James Flug Oral History (12/04/2007)

This is the second interview with James Flug, on December 4, 2007. We are picking up from the early years of Jim's work on the [Edward M. Kennedy] staff, the Administrative Practice and Procedure Subcommittee business, and the other events of that period, including the unfolding of the Watergate scandal.

I had the pleasure, this morning, of finding a box of old materials, including selected press releases on virtually the same letterhead that they're on now. It reminded me of two or three things. One is the tremendous variety of subjects that even then—This is from 1967, so he had been in the Senate from '63, just over four years. What he was doing, on a day-to-day basis, is beyond belief even then. Of course, it's gotten even better, or worse, as the case may be, since then. Here's February, on crime.

February of?

Sixty-seven. That would have been in my bailiwick. That's before the subcommittee, when I was legislative assistant. I had all of the Judiciary things even then. There were two legislative assistants. The whole staff fit in three rooms in the Russell Building, plus his office, and a couple of small rooms. We added a couple of people. In my room, we had five people. It was a room about the size of this room, which is—12' x 12'?

Something like that, or 13.

There were the two legislative assistants, our two secretaries—we called them secretaries then, although they were not trained secretaries—and one other person; I can't remember exactly what she was doing. Then there was the Senator's office.

The administrative office was very similar to the way it is now, with the chief of staff; then the administrative assistant; the secretary, Angelique Voutselas [Lee]; the scheduling person, who was then Barbara Souliotis, now still on the staff and head of the Massachusetts operation; and a political person—who varied from time to time—Andy Vitale, and later Paul Kirk. Dave Burke was the administrative assistant the whole time I was there, and he had a secretary, who for part of the time was Anne Strauss. Five people were in that office, and the receptionist. I don't remember who the receptionist was when I got there. The press person was in the next office, with his secretary and three or four caseworkers. That was the whole staff, except for, in the early days, the Refugee Subcommittee, which I think had one lawyer, one nonlawyer, and one secretary. That was the whole staff.

The caseworkers were in lieu of a Boston office?

There were some caseworkers in Boston too, but there were at least three people, maybe four, in Washington, in the same office as the press office, who were caseworkers, loosely defined. Some of them were working on local affairs that had legislative dimensions to them, and that was sort of halfway between casework and legislative work, but they did some very important work that had to do with Massachusetts.

That's one of the features that come out of looking at this array of subjects. One day he's talking about law enforcement, and this happens to be in February. This isn't a complete list of press releases; these are the ones I happened to keep. Here's one in June, on the bill to extend the Older Americans Act. That was always a great interest of his. Then here's one in August—clearly a Massachusetts focus, as many of his things were—an amendment to encourage the use of fish protein concentrate in undeveloped countries in the world. That was something that brought a smile to everybody's face every time he talked about it, but fish protein concentrate was very important. Also, here's restoring the cuts to the foreign aid program, also in the summer of 1967, and the desirability of constructing computer systems to help states and cities with federal program information.

Today we just assume that that was because there was so many companies in Massachusetts, but I'm not sure that in 1967 there were very many; it may have just been something that somebody at MIT [Massachusetts Institute of Technology] or Harvard got him interested in. He was very interested in science and technology. Here's the Older Americans Community Service Program; that subject continues through his whole career. Here's one for National Science Foundation funding. And here's one that became more and more important over '67 and in the ensuing years: hearings on Vietnam civilian casualties, done in the Refugee Subcommittee in the Senate.

What we discussed last time, the One Man, One Vote issue, went on from April to June of '67, in the middle of all these other things, and was at the height of the crime control bill, because that was very much on the front pages. President [Lyndon Baines] Johnson, as we said, had had the crime commission, and it had made a number of proposals, which led him [Kennedy], in February of '67—my second month on the job—to make a number of proposals off of the President's crime commission. The first was the establishment of a National Institute for Criminal Justice, to serve as a center for the countrywide efforts in criminal justice research and innovation. That was the one that eventually passed, and which, I discovered this year, still exists.

One of the things we discussed was whether a fight like One Man, One Vote was something people understood and cared about. The way the office worked then—and I'm sure it does now—he issued a report. This is one step up from mimeograph, because it looks like it was at least a photographed stencil. A large part of the four pages here is spent on an article called "The Quiet Bill," and talks about the whole history of One Man, One Vote. This went out to large numbers of people in Massachusetts. It spans two legal-size pages, discussing the whole floor fight, everything we discussed last week. It doesn't add anything to what we discussed last week, but was a nice summary, in simple, non-legalistic language, for the people of Massachusetts on his mailing list.

Again, here are Older Americans, the National Council of Senior Citizens, the draft, a picture of him with Norman Rockwell. It's just a typical month's work. Here's a picture of him with the students at St. Stephen's in Washington. He had a huge number of things going on. [papers shuffling]

Dickey-Lincoln was a dam and reservoir that was very important to Massachusetts. He had a Massachusetts/Washington conference of community officials. This is a specialty of his. He had a conference in Washington, but there were people from Massachusetts there. The speakers included half the Cabinet: the Attorney General, the Secretary of Interior, Sarge [Robert Sargent] Shriver, the Undersecretary of Housing, the Assistant Secretary of the Treasury, the Secretary of Defense, and the Senate majority leader. He could, even then, attract that kind of crowd. Now, that was still a Democratic administration.

Then in '67 he started focusing very heavily on the draft, giving a long floor speech on all the problems of the draft. This was at the height of the Vietnam draft. The draft was extremely unfair and elitist, and he was bringing attention to that. Then the Nigerian Civil War; civil wars in Africa, nothing ever changes. This is exactly 40 years ago. Then there was a conference on economic conversion, the national challenge and the national opportunity, and then a tribute to Gene Wyman, a big Democratic and Jewish political participant in California. This is a speech he gave in California, during the Christmas recess of '72. We were talking about after he came back into action. That was '72, after [Richard] Nixon had been elected but before Nixon had been—but while we were in the middle of the Watergate investigation. These are things he was doing outside my sphere.

Inside my sphere, it's almost as broad. We talked about crime; we talked about One Man, One Vote. Now here's the title of the Safe Streets Act, which was the follow-up on the Johnson crime bill, which had all of the anti-civil liberties things in it. He gave a speech on the Safe Streets Act, beginning with the Oath of Office, "support and defend the Constitution." The theme is "Each of us has a chance to impart substance to that oath today." Essentially, he says we're being asked to destroy the Constitution and we have to protect it. That's the beginning of a series of speeches. This one happened to be in '68, but it goes on as a theme, right through the '60s and into the '70s.

They gave a Profiles in Courage Award to Chief Justice Earl Warren. He spoke at a dinner, right in the middle of the height of the anti-Vietnam activities, in 1971, at Iona College, which is a Catholic college in New York. It's a very tough civil liberties speech, but very sympathetic to the students. This is getting us over into 1971, but these themes go on. We'll come back to some of them when we talk about the subcommittee's work, because some of them are open statements at hearings. I now have a better feel for what was going on with the hearings.

Theme number one is the wide variety of things he was interested in, simultaneously, which continues, amazingly, to this day. Theme number two is that, in his areas of expertise, and especially in the areas I worked in, he was taking very tough, libertarian positions on civil rights, civil liberties, affirmative action. There was no holding back; there was no shading of the issues, with one slight exception.

In 1970, of course, he was running again for the Senate, and it was at the height of the Nixon "hard hat" era. The hard hats were the symbols of what Vice President [Spiro T.] Agnew called the "silent majority." Many of us took the summer of 1970 off and went up to Boston and worked on the campaign. Carey Parker was there. Carey and I, sitting in the second floor of this abandoned building next to the Parker House in downtown Boston, as we wrote speeches during that period, we had to keep in mind that the hard hats were in the audience. We both got hard hats; when we were writing a speech that had that dimension to it, we would put on the hard hats, to keep in mind that—

You were wearing Massachusetts shoes, too, weren't you? [laughter]

That was one of the subjects I had to deal with as legislative assistant. A very nice man was the lobbyist for the Massachusetts shoe industry, and he was in all the time. We had to do what we could for Massachusetts shoes, but there wasn't much you could do; it was a dying industry. Looking back at these speeches, seeing the force and the unalloyed civil libertarian instincts, it just makes me get excited all over again. Virtually nothing I could write was too strong for him.

That leads to another issue and another factor that comes out of looking back through these speeches. When I came up here in January of 1967, I don't think I had ever written a speech. Maybe for my judge, my first year here, I wrote one speech, but I wasn't an expert on anything yet. It was my first year out of law school; the only thing I knew about was taxes, and he wasn't interested in taxes, so I doubt I even wrote a complete speech for him. He did have one clerk who was expert in some of the interests that he had, so he wrote the speeches in that field. I didn't write a speech for him.

When I went to work in the Tax Division after that, there was no occasion; the head of the Tax Division didn't give speeches, at least not that I had anything to do with. When I went to the Attorney General's Office, the Attorney General gave lots of speeches, and maybe I had a hand in one or two of those, but there must have been somebody who wrote the speeches, probably Jack [Rosenthal]. Carla [Carbaugh Flug] worked in that office too. He was the assistant press secretary, who later became an editorial writer for the Washington Post, and then an editorial writer for the New York Times. He now runs the New York Times [Company] Foundation; he probably wrote many of the speeches. Some of them were probably written by people in the substantive divisions of the department, but I don't think, in the year and a half or two years that I was in the Attorney General's Office, that I wrote a complete or an important speech. I did a lot of idea giving; I did a lot of editing, but I don't think I wrote a whole speech.

Suddenly, when I got to the Hill, I was being asked to write speeches, which was a totally new phenomenon. It was the most wonderful thing, because most of the time—notwithstanding that example I gave—the speech to the Young Democrats, when I first got there, where he read Bobby's [Kennedy] speech—he had a pretty good idea of what he wanted to say. We'd sit down and he'd say, "Here's what I'd like to talk about for that event." Or he'd ask for suggestions and we'd discuss it, and he'd sketch out a theme and, not an outline, but just some thoughts he had on what he might say there. I'd do a first draft, and he'd look at it. He'd either make major changes and say, "No, that's not what I wanted to say; this is what I wanted to say," or he'd say, "I like this part; I don't like this part," or he'd actually mark it up.

The reason I can remember this vividly is that in the [John F.] Kennedy Library, in the little niche they used to have for him—I'm not sure they still have it. They had one little niche for Bobby and one little niche for him—they had some of the draft speeches, including some of mine. You could see the original, hand-typed speech, then you could see his handwriting on it, and then you could see my handwriting on it, as it went through an iterative process.

When he gave the speeches, to what extent did he stick to the text?

Sometimes he stuck very closely to the text and sometimes he threw away the text, and sometimes both. Then and now, he might have a floor speech in front of him. He will have read the floor speech once the night before and maybe while he's waiting to give it. He may stand up and not read from it at all, and just give his own version of it, which 90 percent of the time is better than the written version, but then he puts the prepared text of the speech in the [Congressional] Record. You can't tell from the Record, notwithstanding what the Record is supposed to show, what he actually said. Sometimes it'll put in what he actually said and sometimes it'll substitute the prepared speech for what he actually said. Sometimes it'll put in both, and it will just look like he gave two somewhat overlapping speeches.

Were others in the office writing speeches on other subjects? Was Carey doing a lot of speech writing?

Beginning with when he came in 1969.

Did Dave?

Dave did mostly Vietnam, some of the refugees, international, and the war. When I left to go to the subcommittee in January of '69, and Carey became legislative assistant, then he was doing a lot of everything, although I and my co-counsels did most of the Judiciary work.

So I had to learn how to write a speech on the job. It was a great way to learn, because when he departed from a speech, I could see where his was much better than mine, and could hear his rhythm and his tone and his emphasis. I can see, just glancing at these speeches, the learning curve happening. In my case, he brought out the best in me. It was so inspiring to hear him give inspiring words. That encouraged me to write as inspiringly as I could.

I never formally figured out how to write speeches; it just happened. I read some of the speeches, especially on civil liberties, and I can't be sure, other than where I have the original text, as in the ones in the Library, but I remember writing some of them. He was willing to be adventurous, where I went out on a limb. There was something that every Harvard student from his time and my time knew about, the Skinner box. Does that phrase mean anything to you?

Yes.

There was a psychology professor at Harvard, named [B. F.] Skinner, and he brought up his kids in a box, to isolate them from all outside influences or something. [laughter] It was the craziest thing. You studied this if you took psychology at Harvard from Skinner, and I guess other people studied it too. There was a line I put in a speech—it was an anti-Nixon speech, so it must have been after January of '69—We are not all raised in the Skinner box. Very few people would let something like that stay in a speech, but I'm fairly confident that he not only let it stay in, but actually gave it. I read some of the stuff now and I can't believe that I wrote it, because I can't write that way now.

I had another chance to do it this time around. Part of it is that the time pressures seem to be much greater now. There's so much more going on that I don't think I had as much time this time around as I had then, but I'm not sure about that. It might have been just the opposite. It might have been that the time pressures were just as great, that I was writing more because there were fewer people, and that writing faster is better than having too much time to write, because sometimes you really have to get organized to write something fast. That remains a mystery. All I know is that I have never written—I didn't write in terms of speaking before then, and I have written lots of speeches for myself and for him since then, and they were never as good as they were during those first few years, because he was just—

So it was not difficult to write speeches for him.

No.

Some political people are never satisfied.

No. I look at some of these and they just zing. It wouldn't have been the same, coming out of other people. I don't think that the B'Nai Brith one is here.

When you were writing, could you hear his voice in your head, saying the words, as a tool to help you write it, to get his cadence?

Everybody in the '60s heard Ted Sorensen's cadence. Much of it is in the John Kennedy style. Here's the B'Nai Brith speech, October of '71: [reading]

Let me be blunt. The men who are involved in the selection of Supreme Court nominees—Richard Nixon, John Mitchell, and I understand John Connally—remind me of the people who used to put "Impeach Earl Warren" signs out on the highways. They are repelled by the kinds of decisions the Warren Court made, and they would like to select justices who will make the opposite kinds of decisions. If we look at the decisions of the Warren Court which most offend them, perhaps we can understand why they are having such a hard time finding candidates who meet the test, and why those that they find are so undistinguished.

Then it goes on a riff about the Warren Court:

Of course the columnists and humorists have had a field day. The suggestion is made that the first six were put forth just to make the next six seem good by comparison, or that what Richard Nixon really wants is nine Richard Nixons on the Court, or that he hopes the Senate will continue to reject his nominees until there is no one at all left on the Court, but it is not a laughing matter. The issues the Court must deal with in the immediate future are keys to the preservation of our liberty as we know it, for the people responsible for filling four Supreme Court vacancies in less than three years are the same people who have played fast and loose with the Constitution for nearly three years, and only the judiciary has kept them from playing faster and looser.

It goes on; I don't know how much of it he actually gave, but every paragraph either gives you a smile or a tear. He loved it and I loved it. It was fun.

Did you rehearse?

In those days, it wasn't as organized as it is now. Sometimes he did; on a big speech he did, but not as much. For example, now, on a big speech, he will do it with the teleprompter the day before the speech. I don't remember that happening in '67. The President was the only one who used a teleprompter, and the mechanics of getting something into a speech copy, if we used speech copies at all—At this time, maybe we had an IBM [International Business Machines] Selectric [typewriter]. I don't think we had an IBM Selectric with a different type ball until the very end of my period there, '73. At the beginning, if we wanted to do a speech copy, it was just all caps, which really isn't very easy to read. I don't remember him doing actual rehearsals. He must have read it to himself before the final, because he was always marking them up, but I don't remember him trying it out on us very often. He may have tried it out at home.

That leads me to a footnote. I don't know how much you're discussing Joan's [Bennett Kennedy] role in the old days, whether you've spent much time on that.

We haven't, but it's not because we wouldn't want to.

Maybe if we have some time we can talk about that. The bottom line is that Joan sat in on many discussions we had out at the house. When I first got there, he was on 28th Street in Georgetown. I don't remember being there as often as after he moved out to McLean. Maybe the 28th Street house didn't lend itself to that, and the kids were being born during that period; maybe one was born just before I got there.

I think the oldest was born before you got there.

There was always a lot going on at the house, but Joan did sit in. I remember very vividly, in McLean, that Joan sat in on an awful lot of what we did, and sometimes participated in it.

Would she comment?

Very occasionally, not very often. I'm sure she commented to him afterward, but nothing like Vicki [Reggie Kennedy]. [laughter] I can give you a good comparison on that.

A second dimension of this is that his persona—the strength of his feelings, his willingness to express things not just strongly but sharply—encouraged me at least, and I think others, to write that way. I'm sure his Vietnam speeches, which Dave was writing, were just as tough or tougher than my civil liberties speeches. We took our lead from him, and he encouraged it. He liked speeches that had a zing to them.

You'll find many triplets in here and a lot of Sorensen-type elements, but I don't think we were conscious of what Sorensen did for John Kennedy. We just thought that was the way good speeches were written. I didn't have any historical perspective. I don't think I was very familiar with any [Harry] Truman speeches or FDR [Franklin Delano Roosevelt] speeches, but we knew about John F. Kennedy speeches.

This is interesting because he also has a reputation for terrible speech giving. He's explosive, bombastic maybe, gets very high-pitched, and extemporaneously will move so fast from one thing to another, or backtrack, that it's hard to follow him.

Here's a speech he gave, just following up on that lead, because it reminds me. This is a transcript of the human rights meeting of the section on individual rights and responsibilities of the American Bar Association; he spoke to the law student section at the 1970 American Bar Association annual meeting. This clearly was not his prepared text, but a transcript of his off-the-cuff remarks. They're not precise and they're not—If you read them, they don't read very well, but I'm sure the people who were sitting there listening to them thought they were just fine.

"I am delighted to be with the members of these groups—" I'm sure the prepared text had a list of the groups and he didn't want to read off a list of groups— "which I think offer such hope on so many different questions before us. I'm sure that you here, on many occasions, are constantly asked to really participate, in a more meaningful kind of way, in your towns and communities and law schools, and in the bar associations, wherever you may be."

He clearly wasn't reading, because we wouldn't have left in a split infinitive in those days. It's somewhat jumbled. If you read them, they don't read well, but in an audience like this, with a bunch of young lawyers there, where he throws in his favorite adjective, "extraordinary"—My guess is you rarely see "extraordinary" in prepared text, but in his casual remarks, you'll see "extraordinary" in every paragraph.

But the audience gets it because of his body language and everything else.

The audience gets it. They appreciate the fact that he's not speaking from a text; they'd rather hear him speaking a cappella, so it's hard to judge that. Sometimes, it really gets bad, where he's trying to do too much in one question: at a cross-examination hearing or trying to compress a ten-minute opening statement into two minutes, which you sometimes have to do. The chairman says, "I said you could have ten-minute opening statements, but we're running late, so let's all do them in about three minutes." He cuts out half of it and the rest is a jumble. I don't know if you know what a blivit is. Have you heard the expression "blivit"?

Yes. [laughter]

There were many blivit situations. We didn't call them that, but that's what they were like. No transcript ever should have been published. That's either my fault or the ABA [American Bar Association]'s fault. They should have given us the transcript, and we should have marked it up. That's what we do in the Senate. That's why the Congressional Record reads somewhat tolerably. Even if he does give something that strays from the text, somebody is supposed to go through it and cut out the superfluous materials and the repetitions and the bad things that don't scan, and make it stick as closely as possible to the substance, but make it read better, because otherwise it reads like this. Many of these speeches—or at least the prepared text, which he had a very substantial hand in, both at the inception and in changing them as we went along—are really good speeches.

How extensive was the editing that he would do ahead of time?

Next time you're up in Boston, go to the Library, and look at some of the original drafts of the speeches. You can see that his handwriting is all over them. Of course, what you don't see, because we'd be at a final draft by the time he got to marking it up, or a near-final draft, are the times he has said: "No, I don't want to talk about that, cut that part out. You know what? I was at a conference the other day on such and such, and they were talking about how this and that affect how the process of input in the Department of HHS [Health and Human Services] affects the quality of the output. We can throw that in here too, because we're talking about the Federal Trade Commission, and there's no public input in the Federal Trade Commission." Well, I wouldn't have been at the HHS speech; he'd make connections like that all the time.

So the breadth of his connections, his knowledge base, feeds into everything, including speeches.

He just has his own synthesis machine in his head, and that happened in almost every speech. He'd say, "I heard such and such the other day," or—just like he remembered the South Africa speech, which everybody remembered, but he remembered everything else too—"I remember Prime Minister So and So gave a speech three years ago. Go look that up, because he had a wonderful phrase in there; it was something about elephants." Maybe it wasn't elephants, maybe it was lions, but he'd push you in the direction. There was a lot of that too. That's the second thing that comes out of this.

Of course, the third thing is that he was such a leader on some of these issues, and the main issues are civil rights, civil liberties, gun control, and the flip side of civil liberties, which is having crime control measures that make some sense, like criminal justice research. I found the speech from the annual meeting of the National Rifle Association, which as I suspected was right at the beginning, April 2. This happened just before One Man, One Vote, so we were on a high then.

The speech he did not deliver to the board of directors?

He didn't bother delivering it to the board of directors, because there was no press in there with the board of directors, even though he says, "I hope you'll take what I'm going to say back to your membership and give your membership a chance to consider it, and that you'll come up with some good ideas that will solve these problems." We released it to the press outside the board meeting. He went into the board meeting for about five minutes, before [John] Dingell ever got there. Dingell remembers this too, to this day, and kids a lot about it. Then he [Kennedy] went out—and the cameras were all outside, because they wouldn't let them inside—and summarized his speech. He probably had a short version of it that he used before the cameras. He said his piece to the cameras and left, and then Dingell got there, went into the board meeting, and Kennedy wasn't there. It was a very high start for me, and he just loved it. He just thought the whole thing was a stitch.

When he would give a speech outside the Senate, and you'd go through this process of drafting and his editing, and then he would give the speech, was there usually a copy distributed to press as well, even if he'd departed orally?

Yes, because a lot of them were handed out; for example, this would not only have been distributed to the press at the event, but to the entire Senate press gallery, so even if nobody showed up at the event, it would get press. This was something that was a great photo op, too, because there was Kennedy at the meeting of the National Rifle Association. It was nice.

When you wrote speeches, did you always have to take into account how they would be received by the press, because you knew that no matter what he said, it would get to the press?

You hoped it would get to the press. [laughter] The other venue for gun control was, as I recall, the Juvenile Delinquency Subcommittee. [papers shuffling] Here he goes through the whole history of the public hearings:

"Five days of public hearings in '63, three days in '64, and in the 89th Congress, we held 11 days of public hearings, at which we heard 50 witnesses, and also the Commerce Committee held hearings and the House Committee held hearings." He was probably at all of those Senate Judiciary Committee hearings, and my guess is he probably testified to the Commerce Committee, too. His leadership on these issues was incredible, and he kept at it all the time.

Here is another nice little one, in 1967. There was the NRA meeting, some hearings on the floor, and One Man, One Vote was in the middle. Then there were some hearings on the floor on guns, and then, in the summer of 1967, we came up with this horrendous thing: that the Army was paying for the National Rifle Association shooting matches at the camp in Ohio, and that federal taxpayer money was subsidizing the National Rifle Association. Of course, we went wild with that and the poor Secretary of the Army and the Secretary of Defense had to spend a lot of time that year figuring out how to stop subsidizing the National Rifle Association. That was another fun thing during that year.

Skipping ahead to the subcommittee, which started in January of '69, these reports really do remind me of what we were doing. I have a lot of it, but not all of it. First, we sat down and had a strategy meeting on what we were going to do with this committee, because Ed Long had spent a lot of time on some wiretapping things and some other things, but we were wide open as to what to do.

Ed Long?

Ed Long of Missouri was the chairman before Kennedy. He left the Senate in January of '69, when Kennedy took over the committee. He was beaten in the primary. The first thing we did was to sit down and strategize and plan sending a questionnaire.

You and he or—?

By that time, Dave was probably involved, and in the early months of '67, we hired two or three other counsels. We sent a questionnaire—on citizen involvement and responsive agency decision making, because that was directly in the jurisdiction of the subcommittee—that was otherwise very vague, to "every federal department and agency with rule-making, licensing, investigatory, law enforcement, and adjudicatory functions. A detailed questionnaire covering citizen involvement in the agencies' administrative processes and procedures, for promoting more responsive agency decision making."

Remember, this was the beginning of the Nixon administration, after almost ten years, with [John F.] Kennedy and [Lyndon B.] Johnson, of Democratic rule. It was a shot across the bow to every administrative agency, and many departments as well that had a lot of administrative process, saying—I don't have the questionnaire or the cover letter. I'd love to see those, but I'm fairly confident that they say—Hello, I'm in charge of this committee now, and you're going to be hearing from me. For starters, fill out this questionnaire.

How active had the subcommittee been under Long?

It had been most known for its work on wiretapping. There were various theories of why Long was interested in wiretapping, which I don't have any knowledge of or comment on, but the question was, Did he have some interest in protecting somebody? I can't answer that, but there was some suspicion, in some quarters, that he had ulterior motives for it, in terms of who was being wiretapped in those days.

We had this first shot across the bow. Then we had a second strategy. There was a little body called the Administrative Conference of the United States, something Congress started. It had a minuscule budget. Shortly after this time, the chairman of it became Antonin Scalia, who was first an Assistant Attorney General in the Nixon administration, and then was made chairman of the Administrative Conference. It had the same kind of jurisdiction we did, and the successive chairs were always trying to think of ways to get—

Were these administrative judges?

No. Law professors. Every federal agency had a representative on it. It was half public, half private. It was the general counsels, or somebody like that, from every agency, and then a bunch of prominent lawyers. In the early days, there was very little in the way of citizen or consumer participation, but that was one of the things we tried to change. We stated that in the report on the first year that we held hearings on the authorization for the Administrative Conference, because it was clearly in our jurisdiction.

There weren't many things that we had legislative jurisdiction over, but the Administrative Conference was one of them. We had a hearing, and the Administrative Conference—I forget who the chairman was then, it may have been Frank Wozencraft—was also trying to think of things it could do with its jurisdiction. They were very imaginative, and they told us all the things they had been doing, all the things they were planning to do, and, as this report says: "The testimony demonstrated not only the need for an increased level of funding for the conference, but also the vastness of the range of procedural problems and challenges that must be dealt with by the conference, and by this subcommittee."

We were using the conference as our icebreaker, to get us into new areas, because once the Administrative Conference got into a new area, then that was an opening wedge for us to get into that area.

But had Long, then, taken a relatively narrow view of the mandate of the subcommittee, and Kennedy came in wanting to have a broader, more expansive use?

I'm not sure. He was very aggressive in his use of the subcommittee, and some areas he went into aggressively. The most notable one was wiretapping, but I don't remember what else he was doing. He did some of these things with the Freedom of Information Act and the Administrative Procedure Act, because those were directly in the legislative jurisdiction of the committee. He had people who spent their time doing those things, but my recollection is that, on a much more parochial and conventional basis, we were looking at it as our "open sesame" to the whole world.

Were there any eyebrows raised about that?

Yes, and we'll get to that in a second.

We sent a letter to every agency and department, requesting copies of all their regulations and decisions implementing the Freedom of Information Act. There again it was, We're going to be keeping an eye on you, and you had better have your house in order, because, eventually, we're going to be asking about this stuff. We started collecting cases under it, and let it be known that we were going to be the enforcers of the Freedom of Information Act. Then there was a District of Columbia Freedom of Information Act.

Very early in '69, as I mentioned last time, we held a hearing on the implementation of Nixon's executive order on affirmative action, which wasn't called "affirmative action" then; it was called "contract compliance," because where it started was that if you were a federal contractor, you had to, somehow or other, have a diverse workforce. We held hearings on that, and especially focused on the Department of Transportation and highway construction, and the failure of the Defense Department in procurement. Our witnesses included the Deputy Secretary of Defense, the Secretary of Transportation, and the Secretary of Labor. This was practically our first hearing, and we had three Cabinet-level people there. Again, it was a shot across the bow of the Nixon administration that we planned to be very aggressive, very active.

This report says that our hearing—These reports were designed to be somewhat boastful. This report claims, "Our hearings helped turn a low-priority effort for the executive branch into a high-priority program, meriting mention in the recent State of the Union Address." We took credit for Nixon's mentioning it in his 1970 State of the Union Address.

He must have loved you already. [laughter]

We then held hearings on the Federal Trade Commission, and had all five Federal Trade Commissioners testify. The Federal Trade Commission is always balanced, party-wise, but we had all the commissioners up there, including the chairman, and asked them very tough questions on reforms. Apparently, "as a result of this public commitment to specific reforms, a number of procedural advances have been adopted subsequently." This was our modus operandi. We didn't have legislative jurisdiction to do anything about the Federal Trade Commission, but we had the power of suasion/intimidation to make these people focus on things, and then come up with answers.

We used that committee also on Indian issues. We had a hearing on the Bureau of Reclamation and the Bureau of Land Management's failure to afford full protection of rights of native tribes and community.

Who came up with the ideas to do all these things? Did he turn to you and say, "What can I do with this committee?"

Yes. We had meetings at the beginning of each year, or at the end of each year, to ask what we should do in the next year. We would write a memo to him—and those memos are probably all in the archives—and say, "Here's a list of ten things that we'd like to do this year." He'd go down them and he'd say yes, yes, yes, no, no, yes, yes, yes.

Would he add his own items to that list?

Yes, and then he'd say, "Why don't we do this?"

You had a very interactive process.

Indians, for example, were something that Bobby had been very interested in—and we're in the post-Bobby era. One of the things he wanted to do was maintain Bobby's interest in the Indians. We assigned the subject of Indians to one of the counsels, and I think it was after this report, in the winter of 1970, that we went out and held this wonderful set of hearings. It's worth a separate conversation, because it was one of the most phenomenal physical efforts.

It was right smack in the middle of winter, and was maybe the week between Christmas and New Year's. We took an Atomic Energy Commission plane, a little DC-3 with no windows. We had three, maybe four, staff; a reporter; a photographer; and the Senator. It had all been carefully advanced from Washington. I'm not sure whether we had an advance person go out beforehand, but we would fly in this little plane. We'd overnight somewhere and in the morning wake up; hold a hearing at one Indian reservation; then get in the plane and fly, at lunchtime, to a second Indian reservation; get off the plane; and have a second hearing. We'd shut that hearing down before dinner and fly to a third Indian reservation, or a city where there were Indian tribes, and hold an evening hearing. I think we held ten hearings in three days, and covered most of the big tribes out West: New Mexico, Arizona, California.

It was incredible with these Indian tribes. He'd walk in and the chiefs would come out in all their regalia. Somewhere, I have pictures of him and us with the chiefs. Of course, all of them presented him with a headdress, and he'd have his picture taken with the headdress, although he didn't like taking pictures like that, with funny things on. But this was serious; he really, both because of Bobby and himself, had high regard for these people and cared about these people.

Many funny stories came from that trip. We didn't have an advance man with us, so we had a few logistical glitches. One night we were running for the plane in a snowstorm. I got us to the airport, but there was a barbed-wire fence between us and the taxiway where the plane was. We were throwing luggage over the fence and climbing over the fence to get to the plane. Another night, there was a blizzard, and we couldn't get out of the hearing in time to get to the plane. The pilot said, "I have to take off because otherwise, they won't let me take off." He took off and got above the snow, and we were in Bureau of Indian Affairs cars that were radioing someplace else, which was radioing the plane, and we were running along on the ground. The pilot was flying over us, trying to find a place where he could land and we could get on the plane. We never found one and drove all the way, I think it was to Albuquerque, from Window Rock, the Navajo capital.

Logistically, it was a real bonding experience. [laughter] I never lived down the fact that I got us on the wrong side of that fence. He said, "All right, you'll never be an advance man." That was the Indians, a major interest of his. We eventually made one of our counsels an Indian expert, so he kept going with that.

What were the concerns? Was it education?

It was everything. He served on the Indian Education Subcommittee of the Education and Labor Committee. When we did this hearing, we did it as a joint hearing of the Indian Education Subcommittee and the Administrative Practice Subcommittee—even though there was no staff on the Indian Education Subcommittee—but when we opened the hearing, we would say, "This is a hearing of the Indian Education—" There was nobody with us, either Democrat or Republican, that I can think of. It was just him.

It was general welfare and education of the tribes?

Some places had specific problems. In Reno, Nevada, Lake Tahoe, there's a tribe of Pyramid Lake Paiute Indians. They had real problems with the lake. The lake was losing its water or gaining its water. Whatever it was, it was interfering with their life, either their religious or their economic life, so they were worried about that. The Navajo were worried about everything, and then the urban tribes were having tremendous problems with their young people having all sorts of social and economic problems. It could be a different set of problems in each place, and he was focused on those problems.

Did you get cooperation from the Bureau of Indian Affairs?

Yes.

Or a more hostile response?

No. We got cooperation from everybody. The Atomic Energy—and this was true right through the whole six and a half years I was there, even during the Nixon administration. There wasn't a person in the government that you couldn't call and get basic cooperation.

I knew all the Assistant Attorneys General on a first-name basis, after we blasted the hell out of [William] Rehnquist, when he was nominated for the Supreme Court. I wrote him a personal "Dear Bill" letter, after the Senator wrote whatever he was going to write, saying, I hope we can continue to work together, even though we've blasted you. [laughter] I just reread the speech on Rehnquist and it's incredible.

Why was there such a willingness to cooperate with him, particularly if you were going to be doing things that might redound to their liability?

The Congress was in Democratic hands all of this time, strongly in Democratic hands, and the fact that we won on things like [Clement F.] Haynsworth and [George Harrold] Carswell showed that when push came to shove, we could make things happen. It was harder to make things go forward than to stop things, notwithstanding the [David S.] Broder column on One Man, One Vote, which said it's harder to stop things than to start things. I didn't necessary agree with that, but sometimes it's just as important to stop things as to start things. They knew that we had a lot of clout, and they respected him. Nixon hadn't earned people's respect yet. He had been elected, but—

But a number of these people were bureau chiefs?

Well, the Bureau of Indian Affairs was probably still in the hands of a career person. The Immigration Service was probably still in the hands of a career person. In those days, those things didn't flip over as fast, so yes, we got absolute cooperation from the Bureau.

We got cooperation from the Atomic Energy Commission. By 1970, I'm sure there was a Nixon appointee as chairman, because one of the seats would have turned over and the majority would have shifted to the Republicans. I don't know what the exact law was then, but chances are it was a Republican chairman, but he wasn't going to fool around with us. It was a favor to us, to lend us a plane. Of course, we all thought that the plane was probably radioactive [laughter] and that we'd never live through the whole trip, but we went anyway.

Do you think his potential as a Presidential candidate factored into how they responded to requests?

Certainly by 1970, yes, because he had been spoken of in '68, and Bobby had done his thing in '68. That probably had something to do with it too.

From what you could observe—how other staff, maybe with other committees, or just people you interacted with—was the extent of cooperation greater here, because of who Kennedy was, than other people, other Senators, might have encountered?

It was all earned. Take the Judiciary Committee, which is what I knew best. There was no "first among equals." It was equals among the most active liberals on the committee. [Philip A.] Hart may or may not have been the senior person. [Birch] Bayh may have been junior to Hart; Kennedy, I think, came in the same year as Bayh. The three of them were co-equals on the civil rights stuff. On some things, one of them would be the leader; on other things, another would be the leader. Of course, there were very active Republicans too. [Jacob] Javits was on the committee. On something like the Fair Housing Legislation of 1968, it was probably Hart and Javits, but he was a full partner and they were very happy. It was as if you had a three-headed Senate office with three staffs. The staffers were all close friends and worked well together.

Did anybody make trouble for him or oppose him on his AdPrac [Subcommittee on Administrative Practice and Procedure] projects?

Yes. We're going to get to one of them in a second, on aviation, but I'm just going down the list in the order that we had them, which probably is from most jurisdiction to least jurisdiction. That is, as you get further down the list, the more we were stretching our jurisdiction.

The next one is administrative procedures and the selective service system. The draft was something he was interested in, both as an independent matter and because we were in the middle of a war, where people were getting drafted to go over and get killed. It was very unfair, and those of us who were the beneficiaries of the unfairness, and on his staff, knew that it was unfair. I had deferments all through—I think all of us in the office were near draft age, or had just come through. I had turned 26 the year before I joined his staff, so I had had deferments in college, deferments in law school, deferments when I clerked for a judge, and the deferment when I worked in the Tax Division. I think I turned 26 in the Tax Division. Maybe I had to get one more for the Attorney General's Office, but my draft board, at Coney Island in Brooklyn, thought these were very worthwhile endeavors. They had more than enough kids who didn't have anything that they considered worthwhile.

Many years later, it may have been at our hearings, after the draft was abolished, the head of the Selective Service System, General [Lewis B.] Hershey came up in a retrospective on the draft system. He was proud of it. He said, "I got more people to start families; that was good for the country and good for the economy. I got more people to go to college and graduate school; and that was certainly good for the country. I got people to take government jobs and go into public service." He said, "I'm very proud of what I did." [laughter]

That's a novel way of looking at it.

But in the sense of those times, when the elitism and the unfairness of it wasn't so apparent, especially between the Korean War and the Vietnam War—Let's see, they probably stopped drafting for the Korean War in '57 or '58, and didn't start drafting for Vietnam until—

Didn't the draft stay in effect?

Yes, the draft was in effect.

But they weren't calling people.

I took at least three draft physicals. I took one while I was in college, one when I was in law school, and one when I was in Washington. You were conscious of it all the time, and it really did motivate you to figure out—If you didn't want to go off to war, it motivated you to do something else. It probably was good for the country, but it was just utterly unfair and elitist and discriminatory. I could afford to go to college; I could afford to go to graduate school; I could get a job in Washington. Most people couldn't do that, so it was very unfair. He felt that, and we felt it. We didn't feel it at the time, but in retrospect we felt it, so that was something he did.

There, it's a bit of a stretch. The Selective Service System is not under the Judiciary Committee. It was probably under the Armed Services Committee, but the administrative practices of the Selective Service Committee—Whoever was head of the Armed Services Committee then, probably [John] Stennis, he probably got along with all right. Stennis probably spoke to [James] Eastland, and Eastland said, "Oh, let Teddy do whatever he wants," so nobody stood in the way of our having hearings on the Selective Service System.

Here again, he sent questionnaires to all 56 state Selective Service directors and more than 4,000 local boards. I don't remember that, and I don't know, in those days, how we would have sent something to 4,000 local boards, but if it says we did it, we did it. We must have had some help from somewhere, probably from the Defense Department. We probably got the Selective Service System to send out a letter for us.

We did a study of the system and recommendations for administrative reforms to study further or urge Congress to terminate student deferments in time of war, and study the issue of conscientious objection. [papers shuffling] "The hearing transcript volume, and the report itself, have already become leading documents in the field, and the subcommittee has had to obtain additional copies to meet the hearing demand." Well, the Senator must have been very happy about that, to have a hearing that people actually read and paid attention to. That was unusual, especially for an offbeat committee like this, one that had no jurisdiction.

Reform of the draft.

Reform of the draft.

Did that come before AdPrac?

No, but we wrote a report anyway, making recommendations.

He was much involved in that, wasn't he, draft reform?

Yes, but we used the Administrative Practice Subcommittee as a platform for him to hold hearings and send memos out to the draft boards. People in the administration knew that he was on their case. That was much of what we did.

The next one was the toughest one: aviation safety procedures. We had a whole bunch of questions we wanted to ask, and were in the midst of those hearings when this happened. There we ran into a problem, because the Commerce Committee had jurisdiction over that, so we had a negotiation. Senator [Howard] Cannon of Nevada was the chairman, so the Senator spoke to him and said, "We don't want to steal your jurisdiction. This is really a law enforcement and administrative practice focus that we have." I have here a list of four questions that actually sound like they're Administrative Practice and Procedure, so we held those hearings.

Next came federal agency invasions of the right to privacy, federal investigative procedures and others, and this says, "Following up on work which constituted major activity under the prior chairman, the subcommittee has continued to keep constant touch with all developments in the field of the potential abuses of federal investigative procedures, and other invasions of individual privacy. Pending presently is an inquiry into a complaint from Senator [Carl T.] Curtis"—Republican from Nebraska, I think—"regarding unauthorized eavesdropping within a federal agency."

I was very interested in that subject, because I had worked on it in the Justice Department. The Senator was also interested in it, so we had a shot across the bow on that one. Then came the Administrative Procedure Act, which was in our jurisdiction. We had a proposed amendment for additional participation in the rule-making process for all underrepresented segments of the community. That's something we kept working on for a while and didn't get very far on. And then were the hearings on the Administrative Conference recommendations, which were, as I said, a way for us to extend our jurisdiction.

The next report that I have, from December of 1970, was reporting on activities mostly earlier in the year. During 1970, we got heavily involved in anti-war activities. Because he was a leader by then, in the opposition to the war, he was very supportive of that. This was my youthful exuberance—I would come up with ideas for keeping an eye on what the law enforcement people were doing to stop these demonstrations. This report talks about the hearings we held on Kent State, and the hearings we held on the May Day demonstrations in 1970 in Washington, and the official observers that the committee itself put out at these demonstrations.

Wow.

We got together with the minority and we said, "None of us wants Kent State to happen again, so we'd better take a proactive role here, because nobody else is going to do it." We issued special badges to all the staff members of the subcommittee, and any of the other members who wanted to have their staff involved. The chief of police of Washington was a guy named Jerry Wilson. He was a very good, very modern police chief. He would call us before they were going to do something, and tell us exactly what they were going to do. The day of the big May Day arrests in Washington, he called me at 5:00 in the morning, told me what they were going to do, where they were going to do it, and—I don't think I had my motor scooter anymore, but I must have gotten out there somehow.

The top cops all knew me. We had our little Senate "official observer" badges that we had had made up, and we would go out and watch the cops tear-gassing and arresting. They knew that to the extent they didn't do it right, they'd be up before us on hearings. We had hearings on the use of force in the District of Columbia, off of the Kent State hearings. We discovered that there were 20, 25 different police forces in the District of Columbia, starting with the District Police, and going all the way to the Government Printing Office Police, and they all had different rules for shooting people. We had all of the police chiefs up there and asked, "What's your rule?" One would say, "We can shoot if we think a guy is armed." Another said, "We can shoot if he shoots at us." Those might have been the polar ones, with everybody else in between; there were no consistent rules. Those were the kinds of things we did. Again, the idea was that people knew we were watching them.

Now this gets kind of personal. The Senator didn't know this in advance; he may not have known it after the fact—Many of the demonstrations were around the Justice Department. I still knew the people from the Justice Department pretty well. I had left there in '67; this was '70, '71. I also knew the guards at the doors. During the demonstrations they would have the doors closed, although generally, at that time, they hadn't shut the whole place down yet, only when there were demonstrations. When the demonstrations were going on, all around the Justice Department, the best place to watch them was from the Justice Department, so I used to toddle in to the Justice Department, through the interior courtyard, where I knew the guard especially well.

Once you got in the building, you had free rein of the building. I would go up to the Attorney General's office. I knew most of the people up there pretty well; one of the Attorney General's assistants had come from the Judiciary Committee. There were two balconies: one on Constitution Avenue and one on 10th Street, outside the Attorney General's office, where I had worked. I knew the inside of the Attorney General's office very well. I'd go in and say to the receptionist or the secretary, who was still there from when I was there, "Is it all right if I go out on the balcony and watch?" I'd go out on the Attorney General's balcony and watch the cops arresting people. [laughter] One day John Mitchell walked in while I was out on his balcony, and he turned to one of the assistants, "What the fuck is Flug doing out on my balcony?" [laughter]

I was pretty aggressive, but I really felt that our presence made a difference. They knew we were watching them, and they knew that if they did something silly, they were going to end up in one of our hearings.

That May Day, when they arrested all these people, they put them in two places. One was the old ice rink, the Uline Arena. As you take a train out of Washington, you see this big thing that looks a little like a Quonset hut; that's now the Uline Ice Company and is an offshoot of the ice company. They used their freezing things to freeze an ice rink. It was long since closed as an ice rink, but was still an arena. I think they had boxing matches in there and things. They brought many of the kids into the Uline Arena, so we went in there. I tried to take my minority counsel along when I could, and we watched them processing the people they had arrested. None of the arrests could hold, because they didn't know who they arrested where or why. They didn't have enough recordkeeping. They didn't have laptops or anything, so all of these people were going to get released anyway, but in the meanwhile, they were sitting in the Uline Arena.

The other place they were was out at the armory. I don't think the RFK [Robert F. Kennedy Memorial] Stadium had been built yet, but out there where the RFK Stadium is now was the armory. I guess they couldn't keep them inside the armory, because they were probably using the armory for staging the National Guard and other things, but they built fences around a big field at the armory and put the kids behind these fences, guarded by the Air National Guard.

I went down there and had some sort of Senate pass that got me through the lines. I saw the kids behind this fence, and the kids were getting rambunctious after they'd been there for a while, being guarded by the Air National Guard. This was after Kent State. At one point, I saw that the kids were discovering that these fences were not very solid, and that they would give when the kids pushed against them. The kids were starting to push against the fences in certain places, testing them out; the officer in charge of the Air National Guard saw it too, and I heard him order his troops to load their weapons.

Oh, my God.

There was a limousine sitting there watching too. I looked inside and saw the vice chairman of the city council, a guy named Sterling Tucker, a long-time civil rights activist. He had a city limousine, and was sitting there. I opened the door of the limousine—Of course we didn't have phones or radios or anything, but I assumed he had a phone. I got into his car and introduced myself. I didn't know him, I don't think. I said, "I need to use your phone." I called the direct line at the Attorney General's office, the one that rings on the Attorney General's desk, which I knew from my time in the Attorney General's office.

The assistant, who had worked for Senator [Roman] Hruska, and whom I knew, picked up the phone—I'll think of his name in a minute. I recognized his voice and called him by his first name. He said, "Who is this?" I said, "It's Jim Flug." He said, "What are you doing on this phone?" I said, "I'm trying to reach you to do you a big, big favor. The officer in charge of the Air Force troops out here just told his troops to load their weapons. You're going to have another Kent State here if you don't stop it, because the kids are going to knock down the fences very shortly, because the fences aren't very strong. They're going to break out; some National Guardsman who gets frightened is going to shoot at one of them; and you're going to have Kent State right here." Wally [Johnson] was his name. Wally said, "Thank you, Jim."

There was no discussion. He got the Attorney General, and the Attorney General called the Secretary of the Air Force or of Defense. The Secretary of the Air Force called down to the Air Force National Guard, and they unloaded. Sterling Tucker and I were sitting there watching, and within five or ten minutes after the call, you could see them standing down. That was the kind of thing we did. The Attorney General knew we were watching, because he found me out on his balcony; and the Attorney General's assistant knew we were watching, because he got that call; and we held hearings with all those police chiefs.

We took it as our mission; nobody asked us to do it. On this one, we were going beyond, probably, what the Senate had time to pay attention to on a day-to-day basis, but we took it very seriously. In fact, we also ran a bipartisan trip to both conventions, in 1972, because there were threats of huge demonstrations in 1972, in Miami. Both conventions ended up in Miami. I remember the Republican convention was supposed to be in San Diego, but because of the [Richard] Kleindienst/ITT [International Telephone and Telegraph] thing, they couldn't have it in San Diego, so they had it in Miami.

There again, I went down with my minority chief counsel. We flew down before the conventions. The Army picked us up at the airport, put us in the helicopters, and flew us down to where the troops were preparing and practicing to handle the demonstrations of the '72 convention. I did think I was somewhat likely to get thrown out of the helicopter on the way down there, because the doors were open. It was one of those Army helicopters.

We had an office down at the convention, right near the convention center. I don't know where we got that office. We must have called GSA [U.S. General Services Administration] and told them to get us an office and telephones and everything else. We did everything with the minority. At one point, Senator [Charles M.] Mathias [Jr.] was our ranking minority member on the subcommittee. At another point, Senator [Strom] Thurmond was our ranking minority member. We got along with both of them and we got along with their staffs. Mathias was easy, because he was on our side.

Thurmond's chief counsel was a very young guy who came on, and he didn't know what hit him. He came into this maelstrom; I would come at him with these letters for Thurmond to co-sign and he would take them to Thurmond. I just ran into him the other day. He later became a Congressman, and then a judge of the Court of Claims, and now is a lobbyist for the federal magistrates. He told me the other day when I met him, "I'll never forget that day you came in with the letter from Senator Kennedy asking for Senator Thurmond to sign on for subpoenas for the Watergate. I was afraid to take it in to Senator Thurmond, but I took it in. And he said, 'All right, if Teddy wants to issue subpoenas, let him issue subpoenas.'" Fortunately, he didn't ask the White House. He or Mathias's person went down to Miami with me. I was down at both conventions in Miami, watching the police and the Army, making sure that they knew we were watching them.

What kind of reputation were you personally developing at this point? How were others perceiving you?

I suppose you have to look at where Carswell falls in this. Carswell is '70 or '71.

Seventy.

Before Carswell, the only thing that stood out was probably One Man, One Vote. After Carswell—for better or for worse, and you can get some disagreements on it, both up on the Hill and off the Hill—I was keyed, in a series of magazine articles in the New Yorker, as the person who brought the Carswell thing home. Birch Bayh was our leader, and his staff did a tremendous job, but Dick Harris, the New Yorker reporter who worked on this, had written the book on the passage of Medicare in '65. He had written a series of magazine articles for the New Yorker, which were turned into a book on Medicare, and then he did the same thing on Carswell. He identified me as the one who refused to give up, and as the one who got Kennedy interested in it.

But internally—before we get to the Carswell stuff—were you developing a reputation within the Senate of being individually powerful because you had, I would assume, Kennedy's backing for these things?

Everybody knew that Kennedy's staff, all of Kennedy's staff, (a) wouldn't do anything that he wasn't totally a party to, and (b) were risk takers, and that he was a risk taker.

How much did you have to clear with him ahead of time?

Obviously, subpoenas were each individually cleared with him ahead of time. Going to Miami had to be cleared with him ahead of time, because it would be an embarrassment if it hadn't been and it went wrong.

But going onto John Mitchell's balcony was not?

Going onto John Mitchell's balcony was on my own hook, and if it caused trouble, I would take the blame for it. Going out to the RFK and the armory and calling Wally—There was no time to get authorization; I just had to use my judgment on that. Sometimes I would call Dave Burke—I don't think I did in this particular instance, but it wouldn't have been unusual for me to call Dave and say, "I think the kids are going to break through the fence. Do you think I should do something about it?" Of course, he would have said yes, but in that case I don't think I called. He would probably be the person I would call in a situation like that. On the strategic things, policy decisions on things that might really embarrass him, I would make sure he signed off.

The only other thing on the committee is that we did use it for some parochial Massachusetts stuff as well. I had forgotten we held hearings. Do you remember that I said the very first thing I did, on the first day I got up to the Senate, was testimony for him in the oil import program, where you had to get tickets to get oil in New England? Well, in 1970 we held hearings on the administration of the oil import program. There's a long quote from Kennedy about how ridiculous the program was, his conclusions, and the general who ran that program saying, Yes, we're kind of screwed up and we probably ought to do something about it. That was the other dimension of what the subcommittee did, and other technical things like sovereign immunity and what we've just discussed—we called it "federal handling of mass demonstrations." I'll just read you a few sentences from this:

All this experience was brought to bear when there was very little notice a huge demonstration was planned for the White House area on May 9, 1970, in the wake of the Cambodia attack, and Kent State. Despite the size and emotion of the huge crowd, the earnest efforts of the many federal District of Columbia agencies involved and of the demonstration organizers produced today an event that with very few exceptions, met everyone's rights and needs, with a minimum of confrontation or conflict. To learn the lessons of that day's preparations and activities, the subcommittee invited representatives, all involved agencies, and private groups to participate in a roundtable hearing. The record of that hearing contained an excellent picture of the extensive negotiations and preparations, the enlightened approaches and attitudes of the responsible officials, and the extensive burdens assumed by the organizers and private groups, all of which combined to make the peaceful assemblage possible. Because of the utility, as an example for other public officials, a copy of the transcript and appendix was sent to governors, National Guard commanders, mayors, and police chiefs throughout the nation, and many of them wrote to the subcommittee, expressing their appreciation for this assistance.

Then it described the official observer role. All of this was a conscious effort, just to make sure no more Kent States happened. We discussed it and talked about what we could do to make sure Kent State didn't happen again. It was, again, giving the people who were doing these things a real-time sense that we were keeping an eye on them, that we wanted them to think we were everywhere. We couldn't be everywhere, but we wanted them to think we could be everywhere.

So Nixon wasn't paranoid? [laughter]

[BREAK]

I was going to footnote the last discussion on the post-May Day activities, and the assiduousness with which we went about trying to make sure it would never happen again.

One of the factors was that some of the parents identified Senator Kennedy as the person who could do something about it now. Of course, what they wanted was to see the National Guardsmen in Ohio strung up by their toes. We worked very hard on getting a serious investigation of what happened out there, but in the meanwhile, we were also working very hard at making sure it never happened again. One of the people killed was Allison Krause. Her father, whose name was Arthur Krause, was calling us hourly in May of 1970, then daily after that, weekly after that, and monthly, probably, until the time I left. He thought Senator Kennedy was the only one who could do any good on it. Apart from our own desires to make sure that that sort of thing never happened again, we were constantly reminded of it by Arthur. Some of the other parents would call from time to time, too, so it was a very personal effort as well as a public effort.

Did the families see him or did he visit them?

I think Arthur Krause did come in at least once, and probably did see him, though I can't be positive, but that's my recollection. That pushed us ahead to 1970.

If we're going to move to Supreme Court nominations, we really have to go back to 1967. Here I'm a little unsure of myself, because I can't remember—Well, I know Thurgood Marshall was Solicitor General when I was in the Justice Department in '64 or '65, so I'm pretty sure he wasn't nominated to the Supreme Court until '67, when I was up there. If I'm right about that, that would have been the first Supreme Court nomination that I worked on with Senator Kennedy.

There, as I recall it, some of the Republicans and southerners gave him [Marshall] a hard time. I don't think it was a real serious effort to beat him, but there was at least significant opposition in the early stages. I'd have to go back and see what the ultimate vote was. I don't think too many people voted against him, but it was not insignificant. That was my first exposure—Was it Senator Kennedy's first exposure to a Supreme Court nomination? The one before would have been Arthur Goldberg, and that would have been—He was Secretary of Labor first, in '61, '62. Senator Kennedy might have been there when Arthur Goldberg was nominated. The next one was Abe Fortas's original nomination as Justice, and that would have been before '67, I think. Then came Thurgood's, which I think was '67, when I was there. Then, definitely, Fortas's Chief Justice nomination would have been '68.

And that was withdrawn.

That was withdrawn, but was the precursor of everything that followed, in terms of Supreme Court nominations. My vague recollection is that the Republicans showed us how they were going to behave, in the Thurgood Marshall nomination. They were not happy.

And the southerners as well.

The southerners and the Republicans. That created bit of—Whether that was before I got there or after I got there, that created a precursor of what was going to happen with Fortas as Chief Justice. There, they went all-out to stop that. If I'm right, that it was '68; it was Johnson's last year. He didn't become a lame duck until he announced, at the end of March, that he wasn't going to run again.

Fortas and [W. Homer] Thornbury—

Right. Fortas was going to be named to the vacancy for [Earl] Warren, and Thornbury was going to fill Fortas's seat. The Republicans and the southerners gave Fortas a terrible time. They had already been going after Justice [William O.] Douglas for what he was doing, giving him a hard time and asking him to step down. The initial opposition to Fortas was ideological, clearly because he was so close to Johnson, but then they found some somewhat inappropriate arrangements that Fortas, like Douglas, had, for moonlighting, and they made a very big thing out of it. It was a big-enough thing that they were able to sustain a filibuster of the Fortas nomination to the Chief Justiceship.

There were also inappropriate discussions with the President, as a member of the Court.

There were, but I don't know whether they knew about them at the time. They may have. But they were very tough and it was very nasty. At the same time, similar stuff was going on in an effort to get Justice Douglas to step down. There had been a somewhat poisonous atmosphere with Thurgood Marshall too, so that was the environment, early in my experience up in the Senate.

Nixon had one appointment—Somewhere, I have a list of all the Supreme Court nominees, with all their years, but I have a feeling [Warren E.] Burger came in early in the first Nixon year. I knew Burger from my clerkship on the court of appeals, and he and [David] Bazelon, my judge, did not get along at all. He [Burger] was about as conservative as they came, and he was not somebody that I, certainly, thought should be on the Supreme Court, but it was very hard to get any traction on opposing him.

I think [Lewis] Powell was appointed at the same time, and was considered a pretty good appointment, in large part because he had been president of the American Bar Association and involved, even as a young lawyer, in legal aid and legal services. So he was perceived as a really good candidate. I hope I have the order of things right. [Ed. note: Powell sworn in 1/7/1972]

I think the Warren seat, that Fortas didn't get, stayed open until Nixon came in, and that Nixon made that appointment of Burger early in his Presidency, and it was not highly contested.

Here's a short footnote that I can't resist doing, because you won't read it anywhere else or see it anywhere else, unless the archive is better than I think. Burger turned out, also, to have inflated notions of his own stature and status on the Court. He drove everywhere in a limousine. Maybe all the Chief Justices did that, but he had a certain swagger about it that made it somewhat obnoxious, at least to me.

One day he decided that the Chief Justice needed a mansion in which to entertain, and somehow arranged with the Catholic Church that some building they owned, up on 16th Street, would be donated or sold to the government as the Chief Justice's residence. Of course, this contradicted everything in history about the Chief Justice of the United States. Other than the fact that he has certain duties when they're meeting, sits in the center, and gets paid a few dollars more than the Associate Justices do, and has administrative control over the Court, he's supposed to be "first among equals" and is not supposed to have any more status or power or clout, other than what comes from these minor administrative and Court orderliness powers. But he wanted this mansion. He secretly developed this plan and got the local archdiocese, or maybe something national, to agree to a sale or to give this building to the Federal Government. Some of us thought this was really obnoxious.

Fortunately, two of the people who thought this was obnoxious were Fred Graham, who was then the Supreme Court correspondent for the New York Times, and I, who was then Senator Kennedy's chief counsel. Between us, we made sure that was never going to happen. You can look at the New York Times articles and see how that worked out, but that was a side project. The Senator was involved in and gave some statements about it, but it was a minor project that nobody else ever noticed; however, it was very important to not having Justice Burger have any more clout than he already had.

I forget whose seats were which, but I think Burger and Powell went on the Court in early '69, and then Haynsworth came up in the summer of '69, while the Senator was still not in full swing after Chappaquiddick.

As I mentioned, Chappaquiddick had some minor personal impact on me. I spent that day in Boston. That weekend, I went to Mary Jo's [Kopechne] funeral. I actually knew Mary Jo and the other boiler room girls. One of the things I found this morning was the old staff list from the campaign. I'm quite a saver.

From Robert's—

From Robert's campaign. They were boiler room girls. And it says "girl"—that was the title, "girl"—and who was in charge of each section of the country. There weren't many people who spent time in the headquarters, because everybody was out on the road. This thing was put together in no time at all. I don't see a date on this, but it was a wonderful group of young women. Mary Jo was in charge of Delaware and a bunch of other states—D.C., I guess the mid-Atlantic area—and first-rate. I knew her and all of the other boiler room people pretty well, because I was around the headquarters almost every night, so I went to Mary Jo's funeral. I actually visited—I was up on the Cape, went over to the island, and actually drove to the site and the route, just to get my own sense of what it was like. I had my own theory about how it happened, by mistake, but nothing mattered at that point. The die was cast. It took him out of action for the rest of that summer.

What did you mean, "the die was cast"?

Well, he decided (a) that he was going to plead to whatever he pleaded to, and (b) that he was going to stay in the Senate. He gave a speech and felt the public of Massachusetts responded, but it never went away. Every five years after that, there would be articles about it and books about the fifth anniversary and the tenth anniversary, and of course in the '80 campaign, there went another book and there were all sorts of articles again. It kept coming up, and I had minor responsibilities for handling some of that.

It's still alive, as you know. The bumper stickers after [Richard] Cheney shot somebody, "I'd rather hunt with Cheney than ride with Teddy." Still, today.

There was another bumper sticker, "Nobody died at" whatever it was.

At whatever that ranch was, where he [Cheney] was shooting?

No, this was earlier than that. This was another incident where somebody got in trouble.

To this day, there are people that I meet, perfectly respectable people, sometimes they're friends of mine—Of course, one of the occupational hazards of being connected with any Kennedy in any way is that some people, all they want to talk about is Kennedy if they know you have anything to do with Kennedy. It's like Harvard people; some Harvard people never volunteer that they're from Harvard. There are all sorts of stories. They'll go somewhere and people will ask, "Where did you go to college?" "Oh, up in Boston." It will take two or three rounds of questions before they'll admit that they went to Harvard, because that gives them an identity, a caricature, and so on.

It's the same thing with being a person who's been, in any way, connected with Kennedy. Many times I just don't want to spend my time discussing that. We have been on a couple of small cruises and eventually it just comes out because I make friends with people and eventually have to go through my biography. The last cruise we went on, to Alaska, I don't think anybody knew, because the last thing you want is to be stuck on a boat with somebody who wants to discuss Chappaquiddick or gun control or whatever it is that their thing is. It's been like that practically since day one.

I remember before the end of '68, when we had just passed gun control, when he ran for Whip. That was the year he was in Sun Valley in December, and that's when supposedly he didn't have his ski boots, so he started calling around, and found out [Edmund] Muskie wasn't going to run, and he got support from [Hubert] Humphrey and [Michael] Mansfield, so he decided to run.

I was skiing in Aspen in those days. My brother had a condo there at the time, at a place where everybody else was from Texas. One of the Texans was this big independent oil guy, George [P.] Mitchell, and I used to ride the lift sometimes with George Mitchell. Every time we'd ride the lift, George Mitchell would have an agenda, a Kennedy agenda. [laughter] One time, he'd be telling me why gun control was a bad idea, and the next ride he'd be telling me why we should continue having the Oil Import Appeals Board, or whatever it was.

That was one of the occupational hazards, but the most freaking one was meeting somebody at a party, and if they'd heard from somebody else that you'd worked for Kennedy or were working for Kennedy, then the first thing they wanted to talk about was Chappaquiddick, and this was four years later. So yes, it never goes away, and it was even harder then. The first time he came back for a hearing—which I don't think was the Haynsworth hearing; it may have been our FTC [Federal Trade Commission] hearing—the articles were not about the hearing at all, they were about the first event since Chappaquiddick.

Anyway, he came back, but Birch Bayh clearly was in charge of Haynsworth. The issues in Haynsworth were bifurcated. One set of issues was civil rights related, and the other set of issues was ethics related. I had occasion this year to go back and look at them, because there's been a lot of rewriting of history on that subject. I don't know whether you've interviewed the Senator yet on the subject, but even the Senator has, I think, yielded to the rewriting of history. I don't know whether some other staffer got to him subsequently, on Haynsworth or what, but I went back and read the stuff this year because I was teaching on [John] Roberts and [Samuel] Alito, and I went back to look at Haynsworth and Carswell.

On both counts, the cases were very solid, and there was good reason not to have him become a Justice at that point. The essence of it in my mind, and I'm sure Senator Kennedy's speeches at the time reflected this, was that he was just the wrong person at the wrong time for that position. He was not totally accommodated to the post-Civil Rights Act United States, and to have him, at that point in time, come on the Court would have pushed the Court backward, or at least not have continued its forward motion. It was pretty clear that, at least up to that time, he had not totally internalized what was happening in the country, from his opinions and other things that he had been involved in. The ethics thing was very technical and somewhat small, but it was also bothersome, and he shouldn't have done what he did. It was very complicated, but it was not—as it is characterized now—just a totally invented thing. It was real.

[BREAK]

The issue was a technical one.

It was a very technical issue of what the rules were, respecting disqualification in cases where you had an interest. There was enough there to be of concern, but the main reason that most people didn't like him—and the charge was led by the civil rights groups and the unions—was that some of his positions in court, on both labor cases and civil rights cases, led people to conclude that he would not be a good addition to the Court at that particular time, when you were still in the middle of writing the civil rights laws.

For example, the Voting Rights Act, which had been passed in '65, was still in court right about at the time that I came up there. There were two or three cases: Morgan v. Katzenbach and South Carolina v. Katzenbach, which were decided probably in late '66, so the working out of the Civil Rights Act was still going on with the Voting Rights Act. The Fair Housing Bill wasn't passed until '68, and in fact, it was while RFK was still running that it was on the floor, because I remember that was one of the issues, and I think I was on the floor for both Bobby and Teddy.

It was still very much a civil rights era, and a motion forward on civil rights. People like the Senator, at the time—although, as I say, he may have reviewed his views on it, with some help from somebody who was not very sympathetic to the position he took then—felt that he was the wrong person for the Court at that time. That's the way the labor community felt; that's the way the civil rights community felt; and that's the way I felt.

Probably the most telling fact is that Haynsworth was beaten, as anybody had to be beaten, with bipartisan opposition. As we discussed before, nothing could happen in the Senate without bipartisan support or opposition. The Haynsworth vote, which I've had occasion to go back and look at, included five or six members of the Republican leadership, including some non-obvious ones: people from the Midwest and from the West who were in the Republican leadership but who were persuaded that he was an inappropriate choice. It wasn't partisan and it wasn't unfair and it wasn't unsupported, and he lost. There were, I think, 51 or 52 votes against him. He didn't lose by much.

When did Kennedy really get engaged? At what point was he really engaged in this opposition?

He didn't get engaged in Haynsworth in any massive way, because if it started in August of '69, it didn't go on very long. He was back at some point, but he never took—I'm sure he gave some strong speeches, but he wasn't taking a very heavy leadership role. He was still getting back to it then.

There are two theories, and I don't really know where I've heard them, mostly not from people who were closely involved, but from writers on the outside, looking at it from the outside. One is that he needed to take a very low profile in anything because of Chappaquiddick. It wasn't a question of his finding his way back among his colleagues in the Senate, but that he wasn't in a position to take a strong—to stick out like a sore thumb in opposition to this. The other theory is that he was pushed into it by Jim Flug. Now, these are from writers on the outside. I'm not talking about what I've—

Adam, as I recall, has very little on Haynsworth, almost nothing on Haynsworth. I wouldn't have been the one to have pushed him on it for two reasons: one, I didn't have strong feelings and the issues were somewhat subtle and nuanced; and two, the push was coming from the outside. Both the labor community and the civil rights community were absolutely opposed to him and, as the evidence developed, I certainly became surer and surer that they had support in their position, but I don't think I would have been pushing him that hard. The fact that Birch Bayh was out there, very strongly out front; Phil Hart was out there; and the liberal Republicans were out there would have had much more to do with it than I would have. That's an exaggeration of the ability of staff to affect a very basic decision like that. Those decisions weren't made by staff. Those decisions weren't driven by staff, because what staff did was bring to the table the evidence and the positions of other people.

I'm looking, for example, at something I ran, and the year is interesting. It's January 1971. This is a testimonial to Joe Rauh on his 60th birthday, in 1971. Sixty seemed like a very old age in 1971. I was 32, so 60 seemed real old. I don't see Kennedy on the program, although I can't imagine that he wasn't there. If you look down the list of people who were the co-chairmen and the vice chairmen and everything else, they're all people Senator Kennedy would have been talking to about any of these things if he had any doubts.

The toastmaster was Arthur Schlesinger, with James Wechsler. The cochairmen were Ramsey Clark and A. [Asa] Philip Randolph. Other speakers were Ben Cohen—I don't think the Senator knew him real well—Paul Douglas, David Dubinsky, Joe Duffey. Charles Evers was a good friend of Bobby's, and then of the Senator's. Then there was Doug Fraser from the UAW [United Auto Workers], Paul Freund, Ken [John Kenneth] Galbraith, John Gardner, Averell Harriman, Mrs. Herbert [Edith] Lehman, John Lindsay, Walter Mondale, Reinhold Niebuhr, Esther Peterson, Walter Washington, Roy Wilkins, [Willard] Wirtz, [Leonard] Woodcock, Andy Young, and Whitney Young. And just as important, the next level of people: Alan Barth, Larry Berger, John Douglas, Don Edwards, Abner Mikva, Clarence Mitchell, Robert Nathan, Walter Reuther, Leon Shull from the Americans for Democratic Action [ADA] and Sidney Yates. This is the blue-ribbon list of liberals in 1971.

Including the ADA.

The ADA. This looks like an ADA testimonial, although it isn't advertised that way. Those are the people he would have listened to on something like that.

This got on your radar screen, not only because he was a Supreme Court nominee and this was your bailiwick—

I had never heard of Haynsworth before.

I know, but his nomination would have been in your bailiwick.

Oh, yes, this was my assignment.

And then there was a lot of feeling out there.

I would have read everything that all of these people had written on it. I would have called all of these people and cross-examined them on it. I would have arranged for some of them to see him directly, so that he could cross-examine them himself. I would have conveyed to him anything that they wrote in specie. If any of those people had written a letter, he would have seen the whole letter. He was not going to rely on my interpretation of the letter. So no, in this one that's easy. There may have been things from time to time that might not have happened but for—But ultimately, for any good Senator, the decision is his. You can't delegate a decision like that.

But you would have had a recommendation, wouldn't you?

A good staffer is going to be very cautious with a recommendation on something like that, and he's going to want to know the basis for it. It can't just be the subjective view of the staffer.

Well, no, you were very thorough.

I was a 32-year-old, or 30-year-old, with no experience.

You shared some of the memos that you wrote in all of this.

During Bobby's campaign, there was a tough vote on one of the crime control acts. I was on the floor and he was out somewhere campaigning for Bobby. He called up and got me in the cloakroom, which in those days you didn't do very often, but they called me into the cloakroom because he was on the phone. He said, "I want to be recorded on this vote." I said, "How do you want to be recorded?" He said, "What's your recommendation?" I said, "Well, if I were a Senator, I would vote against this." And he said, "Yes, but you're not a Senator; you're a legislative assistant. I want to know your recommendation if you were a legislative assistant."

That's an important distinction. He doesn't want me acting like him. He wants me putting together all the recommendations and synthesizing all of the substance, not making believe I am him. He was very clear on that, and especially since the thing was well under way before he came back in full force. Given the fact that Hart and Bayh were out there by the time he got back, he probably wasn't going to take a different position from them. It would have been extraordinary for him to take a different position from their position. That one is fairly easy to answer.

It gets more complicated on Carswell. The short version of that is that there was never any doubt as to what his position was going to be; it was just a question of how much time and effort he would put into it, and whether he thought it was a worthwhile endeavor, an endeavor likely to turn into anything. It was a different question in that one. Of course, as all the books say, after we beat Haynsworth, John Mitchell and Richard Nixon decided to rub our noses in it. They felt that it was impossible to beat two in a row; therefore, they would give us the worst person they could find, and that was George Harrold Carswell.

I read something that said you made an argument to Kennedy on Haynsworth, that if the Senate voted down Haynsworth, it would cause subsequent nominees to be of a higher caliber.

I probably did.

Did you, therefore, expect what happened with Carswell?

By this time, I was not probably fully conscious of the potential that lay in this White House, in John Mitchell.

It was early.

These were interesting days, because we had pretty good relations. I certainly knew all of the Assistant Attorneys General, or most of them in the department. The legislative liaison was John Dean, or shortly after that became John Dean, and I had good relations with him. I had fairly good relations with the Republican staffers on the committee, and not just the liberal Republicans, who were part of our team. To this day, I see Wally Johnson from time to time, when he's working on something. There were social occasions, many social occasions, where there was a lot of intermingling.

John Mitchell and Martha Mitchell used to be invited to a party given by Stan Hall, the head of the UPI [United Press International] bureau, whose wife, I think, worked for one of the Boston papers. They used to live near the Potomac, and used to have a big Christmas party. I guess I was invited because I was working for Kennedy, and his wife was a Boston reporter. John Mitchell was invited because I think Stan had covered the Justice Department before he became bureau chief.

John and Martha Mitchell were there, and a lot of other Republicans and many Democrats, and we got to know them on a personal basis, at least I think we did. In person they didn't seem like ogres, and as I say, I had that nice exchange of correspondence. Well, I'm not sure it was an exchange. I know I wrote to him. I think he wrote back to me, when Rehnquist was defeated, but we tried to maintain good relations. We knew they were bad people; Rehnquist was—I just reread the Senator's speech on Rehnquist, and it's very persuasive, but he was a normal guy. He was a young lawyer, so we all got along on a human basis pretty well.

So yes, I don't think I expected that, and it sounds like an argument I certainly would have made about Haynsworth, that we had to put our foot down because there would be others. If I'm right that Burger had already happened, I was not happy about Burger, and we had made very little headway on making any point about Burger. I can't even remember whether the Senator gave a speech on Burger. My guess is that he did and my guess is that he voted against him, but I can't be sure of that.

You had a fairly aged Court at that point, too.

Yes.

So the likelihood of expecting more nominations was realistic.

Absolutely. Yes, it was a surprise. I forget how it went, whether they immediately came out with Carswell, or whether they went through running people up the flagpole. I would have to go back and look at Dick Harris's book, but I think it was a shock.

I think it was very quick.

I think it was quick.

Yes.

The thing was after that, the people were—

It seems to me there were some other names in the mix, before Carswell's name came down. Now, the minute Carswell's name came down, there was no doubt about it, because Carswell had only been on the fifth circuit for a couple of years, so his nomination had come through the Judiciary Committee while I was there. I remember very distinctly that, among other people, Marian Edelman had warned us when Carswell went on the fifth circuit that we would live to regret letting him get on the fifth circuit, because if we let him get on the fifth circuit, Nixon would be encouraged to appoint him. She was not surprised at all. She had warned us about it, that we shouldn't let him get on the fifth circuit, and that never got any traction.

Once he was nominated to the Supreme Court, you had not only whatever had led her, at that point, to be against him, but also additional materials and his own decisions. What was more important in his case was the stuff that came up in the course of his nomination proceeding, the various other things that we hadn't known about at the time of his fifth circuit nomination. There were some very entrepreneurial reporters out there, finding stuff that we hadn't found, and totally enthusiastic opposition from civil rights and labor, and all the pillars of the Bar. In those days, you had some fairly liberal presidents of the American Bar Association: Bernie Segal of Philadelphia, and Powell had been shortly before. Shortly afterward, about 1973, was Chesterfield Smith from Florida. It was not hard to get a very blue-ribbon list, and then there were a few law deans, not as many as today—Jefferson Fordham of the University of Pennsylvania Law School.

The fifth circuit now was what?

It was what is now the fifth and the eleventh. The fifth circuit was split up subsequently.

OK. So these are the states of—?

All the southern states were in the fifth circuit: Florida, Alabama, Georgia, Mississippi, and Louisiana. They were all in the fifth circuit. Now Alabama, Florida, and Georgia are in the eleventh circuit; and Texas, Mississippi, and Louisiana are in the fifth circuit. That was an easy one in terms of his decision to oppose. There was no question that this was an inappropriate nomination, more inappropriate than Haynsworth. The issue was whether we could beat a second one in a row. Most people thought we couldn't.

What was your early sense about it?

Early on it was very hard to tell, because we didn't have any hard vote count and people weren't—especially the Republicans, the moderate Republicans, and even some of the conservative Democrats—weren't taking a position.

The hearings would become crucial, wouldn't they?

Crucial. I don't remember what the chronology was, in terms of my conclusion that he could be beaten. There's the memo that Richard Harris has—which I think Adam picked up too—that came during the hearings, but maybe it came after the hearings. In that memo, I laid out what I thought the possible votes were and where they could come from, starting with the Haynsworth vote. I looked at who we could pick up from there, because it seemed to me that—but for the fact that the administration's rear end was on the line, and they had a little bit of a stronger case, with the Republicans to stick with them, because it would be a total embarrassment if they lost two—anybody who voted against Haynsworth was a likely candidate for voting against Carswell. I haven't gone back and read that memo for a long time or looked at the names, but it just seemed to me that it was very possible. I laid it out with an actual Senator-by-Senator assessment, and sent it to the Senator.

Was Kennedy much more active in the Carswell hearings than in the Haynsworth?

Yes. Bayh was still the point person, but in terms of the number and time and effort of staffers, we had at least as much in the way of resources on it. In fact, that report of the subcommittee, in December of 1971, says, "The subcommittee staff also assisted the staff and members of the full Judiciary Committee in the investigation of the qualifications of G. Harrold Carswell, a nomination to the Supreme Court." That was a signal that we wanted some acknowledgment of the fact that we had spent a lot of our time doing the committee's work. Now, as is obvious, Eastland was not very sympathetic, and was not investigating, so we had to do the investigating.

But he didn't try to rein Kennedy in on this?

Not especially, but we were doing less investigating on our own, as a contrast, let's say, to Kleindienst, than we were absorbing other people's investigations, because most of the good stuff came from the press or from other outside sources.

You'd characterize it more as you were collating that which other people were providing to you?

Collating things. We were checking it out very carefully, and we were adding to the information, to the extent the press couldn't get certain pieces of paper. We could get some things they couldn't get, but the main story lines came from the press, although some of them were out there with the civil rights and the labor groups from the fifth circuit stage. We hadn't paid much attention to them, but certainly the analysis of his prior activities—Let's see, what had he been before he was on the fifth circuit? A district judge? Yes.

Here comes another footnote, a funny story. As I said, the relations with Eastland's people were always very good, but sort of a friendly rivalry, with a lot of eye winking and eye rolling. I'm sure Kennedy and Eastland would talk, when they drank together, about what the staffs were doing, and probably by this time Eastland had identified me as a troublemaker.

One of the cases that Carswell had was a case involving a big paper company down in Florida. I want to say St. Joe Paper. It was an antitrust case he had sat on, and for some reason we knew that he had a personal interest in the St. Joe Paper Company of some sort—either his old law firm or some relative—I forget what it was, but he had an interest. The question was whether he had sat on that case, which was a fairly big antitrust case anyway, notwithstanding his interest. I called the district court down in Florida, and said I'd like to see the record in the St. Joe Paper case. I didn't tell them why. The clerk said, "That's long since gone to archives in St. Louis. We'd have to get it from St. Louis." I said, "Can you do that, please, and have them send it straight here? We don't have time for you to get it and then send it to us, so have them send it straight here." He called back and said, "There are 56 boxes of materials. We're going to have to truck it from St. Louis to Washington." I said, "Well, you'd better get started."

The next thing I knew, I got a call from Eastland's chief counsel, John Holloman, a lovely guy whom I still talk to from time to time in Jackson, Mississippi. John says, "Flug, what are you doing down there in Tallahassee?" I said, "What do you mean?" He said, "Well, you just had them send you a truckload of documents from the Federal Archives. What's that all about?" I said, "There's a case we want to take a look at." He said, "Well, if you're going to look at it, I have to look at it first, because the chairman's going to ask me what you're looking at." I said, "Be my guest." They delivered the 56 cartons to John's office. John called up and said, "OK, your truck has arrived. I have my whole office full of these 56 cartons. What am I looking for?" I said, "That's up to you. Call me when you're through."

He spent a day looking at these 56 cartons. He called me the next day and said, "I can't find anything. Do you want me to send the cartons up to your office?" I said, "My office isn't big enough for 56 cartons; I'll come down there." I went down there and he had the cartons around the room, practically filling the whole room. I looked for carton number one, and I looked for volume number one of the transcript, which goes on forever. I opened the first volume of the first carton. Of course, if a judge is going to disqualify himself or not disqualify himself and say anything about it, it would be in the first page. I opened the first page and started leafing through. There, on page three, the judge said, "I want all counsel to know that my brother-in-law is involved with St. Joe Paper Company. I don't think that's going to affect my consideration of the case in any way, but if any lawyer has any objection at all, state it now and I'll step down from the case." I saw that and I thought, Well, he did the right thing. I closed the volume, put it back in the carton, and said to John, "I'm through." [laughter]

To this day, he talks about the truckload of cartons. He had to go right to Eastland and tell him that we were getting—What happened was the clerk of the court called Eastland, or called John, to tell him that Kennedy was getting this case. That was a little vignette of the dynamics, both about the relationship and about how we went about what we were doing.

Didn't Eastland speak to Kennedy about this one?

Probably.

"What in the world is he doing?"

Eastland may well have called Kennedy and said, "Why does Flug want 56 cartons?"

Eastland didn't know what was going on?

They didn't know why I was looking, no, and I didn't tell them. I don't know that John knows to this day. It was sometimes fun, because that was always worth a good laugh.

But that was not one of the reasons?

No, that was not, as it turned out, but that was the kind of investigation we did. Somehow, we figured out that he had a potential conflict of interest in that case. The question was whether he disclosed, and the answer was yes. That one went by the board, so we'd knocked down—

Were there others, though?

I'm sure.

That you discovered?

As I say, most of them were discovered by somebody else, and we then drilled down and found more documents. I always get mixed up between the Haynsworth things and the Carswell things. Who signed the golf club?

The Vend-A-Matic?

Vend-A-Matic was Haynsworth; that's his conflict-of-interest one. It has to be Carswell, because it's a Tallahassee golf club.

Was it a question of a charter or something?

When they ruled that the municipal golf course had to be integrated—

They went private.

—a bunch of people chartered it as a private golf club. I think he denied that he had anything to do with it at the hearing, and then it turned out that his name was on the charter, or he'd prepared the charter. That story originally came from a young reporter, who worked either on the Tallahassee—Post? I forget what the Tallahassee paper was named—or on the Palm Beach Post. A very good reporter on one of those papers checked out a lot of the stuff. On this particular one, I can't remember whether it came from him or it came from this young researcher for one of the civil rights organizations who had gone down there and started looking through clippings in the newspaper.

My impression is that there wasn't all that much press interest in nominees.

It grew over time, for several reasons. One was that the Washington Post was then 100 percent on issues like this. As I mentioned the other day, Alan Barth was the editorial writer on these issues. There was another editorial writer, Jim Clayton, and an older reporter as well. They were all interested in this. Lyle Denniston, who now blogs on the Supreme Court and was then the Supreme Court reporter for the Washington Star, was interested. In fact, he contributed one of the best things. I may be mixing it up with a different one, but I think Lyle did an article on the Haynsworth thing, at the end, that put out a very simple chart of everybody's positions on various items of contention. That helped simplify and crystallize the issue. The press came to it slowly, but it got better and better as it went along.

Was it in part because of the Fortas nomination, that that was one that got an enormous amount of press attention?

No. It's just that at the time of Haynsworth, it wasn't—

You had reporters who were active.

First, if I'm right that we had had two before Haynsworth, they had gone quietly. The Haynsworth defeat was a big story, but I'm not sure how much press there was beforehand. The civil rights organizations and the labor organizations were out pushing the story with the reporters they knew, and we were pushing it with the reporters we knew.

On Carswell, did you win in committee?

No.

It went to the floor.

It went to the floor. They both went to the floor.

Can you talk about that? The floor became important.

A couple of things happened before then. The first thing that happened was persuading the other offices on the Judiciary Committee, and the Senators involved, that this was a fight worth fighting. That's where I did have a lot to do with it, because I laid out the votes to the best of my ability; I laid out the arguments; and I leaned very hard on everybody that I could, trying to persuade them. By then, having gone through the Haynsworth thing with Bayh's staff and the Hart staff, we were all very close friends, and the Senators took us all into the meetings. If Bayh, Kennedy, and Hart had a meeting, then all the staffs were there. We'd never call the Senators by their first names, but they'd call us by our first names.

That's distinct from when I came back and all the Senators were younger than I was. Some of them I knew from when they were kids, like [Charles E.] Schumer and some of the others. I had known them before. When they were in the House, I had known them by their first names, and they were younger than I was.

But in those days, it was all very formal and we wore suits everywhere. Everything was much more formal, but the staffs were almost joint staffs. If we had a question for a witness and our Senator didn't or wouldn't ask it, we would pass it along to the next guy. They were almost all guys and a couple of women. If he didn't have a question or he thought it was a good question that needed covering, then he'd hand it to his Senator, and if his Senator wouldn't ask it, you'd go down to the next one.

Was there comparable organizing and strategizing on the other side?

On the other side, on these things, the White House was organizing and strategizing.

And how was it doing?

All the issues were ventilated at one time or another, but you had some pretty bright Senators on the other side. [Samuel] Ervin was very good in his own right and he had good staff. His staff wasn't always sympathetic with his positions on these issues. [John] McClellan was very tough and bright.

But was there a Senate leader for them?

Yes.

Who was that?

[Everett] Dirksen was on the committee then, and he would have been.

He took the lead and defended?

In committee, I'm not sure he would have, because he was minority leader then. Hruska certainly, and some of the other mainstream Republican Senators would. [Edward] Gurney, I think, was on by then. Was [Robert] Byrd on the committee then?

Yes, he was. He came on and stayed on for about ten years.

He wasn't there when I got there, but he was on when I left. I don't remember him taking a particularly active role in the Supreme Court nominations. I think he was in his transition phase.

From what to what?

When did he get there?

Fifty-six.

He was there for all the civil rights bills, and he was still voting with the southerners on the filibuster votes.

And he prefers a conservative Court.

Yes, and on the criminal law stuff. But he was in his evolutionary stage, I think. He wasn't out there with Eastland and McClellan. McClellan, by the way—

The one person who wasn't all sweetness and light, in my own terms, and who I don't think had that kind of relationship with Kennedy that Eastland had, although I had a pretty good relationship with his staff, was McClellan. McClellan really resented what he probably would have called the "Massachusetts Jewish liberals" or "New York Jewish liberals," whatever he thought it was. Of course, because it was the '60s and early '70s, I grew a beard at some point. One day, McClellan and Eastland were sitting there and I was scurrying around or doing something during a hearing. McClellan leaned over to Eastland and said, "God, look at that beard on Flug. That's the ugliest thing I've seen since a monkey's asshole." [laughter] That's the only negative note. That, and an incident in the Kleindienst hearings, which we'll get to later.

The old Senator and the young radical.

So if you ask if I was identified as a troublemaker, the answer is yes. Did it cause me any problems? The answer is no. It was not just tolerated, but there was a lot of eye rolling and eye winking going back and forth. My Senator loved it. There was nothing my Senator loved more than when his brother would come in and kid him about something his staff did, or in my case, when Eastland would raise these things with him. I'm sure they had a good laugh over the 56 cartons.

Anyway, I pushed the staffs very hard and I pushed the Senators very hard. I kept at it night and day. I dropped everything else for this, and we ran into a problem. It seems to me, it went across the winter.

I think it did. It certainly took longer than Haynsworth.

There came a point at which the liberals were saying to Mansfield, "We need more time." Eventually, Mansfield said, "I've given you a lot of time, and this thing isn't jelling yet. I want to see some action, some results, or I'm not going to be able to hold it forever." That really got us off our duffs. That renewed our efforts and our vigor and our assiduousness in trying to get some hard vote counts, and then getting the word out.

By the way, a different report, one on One Man, One Vote, in the newsletter, answers a question you asked me the other day. We did send fact sheets out to every single Senator in the Senate before the vote, and the Senator went around and offered to go through it with them. Even though we had only a few days, it was very much a full-court press. Carswell was the same thing. We focused every bit of pressure we could, both inside and outside, on all the potential swing Republicans, certainly everybody who had voted against Haynsworth, but as in One Man, One Vote, when we went to the floor, we weren't sure.

This was after the Whip fight, when Senator Kennedy had gone into the contest with Byrd with a majority of the votes in his pocket, and walked out still with a majority of votes in his pocket, but not in the ballot box. You can never count on votes until you see them, and of course the White House pressure was tremendous. Finally, the vote was taken and I think we got four more votes against Carswell than we did against Haynsworth. I think if Haynsworth was 51 or 52, Carswell was 55 against. [Ed. note: Haynsworth was 45 yes, 55 no, Carswell was 45 yes, 51 no.]

In your or in Kennedy's estimate, was this the same type of case as Haynsworth: the wrong man at the wrong time, or was it something different or something additional this time?

It was much clearer. The ideological stuff was stronger and the non-ideological stuff, or the non-judicial stuff, was (a) somewhat ideological, as in the golf club, and (b) clearer and less subtle than in the Haynsworth case. In that sense, the Carswell case made the Haynsworth case look weaker, because the Carswell case was stronger, and that may have led to some of the historical rewriting.

What about the caliber of the jurists?

That's, of course, a famous story with Senator Hruska. When somebody made a speech on the floor—and it may have been Senator Kennedy—saying that we're entitled to the highest level of people on the Court and this guy, whatever else you say about him, is at best mediocre and probably worse, Hruska actually got up and said, I think at the hearing, "We have a lot of mediocre people in this country, and they're entitled to representation from the Court." That really was the turning point. It was all downhill after that.

Things like that make me ask if the defense of these candidates was as well organized. [laughter]

It was, half-heartedly, because I think many people on the Republican side must have told Dirksen that they were having problems and weren't sure how they were going to vote.

But you didn't see anything on Nixon's part like you saw behind [Clarence] Thomas, for example? That kind of heavy, coordinated strategy?

I'm sure there were talking points going up every day, from the White House to the committee members, and from the leadership out, but it wasn't as highly organized as it is today, and it certainly wasn't as speedy. But no, I don't remember feeling any great pushback. People just didn't think it could be done twice, until you deconstructed it and saw where the votes were.

And the role of the Court, the constitutional theories—Was that an important part, as it became?

Yes. It was mostly civil rights. There were also several specific instances, both judicial and non-judicial, where Carswell had shown his stripes, and a lot was made of those. Kennedy's Carswell speech was not among the ones I found this morning, but I'm sure that he spent a lot of time on civil rights and made no bones about it, that it was a perfectly legitimate reason to oppose somebody, because they were not where the country was on civil rights. He made that speech in Haynsworth, I think, and this was Haynsworth amplified.

Those issues were there, but what I'm trying to get at is the debates on the subject, on the role of the Court and the role of a person's beliefs.

I don't think Kennedy ever had any reluctance to raise those issues, that the substantive positions of candidates were very important—ideology, if you will—but also more sensitivity to the trends and the Warren Court, just from these other speeches. There's one in here, where he did look at—I think that B'Nai Brith speech mentions Carswell. Let's see, October '71 was after Carswell, so I'm sure there's a section in here. Did I read this already? Yes.

The men who are involved in the selection of Supreme Court nominees—Richard Nixon, John Mitchell, and I understand John Connally—remind me of the people who used to put "Impeach Earl Warren" signs out on the highways. They are repelled by the kinds of decisions the Warren Court made, and they would like to select justices who will make the opposite kinds of decisions. If we look at the decisions of the Warren Court which most offend them, perhaps we can understand why they are having such a hard time finding candidates who meet the test, and why those that they find are so undistinguished.

The Warren Court stood for the proposition that, 90 years after the 13th, 14th, and 15th Amendments, officially enforced separation of citizens by skin colors was unacceptable. Then the Court decided that, after 175 years of increasingly lopsided legislative apportionment, the Constitution required that legislators will represent people, not acres of trees. Finally, the Court decreed that poor defendants are entitled to the same constitutional protections as rich ones, but those protections detach, as soon as the suspect is deprived of his liberty, and that the accused must be told of his rights before he can be assumed to have waived them. Those developments hardly sound radical to me. The only thing surprising about them is they took so long to enunciate. What kind of person is uncomfortable with the idea that a black kid ought to be able to go school with a white child? What kind of mind is troubled by the proposition that city and suburban people ought to be as well represented—

And so on:

What kind of American is upset that a poor suspect, presumed innocent, should have legal counsel before being thrown in jail? Certainly, in the year 1971, the President is going to have a hard time finding any lawyers of stature and eminence who hold those beliefs.

Of course, there is another way of getting Justices who will undo the work of the Warren Court. That is, to choose nominees who the President thinks are so obviously unqualified for service that they will forever remain beholden to him, or as the Federalist Papers so aptly put it, in describing why the Senate was to have a role, nominees whose only merit is "possessing the necessary insignificance and pliancy to render them the obsequious instruments" of the President's pleasure.

Ouch.

This is from when they were choosing the next candidate. This is Rehnquist and Powell. Powell was paired with Rehnquist and that's what it was. Blackmun took the Haynsworth/Carswell seat, so this is the next seat. Douglas or [Hugo L.] Black must have died.

Blackmun's appointment was OK?

Blackmun's appointment was terrific. We didn't know much about him. Nobody knew much about him, but mainly, nobody had any idea that you could defeat three in a row. Blackmun got it because Nixon went to Burger and said, "We have to fill this seat right away. You have to find somebody who can get confirmed without any problems whatsoever," and Burger, who came from Minnesota, said, "I know this guy. He was the lawyer for the Mayo Clinic in Minnesota." He [Blackmun] was the lawyer for the Mayo Clinic, but he had been on the circuit court for a while, and he [Burger] said, "Nobody's going to have any problems with him," and was absolutely right. Blackmun got on the Court and stayed on the Court until he was replaced by—

Did Thomas take his seat?

No, [Stephen] Breyer.

Oh, that was the Breyer seat?

Breyer has the Haynsworth/Carswell seat, so we feel special pride in that fact. But this speech goes on to say: "By either of these routes, the administration, the last week, brought its first six candidates for the current two vacancies to the trial balloon stage. Despite the possibility that one or more might get through the Senate, as a group, they reflected utter contempt for the Court by whomever chose them." The suggestion is made that the first six were put forth just to make the next six seem good by comparison.

Well, who were they? Wasn't this when Herschel Friday, Mildred Lillie, and Byrd were part of the six?

Herschel Friday was one of them, Millie Lillie, and Byrd.

I don't remember the names of the other three.

And Kennedy is saying that Byrd shows contempt for the Constitution?

Well, I'm not sure Byrd was in the first group.

He was in the trial balloon of six.

The first group? Because there were two groups of six. The first group was thrown out when they brought up the second group.

He was in one of the groups.

I'm pretty sure Rehnquist would have been in the second group, and that maybe Powell was paired with Rehnquist, because we left Powell alone and did oppose Rehnquist. This is one part of the speech that is very Sorensenian:

The men at the executive levers of justice have trampled on traditions and ideals and principles of justice. They see the Constitution as a burden, an obstruction to be overcome, as a technical barrier to be avoided when inconvenient, invaded where possible, and ignored if necessary. They pledge, by oath, to preserve, protect, and defend the Constitution. Instead, they defile, dilute, and debase it, proclaiming that they will strictly construe it; rather they constrict and destroy it. Slowly, stealthily, they arrogate to themselves the powers that the Constitution meant to be shared, and powers the Constitution never meant government to have at all. They spin a web of rhetoric to hide their depredations against our freedoms. 'Watch what we do, not what we say'—

That's a quote from Mitchell.

—they warn us, but all we can see is a shell game, where they are not doing what they are saying or saying what they are doing.

This sounds like it could be written today.

They wear buttons that say 'We care about Congress,' but they will not tell Congress the whole story about military spying on civilians, about foreign aid plans, or about so-called national security wiretapping. They wear American flag pins, but for the first time since King George, they have succeeded in imposing prior restraints on that most basic American ideal, freedom of the press.…

And so on.

They cry for law and order, and so they institute criminal proceedings against Daniel Ellsberg, in a matter of hours convene two grand juries, call his friends and mother-in-law and young son to testify, and grant them immunity where necessary to get them to talk, but they take 15 months to decide that the killing, in cold blood, of four unarmed students at Kent State requires no grand jury, no sworn witnesses, no immunity.

God, so much of it is current.

They claim they are using electronic surveillance sparingly, but no one will ever know, because they do three to nine times as many days of tapping and bugging without court orders as they do with judicial permission, and they will not tell us what the clear and present danger to the structure or existence of the government is, which supposedly entitles them to spy electronically on domestic groups without court scrutiny.

Nothing ever changes.

What date is that? I'd like to make a note of that speech.

B'Nai Brith, October 19, 1971.

After the defeat of Carswell, Nixon said, either before or around the nomination of Blackmun, that the Senate would not confirm a nominee from the South who believed in strict constructionism. Do you think that's true?

Well, Powell was from the South. Rehnquist was from Arizona; that's the South.

Not to me it isn't. [laughter]

I don't think the Mason-Dixon Line goes that far west.

The Senate confirmed Rehnquist, and he had a terrible record on voting rights and everything else. We just never got traction with it. The Senator gave a very strong statement on Rehnquist.

Moving ahead—

"Strict constructionist" is a code phrase, like "states rights" was.

Sure.

That was the general umbrella.

"Strict constructionist" meant you would have voted with the minority in Brown v. Board of Education, and you would have voted with the minority in Miranda, and you would have voted with the minority in the One Man, One Vote cases. That's not where the country was and it certainly wasn't where the Senate was.

But it raises a very interesting question, that you almost never know what you're getting when you get somebody on the Supreme Court, because there have been too many cases of people who have been nominated by Presidents for a specific reason, and they turn out to change over time. And it can go in both directions.

[Dwight] Eisenhower said the worst mistake he ever made was Earl Warren. [George H. W.] Bush Senior said the worst mistake he made was [David] Souter. So, yes, there's a long history of that.

Who Kennedy opposed.

No. If it was 1990, Souter would have been supported. I can't believe I wasn't involved in that one at all. Souter would have been supported by many state attorneys general, because they all knew him. He had been the New Hampshire attorney general.

That's right, he was.

Kennedy had many friends, in the late '80s, early '90s, who were state attorneys general: Bob Abrams, Tom Miller, John Van de Kamp. I would be surprised if he didn't get calls from some of them.

But there were also decisions Souter had made as state attorney general that Kennedy viewed as questionable, and was raising serious questions about what kind of jurist he would be. Rudman apparently kept saying to him, "It's OK, it's OK." Reportedly, Kennedy went up to him on the floor, when he voted, and said, "I have to vote against him. I really do have some reservations, but I'm not going to give a big impassioned floor speech, because of my respect for you."

I don't know why.

I think there were some voting rights issues. I've read the hearing record.

I'm trying to think of why I was preoccupied in 1990, because I don't remember anything about the Souter nomination. I don't think I ever spoke to Kennedy about it. I was called, from time to time, during my 30 years in the desert. Sometimes I didn't get called and he called them anyway.

To finish up the '60s and '70s, I'm fairly confident that '71 must have been Rehnquist and Powell as a pair. Maybe it was only Burger before Haynsworth and Carswell.

We have a list of everyone, what seat was vacant, and committee decisions, floor decisions, and the votes. I'll get that sent to you.

OK, that will be great. But I did weigh in, although I didn't have to weigh in on [Robert] Bork. What year was Bork? That was a [Ronald] Reagan appointment, so '85 I want to say. There was no need for—

It was '86 or '87, I think.

There was no need to weigh in on Bork, because he was so open about his judicial philosophy that it was easy. [Douglas] Ginsburg, I never got a chance to weigh in on. Pop Ginsburg.

Right, and that was the seat that Souter was nominated for.

But Thomas, I did weigh in on. What year was Thomas?

Ninety-one. October of '91.

Thomas I weighed in on, because I felt strongly that it was a mistake to have, once I heard about—I heard about his problems with Anita Hill before they became public over that weekend. I felt very strongly that that committee could not handle that in a public hearing.

My feeling was that the committee should do it in executive session, because the Republicans, if the stories proved true, would not want the thing to go ahead, and as long as they didn't have to defend him in public—For example, [Arlen] Specter, who was so tough on the Democrats and tough on Anita Hill in public, I don't think would have done that in private. I think he would have been more concerned. I felt strongly that they should do that in private. I was very sorry they didn't. I don't think Thomas would have been able to rescue himself out of an executive version of that hearing, which would have been perfectly justified, because of the nature of the allegations that were being made. If they had had her in executive session and given her a good, tough cross-examination, and then had him in public session—

First of all, there would have been a tough question as to whether you should give him the transcript of her executive session before he answered it. They would have probably come out, as a matter of equity, in favor of giving it to him. Then he would have had the transcript and he would have responded to it. I felt it was not handled well, and the Saturday Night Live version of it, if you remember that, will always live on in history. People will remember that as though it were the hearing. They had a field day with that, at the expense of almost everybody on the committee, including Kennedy. So that was Bork, Ginsburg, and Thomas.

Souter, then Thomas.

We left Scalia out.

Yes. Scalia's in there, too.

Scalia was nominated after I left. When I left, he was very nice. I had known him as an Assistant Attorney General, in the way I knew most of the Assistant Attorneys General. He left the department and became head of the Administrative Conference of the United States. When I left in '73, shortly after he had become head of the Administrative Conference, I was running the National Legal Aid & Defender Association, so I was still in the legal field, in a white hat. It was probably then that he named me to the Administrative Conference. The chairman had the power to name the private members, and he named me to the Administrative Conference. I have, somewhere, my certificate, with his signature on it, which I thought was above and beyond anything he owed me. To this day, I've always been a personal fan of his, although professionally, I can hardly believe some of the things he says. But that's the way it was in those days. He felt that was something he wanted to do.

If you look at the three areas that emerged, with both Haynsworth and Carswell, as being, in essence, judicial philosophy or ideology or judicial temperament; ethical issues; and caliber of jurors—After all, Carswell had a 40 percent reversal rate at the appeals level. If those three things became key barometers of whether somebody should be confirmed, why then, when it got to Scalia, where one would assume that he would not meet a judicial temperament test for Kennedy, did Scalia go through so easily?

I'm not sure what Scalia's record was before he got on, because he had been Assistant Attorney General at the Office of Legal Counsel, and I don't remember many public memoranda that he put out in that capacity. Then he was chairman of the Administrative Conference, and that was a fairly legalistic job. I'm not sure he did a whole lot of ideological stuff there. Then he was on the D.C. circuit, and I don't know what his opinions were like there. I assume they were pretty bad, but I don't know. Apparently, they weren't bad enough to raise the ire of the Democrats.

Yes. I think he was confirmed unanimously, or close to it.

Close to.

He was viewed as being very bright.

He was put up at the same time as Rehnquist was put up for Chief, and the effort was placed on fighting Rehnquist as Chief; therefore, the pressure was off Scalia. Maybe that's what explains—One of these [papers shuffling] has his [Kennedy's] position on Rehnquist, and it's pretty tough stuff. It lays out his philosophy on judicial nominations. It's a speech at Brandeis, November 16, 1971, where he goes on at length about Rehnquist: "The Senate has already denied its consent to the President twice. We would not relish having to do it again, but if the President chooses a nominee who does not belong on the Court, that is our duty."

Yes, this is right in the middle of Rehnquist.

You were there for Rehnquist?

Yes. That was in '71.

I'd like to hear how Kennedy formed his position on this. What was the evidence, the strategizing, and so forth?

I don't have a clear independent memory of it. I remember that we knew about the stuff with his involvement in voting harassment in Arizona.

Did you have access to his memoranda?

No. That's the first thing that Kennedy complains about: "Our first problem has been obtaining information. There's a flood of documentary material, but large amounts of it reflect views he expressed as just a department official, and the nominee will not discuss this material. He cannot tell us his personal opinions on the matters he discussed officially, he says, because it would be breaching his lawyer/client relationship."

They wouldn't waive, so we had a problem, because he wouldn't answer a lot of stuff. And then: "Our second problems of dispute are over the role of the Senate. The President's view, as stated in the Carswell case, is that we have almost no role. Unfortunately, for that view, the Constitution clearly provides"—and so on.

The first is civil rights, public accommodations law, voting, a letter to the editor defending Carswell's civil rights record. Then he goes on, when he gets into the substance: "It is enough to say that he has been the prime defender of the administration's most backward constitutional positions." It was very substantively oriented.

He was the first member, I believe, who was with the Federalist Society.

No. The Federalist Society hadn't been founded yet, in '71.

In '82 it was founded.

Yes.

But the philosophy is the same, and the situation was in parallel, sort of, to Alito, who had always self-served in some respects, as well as Roberts, who had served in the Department of Justice, and there were memoranda in those cases too. What I'm getting at is that—I'm not prejudging, but the similarities are just—It seems to me it would be nice to hear you talk about those three as against—

The overlap is [Barry] Goldwater.

The overlap?

Because presumably, and I have to go back and look at this, Rehnquist was a Goldwaterite. Whether that's something we documented or not, I don't know. Of course, Alito purports to be a Goldwaterite, in his written materials, as a very young man.

How old was he when you got hold—?

Pretty young.

There's where the linkage is and it's a pretty good—Philosophically and factually, they're very similar. I think there is a continuum there.

Do you want to finish up judicial nominations?

You mean Roberts and Alito?

I haven't heard much about Bork.

I didn't have anything to do with Bork.

But you watched it; you knew about it.

I watched it and he did himself in. He did it with his eyes open, and he's a smart man.

Do you have any clue, for example, as to why Kennedy, within one hour, unlike some of the others, where he gets the evidence—

He was never bashful about it. If you read the Rehnquist speech or the Carswell speech, if the evidence is there and it's clear, and whether it's philosophical or ethical, or whatever, he goes with it, so it doesn't surprise me that, given the overt nature—

His position doesn't surprise me. His announcement surprised me.

But Bork's record was so clear, it doesn't surprise me that he would have jumped right out with it.

And so public.

And publicly, to get the thing rolling.

I mean that Bork's record was clear but also very public.

It was clear; it was public; it was his writings; it was his judicial decisions. So yes, it doesn't surprise me at all that they would have had all that prepared. Given the question, would I go with it on the first day? I don't know what all the arguments against it were, but the arguments for it are to get this thing rolling, get the momentum in our direction the first time. Who was his aide then?

Was it Jeff Blattner?

It might have been. We're talking—?

Eighty-six, '87, I think.

It could have been Jeff, but it doesn't surprise me at all. It was perfect. If I had a chance to do it again, I would do it again. In fact, we did an op-ed the Sunday before the Alito hearings opened up, raising the questions about Alito. It wasn't as strident as the Bork statement, but all the issues that were going to come up and did come up, we laid out in an op-ed the day before the hearings opened, in the [Washington] Post. You don't have enough words in an op-ed, but he didn't have many words in the Bork statement. The essence of the Bork statement was in one paragraph: "Bork's America."

It seems that there was something different about Bork from Carswell and Haynsworth—

Yes.

—and the others, and I'm trying to get at it.

We didn't know as much about Carswell and Haynsworth the day they were named. Carswell, as we concluded, came pretty quickly. Haynsworth we didn't know a whole lot about, although we had the labor and the civil rights people. We came out fairly early on them, but again, he wasn't leading the pack and it was right after Chappaquiddick, so he wouldn't put out that kind of statement about Haynsworth. In Carswell, we didn't have the case together quickly enough. My guess is that he put out his first negative statement pretty quickly after Carswell was named, because there was enough from the fifth circuit nomination that it wouldn't—and the labor and the civil rights people were out there. They had information left over that we didn't use in the fifth circuit.

It was pretty well known, well in advance, that Bork was going to be the nominee.

What I really want to look into is the effort to characterize what was done to Bork as something inappropriate. The use of "borking" as a verb—meaning to do something unfair or untoward or overbearing to a candidate—is a total misnomer. What was done to him was just what he deserved. His record was out there for everybody to see. It was clear where he was ideologically, judicially, philosophically, and it was clear that he was an inappropriate nominee by Senator Kennedy's standards. To make a strong statement, right from the start, should not have any negative connotations at all. I object to the implications people have, using the term borking as a negative. I think borking is positive.

It looked to be a very well organized, relentless, and well-thought-out case for his position made in Bork. It makes me wonder whether the Republicans finally learned.

I would say that the Republicans borked Fortas, and they would like to have borked Thurgood Marshall, by which they mean inflated a case against somebody or built a case where there was none, which is how they would define borked. What happened to Bork was a case. It was articulated; it was articulated well; and it was articulated strongly. Senator Kennedy led the charge, as was perfectly appropriate. I don't see any negative connotations there.

I'm not imputing negative connotations.

No, but when people in the press use that verb and accept the Republican implications—

Well, beyond that, this is about politicized Supreme Court nominations.

I go back to where I started, which is that Supreme Court nominations have been politicized as long as I can remember them, which is back to Thurgood Marshall. It's supposed to be political. The Founders said they wanted the Senate to make sure that the President chose somebody who was not going to be a toady to the President. It's worked pretty well, and even since Thurgood Marshall, we've gotten some pretty good people on the Court, despite people's efforts to do different things. Republicans have stopped people; Democrats have stopped people.

In large preponderance, of course, these have been the Republicans.

Well, Clinton—

Over the years. Since Kennedy has been there, Democrats have had relatively few opportunities.

I suppose that the Republicans—They do argue this, that they never should have let Ruth Bader Ginsburg and Steve Breyer go on the Court, but it's a much harder case to make based on their decisions. Both of them were very good judges with very solid opinions. Some of Steve's earlier activities were very conservative on administrative law and new regulation. I think they would have had a hard case to make, and they knew him. The people on the Judiciary knew of him; they liked him.

He tried to be as bipartisan as he could. It's fortunate that I never had the chance. It never even occurred to me, until very late in life, that a lot of my contemporaries were becoming judges, and that maybe there was a point at which I should have stopped what I was doing and figured out how to become a judge, but I was always enjoying what I was doing too much to want to go through that. I would have had a really hard time, and now I'm too old, although some of my best friends are Republicans. [laughter]

I knew there would be a caveat in there.

No, I had this vision at one point, during my most recent time on the Senate, when they were having trouble filling positions. I thought they could pair a [Orrin] Hatch staffer and a Kennedy staffer—especially if they got two older people who weren't going to be around a long time—and throw them on the court, but they're just—Especially after the right-wingers attacked me for coming back to work against the Supreme Court nominees, that was never going to be in the cards. Probably becoming a judge at my age is not a good idea anyway. I'm much happier being a teacher.

Let me ask a question about this. With [Edwin] Meese's reign as Attorney General, there seems to have been a much more organized, concerted, and deliberate strategy to get hold of the Federal Judiciary, top to bottom or bottom to top, as the saying goes. I don't know of any previous effort of this kind, in the history of the Supreme Court. Another thing that seems noticeable from the outside, though there are many exceptions to it, is that the Senate has tended, historically, to give the President what he wants, in terms of the Supreme Court appointments, even though there have been many contested issues over time. In recent times, there's been an asserted theory that the President rightfully can demand Senatorial deference to his views. You hear that from the ideological—

Yes, but the people you hear it from are just not credible.

I'm not saying that they are competent to talk about this, or that their views—

No. It's totally—

But that is a widespread, widely propagated view.

Not among anybody who is a serious member of the Senate.

Well no, it's coming out of other places.

Yes.

But that's new in history also, that theory on which it's based, the executive power.

I'm sure it's been expressed before, but now it's part of the concerted effort, on the part of the people who started with Meese, to enhance executive power. There are two very frightening documents that presage all of this, in 1988, which a professor at the University of Indiana Law School discovered. I had never heard of them before she wrote an article about them years ago in the Yale Law Journal.

One of them was Meese's instructions to all the litigators at the Justice Department in 1988, as to the positions they should take. The other was Meese's goals for, I think the year 2000, for changing the constitutional environment. It's all laid out in those two documents, and it's frightening. I've tried, in every way I can, to get people to look at them since I went back up to the Senate in 2003 and was clued in to them.

They have followed that script perfectly. The founding of the Federalist Society is a part, and when you look at how they ran their farm team—and Alito and Roberts are two products of that farm team. Alito's application to work in the political job in the Justice Department is mind-boggling. Of course, the fact that he got away with it is equally mind-boggling. The case against Alito was very strong. The members of the Senate, and some of the people on the outside, were much too timid about taking him on. Not only was it predictable where he'd be ideologically, because that's where he's always been, but that the ethics thing was not only the kind of ethical mistake that Haynsworth had made, but that Alito lied about it time and time again. The committee hearings demonstrate that. Then all this crap about the unfair treatment of Alito and Alito's wife crying was just that. I have very strong feelings about that. I just hope the people who voted for him, and their grandchildren, are prepared for a long, long period of reversal of progress.

This is what I was trying to get at. It's a very recent thing in modern American history. It wasn't this way until—

Well, I'm sure there were Republicans who, at the time of Haynsworth and Carswell and Bork and Thomas, claimed the same thing.

I'm talking about the last quarter century or half century. This is a new development in the history of the Federal Judiciary.

I don't know, because I would suspect that even back earlier, at times when they were also rejecting Supreme Court Justices and other Justices—

There were not that many rejected, historically, statistically.

Not at the start, but there's a not insignificant number over time. I'm sure each time one of those people was rejected, somebody said, "The Founders didn't say that the Senate shall appoint them; they said the President shall appoint them." Of course, we went back through that history in great detail at the time of the nuclear option fight.

There's so much more to talk about here.

Yes, but I'm beginning to be a professor, and that's not a good thing. [laughter] Let us close this.