The FRONTLINE Interviews
Laurence Tribe
Law Professor, Harvard University
Laurence Tribe is a constitutional law professor at Harvard Law School. Tribe has argued more than 35 times before the Supreme Court and testified before the Senate Judiciary Committee against the nomination of Robert Bork to the Supreme Court in 1987.
This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 29, 2019. It has been edited for clarity and length.
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The Nomination of Robert Bork
In that period right before [Robert] Bork is nominated by President Reagan, give me a sense of what the issues were.It’s the final years of the Reagan presidency, the worry about a conservative court, but what was in play just before that nomination?
Well, the sense that many people had, and I had written about it, was that it was an aging court, and there were going to be a lot of resignations.It was a court that was quite well-balanced in the sense that there were a lot of 5-4 decisions with Justice [Lewis] Powell in the pivotal center seat of the court, in terms of leaning one way or the other, issues about affirmative action, about the limits of free speech, about campaign money—that was becoming important—and the whole question of whether Roe v. Wade and the idea of fundamental reproductive and sexual rights that were not spelled out in the Constitution, whether they would survive.It was not thought to be certain.
So a lot seemed at stake.Not so much the clash between presidential power and the legislative branch—that was not really front and center—but social and cultural issues were becoming extremely important, and issues of racial division were becoming important.So it was quite clear that when Powell left, and there were rumors that he really didn’t want to spend the rest of his years on the court, there would be a big fight, and, of course, [that] turned out to be the case.
You had a sense that it might be Bork.His name kept popping up anyway.
Right.He was clearly the intellectual force of conservative legal thought.He was a brilliant lawyer.He was a brilliant law professor, mostly in antitrust law.But he had written some interesting pieces about free speech.There was, of course, the question of whether his history in refusing to resign and instead firing Archibald Cox would somehow haunt him.But the question of whether the whole issue of judicial philosophy would be taken up as seriously as it was really was not on most people’s radar screens.
I had thought that that would be a moment when the country would probably take stock in what had happened in the years since the [Earl] Warren court, because there was a growing sense that the court was playing too large a place in American life on the part of some people, and on the part of others that it wasn’t doing enough, that it had not done enough about economic inequality in cases like school finance cases; that it had not done enough in terms of the rights of various marginalized populations.
So the country was becoming more and more divided.And the Federalist Society had really become an important force.The agenda of conservatives was very much focused on changing the country by changing the court.Liberals hadn’t tended to think that way.They had thought that we’re not going to make much social or economic progress through the judicial branch, and all we need to do is to make sure we don’t get a court that goes back to the bad old days of the 1920s and 1930s, where socioeconomic legislation was closely scrutinized and often invalidated, rules about the safety net.We just want to make sure we don’t have a court that returns to the period of the Lochner [v. New York] decision, which found the court invalidating labor laws protecting workers from having to work too long or at substandard wages, because that was thought to be a violation of fundamental rights of contract and property.As long as we didn’t go back to that, we were fine.We didn’t need an activist court: That was the view of a lot of liberals.
Nonetheless, there were a lot of issues on which the whole notion of activism versus restraint was a matter of perspective, matter of the angle of vision through which you look at it.I mean, was it activist for the court to say that states couldn’t ban contraception in 1965?Some people thought so.In the decision of Griswold v. Connecticut, which I remember came down while Archibald Cox was my teacher, long before I ended up with the chair that he had at Harvard, that decision came down.And even though he was a sort of patrician New England conservative, he thought it made a lot of sense for the court to say that, even though the Constitution doesn’t spell out a right to contraception, that there are some things taken for granted by the premises of the Constitution.
And then there was really a large movement that said, “No, the court has no business inferring rights from those that are written down,” and the champion of that, of course, was a justice—later Justice [Antonin] Scalia.But I'm going off on too long a tangent.
Ted Kennedy and “Robert Bork’s America”
That’s all right.So the first shot of what will ensue: Bork is nominated; [Ted] Kennedy (D-Mass.) goes to the floor.Set that up for me.What was Kennedy doing?Did you help him write it, the “Robert Bork’s America”?
Well, I knew Kennedy, but I had nothing to do with that speech.And as soon as he made it, I thought it was political genius but jurisprudential danger, because he created an impression that Robert Bork really liked the idea of coat-hanger abortions, that he liked the idea of racial separation of neighborhoods, whereas the fact is that Bork’s philosophy might have led to many of those consequences, but to demonize him the way my friend Ted Kennedy did I thought was going to work politically, but something that people would come to regret later.And, of course, I think that’s what happened, because it rallied a lot of academics and scholars and moderates to Bork’s side, thinking that he had been improperly caricatured by Ted Kennedy.
And the problem then was, could one lower the temperature?Was it possible to make a responsible, calm argument about what the problems with Bork’s philosophy might be?And that’s where Joe Biden (D-Del.) tried to get my help, I was in Salzburg, [Austria], at the time, when Powell left the court.And Biden, whom I had barely known at the time, called me and said: “Larry, we’re going to need your help here.This is a moment to help educate the country.What is wrong with Bork’s philosophy?”Joe had taught some constitutional law but hadn’t really deeply immersed himself.And I said, “Well, I think that under his approach to things, racially restrictive covenants would not be struck down by the court.He had been critical of the decision doing that.States would be able to ban not only abortion, but contraception and everything on the spectrum in between.”I began spelling out what the more regressive forces of American society could do without the break that a court that was more centrist, with Powell on it, could provide.
So those were the stakes.
Those were the stakes.They were enormous.And I think Biden was energized by Kennedy’s speech on the floor, but realized that that wasn’t enough; that that would simply rally the troops on the left, but that there was a very large center that was likely to go along with Bork, because he was clearly qualified; he was intelligent, and he was articulate.The president was entitled, in some way, to select someone with his ideological perspective.How could we educate the public?That was the question.How could we educate the public about what Bork’s philosophy, if it came to dominate the court, or at least became very powerful on the court, what it would mean for the lives of ordinary people.So Biden asked me to spend time with him explaining those issues.I ended up playing Bork, how would he answer certain questions.And I guess you know the rest.
The Campaign Against Robert Bork
Yes, I do.The Republicans, of course, say now …they were kind of caught flat-footed.They fully expected the old advice and consent to kind of roll by, and that would be it.That the Democrats had, in fact, were loaded for bear and waiting for Bork—there were ads starring Gregory Peck; there was, you know, obviously everybody was ready to go.What do you think about the effort, the sort of war-room efforts that people talk about?
Well, I was not part of it.And when I did end up testifying for a few hours about the dangers of Bork’s philosophy, I felt a little bit uncomfortable being surrounded by the warriors, as it were.I mean, I tried to be objective about what Bork believed.And although I thought it was not a crazy set of beliefs, I thought it was a set of beliefs that were fundamentally inimical to the way Americans understood their Constitution, and I believed rightly understood their Constitution, the fact that there were all these ads undoubtedly made a big difference in terms of the final vote.
So it’s the ads and it’s the war-room mentality, the political side of it, not the legal side.
Right.And the war-room mentality made a big difference, I think, and made me feel a little bit uncomfortable, because I was trying to lay out, you know, what Bork’s philosophy would mean to ordinary people and their lives.And I was being pummeled from the left by saying: “You're not being strident enough.You should adopt Kennedy’s language.You should depict Bork as an ogre.”And I was certainly pummeled from the center and the right by saying: “Don’t you think that Bork’s philosophy ought to have some representation on the court?There's nothing disqualifying about him.”And I kept saying: “Well, that’s not my job to decide.My job is to help describe what Bork’s views meant and why I thought they were so dangerous to the country.”
So it was an awkward time.But I said what I believed.I had conversations at the time with Alan Simpson (R-Wyo.) and Orrin Hatch (R-Utah), and they basically said: “It’s really too bad that you're doing this.The ideal court would have a Robert Bork on it and a Laurence Tribe on it, and if you just hold back, then maybe that will happen someday.”And a lot of people told me I was blowing my future.But I didn’t see my future as having a particular trajectory.I love teaching.I still do.I just wanted to say what I believed.It was probably a little naïve.If I were more of a schemer, I would have said: “I'm really blowing it.In terms of the way conservatives and Republicans are going to view me in the future, I'm going to be radioactive.”That’s what everybody told me.And I thought, well, maybe, but I have to say what I believe.
The Bork Hearings as National Spectacle
…There had been the Army-McCarthy hearings; there had been the Watergate hearings.And now there were the Bork hearings.It was like the very first reality TV show about the court.
But I didn’t know.Maybe some people did, but I didn’t know that it would become as huge a national spectacle as it was.When we began learning that people were really glued to their screens, I began to be at least a little bit nervous about my own role.But I was one of the early witnesses.The real star of the show was Robert Bork himself.I mean, it’s not that any of the critics defeated him; he basically defeated himself through some of his more dramatic proclamations.I mean, “Why do you want to be a Supreme Court justice?”And his answer, “Because it would be an intellectual feast,” you know, gave people the willies.It really seemed like—
Why?
Well, because they wanted empathy.They wanted someone who would understand the problems of people, not someone who would gobble them up for dinner….It really conveyed the image of a kind of heartless abstraction.And it didn’t help that he had this beard and that he had this gruff voice, and he wasn’t made for TV.That didn’t help either.But the places where people really got scared were where he began answering questions about individual privacy and the existence of rights beyond those that are enumerated.I mean, it was a national education.
People hadn’t heard of the Ninth Amendment yet.But the Ninth Amendment, which was inserted really as an answer, by James Madison, to the concern that the enumeration of particular rights in the Bill of Rights, like speech and religion and the right not to have your home unreasonably searched, that the enumeration of those rights would be kind of an exhaustive list, that if we write them down, people will assume that’s all there is.So the answer was the Ninth Amendment, which said the enumeration of certain rights shall not be construed to deny or disparage the existence of others.
I thought that was a terribly important reminder that the rights that are enumerated are not exhaustive.I sort of had a lot of dialogue with Joe Biden about that, and he, too, agreed that was absolutely central.So he asked Bork about the Ninth Amendment, and when Bork said, “It’s just an inkblot; it doesn’t mean anything,” I mean, that was an awesome remark.It certainly reverberated throughout the country.You mean our rights don’t mean anything?They're just inkblots unless you write them down like a laundry list or a shopping list?That really turned a lot of people off.
And coming from him, when he already said that it was—I don’t remember whether he said it before or after, that he wanted to be a Supreme Court justice because he wanted to feast on the intellectual stimulation of answering these abstract questions, it all combined to really turn the country off.The country basically had not had anything like a referendum on the basic concepts behind the Warren court revolution, the revolution that treated the court as an ally of the oppressed, rather than as it had been, through much of our histories, an ally of those with power, wealth and property.
The Warren court revolution, including decisions about one person/one vote, decisions about racial desegregation, decisions about the privacy of the bedroom as opposed to the autonomy of the boardroom, that was something that a lot of people thought was terribly important, but the country hadn’t really voted on it.And in a sense, the national polls that turned dramatically against Bork after he explained that he didn’t share that vision, that his was a very different vision, that was a moment of education, a moment of learning.More people began to understand what the stakes were in debates about something as legalistic as constitutional interpretation, and that was something that I think was important for the country to go through and to experience.
Unfortunately, the post-Bork years have turned the confirmation process from a source of education to a kind of kabuki show in which nothing happens.People learn how to say nothing while sounding like they're saying something.
Bork’s Defeat and the Rise of the Federalist Society
His loss…it energizes forces on the right, in the conservative world.… Can you talk a little bit about any observations you may have about what happened there with the creation and energizing of the Federalist Society?
Well, I think the growth of the Federalist Society and the attraction of very substantial funds, not only to the Federalist Society but to conservative candidates across the board, at the level of state legislatures, at the level of the House and the Senate and in the presidential races, all focused around the idea of restoring some golden age, some imagined golden age, in which judges were perhaps elitist but not progressive, and which the redistributive impulses of the progressive wing of the society were constrained, kind of the Ozzie and Harriet era, that became much more powerful in the country.And it became powerful in a way that it included a kind of backlash against some of the court’s more progressive earlier decisions, a backlash that was bubbling up anyway, the cases like Roe v. Wade and even Griswold v. Connecticut and Brown v. Board, which though honored technically, was nonetheless violated more often than honored in terms of effective means of resegregating society.
Right.
Led to a great split, a split that probably would have happened even without Bork.But Bork’s defeat accelerated it.It showed the right that if it was going to succeed in moving the nation’s philosophy as embodied in the understanding of its basic founding document to the right, they would need to organize around judicial appointments.And that’s very much what they did.We've seen the apotheosis of it recently, in which people like Sen. [Mitch] McConnell (R-Ky.) say that their legacy is [Neil] Gorsuch and [Brett] Kavanaugh.I mean, it becomes the symbol of political success for the right.The left really had let that slide.Liberals and left-leaning progressives really hadn’t focused very much on how important to them it really was to convince the populists, the people out there, that we have a more progressive court, and I think now that’s an awakening that’s occurring in reaction to what the Federalist Society has achieved.
…It’s after Bork, after he was “borked,” as they say, that we first find any evidence of McConnell, who had worked at the DOJ [Department of Justice] in the working with Scalia and Bork himself.We find stock footage of him stepping up after Bork was borked and kind of wagging his finger at the Democrats and saying, “You're going to rue the day that you’ve introduced politics into this situation.”
It’s such a myth that it was ever apolitical.I mean, when you look at the history of judicial appointments from the beginning, certainly with John Marshall and the powerful Federalists through the Lincoln era and through the progressive era and through FDR, the court has always been highly political, not as visibly seen to be political, partly because there wasn’t yet the emphasis on the relationship between political ideology and judicial philosophy, but appointments to the court were never simply a matter of intellectual merit, the people who would most deserve the “intellectual feast,” as Bork described it.It was always very much a matter of satisfying various conflicting interests and approaches, geographical interests in some instances.I mean, when, for example, Dwight Eisenhower put Warren on the court, or [William J.] Brennan, it was really to get Warren out of the way of Republican politics, because he was seen as a rising threat to Eisenhower.When he put Brennan on the court, it was because he wanted a New Jersey Catholic, and [Willis] Van Devanter had skipped out on some speech he was going to make, and Brennan made it instead.
There were a combination of accidents and political agendas, but they were never simply a matter of merit.Who was the smartest of them all?Nothing of the sort.It’s always been quite political.
What is it?Is it because it’s on television, and it’s so political?… Because they talk about it as “original sin.”Bork is the original sin moment.
Well, there were certainly moments before Bork.I mean, with, I guess, the secretary of defense nomination—
[Clement] Haynsworth and [Harrold] Carswell and those times?
Well, certainly the Nixon nominations of [William] Rehnquist and Powell and the earlier business with Haynsworth and Carswell, there were moments.But I think the ubiquity of television, the ease of visualizing and the impact of the visual image, and the rise in the more recent era of the 24/7 news cycle, and now the internet, it’s all become much easier to politicize.But the image of borking, I think, has been somewhat overdone.It’s not as though he was defeated because of the powerful political forces arrayed against him.They may have helped, but it’s what he said and how what he said scared people that ultimately led to his defeat.It’s not as though there was some nasty thing about his past that was dragged up in order to trip him up along the way.That’s what people conjure when they say “borking.”That’s sort of a shorthand for treating someone unfairly.
But whatever unfairness there may have been is not the reason he was defeated.He was defeated because his philosophy turned people off, turned them off in a massive way.And because of television, as you say, it became possible to mobilize that.
The Lessons of the Bork Nomination
So one of the effects is energizing constituents or the public interest groups or interest groups like the Federalist Society.One of the other things is the effect that it has, that the Bork experience has on future nominees’ processes, which is, “Don’t say so much.”…You see it, and you definitely see it happen with the Clarence Thomas nomination.
Well, it seems to me that, in the years after Bork, one sad side effect has been that people button their lip.They try to say as little as possible about their views of controversial things, if they fantasize that the trajectory that they want to follow is one to the Supreme Court, kind of silly fantasies, since there's so much accident and so much contingency.
I've often told my students—I mean, they’ve basically said, in looking back at that experience, you know, “If I wanted to be a Supreme Court justice, what should I do?”And I've always said: “That’s such a stupid thing to want.Why don’t you want to make the world better, want to have a good life, want to learn things and make a difference of some sort?But the idea of pinning your wagon to some particular goal like that is stupid.”But then they press: “What should I do?”I said: “Well, if you really want to be that Machiavellian, first of all, you should seek someone else’s advice.I'm not really into the Machiavelli thing.”When they press further, I say: “Well, don’t say too much.If you really care about—if you're that ambitious, first of all, I'm sorry for you.But secondly, you certainly ought not to express extreme views or views that you think are out of the mainstream, even if they're right, because if you do, they will come back to haunt you.”
And I think the net result is that the people who have been named to the court until quite recently have been people who were not strongly identified with particular positions that were, in some way, unpopular.I mean, Ruth Ginsburg was certainly identified, powerfully and rightly, with equality for men and women, equality without regard to gender.But by the time she was nominated to the court, that wasn’t really a controversial position.People didn’t live it out fully in their lives.Equal pay for equal work still isn't a reality, but the basic idea of the mantra that men and women should be treated equally was pretty mainstream by the time she was nominated.
Nobody who’s been nominated in recent years has had a position that was publicly very extreme until, of course, very recently, when everything has blown up, where you need a mere majority to confirm a justice, where the idea of finding people closer to the center, which became the norm after Bork’s defeat, is no longer in control.
The Nomination of Clarence Thomas
The choice of Clarence Thomas to fill the seat of Thurgood Marshall, the careful way he was managed by [John] Danforth (R-Mo.) and Ken Duberstein and 11 lawyers on the fourth floor of the Eisenhower Office Building, the murder boards, the everything being practiced, when I asked people involved in that process, they all say: “Look, we wouldn’t have done that except for Bork.If Tribe hadn’t gotten everybody all steamed up on the Democratic side and hadn’t advised them, and if they hadn’t had Tribe playing Bork, we wouldn’t have had people playing Thomas.”
I doubt it.I think they were smart enough to figure that out on their own.The idea of murder boards was not born with Bork.People who were up for controversial confirmations have often rehearsed the way they would be asked questions and the kinds of answers they would give.I suppose it was made more systematic after Bork, and after how effectively Biden and Kennedy managed the Bork hearings.But I would be a little skeptical.I wouldn’t want to take credit for all of that.
They do in fact get him ready.He has a story, the Pin Point story.
Right, Pin Point, Ga.
Right, of his bootstraps upbringing.He avoids as much as possible the explanations of any positions he took when he was on the launchpad appeals court.And I suppose, as you say, that’s not a surprise in the post-Bork era.
Right.And in fact he came up with an image that was, in some ways, the precursor to what John Roberts said about being an umpire.As I remember, he said that “When I become a justice, if I'm lucky enough to become one, I’ll be like a runner who is just stripped down to his, you know, whatever basics.Nothing that I've ever said or done will matter.I will look at everything with open eyes.I’ll come with no predispositions.”And of course it’s interesting that Scalia later on made fun of that, saying, “Anybody who has no predispositions, who doesn’t have any idea what he thinks about something like Roe v. Wade, isn't qualified to sit on the court.”He was, in effect, reflecting on his then-colleague Clarence Thomas.
It seems to me that that image, that we are just automatons up here, we’re robots, we’re good lawyers, we don’t come with our experiences, that became the narrative of that side, that judges are just umpires; they don’t have substantive views.They just decide on the facts and the law.Never mind that the law is, in large part, what they say it is.They're just applying the law as though it’s there in some brooding omnipresence in the sky, and the facts are there to be found.
However naïve that is, however silly, however obviously false, it’s a narrative that is easy to put on a bumper sticker: “I don’t want judges to make law; I want them to simply apply it.”And that bumper sticker has stood the Republican Party in very good stead.That is, they have been able to nominate people whose views they know full well, partly because they’ve been groomed through the executive branch, through the Justice Department or the White House, and in some cases as part of the farm team in the D.C. Circuit.They know full well what they believe, and they teach them how to hide all of that, how to basically come across as nice, not worklike, neutral umpires.And it’s become a kind of meaningless show.That is, you just learn nothing from the questions and answers, or almost nothing from the questions and answers in cases like those of John Roberts, and then more recently Neil Gorsuch and certainly Brett Kavanaugh.
When George H. W. Bush announces Thomas, you see Thomas standing behind him, and he sort of goes off on this riff about he’s the most qualified judge in the country, or whatever he said.It’s not a direct quote.
Yeah, it was pretty over-the-top.
What did you think?
Well, I thought, nobody believes that.He may be a smart guy—and it turns out Clarence Thomas is very smart.He may be a smart guy, but there's no sense in which he’s the most qualified.But also, the whole idea of a “most qualified,” there is no person who’s most qualified to take any given seat on the court.The fact is that he was picked because he was a known quantity, very conservative in his outlook and his philosophy, well understood by the Federalist Society, and he didn’t cause the problem of being white to fill Thurgood Marshall’s seat.So he met the qualifications that George H. W. Bush was looking for.
But he couldn’t quite say it that way.It would sound like a token: “I'm looking for a black guy who’s a right-wing ideologue.”So what is he going to say?He could simply have talked about his background in Pin Point, Ga., and how impressive a guy he was.I don’t think it would have made any difference in terms of the confirmation…
Allegations by Anita Hill
So if that’s what that was, a sort of reality TV show, and then you watch the rise of the Anita Hill part of the Clarence Thomas hearings, he’s sort of moving along, I guess, apace.Somebody told us that if you're at the table, you're 90 percent of the way there anyway unless something really extraordinary happens.Suddenly it’s almost like it’s a TV trial or something.She comes up and makes allegations, and it feels like a kind of new thing.It may not be unique, but it feels newish in this discussion we’re having about how the confirmation process has changed.What do you think about that assertion, that that’s what it was?
Well, it was certainly unexpected.But the fact is that Anita Hill had experiences with him that were important to come to the surface.There was a real push not to let her testify at all, to say that this was a distraction, and it was a closed question.I remember Charles Ogletree, who called me and asked whether I thought that Biden could be persuaded that this was relevant, that this was something that the committee ought to look in.And I remember waking Ron Klain up—Ron Klain was then Biden’s chief of staff—and urging him to at least make sure that Joe Biden would think seriously about this; this isn't something that could be pushed under the rug.We weren’t yet in the #MeToo moment, but it certainly was a time when sex harassment had begun to be taken seriously, not as seriously as it should have been, but seriously.One simply couldn’t push it under the rug.
What are the implications to Biden if Klain walks into him and says, “You’ve got to bring an African American woman up against this African American man that some of the civil rights leaders were sort of with”?It’s already a problem for Kennedy, it’s already a problem for Biden, and the optics are terrible for the panel of white men.
Well, it was a tough choice for him.He thought she had a kind of right, as a matter of human dignity, to tell her story.But he also thought that a lot of the country would be disgusted by this kind of back-and-forth, that they wouldn’t know what was true.It would be he said/she said.The idea of other witnesses to corroborate her testimony hadn’t come up yet.But he was persuaded that although it would be politically costly for him no matter what he did, that he would have to set aside that cost calculus and simply decide it’s wrong not to let her testify, and so that’s what he did.
And you were in favor of that?
Very much in favor of it.I was also in favor of letting other people testify, which he didn’t want to do.I mean, there were some who testified, but he shut it down sooner than I wish he had.
Why do you think he did?
I think he was just constantly striking a balance.He thought we’d heard enough.We knew, if we believed her, we were going to believe her, and then people would have to act accordingly.And if people didn’t believe her, they weren’t going to believe her just because a couple of other people had somewhat similar experiences.Then he thought that we shouldn’t take the ball off of the substantive issues on which he thought that Clarence Thomas was no Robert Bork, or at least not as extreme.And that, I think, was a mistake.
The Republican senators, especially Simpson, who we talked to just savage her.
It was awful.I mean, [Arlen] Specter (R-Pa.) savaged her.I mean, during the hearings themselves, he tried to rip her apart.
Why?
I just don’t know.I don’t know.Specter is dead.He can't speak for himself.But I think they believed this was a kind of ambush.They wouldn’t have gone as far as Thomas did and call it, you know, a “high-tech lynching,” but they thought it was unfair to take something, even from the recent past, that was as personal as sex and introduce it into the sort of high-stakes contest over who should be deciding the meaning of the Constitution.I think they hadn’t quite gotten the point that there is a connection between the personal and the political; that someone whose interactions with other people are sort of exemplified kind of disrespect or misogyny might reflect that in their judicial decision making, whether they like it or not.
The Aftermath of the Clarence Thomas Hearings
The angry blowback as a result of it, and the positive things that happened, talk a little bit about the aftermath of the Thomas moment and the Thomas/Hill moment. …
Well, certainly there are a fair number of people who got turned off about the whole confirmation process after they saw Thomas, whom they believed had perjured himself, become a Supreme Court justice.I mean, that strand of focusing on the personal and saying that the personal really is inseparable from the political galvanized a lot of people in a direction that made them essentially distrustful of the court as an institution.Of course that was accentuated in the year 2000, with Bush v. Gore, and it’s certainly been accentuated by what happened in the case of Brett Kavanaugh.That is, there are people on one side who say that if your life shows that there is something quite terrible that you’ve done, that should be investigated thoroughly, and you shouldn’t be on the court, and there are others who say that the personal should be kept apart from the political and from the legal and the judicial; that what somebody might have done as a teenager or even two or three years [ago], in the case of Clarence Thomas, before the confirmation, should be set aside.
Among the many fault lines in the country along which we are divided, that’s one.And it’s certainly not one that conduces to the respect for the court as an institution, because there will be some people who say there are people on the court who ought not to be on any court, because they lied under oath to get there.No matter what we may say about the presumption of innocence, that’s a deeply held belief by many.There are others who say there are people who are on the court and who belong there, and who were exposed to terrible and tragic destruction of their personality, and that destruction ought never to be repeated.And again, never the twain shall meet.Those two groups are barely talking to one another.
So at the end of Thomas—
And let me just add, it does seem to me that, just as the Bork era produced a period in which people would button their lip and be much more cautious about what they said if they had judicial aspirations, especially aspirations that rose to the level of becoming a Supreme Court justice, this recent era is going to make it harder, I think, to encourage people to want to play any of these high-profile roles, whether in the judicial branch or elsewhere.That is, when the confirmation process becomes a kind of trial by fire in which anything that you might have done in your life could be brought to the fore and become the focal point of a national, what to you will seem like destruction of your identity, your personality, your family, why would anybody expose themselves to that?So that, you know, in the current period, not only is the executive branch, headed by Donald Trump, finding a terribly hard time getting competent people to want to serve, but the judicial branch, I think, is going to be ill served as well, although there are a number of true believers who are waiting in line to be nominated by this president.
And yet here you are, on the knife’s edge there, because you believed that Anita Hill should have spoken, and you believed that the Clarence Thomas—
And I certainly believe that Christine Ford should have spoken.
So it’s a tough one.
Well, it’s a tough one, but I think there's an answer.The answer is that we ought to learn as much as possible about people before nominating them to these lifetime positions, that we ought not to use the theatrics of a nationally televised hearing in order to give them a chance to show how well they’ve been taught the kabuki moves, and that we ought to have a system in which judicial appointments are less fateful, that the stakes are lower.I mean, when you have a lifetime position at stake, somebody who is going to be making decisions of great consequence for everyone’s everyday life, through many presidencies, not just one, of course you're going to have battle lines drawn, and in an age of television and the internet, those battle lines will be highly charged, highly polarized.So the solution is to lower the stakes, and that means not having lifetime appointments, but having something like 18-year nonrenewable appointments to the Supreme Court.
Term limits.
Term limits, exactly.The area where I never favored term limits was in Congress, where it seemed to me not only that there were constitutional problems with them, but it was a formula for giving more power to the staff and less power to those who are representatives of the people.But in terms of the judicial branch, term limits make sense.I mean, when the Constitution was framed, the idea of a lifetime appointment didn’t mean that many people would serve until their 80s and their 90s, and they wouldn’t be appointed when they were in their 40s and their 50s.It was really a relatively short time.Now it’s become an eternity, it seems.And I think it would be possible to arrange a scheme in which, when a Supreme Court justice has served for 18 years, he or she remains an Article III judge for life, but serving on lower courts, the way the retired justices now do, and then popping back into the Supreme Court when there are recusals that lead to a tie and that require a tiebreaker.
The Death of Justice Scalia and Mitch McConnell’s Gamble
…Let’s pick it up at the day Scalia died.McConnell obviously does something that’s a surprise to many, many, many people.He calls it the most important political act that he’s made in a long career.What did you think when you heard about McConnell’s decision?
What seemed to me to be an even more extreme decision than the one he announced when Barack Obama was elected, when he said that his main objective is to make Obama a one-term president, when surely the objective of anyone interested in the success of the country should be in the success, if possible, of the presidency, regardless of who occupies that office.But when he took the position that because there's only one year left in Obama’s term, or whatever the length was exactly at the moment, nobody should be confirmed, we should wait for the next election, that struck me as not exactly unconstitutional, because the Constitution gives the Senate the role of advice and consent, and it can perform it by stonewalling if that’s its unfortunate choice, but it certainly struck me as anti-constitutional.
If we couldn’t have a functioning three-branch system in which, at any given moment, one branch can say, “OK, we’re just going to let another branch, the important judicial branch wither on the vine; we’re not going to appoint anyone because we don’t like the person who is the appointing authority,” that struck me as terribly dangerous.It was based on a rationale that wouldn’t withstand any historical analysis for comparison.
And I saw then the beginning of a terribly dangerous fight, because the moment you take that position, “We’re not going to confirm anybody; we don’t care how centrist they are,” even though Merrick Garland was a wonderful fellow and a former student of mine, had been chosen partly because people on the Hill, people who were Republicans, had basically told President Obama that he’s somebody who could easily get through, [even though] he was not nearly as progressive or leftist or whatever you want to call it as a number of other appointments that would have more greatly excited the liberal base of the president, to select that person and then see him basically treated as though he were nothing—“We won't even talk to him; we won't hold hearings; we won't go through the motions”—seemed to me to be a declaration of war.And it was quite clear that that’s what it was.
…
But what it is, is actually, you know, hardball politics.McConnell always says, “I'm not a policy guy; I'm a political guy,” and that is absolutely, nakedly political.
Right.It’s naked politics, much more naked than I would like to see with the court.I mean, it seems to me that taking into account the philosophy, the approach of a nominee is perfectly right.There's no question that a lot of Republicans would have opposed Merrick Garland precisely because, however qualified he was, however well-liked he was on the D.C. Circuit, his votes on a number of issues, where Scalia would have resulted in a decision in one direction, would have flipped it over.And that’s a perfectly legitimate thing for senators to take into account.One expects that.
But what one doesn’t expect is, it’s almost like saying, “I'm going to shut down the government, you know, because I haven't gotten my symbolic border wall.”“We’re going to shut down the confirmation process because we don’t have somebody who’s to our liking, somebody who’s a clone of Scalia.”
Donald Trump’s Nominee List
OK.So now that’s March of 2016, and around this time, Trump is vanquishing his 16 other opponents.That very night he’s on a debate with Ted Cruz (R-Texas) and others in South Carolina.He has working for him Don McGahn, a member of the Federalist Society, who works at Jones Day [law firm] in Washington.….Leonard Leo and Jim DeMint have a meeting there with candidate Trump, who’s got a lot of problems convincing people in the evangelical world and in the conservative world that he’s actually a conservative.
Right.This was a wonderful opportunity for him, because if he could convince them that he was a conservative by promising to basically outsource the selection to the Federalists and to their allies in the Heritage Foundation and elsewhere, and to say, “I’ll pick from a list that you put together,” I mean, that itself was a kind of abdication of presidential responsibility, essentially saying, “I'm going to look for someone who passes whatever litmus test this base has, and it’s going to be somebody who I know would vote to overrule Roe,” he says, “and it’s going to be somebody who buys into your agenda.”And that’s the way he can satisfy evangelicals, who otherwise are not exactly his cup of tea, or he isn't theirs, and it’s the way he can satisfy the parts of his base that he’s put together.
And what do you, Professor Tribe, an observer and a very knowledgeable person about all of this, think about that list, the idea of handing it to a candidate, and it being a sort of litmus test of a political process?
I think it goes much further than I think our process should go.I do think presidents should select justices whose overall approach to the Constitution as a part of the fabric of American life is an approach that they find hospitable.I don’t think that they should be looking for people simply on the basis of their LSAT or whether they went to Harvard or Yale or some other law school and did well in those academic pursuits.They should be looking for people whose philosophy they can embrace.
But for them to say, “I'm looking for someone who will please this particular constituency because of the way this constituency is convinced they will vote on this set of two or three cases,” I think is just horrendous.It contributes not just to the appearance but to the reality of the court becoming simply an extension of politics as usual.And there's no question that the boundary between law and politics, when you're talking about the meaning of the Constitution, its broad structure, its protections of things as broadly described as liberty or equality, that that’s not simply a technical legal issue; it’s political in the deepest sense of political philosophy.
But if that institution, the independent judiciary, is simply to be doing low politics, politics by other means, then the power we have, over the course of our history, I think more for better than for worse, reposed in that institution is a power that people are just not going to live with.If these are just politicians in robes, if that’s all they are, I mean, they may not be just umpires, but they're also not just politicos.They're not just political operatives.And I say that about almost all of the justices.If that’s all they are, then the role of that institution in providing a kind of ballast for the ship of state and for the course of our society and protecting those who need protection from ordinary politics is deeply jeopardized.
And I think, in the long run, the success of the country, even though the court has done some pretty terrible things—I mean, I'm certainly not going to praise the whole history of an institution that was responsible for Dred Scott and for Plessy v. Ferguson.It’s made some terrible blunders.It’s put the country in a terrible place with decisions like Korematsu [v. United States, which validated the relocation of Japanese Americans to internment camps, regardless of their citizenship, after Pearl Harbor].But on the other hand, it’s responsible for the broad sweep of federal legislative authority in cases like McCulloch v. Maryland all the way back in 1819.It’s responsible for drawing the line that explicit racial discrimination.Very recently, even though I think the court did the wrong thing in upholding the travel ban, it finally got around to saying that the Korematsu case was wrong the day it was decided.It decided Brown v. Board.It decided Baker v. Carr, which, although gerrymandering is rampant, at least tested the notion of one person/one vote in the apportionment formula.
I think on the whole, our country has been much better off because it’s had that institution insulated from ordinary politics.That’s what's at stake when it becomes so deeply politicized that one can, on controversial issues, with enormous accuracy, predict that the five members appointed by a president of one party will vote one way and the four nominated by a president of the other party will vote the other way.That’s why Chief Justice Roberts, I think, is certainly trying his best to make the court somewhat above ordinary politics.I think that he didn’t depart from his own philosophy in casting votes in the two key cases that upheld the Affordable Care Act, but he certainly had in mind the institutional survival of the court as one factor to be taken into account in shaping the decision that he made….
The Nomination of Brett Kavanaugh
When Justice [Anthony] Kennedy retires, as you’ve watched the court, what did you think would happen next?
Well, it was quite clear that someone from the list that the Federalist Society had put together would be nominated.There were many on that list that I think were very good in many ways.I don’t agree with everything.But when the list was expanded at the last minute to include Brett Kavanaugh, then I started feeling a little shaky, because I know Brett Kavanaugh.I like him.I was his colleague when he taught during the winter term at Harvard Law School.I think he’s brilliant.I think he’s qualified to be on the court.I didn’t know anything about the alleged sex deeds and all that.I didn’t know anything about that.But I thought he would be a good justice.
But adding him to the list could only have been accounted for by the positions he had taken about the fact that a sitting president couldn’t be indicted, that presidential powers were extremely broad.For the president to add him on the list at the very moment that the president was under investigation for doing some of the very things that Brett Kavanaugh had said you shouldn’t be able to investigate or prosecute a president for doing struck me as really scary, because it looked like he was being handpicked by the president to protect the president from the independent check of the judiciary.
The irony is that those are things that I think Brett Kavanaugh legitimately believes, and they are views that are quite responsible.That is, although I happen to disagree—I think a sitting president should be subject to indictment; I don’t think that one should be hesitant to investigate a sitting president for having corrupt motives in firing an FBI director or in interfering with an investigation—there are substantial arguments to be made the other way.And I don’t think that Brett Kavanaugh was making those arguments in order to get this appointment.It’s not quite like the memo that William Barr sent to the Trump administration in what looked like a job application.These were positions that Brett Kavanaugh had quite responsibly held, even though I don’t agree with them.
But to pick him because of those precise positions, and to add him to the list for that reason, seemed to me to be an instance of a president trying to pack the court with his own defenders, and yet another instance of basically an extended attempt at obstruction of justice.That bothered me.
So now here we were last fall.The protesters are just unbelievably vehement.The Democrats on that very first day are just like all over Chuck Grassley (R-Iowa), the Republicans on the other side a little worried about the optics of lots of white men.They're a little defensive.But as I say, he’s at the table.It’s a 90 percent sure chance that he’s going to get it.
Maybe 95 percent.
Maybe 95 percent.I’ll take those odds.The Democrats—what’s left to the Democrats to do at that moment is what?
Really, they simply had to try to illuminate his record and vote against him if they thought that record meant that he would be much more conservative than they wanted, and for him otherwise.
But they didn’t really lay a glove on him, did they, when they were going back and forth?
Not during that cross-examination, no, not really, partly because the whole confirmation hearing process had become so empty.I mean, there was no way he was going to say anything Bork-like in his answers, regardless of what his inner beliefs were.He wasn’t going to lie, but he also wasn’t going to toss red meat to those who were happiest to see him there.That is, he was certainly not going to say, “Well, put me on the court, and the wall of separation between church and state will be gone.”You know, his own self-conception wouldn’t have been consistent with that.He is and thinks of himself as a serious lawyer.I've argued in front of him, and he’s a brilliant questioner.They weren’t going to lay a glove on him in that way.
I mean, what happened when the allegations about his sexual misconduct arose, that changed everything.That was what suddenly changed it from 95 percent.
So TV coverage of Bork, TV coverage of Thomas, and radio thanks to Nina Totenberg and others.Now it’s the web. … It’s all of it.And you’ve got some people on the Democratic side who are running for president.They get their time on camera.There's a lot of it that just feels a little political.
Right.And a lot of it is a rerun of what they didn’t quite succeed in doing when he was nominated to the D.C. Circuit.When someone like [Patrick] Leahy (D-Vt.) is interested in proving that he wasn’t quite telling the truth about certain memos, it was kind of like a throwback to a decade earlier.
Relitigating it.
Relitigating the past and not really digging into his philosophy or what was wrong with it or what was at least troublesome about it.And he certainly wasn’t going to—I mean, there are certainly ways of explaining what he had to say about United States v. Nixon and in his other statements about executive power that were really quite easy for him to deal with.And so the whole thing was going according to script, without any serious dispute, all because we had abolished the requirement of 60 votes.That is, if there had been a 60-vote requirement, the dynamic would have been totally different.
A lot of the issues that the Democrats knew wouldn’t make a difference to the ultimate vote in the Senate, because they certainly would have at least the majority they needed, would have become extremely relevant.But with the explosion of the system, the elimination of the 60-vote requirement, it became clear that a party that controlled both the presidency and the Senate along essentially ideological lines was going to be able to succeed in putting anyone on the court who hadn’t done anything in his or her past that was discreditable.And that’s where things stood at the time that Christine—
Allegations by Christine Blasey Ford
Dr. Ford.
Dr. Ford.Yeah.Until Dr. Ford came forward, it was basically a done deal.
And when you hear the déjà vu-like faint echo of there's somebody making an allegation, she wants to be anonymous, now she’s coming out a little bit, what are you thinking about at that time?
Well, at that moment, I thought it’s too bad that Dianne Feinstein (D-Calif.) didn’t handle it differently.That is, she was respecting Dr. Ford’s desire for privacy and for confidentiality, but she could have done much more to alert Dr. Ford to the fact that unless there was a thorough investigation conducted in a way that would keep her privacy in mind, this was not going to go anywhere.Bringing it up at the last minute would simply not work.And unfortunately, that’s what Sen. Feinstein did.She kept it to herself for decent reasons but with insufficient foresight.And I had heard rumors that there was something like this out there, but I wasn’t able to get to the bottom of it.And the fact that it was possibly out there but being kept under wraps struck me as a formula for disaster.
…OK.It does come forward.She does come out.She does testify.Your response at the end of her testimony?
I thought that he couldn’t survive it.I mean, I honestly thought this was so powerful, and perhaps it was naïve of me, but I thought that no human being listening to this, knowing that she had no motive to fabricate, knowing that her memory seemed clear, knowing that she had known him and therefore this was not a case of mistaken identification, I just didn’t see how he could survive it.She was so credible; the allegations were so disgusting; her description of his laughter and that of his friend while she was struggling were so poignant and so heartbreaking.And I thought, politics be damned, this is over.The Brett Kavanaugh I thought I knew is not the Brett Kavanaugh that could have done this, but I believe her.
…So she does that.The president of the United States, who’s already wobbly about Kavanaugh, …he’s talking to McConnell.McConnell says: “Hold on, it’s only halftime.Don’t worry about it.”Meanwhile, Kavanaugh is down in a room at Dirksen, and McGahn is pumping him up, saying, “You’ve got an audience of one.” Maybe saying, “You’ve got an audience of one.”
Right.I mean, he probably was afraid that the nomination might be pulled, because I think he had heard, or at least many people had heard, and therefore I assume he did, that the president was thinking of pulling the [Neil] Gorsuch nomination when Gorsuch was critical of how he had spoken of the judiciary, the “so-called judge.”So he certainly didn’t want to displease the audience of one.
Brett Kavanaugh Responds to the Allegations
… You know this guy, and you’ve argued in front of him. That man that sits down at that table, is that the Brett Kavanaugh you knew?
It’s not the Brett Kavanaugh that I had ever seen.I mean, he was out of control…He just did not seem in control.He seemed angry.He seemed petulant.He seemed vindictive.He seemed, you know, completely unsuited to the judicial post.I thought, you know, this is going to make things even worse for him.How can anyone listen to this and think he’s suited to be a Supreme Court justice, even if they think that perhaps Dr. Ford was wrong, and that he was responding to what he believed was a false accusation?Still, his lack of control, his willingness to name groups that he thought had it in for him—
The Clintons.
The Clintons.I mean, it was completely—it was crazy.It was not the Brett Kavanaugh that I had come to know at all.I was not a close friend, but this was not somebody I recognized and not somebody I could imagine being confirmed.And it was also clear to me that the investigation would have to be reopened.They would have to learn more than they had learned already.
The Vote on Brett Kavanaugh
So I think it’s the next morning, when [Jeff] Flake (R-Ariz.) has announced, “Well, I'm going to vote for him.”Flake, the opponent of the president in a lot of ways, but also a supporter of the president in the actual voting of things.
And then he’s confronted in the elevator.The elevator confrontation.
So when you see it, what do you—do you watch Flake the way I did and wonder?
Well, I've always wondered about Flake.I mean, he often, you know, talked the talk but didn’t often walk the walk.A lot like Susan Collins (R-Maine).I mean, he would seem tortured about things.He would seem thoughtful and smart like, Ben Sasse (R-Nebraska), you know, thoughtful, smart, not too impulsive.And Susan Collins similarly would say: “Oh, I'm really troubled by this.I'm thinking about that.”But in the end, when the chips were down, both Flake and Collins seemed to fold.And I just didn’t know what would happen in this case.
Why did they fold?
Well, I think the reasons must be separate for each of them, and I can't pretend to analyze them.But among the three that I thought were possible to really stand up for what I thought was the right thing to do, which would be not to confirm, it was only [Lisa] Murkowski (R-Alaska) that I had reason to think that, she’s got a lot of spine.I mean, I don’t remember what precise votes in the past had seemed to be indicative of her strength, but the fact that there were Native Alaskans who were really very much at stake, I thought that Mazie Hirono’s (D-Hawaii) question linking the views that Kavanaugh had taken about Native Hawaiians to the danger to the Native Alaskans was a brilliant stroke on her part, and it seemed to me that was likely to influence Murkowski as much as anything else.
But turned out to be right about Murkowski—she went in the way I hoped she would—and also unfortunately right about Flake and Collins, that they ultimately didn’t do what their principles would have indicated.I mean, Collins in particular, when she said, “He assured me that he believes in precedent, that he believes in Roe v. Wade”—I mean, give me a break.Precedent is what you make of it to some extent.And after all, he and Gorsuch had collaborated on a book about precedent.And Gorsuch, who had told her exactly the same thing, was the decisive vote in overturning an important 40-year-old precedent dealing with labor rights in the Janus [v. AFSCME] case.So she had to know better.If she truly cared about reproductive freedom, [she] would know (a) that Roe v. Wade is not going to be overruled in so many words; but (b) that it’s going to be whittled to death, and that one of the chief whittlers would be Judge Kavanaugh, who thought it was wrongly decided…
Many people we’ve talked to were worried by his reference to the Clintons and worried that he revealed himself in that moment as political.
It was the most bizarre thing that he said.The idea that he was buying into the anti-Clinton cabal and sort of the conspiracy theories almost, that the Clintons were part of some deep conspiracy to undermine the conservative forces of the country, was quite bizarre.
The Long-term Effect of Politicizing the Court
…So now what do you worry that people are thinking about?I mean, this was a nationally televised moment.…
I was certainly worried that the court took quite a bad hit in Bush v. Gore, and this was going to be another huge hit, and that people would never reconcile themselves to having on the court what they believe, rightly or wrongly, were two people who lied to get there, and lied about matters that really go deeply to the question of respect for women, and those people are not going to be reconciled; that there's a certain group of the population that will always suspect, regardless of the genuineness of their reasons, that when Thomas and Kavanaugh vote against what they think are sort of culturally progressive positions with respect to sex, gender, harassment and the like, that they are simply acting out their personal politics rather than acting on principle.And that’s a dangerous place for the country to be.
So you and I have traveled a fair distance in this conversation, from 1987 to 2019.Talk just a little bit, as a summary, talk just a little bit about the politicization of it all, of the implications of that, and I assume your fear of what has happened to the confirmation process.
Well, I think the confirmation process has become essentially useless.The justice is selected and will be confirmed if the president and the Senate are of the same party, not confirmed otherwise.
…A lot of people talk about how the constitutional hardball that Mitch McConnell played when there was a vacancy created by Scalia’s death, and he refused to consider anyone, would lead to a kind of counter-hardball when the Democrats are in control of everything.Then they will pack the court and expand it to 11 or 13 to negate the votes of Gorsuch and Kavanaugh.I don’t think that’s the way it’s likely to devolve.It seems to me that people are ultimately going to realize that that kind of tit-for-tat will spiral out of control and will come back to bite them.But I think there's another possibility that’s quite frightening, and that is that if, at the time of death or resignation of members of the court, the party that is to replace them is being checked by the other party in control of the Senate, that no replacement will be acceptable; that what Mitch McConnell did to Merrick Garland will be done, for example, by a Democratic Senate to any Republican president, or by a Republican Senate to any Democratic president.
And the net result might be that the court will gradually dwindle in size.Now, that wouldn’t in itself be a tragedy, although at some point it dwindles to a sort of relative weakness and in capacity.But it does suggest that the court’s role in our society is now going to be very much contested, that its ability to stand up to a president who has tyrannical aspirations will be questioned, and that its ability to serve as a meaningful check on the political branches will be in danger.And I think that’s really a sad thing.
I think the only solutions really lie deeper than institutional solutions; that is, I don’t even regard Trump as the cause of all the problems that many people, including me, associate with him.He’s a symptom rather than a cause.It is the national culture that has disintegrated in many ways—respect for truth, respect for fact.Until we manage through civic education and through moving public consciousness in a more constructive and less self-defeating direction, we’re not really going to repair the danger that democracy is in.And that’s a very long-term program.
I'm teaching a course now in strategies for protecting democracy under stress, constitutional democracy under stress, and there are no easy strategies to offer.I mean, I'm going to be talking about litigation against the Trump administration, talking about legislative solutions, talking about the structure of the Electoral College.But in the end, the lesson is going to be that it’s in public education and in civic discourse and in how we bring up our own kids, that in the very long run, we’re going to be able to restore democracy.
It’s always up to the people in the end, we hope.
Yep.
Joe Biden Questions Robert Bork
A few things, just to go back to Bork.When he’s nominated and Biden is talking to you, Bork was expected to be confirmed.What was the strategy that you discussed with Biden for how to take on Bork?
Well, I thought that the key was to illuminate the way in which Bork’s approach to the Constitution was so different from that of the vast majority of Americans, that they simply would think it dangerous; that is, for someone to believe that the only rights that you have are the ones that are written down in so many words in the Constitution, to have the decisive fifth vote on a lot of issues that will affect how you can lead your life, would scare people, and that the important thing was not so much to please the interest groups that were clamoring for rhetoric that would paint Bork in some demonized colors, but simply to illuminate what the reality was, what the facts were.
And I had this naïve belief—maybe turned out to be true—that people would rebel against the vision of the Constitution that he represented, as long as people could be persuaded that it was not the president’s prerogative to pick his favorite ideologue to be on the court, but that the Senate had a meaningful role to play, that senators had an obligation to their own oath to uphold the Constitution of the United States, to ask, what would some nominee do to the Constitution as it’s enforced, and as it lives in our society?
And that was really the strategy that I think Biden followed.It was not so much “Let’s make him seem like an ogre.”It was, “Let’s explain to people how extreme these views are and how scary they are.”And I think, in the end, that’s the strategy that succeeded.And that’s why, when people talk about borking as a terrible epithet, I've always resisted that, thinking, well, what we did was, we helped educate the public so that it could see what this very smart but very right-wing thinker would do.And of course, when he wrote "The Tempting of America" after his own defeat, and made clear just how extreme his views were, even more extreme than they appeared when he testified, I think that vindicated the strategy.It said: “Well, we were right.This is what he would mean on the court.”
Obama, McConnell, and Judicial Nominees
…My last question: During the Obama administration,—he was having so much difficulty getting judges through.Were you in touch with the White House?Did you feel like they were paying enough attention to judicial nominations in general?
Well, I was working in the administration on issues of access to justice, and I did have a couple of meetings with the president in the Oval Office.But he wanted to talk about issues of detaining people at Guantanamo and the like.I tried to say that I thought more energy should be put into getting judges confirmed, that there should be more emphasis, but it was clear to me, really, all the way back to when Obama was my student, that he really had a view that the courts were less important to liberals than they were to conservatives.
He really had the view that the things we needed to do to make life better for the American people were not going to be done by judges anyway.Giving people meaningful rights to health care, to a decent environment, those were not things that were within the wheelhouse of the judiciary, and therefore, since there are finite political resources, finite capital, he was going to put his capital on the Affordable Care Act and not spend as much energy on judges.I think that’s a predictable facet of the kind of guy he was, and there was no way, I think, of moving that.And I'm not sure how much difference it would have made, because the determination by McConnell and his allies not to let Obama have his way would only have been strengthened had there been more appointments for Mitch McConnell to turn down or to pay no attention to.
Isn't that interesting, that a great lawyer and a professor of law, which he was at least part-time, wouldn’t see the thing that McConnell always talks about, which is, “I want two generations of people.If I can get somebody confirmed, I've got 6,000 cases out there in the appeals court, I've got 82 a year in the Supreme Court, and a lifetime of a legacy”?…
I don’t think it would be fair to say that Obama didn’t see it, that he didn’t understand it.I think he understood perfectly well that it makes a huge difference in the long run.But he thought it was so important to get certain basic things done, to make sure that there was no terrorist attack on his watch, to make sure that he dealt responsibly with immigration issues, and above all, to make sure that the health care system that had been completely broken was finally at least on its way to being mended, that he couldn’t do everything all at once.And he knew very clearly that he had so recalcitrant an opposition that the incremental value of putting more emphasis on his appointments would not pay off.I mean, he certainly picked well, I think, when he picked Sotomayor and Kagan.They are both appointments that will, over the long run, make a huge difference to the court, the country, to President Obama’s legacy.
When it came to the lower courts, I don’t know that he could have gotten much more done.And clearly, when he managed to make appointments only because Harry Reid (D-Nev.) changed the rules, or got a majority of the Senate to change the rules, so that the filibuster was gone for lower court appointments, finally that broke the logjam, a few more people got in.But the long-run cost of that, which I think he foresaw, was going to be very difficult, because it could so easily be extended by the Republicans to the Supreme Court, as it indeed was.
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