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Ted Olson
Former U.S. Assistant Attorney General
Ted Olson is a lawyer who served as U.S. assistant attorney general in the Reagan administration and solicitor general under George W. Bush. He has argued high-profile cases in front of the Supreme Court, including Bush v. Gore and Citizens United v. Federal Election Commission.
This interview was conducted by FRONTLINE’s Michael Kirk on January 24, 2019. It has been edited for clarity and length.
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The Failed Nomination of Robert Bork
Let’s start at Bork. A lot of people referred to him as the sort of philosopher king being put on the court.Your thoughts of the time and the circumstance and the politics of the moment when Judge Bork is announced by Ronald Reagan?
Well, I was very much a fan of Robert Bork’s.I was serving in the Reagan administration.I had finished serving shortly before that.I thought he was, at that time, the most qualified person in the United States to be on the Supreme Court.He had been a professor at major universities.He had written some groundbreaking books on the antitrust law.He had been solicitor general of the United States, and he was a judge on the United States Court of Appeals for the D.C. Circuit.He was highly regarded in the profession and by everyone who had served with him.So I thought, well, this man is an ideal person to be on the Supreme Court.His intellectual capabilities, his sense of humor, his ability to write were qualities that I thought would be very valuable on the Supreme Court.I thought his writing, his analysis, his ability to understand arguments and to raise arguments would be the sort of thing, irrespective of political party, that you would want in a person on the Supreme Court.
So advice and consent, the sort of standard, certainly up to this moment was what everybody’s expectation was for Robert Bork.He was going to walk in.
Yes.I think most of us assumed, whatever your political party was, that that is an individual that has done everything that you would have expected or hoped of someone who you were going to put on the United States Supreme Court.The American people see the Supreme Court even today as people who are intellectually extremely well-qualified, honest people, students, scholars and that sort of thing.And they hope that the people will be very well-qualified.Judge Bork had all of those things.
We talked to Bork’s son just a little while ago here, and he was talking about how he’d been there for the Reagan announcement of the nomination of his father.They had gone down to the White House Counsel’s Office, and they were having a glass of champagne when Ted Kennedy (D-Mass.) came out on the floor of the Senate.Where were you, and what did you think when Kennedy came out?
I don’t know where I was.What I thought was, it was an outrageous, scurrilous attack on an honorable person.Now I will say that I was a friend of Bob Bork’s and an admirer of Bob Bork’s.I knew him and his family.I knew his character and his integrity.I knew that he was honest and objective.And it would have been one thing for a criticism to be made about his judicial philosophy or his conservatism, which was judicial conservatism.Read the law.Read the Constitution, and so forth.But the attack on him was vicious, unjustified, and I thought was taking us down a very dangerous path.And I knew it was going to be hurtful to a man I admired.
So what did you chalk it up to?What was Kennedy—what were the Democrats doing at that moment?
Well, I thought, my sense was that it was pure politics.They did not want a man of his intellect, of his persuasive powers, on the Supreme Court to affect the decisions of his colleagues on the Supreme Court.They were, I thought, intimidated by what he would be on the court, how much of an influence he would have on the court, how much [persuasion] he might have on his colleagues on the Supreme Court.They did not want to see that happen, and I think they made a conscious judgment that, “We will do whatever it takes to take him down.”
And a lot of what they did was, they create a war room, obviously.This was one of the first times it’s really so effectively and decidedly directed at a Supreme Court nominee.Gregory Peck does television ads.Norman Lear is around from People For the American Way.Three hundred different organizations form up around it.Were you surprised at the strategy?
I was.Yes, I was surprised at the strategy, the force and the breadth and the depth of the statements and the coalition that was created.And everything that was being thrown at Bob Bork, I couldn’t understand it, except to the extent that I knew it was raw politics.And it was war.They created a war room.They meant it as war.I was very disappointed.We’d never seen that before with a Supreme Court justice, not in my lifetime.We had seen objections.There were objections to Abe Fortas.There were objections to Harrold Carswell.And there were other objections to justices.There were huge objections when Justice [Louis] Brandeis was appointed; he was the first Jewish justice.But there was never anything like this that I had ever experienced or had read about.It was full-scale war.
So he, in some ways, doesn’t heed some of the advice that’s being given to him by [White House Chief of Staff Howard] Baker and others: Just calm it down.Don’t be Professor Bork.Don’t give them too much.Don’t give them enough rope to hang you.But that’s not his character or quality, is it?
No, he was advised to shave off the beard, because in those days, people thought, well, wearing a beard is a little strange, or that’s what people do when you can't trust them.I can't remember the reasons, because we wouldn’t say those things today, I don’t believe.And of course in an earlier era, a lot of them had facial hair.But he was told to be very modest in his statements, to be uncontroversial—to use the phrase that President Obama is famous for, “No drama.”Bob Bork, that was not in his character.Bob Bork was a very honest, straightforward man and an intellectual.He had been a law professor.He had created new ground with antitrust laws.He was used to the give-and-take with his students.He said provocative things to get his ideas or other people to challenge his ideas.The intellectual marketplace was a place that he was very comfortable with.
And I guess he assumed, or felt he couldn’t restrain himself, but I guess he assumed that this marketplace of ideas was what they expected or would hope for in a Supreme Court justice.You get into an intellectual argument with this person and find out how their mind works.I think he felt—I'm pretty sure he felt that that was something that he had to do, and was something that he was comfortable doing.And he disregarded the advice that they tell every person now being nominated for the Supreme Court: “Don’t make any waves.You know, be polite. Be quiet. Be responsive.But don’t say anything more than you absolutely have to.”
They got him on sterilization.[Howard] Metzenbaum (D-Ohio) went after him.Somebody asked him—the way they talk about it now, the Democrats talk about it now, they think, “Well, case closed; the minute he says it’s an intellectual feast to be on the court,” that he made these simple faux pas that were actually creating great sound bites.
Right.And he was asked a lot about some of the earlier decisions of the Supreme Court that recognized the right to contraceptives, a right to abortion, a right to marry, a right to divorce, some of those things that he didn’t believe were written into the Constitution.But the debate about things like that, he regarded, and he said so, would be an intellectual feast.He welcomed the opportunity to debate with equals on the Supreme Court these ideas, jurisprudence, where the Constitution allows you to go, where the Constitution restricts where you go.Bob Bork’s whole life was intellectual debate.He loved it.He changed his mind over times on various different things, including antitrust, which was one of his passions.But he understood and believed that you learn things by debating them.You learn things by listening to your opponents.And that’s what he meant by an intellectual feast.Sitting around with great minds and talking about how this case should be decided and what it would mean, he was very excited about that prospect.
But the fact that it’s definitive proof to some members of the committee, what does that say about them and where they're coming from?
Well, it’s a tragic thing that someone who had that degree of honesty and openness and was willing to debate all of these issues, that represented to many people a flaw in his character and a weakness that could be exploited.And sure enough, many of the senators did do that.And they were successful in persuading the American people, this was a dangerous person.And it was the least thing, because Bob Bork was really relatively modest in his ideas.His judicial opinions would have been very cautious.They would have been brilliant.They would have been possibly, in some respects, provocative.But he was a cautious person, juris prudentially, in terms of his view as to what powers the court had.
The founders of our Constitution characterized the Supreme Court as the least dangerous branch.Bob Bork believed that judges only decide cases, and they decide them within narrow confines of the written documents that they have to work with, the Constitution and the statutes, and the court’s previous precedents.He would have been a relatively conservative juris prudence.
One of the people—
He would have been a relatively conservative jurist.
One of the people who was a sort of legal superstar at the time, Larry Tribe, Professor Tribe from Harvard, comes down.He works with the Democrats and murder boards with them, preparing for examination of Professor Bork.Tribe also testifies at that moment.And a lot of people ascribe to Tribe’s testimony the power of basically sealing the deal against Bork.Your thoughts about that moment?
Well, I was disappointed.I have—always been an admirer of Professor Tribe.I am to this day.He and I have a good friendship.I'm very disappointed in what he said during Robert Bork’s confirmation process, because I think he became a political or a partisan advocate.Now I don’t question Professor Tribe’s integrity.He has great integrity, and I know he believed what he said.But I thought his testimony was unfair, and I thought his testimony was very dangerous, because at the time, he was considered to be—and maybe in many respects, today, still is—the leading expert on constitutional law.I have two or three of his books on my shelves which I consult when I'm working on a case.I was very disappointed in what he did, and what he did was very damaging.
When it all ends, when the five days of hearings, 10 hours a day end, there's a moment where I think forces come forward and say: “You should pull out.Let’s not get voted down here.Just get out of the game now.”And his son talks to us about—and Al Simpson talked to us about that consideration.And Bork decides to stay for the fight.Why, do you think?
I don’t think that Bob Bork then, or any time in his career, would have walked away, withdrawn his name.To him, I'm sure that would have constituted an admission that somehow he wasn’t qualified; somehow his character or his intellect weren’t appropriate for the Supreme Court, or that his ideas were dangerous or bad for the American people.For him to walk away from the confrontation, if you are going to vote me down, then raise your hand and vote; take a position on the record.I'm quite confident that his feeling was that the worst thing that he could do, from the standpoint of himself, the Supreme Court and our American political system was to allow the kind of attack to which he’d been subjected would drive him away from the opportunity to be voted on.If you're going to defeat me, defeat me.I will not surrender.
Did you ever talk to him about how he personally felt in the aftermath of the defeat?
Yes, I did.We had many conversations over dinner.He was very—and he wrote about this, of course, in a couple of his books that he wrote subsequently.He was very I won't say bitter, but I suppose if it was me, I would have been bitter, cynical about the process or disappointed in the process, disappointed in what our political institutions had become with respect to positions on the Supreme Court.
I think Bob Bork, if he’d have been on the Senate, and if there had been a liberal that had the same profile as Robert Bork and who had ideas and had written opinions or made statements that were just the opposite of his, Robert Bork, in my opinion, would have voted every single time to confirm that person for the Supreme Court, because he believed that the intellectual character of the debate was something that was very important for the court.So he was very disappointed that someone who he knew what his experience was, he knew what his talent was, he knew what his intellectual capability was—and I know he was, and he expressed this—that he was very disappointed that not just what it meant for him, but what it meant in the future for individuals who would be nominated to the Supreme Court.
Some of the people we talked to say, especially Democrats, say—I mean Republicans say, “This is the original sin.The Bork denial is the original sin of what will follow all the way along over the next 30 to 40 years.”How do you see the implications and the impact on what happened there?
I do believe that the Bork confirmation, or the Bork non-confirmation, was a turning point in our history.There had been, earlier in our history nominees rejected from the Supreme Court.The second person nominated for the Supreme Court was defeated.I think it was 14-10, something like that.There had been controversial confirmation proceedings, but this one was different.This one was blatantly partisan, rawly political, and I think it was a turning point.
And we've seen that.… —John Paul Stevens was confirmed unanimously.The same is true of Justice [Antonin] Scalia, Justice [Anthony] Kennedy, Justice [Sandra Day] O’Connor.There were three votes against some of the other justices.After that it’s been downhill.It has been a license.It’s sort of like the Palestinians and the Israelis, or what the battle in Ireland and Northern Ireland was, that every action provoked an equal, or war, opposite reaction, so that every slight to any candidate of any party justifies retribution to the next candidate from the next party.And so no holds are barred; anything goes.And that was the turning point.
The Rise of the Federalist Society
It’s a wonderful opportunity for us to step back just a little bit and talk about, I’m going to talk now about the creation of the Federalist Society.In a world where the Democrats had pretty much had their—the liberals had had their way with [Earl] Warren court, [Warren] Burger court, a lot of decisions going that way.Suddenly Reagan gets elected.And one of the aftermaths of Bork’s denial, as far as we can tell, is that there's been a group formed on campuses, Yale and Chicago, Scalia and Bork had been advisers.You had spoken to them in 1981, I think, or ’82.
It was ’82.
’82.
It was the very first—my speech to the Federalist Society was the very first organized meeting of the Federalist Society, was at Yale.I think it was April or May of 1982.Bork was there; Scalia was there; other notable conservative figures were there.
What was the idea of the group?
These were students that had been unhappy with the fact that they felt that their law school education was tilted so strongly to the left, that they were not hearing opposing views; that students were not being given the opportunity to hear a debate about—intellectual debate about ideas, structure of the government, individual rights and things like that.They thought that they could form a group that would provide a platform for people to have debates.
That was really the idea, and it still is today; that we will get people together, smart people, on both sides of the political spectrum, and let them have it out in front of audiences of students, and let people decide.The Federalist Society has never taken a position on any issue.It doesn’t file briefs.It doesn’t file lawsuits.It doesn’t pass resolutions like the American Bar Association does.But what it does do is have great programs with people on opposite sides and in the middle to talk about ideas, how government is run, how government regulates business, how the Constitution is interpreted.That was their idea.I don’t think any of the students then, or any of the participants in the program which was the first one, had any idea of what it would become or how sustaining the concept would be.
But the fact [is] that young people like to hear ideas.They don’t like to be told, “This is the way, and that’s the only way.”Young people have inquiring minds.Hopefully they have; they still do.And they were open to that.And then, as time went by, and members of the Federalist Society at various different law schools graduated and became lawyers, some of them became judges; some of them became government officials; some of them ran for office.There's three or four senators who have—are graduates of the Federalist Society.
So all of this began a process which took root because it didn’t force you to have a particular position.You could be any person with any idea.You could be a socialist; you could be a libertarian; you could be a Republican; you could be a Democrat.And in those days, you paid $25, you were a member of the Federalist Society.I think it’s $100 now.But even if you're a member or not of the Federalist Society, you can go to the meetings.No one keeps you out.Any member of the press can go to the meetings.Nothing is secret; nothing is behind closed doors.And what you see, if you go, is a debate.Your ideas will be reflected there, but people with opposite ideas will be articulated also.Then you go home and make up your mind.
And the idea that Bork is turned down—“repudiated” is not too strong a word, I think, in some ways—and this group that he’s been an adviser to, that found a home with each other, it seems like it energizes the society in a way that is reaping benefits even to this day.
Yes.I mean benefits, I guess.It has energized the members of the Federalist Society and members of the Federalist Society, or young people that have come along many years afterward.You mention the name Robert Bork at any Federalist Society event, he’s virtually a god to them, and a martyr, because they respected his brain.They read the things that he wrote as a judge or as a professor, or in his books, and they admire his brilliance.And they think that was terrible, and that was unforgivable that he should be denied a position on the Supreme Court because of his views, because he was a conservative.So Federalist Society members haven't forgotten that.
The Clarence Thomas Approach: Don’t Say Too Much
So let’s create the world in 1992. H. W. Bush is president.He’s picked [David] Souter, not to the pleasure and happiness of conservatives, judicially oriented conservatives especially.It’s time to pick somebody for Thurgood Marshall’s seat, and it’s eventually Justice [Clarence] Thomas.Federalist Society member, happy to do it.Give me the sense of—and we’re about to watch another Bork-like, not in exactly the same way, but another critical moment in this trail of tears you and I are talking about.Set the scene for me.It’s 1992.Take me into the nomination of Justice Thomas.
Well, the nomination of Justice Thomas raised some of the very same things that had played out in the Bork process.Now Justice Thomas was accused, unfairly I believe, and unfairly members of the Federalist Society or people of like mind feel, but that he was attacked because he was a conservative African American, taking the position of a liberal African American.Now, “conservative” and “liberal” don’t quite state it, and I hate to use those labels, but that’s the way many people would have perceived it.
Thurgood Marshall was a warrior.He was a pioneer.He is an icon, and someone for whom many of us have great respect and admiration for him and his career.Clarence Thomas was only 43 years old.He didn’t have the kind of record of litigation that Thurgood Marshall had.His ideas were conservative.But they weren’t very well-known.He had been, at the time, I think before he went on the United States Court of Appeals for the D.C. Circuit, he’d been head of the EEOC, the Equal Employment Opportunity Commission.But nobody knew who he was.
His appointment to the D.C.
Circuit I think was relatively uncontroversial.I don’t remember a controversy about it.But now, here again, was going to be a conservative taking the place of a liberal, and it was worse yet for many people, because he was an African American, and many people resented or despised the fact that a conservative African American would take positions that were anathema to many people in the more liberal wing of American politics.
It’s interesting that the—you know how in foreign policy and every other sphere that you and I know about, people are always fighting the last war.So it’s the Republicans over at the Eisenhower Office Building create a war room.Eleven people are assigned to it.Murder boards are started for Thomas.The Democrats are sort of over on their side of it.And it feels like a reaction to what was so politicized in Bork is about to happen again.And they're trying to prepare Thomas for what was going to come from the Democrats at the time.
Well, that’s right.When that appointment, that nomination was announced, the individuals in the George H. W. Bush administration and people affiliated with the process knew what was coming.They remembered vividly what had happened with Robert Bork.They knew, because this was a conservative African American jurist replacing a liberal African American icon in American politics.They knew it was going to be a pitched battle.So they put together the same kind of operation that they had seen in the Bork process.We have to be ready.We have to give Clarence Thomas, Judge Thomas an opportunity to fight back and be fair and to prepare him for the hostility that he’s going to face in that Senate Hearing Room with the television cameras blazing, senators giving speeches filled with vitriol, many of them.It’s going to be very contentious, and you must not lose your temper.You must not let these people get under your skin.You have to appear at all times to be placid, calm, and basically inhuman—a robot.Now that’s impossible for anybody, but it’s very difficult when it becomes very personal.But they were attempting to prepare him for that.
Exactly.And this is an absolute opposite of the way—so that you watch Bork, and you say he talked too much, and you say to Thomas: “Use the Pin Point, [Ga.], strategy.Tell the sad story of your life.Don’t get very detailed.Try not to say very much about your policy positions, because they’ll crucify you for them.”That seemed to be the strategy, when you go back and you watch the hearings, and you read the books about it, [John] Danforth (R-Mo.) and others are holding him back, right?“Don’t go there.”I know [Reagan’s White House Chief of Staff Kenneth] Duberstein wanted him to even do less.But that’s one of the things we notice is: “Hold your fire.Don’t get too deep in the weeds with these guys, because they’ll eat you alive.”
Well, yes.So he was advised—I know this—to be very careful, to be very modest.It’s good advice to anybody nominated for the Supreme Court.They're going to ask you about every controversial issue that has ever come before the Supreme Court or might come before the Supreme Court—guns, abortion, religion, everything.They're going to ask you this.President Lincoln was once quoted as saying, “Someone nominated for the court might be asked questions about how they might rule on a particular matter, and he would be a fool to answer those questions.”Justice [Ruth Bader] Ginsburg later articulated something of the same thing.
And that’s correct, because if you're on the Supreme Court, and you have made a decision about something without reading the briefs, the facts of a particular case, listening to the arguments, you are not an objective person listening.You have to give a fair hearing to everybody, and you can't give a fair hearing if you’ve already made up your mind.And you’ve already made up your mind if you’ve been drawn out in a Senate confirmation process to say how you would decide something.
So he was given that advice, and he was being very careful.But there's a lot of provocation that takes place.Senators can say anything they want.It can be very personal, and it can be very nasty, and it can be very argumentative.And you have to sit there and just take it.You can't smirk, or you can't grimace; you can't make faces.You have to just sit there and take it.The conventional wisdom is if, at the end of the hearing, more time has been spent by senators asking questions or giving speeches than has been spent by you giving responses, you will probably get confirmed.So be careful.Don’t say too much.
The Anita Hill Allegations
That’s right.And it looks like Thomas is going to sail along.People say when you get in the chair in front of the committee, you're 90 percent there, unless something really bad happens.In this case, something really bad does happen: Anita Hill. Why?
Why does it happen?
Yeah.
Well, it depends upon, I guess, who you believe, and depends upon your understanding of the circumstances.We know what she said.She said that he pestered her for dates, that he made off-color statements or off-color humor with her, and she felt uncomfortable.And these days, people would immediately say, “Well, that’s sexual harassment; that’s impermissible,” and that sort of thing.He denied those things.He testified, under oath, repeatedly, that he was respectful to her.He liked her; he promoted her.She kept coming back to him after she left the EEOC, where they had both worked.Why did this happen?Well, historians will have to explain all of this.But her allegations became known to advocacy groups, who then spent a lot of time with her.
And some of the same people came out of the woodwork here recently with respect [to] Judge, now Justice, Kavanaugh, and persuaded her to testify.I think at first she didn’t want to testify.They persuaded her that it was—this was in the interest of the country, that she should give this testimony.Other people who had worked with him, black women at the EEOC, had totally different stories.But then this became immense drama, as we've seen in subsequent documentaries and movies.It became at the highest stakes—what could be worse, you know?I mean, a sexual charge against a person about to be put on the Supreme Court was very, very laden with emotion.
Something happens with him that is also going to happen with Kavanaugh, which is, now it’s time for him to talk back, and he answered back.And he uses the “high-tech lynching” line.When he uses that line, do you remember what your reaction was to it?
I watched much of his testimony.He obviously felt that his integrity, that his manhood, that his personhood was being attacked in ways that he felt was going to scar him for the rest of his life; that this was unfair, untrue, unreasonable, and he had to fight back.And he felt, as a black man, he couldn’t—I think that was part of it; I don’t know that that was all of it.As a black man, he couldn’t sit back and take it; that he had to defend himself.And he had to defend himself in terms which he would understand and he hoped that the American people would understand: “I am a black man.I'm accused of sexual misconduct.”It wasn’t a white woman, but it was a woman.“And that reminds me of lynching, what was done to black men.I'm not going to take it. I'm going to fight back.”
And he did it.Those were, as far as I know, his own words.No one wrote that for him. No one instructed him what to say.And maybe people were telling him, “Just be careful.”But he decided, “I'm going to defend myself in the most positive, powerful words that I can,” and he came up with that phrase.I don’t think he got it from anyone else.
Justice Scalia’s Death and Senator McConnell’s Gamble
… We’ll trace some of that inside this film, all the way up to this moment, what I'm going to ask you about, which is the Merrick Garland, Scalia death, that day, those hours right after Scalia’s death, and Leader [Mitch] McConnell’s press release or announcement or whatever it is.Would you take me there?Tell me where you are when you hear about it and see McConnell’s response.
Well, first of all, I was very close to Justice Scalia.His family and my family had been close.We spent New Year’s Eves with the Scalia and the Ginsburg family, my wife and I.His oldest son is a partner of mine.He had held the position of assistant attorney general for the Office of Legal Counsel, which is a position I held in the Reagan administration.I was a great admirer of him.I was very shocked when the call came to me that day that he had passed away.
When Merrick Garland was nominated by President Obama to replace Justice Scalia, I supported that nomination.In my view, Merrick Garland had all of the qualities that you would want on the Supreme Court.The president gets to make a decision.It’s not going to be a conservative.But here is a man of distinguished education, distinguished background.He’d been a leading figure in the Justice Department, the chief judge of the United States Court of Appeals for the District of Columbia Circuit.I had appeared before him, and I argued before him, and I've had dinner with him.He is a man of scrupulous honesty and integrity.
And my feeling, as a lawyer, as whatever else I am, is that—and as a student of the Supreme Court—this is the kind of person that should be on the Supreme Court.And if it’s Obama who’s president, I was thrilled that he was appointing someone like Merrick Garland.And when Sen. McConnell said that he wouldn’t be given a hearing, I felt that was wrong.And I wrote about it in The Wall Street Journal, and I suggested to Republicans and Democrats that this is the kind of person that should be confirmed to the Supreme Court, and that the Republicans who were opposing him should ask the Democrats, “If we give him a hearing and vote for him, will you give the same respect to a Republican president’s nominee who has comparable credentials?”Ask the senators to take a position on the record, that if we do—if you do this, we will do—give comparable courtesy and respect to a nominee of the other party.Not one of the Democratic senators came forward and bought that, because they had no intention of doing that.
So I think it was a shame and another bad step in this downward spiral.But assuming you have the spiral steps, that things—things go from bad to bad, badder, and worse, and this is a part of it.
Brett Kavanaugh and Christine Blasey Ford Lay Bare the Political Divide
Let’s pull apart Kavanaugh as a case study.You know Kavanaugh?
Yes, I've known him for a long, long time.
So when he’s nominated, did you have any sense that the gauntlet was forming on either side of the road for him?
Well, I knew— When Brett Kavanaugh was nominated, I mean, we’d just been a year or so after the [Neil] Gorsuch nomination.I knew, he knew, everyone knew that this was Anthony Kennedy, you know, who had been there for a long, long time, who was leaving the bench.And Justice Kennedy is perceived as a balance on the Supreme Court, that sometimes votes one way and sometimes voted the other way, and that Brett Kavanaugh is going to be replacing him.I think everyone knew that it was going to be a contentious, tough battle.
I thought—and I have known Brett Kavanaugh since he really started practicing law, in various capacities.I've argued cases in his court, in the Court of Appeals.I have great admiration, personal affection and respect for him, so I admit this bias; I'm not objective about it.But I thought he was the best person that President Trump could have nominated for the Kennedy vacancy.I felt he had a similar temperament, fairness, and integrity.
So here's a guy you really like, and you think is really good, but you know what's ahead of him because of what you’ve known and what you’ve witnessed in your active lifetime in Washington.I think one of the most astonishing things I've ever seen of its kind is the first day of those hearings.I watched it on videotape again a couple weekends ago.And you watch Sen. [Chuck] Grassley (R-Iowa) walk him to the table.You watch all of the hundreds of photographers move out of the way.The Democrats are waiting.The Republicans are waiting.And Grassley taps the gavel and says, “Order, we’re coming to order.”And within 13 words, the Democrats are just all over him.
And people in the audience who had somehow managed to infiltrate the audience are screaming at five-minute intervals throughout the whole hearing.
What's going on?
Well, lots of things are going on.I testified for Kavanaugh in that fourth day, or whatever it was.And they—these protesters screamed during my testimony also.I didn’t let it bother me very much.By then we were all used to the fact.So there's lots of things going on.But the members of the Senate on the Judiciary Committee who are Democrats had to do everything in their power to stop the Kavanaugh confirmation.Democrats on that committee had concerns, I'm sure, for their constituency.And their constituency was saying, “You’d better do everything you can to prevent this from happening, because there is a conservative; he’s young.”He was 50, I guess. Maybe was it 53?“He’s a young man.If he’s confirmed, he’ll be on the court for 25 to 30 years.That’s six presidential terms.That is a key vote replacing a swing vote on the Supreme Court.We don’t want that to happen.And if you are going to expect our support in the future for whatever you might be doing, re-election as a senator or whatever, you’d better be out there taking the harshest position that you can to prevent this from happening.”
And so there were groups organized to have verbal protests that were interrupting the hearing.I don’t think that helped very much.I think many of the people that wanted to stop the Kavanaugh confirmation were not happy with the protesters, because that looked disorderly and was probably counterproductive, at least to some people.But the organizations that were supporting the Democratic senators and their questions were very much interested in as much opposition to Kavanaugh as could be mustered.
Now, he had a perfectly clean—we’re not talking yet about the subsequent allegations—but he had a perfectly clean record.He’d gone to wonderful schools.He’d clerked on the Supreme Court for Kennedy.Everybody liked him.Everybody on the court liked him.His decisions on the appellate court were all—to the extent they went to the Supreme Court—were confirmed.The ones that didn’t go to the Supreme Court were like 93 or 95 percent unanimous.I don’t remember the exact figure.But he was a distinguished person of great integrity and widely respected, so they didn’t have much to work with.
Some of the Democrats on the Senate Judiciary Committee, by that time, were already mentioned as potential candidates for president in 2020.By the time we—you air this program, probably several more will have officially announced for the candidacy in 2020.
Now it feels like he’s going to just kind of—he’s going to get in, despite the vehemence of the protesters and despite the vehemence of the political theater of the Democrats on that side of the table.
It looks like he is going to be confirmed, if for no other reason than the Republicans have 51—is it 51 at that point?
Right.
—votes on the Senate—in the Senate and control of the Senate Judiciary Committee.And if it’s a tie, the vice president can come in and break the tie.So it looks like, unless the Democrats can break loose a Republican or two in the Senate, he’s going to get confirmed.
And what would it take to break loose—a Republican to break loose?
Well, it depends.They were going after Sen. [Lisa] Murkowski from Alaska, Sen. [Susan] Collins from Maine, Sen. [Jeff] Flake from Arizona.There were efforts to convince them not to vote in favor of Brett Kavanaugh.But the arguments weren’t very substantive at that point.They didn’t have anything to hang their hook on.I think he was criticized for some obscure judicial opinions that, if you looked at it, really had no substantive bite to them.So they were looking for ways to at least have some lever with some Republican senators, moderate Republican senators.They weren’t being very successful until the last minute with respect to that.
So when you were testifying, and then we’ll move on to Dr. [Christine] Blasey Ford, you're testifying.And the room is—what does it feel like?You’ve testified before in hearings.What is the difference?Is there a palpable difference?And then, if you will, work the protesters into your answer.
Well, the—the atmosphere in that room, I thought, because it was the fourth day of the hearing, Brett Kavanaugh had already finished testifying, I thought that it would be somewhat subdued.I think it was either a Thursday or Friday, and I thought some of these senators might have gone home, that there wasn’t going to be much fight left in the whole process.And the panel that I was on was a few people on one side, a few people on the other side.The American Bar Association was supporting Brett Kavanaugh, and they provided some of the witnesses.
I didn’t expect it to be too tense or too confrontational, but it was.The room was electric.Virtually every senator—I think every senator showed up, and every senator asked questions of—there were 10 witnesses, I think.And I thought this thing was never going to end.And if you sit there, and they never take a break, you think, well, I need to, you know, visit the bathroom at some point, because otherwise I’ll explode.
But it would go on and on.And the senators were asking questions.The Republicans were taking their opportunity to ask questions.There were protests in the room with people, every once in a while, jumping up and screaming.I couldn’t even tell what they were saying.But then there was an interruption for 30 or 45 seconds, and then this person would be escorted out of the room.I wasn’t watching it, because I was facing the front, and I was trying to pay attention to what was going on.But it was the dynamics and the drama in that room remained strong even on that fourth day of testimony or hearing.
And then, in one of the great déjà vu moments in American politics, the allegations of—first an anonymous person that date back to his high school years, and then finally the revelation of Dr. Ford herself had come forward.As you hear about this, is there a sense of, given everything we’ve talked about today, about your feelings about it all, what was your sense of the early revelations about what she was saying?
You know, I hate to use the word “revelations”—allegations—
Allegations.
—of what was being said, knowing Kavanaugh, as I did, I couldn’t believe that that was the same person.In all the times that I've known him, he’s been a decent, polite, gracious, gentle individual, and I was just surprised and angry and saddened by the fact of these allegations coming forward.If they are to be credited, and I haven't been able to find the way to do that, one could say that, well, maybe it was characterized by this individual more severely than it was.Maybe it was high school kids having too much to drink, being—roughhousing.I don’t mean to discredit her testimony, but we don’t know.And if you believed him, you couldn’t believe it.
But I thought—and I had been very close to Clarence Thomas.My late wife had testified for Clarence Thomas, not with respect to the Anita Hill allegations, but with respect to other things.Here I had testified for Brett Kavanaugh.I was very saddened that what was happening to him was what had happened to Clarence Thomas.
And once someone says that about you, you can never get rid of it… because some people will always believe it.Whether it’s true or not, people will always believe that you were abusive to people of the other sex.
After she testifies, we know from people we've talked to who were in the Oval Office, that not a dry eye—even in the Oval Office, there were people, and those who were crassly political were saying, “We’re cooked here; Kavanaugh is done.”They knew the president was wobbly about him anyway, because of his appearance on Fox, that interview.They were worried about that.[White House Counsel Don] McGahn is in a room kind of helping him get ready to come back out and talk.The president talks to McConnell.McConnell says, “It’s only halftime; relax, Mr. President.”What did you think after her testimony? What were your thoughts?
Well, I wasn’t sitting there watching it.I saw slices of it.Yes, I think that if someone in that position testifies about something that they believe happened to them that was awful and memorable, enough memorable that—how many—30 years later or 25 years later, whatever it was, is still damaging to them, she says that she had talked about that with a psychiatrist or a psychologist, I think almost everyone would feel—I feel badly for her.I hope that didn’t happen.If it did happen, you know, we have to understand, support and respect someone who’s making that kind of a charge, because if it’s true, it shouldn’t happen.That shouldn’t happen in this society.It shouldn’t happen even with young people.
I felt that it wasn’t true.I felt that she—and because the other witnesses weren’t really supporting that version of the events, I thought that maybe something badly had happened to her, bad had happened to her, but I didn’t think it was Brett Kavanaugh.
Did you think he was in some jeopardy after that testimony?If you were saying Flake, Murkowski, Collins, and maybe [Joe] Manchin (D-W.Va.), you could imagine, I guess.
Oh, yes.I think that at that point, one doesn’t know how senators are going to react.Manchin, of course, is a Democrat.He turned out voting supporting Kavanaugh, but it wasn’t apparent, I don’t think, at that time.Yes, if other people running for election are going to say, “I'm going to nonetheless vote for this person,” that’s difficult.And it was a lot of pressure being put on certain moderate senators to postpone the hearing or vote against him.And I definitely felt that, because it was so—such a fragile balance in the Senate that there was some risk that he wouldn’t be confirmed.At the end of the day, I thought that he would be.But I didn’t have any—any factual basis for that instinct.
Brett Kavanaugh Responds to Allegations of Sexual Misconduct
When he came out, and he acted the way he acted—and I’ll leave it to you to characterize it—what did you think?
I thought it was risky, because one way to do this is to say: “I'm just sad.This didn’t happen.I'm sad for her.But I have to tell you that this is not me.And it couldn’t have happened.And I hope that you will believe me and confirm me anyway.”Or you could be irate, unsettled by these allegations that are so damaging to you.As he said: “These will never go away.They will stay with me for my life.”I think he felt that his nomination was in jeopardy.And if it was going to go down, what was his life going to be?He was always going to be the person about whom this had been said.
And so he reacted angrily.And he struck out, struck back at the process and the people who were making these allegations against him.I also felt that at some point, if you poke a stick at a wild animal, or any of us, and you torment that person, and you attack that person, at some point, that individual is going to fight back.And then for people to say, “Well, you shouldn’t have fought back.That’s a strike against you because you're unsuitable for the Supreme Court because your temperament is no good, because you fought back,” I think that’s terribly unfair and unrealistic.So I don’t know whether I felt that that was going to help at the end of the day or hurt at the end of the day.We only knew what the effect was going to be when the votes were counted.
You and I have traveled from Bork through here.It’s a televised spectacle again.It’s a civics lesson again.If Bork happened on television, after we witnessed the Watergate hearings, the McCarthy hearings in the distant rearview mirror, it seems like television is there for every one of these, certainly Thomas and Hill.My God, the drama of it.Now this, about, you know, probably your favorite institution in the American government.Where are we?
I'm very saddened by this process.There weren’t even hearings.There were hearings, but the nominees didn’t come before the Senate, I think, until the ’50s.There had been maybe one hearing earlier than that.And at some point—I don’t know when—they became televised.And you're right to mention the McCarthy-Army hearings and the Watergate hearings.And they became our own little—we didn’t call it reality television then, but that’s what it is, became and has become.
And if you are a senator, and you are going to be on camera to say whatever you want for 10 minutes—or was it half an hour they gave each?Each senator [has] half an hour, and then the second time 15 minutes, something like that, you get to say whatever you want, and the cameras are on you.And whether or not the whole world is watching, the cameras are watching.They're recording that.You know that people all over the country are watching what you say.You can express outrage; you can be argumentative; you can say anything you want.You're protected by the Constitution if you say something libelous or slanderous or scurrilous or whatever.You can have that camera.You can have that headline.You can have that focused on you.
It doesn’t encourage a sense of restraint or responsibility.Well, there are few rare exceptions.But it leads to excess.And here is the excess … introduced into a process, where we’re trying to determine whether someone—and I say Elena Kagan or John Roberts or Justice Sotomayor, Sonia Sotomayor, very, very decent people that have lived their lives in the judicial public limelight, and are outstanding human beings.And yet they are being subjected to nasty, hostile attacks on themselves, their judicial record, their civic record, their personality, their character, everything.We’re tearing them down, and then we’re expecting [them], if they get through this process, to be deciding the most important things that happen in our life—death penalty, voting rights, equal protection.
There's, I think, Justice Kavanaugh is 114th—I don’t know whether that’s the correct number.We’ve only had 114 justices in our history.We've had 45 presidents, but only 114 justices.We’ve only had 17 Supreme Court chief justices.It’s chief justice of the United States.We’ve only had 17 of those in our whole history, and these individuals have a very difficult job deciding questions as arcane as civil service requirements or pension requirements or ERISA, you know, pension rights and so forth, or voting rights, or the rights of persons accused of crime or subject to the death penalty or something like that.They're making, every year, 75 extraordinarily important decisions.
And if we've told the American people that they're not good people, that they can't be trusted, that they're evil, and all of those things, it sounds hyperbolic for me to say the word “evil,” but that’s pretty much what we’re saying about them.And what are the American public supposed to think about this institution?It’s bad enough that we think that about any presidential candidate, and those debates are pretty awful, and the things that we say about our candidates for membership in Congress.But for the justices of the Supreme Court, they're not supposed to be political.
They have backgrounds, and they have opinions, and they have predilections with respect to their personal decisions about how cases should be decided.But they're not politicians.And we’ve made them into politicians.Justice Scalia said, at one point: “If we put on this political specter at the time of judicial confirmations, it’s like a mini-political convention.We are telling the American people, these are politicians.These are people that you vote for or against, depending upon whether you think they're nice people or whether you like their points of view or something.”
We've taken the idea of judicial independence, judicial neutrality—which may be partially a fiction, but it’s something that it’s important for us to believe in—and we've discredited that in the eyes of the American people.What are the American people supposed to think if they watched four days of reality theater, where people are giving speeches and pounding the table and throwing down pieces of paper and saying things like that?It’s very damaging to an institution that I have great respect for.And I hate to see this happen.
So that when nominee Kavanaugh finds himself in some box of anger and vituperation, and maybe justifiable angst, and he mentions the conspiracy of the Clintons, it feels like, to a lot of people, he’s gone to the political dark side as well.And can a justice who’s been there ever be trusted?
Well, see, if you say enough bad things about someone in public, where they're basically defenseless until the day—toward the end of the day, they finally get to have their say, if you torment them enough, and they bite back, well, now you’ve got it both ways, right?If they acknowledge that that’s true, or they sit passively and listen to all those things about themselves and aren’t upset, a lot of people are going to think, well, he’s not upset, or she’s not upset because it must be true, you know; they're not fighting back.We say that about people: “They didn’t fight back.Maybe there's something to it.”If they do fight back, well, they don’t have the temperament to be on the Supreme Court.
And sure, they might say some things that, in retrospect, or in the calm of the moment, they’d prefer not to have said.Or there's none of us can go before that process.The fact that the justices who have gone through that, and have managed to maintain their composure throughout the whole thing—I mean, during the [Samuel] Alito thing, the confirmation process, it got so nasty that Mrs.
Alito was in tears, and she jumped out and had to leave the room because they were saying things about her husband she knew were not true.
So almost anybody can lose their composure under those circumstances.I've testified, and I've had people say awful things about me, or tried to get under my—and say slanderous things.And you're supposed to sit there and smile and say, “Thank you, next question”?It’s just very inhuman to be able to sit through that and not respond, so I would give a measure of deference to someone who reacts as human beings might be expected to react under that kind of circumstance.
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