've got to do a better job.
DAVID GERGEN: The sort of argument running through the book, though, also is that politics-elections do matter, who serves on the court and what outcomes you have. But a more conservative era has led to a changed view of what the law is in controversial areas.
EDWARD LAZARUS: That's very true. And, of course, the court is a political institution. The confirmation and nomination process makes it a political institution, and appropriately so. The court should reflect changes in American politics. But it is also an institution that has an obligation above and beyond politics. It plays this mediating role between the fast and the future in terms of the law. And that has to be a role that's played above the level of simple politics.
Confidentiality: is it ethical for a former clerk to discuss the inner workings of the court?
DAVID GERGEN: I can't help end this without talking about your obligations as a clerk. That's what has given rise to much of the controversy about the book. I talked to a justice the other day who said, "I do not like that book. It was a betrayal of the court." And I said, "What do you think motivated the author?". The answer was, "Money." What is the ethical responsibility of a clerk in terms of maintaining confidentiality toward the court?
EDWARD LAZARUS: Well, I thought about my ethical obligations to the court every day. There is no formal obligation in terms of some code. But any confidential relationships involve obligations and obligations about what you can and cannot say. And I tried very hard in the five years I spent researching and writing this book to make choices about what I would put in and what I would not put in, and there were many things that I wouldn't include in the book because I did think I can't put that in, because the only way I know it is because I was a clerk to Justice Blackmun. I didn't put those things in. I'm quite confident that I did keep face for Justice Blackmun and with the court in writing this book. But a clerk is not disqualified from writing and reporting about the court. I think a lot of the controversy really comes from the fact that the book's highly critical of the court, because people who read the book carefully will see that, indeed, I was cautious and careful about what I used.
DAVID GERGEN: How did you weigh the question-this is a final question to you-how did you weigh the issue of whether, in effect, denouncing the methods used by the court you would also rob the court of some of its dignity, the very thing you're trying to protect?
EDWARD LAZARUS: Well, it seems to me, David, that the American people have a right to know how this public institution makes the most important decision to the entire world, and so what I was weighing were my own personal obligations to the court. But also I was writing because I felt a dismay, and what I had seen go on at the court, and what I saw through my research went on during other periods in recent history, and it seemed to me that this was a public institution, where, as Justice Brandeis put it, sunshine can be the best--
DAVID GERGEN: Edward Lazarus, thank you very much.


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