The FRONTLINE Interviews

Jamie Gorelick

Former Deputy Attorney General

Jamie Gorelick is a lawyer who served as deputy attorney general from 1994 to 1997.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on December 11, 2018. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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Jamie Gorelick

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The Death of Justice Scalia and Mitch McConnell’s Gamble

When Justice Scalia dies, it doesn’t take very long after he does for Mitch McConnell (R-Ky.) to step up and say, “The president doesn’t really need to send me a nominee, because we won't be confirming anybody.”Were you surprised by (a) the speed of the announcement, and (b) the announcement itself?

I was really surprised that Mitch McConnell did that, and I was really surprised that the rest of the Republicans in the Senate seemed to be saluting it.It seemed like a very political announcement in the context of a Supreme Court nomination process, which had heretofore not been highly politicized.

Had you ever heard of something like this?I don't remember it ever happening before.

I had never heard of anything like this.

So why did he do it?

I think that Sen. McConnell did it for the very purpose of maintaining a Republican majority on the Supreme Court.And that is not the way we should be thinking about the court.

When he makes the announcement, he's already been in the business of slow walking.Republicans have already been in the business—he's at the helm—of slow walking a lot of President Obama's agenda, certainly in the Appeals Court- and District Court-level appointments.They've been held and slowed way down.And now this moment, what does it tell you about the Republican Party's—at least in the Senate—and McConnell’s strategy, long-term strategy, about the Supreme Court?

It’s been a tenet of Republican theology, if you will, that it is very important to, in their words, retake the courts for the Republican Party.The Federalist Society has been very organized and very tenacious in training up and vetting a group of people who could become judges, placing them on lower courts, advancing them.And they are meticulous in their approach to control each and every seat.

I mean, if you look back in history, whenever a Democrat is president, the Republicans say there's no need to fill these vacancies because there's not enough work.And immediately, when the presidency switches, now there's too much work, and vacancies need to be filled.So it used to be a little more subtle.But now it's really not subtle at all.

I know that the people who were in the Obama White House and responsible for this were extremely frustrated by the unwillingness to confirm what were, for the most part, very moderate and mainstream nominees.And I saw that myself, even in the Clinton administration, and it only got worse during the Obama administration.

So it's a part of the larger strategy, as your party shrinks, as the Republican Party shrinks, and the demographics seemed to favor the Democrats, to at least see if you can seize control of the courts.

The Republican Party has a view of how judges should rule on certain types of issues.It's by no means all the issues, but a number of them where there are disputes, if you will, but an ideology.And it has been a really high priority for Republicans to take control of as many judicial positions as possible.Indeed, Republicans vote on the basis of the judiciary in a way the Democrats—alas, I say this as a Democrat—do not or have not heretofore.Now maybe that will change.

The Failed Nomination of Merrick Garland

So when the president is considering, or President Obama is considering, candidates for this position, are you asked your opinion in any way about who would be a good person to fill the vacancy?

I was not asked my opinion on who should fill the vacancy, but everyone knew I had to be one of the biggest supporters and strongest admirers of Merrick Garland.And I did know that he had been, in essence, runner-up a couple of times.A number of people had told me he was the “in case of emergency, break glass” candidate.So I assumed he would be in the mix.But nobody actually asked me.

Who is he?

Who is Merrick Garland?

Yeah.

Merrick Garland is, for the most part, a career public servant.He grew up in a middle-class household in Chicago.He was a star performer in his high school.He was a decorated debate champion.I met him in college.He was two years my junior.And we became fast friends on any number of issues and stayed friends since he was 18 and I was 20.

Were you at that Rose Garden ceremony where President Obama announced him?

I was not at that ceremony.None of the people who would have been called to that ceremony, whose presence there would have been a clue to who the nominee would be, were there, except for his own family.His wife called me immediately before—I happened to be in New York—and said, “Watch this space.”So I knew it was happening just before it happened.

…So in his remarks, he was?

If you want to know what Merrick Garland's reaction was to being nominated to the Supreme Court, you just have to look at his remarks in the Rose Garden, where he clearly conveyed that this was the biggest honor of his life.He talked about his parents, his heritage, what the Supreme Court had always meant to him as a lawyer.He is a lawyer's lawyer.He is one of the most admired jurists in the country, the chief judge of the D.C. Circuit, which is hugely important to lawyers and to judges in the country.And really, nearly everyone in the law is an admirer of Merrick Garland.So he was the, if you will, he was the consensus nominee across party lines.

…And how does Garland feel about being—how does the judge feel about being that character in that particular drama?

I don't know how he felt about being in this position.I think he thought, as the rest of us did, evidently naively, that the system would work as it's supposed to; that when people met him, they would find it very difficult to say that they wouldn't give him a hearing, and that if the American people saw him in a hearing, they would think it dirty pool, bad politics, bad for the country to deny this person a Supreme Court seat simply because he was nominated by President Obama.

What does it tell you about McConnell and his leadership that he not only encouraged but basically told a lot of his members, “Do not even meet with Judge Garland”?

The Republican Party was very disciplined in executing this strategy.

And your thoughts about that?

Well, I don’t think this is good for the country, and I don't think it's good for the courts.I particularly don't think it's good for the courts.The courts rule and expect their decisions to be obeyed, based upon a sense among the public, fostered by our Constitution, that they are the ultimate arbiters.They don't have a standing army.They have no way to enforce their rules.Their rulings are enforced by the majesty of the courts.If the American public comes to believe that this is just another political body, that you can count a Republican vote or Democratic vote, that this is a process that is easily manipulated by politicians, it hugely diminishes the courts and their ability to perform their function under the Constitution.

When he's in this limbo, and it really had to have been extraordinary for him, what was it like for him, do you think?Did you talk to them about it?

I talked to him throughout the process.I mean, there were a lot of things to do in anticipation of hearings.There are forms to be filled out.There are visits to be scheduled.He visited everyone who would meet with him.There was hearing preparation.And really, until the end, meaning until the election eve, all of us thought that he was going to be on the Supreme Court.

And when did it become clear that he wasn't going to make it, that it wasn't going to happen?

The election eve, when Donald Trump was elected and Hillary Clinton defeated, our last hope, which was an expectation, which was that President Clinton would fulfill the commitment that had been made by President Obama with an excellent nominee.I mean, giving up no quality whatsoever.You know, when she was defeated, that dream ended, and all of us who were very much in his corner and who thought and thought for decades that he would make a superb Supreme Court justice, were just crushed, crushed by that.

I mean, I was personally very unhappy, to say the least, by the election results.I had been a very strong supporter of Secretary Clinton.But on a personal level, the consequence for both Merrick Garland and for the Supreme Court really weighed on me.It was a very upsetting moment in my life and in the lives of, I think, everyone who had participated in trying to get him on the Supreme Court.

…How would the court be different?

Well, Merrick Garland is a consensus builder.You can see that on the District of Columbia Circuit.When he became chief judge, the court was split in many ways.There were big arguments that divided members of that court, and today, the court is an extremely collegial place.They reach consensus in many of their decisions.And where they don't, they disagree in a civilized way.That is, in large part, due to him.

So I think that if he were on the court, it would be a more a collegial place.He is a moderate man, and he would have been a moderate justice, helping the court maintain the middle that has been tugged at—let's put it that way—by recent events.

The Rise of the Federalist Society

You've been around long enough to have watched the rise of the Federalist [Society], first as an idea going all the way back to the post-Bork period and coming all the way up into now.Trace that growth and why you think it's been so successful.

The Federalist Society has been enormously successful in part because it has been so organized in achieving its goals.It articulated ideas, judicial philosophies that differed from the liberal and mainstream ideas.It created a coterie of law students who followed those Federalist Society ideas.It trained and advanced the careers of people who could become judges, and then put those people through that relatively narrow funnel.

If you look at the Democratic Party and its judicial choices, it's a much broader range.You know, an Elena Kagan or Merrick Garland were not all the way in the progressives’ corners.And I think there were big debates, as far back as I can recall, over each and every nominee, including when I was deputy AG.I remember those debates.The Federalist Society has basically said to its supporters on the Hill, “Here is the group you need to choose from.”And while there are differences among them, they're very modest relative to the differences in the Democratic Party.There is no apostasy.Nobody says: “I on the Republican side, I don't want someone from that list.I want to look at a broader, more centrist group of potential nominees.”It just doesn't happen.

And so, you know, you have to be admiring of what the Federalist Society has done.It has done it by highly disciplined approaches.It has nurtured careers.It has nurtured political relationships so that its nominees are the ones who actually end up on the courts.

Donald Trump’s Nominee List

So when Don McGahn pulls candidate Trump over to Jones Day [law firm], and they sit with him and [Federalist Society’s] Leonard Leo and others, pass him a list that says, “Here's who we think could be your Supreme Court nominees,” even though it goes through a few permutations, Trump, who needs the conservative vote, needs some bona fides, says, “Thank you.”It’s not something I could imagine Hillary Clinton receiving from some group of Democrats in some way.

Well, if Hillary Clinton had been elected, she would have received hundreds of lists, not one list.She would have received all kinds of ideas about whom she should nominate, and they would have come from friends of hers and supporters of hers across the spectrum.I mean, one might say to someone like me, “Why didn't you organize yourselves as the Federalist Society did, on the right?”As I said, I admire what they did, given what they wanted.There was a very strong alignment between what the base of the Republican Party's voters wanted, what the Federalist Society could deliver, and what elected members of the Senate and, in this case, in the White House were prepared to do.The Democratic Party is much more cacophonous, much more varied in its views.And I think that that approach is the right one, but it might look antique right now.

And Trump certainly was happy to receive the list apparently, and eventually pull from it.

Well, candidate Trump did a smart thing, which is that he listened to the experts in his party, who had spent years grooming and vetting a list of people.He knew that if he adopted that list, it would buy him political support.And he knew that the people on the list were vetted for their intellect and for their résumés.So, you know, you might say that his judicial nominees, at least at the highest levels, have been the most vetted of any of the candidates that he has put forward for any position, because there was actually a vetting mechanism.

The Nomination of Brett Kavanaugh

…Did you know Brett Kavanaugh?Did you ever come across him?

Yes.I know Brett Kavanaugh.

So when he's nominated, what did you think?

Well, I like him personally.He's a neighbor.And I've known him for a long time.He's a very personable, easy-to-get-along-with person.And I think many people would say to you that the Brett Kavanaugh that they saw in the hearing is not somebody that they had seen before.That kind of agitation that he showed was never, never evident to me.And you know, he has friends who are Democrats.He's, as I said, he's easy to get along with and collegial.So my view was, you know, I've described this narrow band of acceptable nominees that the Federalist Society has produced over the years, and no Republican president, in my view, right now is going to go outside that band, at least not in the current Republican Party.And given that, I thought that Brett Kavanaugh was a good nominee for, you know, given the givens.

Politicizing the Court

Let's talk a little bit about something you were talking about anyway.Sort of what is the Supreme Court now, the politicized court?Some people say this is a tremendously important confirmation that just happened, that it's different; that Kavanaugh’s being put on the court is different than almost anybody else who's come on, partly because of what happened to him and what he came to represent, and what he argued for and about.

You know, again, I'm not prepared to talk about Justice Kavanaugh or the impact that he will have on the court.I will simply say that that Chief Justice [John] Roberts has his work cut out for him because of the perception that the Supreme Court is simply a group of people who are carrying out the political wishes of the political branches.And that would be a shame, a real shame for the courts, if that were to continue to be the belief of the American people.

Is that why this matters?I mean, what is it that the court could do?Why does it matter, really?I mean, issues of constitutionality.But in terms of pure politics, is there much they can affect?

I'm not sure I understand your question, but I would simply say this.The structure of our Constitution vests in our courts the ultimate decision making when there is a disagreement between the branches or when there is a significant issue of law to be decided.The decisions of that court will be respected only if people believe that the members of the court are bringing to bear something other than their political party.And right now I think that proposition is up in the air.So I think the most interesting thing to watch about the court in the next couple of years is how the chief justice addresses that perception.

You know, you've heard him say, in an extraordinary moment, there are no Democratic judges; there are no Republican judges; there were just judges who are trying to do their best and provide justice to every American.That was extraordinary.And I think he is saying that for a reason.His branch of government—and it is his; he is the leader of that entire branch of government—is in peril.And if you go to the Supreme Court, and you see the portraits of the Supreme Court justices, and you study the law, you know that people refer to eras of the law as the name of your chief justice: the Warren court; you know, the Rehnquist court.This is the Roberts court, and he has his hands full.

Just to go back on this point, how important—to go back to what we're talking about at the very beginning, when Scalia dies and McConnell makes the decision that he's going to not confirm any nominee, how important is that moment in changing the politicization of the court in setting a precedent of what a Supreme court nomination is about?Just what are the implications of that in that decision?

The decision not to even have a hearing for a duly nominated judge on the rationale that we need to preserve the Supreme Court from being politicized, which was, in essence, the rationale, stands on its head the normal process.The normal process is a president nominates and a Senate confirms, and the Senate simply said it wouldn't do it.I think that's an extraordinary moment in our history, and I think it creates a real problem for our courts.It creates a real problem for the division of responsibility outlined in the Constitution.

And I am, as a practicing lawyer, I am worried about the courts and how they are viewed, because if they do not have the moral authority, they have no authority.If they are viewed as mere pawns in a political system, there is no reason for controversial decisions to be respected and obeyed.I mean, if you look at Brown v. Board of Education, the court was saying to the country, “You have to do something quite different in many parts of this country than you have ever been done before.”They didn't need an army to enforce that decision.That decision was simply saluted.And I am really worried, and I know many, many lawyers are worried, that the current position of the Supreme Court is very fragile and that there is a very significant possibility that that majesty is lost, and it will be very hard to regain it.

Obama’s Limited Number of Court Appointees

One other question, which is in that period from 2008 to 2016, when Obama's having so much trouble filling judgeships and getting them through the Senate, there's a lot of criticism of the Obama administration that they don't make it enough of a priority, that they're not fighting partisan fire with partisan fire.What's your understanding of how the Obama administration dealt with the challenge of getting judges through, and is there criticism there that is justified?

The criticism of the Obama administration, and indeed the criticism of the Clinton administration, was that they did not fight hard enough for the courts, that it wasn't a priority.That is, in part, traceable to the fact that Democrats do not vote or have not heretofore voted, based upon the courts, in the way that Republicans have.So it's about leadership, but it is also about the voters.

And it is quite possible that that will change now.But a lot of us lawyers expected those two lawyer presidents to fight for the judiciary harder than they did.I think the people who held those jobs in the White House, in both administrations, would say that they fought very hard, but it was not the highest priority, and it was certainly not the priority that Republican presidents have given to that same set of issues and decisions.And that's on us.That is on us.

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