Nan Aron Oral History

Well, why don’t you guide us? I mean, we want you to tell your story. That’s the point of this. Where would you like to start?

I’d like to start with the rebirth of the Judicial Selection Project in 1984. I founded the Alliance for Justice in 1979. Five years later, several leading law professors and civil rights activists reestablished the project to monitor appointments to the federal bench. The project’s origins go back to the 1970s, during the [Jimmy] Carter administration, which identified and recruited, in part, public interest and civil rights lawyers for federal judgeships. The project also worked with the Carter administration to set up commissions in all appellate regions in the country. These commissions comprised prestigious lawyers, ex-judges, civil rights and public interest lawyers, all focused on recruiting excellent judicial candidates with a demonstrated commitment to equal justice. During this time, the project’s staff worked very closely with [Senator Edward M.] Kennedy’s staff, who both made judgeships a priority in the Senate Judiciary Committee and developed the systems and procedures still used today to evaluate nominees and to facilitate their confirmations.

Right.

The 1980s were marked by a relentless effort on the part of the [Ronald] Reagan administration to transform the bench and remake federal judges in the mold of the President. His administration looked for individuals who were antichoice, anti–civil rights, in favor of school prayer, and hostile to environmental, consumer, and workplace protections. He set about recruiting judges with great energy and zeal, For the administration, reshaping the federal bench was a top priority and one of its most important initiatives.

During most of the 1980s, Senator Joseph Biden served as ranking member; however, he deferred to Ted Kennedy, who took the lead on judgeships. Because of his work on [Harrold] Carswell, [Clement] Haynsworth, and other nominees and his network of allies in the advocacy committee, all of us looked to Ted Kennedy on this issue.

More so than Biden?

Joe Biden had two prominent interests: foreign relations and justice-related issues. Of the two, he spent more time and focused more on international affairs, leaving some of the Judiciary Committee matters to others, primarily Kennedy. During the latter part of the 1980s, Biden was also consumed by his desire to run for President and delegated leadership on this judicial issue to Kennedy. Kennedy became the point person during incredibly active years.

One of the first controversial nominees was Jeff Sessions, now on the Senate Judiciary Committee. Sessions was nominated for an Alabama district court seat in 1986. It was Ted Kennedy, working closely with civil rights groups and activists, who led the effort to keep Jeff Sessions from becoming a federal judge. His office, together with local Alabama lawyers, put together a “case” against Sessions’s nomination. That incident may have haunted Kennedy, as it did us, because, as a United States Senator on that very committee, Sessions has been wreaking vengeance on the Democrats ever since his defeat.

In the spring of 1986, [William] Rehnquist was nominated for elevation to Chief Justice and [Antonin] Scalia to Associate Justice at the Supreme Court. Both were formidable candidates but had long records of hostility to human rights and civil liberties. Those of us in the civil rights and public interest communities found our champion again in Ted Kennedy. We had just finished a bruising fight over the nomination of Daniel Manion to the Seventh Circuit and weren’t sure we could all regroup for the fight over Rehnquist—but we did, with Kennedy at the helm.

We talked to Bill Taylor yesterday, and he mentioned the Manion nomination.

I’m a little less clear on Kennedy’s role in the Manion nomination. It’s a story of betrayal and politics, one that called into question Republican tactics. It’s a story that led to the defeat of a Republican Senator, Slade Gorton, from Washington State. And it’s a wonderful story about Howard Metzenbaum, who saw what was going on on the Senate floor with the White House exerting pressure on Slade Gorton to change his vote from a “no” to “yes.”

I recall Alliance for Justice was the first group to review Manion’s questionnaire. He was nominated for the judgeship because his father had been one of the founders of the John Birch Society and was very influential in right-wing causes. I recall being horrified by his answers in his questionnaire—there were incomplete sentences, misspellings, and certain questions were ignored altogether. I couldn’t believe my eyes. Here’s a man who wants to become a federal judge, having revealed alarming carelessness and ineptitude. He must have assumed he’d sail through the confirmation process. We knew right from the start this nominee had some questionable credentials for the seat. And then, investigative work disclosed his father’s ties to the John Birch Society, Manion’s ties to some right-wing newspapers, and some questionable speeches.

The Democrats were headed toward defeating Manion. Biden did a vote count, showing that the nominee was going to be defeated by one vote. On the day of the Senate vote—I only know this from Metzenbaum’s staff—Metzenbaum observed Slade Gorton being called down to the well, where he is told to take a phone call, and somehow Metzenbaum figures out it’s a call from the White House. The White House offered a deal to Gorton, who was going to vote against Manion, promising to nominate Gorton’s friend for a district court seat in Washington in exchange for his vote for Manion. Gorton was satisfied, and Manion was confirmed by one vote. It did cause Slade Gorton, however, to lose his Senate seat, and ironically, that judge, William Dwyer, went on to become one of the most revered and progressive judges in the country.

Constituents from Gorton’s state were angry over the incident and punished him. There was some residual anger at some of the lead Senate Democrats for not holding people in line, but that’s a whole other story.

Was Kennedy one of them?

I don’t recall that he was angry, but certainly he was one of the Senators who spoke out about Daniel Manion. Joe Biden, who was ranking and in charge of orchestrating Manion’s confirmation, bore the brunt of the criticism. In politics nothing is predictable, so some argue Biden should have been more wary of possible last-minute deals. Feelings were very raw after that incident. The Republican strategy also demonstrated that the Reagan White House wouldn’t stop at anything to get its nominees confirmed.

Then came the Rehnquist nomination several months later. Rehnquist had been confirmed as Associate Justice to the Supreme Court in 1971 and had accumulated a lengthy record. He was the well-known “lone dissenter” in the Court and was well known to the civil rights community for his antipathy to their cause. He was always the outlier. In almost every important civil rights, human rights, public interest case, Rehnquist parted company with his more liberal and moderate colleagues and was outspoken and unabashed in announcing his ultraconservative views and opinions.

In the summer of 1986, Republicans were in charge of the Senate, and defeating the nomination was going to be an uphill battle. Scalia’s nomination proceeded with little fanfare or opposition—Democrats couldn’t take on both nominations at the same time, and Rehnquist’s record was more lengthy and problematic. I remember at the beginning that everyone looked to Kennedy as the natural leader. I also remember at the time that because the Manion fight was a debacle for the Democrats, Kennedy, along with the other Democrats, was not looking to fight the Rehnquist nomination. Kennedy was a little bit reluctant, as they all were. In those years, as is the case today, if you didn’t have Kennedy, you didn’t have a leader.

The night before the hearing, I got a phone call at 11 o’clock from the Kennedy staff. They were concerned that the hearing could be an important forum to discuss and debate the role and importance of the Supreme Court and how Rehnquist would influence the direction of the Court. They called me looking for Joe Rauh, a celebrated civil rights lawyer and friend of Kennedy’s, because they felt that someone needed to go out to Kennedy’s home and make the case to him that he was needed to lead the opposition. I recall calling Joe Rauh, sending a car over to his house and making sure he got to Kennedy’s home in McLean, Virginia. He told me the next day that he and Kennedy had a very lively discussion, and they prepared talking points and arguments. The next day Kennedy was in fine form and staked out an uncompromising and finely tuned position. He took control of the hearing, sometimes wearing out witnesses with his questions, but committed to pushing on and ensuring the record would be complete.

Despite the fact that the Democrats didn’t want a filibuster, Kennedy was able to garner—I think the votes were 65 to 33—the most votes ever against a Chief Justice. It also must be said that his staff, together with Howard Metzenbaum’s, orchestrated the identification and preparation of witnesses, assembled the documentation of the record, and worked with the press. As always, Kennedy’s staff was masterful.

The Rehnquist nomination was the precursor to the Bork nomination, which was a watershed moment in the judicial selection process. And you probably are very aware, as the country was, of Kennedy’s role. He set the terms of the debate for the committee, the Senate, and for the nation right from the start. I’m sure you’ve heard a lot about his role and about that early speech he gave on the Senate floor.

For which he took considerable heat.

Oh, he still takes considerable heat. Yes, that speech was critical—as rhetorical and pungent as it was—but had he not delivered it, Robert Bork might be on the Supreme Court. That speech sent a signal to the Democrats—many of whom look for opportunities to endorse a nominee—to refrain from supporting him at the outset. Kennedy laid down the gauntlet, warning his colleagues and the country about the high stakes of this nomination. Democrats’ spirits were also deflated after the confirmation of Manion and Rehnquist. That speech sounded an alarm to the Democrats and said, “Don’t give up. I know your inclination is to be supportive at first glance. Wait until you see Robert Bork’s record. Wait until you have an opportunity to get a sense as to who this man is.”

It sort of froze people in place.

It froze people in place. Second, it sent a signal to activists around the country that they needed to prepare a nationwide campaign focused on the threats to civil rights and liberties posed by Bork’s record. It was too risky to wait until the hearing. Kennedy knew within the first 24 hours that he needed to set the parameters. So that speech had many different purposes.

One of the ways Kennedy was most effective—and it’s something that you don't see with many other Senators—is his hands-on approach. He doesn’t see his role limited to getting up and giving a speech and being on the Sunday TV talk shows. He actually would get to work, roll up his sleeves, call Black political leaders, politicians all over the country, and leaders of national groups, urging them to oppose. He also had his staff do the same. They targeted their calls to southern officials whose opposition was crucial. He knew what it would take to defeat a candidate to the Supreme Court, and he wasn’t at all reluctant to make the calls to raise money, to hire organizers, to get people in the country galvanized. And that’s remarkable.

We just saw Kennedy work his magic again with William Haynes’s nomination to the Fourth Circuit Court of Appeals. Are you from Virginia?

We both live there now.

William Haynes was the general counsel at the Defense Department during the years when the torture memos were being written by lawyers in the Office of Legal Counsel at the Department of Justice. He attended meetings with [Richard] Cheney’s staff, [Donald] Rumsfeld and others, and worked on the torture memos and policies. He was a major force in putting together the strategies and the infrastructure that led to torture committed by the U.S. When Haynes was nominated for the Fourth Circuit Court of Appeals, no one had much information about him. Because he had worked with the Defense Department, most of his memos were secret. He didn’t give public speeches, and it was clear that he was on his way to winning confirmation to the Fourth Circuit.

Kennedy’s staff called us and asked, “What’s your information, and are you opposing William Haynes?” It was pretty clear to us that we had to oppose Haynes on the grounds that there was not sufficient information about Haynes’s role, and our view was, until we had some of the documents and memos, he shouldn’t move forward.

But that wasn’t the view of most of the Democrats on the Senate Judiciary Committee. And in fact, the author of several torture memos, Jay Bybee, was confirmed to a seat on the Ninth Circuit Court of Appeals before his memos became public. But Kennedy didn’t want that to happen to William Haynes. He called several Senate colleagues, public interest groups, went down to the floor of the Senate, and gave a speech about Haynes. He was the only Democrat on the committee to say, “We shouldn’t do anything on William Haynes until we have the memos and papers.” And then over the course of two years, the committee learned more and more about his role in preparing and promoting the torture memos, and just two or three weeks ago, the [George W.] Bush administration withdrew that nomination.

What would you say—and you’ve heard this criticism before about the Bork nomination—that Bork was “Borked,” that there was somehow something unfair, that the process changed from more of a public campaign to prevent Bork from being confirmed, that somehow the process changed and became politicized after Bork? How would you respond to that?

I’ve never agreed with that argument. After Bork was defeated, anger was directed at progressive groups and at the Senators. A lot of that anger was, interestingly, directed by the press, who asked, “Who are these people, these upstarts?” The press had grown used to the right wing flexing their muscles, but they weren’t so sure they liked the “liberal interest groups” flexing their muscles. There was a little bit of envy directed at the tactics and strategies employed by liberals.

I think the anger was driven by those not only upset about Bork’s defeat, but with the embarrassing, almost humiliating spectacle of Reagan losing the battle. It wasn’t just a debate over a judicial nominee; it was a fight over Reagan’s vision of the judiciary and the kind of transformation he wanted America to undergo to implement that vision. That defeat not only spoke about Bork, but also to Reagan’s views that many Americans at that point had grown weary of. The nomination came after the Iran-Contra episode, which was exposed during the latter part of Reagan’s presidency, and showed that Bork’s views on a whole range of issues were out of sync with most Americans’ values. In essence, despite the fact that the Reagan administration was weak, no one expected the Democrats to pull this off.

Moreover, groups and Senators on the Right went on the attack. The day they lost the Bork fight, they didn’t disappear; they didn’t go underground; but they came out with the boxing gloves on and fought back. There’s no better demonstration than the nomination of Clarence Thomas several years later. Still smarting from the Bork defeat, they were committed to sending up another hard-right Supreme Court nominee.

Ultraconservatives also took away the lesson that their nominees should say as little as possible at their hearings. The Bork nomination also brought about a permanent partisan divide. Republicans determined from that moment on that they were never going to send a nominee to the Senate again who openly flaunted their agenda. They completely changed their strategy and advised their nominees to keep their heads down, say as little as possible at the hearings, and keep the paper trail to a minimum. Democrats have also kept to this playbook.

That explains Thomas getting through, in part, that he had a fairly limited paper trail?

No.

What happened there, and why was Kennedy so late to get in on that?

Well, let’s see in the chronology. Right after Bork we had [Douglas] Ginsberg, who was nominated and withdrawn within a week or so. And with respect to Anthony Kennedy, now Justice Kennedy, [Ted] Kennedy was one of his strongest proponents, and I often wondered if Anthony Kennedy thinks about that. It was Ted Kennedy who spoke out on the Senate floor with great passion about his nomination.

About Ginsberg’s nomination?

Aron: No, about Anthony Kennedy. In part that was due to Harvard Law School professor Larry Tribe’s support for Anthony Kennedy. Any anger or opposition to his nomination was diffused by Ted Kennedy’s active support for him. I guess that was the end of that—we had a few other controversial nominees to the district courts. But then came [David] Souter when [George H. W.] Bush came into office, and Souter sailed through confirmation.

Although Kennedy opposed.

Was he opposed?

He was, yes.

Alliance for Justice opposed the nomination based on David Souter’s record as attorney general, state supreme court justice, and a judge on the First Circuit Court of Appeals. He had a very conservative record, primarily in the area of criminal justice. He was also outspoken on the issue of First Amendment freedoms, particularly as attorney general.

It was an interesting situation for Alliance for Justice because publicly his record was very one-sided, but we came to learn many facts privately about his views on privacy and women’s rights. We believed we had to rely on his public record as opposed to the private one, and I assume that was the case as well with some of those Senators on the Judiciary Committee. He was—as we all know—a true moderate on the Court, a Justice who demonstrated independence and fairness.

That wasn’t the case with Clarence Thomas at all. He had a lengthy record of hostility to civil rights as the chair of the EEOC [Equal Employment Opportunity Commission]. I was a lawyer at the EEOC during the early ’70s and saw how hard lawyers worked to build a strong legal foundation for civil rights. So much of this effort was undercut by Thomas during his leadership at the EEOC. There were reams and reams of documents collected by Congress about Thomas’s tenure at the agency. He had been called to testify many times before committees in the House and Senate on age, race, and gender discrimination, and he was a popular spokesman who traveled across the country to present his ultraconservative views.

Alliance for Justice opposed Thomas’s nomination to the D.C. Circuit because we knew that this judgeship was merely a stepping stone to the Supreme Court. We wanted to make sure that the Senate Judiciary Committee had early information about his record. However, as you know, he only served 16 months on the D.C. Circuit and wrote only a few opinions.

From the very beginning, given the country’s discomfort and disquiet over the treatment of African Americans, it was doubtful that an African American could ever be defeated for a seat on the Supreme Court, even if his views were decidedly hostile to civil rights. Despite a lengthy, vocal record of hostility to civil rights, the Senators just couldn’t bring themselves to marshal their resources or energy to oppose him. Those Democrats from the South in particular felt compelled to vote for Thomas based on polls showing support among African American voters.

At the same time, the White House cleverly targeted a few leading figures in the civil rights community and worked closely with them to support Thomas. In fact, I recall the head of the Washington office of the NAACP [National Association for the Advancement of Colored People], Althea Simmons, who was appealed to by the White House to support Thomas. The Bush administration knew if the Washington office of the NAACP spoke out in Thomas’s favor, his confirmation would essentially be a done deal. Althea at that time was very ill and on her deathbed. One day we received a phone call from her hospital room saying, “Come over. The White House has just called me, and they’re bringing Clarence Thomas over.” Althea was afraid that if she and Clarence Thomas and the White House staff were alone in her hospital room, she would end up supporting him. So she said, “You guys have to come over and just be in that room.”

Our lawyer at that time, George Kassouf, ran over to a flower shop and raced over to her room. He walked in, and there’s Clarence Thomas and some White House staff with Althea, who was lying down. George was there to rebut, where appropriate, the White House’s statements about Thomas’s record. George said, many times, “Excuse me, but I think the record actually says this instead of your rendition of the facts.” To her credit, Althea remained neutral. However, Ben Hooks, then national head of NAACP, and Donna Brazile and a few others were solidly in Thomas’s camp.

Do you buy this theory that Kennedy remained quiet during those hearings because he was embroiled in this Palm Beach stuff that had just occurred?

I don’t know, but the press certainly raised this matter as the reason he was so quiet.

Were you disappointed in his performance?

I was disappointed in the committee’s performance. It really wasn’t until Anita Hill’s allegations of sexual harassment were made public that Senators spoke out. We learned about Anita Hill, and shared information about her allegations with the Senate, asking it to investigate the charges. As you recall, up until the Senate vote, the committee had ignored Anita Hill’s allegations, pushing them under the rug. Actually, it was [Daniel] Patrick Moynihan, I recall, the day of the vote, who used a parliamentary maneuver to stop the vote on Thomas’s confirmation from taking place, forcing the committee to hold a set of hearings on Anita Hill and Clarence Thomas.

It’s hard to speculate. The fact of the matter is, there wasn’t one Democrat on that committee who conducted himself appropriately, maybe with the exception of Howard Metzenbaum. Metzenbaum was probably the designated fighter, but very few wanted to engage in a discussion about any of the harassment allegations, and because of the difficulty of racial politics, Senators were loath to talk about Thomas’s views in any detail. But without Kennedy, there was no one to provide cover.

Do you have a sense of why you think Kennedy in general, Thomas perhaps excepted, has been willing to take the lead on these kinds of things? Where does this commitment come from? I know I’m asking you to speculate.

Well, a couple of things. One is, I think he’s the longest serving Democrat on the committee. He has an institutional memory about incidents, about debates that happened a long time ago. He understands the critical importance of the role of a federal judge and particularly a Supreme Court appointment. Looking back, he was there during Harrold Carswell’s and Clement Haynsworth’s nominations. He took the lead on Clement Haynsworth. He hired some of the finest staffers over time to work on judgeships—Jim Flug and Burt Wides, for instance, assembled a solid record on Haynsworth. He has been there to see Presidents come and go, but also sees that judges and Justices sit on the court long after the President leaves office.

Two, he is the uncompromising, indefatigable civil rights leader on the committee and in the country, and he has forged important friendships with those in the civil rights community, which are long-lasting, deeply meaningful, and profound. He sees himself as part of a movement that has relied on the federal courts to make advances in the law. Whenever there’s a Supreme Court nomination—even today, when you have Justices who might pose an even greater risk to the environment, a greater risk to choice—it’s the civil rights community that is the most energized around a Court appointment. I think he sees himself as very much a part of that world and that community, and there’s a residual, instinctual need to fight anyone who is going to turn the clock back on civil rights.

Three, even as recently as [Samuel] Alito’s nomination, he is referred to as “the lion in the Senate.” He just brings a passion and a fire in the belly that is unmatched by any other Senator. Maybe Paul Wellstone had the same drive and energy and vision, but Kennedy’s contribution to advancing justice is singular. He knows in his gut that it’s worth a fight.

Finally, he has never hesitated to step across the political aisle and work with Republicans or conservative Democrats on mutually beneficial reforms. Unfortunately, given the partisanship over judgeships, collaboration rarely occurs.

Do you think he feels that he’s carrying out his brother’s legacy? Again, I’m really taking you far afield.

That I don’t know, but many have thought so.

I’m still wondering where, deep inside, the fire comes from. Do you think it’s his faith, perhaps?

I don’t know what moves him personally to be so outspoken. I’ve probably sat through more Senate Judiciary hearings than I care to remember. What I’ve observed is a steady stream of people coming before the committee who talk about how their lives have been harmed and jeopardized by bad judges and Justices. If I’ve had to sit through these many hearings, he’s had to sit through many more. You can’t leave those hearings without something changing in you, without knowing just how important it is to keep bad judges off the court and put good judges on.

In Jack Bass’s book, Unlikely Heroes, there’s a quote by Nicholas Katzenbach, who served as Attorney General, about a lawyer named [William Harold] Cox, who was appointed to a Mississippi District Court seat by Kennedy’s brother, John Kennedy: “Presidents don’t often understand the importance or the harm of putting bad people on the bench.” Cox served as a district court judge in Mississippi for decades and made some egregious rulings. I sometimes wondered whether that was a factor that influenced Kennedy’s thinking.

Have you ever been disappointed with him? Ever thought that he may have compromised too quickly on a particular nomination or perhaps an issue? There was some criticism of him last year from some of his Democratic colleagues that he’s moving a little too quickly to strike a deal with the Bush White House on immigration and things of that sort.

Those criticisms crop up every once in a while. There’s the criticism that he’s moving too far too quickly or is too much in [Orrin] Hatch’s camp.

But what’s interesting to me is that unlike some of the other Senators who have also worked more collaboratively, I don’t know of a single instance where friendship got in the way of his taking the right stand on a controversial nominee. That doesn’t mean he might not share a laugh with Orrin Hatch, which he’ll do from time to time, and it’s almost a welcome sign when there’s a little of that. It breaks the tension. But on a judicial nominee, I have never seen him be cowed by friendship. His handling of Clarence Thomas’s nomination stands as a blemish on his record, but it wasn’t due to bowing to Republican pressure.

The other thing I’d say about him and judgeships is that many Democrats shy away from voting against a judge, unlike their Republication cohorts, That’s why, going into [John] Roberts’s nomination for Chief Justice, having Kennedy be the first Senator to talk about the importance of the Supreme Court was so critical to framing the debate. His colleagues remained silent.

Why do you think that’s so?

For a number of reasons: One is, unlike the Republicans, Democrats tend to be less result-oriented where their judges are concerned. Two, Democrats—and you saw this with eight years of Bill Clinton—look to patronage for appointments. Individuals who had worked in the Clinton campaign, raised money, or had been involved in various legal work in helping him become President were rewarded with judgeships. Recent Republican presidents, on the other hand, tend to look for judicial nominees who will implement a political agenda on the courts.

Three, Democrats tend to observe Senate niceties and process. I think there’s no better illustration of this than Clarence Thomas. Democrats don’t want to offend a Senator by voting against his or her nominee because they know that next week, they may have to go to that same Senator to ask a favor. Other Democrats are institutionalists and take care to observe Senate rules and protocols, even if they threaten the Democrats’ objectives.

That’s a source of frustration to you, I would assume.

Oh, a tremendous source of frustration. You don’t have to look any further than the past two years. Look at the role assumed by the Gang of 14 when they forged a deal to end the debate around the nuclear option [ending the filibuster]. Well, they may have saved the filibuster, but two things happened: One is, they made it possible for three of Bush’s nominees to be confirmed, but I think even more appalling, the Democrats agreed to language that essentially precluded them from being able to filibuster a nominee. Take the confirmation of Samuel Alito. Ted Kennedy got his colleague from Massachusetts, John Kerry, to join him in mounting a filibuster. However, because of the wording in the Gang of 14’s agreement, Democrats refrained from joining the filibuster.

The other thing Kennedy does, which has been quite wonderful, is to educate his colleagues.

What do you mean by that?

Well, during the filibuster fight, I was in Chicago meeting with a group of lawyers. Barack Obama, who wasn’t yet a Senator, had just left a book party of Robert Caro’s. Christie Hefner, a member of that group, called to tell me that Caro, upon being asked about filibusters over federal judgeships, at the party had responded, “Oh, I think they’re perfectly appropriate.” We then called Kennedy’s office after confirming that Caro was willing to talk to some Senators about using filibusters, and within 24 hours, Kennedy’s people had lined Caro up. Caro met with all the Democrats and helped them understand that filibusters could be used in any manner by the Senate. It wouldn’t have occurred to us to call any Senator but Kennedy because we knew that Kennedy would reach out. He’s a connector, and he would get it done.

[END OF INTERVIEW]