The FRONTLINE Interviews

Jeff Blattner

Former Senate Judiciary Committee Staff Member

Jeff Blattner is the president of the consulting firm Legal Policy Solutions, PLLC, and is an adjunct faculty member at the University of Colorado Law School. From 1987 to 1995, Blattner served on the Senate Judiciary Committee staff of Sen. Edward M. Kennedy.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 11, 2019. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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The Supreme Court Rises in Prominence

So if you could just, for a moment, place the world of the way confirmations have occurred historically, and all of that, before [Robert] Bork, and where is the Supreme Court?You don’t have to be really detailed about this, but you’ve got [Earl] Warren; you’ve got [Warren] Burger court; you’ve got a certain way that the court is now thinking about the Constitution in America.So set the stage in the four hours before Bork gets started, in terms of the Supreme Court and Congress.

Historically, the Supreme Court had been an institution that largely protected the status quo, largely protected the moneyed interest.Beginning in the 1930s, and accelerating with the Warren court in the 1960s, the Supreme Court upset the status quo and read the Constitution to mandate changes, the most significant of which, perhaps, was the desegregation of the South, but other changes as well, including reapportionment, changes in criminal procedures to protect the rights of criminal defendants.

…The court had become more salient to the American people over the course of the previous decades, and reflective of that, Senate confirmations had grown increasingly more contentious.You have Thurgood Marshall’s confirmation with Sen. Strom Thurmond (R-S.C.), who was on the committee during Bork, during [Clarence] Thomas and others, going after Thurgood Marshall, who was then solicitor general of the United States.And you have the [Abe] Fortas nomination to be chief justice, which failed in the Senate.It failed, in part, because of ethical concerns that arose about Fortas.But it was clear, from his confirmation hearings, that Senate Republicans were going to look into his views and his opinions as an associate justice of the Supreme Court.

So the court was growing more and more prominent in American politics, and people were becoming more and more aware of its consequences in everyday lives.Of course Roe v. Wade, which protected a woman’s right to choose, itself was a decision with profound consequences and profound effects for the American political system.So all of those things were swirling around in June of 1987, when Lewis Powell announced that he was resigning from the court, and set the stage for the Bork nomination.

Powell’s seat, very significant seat.Why?

Well, the court was divided 5-4 on many of the important issues of the day, just as it is today.And Lewis Powell was a moderate conservative from Richmond, Va., former president of the American Bar Association, head of the Richmond School Board, a conventional moderate—moderate conservative Republican, I think one would say.And the concern was that with an ultra-conservative nomination, it would decisively tip the balance of the court.

Reagan is president.

Reagan is president.He’s in the last two years of his presidency.The Senate had recently changed hands in the 1986 elections, and therefore the Judiciary Committee was chaired by then-Sen. [Joe] Biden (D-Del.). And the expectation was that if the nomination was one that might tip the balance decisively, that there would be a significant debate about it.

The Nomination of Robert Bork

When you guys hear that it’s Bork, place me there.How do you hear about it?What are your reactions?What is the senator’s reaction?

I was with the senator [Kennedy] at a hearing we conducted, he conducted, on fair housing legislation that was then pending in the Senate and ultimately enacted.He got a note that Attorney General [Edwin] Meese was calling for him, and he stepped out of the hearing into a phone booth in the anteroom in the Judiciary Committee and took the call, and Meese told him that it was going to be Bork.

Were you with him when he received the message?

Yes.

Did you see him on the phone?What was his physical reaction?

Well, Sen. Kennedy had, when Justice Powell retired on, I believe, June 23, issued a statement essentially warning the administration that if an ultra-conservative were nominated that it would be a heck of a fight.And when he got the call from Meese, it didn’t register in any physical way with him.There was a moment in the hearing, he actually went back to the hearing and recalled the witness referred to a pending announcement of a Supreme Court nomination.The witness was an assistant attorney general, and Sen. Kennedy said, “Well, I may have something to say about it.”

Were you guys ready?Was there a war-room mentality about it?

We were ready.Well, we had done research on Judge Bork’s views, and therefore were prepared in the event that it was Judge Bork.There was no war room.There was just a very small Judiciary Committee staff for Sen. Kennedy, as well as a couple of folks on his personal staff, and we had prepared.

So who is Bork at that moment?

Bork—history ultimately will judge who Judge Bork was.He was a member of the D.C. Circuit, the second most important court in the land.He had been a professor at Yale Law School, where he had had a profound effect on antitrust law, and he had also written very controversial articles about pending civil rights legislation and about constitutional issues.

The Case Against Robert Bork

Kennedy goes on the floor, delivers an unbelievably searing statement.How does the statement come about?Who writes it?What does he want to say with it?Are there arguments about how far he should go?Help me understand what was happening.

I had pulled together a list of points regarding his views, Judge Bork’s views, and sent them over to Carey Parker, who, like me, had clerked for Justice Potter Stewart and was a very scholarly speech writer.And Carey wrote the draft.I had an opportunity to review it and comment upon it, and of course Sen. Kennedy went over it quite a bit.And there we went.

How long did it take?How long was that process?

I want to say it evolved over a couple of days, but not terribly long.You’ll recall the nomination was—Justice Powell announced his resignation June 23.The nomination was made July 1, so there wasn’t that much time.It took a few days to get one’s arms around at least the first cut of Judge Bork’s writings.He had a very long and extraordinary career in the law, so certainly it wasn’t possible to review all of it in eight days, but to find and to communicate with other people who were looking [at] the things of greatest concern.

It’s very tough.Was there a worry about it being too tough, too whatever?

I don’t recall a worry about it being too tough.The stakes are incredibly high.The Supreme Court has the last word on the meaning of the Constitution and therefore the last word on justice, on many issues for Americans.And Sen. Kennedy felt quite strongly that the American people needed to understand what was at stake if Judge Bork’s vision of the Constitution took hold in America.

He, Kennedy, is at a kind of super-height of his powers, even though he sort of ran for president in the primary.But he’s really—he’s Ted Kennedy, and he’s going to throw all of his weight behind this?

Sen. Kennedy felt strongly that civil rights was the unfinished business of America.He was proud of the achievements of his brothers, and he was proud of the progress America made during the 1960s and 1970s and 1980s on civil rights.As Martin Luther King said, “The arc of the moral universe is long, but it bends toward justice.”Progress had finally been made after many years of the status quo, keeping African Americans as second-class citizens, allowing women to be second-class citizens, among other things.And Sen. Kennedy felt strongly that he didn’t want to turn back the clock, see the clock turned back to a time of greater injustice in America.

Were you there when he delivered the speech?

I was not on the floor.I had to close down the hearing that he and I had been attending, so I had walked back to my office and had the Senate floor on television and watched him give it from my office.

So the speech was ready and just waiting for that phone call from Meese.

Yes.

So in almost no time at all, he’s out on the floor.

Correct.…The thing to understand, what’s really critical to understand, is when a Supreme Court nominee is announced—and one can see this in every Supreme Court nomination—the White House and the administration make a supreme effort to roll out the nominee in the most glowing possible terms.And senators, who are often asked about a nomination minutes after the nomination is announced, are typically predisposed to say favorable things about someone without necessarily having done all of the work.

So it was very important for Sen. Kennedy to make it clear to his colleagues and to the country what was at stake on the Bork nomination, before senators inadvertently, or perhaps without adequate information, committed themselves to a position that they might later regret.

…What's the response to the speech?

The response was intense.It varied.The contemporaneous response that we heard was mostly from people, quote/unquote, “on our side.”I think advocates, Supreme Court—those who made their way trying to protect civil rights, civil liberties in the Supreme Court were obviously delighted.I think that some Democrats were concerned that the rhetoric was too hot.That was also reflected in some editorials.

Again, this was pulling the fire alarm so that people would send fire trucks, so that we could assemble for the debate that was to come.He made clear the stakes were high.Sen. Kennedy, who was an enormously successful legislator, won many battles because he wasn’t afraid to lose.He went all in.

Republicans we’ve talked to say they were caught completely flat-footed at this moment.They didn’t know that such angry energy would come their way so quickly, if at all, and that this was—I can't tell you how many people have used this phrase; you’ve heard it—the “original sin.”

Well, as Billy Joel said in another context, “We didn’t start the fire.”The Supreme Court has, as I indicated, become increasingly important over the decades of the Warren court and until the time of the Bork nomination and to this day.So if you go back and read the press commentary leading up to President Reagan’s announcement, it was very clear in the press that there was going to be a big fight if Judge Bork was nominated to the Supreme Court.I don’t think anyone at the time had any illusions about that.

Lessons of the Failed Bork Nomination

So one of the lessons—so we’re, of course, very interested in what are the after-action lessons that Republicans take from this moment.And they always talk—and Democrats.People always talk about how Bork should not have just gone on and on, should not have been so hubristic and should not have been whatever.You can use whatever words you want to describe what he was, but that he should have just played it a little calmer and a little cooler.And instead, in this national civics lesson that was occurring on television, much like the Watergate or the McCarthy hearings, in some way, here it is, this odd-looking fellow being especially—well, you used the adjective, whatever it is that he was.How did Bork, from your perspective, blow it?

I don’t think Bork’s rejection by the Senate was a result of stagecraft or poor preparation.I believe that’s insulting to the Senate and to the process that the Senate undertook.Bork was candid about what his views are of the Constitution.There is no reason why Supreme Court nominees, if they have settled views about what the Constitution means, should be permitted to withhold those views from the Senate Judiciary Committee.

The what I call the Supreme Court nominee’s Fifth Amendment, “I refuse to answer that question on the grounds that the issue may come before the court,” has absolutely no intellectual basis.To be sure, nominees should not, must not commit themselves to rule a particular way.But if they have a settled view during this critical moment, when they're before the Senate, there is no reason why they should withhold it.

Well, he didn’t withhold it.Any particular answers, question and answers that you recall as being really significant?

I think that there were a number of things that were significant.I do recall, and as has been chronicled elsewhere, that during Sen. Kennedy’s round, when he went through with Judge Bork all of the opinions, not necessarily legal opinions and cases, but all of the views Judge Bork had expressed hostile to civil rights, with each volley, then-Chairman Biden passed a note back to me and my colleague.The first one said, “7 to nothing.”The second one said, “14 to nothing.”The third one said, “21 to nothing.”I think there were four of them.It’s been a long time.

…One comment he made that I frankly thought was more innocent than other people did, is he was asked why he wanted to be on the court, and he said it would be an “intellectual feast.”And people took that as being somewhat valueless, somewhat arid, somewhat impersonal.Speaking for myself, I don’t believe he intended it that way.I think he was speaking as a former law professor and legal intellectual.But that got a lot of attention.

…The other thing a lot of Republicans remember about the moment that is a legacy of the Bork nomination is what they would call a war room, what they would call—the Gregory Peck ad is a favorite thing everybody loves to talk about.Others, some other newspaper ads, some publicity, the senator going out, Sen. Kennedy going out to civil rights groups and getting them het up about it, to create a kind of public outcry, they all say that’s kind of playing dirty pool, or it was really the moment of invention of such a thing in a formerly pristine process.Your thoughts about all of that?

I think each participant in the process is responsible for what he or she says, and so long as people are truthful and confine themselves to matters of real import, that participating in the process is what the framers contemplated.Senate confirmation is the last real input the American people have in how the Constitution by which we all live is interpreted, and to suggest that the American people should not be encouraged to participate in that process is fundamentally undemocratic.

The Confirmation Process

…It’s interesting.You know, one of the things—before we started to make this film, I didn’t know that much about the court.I'm interested;.I'm a journalist; I'm supposed to know about it.But I had no idea about, in the confirmation process, the extent to which a lot of the tactics are about the other senators, especially if you want to pull—especially in the bipartisan era, to the extent that it was a bipartisan era, pulling [then-Republican Arlen] Specter or somebody else over to this side, that it really is—a lot of it is directed in that way to getting enough votes to stop.

Sen. Kennedy devoted tremendous energy to persuading his colleagues.He asked me to prepare a book consisting only of Judge Bork’s writings, his most controversial writings on the most important constitutional subjects, and Sen. Kennedy hand-delivered it to about a dozen swing senators and offered to talk them through it.

Is that a kind of new thing at this moment?

I don’t think so.In some ways, it’s an old thing.I think people in this century don’t appreciate how much senator-to-senator communication mattered in the old Senate.I think the Senate today is at its best when senators are communicating with each other and sharing views and trying to work through problems.What Sen. Kennedy did in Bork simply reflected—he had been in the Senate, at that point, I believe 25 years, and his experience was, if you say to a senator, “This is serious.Here is why it is serious.Here is why you should take it seriously.And I would like to talk with you about it,” that’s what being a senator is supposed to be.It’s supposed to be the world’s greatest deliberative body.

Senators can deliberate together.And Sen. Kennedy, within the Senate, tried very hard to convince his colleagues.He gave a lengthy speech, not the speech that history has paid the most attention to, but before the hearings began, he gave a lengthy speech at Georgetown Law School, making his entire case against Judge Bork.The speech went on 30 or 40 minutes.And again, he gave copies of it to his colleagues, trying to persuade them.Think of it as kind of an opening statement in a trial: here is what you will hear, and here is how you might consider it.

As you watched it happening, when did you know Bork was going to lose?

You never really know until the vote is taken, but when we began to get reports of Southern senators hearing the opposition back home and reflecting it to their colleagues, we felt increasingly confident that the nomination would be defeated.

You must have been interacting with Republican staff as well.Were they surprised by the tenor of the hearings, by the way Bork was being treated?

I would say the hearings themselves were careful, thoughtful and deliberate.They were lengthy.There were many scholars who testified for and against the nominee.There were many people who testified about the nominee’s actions.There were many people who testified about his views.But Sen. Biden, then-Chairman Biden, did a very good job of setting a tone for the hearings that was careful, that was thoughtful and was serious.

Talk to me a little bit about Biden.Who is he at that moment?What is the importance of this role for him?What's happening with him?

It’s hard to believe, sitting here 32 years later, that Sen. Biden at the time was 45 years old.He, during the hearings, he ended his candidacy for president.He was running in the 1988 elections, and I can recall, after he withdrew, his coming back to the hearings and doing a very, very, very good job of conducting the hearings.And in a quiet moment, I said to him, “You know, what you’ve done in the last day, ending your campaign and then coming back and conducting these hearings, reminds me of what Hemingway said, that “Courage is grace under pressure.”

I thought Biden had showed tremendous grace in accepting a very tough outcome to that presidential campaign, and then going back and chairing the hearings without missing a beat.

Advice and Consent or Ideological Review

…Let me offer you a criticism of what has occurred or what occurred in that room over those days.A lot of people say a process that was once designed to assess the character and the qualifications of somebody, advice and consent, “Yeah, yeah, seems like a good guy; no horrible character flaws; certainly is an experienced attorney,” changed in some important way—and this is where the “original sin” idea comes from—aside from fistfights and food fights about it, changed in some important way, in the sense that the questions of ideology and politics suddenly entered the debate and the evaluation of a candidate, and that that was different in an important way than just character and qualifications.

I think it’s very important to understand that Supreme Court justices have the last word on the meaning of the Constitution.It takes two-thirds of each house of Congress and three-quarters of both houses of state legislatures to adopt a constitutional amendment.Justice [Antonin] Scalia himself said that the amendment process was far too difficult.So a Supreme Court justice is essentially a walking, talking constitutional amendment.His views or her views can shape the Constitution for decades.So to suggest that that should not be taken into account by the Senate in conforming a nominee for a life appointment is simply inconsistent with the structure of the Constitution.

Yeah, but maybe these guys—you’ve said they're very busy.They're fragmented.They're not legal scholars themselves.They're politicians.They're glad-handers.They're also oracles and thoughtful people in some ways.But how can they possibly judge and prevail on some of these things without just resorting back to their political positions and where somebody stands in the rough-and-tumble of Washington?

Senators have to make decisions about a lot of issues with imperfect information.If they're being asked to ratify a nuclear nonproliferation treaty, how are they going to know what a potential adversary’s intentions are?They rely on experts.They go to hearings.They listen to witnesses.They listen to their constituents.They read as much as they can.They learn as much as they can, and they make the best decision they can.The Supreme Court is no different in that regard.

Arlen Specter and the Bork Nomination Hearings

So I just have one other little question, and this is really about Specter and the importance of his examination of Bork.Just evaluate that for me, and just in a brief way.How important was it?How important was it to the Republicans?But how important was it in general to the hearing?

Sen. Specter was a very good lawyer, a terrific lawyer, and his examination of Judge Bork was a heavyweight fight, and it went many, many rounds.He was also the swing vote on the Judiciary Committee and a key barometer for other Republicans in the Senate who might be disposed to vote against Judge Bork, as six ultimately did.So of course, the room was incredibly quiet, and we all paid very rapt attention to Sen. Specter’s examination of Judge Bork.

Do you remember a key moment?Do you remember anything?

There was a long exchange, I believe, about the Brandenburg [v. Ohio] case on the First Amendment that may have made a substantial impact on Sen. Specter’s thinking.It certainly seemed like a significant moment at the time.

The Legacy of Bork’s Defeat

So he goes down.It seems like the level of anger, rage, vituperation from the other side, whatever that means, especially the conservative observers, is something we’ll cover in some way.The creation of the verb “borked” is yielded up for the society to pay attention to.And a group of campus conservatives whose advisers were Bork and [Antonin] Scalia, called the Federalist Society …—we will have talked to some of the earlier members who will tell us that the energy from that hearing, and what they perceived as what happened to Bork, fueled, in their minds, an impulse toward, “We've got to get it together; we’ve got to fight back.”

So Bork was defeated with six Republican votes.It was a bipartisan rejection of his nomination.After the false start of the Doug Ginsburg nomination, the Senate unanimously, unanimously confirmed Anthony Kennedy to the Supreme Court.Anthony Kennedy is not a progressive.He’s not even a moderate.He is a traditional conservative, and he was unanimously confirmed by the Supreme Court.So I believe the suggestion that the Bork nomination itself presaged nothing but bitter partisan battles is inconsistent, both with the bipartisan rejection of the nomination and the unanimous confirmation of Anthony Kennedy.

So when somebody like [Mitch] McConnell (R-Ky.) stands up and wags his finger at the Democrats, what's actually happening?

I think it is fair to say that the right was enraged by Bork’s rejection.I think they saw then a historic opportunity, in their view, to yank the court to the right fall through their fingers, so it’s understandable that they were enraged.The Federalist Society, which had been started prior to the Bork nomination, has grown into a very, very formidable and very, very well-funded organization to promote a particular view of the Constitution and to engage in thoughtful debate among conservatives with at least token progressive participation on the meaning of the Constitution.

I can't find fault as a constitutional matter with the Federalist Society organizing itself to promote a particular view of the Constitution.That’s part of our freedoms as expressed in the First Amendment.They have every right to do it.They're extremely well-funded.I think it’s an interesting question where their funding comes from, but there is no question that the right has organized itself in very, very formidable ways to work on nominations.

And they're using Bork as an inciting event, or at least at the time they were using Bork as an inciting event.And they still talk about it as if it was the original sin.

I think it’s fair to say that their rage about Bork, the right’s rage about Bork, has fed a narrative that is at odds with the fundamental rejection of Bork’s views by a bipartisan group in the Senate.But there is no question that that right-wing rage over the Bork nomination reverberates to this day.

The Nomination of Clarence Thomas

Let’s move to [Clarence] Thomas.

….What's the background for the selection?We’ll watch in this film, we’ll watch—it’s Kennebunkport.H. W. walks out.Standing over his shoulder is this guy a lot of us had never heard of, never seen, never whatever, African American guy.H. W. says, “He’s the most qualified,” whatever he says.And what happens to put Clarence Thomas in that scene at that time, and what do you all think about its implications?

The Thomas nomination came only a little more than a year after Clarence Thomas was confirmed for the United States Court of Appeals for the D.C. Circuit.That confirmation was not particularly controversial.Very few senators voted against Judge Thomas’ nomination.

…When President Bush nominated Clarence Thomas to the Supreme Court to succeed Thurgood Marshall, the African American community was divided about the nomination and took a pretty long time to come around, with some prominent exceptions, to opposition.I think that ambivalence in the African American community affected the response to the Thomas nomination.The Bush White House, understandably, emphasized Judge Thomas’s very, very difficult background.

Pin Point, [Ga.], the “Pin Point strategy,” right?

And his very admirable trajectory from there to Holy Cross and to Yale Law School.… Judge Thomas, after Yale Law School, went to work for a Missouri attorney general named Jack Danforth, who later became Sen. Danforth and who took a very strong personal interest in Clarence Thomas and promoting his career.Sen. Danforth was a very well-respected and thoughtful senator, highly regarded by his colleagues, and he was a very strong advocate for Judge Thomas.

So I think from the perspective of the progressives, there was great concern about Clarence Thomas, largely from his time as chair of the EEOC [Equal Employment Opportunity Commission], where he’d given a number of speeches that were concerning.But the ambivalence in the African American community, I believe, caused some hesitation among senators in really going all out on the nomination at the time.

One of the things we are of course examining from Bork to Thomas to [Merrick] Garland to Kavanaugh is lessons learned, whether they're the right lessons or not, lessons learned from the previous big moments.So of course the Republicans in this case create a war room to prepare Thomas.They get Kenny Duberstein involved in addition to Danforth.It feels like his instructions are the thing you were criticizing a little while ago: “Don’t say very much.”He wasn’t on the launchpad D.C. court long enough to really have a record-record, in that sense, and it felt like the reaction to what happened to Bork was Justice Thomas will not speak very much about his record?

There's no question that nominees have, since Bork, said less and less about what they actually think, a position I believe is not intellectually honest or by any means required.They shouldn’t promise the Senate a vote on any case or any issue.That would be completely inappropriate.But if a nominee has a settled view, there's no reason on earth that he or she should be allowed to withhold it.

Having said that, it’s up to senators to decide whether a nominee’s answers are responsive and sufficient.And unless they threaten to vote no because they don’t like the sufficiency of the answers, there's no other remedy.

The Anita Hill Allegations

He was going to make it pretty easily until the Anita Hill thing came along.Is that your head count?

I think he certainly would have made it.I think the Judiciary Committee voted before the Hill allegations became public, and the committee was evenly divided on the nomination.All the Democrats except [Dennis] DeConcini (D-Ariz.) were opposed; all of the Republicans plus DeConcini were in support.Sen. Danforth had done a very skillful job of lining up support in the broader Senate.He was very well respected, admired by his colleagues, so there was definitely a sense that this was going to be a very uphill battle at that time.

…How do you and Sen. Kennedy hear about the Hill allegations?When are you plugged in, and when do you know what's coming?

Just so you know, I literally don’t know exactly when Sen. Kennedy found out, because I don't think he found out—I know he didn't find out from me.

When you hear something like that, what are your thoughts?

I thought, and said, “Her life will never be the same.”

…Danforth’s response, what did he—you were at least talking to him back and forth.What was his response about it?

You have to give me a time on that because it’s complicated.

So when it finally becomes clear that there's a decision to be made, does she—

So you're now talking about after it leaked, because you asked me when I heard about it.

Right.So now we've moved: it’s leaked.People know about it.And the discussion that you may have had or heard between Danforth and others about that side of it, the Thomas side of the issue, what did they think?What did an old hand like Danforth think?

I was not at the time privy to Sen. Danforth’s innermost thoughts about what he thought.Sen. Danforth had very, very skillfully negotiated a time agreement with the majority leader, George Mitchell (D-Maine), and Chairman Biden for a vote on the Thomas nomination at a date and time certain.I believe it was to be on a Tuesday.The preceding Saturday, National Public Radio reported what became the Hill allegations.So when the Senate reconvened on Monday, all hell broke loose, and Sen. Danforth was visibly upset and shaken.I recall, and I don't know specifically the timing of this, he gave one speech on the Senate floor during this time where he was gesticulating so violently that his watch flew off.He was very upset.

This is a man who took an avuncular interest in Thomas, I think considered him family, so I'm not criticizing a human response.But he was extremely upset.Because of the procedural posture we were in, the Senate was in, it would take unanimous consent to change the date and time of the vote in order to have a hearing.And that's, of course, when the famous march of women congresspeople occurred.I was sitting in the back of the Senate when women members of the House came over, filled with indignation over their concern there would not be a hearing and that the allegations would not be taken seriously and were not taken seriously.

Hill’s affidavit, or I believe her FBI statement, one of them, had been circulated to the committee, I believe, the day of the committee’s vote on the nomination.So Sen. Mitchell, as I understand it, went to a few of his colleagues who were expected to support Thomas and said, “Will you vote no if there's not a hearing?”And he secured their commitments to do so.And he told Danforth that, and Danforth then agreed to a week delay in the vote.Still locked in, still locked in, but a week delay in the vote for hearings to take place.I mention it was still locked in and this was Danforth’s skillful negotiating because that prevented a filibuster.Didn’t know that, did you?

Uh-uh.Very interesting.What does it say to you?

What does what say to me?

Well, the—

I still have nightmares about it.

Huh?

I still have nightmares about it.

You do?

About the hearing, sure.

Why?

Oh, it was brutal.It was brutal.And Sen. Biden, I think, trying to maintain decorum and judiciousness had designated two [Democratic] senators to question the witnesses, Sen. [Patrick] Leahy who had been a prosecutor in Vermont, and Sen. [Howell] Heflin, who had been chief justice of Alabama.And I think they were understandably reluctant to really cross-examine Judge Thomas.Judge Thomas was permitted to speak first and then to speak after Professor Hill.He, of course, gave the famous “high-tech lynching” speech, and I think there's no question that in that room, race politics as well as gender politics affected the outcome.

In what way?

I am very conscious of the fact that at the time it was all white men on that committee, and I think that there were probably senators who were really reluctant to cross-examine Judge Thomas about the allegations in a thorough way.And that's unfortunate, but I believe—

Tough for Sen. Kennedy, too, given what was happening with his nephew and his own reputation in lots of ways.

Yes.

Yes, big problem for him?He had to kind of hold back?

Again, Sen. Biden had asked Leahy and Heflin to take the lead.There was a point, and I want to say it was on the third day of the Hill-Thomas hearings, when Sen. Kennedy had finally had enough.He couldn’t take it any longer, and he erupted at Sen. Specter, as you can see on the videotape, and said, “We’ll have no more talk of perjury,” basically.Sen. Specter, who played a different role in Thomas than he did in Bork, had implicitly suggested that Professor Hill had committed perjury entirely without basis, and Sen. Kennedy’s frustration at that moment I think became apparent.

Sen. [Alan] Simpson (R-Wyo.) and [Orrin] Hatch (R-Utah) are especially, intensely difficult, tough.Certainly Simpson on Anita Hill feels like a mismatch of the highest order in lots of ways.What's your critique of his actions at that moment?

Without referring to any specific senator, I think the Republican senators on the committee used innuendo, used shards of misleading information to create an illusion, to create an impression, of the witness.A hearing of that kind should be confined to facts on which one has a real basis for asking questions.And the use of innuendo, the use of fantastic—and by “fantastic” I don’t mean “good”; I mean “fanciful,” suggestions unrooted in reality—I think reflected very badly on the committee and on those senators.

No Hearing for Merrick Garland and Changing Senate Norms

…The follow-on question that suggests itself is OK, Merrick Garland, who almost everybody could appreciate as a moderate guy, there's no way Mitch McConnell was going to let the Republicans even meet with the guy, let alone have a vote on the guy.And [Brett] Kavanaugh, the second Kavanaugh is announced, all the Democratic members of the caucus were saying, “An evil person; I will never vote for this guy—under no circumstances,” right?So we have come to that place, it seems like in just the last few years, what I could imagine is a clogged, never-filled series of seats, right?

I believe the Senate’s failure to take up the Garland nomination, to afford him a hearing, was a breach of a constitutional duty.It’s not a duty that can be enforced in a court of law, but I believe that each of the branches of the government has a duty to make the other branches work.If Congress said, “Well, we're angry about a Supreme Court decision; we're not going to provide appropriations for security for the Supreme Court,” the Supreme Court couldn’t function.The Constitution clearly requires a degree of cooperation among the branches.

Second, there is a statute that says there shall be nine members of the Supreme Court.So the Senate didn't act.Left the seat vacant.Didn't even try to consider it.One could argue, and McConnell did, that no action is action; that, you know, we don’t have a duty.

Now, I was on the floor with Sen. Kennedy in early 1988, an election year, when Anthony Kennedy’s nomination was unanimously confirmed.1988 was an election year; 2016 was an election year.Anthony Kennedy was confirmed by a Democratic Senate; Merrick Garland’s nomination never moved.

What does that tell you?

It tells me that the norms by which the Senate ran as an institution, something called comity—not comedy, but comity—mutual respect, an allegiance to the Constitution, an appreciation that the institution has to work for the American people, that those norms have broken down, and it’s going to take a tremendous amount of work and commitment and sacrifice of short-term political gain in order to begin to restore those values in the Senate.

The Nomination of Brett Kavanaugh

…But now here we are, 2019.I'm now asking you a question based on your experience and looking at the arc from Bork to Kavanaugh.… Let’s start there, you and I, and talk about what we saw play out over the Kavanaugh hearings and how that fits in the continuum of Supreme Court confirmations.

I think there were several things at work in the Kavanaugh nomination.And let’s be fair here and acknowledge that the [Neil] Gorsuch hearings were relatively uncontroversial.There was broad opposition to his nomination within the Democratic caucus.Judge Gorsuch, when he was on the 10th Circuit, had written some opinions that suggested a very narrow view and one hostile to the views held by many senators.

But that was in many respects a typical confirmation hearing.I wouldn’t say that there was anything all that noteworthy about it.I will say they continued the trend I complained about, that nominees say little about their views even where they have views, and I believe there's no real justification for that as long as they don’t promise to decide an issue or a case in a particular way.

Kavanaugh—there were really three things at work in Kavanaugh.The first is we're in a very difficult constitutional moment in the country with a president who is challenging our constitutional norms in many ways and challenging our institutions in many ways.And obviously that creates a great deal of suspicion among the Democrats.

Second, the committee process broke down in ways that reflect a continuing deterioration.When we did the Bork nomination, we had access to all of his papers when he was in the Department of Justice.We made requests, and those requests were honored.The requests were worked out in a bipartisan way with the Republicans on the Judiciary Committee.That was not the process followed in Kavanaugh.

So my understanding is that only a small fraction of Kavanaugh’s papers were turned over to the committee, and the process by which those papers were selected was subject to criticism for being a partisan process.So that created a great deal of concern.

And third, with Kavanaugh, his views about special counsels and independent counsels, his views about a strong presidency caused a great deal of concern among committee Democrats who fear that we are headed for a constitutional crisis with this president, and who have reason to suspect that Kavanaugh’s views on these matters may well have been a factor that prompted his nomination.

The Legitimacy of the Court

…Given what happened right before our eyes, what does it tell us?

I think the Supreme Court has no army.It has no police force to speak of, other than the marshals.It relies largely on the other branches acquiescing in its decisions.There are famous statements about, “The court has made its decision; let them enforce it.”The court relies on legitimacy.It relies on the faith of the American people that it’s reaching its decisions neutrally, without regard to parties, and in a manner dictated by law.

The more narrow the vote, the more questionable the nomination, the more damage that does to the court as an institution.And I think much of the Constitution is devoted to protecting the interests of minorities, and those minorities might be religious minorities; they might be racial minorities; they might be holders of views on one side or the other on the spectrum that are unpopular.And when the court intervenes to protect the rights of those, those decisions are necessarily unpopular.That's why they have life tenure, so they can be independent to protect the rights of everyone.If the court as an institution loses that core legitimacy, then we're really in trouble.

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