William Taylor Oral History (01/2007)

Thank you again for agreeing to do this.

Glad to do it. It’s a labor of love.

If we could start, if you could just tell us a little bit about yourself, give us some background about you, and then we’ll segue into your relationship with Senator Kennedy.

I am a longtime—you could say a very longtime—civil rights lawyer. I started at the end of 1954, which was right after Brown v. Board of Education was decided by the Supreme Court. I started on the staff of Thurgood Marshall at the NAACP Legal Defense Fund. That was a lucky break getting that job. It was supposed to be a one-year job. I stayed there for four, and I wrote a lot of briefs in important cases, the last one being the Little Rock case in the Supreme Court. 

I came down to Washington in 1959 and worked briefly for the Americans for Democratic Action. And then I got involved with the [John F.] Kennedy campaign, in 1960. A group of us were working to assert the proposition that the President had a lot of executive power to accomplish things in civil rights, which he could do even if he was unable to get legislation. After Kennedy’s election, it was decided not to have a group in the White House on this, because of the narrowness of the election, but to set up an apparatus, which was called the Subcabinet Committee on Civil Rights. Harris Wofford was in the White House, as a civil rights assistant. Then I became the secretariat for that operation, but I also had a position at the Civil Rights Commission and eventually became general counsel, and later, staff director of the commission during the exciting, challenging days of civil rights. 

I left the commission, having been staff director, in 1968. I went off to Yale to write a book, which was focused on race in cities, called Hanging Together: Equality in an Urban Nation, published by Simon & Schuster. I then came back to Washington—I wrote the book in New Haven as a senior fellow at the law school—and started a group called the Center for National Policy Review. Our groups all had cryptic names in those days, because the Ford Foundation was being investigated for funding only groups on one side. Anyway, I started the Center specifically to help people with implementation of all these newly passed civil rights laws. We had litigators who were working in this area, and we had people who were lobbyists, but we didn’t have people who paid attention to influencing the administrative process. The center was located at Catholic University Law School, under the dean, who was then Clint Bamberger, who had been an important figure in legal services. 

In ’86, after a successful run, we terminated our relationship with Catholic U., and I started a practice. And I had started this group, along with former Cabinet officials and heads of agencies who had worked in civil rights. The group was called the Citizens’ Commission on Civil Rights. I am now the chair of that group. I started it with Arthur Flemming, who had served Presidents from [Franklin D.] Roosevelt on, and who had a long career in public service and then the private sector. We had a great group of people. Unfortunately some of our ranks have dwindled by time and death. That essentially takes us up to date. I’ve been working on a variety of pieces of legislation: right now the No Child Left Behind Act and related issues, but I assume that we’ll get into those matters.

Sure, yes. You mentioned Harris Wofford, and you mentioned John F. Kennedy’s campaign in 1960. Did you have high hopes for John F. Kennedy? Was he your favorite that year?

Well, that’s a good question. It’s a mixture. I was not initially impressed by John Kennedy. I didn’t think he had a great record in the United States Senate. I had met and worked with Hubert Humphrey, and I thought he would bring a lot of creativity to the Presidency. ADA [Americans for Democratic Action], which I was working for, was for Humphrey, although some of my closest friends in ADA, like Joe Rauh, ultimately came over to be very strong supporters of Jack Kennedy. But I saw in him the things that a lot of people who were on his team saw, in terms of his enthusiasm, and the energy he brought to the table.

Do you recall, possibly, any interactions with Ted Kennedy at this early stage?

Really not. I mean, I think I may have, on one occasion or another, met Ted Kennedy, but I did not interact with him. My interaction with a group of people, Harris was one. Harris was a law school classmate of mine at Yale Law School. I got to meet Louis Martin, although I knew Louis Martin better afterwards. And then there were a host of other people who were involved with that campaign.

What about Bobby Kennedy? Any interactions with Bobby Kennedy during this period?

Very little. I mean, again, what we knew about Bobby Kennedy at the time tended to make some of us liberals a little leery of him. I did get to know him better when he was Attorney General, but that’s ahead of the game.

How would you explain to someone your own lifelong commitment to civil rights? Where does that come from?

Well, my friend, Roger Wilkins, who is a very longtime friend, said when I was contemplating writing a memoir, If you’re going to write something, you should explain, ‘What’s a white guy like you doing spending his whole career working for black people and civil rights?’ I tried to address that. I’m not much, I don’t think, on all of the introspection required, but I grew up in New York City and Brooklyn during the ’30s and the early ’40s. That was a time when Jews were being discriminated against, and I felt a little bit of the sting of that, because I grew up in a mixed Italian/Catholic/Jewish neighborhood. The first day I went to school, I got thrown in the bushes and called a Christ killer. So that gave me a feeling for the underdog. 

The ’30s were portrayed in Philip Roth’s recent book, his novel about where he imagines a revolt in America. He recreates the ’30s with Father [Charles Edward] Coughlin and all those people who were anti-Semitic—Roth and I are pretty much the same age, and grew up in the same area. I can remember—I put it in my book, and it’s in his book—the German-American Bund meeting and filling Madison Square Garden with Fritz Kuhn and his anti-Semitic rhetoric. And of course there was what we learned about what was going on in Europe. So that gave me a feeling about discrimination. Then—again, I don’t want to repeat my book—but I knew very little about racial discrimination, and you didn’t get that in the curriculum of the New York City schools.

But I was a huge baseball fan. My father, as an immigrant, was a huge baseball fan, and so he started taking me to games when I was six or seven, and I thought I might want to be a sports journalist. I became the sports editor of my high school newspaper, and in 1947 in Brooklyn, that was the year that Jackie Robinson broke into the major leagues. I sought an interview, and he actually said he would give me an interview, and told me to come to the clubhouse. But the people who guarded the clubhouse wouldn’t believe his letter to me. I was only 15. I met Robinson outside, and he said, Come back and I’ll get it all arranged again, which didn’t happen, but I followed very closely the experience he had in spring training when he couldn’t eat with his teammates and he couldn’t stay at the same place as his teammates; and then what he went through when he came up, with hate mail and people shouting things from the stands; colleagues, baseball players saying things; and a couple of very racist managers giving him the business. And that gave me a sense of what racism could be like in this country. So all of that contributed to my education. 

We also grew up, earlier, as a family that was devoted to FDR [Franklin Roosevelt] and the New Deal. We thought about government in those days as a positive force to assist people in need, and I think I knew from an early day that that’s the kind of thing I wanted to do. And then I graduated from law school in 1954, which, again, was—and I hadn’t thought necessarily of a career in civil rights, but that seemed like the ideal kind of job. Once I got in it, I always found it challenging. You kind of learn about America as you learn about civil rights. You have a chance to look at different kinds of institutions, like public education. So I’ve never found it dull or repetitive or anything like that.

And you became involved in a number of desegregation lawsuits in various American cities around the country.

Oh yes, absolutely. I mean, in the beginning, with Thurgood, I was involved in writing briefs in the cases that followed the Brown case. They were training me to be an appellate lawyer, but I didn’t get out of the library very much, except on rare occasions, going to the Supreme Court on Little Rock and so on. When I got to the commission and we launched investigations, I got around the country, and learned more, particularly in the Deep South. 

Since I left government, I have been involved in a number of school-desegregation cases, and actually trying and settling those cases—mainly in the Midwest, interestingly enough. So I think I’ve had experience in almost all the areas of endeavor where you seek to advance public policy initiatives, both in the courts and the Congress for a variety of legislation, and this operation we had of administrative advocacy.

Do you recall your first interactions with Senator Ted Kennedy?

Well, I was thinking about that before this, and I’m not sure that I do. He got to the Senate in what year?

Well, he actually was sworn in in late ’62. They did a kind-of-rushed swearing in.

I’m sure we had some limited interaction, but it was not memorable at that time. I mean, we did find out early on that he had a major interest in civil rights.

You did?

Yes. But I don’t recall really working with him either on the Civil Rights Act of ’64 or the Voting Rights Act of ’65. Both of those times, I was in government, and I wasn’t spending my days on Capitol Hill knocking on doors. So it’s no commentary except that wasn’t what I was doing at that time.

Right. I didn’t read your entire book, but I read excerpts from your book. I’m curious about your attitude toward Lyndon Johnson. I know there was a lot of skepticism about Johnson as a United States Senator. And when he was put on the ticket with John F. Kennedy, I think perhaps you, and certainly a lot of your allies, were not pleased with that choice.

I think that’s fair to say. As I mentioned, I went to work for Americans for Democratic Action, and the ADA viewed Johnson as, if not the enemy, as an adversary on most issues. My friend Joe Rauh, again, was adamant that Johnson was not our kind of person. So I came to have the predilections of my colleagues about Johnson, and if you read [Robert] Caro’s book about him, you can see some of the reasons why.

Did he change? Is that what happened?

Well, I think he saw himself in a new position and that he had some feelings of connection with civil rights that didn’t emerge until he became President. But some people knew them. 

The story I tell in my book—I don’t know whether you got to it—is that while I was working for ADA, I got to know Harry McPherson, who was Johnson’s chief Senate aide at the time and later became counsel at the White House. Even though we were kind of adversaries, Harry and I got to have a friendship, and we had lunch periodically. I still—actually he goes out to a little hole-in-the-wall that I go out to here, so without making appointments, we have lunch almost about once a month, sometimes more than that. Harry said to me one day at lunch—this was in the spring of 1960, before Johnson had announced but when it was clear he was going to become a candidate—he said, I think Johnson will make a wonderful domestic President. The area where I have concerns about him is in foreign policy. I thought years later that was the most prescient remark that I’ve heard in all my long years in Washington. 

And then when he got to be President, under all these extraordinary circumstances, it became clear he was ready to act. I do tell this story in my book. He asked the Civil Rights Commission to do a report on racial isolation in northern and western schools. It was rare for a President to make a specific request. Now, part of it was that there had been all this focus on the South, and people were beginning to say, What about the North? And we had been among the people. I mean, civil rights people had been among those people. 

So what do you do when you don’t have the political support to do something? You have it studied. So he had it studied by the Civil Rights Commission. We put together a very good report, I think. It was interdisciplinary, and we had superintendents and researchers and advocates and others on part of our committees. We called Johnson. I was staff director then. We called the White House—we probably called Harry—and said, We’re ready to issue the report, but would the President like to read it before we publicly issue it? He said, Yes, send it over here. 

We then had a meeting in the beginning of 1967, I think, at the White House, where Johnson clearly either had read the report or had been very well briefed on it, and he said things like, I know what you mean by the importance of peer influence among children in the report, because I can see the difference in my own girls between the time they were going to school in Texas and now they’re going to the National Cathedral School in Washington. He also talked about his own experience as a teacher of mainly Mexican-American kids in the schools in southwest Texas. So you really got the sense that he got it and he cared about it. Harry told me after the meeting that this was the longest meeting—it ran about an hour—the longest meeting on a domestic subject that Johnson had had since the Vietnam War had heated up. So I got to have a very different sense—and of course then he supported the landmark civil rights legislation. He said that he knew it was going to cost the Democrats the South, and yet he did it. 

So that’s how, in summary, how my attitudes evolved toward Lyndon Johnson. I do think this is a great tragedy. I don’t know how much more he would have gotten accomplished if he didn’t get entangled in the war, but I think he wanted to be known as the best domestic President since Roosevelt, or maybe since [Abraham] Lincoln.

Do you have any sense of why there was such animosity between Lyndon Johnson and Bobby Kennedy and the Kennedy people? Again, I know I’m taking you somewhat afield.

I think, initially it was because Bobby, although he wasn’t a liberal, per se, in those days, shared some of the feelings that liberals had about Johnson. Johnson also had this outsider image, and I think he certainly would not have been Bobby Kennedy’s choice for Vice President. 

In terms of where we all were, I remember that was my first Democratic National Convention. I was working for the ADA, 1960 at the time. I had no status whatsoever, but I somehow gained access to the floor on that fateful evening when Lyndon Johnson was nominated, and Joe Rauh got before the microphones and basically said, Say it ain’t so. Don’t do it, Jack; say it ain’t so, Jack. At the same time, Senator Bill Proxmire and Representative Jim O’Hara, who were people I had gotten to know, were on the floor saying, Oh, this is the greatest thing ever. We’ve gotten rid of Johnson in the United States Senate if he wins the election, and those were not prescient remarks. 

It was an interesting experience. It’s a good question—it’s a curious question—about why Bobby felt so. I think, in part it was a personality clash, but it also had substance and public policy elements to it.

We’ve heard that the same animosity did not exist between Ted Kennedy and President Johnson. I don’t know if you have any comments on that.

Theirs is one I don’t know about. I think, in part, again, it may be a personality difference, because I think Ted Kennedy has always proceeded on the notion of trying to find common ground with people that he disagrees with. I have been in meetings with Ted Kennedy and Orrin Hatch, just to take an example, where I know that Kennedy cannot be feeling differently from the way I do about Orrin Hatch, but he’s always unfailingly polite. He has not disputed the notion that Hatch has propagated that they are fast friends. It’s interesting. To give you an example, since this is not being published until 2011, Kennedy does a mean imitation of Orrin Hatch. He’s a good mimic, as you’ve probably discovered.

We’ve heard this, yes.

The only other person in the Congress I’ve heard who was so good at mimicry is Charlie Rangel. That’s some of my evidence that Kennedy can reveal his feelings, but he won’t show it in public, and he’ll get along with people.

Jumping ahead here a little bit, but have you ever been concerned that he may be a little too quick to compromise, too quick to find common ground and perhaps abandon the fight?

I have not. I mean, I think he—and I admit that may speak to me as well as to him—I have not seen him compromise on principle. And in terms of his oratory, he will always stake out the most highly principled ground. I don’t recall an occasion where I have thought, Don’t make that compromise. I mean, there may have been times when he said, Should we do this, or should we do that? but he’s been a staunch ally of the civil rights advocates. Sometimes he will give this group advice about what it ought to consider realistic, but he’s never, I think, in the common parlance, sold us out on anything.

Is that assessment shared by all of your colleagues?

I would let them speak for themselves. I was trying to think, as I was speaking, who would disagree with that assessment, but I’m not sure that there are any. You should find out what the women’s groups think about the issues, for example.

Can you give us some sense of when it is that you do begin to work with him? I’m trying to get a timeframe here of when you really become part, in a sense, of his orbit.

Yes. I’m not wonderful on timelines. When you talk to Ralph [Neas], Ralph will give you the dates that everything happened.

Sure. I’m not trying to pin you down on a specific date.

The first experience that I can remember in detail was beginning in about ’77 or ’78 when we were working on trying to strengthen the Fair Housing Act, and Kennedy was the chief sponsor of that effort. We spent time talking about it, and for some reason he decided he had a lot of confidence in me, though this was our first intensive experience working together. So he asked me to be—even though I was representing a civil rights group—he asked me to see if I could negotiate a deal with Orrin Hatch. He gave me my headway on the judgments. Well, I discovered, in talking with Orrin Hatch, that he had a very peculiar style of negotiating. If you indicated you were prepared to make a concession, he wouldn’t make a reciprocal concession, he would go backwards.

He would make more demands?

He would make more demands. If you were ready to make more concessions, he would make more demands. I reported this to Kennedy, and he said, Well, just do what you can. Then in 1980, of course, the Republicans won the Senate, and when the bill came to the floor for a vote, in the version that Kennedy supported and I supported and other civil rights people supported, it was filibustered by Hatch. He was not about, and I was not about, to make the concessions that Hatch would demand. And so we called it a day then and didn’t get a fair housing set of amendments until late in the ’80s—’87 or thereabouts.

Senator Kennedy ran for president in 1980 against President [Jimmy] Carter. He challenged President Carter.

I seem to recall that.

Did you get involved in that at all, and what was your take on why he did that?

Well, if you think of the might-have-beens, I think he would have been a wonderful President. But he was still on the brink of what was the damage that had been done by Chappaquiddick, and should he get into it. This was 12 years or 11 years later that he was starting his campaign. I would have been supportive by that time, because I had seen him in action in previous times, but of course he didn’t articulate it in the way that he could and the way that he would now or he might have even then. What I’m saying is that one hardly had an opportunity to get involved in his campaign before he was through.

But you preferred him over President Carter, when push came to shove?

Yes, for sure. 

Did you have friends in the Carter administration or in the Justice Department?

I didn’t. I had heard Carter speak some time before he announced when he was still Governor of Georgia, and I’d been very impressed by him, and having been somebody who did a lot of traveling in the South, I did not want to see Carter dismissed as a fundamentalist Christian, because he didn’t articulate those values or positions. But I came not to have much enthusiasm for Carter, both before he got into office and then more so when he got into office. He was so insular with this Georgia crowd that he had surrounded himself with all the time. 

I’ve been saying for some time now that we Democrats have found the best ex-President—and that’s Jimmy Carter—and we found the best campaigner in Bill Clinton, and now all we have to do is find the best President. I am so put off by what Carter has done. I haven’t read the book, but in his book about Israel, that I don’t—

He uses the term apartheid in the title of his book.

Right. And he talks about Bantustans. He talks about the West Bank settlements, which I oppose strongly, as Bantustans. One should be more careful with language than he is showing himself to be.

Just to take a step back, but Boston went through a terrible desegregation period, and Senator Kennedy was violently attacked on at least one occasion where he tried to speak to an anti-busing rally.

Right.

Do you have any memories of that, or do you remember dealing with him about that question?

Well, I remember him as a positive force, and maybe even a courageous one, because I remember how contentious it all was. I didn’t do any work for him. The mayor of Boston had an assistant, Kevin White’s assistant, named Bob Schwartz, who called me and said would I come up and talk to them about possibly negotiating some kind of a deal with the suburbs, whereby the suburbs would participate in desegregation along with the city. I said, of course I would talk with them, and I did go up there, but it became very clear to me that this was what one of my friends called a morality play—I mean, there were Catholics on all sides of it—that had to play out within the city. You could not say, Well, we’ll try to reach some kind of a compromise. It just had to play out. So that’s the way it happened. 

Our commission held hearings in Boston in the ’60s, when Louise Day Hicks was on the board of education. People were vying for higher political office by seeing who could be the most violent segregationist. So I knew something about where it all was, and I’m sure I must have talked to Kennedy’s staff, if not Kennedy, once things started heating up in the ’70s. People have funny recollections of this, I think. I got a call from Education Week when Jerry [Gerald] Ford died, and his Secretary of Health, Education, and Welfare, David Matthews, had said nice things about Ford and the Boston controversy. Well, Ford, on some issues he was okay, but he made it very clear that he did not support desegregation in Boston, and that made it all the more important for Kennedy to stand up, and that’s certainly a place where he did stand up.

According to some of the materials that we read, you were involved in the various fights over the extension of the Voting Rights Act, including, I believe, 1982—

Absolutely.

—which was no—I would assume—no sure thing, now that you have a Republican-controlled Senate and a fairly conservative President in the White House. Could you talk to us a little bit about that effort?

There’s a book written about that. The book I’m thinking about was written by Mike Pertschuk, called Giant Killers. It’s not the whole book; it’s a chapter of a book. It gives a pretty good account of what happened, although not all my friends agree. Ralph and I turn out to be featured in the book, so not all of our friends are completely happy about it. But we were very much on the defensive in that whole fight, and a major part of our effort was to bring forth the evidence that the law was still needed, because there were special provisions of the law that allowed the Federal Government to exert more authority than was traditional in the area of voting. Some people were saying, Well, those aren’t needed anymore. 

In the House, which was key, I have to say, we worked with civil rights lawyers from that area who specialized in voting, and we assembled a whole group of witnesses to document why the law was still needed. That moved the seemingly immovable Henry Hyde, who started out saying he wouldn’t support the key provisions and wound up saying he could now see a need for them. So in the House we ultimately got—Hyde didn’t agree to the specific provisions, and at the last moment we enlisted Hamilton Fish. You saw the part in my book about that. 

Meanwhile, we were trying to deter the [Ronald] Reagan administration from taking a position, which would certainly have been adversarial to us. We wound up talking to a young assistant at the Justice Department, named Kenneth Starr. I don’t know what we did, but they were wrestling with this in the Reagan administration. I think I saw, in the John Roberts papers—I’ll have to go back, because I did a piece on John Roberts when he was up for the Supreme Court—that he was opposing, strongly, extension of the law. In the Senate, Ted Kennedy, as always, was a strong supporter. He did not take the lead, though.

Did not?

He did not take the lead. I mean, there wasn’t another Democrat who took the lead over him, but since it was a Republican Senate, our effort was to get Bob Dole to essentially support the House-passed bill, and son of a gun, he did. It’s the one and only time I’ve worked with Dole where we’d really been on the same page, in the same book. My recollection, although I probably have records that Kennedy did specific things, but Kennedy played a supportive role and let Dole take the lead in this whole thing.

So this was probably a tactical decision on his part, do you think?

Well, I think so. I mean, he knew what we were trying to do. He knew we needed the Republican support. It was bipartisan in the Senate, and he was certainly a supporter with any doubting Democrats, and of course they were Democrats from the South. I don’t know. Ralph may be able to tell you more about what we did in the Senate. My job in the Senate was to negotiate with Dole and his people and to try to keep him happy. One day he said, I want you to sit for a few hours with Strom Thurmond’s person and talk about the bill. You don’t have to give anything, but just talk with them. So that’s what I did. So I kind of walked the Republican side of the aisle, a rare experience these days.

A conversation with somebody working for Thurmond, is that a pleasant experience?

Not particularly, no. I mean, it wasn’t.

Is it your assessment that some of the opposition—let’s take this case of the 1982 extension—are these people opposed on some constitutional principle, or is this a subtle form of racism? I realize that’s a loaded question.

Well, Thurmond made a career out of racism, but by 1982, the Voting Rights Act had changed the electoral balance in the state of South Carolina. Thurmond told his people he was going to come out flat out against the Voting Rights Act. So we communicated this to various people, including a lawyer who I love and who is a good friend, named Armand Derfner, who was a South Carolina lawyer who worked on voting rights and also worked on a number of other civil rights issues. Armand contacted the Coalition of Black Mayors, who had members in South Carolina. Thurmond was coming down to speak to those mayors, and when he came down there he ran into a buzz saw of black mayors saying, You’ve got to support the Voting Rights Act extension, and you’ve got to make it a strong extension, and so on. And that, I think, helped turn the tide with Thurmond. So, I mean, he was nothing if not a pragmatic politician, although he was fueled by segregation, I think, all his life.

Did you ever have any dealings with William Bradford Reynolds?

Yes, I did.

What was that like?

Well, I thought Reynolds was a—I don’t know how to describe him. I was chair of a committee that wrote a report to the Leadership Conference on Civil Rights, on Reynolds, in 1982, which I can get to you if you want. I don’t think there’s anything specifically about Kennedy in there. 

But Reynolds was the most arrogant, contemptuous lawyer—contemptuous of the law—and he showed it. I mean, he told members of Congress, he told the press, that there were certain Supreme Court decisions that he wasn’t going to enforce—he didn’t frame it this way—and that included the major decision on desegregation in the North, Keyes v. School District No. 1, in Denver, but there were a whole series of such decisions. He opposed the notion that civil rights violations could ever be established by looking at the effect, rather than the intent, of certain practices and whether there’s any justification for the particular practice, if it had a racial effect, something that Kennedy has been a stalwart on in the Senate. Anyway, some of the contemporary Justice Department lawyers tell me it’s worse now, because at least Reynolds would talk to his career lawyers before he did something, whereas the current people don’t even let them in the door. But I don’t think it makes any difference. 

I had numerous sessions with Reynolds, particularly on the Civil Rights Restoration Act, which you know about. That was after the Grove City case was decided. Kennedy had put in legislation, and we were struggling to get it through. Kennedy had, as I recall it, asked Reynolds to come to a meeting that we would be at on the subject, and Reynolds begged off on the grounds that he had some event he had to attend in New York, and Kennedy got stronger and stronger, and Reynolds showed up at the meeting. Eventually, and I don’t know if it was in that meeting or another, Reynolds was ready to make some kind of a deal on this. Again, he and I were supposed to talk about it. 

There was an evening’s discussion where we thought we were making progress, and Orrin Hatch came into the room and absolutely filibustered the discussion so that we couldn’t talk about substance. We went out of there about 2:00 in the morning, and Reynolds stopped me in the hall and said, Look, maybe you and I could talk, and we’ll see what we can do. And I said, Sure. Then he went back to the Justice Department, and there were hard-nosed, hard-line people, staunch right-wingers. Chuck Cooper is the guy who I think of more than anyone else. They must have told him he couldn’t talk to me and he couldn’t talk to Ted Kennedy, so we had to continue struggling on that. 

I had various encounters with Brad Reynolds. One case I’ve been in for many years is the St. Louis case, a school desegregation case. We wound up with the largest interdistrict program on desegregation in the country—it’s still going—between the city and the suburbs. The government was a plaintiff in the case. Reynolds left the government, and amazingly to me, he signed up with a law firm to help represent the defendants in the case. Well, that’s a no-no. Whether you could get involved in the case at all is a question, but he certainly couldn’t get involved for the defendants. So I got in touch with Al Kamen, and this became a story in the Post for a couple of weeks until Reynolds thought he’d better get the hell out of that case, which he did. I would not include Reynolds in any party that I was throwing.

Were the 1980s and the Reagan years a period of retrenchment, or were you able to hold your ground, or did you actually make some advances?

Well, I think it was largely holding our ground. Amazingly the big advancement was the ’82 extension of the Civil Rights Act, which was a major advancement.

And Reagan signed that?

And Reagan signed it. I was invited to the signing ceremony. I don’t remember who all was there, but there were only a handful of people from the civil rights advocacy groups. I think Clarence Mitchell was there, I’m pretty sure, but mainly it was a lot of minority people who had no connection at all, who were Reagan Republicans on the issue. That was a major advance. 

The other things that were major advances through Reagan—not major advances but holding our own—was, we finally got the Civil Rights Restoration Act, which was a very important tool, because the Supreme Court had limited any remedy to where the federal money was going. On scholarships it would say the money went to the financial office, so you could only inquire into it, not into the academic departments it benefited. Ted Kennedy was a bulldog on turning this around.

Could you tell us a little more about that, by any chance? Do you have any specific recollections?

The story I just told you about Reynolds was one example of how Kennedy worked on the bill. It got very complicated, because our argument was, Let’s restore the law to what it was before the Supreme Court decided. Well, then we got into a big hassle about what was the meaning of the law. The other side was claiming the law was something different before the Supreme Court decision, and we claimed, if the money went to the state, how far could you follow it downstream to say who was responsible for assuring non-discrimination? 

I remember we had all these policy wonks who are prone to give us complicated explanations. We had people who were telling us what the trickle-up theory and what the trickle-down theory was, and drawing on blackboards and so on. Kennedy was—and this is part of how brainy he was—he was bemused by all of that. He said, Tell me again about trickle-up and trickle-down, and so on. But he always saw the big picture. He did on that one. He held fast on that. One of the problems was we almost got it through the first year, and I said, We’ve got to get it through, because if we don’t get it through, then the next year, people are going to raise other problems. 

I had a specific set of problems in mind, which were problems that the women’s groups would be concerned about, and that was there were all these regulations that had been passed under Title 9, which said that if a higher education institution were providing medical services, it had to provide services to people who wanted abortions. Well, that was a wonderful rhetorical issue. Title 9 was passed in 1972, and here we were in 1983 or ’84 or later, and nobody had ever brought a complaint about either the denial or acceptance of abortions. But it went over to the second year, and all of a sudden abortion was the big issue under the bill, which really had nothing to do with abortion. 

I think Kennedy tried to help us escape from this dilemma, and we spent a lot of time negotiating with people in the Catholic Conference and others. Eventually it got resolved, and don’t even ask me now how it got resolved, but that was a big struggle, and he stayed with it. He could have gotten impatient with all of this, but he stayed with it all the way, and he provided the leadership, or I don’t think we would have had that. We finally got it in ’87 or ’88.

I think it was ’88.

We wouldn’t have had it without him. Then the other big issue, which arose in the ’80s but didn’t come to fruition until ’91, was the Civil Rights Act of ’91, which was, like, seven or eight Supreme Court decisions, all of which, again, went the wrong way and had to be dealt with. They all involved matters of legislative interpretation, so the Congress had the ability to deal with it, and again, he took the lead in all of that and brought us through it. Again, it was complicated, because we had all these different kinds of cases: questions about whether an action was predominantly based on race, a Price Waterhouse case where—they had a variety of reasons, but race was there and the Court said, Other things were a pretext for race, and so on. Those questions and others—there were federal procedural questions and so on. And as I say, he was able to provide the lead in all of that.

In these acts of legislation that you’ve worked with him on, what are his strongest skills as a legislator, in your view? Is this a man who knows how to reach across the aisle, for instance, and deal with Republican counterparts? Is that his strongest suit?

I would say he has several strong suits, and that is one of them, that he can reach across the aisle. The second is that he knows how to stake out principle in a way that puts the opponents on the defense. We haven’t talked about these things yet, but you remember the speech that he’s reviled for, about the Supreme Court nomination of [Robert] Bork, going back to back-alley abortions and so on. I mean, he’s got a powerful speechwriter in Carey Parker, but he internalizes all of this stuff. I think that was necessary in the Bork nomination to stake out the ground and put us in a position where we could begin to wage a credible fight. So that’s a strength. Reaching across the aisle is a strength. 

He is not usually a technical legislator, but he can see the bigger picture and how these technical details fit into the bigger picture, and that’s critical when you’re dealing in committee or anyplace else, on the floor, with legislation. So I would say, all of those things.

By technical details, you mean he’s not necessarily a master of the intricacies of parliamentary procedure?

Oh, I think he probably is a master of the intricacies. What I’m talking about is technical stuff like trickle-up and trickle-down in the Restoration Act. But he gets them all, and he works hard to make sure he gets them all.

It’s 11 o’clock. Do we need to—

Somebody will come and disturb us when they feel a need to.

Can you tell us a little bit about his staff? We’ve heard, from both Republicans and Democrats, mostly positive accounts of the talent of his staff. You’ve had ample experience dealing with his staff. Can you give us your assessment?

He has always had, in my mind, in my tenure up there, a wonderful staff. He is very demanding of his staff, and people respond. They want to please him. They want to work as hard as they possibly can to fulfill the needs. I mentioned Carey Parker, who is still around. Carey’s a great guy, and he’s great with words. When we were doing the Restoration Act, he took me aside and said, Why can’t we just say, ‘Whatever it was in the legislation, whatever it was before, that’s what we want it to be now’? I said, I don’t think that would quite work, Carey. He has been wonderful. Carolyn Osolinik, I worked with through the Voting Rights Act, and she’s a very able person. She works with me at the Leadership Conference Education Fund. Burt Wides. Have people mentioned Burt Wides?

Yes. We’ll be interviewing him in a week or two.

Burt is an interesting, kind of eccentric, character, but very smart. I don’t know whether he’s still doing it, but he was working with John Conyers.

He is.

He was very involved with the Voting Rights Act before Carolyn was. Ron Brown worked there for a while. I think he got along fine with the Senator. I don’t know particularly what imprint he made, but he was on the staff. A guy by the name of Ron Weich, do you know him?

I don’t.

Ron Weich was with Kennedy and then he went to—well, I can’t trace his whole career. He went with Zuckerman Spaeder, and worked with the other Bill Taylor [William W. Taylor], who I call the impostor. He’s a very good lawyer, and most recently, Ron Weich joined Senator Harry Reid’s staff. He’s a very smart guy and a very committed, liberal guy. Ranny Cooper, who I see occasionally, who was an AA [administrative assistant], I was very impressed with her. So those are the people who jump to mind over the years, though there were clearly others as well.

Right.

He now has somebody who I have the greatest admiration for, who is working on the education issues with him, named Carmel Martin. Carmel had been in the civil rights division after Hogan & Hartson; she had been with John Podesta briefly, and she’s just terrific. And a young man named Roberto Rodriguez, who had been with the Council of La Raza. There’s more capability in those two people than anywhere else on Capitol Hill. He gets them and he keeps them, and people can’t work on the Hill forever—most of them can’t—but he keeps them, and he has their loyalty and their dedication and everything else. So I don’t know, ask me anything else about them. Who else? Olati Johnson, have you heard that name?

Yes.

Olati is a really bright, young lawyer who worked for the Legal Defense Fund, is now up at Columbia Law School on a fellowship, and she’ll probably turn out to be a faculty member there. Melody Barnes, she was on his staff. She’s now vice president of the Center for American Progress—who is really first rate. All right, now I’ve got a fuller description of the staff.

One of the things we’re interested in doing is making sure that we get in touch with some of the outside actors. Could you give us your account of who the important outside players are, so to speak, in the civil rights arena?

I want to talk about—we’re going to come back to Court nominations?

Absolutely.

Who on the outside? Well, we all operate in our own little area, but Kennedy, for some reason, has invited me to every speech that he’s given on Iraq. I’ve come to every one, and I’ve been impressed as hell with the speeches. He’s given them at Johns Hopkins; he’s given them at other places.

He just gave one a couple of weeks ago, right? Right before the President announced this surge, he gave one.

Yes. I got an invitation to another one, which maybe I missed, but I don’t think I did. I think it’s in my file someplace. But a person who comes to all of those is Peter Kovler. Do you know him?

These names are all familiar, but I don’t necessarily know all of them.

Peter Kovler is, more than anything, a philanthropist. He helped do the Roosevelt Memorial and so on. I think he’s on the inside. Another person I see at these things is John Douglas, and John, I’m told, is somewhat incapacitated these days, but he’s still going into the office occasionally. He’s in his, I think, late 80s, but he’s a person with a long memory of Kennedy’s involvement in critical issues. He’s the son of Senator Paul Douglas. So John is somebody I think would be worthwhile talking to, and I see he’s on your list. 

Within the civil rights coalition, there’s Ralph; there’s Marcia Greenberger and Judy Lichtman; there’s a guy who worked up on the Hill, John Tresviña, who is the new president of the Mexican-American Legal Defense Fund. Obviously Julian Bond is somebody you should talk to. Julian wouldn’t work the Hill, but he certainly knew Kennedy. Dorothy Height, of course. Ben Hooks, who is sort of in retirement in Memphis and knew and worked with Kennedy. You say you have spoken to Harris already?

Well, we interviewed him, actually, for our Clinton project. We're doing a Clinton oral history.

All right. Did he have much to do with Clinton? I guess he does.

He did. I think he became—

Head of the AmeriCorps, or whatever its correct title is.

No, that’s fine.

I hope that’s helpful.

Sure. Let’s get back to this question of judicial nominations. I do want to ask a few more questions about Bork.

Sure.

I would like to start with [William] Rehnquist being promoted to Chief Justice.

Right.

Kennedy led the effort to try to block that. It failed, although I think he garnered a decent—

He got more votes against a sitting Justice than anybody had ever gotten.

And you were involved in that effort in 1986 to block.

For sure, yes.

Could you talk a little bit about that?

Well, I should say that there were nominations before that.

Please.

Not to the Supreme Court but to other positions where we took them on, and we won some and we lost some. One that we lost was against the nomination of a guy by the name of Daniel Manion, to the seventh circuit. Does this name mean anything?

It does. During the Reagan years?

During the Reagan years. Manion was the son—this is not a count against him—he was the son of somebody who I remember—if you’re old enough, you might remember—called Clarence Manion, who was a radio preacher on the right wing. He and Father Coughlin were kind of buddies, and Daniel seemed to have inherited all of his father’s views. But more than that, he was a totally unqualified lawyer. He was asked to submit, as everybody, the ten most important cases they had been involved in, and they were all hit-and-run, or ambulance-chasing-type cases, or small business. I gave his questionnaire to Erwin Griswold, who was a member of our citizens’ commission and the former dean of Harvard Law School, and said, would he rate them? He said the guy was unqualified, as did others.

Anyway, Manion got through, because everybody thought we had this thing won. And then on the day of the vote, Joe Biden, our new Presidential candidate, who was then heading the Judiciary—well, not heading it, but he was the ranking member—decided to take a dead pair. Do you know what a dead pair is? A live pair is when somebody on the other side is there and you decide, for whatever reasons, you will pair your vote with his, and so it’s a wash. A dead pair is where somebody is not there and shouldn’t be allowed a vote. Well, Biden was so confident, he took a dead pair on Manion where he shouldn’t have.

He was so confident that it was going to—

That we were going to win.

But why would he?

Well, he was throwing away a vote, his own vote. But meanwhile, while this was happening—and I actually saw this played out—a Republican Senator from Washington, Slade Gorton, was on the phone with the White House, and they were making a deal with him that if he voted for Manion—he was about to vote against him—they would give him some pick of his for the district court. The short of it is that Manion won by one vote, and we were all devastated because we had counted noses, and nobody expected Biden to do what he did, and nobody expected Gorton to—

Anyway, this was just a few days before Reagan nominated [Antonin] Scalia and Rehnquist. I get a call the next day from Kennedy saying, We’re going to have a meeting down at the house. Can you come out there? A few of us went out to his house in McLean, and it was as though we hadn’t had the Manion defeat. He was ready to go on Rehnquist, and that’s, I think, another aspect of his character. He takes what comes, and he moves on to the next thing. I’m not saying that I would have opposed it, but I couldn’t muster up the energy and enthusiasm and optimism that he was ready to do. He said, I remember—and I think I talked about it in my book—he said, Rehnquist came to my office today, and we had a conversation. When he shook hands, it was like holding a dead fish. He just sized him up in this conversation, and if there was any remaining doubt that he should be opposed, that was swept away, and he was ready to go on it. And he did. He made a very—well, I don’t think we could have done much better than that.

It’s hard to block somebody already on the Court.

That’s right, because then you say, He was cleared one time, and what has he done since then when he’s been on the Court? Well, his record, but that’s a no-no for some people. And there actually was new information, including new information about when he tried to prevent people from voting, as a young lawyer in Arizona, and so on. It wasn’t to be, but there was a very credible effort that was made. It was very hard to try to do something on Scalia at the same time you were trying to do something about Rehnquist, and you could not have stopped Scalia either, although he should have been stopped.

Was it hard, in part, because Scalia was an Italian American, and there was that part of it?

Well, I think there was that element of it. He was this bon vivant in some circles, like Bob Bork, which I never really quite understood, so he had a lot of friends in Washington. What should have stopped him but still is a problem today is, he refused to say what he thought of any Court decision, even Marbury v. Madison. I think he conceded that Marbury might have been a well-founded case, and he wouldn’t consider renouncing judicial review on the grounds that Marbury was badly decided. But as I say, I don’t think he could have done much about that.

Is that a relatively new practice, where these nominees refuse to comment on earlier cases?

Well, they didn’t get asked about them a lot, and in the early days of rejections of Supreme Court nominations, you didn’t have huge records of hearings to go on. People got rejected simply because people in the Senate didn’t like them; because they thought their philosophies were different, without having questioned them about it; because they thought they were lightweights, and so on. Bork did answer questions, to a degree, and that helped scotch his nomination. So, after that, people took a lesson, and they weren’t going to do that anymore. But Scalia was an early one to absolutely refuse to do anything, because he was before Bork.

Would Bork have gotten through if Reagan had nominated him earlier, when the Republicans controlled the Senate? Would you have been able to stop Bork prior to ’87?

I don’t know. I mean, when we started working on Bork, we regarded our efforts as a long shot.

Really?

Yes. But I had read, after talking with Ralph before Bork got nominated, I read this piece he had written in the Indiana Law Review, and it was verbal violence. I mean, he hit Earl Warren, and he hit the Warren Court, without any qualification. It was laughable when people said these were the musings of an academic. He was on record, also, as thinking there was no basis for the Public Accommodations Act of 1964. And so after I read that, I thought that any Senator who took the trouble to read that article would be opposed to Bork, and that’s why I did this memo. 

Then he really did himself in at the hearings. Precisely how he did himself in is maybe a matter of some contention. We had a boiler room in the Senate, which enabled us to be in contact with Kennedy’s people and Biden’s people as the hearings were going on. I was in charge of it along with a lawyer named Eric Schnapper, who was a longtime Legal Defense Fund lawyer. He now teaches law at the University of Washington. Eric wanted to concentrate on Bork’s what he called confirmation-day conversions, and I wanted to concentrate on the fact that whatever minor concessions Bork was making, he was still a guy who was opposing the major pillars of civil rights progress, civil liberties, and the right to privacy. 

So I think it was a combination of both, plus some skillful work by various Senators. One was Howell Heflin, who knew opposing Bork would be not very popular in the state of Alabama, but he had been a judge and cared about the ABA [American Bar Association] rejection of Bork, and he cared about Bork’s record. And so he found what I think was a way to satisfy both his political and his principle needs, and that was, he said that Bork impressed him, after he testified, as a man with proclivities. Do you remember that phrase?

Yes. I think you—

I talked about it in the book.

Right.

Well, people in Alabama and maybe other places didn’t know what proclivities were, but they sure as hell didn’t like the sound of it.

Yes, right. At the hearing, Senator Howell Heflin of Alabama capitalized on Bork’s socialist student days and bristling red beard to say that he was ‘a man with proclivities.’

Right. So I don’t know what would have happened if Reagan had done it earlier. I think it was a matter of holding some ground that was tenable and then building on that. We went to see George Mitchell, I remember, who was the minority leader in the Senate at the time. He said to us, Come back to me when you have 50 votes. Then I’ll be on your side. And so the momentum continued to build, and Heflin, I think, told me—and other people told me—that people would stop him in airports, as he was traveling to and fro, and talk about Bork. Hard to say, Could you have ginned up all that after—

This boiler-room operation that you mentioned, I’m trying to figure out how it worked. Would you be dealing with Senator Kennedy on a daily basis?

We would be dealing with Senator Kennedy on a daily basis, in any event, but this was if we needed, during the course of the hearings, to get a message, we would get the message to him.

So you’re actually sitting there, you’re watching it, and you’re sending stuff back up into the committee room.

Right, exactly. The New York Times found us out, came and took a picture. I ducked under the desk because, really, I guess it wasn’t kosher for somebody in the Senate to give us a Senate room to operate out of.

Because you’re not Senate employees.

That’s right. That was the point. We were not Senate employees. We were pretty much on a daily basis, and again, Ralph may give you more details on all of that.

What do you say to those folks who used the term Borked and say that there was something unfair, that there was a public—

Read the hearing, the transcript. That’s what I would say to people like that. Bork was—Lord save us from some of our friends. Borked was concocted by a leader of the National Organization for Women. She said, We’ll ‘Bork’ him. It was a stupid thing to say, which I objected to strenuously at the time. They started talking about filibustering Bork, and they started about Borking Bork from the first day, and Kennedy, as strong as he was, was smarter—I mean, he would never have acceded to any of that language. 

At the end, and I don’t know particularly what role Kennedy played in this, but at the end we had the thing won, and some of our leaders—I don’t know if I’ll say whom—decided they wanted to testify against Bork, even though we had it won. Well, I mean, my principle as a lawyer is, if you’ve got your case won, don’t make any more arguments, and if these folks had come up there, then the Republicans, or Alan Simpson and company, would have had a field day with of them. Eventually, they testified, NOW [National Organization for Women], and I’m sure that Ted Kennedy supported that decision for them not to testify.

Bork had some supporters in town, some Democrats. I’m thinking of Lloyd Cutler in particular. How do you explain that? Cutler made the case even to us, I think, that he thought Bork had been treated unfairly.

Well, my experience with Lloyd Cutler over the years—I mean, we had an amicable relationship, but somebody once said to me that Cutler was always on the side of power, and I thought that was an astute and correct observation. 

Early in the ’70s, in the [Richard] Nixon administration, we were struggling over housing. And Bayard Rustin, who was the head of the executive committee on the Leadership Conference on Civil Rights at that time, and I drafted a statement that said that civil rights was not just a matter of racial discrimination, but it also was about exclusionary zoning, which kept black people from moving into areas even when they could afford them, or would otherwise afford them if it were not for minimum lot-size requirements. 

So here are all these people in Warren, Michigan, who were working for the UAW [United Auto Workers] in General Motors plants who can’t live in the community where they work. So I tried to get support for the statement from other civil rights groups, including the Lawyers’ Committee for Civil Rights. Lloyd Cutler, who had that power, vetoed the Lawyers’ Committee participation in any such statement. I also debated Cutler on the Bork nomination on William Buckley’s show, whatever that is.

Firing Line.

Firing Line, yes. As I say, we had an amicable relationship, but Cutler always was on the side of power, as one prominent lawyer in Washington told me. I don’t know whether he has any particulars about Bork being unfairly treated. I think Bork was given every opportunity to say what he thought, and he kind of did himself in.

There are some people who argue that, Here we are almost 20 years later, and judicial nominations seem to be highly politicized, and there’s deadlock on the Hill just getting the nominations through. Does it begin with Bork?

No. As I was saying, there was a whole raft of nominations before Bork, like Manion, and the judge from Florida, and before that there were the Nixon nominations to the Court that got rejected—[G. Harrold] Carswell and [Clement] Haynsworth and so on. So I don’t think that Bork was a watershed in this respect. We knew at the time that this happened that if the Republicans gained control, there was going to be an effort at retribution, and we knew they were going to cast this as unfair, and Lloyd Cutler certainly joined them in casting this as unfair. I think since that time people who have fought nominations have had to deal with the perception that that was the case, and it’s been a tough row to hoe since then. But I don’t think Bork was an example of a change in the way Senators were reviewing the credentials of candidates. Have you ever looked at these hearings? I know you’ve got enough to do, but they are—

I remember watching them.

But they are almost clinics in constitutional law. I mean, the questions that were asked were always based on constitutional principles. They explored the right to privacy, and judicial review, and the commerce clause, and other things. These were Arlen Specter’s finest days in the Senate, because he was so knowledgeable. Joe Biden had people who were advising him: Chris Schroeder and others. I don’t remember who Ted’s principal advisors were—I’m sure [Lawrence] Tribe was among them. So I really think it’s a bum rap. And then there were these people, like Suzanne Garment and others, who tried to say that this was sort of an academic dispute. People were doing in Bork, they said, because he was an academic who didn’t go along with the political-correctness theme of academia in those days, which was total nonsense. Academic fights, someone said, were so bitter because they were so trivial. They were about trivia. The confirmation hearing was not trivial.

So we’ve had to combat that, and we’ve had to combat it in the media as well, but I truly don’t think that the charge of unfairness would stick. I mean, it’s a shame that somebody like Cutler, who’s generally well regarded, would say that, but it’s of a piece with other positions Cutler has taken. So all right, where are we on this?

Well, I was going to see if we could talk a little bit about Clarence Thomas.

We can, if you’d like.

I’d like. In particular, Senator Kennedy is criticized by some for being quiet and not speaking up at the Thomas hearings, in light of the problems he had had recently with this Palm Beach episode with his nephew and so forth.

Right. I can’t evaluate that. I did not detect in his work on that that he was deliberately being sotto voce or taking a backseat in that. I mean, there were other people who were working on the Thomas nomination. I guess in some ways it was a collective failure. It was pretty close, but it was a collective failure in the Senate, and to some extent it was a collective failure in the civil rights community. I don’t know how closely you followed it, but the nomination came in the summer at the very time of the NAACP convention, and the NAACP, which had the opportunity to take a major stance on this, postponed it for a month. I believe Ralph thinks—you can ask him about it—and I think that’s where we lost it. We lost it by not getting the initiative that we did in the Bork nomination. 

I had a call right after that nomination from Wade Henderson, who was then working for the NAACP. He said, We’re in trouble, and what happened on the convention floor, and he said—and this is in my book too—We need to get a voice that nobody can dispute to speak out against Thomas. Do you have any suggestions? I said, Well, my suggestion would be John Hope Franklin. He said, That’s a very good suggestion. I said, Well, I know him, and I’ve known him for years. If it would help, I’ll ask him. I did ask him, and he cussed me out and said, Why are you asking me to do this? I’m a life member of the NAACP. But they all know what they should be doing. They don’t need me to tell them. And I said, Well, apparently they do. Eventually he took it on, and he wrote this really compelling piece for the NAACP, which also appeared the day before as an op-ed in the New York Times. But I think we in the advocacy community really lost some momentum by the NAACP’s delay. I mean, they say race is the issue that clouds men’s minds, people’s minds. I think the people were a little bit skittish about taking Thomas on. 

I was on a television program on the CBS affiliate here with a guy who has since made a name for himself in one way or another, named Alan Keyes. I was opposing Thomas, and he was supporting Thomas, and I was talking about Thomas’ record at the EEOC [Equal Employment Opportunity Commission], which was pretty awful, especially on complaints from people on age discrimination, and Keyes called me a liar. Maureen Bunyan, who was doing the program, was just aghast. I was so aghast, I didn’t really take him on in kind, which I’ve been known to do. 

Afterwards I said, You really ought to be more careful about the language that you use. And he said, You and your friends are not going to lynch Clarence Thomas. That was his precise word, and I thought about it when Thomas came on later and said he was the victim of a high-tech lynching. Thomas said he had never discussed this with anybody—of course he had discussed it. It wouldn’t be accidental that Alan Keyes would use the lynching phrase right at the outset of the nomination and Clarence Thomas would use it at the end of the nomination. The things I’m talking about preceded any discussion about Anita Hill.

Was it Kennedy staffers who were involved in working with Anita Hill to get her to come forward?

Well, it was Ricki Seidman, who I guess was working for Kennedy at the time.

I believe so, either Kennedy or [Howard] Metzenbaum.

No, she wasn’t working for Metzenbaum; she must have been working for Kennedy, and Linda Greene, who now teaches at the University of Wisconsin, who I saw a few weeks ago when I made a speech out there. She was, I think, the other person who was involved in talking with her. So yes, there was this involvement. I don’t know. If people had been prepared more rapidly to take on the issue of his qualifications—because [George H.W.] Bush had said he was the most qualified person—then we might have had a better chance. I mean, that was an absurd statement.

There was one morning where three of my favorite law professors, all African American—Drew Days and Chuck Lawrence, who I guess was at Stanford at the time, and Chris Edley—all testified against Thomas. I was out in the hall with Ralph and Melanne Verveer, and after that testimony, Specter came out and said, Oh gosh, you guys are working up some conspiracy or something. And I said, No, Senator, we were just talking about how brilliant the testimony of these three were, and Clarence Thomas doesn’t even speak that language. He said, Well, name me another. Are there other African Americans he could have appointed? I said, Sure. And he said, Well, are there Republican African Americans? I said, He could have appointed Bill Coleman. He said, Are there other African Americans who are Republicans who we could have appointed who he knows? He doesn’t know Bill Coleman. I said, That’s kind of ridiculous.

I think the real fight about Clarence Thomas was lost when people didn’t take him on on his qualifications, and when the Anita Hill stuff came along, it was already too late. Nobody distinguished themselves in that fight, really. My own view about that was that that hearing should have been—as I read the law—that hearing should have been held in executive session because it contained matters that would tend to defame and degrade people, which is what the rule is. And I told that to Joe Biden, and it had no effect on him, as far as I could discern.

Senator Kennedy was so quick to come out against Bork. Do you have a sense of why he didn’t do the same thing with Thomas?

I don’t have the sense of why, but I mean, the NAACP’s hesitance—he may have felt he had to scope that out more than he had. As I say, it’s an interesting question, if the NAACP had come out immediately, whether that might have prodded Kennedy into doing it. But yes, I think he may have been affected too there by the notion that we want to make sure we were fair if we’re going to vote against a black man for the Supreme Court.

Have you known Stephen Breyer? Have you had a relationship with Stephen Breyer over the years?

No. I knew him casually when he was on the Senator’s staff, and I’ve met him a couple of times since, but I can’t say that I know him.

Are there any other judicial nominations that stand out? I mean, [Samuel] Alito and Roberts, for instance? Any involvement with Senator Kennedy in terms of opposing those nominations?

By the way, about Breyer, in the year 1979, 1980, when we were getting the filibuster on the housing legislation, Kennedy somehow managed to get Breyer through for the [United States Court of Appeals for the] First Circuit. There is a kind of tradition of giving staff some consideration, but I thought it was quite remarkable that he was able to get Breyer through with the Republicans taking the control that they were taking. 

Well, I am one, and not everybody agrees with me, but I am one who thought Kennedy did his job well on the nominations of Roberts and Alito. I don’t fault him for any lack of leadership on that. I mean, he had a number of issues, and he was the guy who did the civil rights issues. Pat Leahy was a big disappointment. He only was concerned with security and liberty issues, and maybe a handful of others. I think Roberts got something of a ride.

A free ride.

A free ride. I have offices at People for the American Way, and they were masterful at collecting all the information. There were boxes of information, so I decided to spend some time preparing an op-ed, and I went through all of Roberts’ papers, going back to the Reagan Administration—I was horrified by the stuff that was in there. I mean, he was opposing Ted Olson, claiming Olson was too soft on things. I eventually wound up with 7,000 words and got them into the New York Review of Books. 

I thought there was a tremendous case to be made against Roberts. The media did not do its job. I mean, they portrayed this as a partisan contest. Roberts, in some ways, is even more conservative than Bork or Scalia. Roberts was, first of all, clearly a smart lawyer and an accomplished lawyer and also a charmer. So I don’t know what we could have done. I should tell you that my son is a documentary filmmaker. Do you know this?

I do not know this.

He’s got a film that he’s done, which made everybody in the civil rights community nervous, but he got enough cooperation over Roberts and Alito. I mean, he started, actually, the year before the first nomination. I don’t know where it’s all going to come out, but he’s doing the editing of it right now.

It’s a look at their careers?

No. It’s a look inside the advocates for them, the advocates against them, and the Hill.

Oh, great.

No, it’s not biographical. He made a film some years earlier, in ’94 I guess it was, about the Oliver North/Chuck Robb contest—

Sure, yes.

—called A Perfect Candidate, which I find is hugely popular around most of the taverns and all the video stands. I tell my students in Georgetown, if it comes up that David Van Taylor is my son. Usually they’re not interested in me anymore; they’re just interested in David Van Taylor and his films. 

Anyhow, my piece basically asked the question, but didn’t answer it, about what makes a guy like Roberts, who is clearly very smart, clearly very accomplished at Harvard College, at Harvard Law School, so he has all the advantages—he grew up in an exclusive community with wealthy people; he was almost virtually guaranteed success in life—what would make somebody like him oppose any kind of a helping hand, whether you call it affirmative action or something else, for people who are not nearly as privileged as he but maybe as talented? I did not come to an answer to that question. 

And I think that theme was touched on—my recollection is not clear enough on this—by Kennedy and others in the Senate. Don Edwards, the Congressman from California, used to take Brad Reynolds at a hearing and say, Mr. Reynolds, we are wealthy, white males who are so privileged. And what you’re doing is defending white privilege, saying that nobody else can get in on the action. I wanted to title my piece on John Roberts, A Gated Life. That was the one area where Barbara Epstein, the editor of the New York Review of Books, wanted something more tame as the title, or maybe she thought some people wouldn’t get it. I don’t know. 

But I don’t see it in the cards that he could have been defeated, and I don’t fault Kennedy, who really made the effort in the questioning. And then Alito, in my judgment, became a joke. There was so much theater that when his wife cried, it was all over.

Kennedy got a lot of bad press out of that too.

Right. And I think he did very good work on that one as well. Now, the one nomination we haven’t talked about, because it’s not a judicial nomination, is John Ashcroft.

Oh please, yes. It must have been tough for Senator Kennedy to oppose a former colleague.

Yes. That was something that came up, not with Kennedy, but with other people. What I had decided to do—because I had known Ashcroft as an opponent in this big desegregation case in St. Louis—he started as the Attorney General and later, during the course of the litigation, he became Governor. They weren’t encouraging any testimony by folks like me, but I decided I’d write down everything, with citations, about how Ashcroft opposed even a voluntary plan of desegregation, how he told us, when we got an agreement on beginning the program, he threatened—well, no, this was after we got the program itself—he threatened the woman who was taking on the job of running the program, who had worked for the State Department of Education, that not only would he not give her leave but she’d never work for the State Department of Education again. Also, I documented how the judges on the case had threatened to hold Ashcroft in contempt. 

I wrote all that down and gave it to other civil rights groups, gave it to Kennedy. Kennedy thought it was important that I testify in person, and he proposed that I be a witness. This was during that interim period when Pat Leahy was the chair of the committee, before the Republicans took over. Leahy was very reluctant. Because the margin was so close—and the Republicans were destined to take over—he didn’t want to offend people. And this is a story that I learned on the QT, but I don’t think there’s any reason not to tell it. I did talk about it in the book. Kennedy said to Leahy, in a meeting that I think Ralph was in—but don’t question Ralph about it—that if Leahy wasn’t willing to have me come as a witness or given to the Republicans, he, Kennedy, would convene his own hearing and take my testimony as a one-man committee, at which point Leahy gave in, and I did testify. 

Kennedy had me out to his house, now on Tracy Street, to brief him as completely as I could about Ashcroft. He threw his heart into that effort as well. And when I say that other people were willing to give deference because he was a Senate colleague—I’m thinking I was told Paul Wellstone, who had a socially friendly relationship with Ashcroft, was on the fence. But I sent Wellstone all the stuff, and he then made it clear he was going to oppose him. He made a very nice, eloquent speech praising me on the floor of the Senate. So again, I think, not only because of my own involvement, I just think Kennedy was showing leadership on that.

I’m trying to remember how many votes he was finally able to muster against Ashcroft’s nomination. It was sizeable.

Yes. It was somewhere right around 40. I remember we were struggling at the end about whether we would get the 40. So yes, that was that involvement.

You wrote in your book, there’s this statement, Ted Kennedy remains the most dominant and effective legislator of the last half century.

Yes, I truly believe that. Of course it’s civil rights, but it’s his work on other legislation—legislation that affected the poor, on minimum wage, where he’s kept his light shining, and a whole host of things. And I really thought you should take a look at them and maybe you—I’m sure you’re not finished talking to Kennedy about things.

No.

I really thought the Iraq speeches, which didn’t get a whole lot of public notice, have been quite extraordinary. And it’s not just the speech. I mean, he clearly had internalized all this information. He talked to the generals. This was early on. This is a few years, three years ago or whatever, and he would go before an audience like the Johns Hopkins students and answer all their questions or answer the faculty’s questions and so on. So he took the initiative on that too.

His brothers were not noted for being particularly comfortable in the Senate, or even particularly all that effective, and yet he’s turned out to be something of a master of the Senate. Do you have any reflections on that? Why the difference?

I don’t know. Jack was not thought to be a serious guy in his days in the Senate, and he really didn’t do very much. As a junior Senator, whether he thought he could do very much, I don’t know. Bobby was—how many years was Bobby in the Senate?

Well he was elected in ’64, and of course he dies by June of ’68.

Right. So he didn’t really have a huge opportunity, and of course he was, at that point, undergoing what I felt was a sea change in his beliefs and commitments, by which I mean that the set of speeches he made at the end and things he said were very powerful. So I think, if he had stayed in the Senate and he hadn’t gotten killed, he might have been a real force. 

But I also think that with Ted it was a determination that he would succeed. And I think part of his deciding not to run in 1980 was that he was ambivalent about it. He saw the prospects for success in the Senate, and nobody worked as hard as he did. He and I are pretty much the same age, and I think I’m slowing down some, but he’s not. He keeps going. So it’s tenacity; it’s a set of beliefs; it’s a desire to prove to himself that he’s effective and successful. I think all those things are involved. 

And he’s got a wonderful sense of humor, which is part of why I get on with him so well. We never really hooked up on the sense of humor—I mean, his is different from mine—but I think he has this eye for the absurd, people who are ridiculous, and you see him get that look in eye when he says something. He’s a great ironist in some ways.

I asked you earlier where your commitment to civil rights came from. Do you have any ideas where you think his commitment to civil rights comes from?

I don’t know. I mean, I have to read Adam Clymer’s book, which I haven’t read.

Do you think his religious beliefs are a factor?

Yes, but I don’t know enough to say whether they are a major factor. I mean, he grew up as privileged, but he may have thought of himself—I would be interested to see what he has to say—as shanty Irish in some respects, struggling against the privileged. It was interesting. It was not long after he came into the Senate that he was doing civil rights, so it makes your question even more pointed, in a sense, because I think he was influenced by all of the events of the era, but I’ve never asked him that, and if I get the chance I will. I think that’s a good question.

Is there anything else that you’d like to add to the record? Is there any area that I’ve neglected to mention?

Oh, I’m sure.

Again, you will have an opportunity when you get your transcript to fill in any of the blanks that we may have—

I mean, his preparation, which I saw in the Ashcroft thing, and how he went over it point by point, which a lot of Senators and members of Congress don’t do—on the Roberts nomination, since I had written this article and he knew about the article, he talked with me and then he had his wife talk with me twice about that and get whatever other information I might add that he might be able to use. She seemed—and I don’t really know her but—

Vicki [Kennedy].

Vicki, yes. She seems very committed on all of this. So I don’t know. I’m sure I’m leaving out some things. Are there any things that we haven’t talked about that, without naming anybody, somebody else brought up that struck you as interesting insights?

This question of his faith as a force in his life is—we’re getting some mixed feedback on that.

He sure doesn’t refer to it.

He does not wear it on his sleeve, no.

Right.

My conjecture is that it’s more of a force in his life than most people believe.

Right. I wouldn’t be surprised. I mean, you can’t—unless you spend a lot of time with him on a very personal level, having nothing to do with public policy—I don’t think you will get at that. Who is the guy, who is the journalist, who was his roommate, or am I thinking of one of the other Kennedys? Evan Thomas.

Evan Thomas wrote a book about Bobby.

So maybe he was Bobby’s guy.

I think he was closer to Bobby. And Bobby always struck me, again, completely from a distance, as being, in some ways, his faith was very important to him.

I think that’s right. I mean, I think that came through in what he said and what he wrote in the years after Jack was assassinated.

Well, thank you. This has been very good.

Oh well, good. You don’t say that to all of your interviews?

I don’t. I’m always polite, but I don’t always say that.

Well, good.