The FRONTLINE Interviews

Nan Aron

President, Alliance for Justice

Nan Aron is the founder and president of Alliance for Justice, a liberal advocacy group that monitors the appointment of federal judicial nominees. The organization opposed the nominations of Clarence Thomas and Brett Kavanaugh to the Supreme Court.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 26, 2019. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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Nan Aron

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Ronald Reagan and the Courts

Let's start with the Reagan administration.… The Democrats have had their way for a long time, and now President Reagan, who has put Sandra Day O'Connor and [William] Rehnquist on the court is now offering us Mr. [Robert] Bork.Take us to what the Democrats' perspective or your perspective, what you see happening in the world with the announcement that it will be Robert Bork as the nominee of the Reagan administration.

Reagan came into office seeking to turn the clock back on a number of cherished protections—civil rights, human rights, environmental, consumer protection.He wanted from the very beginning of his administration not only to change the law, but more importantly change the judges.But he was slow at it.In the first four years of his administration, he tried to get his initiatives to turn back the clock through Congress and through the executive branch.And interestingly, in those first four years, he faced a Congress that, unlike today, had a number of enlightened Republicans, Democrats who cared about justice, and he was unable to get some of his key initiatives through.He failed at blocking the re-enactment of the Voting Rights Act.He tried and failed to dismantle legal services.Tried to do in abortion.

So when he was running for his second term, he said: "You know what?I'm going to turn my attention to the federal courts.What I can't get through Congress, what I can't get through the executive branch, I'll get through by choosing judges who essentially agree with my social agenda."And he went about stacking the courts with a vengeance.And he wasn't quiet about it; he was brazen about it.He announced during his run for re-election that that was going to be his plan.

And it occurred to many of us on the progressive side that he's serious, probably has a list, and most importantly, he was aided by two very powerful forces in American politics: one, anti-abortion groups, together with organizations and individuals angered over the 1954 decision of Brown v Board of Education, were solidly behind Reagan's court-packing scheme.A second significant, major force aiding President Reagan was the business community that was angry over the Warren court's protections of consumers, those who cared about health and safety, workers.The business community came together, working with the religious right and evangelicals, to back Ronald Reagan's efforts to pack the courts.

On our side—well, we don't need to go into our side.

So—

So here, Ronald Reagan, facing his second term, turned his attention both to the Supreme Court and to lower courts.Lower courts are a very important part of the story because as the Supreme Court renders fewer and fewer decisions each year, it's those very powerful courts of appeals throughout the United States that often issue the final law of the land.So he began putting individuals on those courts who had records of hostility to women's right to choose, civil rights, affirmative action, and who would pledge to support prayer in school.

And then came 1987 with the resignation of [Lewis] Powell from the Supreme Court.This gave Ronald Reagan and his many supporters in the right-wing constituency of the Republican Party an opportunity.In fact, Richard Viguerie, a leading ultraconservative activist, declared, "We've been waiting 30 years for this moment."And what he was referring to was the moment when Ronald Reagan could nominate Robert Bork to the Supreme Court.

Going back a little, I have to look at the Supreme Court at this moment, and you'll stop me when I get carried away.

Keep going.You're not carried away.

The Case Against Robert Bork

All right.This was a tremendous moment for the court because Powell had been regarded as a swing seat on the court.And so when he stepped down, he left a very polarized Supreme Court—four hard-right conservatives and four moderate to liberal Democratic appointees on the court.So this was an opportunity to really change the direction not just for the next four years, but Republicans were hoping for the next 40 years.

They selected Robert Bork, and they selected him because he had a record, a reliable record.After all, he had been a judge on the D.C. Circuit Court of Appeals.He had written a book and scores of articles, speeches, lectures.So he was a known quantity to Republicans and to the Republican White House.

So when Ted Kennedy (D-Mass.) hits the floor and delivers that—

"Robert Bork's America" speech.

It's like a clarion call that says, “OK, everybody, here we go.”What did you think?

A little bit—let me go back just one second.So everyone knew what Robert Bork believed, what he had said, and what he had written.And many Democrats were worried.They knew exactly how important this fight would be with Robert Bork, but there was only one senator who really had the fierce determination and I think courage to do what no other Democratic senator would do.And he marched off to the Senate floor, and he gave a speech called "Robert Bork's America," in which he declared that if Robert Bork were confirmed to the Supreme Court, women would be relegated to back-alley abortions, blacks would return to segregated lunch counters, children would no longer be able to study evolution.He really sounded the call [about] just how dangerous this appointment was.

I've talked to people who were on the Republican side who thought, well, the old rules of advice and consent, yeah, Bork's controversial, but we'll get it through; there may be a little dustup, but it will be fine.But when they heard the Kennedy speech, including Bork's son, who was standing in the White House Counsel's Office when it comes up on television, drinking champagne, toasting his father, and he sees this.Some people just were in super-denial, said, "Oh, that's just Kennedy; that will be disproven."And others said, "Wait a minute; looks like we're in for it."Were you around during that time, and did you know what a moment was ahead?

We had studied Robert Bork's record and were ready, because for a few years leading up to that nomination, we knew that only Robert Bork would be able to energize, give urgency to both the right-wing evangelicals who were clamoring for Robert Bork, as well the big-business groups.So we knew the moment he was nominated that we were in for the fight of our lives.

What we didn't expect, really, was Ted Kennedy going to the floor, because after all, few Democrats have really given voice to American people's fears about nominees, and here you have essentially a Democratic senator going down to the Senate and declaring war, but more importantly, announcing to the American people, “We are giving new urgency to our advice-and-consent role as senators.”That was a departure.

What did you think it was going to take to take Bork down?

I think the most important part of the effort to defeat Robert Bork was sharing his record, which was vast.There was something in Robert Bork's record to anger every constituency in America, and it was our task to educate people across the country about his views and how dangerous he would be if he were to be confirmed to the Supreme Court.And he had another strike against him—not major, but remember, he had been the acting attorney general in the Nixon administration who had gone the extra mile to fire Archibald Cox.And already, that activity had created some unease among many people.

But the heart and soul of the effort to defeat Robert Bork was to make sure that Americans across the country knew his record.And—

Hence the Gregory Peck ads and the other—

Hence the ads.But more importantly, that two-and-a-half-week hearing was a magnificent display of what the Constitution meant, and what the Constitution meant to everyday people.Joe Biden (D-Del.), who was chairing the committee—remember that the Democrats had regained control of the Senate in 1986—really had an opportunity to conduct a very wide-ranging hearing.And we saw something that we haven't seen since, and that was we saw a candidate step up to that table and share his views on almost every aspect of his record.He was forthcoming.He went into vast discussions of his beliefs.We've never seen that since from a nominee to the Supreme Court.But I think Robert Bork believed that if he actually displayed his quite amazing intellect, he would be confirmed easily.

Robert Bork’s “Intellectual Feast”

We talked to Alan Simpson (R-Wyo.) yesterday, interviewed him, and he had asked him a question where a lot of people we've talked to say was one of the final nails in the coffin for Bork, which is when he asked him why he wanted to be on the Bork Supreme Court, and Bork said, "It would be an intellectual feast."When he said that, what were you thinking?I mean, it became the sound bite of the day.

His comment that it was—that he wanted this position because for him it would be an “intellectual feast” had him appear as if he was an individual devoid of any humanity.It was a very honest statement on his part, but it really portrayed this individual as someone without compassion or humanity, and I think it gave the senators, particularly those in the South, an opportunity to talk about his record and galvanize constituents to oppose him.

The other feature about Robert Bork was his beard.And I do remember a moment when Howell Heflin (D-Ala.) asked him about his beard, and he came across as someone who was highly intellectual, devoid of humanity and a little scary.And that created an image that Americans felt very uncomfortable with.

It's an interesting thing about national civics lessons taking place on television.You think of the big moments—the Army-McCarthy hearings, Watergate hearings, then the Bork hearings—in terms of just, wow.And to lay somebody like Bork before the American people and the senators and watch that happen, it seems like it changed things in a way.It woke people up to paying attention to the Supreme Court in a way that maybe they never really did before.

I think that's right.It certainly woke up the right wing of the Republican Party, because I think they pledged after Bork went down—and the vote was 58-42; that was a significant negative vote—that they were going to do things differently.That was a real turning point for the Republican Party.

And after that, they coached nominees: "Say as little as possible; give as little as possible; hide certain facts in your background."They learned the lesson from that.

Advice and Consent

There are, of course, those who say, wait a minute: the idea of advice and consent is qualifications and character.He is certainly qualified.There's really nothing in his character—maybe—from their point of view.He should have walked in.He was nominated by a president.He had the qualifications; they were unassailable.And you may not have liked them politically, but in terms of qualifications, he had done it.… They call it the “original sin moment” for when arguments about being on the court went from advice and consent to a political campaign.

So let's talk about that a little bit.Our wonderful Constitution sets out a role for the president and the Senate.That's been the case ever since the founding of the republic.And that Constitution provides that the president gets to name an individual, but the Senate gets to decide whether or not that individual is fit.And by the time the Bork hearings came about, one in every five nominees to the Supreme Court hadn't made it.In fact, George Washington's own nominee to the Supreme Court didn't make it because of a disagreement he had over the Jay Treaty.

So our Constitution envisions a dual role, advice and consent, for the president and the Senate.What are we looking for in a judge and a justice?From the very beginning of our republic, certainly we're looking for someone who's got outstanding qualifications, high analytical skills.Two, we're looking for an individual of impeccable honesty.And then three, we're looking for, in my view, an individual who understands that the role of the court is to ensure that those at the margins, those least fortunate among us, get a fair shake in redressing problems.

And so the inquiry as to what makes a judge or justice qualified is not simply character, qualifications, but it's that third agreement, and that is their worldview, their views about the Constitution, and most importantly their views about the role of the court and how critically important it is in helping those least well among us get a fair shake.

The Defeat of Robert Bork and the Rise of the Federalist Society

After the defeat, we went and found some stock footage of, believe it or not, young Mitch McConnell (R-Ky.), freshman senator, dark-haired, thin, standing up on the floor of the Senate, basically waving his fingers at the Democrats and issuing a threat that basically said, "OK, you want to change the rules? You want to fight like that? You'll rue the day you changed the way we handle all of this," in effect issuing what we've come to call the supreme revenge that we'll see manifest itself down at Merrick Garland, and certainly maybe thereafter with Kavanaugh.

This was an incredible moment for the Republicans.They thought confirming Robert Bork would be a cakewalk.They had the right-wing echo chamber organized.They had their constituencies in place.They had a president who committed, pledged to get Robert Bork confirmed.They didn't know what hit them with his defeat.

So the other thing that happens, people tell us, is the energy, as you've already said just now, into the right, especially this young, growing group called the Federalist Society that had started on Chicago's campus and Yale's campus and Stanford.That group gets a kind of shot in the arm from this, as we hear it told.Explain to us what the Federalist Society was becoming by the end of Bork.If it starts in '82, by now it's five years old.What had it become at that moment, and what was it about to become?

The Federalist Society began in the 1980s as a network, a network and a recruitment operation, to seed the federal courts at all levels with judges who subscribed to their jurisprudence.They sought out right from the very beginning nominees, candidates who provided two essential ingredients: one, ideological compatibility with the Federalist Society's goals; that being, they sought out what they called individuals who subscribe to the notion of original intent.Let's go and evaluate constitutional questions based on the original meaning of the Constitution.Two—and this is equally important—they sought out reliable candidates.Reliability was critically important to them.They wanted to make sure that those nominees to lower courts and the Supreme Court wouldn't come back and surprise them.And from the very beginning, they went out to the law schools, they started talking about original intent.And after all, original intent is simply a hoax; it's a sham.What original intent really means is, it's a jurisprudence that seeks to make the courts pro-business, help the courts throw out environmental/consumer health and safety, worker civil rights regulations, and bring about a change in abortion, prayer in school.But they have been able, successfully, to talk about original intent as being their jurisprudence.

They set their sights on seating judges at the lower courts, for the lower courts, in the early years.That was critically important, because most of the judges who go to the district courts and courts of appeals, as soon as they get on those courts, the first thing that occurs to them is, "Hmm, this is really nice; how do I get elevated?"

So those judges that they put on those powerful courts of appeals were, became, really the farm team for the Supreme Court.So they seated those lower courts with the hope that one day they'd put a Robert Bork on the Supreme Court, an Anthony Kennedy on the Supreme Court, a John Roberts on the Supreme Court, a Sam Alito, a Neil Gorsuch and so on.

And certainly for the Federalist Society, not only did they have a united jurisprudence, but they have resources, financial resources.They can go into any corporate boardroom in America and raise money.If only we could.They put—well, they're able to raise money from Charles and David Koch, the Mercer family, the Richard Mellon Scaife Foundation.[They] pour millions of dollars into their coffers to help them not only conduct panels and screenings at law schools around the country, but actually help carry out campaigns.So they've got an endless source of money.

The Nomination of Clarence Thomas

So they're, by 1992, on a couple hundred campuses.They're in all the major conservative law firms.They've spread across the land in district courts and appeals justice jobs.And when H. W. Bush is president, they are pushing a button, once Justice [Thurgood] Marshall decides to retire, push a button that says, “We need somebody on the court now who's a member of the Federalist Society, who meets all of our litmus tests, and it would be nice if he was a black justice; we may even have one or two in mind for you.”Take me to the creation of Clarence Thomas.

Well, the creation of Clarence Thomas actually begins a little bit earlier, because we have to remember that George H. W.'s first justice to the Supreme Court was David Souter, and David Souter was a relative unknown to the Republican Party…

…So he puts David Souter on the Supreme Court, …and lo and behold, David Souter turns out to be quite an independent justice; in fact, I would say the kind of justice Americans should be proud of—rules one way on certain cases, other ways, but in essence is viewed by most Americans as fair and independent.But that did not sit well with Republicans, particularly the business community and the right-wing evangelical community, who wanted a hard-right nominee.

So when Thurgood Marshall stepped down, naturally the administration turned to Clarence Thomas.Now, we knew the nominee would be Clarence Thomas.How did we know that?Because President Bush had nominated Clarence Thomas to the D.C. Circuit, which is a feeding ground, which is the farm team, often, for the Supreme Court.So the minute Clarence Thomas was nominated and confirmed to the D.C. Circuit, we got busy.We researched.We were ready the very day that George H. W. Bush went to Kennebunkport and declared, "I think Clarence Thomas is the most qualified candidate in American history."By the way, that was the first and last time he ever uttered those particular words.

…Did you guys know you were in for a super-fight, and were you ready for it?

We knew we were going to be in a bruising battle from the beginning because Clarence Thomas was not an unknown, and I say that because during his tenure at the EEOC [Equal Employment Opportunity Commision] and Department of Education, senators like Howard Metzenbaum from Ohio, Paul Simon from Illinois, had called him to testify, asking him: "Why are you turning your back on the elderly in this country?Why are you not enforcing Title VII of the Civil Rights Act?What are you doing at the Department of Education not promulgating helpful regulations?"Democratic senators knew him and his record very well.

And we're ready.We're ready to confront him.And after all, at his hearing, Democrats raised very serious allegations.Remember, when his nomination went to the floor from the Senate Judiciary Committee, that committee was split right down the middle.Even Howell Heflin, very conservative Democrat from Alabama, did not vote for Clarence Thomas.

Let's not get too far ahead of ourselves.He's, of course, and Jack Danforth (R-Mo.) and others, [Reagan’s Chief of Staff Ken] Duberstein and others who are around him and managing him, and Alan Simpson, they're all in there to get him through the process.They've learned from Bork.They say don't talk in any detail.They decide to make what they call the Pin Point strategy.

Pin Point, Ga.

So where he's from—his grassroots story, bootstraps, almost an orphan, Catholic seminarian.They laid out the strategy, and it was up to the Democrats to try to call him out.But it wasn't easy to call him out, was it?

Well, you're right.They went for biography—here's this guy, poor, you know, pulled up from Pin Point, Ga.I think Democrats did as good a job as they could have pointing out deficiencies in his record.… But nevertheless, look, even though race was certainly of paramount importance, this was a nomination that put racism and sexism in the spotlight.But even though it was an uncomfortable position for Democrats, you have to remember that the Democrats were split.The committee was split when that nomination went to the floor.

Allegations by Anita Hill

…Somebody has told us, and I think it seems to be true, that if you get to the table as a nominee and you're just in front of the Judiciary Committee, you're 90 percent of the way there.Certainly in the old days you were 98 percent of the way there, the old days being before 1955.But this guy is sitting there.You may have nicked him here and there, but you haven't winged him, and he's not really on fire anywhere.And then it turns.And it turns on a character issue.How does that happen?

And I would agree with that, because by the time someone is at that table, the White House has lined up supporters, not just in Washington, not just the legal intelligentsia in this city, but people all over the country who will speak up for the candidate.

So obviously Anita Hill changes the dynamic.Someone in the office of Alliance for Justice attends a dinner party shortly after Thomas' nomination and learns at this dinner party that there's a woman who claims that she was harassed by Clarence Thomas.And someone on the staff of our organization comes in to the office the next day, and we do a little bit of superficial research and realize that this individual is Anita Hill.

And you have to understand that before this, there were plenty of nominees whom we learned, in the course of researching their backgrounds, had engaged in sexual escapades of one kind or another, and you ignored it.I felt the fact that some candidate engaged in extramarital affairs was not relevant to one's qualifications of being a judge.However, the allegations around Clarence Thomas were serious because they focused—they involved the very individual who was entrusted at the EEOC and Department of Education to implement our civil rights laws.So this conduct, we felt, was directly relevant to qualifications.

And we did not call Anita Hill; that would have been foolhardy given we were already out in opposition to Clarence Thomas.But we called Sen. Biden's office, who was chairing the committee, to share this information.And at that point, we mentioned, "We have no idea whether or not these allegations are true, but they're critically important, and they need to be investigated."

And then you know the rest of the story.

…How did you feel when that was happening?Did you ever worry that it was getting a little out of control?

Oh, it was completely out of control, completely.… You had Republicans, one by one, attacking Anita Hill, calling her a liar, saying that she made up facts, saying that she was a little bit slutty and a little bit nutty.Republicans didn't care what they said…You had Republicans at all costs ensuring that at the end of the day Clarence Thomas would get confirmed.Not only would they attack Anita Hill's credibility, but they would portray Clarence Thomas as a victim using anger, using vitriol, and must have counseled him to avoid the merits.I mean, he didn't even talk about the kind of environment he led at the EEOC and Department of Education.They counseled him to be angry, be vitriolic, show the victim side, but avoid discussion of the merits.

Clarence Thomas Alleges a “High-tech Lynching”

…And it is as a result of that conversation that he comes out and utters the famous phase.

“High-tech lynching,” yeah.

Were you in the room when he came out and said that?

I was in the room.And there were several points of that hearing when I knew our side was not going to prevail, certainly when he resorted to such violent language as a “high-tech lynching,” to when the Democrats failed to call to testify some of the women who had very similar stories to Anita Hill.I knew it was over when the Democrats refused to call Anita Hill back for a second interview before the committee.So there were several different phases along the way when I said to myself, “This is over.”

Why was it over?What had that done that was so effective?

One, they played the race card from beginning to end, scaring people around the country, and certainly those senators, that if they didn't confirm Clarence Thomas, they would forever be viewed by the American public as racists.I think that was probably in the Republicans' mind the brilliance of the appointment from the very beginning.

…So Thomas gets confirmed.

Yeah.

At the end of Jane Mayer's and Jill Abramson's book, he essentially says: "I'm 43 years old.For the next 43 years of on this court, I intend to exact revenge on what has happened to me."

And he's done that, yes.Well, he's certainly had his revenge on all of us.But it's important to remember that while he did get confirmed, which was certainly disappointing, we got a Democrat elected president because of thousands, hundreds of thousands of women going to the polls and voting.We got four women elected to the Senate.We got women elected to the House.So the backlash to the Clarence Thomas nomination actually, I believe, helped put a Democrat in the White House and get women senators elected.

The Death of Justice Scalia and Mitch McConnell’s Gamble

Now let's go to Garland.

Oh, God.

So [Antonin] Scalia dies, and within—

Forty-eight hours.

—an hour, an hour and a half or something, I think it's very quickly, McConnell is on vacation and he issues a statement, because there's a debate that night of the Republican candidates in South Carolina, and he doesn't want any of them, like Ted Cruz (R-Texas), naming potential justices.So he says, "There will be no—”

Hearing or vote.

“—hearing or vote."Were you astonished when you heard?

Oh, I wasn't astonished at all.However—

Wait.So where are you when you hear this?Do you remember?

Oh, do I remember!?I'm in a Chinese restaurant in Cleveland, Ohio, and my office calls me to say—well, first they called to say Scalia died, and then they called to tell me about McConnell's statement.Was I surprised?No.

Let me take that back.I was surprised.I was surprised only because it was unprecedented.Never before had the Senate denied a president in the last year of his tenure, presidential tenure, the opportunity to name his Supreme Court.Look at 1988, Ronald Reagan's last year.After Bork goes down, Democrats go ahead and confirm Anthony Kennedy.So this was unprecedented.It was audacious obstructionism the likes of which I had never heard before.

He said it was his greatest political achievement.

Yep.Well, I'm sure he would say that, because not only did he prevent Merrick Garland from being confirmed, but he also prevented dozens and dozens of highly qualified, fair, open-minded candidates, who, by the way—and this is important—had support from home-state Republican senators from getting confirmed.So not only did Mitch McConnell block Merrick Garland, an act of unbelievable hubris, but he kept Republican-supported candidates nominated by Barack Obama from being confirmed to seats with the hope, as we now know, that a Republican would be elected president so that that Republican would be able to fill all those seats.

It is an act of supreme revenge.

Well, I'm not—yeah, it was supreme revenge, but very much in keeping with his desire, along with Republican candidates' desire, to galvanize the right-wing base to get out and vote.Remember, this was an election year, and the one reliable thing that Republican candidates can do in order to get their base out to vote, the right-wing base, is talk about judges.

Mitch McConnell and Control of the Courts

…But are you disappointed, as many people we talked to are, that President Obama, a graduate of Harvard Law School, a lawyer, a professor at University of Chicago Law School, wasn't more interested in fighting the fight from the very beginning to get a different level of justice out there in the district courts, the appeals court, and of course on the Supreme Court?

Yes.I mean, I'm disappointed.My view is, I don't want any more constitutional law professors becoming president, because if we look at Bill Clinton and we look at Barack Obama, they have very clear views of the courts and judges, and they don't believe, actually, that judges are there to make policy, bring forth advances in America that will help people of color.They believe that role is one best done by the legislatures, and judges and justices are just there to uphold the law.

But Mitch McConnell knows something they apparently don't know, which is they last forever.These guys are there for 30 years.

Mitch McConnell knows two things, three things: It's an election, and I'd better get my guys elected, so I'd better talk about judges every day.Number two, judges are there for life.I may be there, Mitch McConnell, for six years, but whoever we put on is there for, could be, 40 years.And as much as Republicans like to say that they want judges who will interpret the law, not make the law, they know that they want judges up there who will turn the clock back on human rights, civil rights, women's rights, health and safety protections, and they know that in their heart of hearts.George W. Bush used to talk about wanting judges who will interpret the law, not make the law, and it was poppycock, and everyone knew it.But, and I would say most importantly, what Mitch McConnell wanted more than anything else was for a Republican to win that White House and have the opportunity to fill those seats.

Now, going back to Obama, when he entered office, it's important to note that he faced an economic crisis.The country was facing an economic crisis, and he was devoted, committed to getting health care through the House and Senate, and he made a decision that he was going to put all his time and effort into getting health care enacted.And he put judges on the back burner, and not just for one or two months, but nine or 10 months.That created a real crisis.Number one, there were openings occurring all over the country on these federal courts.Two, there was a very brazen effort by Republicans, right from the beginning, of Obama's administration to do everything and anything they could do to put obstacles in the path of his getting his judges confirmed.And they refused years later to confirm dozens and dozens of his candidates.They refused—these are senators—to even turn in their blue slips, and I assume you'll have someone talk about blue slips, so that he wasn't even able to nominate judges—I think there were 11 openings on the courts in Texas during the Obama administration—simply because Senators [John] Cornyn and Cruz refused to give their permission for judges to be nominated, nominees to be sent to the Senate.

Donald Trump’s Nominee List

So here we are, after McConnell has decided to hold Merrick Garland out of the game.It's March, I think, of 2016.Donald Trump is emerging as the victorious nominee.But he has a problem, and that is that the conservative right and the evangelical right don't believe he's really a conservative, especially when it comes to the courts.…

So Donald Trump had a problem.The right-wing base of the Republican Party, which is crucial for turnout in presidential elections, didn't trust him on the issue of judges.

So he did three things: One, wherever Donald Trump campaigned in the country, he talked about judges.And he had a refrain which he repeated at every campaign stop: "How many of you love me?"—people would raise their hand—followed up by, "Well, even if you don't love me, vote for me; it's all about the judges."

Two, he needed to prove to that base that he was committed to putting ultraconservatives on the courts, so he said: "You know what?I'm going to rely on the Federalist Society.You all know what the Federalist Society is.I'm going to rely on them to pick my judges."And in fact, he then shared with the country a list of 11 names of some of the most ultraconservative individuals you can think of, and said: "Trust me.I pledge to appoint one of these individuals if elected president."And bingo, his right-wing base was then assuaged, came out and voted for him.Why?Because of their passion for this issue.

The Nomination of Brett Kavanaugh

…Skipping Gorsuch and heading for Kavanaugh, tell me the who-is-Kavanaugh story and why Kavanaugh was a choice that Trump and McConnell wanted to bring forward.

Kavanaugh was a loyal political partisan, and one of the attributes that White Houses look for is reliability.Remember David Souter.They couldn't take a risk.Remember Harriet Miers.… Harriet Miers is nominated by George W. Bush.He adored her.Conservative lawyer.And who shoots her down?The Federalist Society, George Will, the right-wing echo chamber, because they weren't assured that she would be reliable.Brett Kavanaugh offered that.He had paid his dues to the Republican Party beginning with service in the White Houses, Republican White Houses, service with the [Kenneth] Starr commission.They knew at the end of the day Brett Kavanaugh would be their guy and once confirmed to the Supreme Court would be in essence Trump's security blanket.He had very expansive views on presidential power, on the topic of health care.He had dissented in two D.C. Circuit cases upholding health care.He had voted against net neutrality, voted against critical environmental laws, voted against the Consumer Financial Protection Board.He was their guy.

He set out from the very moment he was nominated to the D.C. Circuit to do in what we refer to as the administrative state, the ability of agencies to regulate.And therefore, not only was he the dream of the right-wing evangelical community, but the business community was just beyond delighted with his nomination, and they all came out to support him.

The Opposition to Brett Kavanaugh

… So what was your plan? We've seen the stock footage of all the Democratic senators on the committee saying: "He's evil. We're not going to do it. We're going to stop him. We'll do everything we can." But what was your plan? What was the Democrats' plan? How do you actually stop a nominee like Kavanaugh, especially because you don't know that Dr. [Christine Blasey] Ford is out there?

First, it was a challenge because Republicans controlled the committee and the Senate, and we had a Republican in the White House.Number two, Republicans refused to share 93 percent of Brett Kavanaugh's record.That had never really happened before, that a nominee to a Supreme Court seat only shared with the committee, and more importantly with the country, a tiny amount of memos.So from the very beginning it was a cover-up.It was a cover-up engineered by Republicans on that committee and by a Republican White House.Plain and simple.

Democrats were at a disadvantage.They couldn't possibly raise issues, ask questions based on his record when it wasn't provided, so they were at a terrible disadvantage at that hearing.

A New Set of Rules and its Impact on the Court

…Trace for me the curve—Bork, Thomas, Garland, Kavanaugh, Hill, Blasey Ford.Where are we now as we look at the Supreme Court and future deliberations.But really how people look at the court, is it different?

I do think that Brett Kavanaugh's confirmation was a turning point.I think Democrats have to understand at this point that the courts, nominating judges and justices has to be a long-term project, just as it's been for the Republicans going back to 1980s.Because of the paramount importance of the courts, Democrats realized with Brett Kavanaugh's confirmation that they can no longer be the passive party here in this engagement.

And I say that in large part because, number one, Republicans have upended all the rules, the customs and traditions of the Senate.Democrats play by the rules.They abide by the blue slips.They—take Elena Kagan—turn over every document they possibly can to ensure that the hearing is fair.They do coach their candidates to tell the truth.That all changed with Brett Kavanaugh.The rules were thrown out.The customs of the Senate were thrown out.If Democrats regain control of the White House in 2020, they will no longer play by the old rules, the old customs.

Two, Brett Kavanaugh is going to be on that court for a long time.Republicans have cemented their right-wing hold on that court, which I do believe will help to galvanize all the constituencies in the Democratic Party that they've got to play, and play hard, and that they can't win a fight unless they begin a fight.They've got to understand that at the very end of the day, what this fight is about is power.It's power and American democracy.Republicans see judges as pathways to power.Democrats see judges as pathways to justice.

What the Democrats need to do is put power in that—Democrats now need to see that in order to reshape the courts so that our judges on our courts are fair and open-minded, they've got to exert power from the very beginning.They can't let nine months go.They've got to choose individuals, not just to have records of being prosecutors or corporate lawyers.They've got to look at a whole other range of candidates.Got to look for lawyers who have been civil rights litigants, pro-choice litigants, environmental, supported workers' rights.They have got to put on the bench, the federal bench, at all levels, individuals that understand at their very core that the courts are there to uphold human rights, civil rights, workers' rights, not turn their back on everyday people, and that they don't serve large corporate interests but the interests of all Americans.

I do think Kavanaugh will be a turning point because of the hold that the now-ultraconservatives have not just on the Supreme Court, but lower courts, but because people have seen that we've got to play by a different set of rules, customs and traditions going into the future.And they've got to fight.

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