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Heidi Heitkamp
Former U.S. Senator (D-ND)
Heidi Heitkamp, a Democrat, served as U.S. senator from North Dakota between 2013 and 2019. Her vote against the confirmation of Brett Kavanaugh to the Supreme Court was seen as contributing to her defeat for re-election in November 2018.
This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on December 12, 2018. It has been edited for clarity and length.
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The Death of Justice Scalia and Mitch McConnell’s Gamble
So when Justice [Antonin] Scalia dies, Leader [Mitch] McConnell (R-Ky.) makes an announcement very quickly that there's not going to be a replacement as long as it’s the last year of President Obama.What did you think of that announcement?
Well, first, the one thing that I've learned about Mitch is if he says this is the way it is, that’s the way it is.So I didn’t anticipate that any amount of political pressure, any amount of common sense, logic would affect what he did.And I think people kind of misread him many times.And from my take, when he says something that definitely, I knew it was true.Then it became, do you go through this process?
Obviously I had a chance to meet Merrick Garland.I think one of the great tragedies of my six years is that Merrick Garland didn’t go on the bench.He’s not only an incredible jurist; he’s just an incredible person.So I feel bad.And we had, you know, in these interviews that you have, it’s usually only about an hour, but you can get a pretty good sense and develop a rapport.And I feel very bad about what happened to Merrick Garland.But it was predictable.
What do you think the long game for McConnell is?Why would he do this?What was up?
I mean, I think everybody misunderstands how critical the Supreme Court is as an electoral weapon for the Republican Party.I think President Trump would not have been president had he not committed to picking from a list that the Federalist Society gave him.I think that a lot of voters, when people say, “You vote against your interests economically,” that’s true repeatedly.But they're voting for their cultural interest, and they want a conservative court, mainly on social issues, especially the women’s reproductive rights.
That issue doesn’t get a lot of discussion on the coasts, because they tend to be more pro-choice.But the issue of reproductive rights and abortion is a critical issue in this country that I think goes unrecognized for the impact that it has on selections of candidates and selections of winners in electoral politics.
The Nomination of Brett Kavanaugh and the Partisan Response
When the president announces that Kavanaugh is going to be his second choice to fill a vacancy on the Supreme Court, a lot of Democrats immediately come out and say, “Absolutely not.”Was that a mistake?
Yep.I think it was a mistake on both sides.I mean, there [were] Republicans saying, “It doesn’t matter who it is; I'm going to support the president’s nominee.”I think that’s an aberration of your constitutional obligation for advice and consent.And so I think you’ve got to go through the process, which is what I repeatedly said, is that this process is not over.I, you know, I am methodically working through what you need to do to make this decision.And I like to remind people, you know, other than going to war, the selection of a Supreme Court justice has the longest lasting impact, especially a young person.So you're making this decision for 30 years, and there's no do-overs.It’s not like, if you pass Dodd-Frank, you can tweak it here or amend it there.There's no do-overs once that person sits on the bench.And so it’s something that should be taken very responsibly, should be done responsibly.And I don’t think choosing based on, you know, kind of this immediate reaction is responsible.
…I watched over the last weekend that first day of the hearings, when [Chuck] Grassley (R-Iowa) comes in and pounds the gavel and says, “OK, everybody,” and Kavanaugh is in his seat.And suddenly the protests start to break out.… What did you think when you were watching that?
I thought that’s no way to conduct a hearing, that that candidate deserves the opportunity to make his statement and to be treated respectfully in the room.I think in some ways, the side story of this is not just the selection of Kavanaugh.The kind of center stage is the process, you know, and then later, the process got even messier.So I think the American public watched that, and they could empathize with the person in the chair.You know, how would you like to be sitting there and having this whole explosion around you?
So I don’t think it serves the institution of the Senate well.I don’t think that it is—I mean, I think it’s what people in my state reacted to when they watched it, you know.I had one person say: “I like you, Heidi.I think you're a great person, but I can't vote for a Democrat because you're part of a mob.”I mean, and that’s what they saw.And, you know, I would dispute that there was any more or less partisanship on either side, but I think that the process was not becoming of the United States Senate.
Definitely partisanship on display, on full display in a way that is microcosmic almost, yeah, I guess.You are one of the people that, when I look back at the record and what people are talking about, were kind of on a bubble about, where would you go?Would you vote for Kavanaugh?Would you give the president his choice or whatever, along with [Jeff] Flake (R-Ariz.) and [Lisa] Murkowski (R-Alaska) and [Susan] Collins (R-Maine) and [Joe] Manchin (D-W.Va.) and others, who were just floating around in there?Were you on the bubble about it?Were you uncertain?Did you want your mind to be made up?
Up to the hearing with Dr. [Christine Blasey] Ford, I had already begun to prepare an announcement that I was going to support the nominee.I supported Neil Gorsuch.I actually was more impressed with Neil Gorsuch as a jurist and as somebody with the right temperament.But I thought, look, elections have consequences.The people of this country knew that this president was going to nominate conservative jurists, and so long as this person is qualified, not just intellectually and as a kind of legal scholar, as long as this person is qualified by temperament and by character, that there's no reason to reject this nominee.
Christine Blasey Ford’s Testimony
So please describe for me your reaction, your observations about Dr. Blasey Ford when she comes into that room and sits down and tells that story.
The first thing I thought is how enormously courageous, because in many ways, she was there alone.When you're in the jobs that we are, your families just kind of—they're like the frogs in the water that you keep turning up the temperature; they get in the water with you to begin with and don’t really know that it’s going to be boiling hot someday.And so they adapt, and they adjust.
When somebody comes into this kind of high-charged, partisan, political environment, their family frequently is, you know, is not leathered up to manage that.And I think the instinct was, I'm going to do this.This is what I thought.I'm going to do this, and I'm not going to ask my family to be here with me, because it’s hard enough for me to be there.And I think I thought she was enormously courageous, enormously persuasive.The point at which I felt certain that she was telling the truth, in its totality, you know, I find it interesting to say, “Well, this happened to her but not him,” I'm like, “Well, if you're going to believe her that it happened to her, then why not believe everything she’s telling you?She has given you no reason not to trust what she’s saying.”
And when Sen. [Dick] Durbin (R-Ill.) asked her, “How certain are you?” which is a good prosecutorial question, actually—he’s one of the, in my opinion, better trial lawyers in the Senate.And he asked her, “How certain are you?” and she said, “100 percent,” it was that moment where I said, “This happened to her, and this event occurred as she described it.”
That’s when you changed your vote?
Nope.Because I thought what—
Still thinking?
No, because we’re not done with the process, right?
Brett Kavanaugh’s Response to the Allegations
Right.
So you know, you don’t sit in the jury box and say, “OK, I've made a judgment now, and you're guilty.”You know, you have to listen to all sides.So I watched him, and pretty much during that process became very uneasy during the questioning from Sen. [Amy] Klobuchar (D-Minn.). And the anger level was—so now you're, “Did this happen?If it happened, is it disqualifying?”So you're asking yourself these questions.But then, when you say, “Temperament matters,” and you see someone who exhibits a level of rage that should never be exhibited by someone who is seeking a position on the highest court of the land, so OK.So then you're pretty much at that point where you’ve made the decision, and then it’s announced that there will be further investigative material.So you have to say, “OK, don’t prejudge.”You kind of know which way you're going, but you have to read the documents.And of all the things, if the—of all the absurdities of this process, to go into a secured room, which we did, to read documents, and the chairman refused to have 20 copies.So there's 20 senators reading a page at a time and passing it on.I mean, explain to me how that can be anything other than the theater of the absurd.You know, I almost grabbed them and walked out and said to someone: “Make copies.Make 20 copies of this so everybody can read them, you know, and take their time.”
And it’s the absurdity of the process.And …that wasn’t something that was on full display, but it was something that just reinforced how ridiculous this had all become.
McConnell is working against a clock during these whole hearings.He’s worried about the midterms in November.He’s got to rush it along.We’ve talked to lots of people who say it was driving him crazy.He didn’t want the Blasey Ford thing to happen, but he didn’t want it to look like he didn’t want it to happen, so they let it happen, but they negotiated fiercely.And all the way along, he’s very much managing from behind the curtain.Did you have a sense of what McConnell was thinking or feeling during this process?
No.I mean, what I was trying to decide is how was I going to exercise my responsibility.You know, I don’t sit around and worry about motivations.To me, I don’t control those.I control what decision I'm going to make.And I think that one of the maybe unintended consequences of all of this from McConnell’s standpoint is just as the Supreme Court has been a major voting issue for the Republicans for a number of years, he has made the Supreme Court a major voting issue on the Democratic side.And I think you see that in the response in the midterms.
Politicizing the Court
You mean Kavanaugh activated a sort of dormant Democratic blackout there?
Yeah.People who now will tolerate any deviation from liberal ideology to basically, you know, find some way to find political support for their choices for the Supreme Court.I predict the Supreme Court will become a major political issue on both sides when in the past, it hasn’t been a single voting issue on the left.
When Jeff Flake—
And that is really bad for the Supreme Court.This making the court the reason why people vote for president or vote for a senator is very bad for the court.
Because?
Because now all of a sudden, the court is about politics.It’s not about, you know, judgment on the law and the facts.It’s now you're being selected not because you are the best qualified as a legal scholar, but also the best qualified in impartiality.Now we are seeking promises to pick only partial judges, judges who have a political ideology that they’ll bring to the court.
Was that revealed in the anger of Kavanaugh as he was sitting there and talking about the Clintons and talking about a kind of liberal conspiracy?Do you feel like he revealed his politics in an inordinate way?
I think he was playing to an audience of one.I think, at that point, it wasn’t clear—and the president—remember, the president said, “Well, we’ll see how the hearings go.”It wasn’t clear whether the nominee was going to go forward.
Wow.
That’s what I think.I mean, I have no reason to—I mean, that is an assumption on my part, but I think there's much evidence out there that that’s actually what was happening.
So if he’s playing for an audience of one, how did he do?
Well, he won big.
Let’s talk, just for a moment, about the Democrats, because one of the things that I thought was unusual—we’re also doing a little bit about [Robert] Bork and a little bit about [Clarence] Thomas and [Anita] Hill.It was almost like this particular group of Democrats on the committee, when they were asking him questions and trying to bore in, they didn’t have, like, a coherent strategy.They each had their own thing they were trying to do.And it’s a difference than the way the Democrats were back with Bork, where there was a kind of plan, and here we go, and [Ted] Kennedy (D-Mass.)was leading it.And in they went.But here, they were going to rub—they were not picking up on the thread that was started by the one before.[There] was not that sense of a management of the Democratic side.I know that’s, you know, that’s the way Democrats can be.But still, what’s your critique of how the Democrats handled that moment?
Yeah, I don’t have a critique.I think everybody is—you sit on that dais, and you ask the questions that help inform your opinion.I thought at one point, I thought it was disingenuous for the Republicans to say, “You know, you all have made up your mind.”I wanted to say: “You all have made up your mind.None of you came into this with anything other than, you know, a preconceived notion.This was theater.It wasn’t a job interview.”
The Legitimacy of the Court
And the implications of that?
…The long-term risk is that you now have a court that only has legitimacy if it reflects your political opinion.And that is—you know, it’s always been political.I mean, I don’t want to sound like Pollyanna-ish, that, “Oh wow.”And I'm not someone who has ever sat down with a nominee and said, “How are you going to decide this case, and how are you going to decide that case?” …And if they answer that question, I'm not sure I’d respect them, because you should never answer a question on how you're going to decide a case until the case is in front of you.That is your job, to rule on that particular fact pattern, that particular point in time on the law.
There are things that I think are going to hurt the Supreme Court long-term, and that is this notion that every person who sits on the court had to graduate from Harvard or Yale, had to go to a prep school in the eastern part of the country, right?I mean, there's a lot of really good people that live west of the Mississippi, who are really, really smart, who just might be the right person for the court to bring a different perspective.
And, you know, one of the reasons why I was willing to vote for Gorsuch is, he was from the West.He understood water law.He understood—he had done cases that involved sovereignty.He was supported by the tribes because he had written very appropriately about sovereign rights of tribes.
And so, you know, I think that we've got to get out of this rut of thinking that only people from, you know, these expensive and elite schools are the only people who deserve a spot on the Supreme Court.You know, it was funny, because Lindsey Graham (R-S.C.) said, “Well, I was afraid he was going to nominate Judge Judy.”And I thought, what's wrong with that?No, seriously, you know.What do I know about her?She might be just a brilliant jurist.I mean, I see her on television, she seems to have a lot of common sense, you know.So it’s like, “Why are you dissing Judge Judy?” right?
Was it a hard vote for you to take?
Kavanaugh?
Yeah.
It was a hard vote politically, but it wasn’t a hard vote in terms of clarity of why I was doing it in my judgment.But I knew it was a hard vote politically.And I knew that it was one of those that would flame the fire of, “See?She is really with the other side.She is not objective,” when really, it was one of the most objective votes I've taken.
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