Jeffrey Blattner Oral History

Well, perhaps the best place to start would be to simply ask you how you came to work for Senator Kennedy.

I came to work for him in January of 1987. The Democrats had taken over the Senate as a result of the November 1986 elections. I was, at that time, an associate at a law firm here in Washington, and I sent letters to a few Democrats on the Senate Judiciary Committee. I had clerked for Potter Stewart, for whom Carey Parker clerked, so I sent Carey a note. He called me up, and that’s essentially how I came on board.

Do you recall your first meeting with the Senator? Did he interview you for the position?

The first time I met the Senator was not in 1986 when I interviewed there. I actually had met him in 1979. Steve Breyer, who was then my ad law professor at Harvard, introduced me to him at an event that summer, summer of ’79, in Washington. Steve was, at that point, shuttling back and forth between Cambridge and Washington, and he introduced me to him. I met him again, of course, and really for the first time on a going-forward basis, when he interviewed me. It was just before Christmas in 1986, and just in his office in the Russell Building.

Can you give us some sense of some of the early issues that you dealt with once you joined the Kennedy team?

I guess the first two issues I dealt with, and then things got, perhaps, historic—what ultimately became the Fair Housing Act of 1988 was a piece of essentially unfinished business in terms of civil rights legislation. It had been introduced, I think, as far back as 1979, so really about at that point eight years earlier, and it had been filibustered at the end of the 1980 Congress when the Republicans took over as a result of the 1980 election. So it had been rattling around and reintroduced biennially, and of course, when the Democrats took back over, it in essence bubbled back up. I came on board in January, and I think hearings started on that bill by March, and we actually had about six days of hearings. So that was the first thing I worked on. 

And then judicial nominations, which were district and court of appeals nominations, until June of 1987, at which point Lewis Powell resigned, and about a week later, Robert Bork was nominated.

Senator Kennedy was clearly prepared for this to happen. He spoke on the floor of the Senate within an hour after the announcement.

Yes, I was with him, of course. Actually the last hearing on the Fair Housing bill was July 1st, 1987, the day that Bork was nominated. And I remember when I was walking with him to the Dirksen Senate Office Building, and Attorney General [Edwin] Meese called him in the anteroom—well, I think he called him in the anteroom—and Senator Kennedy was having an exchange in the hearing, on the record, with Brad Reynolds, who was then still the Assistant Attorney General in charge of civil rights, who’d been denied confirmation as Associate Attorney General at that time. There is an allusion in the hearing record to the coming Supreme Court nomination, and Senator Kennedy said—and I thought this was epic understatement—he said, Well, I think I may have something to say about it. [laughter] And he walked out of the hearing and onto the Senate floor.

And so could you tell us about the role that you would play in the coming weeks and months during the Bork hearings?

Well, leading up to it, I was essentially gathering information about Bork’s writings. I think the most important, in some ways, was an article he wrote in the New Republic actually, Bork did, in 1963, that laid out his opposition to the 1964 Civil Rights Act. This was in August or September of ’63, and I remember that one. If you look at the speech, Robert Bork’s America, and the segregated lunch counters reference, Bork opposed the public accommodations provision in the Civil Rights Act—at that point, proposed Civil Rights Act—in terms that, at the time, I think, were perceived as extremely offensive. He talked, as I recall, about barbers, and why should a barbershop have to serve—it was really quite an emotional button you could see he was pushing. 

And just a little more color on that day: he called Archie [Archibald] Cox that day, if you look at the—

The Senator called him.

The Senator called him, I think, from the—there’s a little anteroom off the Judiciary Committee Room. And he called Cox, and Professor Cox told the Senator he was going to sit it out, that in essence he felt that if he participated in the debate over Bork’s nomination, it would be perceived as too personal.

Because of the Saturday Night Massacre.

Because of the Saturday Massacre. If you look at the speech, the Senator said—I haven’t reread it recently, but he said something like, The man who fired Archie Cox does not deserve to be on the Supreme Court. So he called Cox, and in the course of preparing the Senator for his interview a few weeks ago, I saw and had my memory refreshed about some later correspondence that summer between the Senator and Cox in which he tried again. But quite frankly, I never thought that would work, because of the earlier call, and knowing Cox a little bit from my time at Harvard, and just knowing that as the austere, correct Yankee that he was, there was no way he was going to get in a battle like this.

Was part of your responsibility to contact outside interest groups that might be called to action?

Yes. I guess there were several aspects to the role. Bork wrote an enormous amount, both in terms of speeches that he gave—the hearing record is, like, five volumes, each a couple of inches thick. So a lot of what the committee ultimately reviewed was not in the public domain, in the sense that it was publicly available. This was obviously before the Internet. So I spent a lot of time—I read everything he wrote, I believe, which took a fair amount of the summer of 1987. And I prepared a speech that, with edits from Carey and Bob Shrum, the Senator gave at Georgetown before the hearings. It laid out the case against Bork. So that was one function, the substance, if you will, the legal substance of it.

Second, I communicated a fair amount with legal scholars and experts of various kinds. We arranged a number of dinners. You know that Senator Kennedy had these issues dinners at his home on many subjects. And we had several on the nomination, both at his home in McLean and even up at Hyannis Port. And then yes, I did some liaison with various groups and other staffs. 

I had colleagues who were working—Carolyn Osolinik did a lot of the liaison at that point. I did some of it. Carolyn was out part of that summer, as I recall. She was away for a while with her family, and I did a fair amount of liaison at that time. And Tony Podesta was involved. He came on as a consultant, as I recall, that summer and I think very skillfully assisted the Senator in reaching out to people like Joe Lowery, who was then the head of the Southern Christian Leadership Conference. 

There’s a story—and this has been published, and it’s true—that the Senator called Lowery on the eve of the Southern Christian Leadership Conference convention in wherever it was that summer of 1987 and said, I want you to spread the word about Judge Bork. And Lowery did. I just heard from Ted Kennedy, he said. This is at a time when that kind of viral communication was not as easy as it is today, and all these African American ministers then went back in their churches on Sunday and spread the word. Whether that’s legal under the tax laws, I guess, is something that may have been addressed subsequent to the Bork nomination, believe it or not.

You obviously came to know Robert Bork fairly well. You said you read almost everything he ever wrote, or probably everything he ever wrote. What was your take on him? You suggested earlier in that article that he wrote about the Civil Rights Act that there may have been a tinge, if I’m reading you correctly, of almost racism.

I don’t want to judge his soul or his character. I don’t feel qualified to do that. And I have had subsequent dealings with Bork.

Oh, really?

Yes.

I’m sure those are pleasant.

I supervised the Microsoft case for Joel Klein when I was in the Antitrust Division, and Bork was retained by Netscape, now part of AOL [America Online], and so the Post referred to us as the strangest bedfellows of the millennium. 

I think he became extremely embittered as a result of his rejection. His subsequent writings frankly confirm our fears. I think he’s a brilliant writer, and his contribution to antitrust law, incidentally, was formidable and significant and largely right, 90 percent right. I don’t think he was a particularly distinguished constitutional law scholar. In essence, he was hoisted on his own petard. He really gathered attention as the lightning rod of the right-wing, conservative legal philosophy, and he lived by it, and then his nomination died by it, basically.

What would you say to those folks who say that Bork was Borked, that somehow there was something unfair about it all?

Jack MacKenzie wrote a piece a couple years ago. Jack MacKenzie was, at the time of Bork, the editorial writer for the Times on the Bork nomination. He teaches now somewhere in the New York area. He wrote a piece for the Post editorial page saying Senator Kennedy was right about Bork. I was involved in six Supreme Court nominations for the Senator, and I actually was a partner of John Roberts and was involved on the Roberts nomination and the [Samuel] Alito nomination, advising the Senator behind the scenes. 

I think that the Bork nomination was debated on the merits. It was a debate on the merits. It was a heated debate, and political debate is not, as I think it was [Finley] Dunne who said, It ain’t beanbag. It’s hardball. But this was not about his personal life. I think that the stakes were high. And I think if one reviews the record—we may have lost the first round of the historiography is the way I’d put it. But I think that it was a debate on the merits, and I think it’s had positive consequences that have been overlooked.

There has been some criticism about the tactics, in terms of perhaps changing the judicial nomination process into a more political—there were newspaper ads, and I think Gregory Peck did a TV ad or something—and that that somehow has tainted the judicial nomination process.

I put it in a much longer historical context. Two points: One, there were nomination battles over philosophy going back to the founding, to the [John] Rutledge nomination, number one. 

Number two, I think that the Bork nomination came at a time when several things converged. One is, at the end of the [Earl] Warren Court—the Warren Court changed America, and people’s understanding and appreciation of the importance of the Supreme Court was very high. That’s number one. Number two, in legal philosophy and legal thinking and jurisprudence, I think that there started in the ’30s a movement at Yale called the legal realism movement. If you look at what happened in legal thinking, there’s a recognition that law is not calculus. It’s not pure logic, that values, experience—that subjective determinations are made. So it’s not simply a matter of finding someone who is smart and has great reasoning ability and is honest. Values matter. So you have values mattering; you have the Court mattering. If you take those two things, and add the historic context in the mid-’80s of a pushback against the kind of legal thinking that characterized the Warren Court, very egalitarian thinking. So I think those three things really caused the Bork battle. 

There have been several fights. I alluded to the Reynolds fight. There were fights over other court of appeals nominees in the first part of the [Ronald] Reagan era. There was a fight about Chief Justice [William] Rehnquist’s nomination to be Chief Justice in 1986, which really set the stage. So you have all those things combined, and the upshot of it is that a battle was inevitable. And there really are no rules of procedure in the Senate and in political debate—it’s going to take the form that political debates otherwise take in the era, in my view. So in terms of whether Bork was Borked, whether the—the word has certainly been added to the lexicon, but I think that what it connotes is inaccurate.

Okay. Could you talk a little bit about the [David] Souter nomination? Senator Kennedy opposed David Souter.

He did.

He came to regret that decision.

Yes, and we’ve talked about it a couple of times. I can recall pretty vividly how he came to reach it. I happen to think he made the right decision at the time and that a logical consequence of the—well, I’ll explain. 

First, to describe how it happened, I think he really made up his mind up at Hyannis Port probably the weekend before the hearings. Larry Tribe and Kathleen Sullivan and Carey Parker and I were up there and had a long dinner. What we were talking about was the burden of proof, in essence, on a nomination and how one addresses uncertainty. One of the perhaps inevitable consequences of the Bork nomination was that one was unlikely to find a nominee whose views were as clearly demarcated as Bork’s were. 

So you’ve got to deal with uncertainty. When you look at a decision, the question is how do you address uncertainty? How do you resolve uncertainty? What the Senator concluded in the speech he gave at the time was that if you have substantial doubt—the Constitution’s extremely important. It’s the charter of our liberties; it’s the backbone of our society as Americans. So if you believe it’s important, as he does, then you have to resolve doubts, as he said at the time, in favor of the Constitution. 

And that necessarily means—and one can drill into this logic—it necessarily means you’re going to oppose some people who turn out to be okay. In essence, if there’s doubt, sometimes you’re going to be uncertain, and sometimes you’re going to be pleasantly surprised. It’s like physicians. If a physician is only taking out the appendices that are infected, that means he’s leaving a few infected ones in place. The argument is, you have to take out a couple per hundred that aren’t infected or you’ve set your criteria too strictly.

Was Souter seen as a John Sununu protégé?

Yes, I think that was a very important part of the dynamic. Senator Kennedy and Governor Sununu had locked horns that summer—I was there—on the Civil Rights bill. He’d also locked horns with him on the Americans with Disabilities Act. And there was some division, I think, within the office about how hard to go after Souter. I was a dove on that issue.

You were.

Yes. Carolyn took a harder view. My view was, you can vote no, but it wasn’t going to be a battle royal. You can vote no and not necessarily tear down the walls of the temple. And that debate I do recall.

Did Warren Rudman intervene on Souter’s behalf with Senator Kennedy, do you know?

Oh, certainly. The Senator, I know, would have called Rudman when he indicated how he was going to vote, but I think Rudman has written that when the Senator made it clear he was not going to make it a battle royal—and at that point, Rudman apparently told Souter he was going to be confirmed. But the Senator’s political skills being as formidable as they are, I’m sure he was able to deliver the news in a way that minimized its sting.

And then we have, of course, the Clarence Thomas nomination the following year. Could you tell us about that story?

Sure. It’s a very complicated story. The context, in some ways, for both the Souter nomination and the Thomas nomination, was shaped by a couple of things: One, of course, these were replacements for [William] Brennan and [Thurgood] Marshall, the two great liberal justices of that era. Second, the Senator was deeply engaged, as was I, in trying to pass what ultimately became the Civil Rights Act of 1991. It had been introduced in early 1990 and ultimately was vetoed by President [George H.W.] Bush the first, and the veto was sustained by one vote—Warren Rudman’s vote, I would add—in October, I believe, of 1990. The principal Republican sponsor of that legislation, both in ’90—well, in later 1990 and then in 1991—was Jack Danforth, who, of course, was Clarence Thomas’s sponsor in the Senate, as Warren Rudman had been for David Souter.

Of course. You have control over this transcript. The project ends in 2011. That would be about the earliest possible date that any of this stuff would be released. You can put restrictions either on your entire transcript or a portion of your transcript if you wish. We would love it if you’d speak to history, and we have a track record of this material not getting out without the permission of the person who gives the interview.

This is the 1991 Civil Rights Act?

Yes. And sure enough, Danforth did turn a vote. What happened—and this has been reported; it was reported at the time—was that the White House called a pep rally of Republican Senators after the Thomas nomination, in opposition to the Civil Rights Act. Danforth was not there because he was working with us. Ted Stevens of Alaska, one crusty son of a bitch, got up and said, You mean you’re going to screw Jack Danforth after he just got your Supreme Court nominee confirmed? Well, not with my vote! And that was it. Within 24 hours, Sununu and Boyden Gray were up in the minority leader’s office, Dole’s office, and those two and Senator Kennedy and Senator [James] Jeffords, Senator Danforth, and staff, including myself, worked it out. It created a damages remedy for victims of sexual harassment, among other things. 

Now, I remember sitting next to the Senator in the well as he was floor-managing the bill, and he was reading papers that he had in front of him as somebody was droning on. I looked over, as I sometimes did, to see what he was reading and it was the speech that he ultimately gave in Massachusetts, which was in essence turning the corner on the whole Smith thing.

The speech where he talked about mistakes he had made in his personal life.

Yes, in his personal life. And it made my heart full sitting there. I remember feeling how complicated life could be sometimes. Here we were. █ █ █ █ █ █ █ █ We were on the verge of a great victory on the Civil Rights bill. And he was, of course, very happy about that but a little bit preoccupied.

Could you talk a little more about what kind of a person he is, what kind of a boss he was to you? Any lessons you may have learned from him, if any?

Oh, I have to compose myself a little bit. I guess the best illustration of what kind of boss he was and person he is is that I started working for him in ’87. In the fall of ’88, my father’s lung cancer returned. I’m an only child, so I had to go to Pittsburgh basically every weekend to take care of my father and my mother and run my father’s business while I was working for Senator Kennedy. Of course he was incredibly understanding of all that. In February or March of ’89, my father was in the hospital dying. And the Senator said—this was like on Thursday or Friday—said, Come on, we’re going to Pittsburgh. [crying]

This happens all the time, Jeff.

He got Marvin Rosen to get him a Learjet, and we flew up to Pittsburgh. He had the car waiting for us at the airport. And he just went to the hospital where my father was a shrunken man, and he just sat at my father’s bedside for about, I don’t know, an hour or two. Never met him before in his life.

Right, that speaks volumes, yes. Would you like to take a break?

Yes.

Let’s take a break.

Going back to—I learned a great deal from him. And I’ve been blessed. I’ve had all kinds of wonderful jobs in life, the Supreme Court and the Justice Department. But of all the things I’ve done, working for Ted Kennedy was the highlight.

Why is that, Jeff? What was it about him or the things you worked on that makes that the highlight?

Well, actually I’ll quote the Senator quoting [Oliver Wendell, Jr.] Holmes in response. I did an event for him. This is a long story, but it’s not a bad one. In ’94 he almost lost. And in late September of ’94—just to tell you how he felt about it—I remember being in a car with him and Claiborne Pell and Rick, his driver, driving from the House side to the Senate side after a conference on some education bill. Senator Kennedy turned to Senator Pell and said, Claiborne, you don’t know what it’s like out there this year. I may lose.

Wow.

The Senate adjourned about ten days or so later. I took a leave of absence, as did many of my colleagues. We all moved back to Massachusetts, and of course we did everything we could to get him reelected. It turned, largely, because, I think, of his performance in the debate with [Mitt] Romney. 

But I put together an event for him at Brandeis—for some reason they gave me Jews and lawyers—and I put together an event at Brandeis where through Alan Dershowitz’s good offices, Natan Sharansky—then a member, I think, still is a member of the Knesset, a Soviet refusenik—endorsed him—pretty extraordinary. So we put together this event at Brandeis for the media and the Brookline/Newton Jewish community. Brandeis, of course, is in Waltham. Sharansky tells this story—and it’s just a classic Senator Kennedy story—of being in his apartment in—well, word came to Sharansky that Senator Kennedy was coming to Moscow. This was in the ’70s, in the really darkest part of the [Leonid] Brezhnev era. You may have heard this story already.

No, I don’t think we have.

Sharansky recounted it. Kennedy had requested permission to visit Sharansky, who was essentially under house arrest in his apartment, and Kennedy had been denied permission. Sharansky recounted that at about two or three o’clock in the morning one night, there’s a knock on his door. It’s Senator Kennedy, who I guess had shaken his KGB [Komitet Gosudarstvennoi Bezopasnosti] tail, and who’d shown up at Sharansky’s apartment. He holed up in there for a day, and the ripple of hope that went through the refusenik community was just lightning-like. So Sharansky tells the story, and Dershowitz and Sharansky—and Senator Kennedy—had tears in his eyes. He got up to the microphone, and reflecting on it, he quoted Holmes. I can’t remember what Holmes was describing when he said this—he said, You touched my heart with fire. It was a Holmes line. And that’s how I felt working for Senator Kennedy.

I guess the highest level of commitment imaginable. I learned from him that you don’t give up; you never stop fighting, and he never does. And he does it with elan and with good humor. Just to illustrate how positive he is, I played Judge Alito for him in January a year ago, in preparation for the hearings. I guess one might say the hearings didn’t go all that well. But when they were over, he invited everybody who had worked with him on it, because we all worked pretty hard, to his house on Tracy Place. I said to my wife, Oh God, this is going to be a wake. This was a tough drubbing. We went over there, and he’s got a three-piece African American Cajun blues type band, and we rolled up the rugs, and we danced, and we laughed. That’s Senator Kennedy. He was shaking his head, but he’s on to the next one. And a very high level of commitment and energy. I never worked harder than I worked for him, not as a law clerk at the Supreme Court, not anywhere—all-nighters not at all unusual, pretty common. But making money’s relatively easy. Making history is pretty hard. And it’s a great experience. Very demanding. 

I had studied law pretty intensely and practiced it. I remember one day sitting with him, for work on some issue, and a couple other people were in the room. I said something, and he quoted to me something somebody had said at the Constitutional Convention. I just looked at him like, Where the hell did that come from? And he knew he’d gotten me, got under my skin a little bit. He said, You didn’t know I knew that, did you? I just looked at him. It turned out that when he had the plane crash and broke his back, he had read the entire notes on the Constitutional Convention. 

But you meet people in life who are more articulate than they are intelligent. And then sometimes you meet people who are not always as articulate. He can be incredibly articulate at times and, I think, has been more in recent years than he sometimes was spontaneously. But the intelligence underneath it and the instincts are incredible. He did surround himself, at least when I was there, and I think in many of the previous years, with magnificent staff. During the time I was there, we were in some ways the Government in exile, which was remarkable. When you’re in your 30s and you take all this stuff for granted and you look back on it, you realize how remarkably special it was. 

But a lot of people in public life do not like to surround themselves with intelligent people. He is the opposite. He does not want to work with people unless they’re very capable. Tom Rollins was quoted in a piece that was done on him many years ago describing the Senator as a Pony Express rider. Have you ever seen this? It’s a great expression. This was a piece in the Washington Post Magazine by Rick Atkinson. He said, The Senator’s like a Pony Express rider. He gets a fast horse, and he rides it as far as he can, and then he gets on another one. He gets good people, and he rides them hard, but in nine years we had maybe two arguments.

What were those two arguments? You know I have to ask that.

Actually, we probably had more than two. The two I remember were two where I was right and he was wrong.

That’s why you remember them.

Yes, that’s why I remember them. That’s more a story about myself than about him. We had two. And whether he was wrong or not, I guess history will have to decide. One was not really an argument, but he snapped at me. This was in ’94. We were walking from the Russell Building to the Capitol. He had asked me to reach out to Danforth and [John] Chafee on a health care bill, because I had the relationships that I had developed on civil rights, and I’d worked with them on a lot of different issues. I had tried to pin them down, and I couldn’t. I just had this terrible sense of foreboding. This was probably in May, late May I would guess. 

I said to him—and this was not my bill, and it was not my place—I said, Senator, you’ve got to make a deal. This thing is coming unglued. We’re never going to be able to get this. He turned to me—and this is obviously part of his life’s work—and he said, We are going to have this debate on the floor of the Senate. We are going to take this to the American people. And he said it with a real edge. In hindsight he was probably reacting not to me but to other people telling him the same thing. But he let me have it.

The other one was over a judicial nominee for Massachusetts. I was very proud, and the Senator was very proud, of the people he put on the federal bench in Massachusetts. There was one that slipped through the cracks at the end of my tenure there, and we just had a little disagreement about that. 

But no, you asked me what it was like to work for him. It was a blast. Going to work every day, I’d drive by the Jefferson Memorial and thank the Good Lord I had the opportunity to do it.

Did you know Steve Breyer well?

I knew him several ways, and I played a couple of odd roles in his confirmation. He was my ad law professor at Harvard. And as I mentioned at the beginning of the interview, just coincidentally he actually was the person who first introduced me to Senator Kennedy in 1979. I was clerking for a district court judge in Boston named Robert Keaton, who was recommended to President [Jimmy] Carter by Senator Kennedy and who was a Harvard faculty colleague of Steve Breyer’s in 1980 and 1981 after I first graduated from Harvard. So I was at Breyer’s swearing-in on the first circuit, and Steve asked me to be his law clerk that next year. I actually said no, because I was moving down here. 

But when I came to work for the Senator in 1987, Steve began calling me, as he called my predecessors, just on various issues that were going on. I think he was bored as a first circuit judge. I know he was bored. And he was very interested in what was going on in the committee. He was, of course, actively considered in 1993 for the vacancy that ultimately went to [Ruth] Ginsburg. I counseled quite a bit with him and Ken Feinberg and the Senator, because there was an issue about a domestic worker for Steve. We had just gone through the Zoë Baird mess, so I felt I had something to offer in that discussion and to try to help Steve get nominated. He sent me a note actually, which I have. I saw him at the 75th birthday party, and I mentioned this note because it’s great. 

The story of how he didn’t get the nomination is somewhat interesting. He was riding his bicycle in Harvard Square, and he either fell off of it or was hit or something, but he broke a rib, and he punctured his lung. My reaction was, I didn’t know he could ride a bicycle. He’s a little bit of an academic klutz. As a result of that, he was in a great deal of pain, and he couldn’t fly, because his lung was punctured. I guess they don’t allow you to fly. So he took the train down for his interview with Clinton. Of course that’s an eight- or nine-hour train ride from Boston, and with a broken rib, he was in terrible shape by the time he got off the train. He was actually met at the train by Vince Foster and Ricki Seidman, who used to work for the Senator. This is the last footage of Foster alive. Foster killed himself very shortly afterwards. But the archival footage exists. 

So they take Steve, they vet him at the White House, and he meets with Clinton. The interview didn’t go well, I think, by all accounts. So Steve doesn’t get it. The White House actually leaks the domestic-help story, which is just awful. Then he doesn’t get it, and he takes the train back up to Boston in pain. And I have a handwritten note that he sent me from the train saying, Thanks so much for your help. Who knows what’ll happen in the future? I looked at it, and I thought, Well, let’s see, they’ve just nominated a Jewish law professor from the Northeast to the Supreme Court. What are the odds they’re going to nominate another one? I just threw it in a drawer, and I still have the note.

The next year, whichever justice it was resigned. I guess [Harry] Blackmun was the second one. [Byron] White was the first. Or vice versa, whichever it was. He resigns. And I’m on the phone with my father-in-law, who at the time was the president of the American College of Trial Lawyers—a courtly southern gentleman named Frank Jones. He says, Your friend Steve Breyer gave a speech to the American College the other day, and it was really quite a speech. So the next time I talked to Steve, I just mentioned in passing that Frank had said he’d given a speech and that he’d done a good job. And Breyer said, It really was a good speech. Can you get me a tape of it, a videotape of it? I said yes. 

So I called Frank. Frank sent the tape to Breyer. Breyer gave the tape to Rick Stearns, who was Clinton’s roommate at Oxford, who was a district court judge that Senator Kennedy had recommended to the President. Stearns sent it to Susan Brophy, a buddy of Stearns, who was one of the legislative affairs people at the White House. Brophy gave it to Clinton, and Clinton watched it. And [Thomas] Oliphant did a column, although he didn’t have the piece about me and my father-in-law, but he did a column about the tape, and it resuscitated Breyer in Clinton’s eyes. So just a little bit of odd background there. The Senator obviously lobbied very hard for Steve. And I worked very closely with him on his confirmation. 

There were some very awkward moments with the Lloyd’s stuff. I have to say that my opinion of Howard Metzenbaum and of his staff fell. I think they hired an investigator who dug that up, and I don’t quite understand why. I don’t know whether Steve had somehow antagonized Metzenbaum, but they tried to knock him out. I had litigated a case involving Lloyd’s of London when I was a young lawyer, and so I knew a little bit about how you read these ridiculous syndication insurance slips and everything. Because we had to figure out how Steve was involved in this particular company that was somehow before him. What he told me at the time was that his wife is British, and I guess she is part of some fortune—I want to say Pearson’s, but I’m not sure—and that his brother-in-law had put him in this Lloyd’s syndicate, and you’re personally liable in these things. So somehow he had been on the slips for this company that ended up in front of him, and it slipped between the cracks. It was just one of those things.

I’m sorry, Jeff. I missed the last part you just said there.

The fact that Steve had a personal, very attenuated, very indirect interest in a party that was appearing before him in this case in the first circuit had somehow slipped between the cracks. But it was dredged up—and I think it was Metzenbaum—to torpedo his nomination. That’s exactly how I met Joel Klein, for whom I ended up working on Microsoft and who’s a close friend now. Joel took Vince Foster’s job as Deputy White House counsel and was managing Steve’s nomination from that side. Joel and Cliff Sloan for the White House and I worked through all this stuff, and ultimately Steve was confirmed pretty easily, but there were a couple of tough moments.

You mentioned Metzenbaum. I’m wondering if you could tell us a little bit about some of the Senators on the Judiciary Committee and the relationship that Senator Kennedy had with them—good relationships, bad relationships.

Yes, the most interesting relationship he had on that committee was with Biden. It really was—I think it evolved a good bit during my tenure there. In 1986—I got there in ’87—Biden had said in reference to Bork—this was after the [Antonin] Scalia nomination—I’m paraphrasing—If they send him up, I’m going to vote for him. I’m not Ted Kennedy. Indeed one of the reasons for Robert Bork’s America was to freeze Biden. He’s running for President. We didn’t want to leave him any choice. I think there was tension between the offices, there was a certain rivalry, and I think Biden wanted to strive for a more moderate image. 

In December of ’87—well, I guess, before we go to December of ’87, in late September, Biden’s campaign was torpedoed by the release of a video, it turns out, by the [Michael] Dukakis campaign, I think, or the [Richard] Gephardt campaign. In essence Biden was mimicking a fellow named Neil Kinnock, who was then the Labour Party leader, and Biden’s campaign imploded in charges of plagiarism. Senator Kennedy chaired the hearing during a couple of those days, Bork hearings. I thought we were sunk. I thought that Biden’s embarrassment would translate into the public saying, Oh, who are these guys to judge Judge Bork? But Biden handled himself with a lot of grace. I’m 52 as I sit here today. He at the time was 45, and he handled himself with real maturity and skill. I remember being struck with it at the time. But I think that his relationship with the Senator improved during that time. 

Then he had a brain aneurysm, almost died, in December of ’87. Senator Kennedy took over the Judiciary Committee in December, and I don’t think Senator Biden came back until summer or fall of ’88. Senator Kennedy played it completely straight. He did what Senator Biden’s staff asked him to do. He didn’t pretend to run it his way, he just handled it. And he went up to see Joe in Delaware as he was recovering. I think that their relationship deepened. I think Senator Kennedy still finds him a little frustrating, a little. He’s obviously longwinded. He’s a funny guy, Biden’s actually a very intelligent guy. He’s got a real inferiority complex. He doesn’t have a fancy education. He grew up, I think, in a working-class family, went to Syracuse Law School. I don’t think he shot the lights out there. And I think he has a little bit of an inferiority complex even to this day. You can hear it in some of the things he says. But he is awfully smart.

I think other members of that committee—it was one awfully dysfunctional family. You look at Strom Thurmond and Orrin Hatch—I think others undoubtedly will talk about Senator Kennedy’s relationship with Senator Hatch. But when I think of the people the Senator’s closer to in the Senate, I don’t really think there’s anybody on the Judiciary Committee, at least when I was there with him, he was especially close to. I think he was closer with [Paul] Sarbanes and [Carl] Levin and Chris Dodd, obviously very close to, and others—John Culver, of course.

Were there certain other Senate staff people that you had a good relationship with?

Yes. I think when I joined, I was probably a little arrogant, as was often the case for Kennedy staffers, and it took me a little while to get some of the rough edges worn off. But ultimately I think I had good, close relationships with Biden’s staff, not so much with [Ron] Klain as with Mark Gitenstein and Diana Huffman and Jeff Peck. But across the aisle, when one of Senator Hatch’s staffers was nominated to one of the circuit courts of appeals, the White House put my name down as a reference for her, which—I’d sent her a letter that said, I’ll support you or oppose you, whichever helps. I had a close relationship with Kevin McGuiness, who was Hatch’s chief of staff, some of the folks on Senator Thurmond’s staff. Certainly very close with Danforth’s staff and some of the other moderate Republicans. Jeffords, who was then a Republican. 

I think the Senate was in transition then. It wasn’t quite the remarkable body that it probably was in the ’60s and early ’70s when the Senator got there, when there were really some giants. Part of that is probably just the perspective that you get being a young man looking back at history, but I think it really was a more formidable place. It was before television and consultants had really required that you have a certain male bimbo personality to be a politician. You had some real characters.

Did you ever hear the Senator bemoan the absence—or talk about the good old days and how things had changed?

He would talk about it. Sometimes it was good old days; sometimes it wasn’t. I remember going with him one day when we went to see Jeffords on the Civil Rights bill, or on some bill, and we were sitting in Jeffords’s office, and he told me that Jeffords’s office had been [James] Eastland’s office. Eastland, of course, was the chairman of the Judiciary Committee when the Senator got on it. The Senator had the Immigration—or I think it was called the Refugee Subcommittee at that point. Senator Kennedy told me that in order to get his staff—it was Jerry Tinker who died tragically when I was up there—in order to enable Jerry to go to Vietnam to view the refugee problem in Vietnam, he had to go to Eastland’s office at five o’clock and drink bourbon with Eastland. You’d basically have to go—I’ll use my Pittsburgh vernacular—and kiss his ass and beg for it, and then he’d let you do it, because he wanted the chit. The Senator recounted this story. I used to have to come sit in here and drink bourbon with Jim Eastland in order to get Jerry Tinker over to Vietnam. But I think that, yes, there were many times when I felt that—

I remember John McCain, who’s obviously a heroic guy—I was down in the well again with the Senator when he was floor-managing some other bill. McCain has a legendary temper, and McCain thought that Senator Kennedy had screwed him on some amendment. He hadn’t. But McCain comes flying through the cloakroom doors, spittle coming out of his mouth, just barking mad, red rage. Senator Kennedy looks up at him, and the press is looking down from the gallery, and Senator Kennedy looks up at him and just says, Act like a Senator. [laughter] And you could just watch McCain deflate. I thought about it. It was just the perfect thing to say. You are in a special place here, bub. This is the Senate. Act like a Senator.

He had tremendous respect for the institution.

Oh, he loved the institution. You have all these great, special moments with him. I remember when Steve was nominated to the Supreme Court, and we were up in the hideaway with the Senator getting ready for his hearings. The Senator said, Come on, let’s go. So Breyer and I follow the Senator down this spiral staircase in the back of the Capitol, and we go sit in the old Supreme Court chamber. Then the Senator just starts telling stories about the institution. We could tell he loved the place. I have on my DVR [Digital Video Recorder] the interview that C-SPAN did with him about the Senate and when he’s talking from his hideaway. He grew up there. When you think about it, he was 30 years old when he got there, and it’s been his life. I think that there’s, no doubt, been frustration for him in the last decade or so as the place has gotten more partisan and as the institution has been, I won’t say weakened, but attacked by folks who really don’t care much about the institution as an institution.

But I will say that I think he’s managed to keep doing what he does. When I had been working with him for a little while, I was under the mistaken impression that everybody did what Senator Kennedy did, which was to look for bipartisan measures on which to work, to start with a coalition that’s left-center and add votes to get to 60. It was all about the votes. And I thought everybody worked as hard as he did. Then I realized that just wasn’t the case. Every vote—

I’m sure people have talked about the red folder, the floor folder. He had a folder sitting on the desk outside of his office, and if you wanted him to talk to another Senator about something, you would put a card in the red folder, in the floor folder. It would say, See Senator X in a vote, and two or three points. And he would do it. To this day, if you watch him on C-SPAN, sometimes he’ll be—as he walks with his bad back hunched over, and if you look at his hand, you’ll see there’s a card there. And he’ll be walking around looking for somebody. As I see it to this day, I just know what he’s doing. He is working the Senate floor. There are very few people who do that, I think, who every day are looking for ways to move the ball forward the way he does.

What would you say to the criticism that some people have suggested that he’s sometimes too quick to compromise? I’m thinking most recently of No Child Left Behind. That Senator Kennedy, he’s willing to reach out to Republicans almost to a fault.

Yes, I’ve heard that from Democrats both about No Child Left Behind and about the drug benefit, which was whenever that was, 2004 maybe. I think that you have to judge that from a very long view. I wasn’t there for either of those two, so I can’t really judge those in particular. But I was with him where we had to make some tough compromises, the Civil Rights bill being one example that we talked about. Civil rights is something that he’d been at for 25 to 35 years when I worked for him. His view, articulated to me at the time, was you make the progress you can, and then you come back and you make some more progress. 

That ’64 Civil Rights Act, which is in some ways viewed as the most significant legislative accomplishment of the post-World War II era—that and probably Medicare are probably the two. Well, Medicare didn’t have a drug benefit, and the Civil Rights Act had very weak remedies. The ’91 Act was about, among other things, strengthening the remedies. The Fair Housing bill that we passed in ’88 fixed the 1968 Fair Housing bill, which was toothless. I’m reminded of what Martin Luther King says: The arc of the universe is long, but it bends toward justice. It takes a long time to do some of these things, and I think the Senator’s instinct is to make progress, even if it doesn’t help you score partisan points, on balance, is a virtue. I have no doubt about that. It has gotten me in some arguments.

On the other hand, sometimes I think his instinct to do that is great politics. I had an argument last year with someone who now works for Harry Reid, who was calling me about immigration and was telling me that—because the Senator and Reid were not in the same place last year on immigration. The Senator was like, Let’s have this fight. And Reid wasn’t so sure. He didn’t want the Senate to stay on it. I think it was great politics, because here the business community and the Hispanics were with the Democrats, and the Republicans were split in half. 

But I think he’s really guided 95 percent of the time by trying to make progress. I think the way he keeps score is different than the way most politicians today keep score. He keeps score with a hammer and chisel. It’s to stand the test of time. I think that just comes from having been there a long time, having lost his brothers and feeling like the history he’s making is history he’s making for his whole family. The legacy he wants to leave is progress, and it’s not always perfect. 

The drug bill, which is really, I think—No Child Left Behind, I think he just got misled by the President. From what I can tell, that’s what happened. The bill was controversial. I think there’s real debate about it. But the issue where people criticize him is that the money wasn’t there, and that’s just the President misleading him. I think the Senator was willing to take him at his word—once. On the drug benefit, it’s a goofy bill, but the fact of the matter is that the polling today—we’re sitting here in 2007—is that seniors like it. Is it progress? I don’t think there’s any doubt that it’s progress. It may not be perfect, but there are people who can afford drugs today who couldn’t afford them five years ago. How do you criticize that?

There’s another tension you touched upon. And we can talk about the Civil Rights Act. This is a very specific example. But Senator Kennedy has to act as both civil rights advocate and, at the same time, civil rights political reality check. That is to say, this is, like you were saying, just a little progress. It’s better than what it was before, but sometimes having to be the bearer of bad news to various civil rights groups. Can you talk a little bit about this process? We’ve heard about what a good strategist he is. But you being there, having to talk to civil rights groups and saying, Maybe we’re going to go for this this time and not that, for example.

It’s a very delicate balance, and I have agonized about that, my own role and the Senator’s role, quite a bit. It’s a very delicate balance, because on a major piece of legislation, it’s almost always the case that it requires significant outside political support. And to get significant outside political support, you have to have people enthusiastic about what you’re doing. To get them enthusiastic, sometimes you have to go farther than the political consensus is likely to accept. And I’ve been involved in drafting quite a few bills over the eight-and-a-half years I was with him. 

I can remember one story, conversation, I had with the Senator. It was in the President’s Room. This was actually in ’89, right after my father died. We were sitting in the President’s Room talking about what provisions to include in the Civil Rights Act of ’90 as it was to be introduced and then ultimately got passed in ’91. I had this long list of Supreme Court decisions that really narrowed the scope of the civil rights laws, and we went through them one at a time. I went through the pluses and minuses of particular provisions. 

He stopped, and I remember he scratched his chest as he often does, and he said, I don’t want this to become like the Double Breasting bill, which was a bill that I guess the labor movement had convinced him to introduce back in the early ’80s. He said, We overloaded that bill when we introduced it, and it just sank like a stone. It was gone the first day we put it in, words to that effect. The point he was illustrating there is that you strike a balance between sustaining the enthusiasm of the people who want the bill and the political reality of how it’s going to fare in the debate. And I think the Senator is more willing than most Senators are to push the envelope. I think that that’s certainly why the folks in the civil rights community and in so many other communities just love him. He’ll take it on. But there are times where we suffer as a result in that you can engender more controversy as a result of doing that.

On the other hand, at the other end of the process—and by the end of ’91 we’re talking about—there were caps on the damages in the Civil Rights Act of ’91 that a victim of sexual harassment can achieve. That was something that Dale Bumpers basically got from Jack Danforth, and it was a bitter pill for the women’s groups to swallow. I think they were really pissed off about it. But the fact is that they haven’t been able to get them lifted. On the other hand, if you look at what’s happened in the law, I mean, the Wal-Mart case is pending as I sit here today, and the ninth circuit just affirmed its class action certification. Even with the caps on damages, Wal-Mart’s looking at billions of liability as a result of this bill. So in terms of its impact, it’s significant. I was on a panel at the EEOC [Equal Employment Opportunity Commission] talking about the 40th anniversary of the Civil Rights Act a few years ago. That’s how the Wal-Mart decision flashed in mind. 

Anyhow, I think that that’s one of the hardest things, really, about legislating, how you balance the need to have that zeal on the part of supporters, the enthusiasm, on the one hand, and the fact that your colleagues in the Senate may just think you’re a huge pain in the rear for pushing them farther than they want to go. I think there were colleagues that pushed back sometimes, that went to [George] Mitchell and said, For heaven’s sakes, you’ve got to get Ted Kennedy to slow down here. You’re making it too tough for us. I think that happened on the Civil Rights Act.

You leave Senator Kennedy in 1995 to join the Justice Department.

Actually I didn’t join the Justice Department until ’98. I left him in ’95, and I actually went to Common Cause for about two months. It was a disaster, just a bad move on my part. My expectations about what the job was and their expectations were different. So I just left. My father had died, as I indicated. I’m an only child, and he had left a business that I had a manager running, and she wasn’t doing a particularly good job. So from the end of ’95 until the end of ’97, I basically restructured that business in Pittsburgh and ultimately sold it.

As I got that wrapped up, I ran into Mark Gitenstein, who I mentioned earlier was Biden’s chief counsel when I worked for Kennedy. Mark said, Joel Klein’s looking for somebody to run the Microsoft case, which hadn’t been filed at that point. He said, You’d be perfect. So lo and behold, Joel hired me in March of ’98, and we met with Bill Gates in April and sued him in May and made a little history there, which was a blast. And I will say, just on a personal note, Joel and I became very close friends. I felt like that was contrary to what, I guess, it was [F. Scott] Fitzgerald said. I felt like this was my second act in public life, and I did relish it. It was a great deal of fun. I left the Clinton administration and the Justice Department the last day, January 19th, 2001. I was a partner in a big law firm for three and a half years, and then I went out on my own and started a consulting business, which I had for about a year and a half, and went in-house with one of my clients, XM Satellite Radio, which is really very interesting.

You keep in touch with Senator Kennedy? He keeps in touch with you?

Absolutely. Adam Clymer wrote in his book that former Kennedy staffer is like ex-Marine—there’s just no such thing. You’re always part of the family. And whenever he needs me, I’m delighted and honored to be able to help.

And that does happen.

Oh, yes. As I said, I was Judge Alito. And I helped on a speech that I think he just gave at the Press Club in the last few days. I flew up to Hyannis and worked with him on the Roberts stuff. So I’m still in touch several times a year, I guess.

You said earlier you knew John Roberts? Did I hear you say that?

Yes, he was a year ahead of me at Harvard, but when I joined Hogan & Hartson as a partner in 2001, he was a partner there. I used to have lunch with him at the partners table once a week. I moot courted him for a Supreme Court argument or two. I think the Senator was right.

What happened there? Both of those nominations went through. And the Alito one the Senator took some heat for when Mrs. [Martha] Alito started crying and all that stuff. Is that what did it? Is that what pushed Alito through?

No. We can talk about Alito before we talk about Roberts. I think that what really made it very tough—and I consulted, just so the record is clear. I did consult some for People for the American Way—they were one of my consulting clients when I left Hogan. There was a fight in the Senate in 2005 about the nuclear option, as it was called, which is changing the Senate rules to eliminate the filibuster of judicial nominations. 

That fight arose, in my view, because the Democrats overplayed their hand on filibustering court of appeals nominees. You asked me about my involvement with the Senator on this stuff. In 2001 I met with Senator Kennedy and Melody Barnes, who was one of my successors, and said, You’ve got to get the Democrats ginned up on nominations. It’s going to be bad. This was after [George W.] Bush versus [Albert] Gore. And I suggested what ultimately happened, which was that they had a panel at some retreat up in wherever the Democrats were going, and they had a discussion of it. But I will say that I think they were not sufficiently selective on the court of appeals. And the result of that was that they were perceived as having filibustered somewhere on the order of a half a dozen court of appeals nominees.

The backlash from that was what this nuclear option was. I think it would have terribly harmed the Senate had it happened. And I’m going to be partisan here: I think that the Democrats ultimately cared more about the Senate as an institution than most of the Republicans did—and that the Democrats blinked. You had this Gang of 14, and I was advising Senators. I wrote about this—I blogged about it at the time. I thought that the compromise was a terrible mistake. I wrote that the genie was out of the bottle. Essentially by giving a few Senators veto over the filibuster, you basically had ended it as a tool for nominations, because the whole idea of a filibuster is to give an impassioned minority the veto if they were prepared to suffer the political consequences. And if you give the moderates that determination, it effectively ends the veto as a threat. 

So the Republicans—and I wasn’t as appreciative of this as I am today—got the better of that exchange. Their base thought they got the worst of it, but they got the better of it. And the White House’s entire strategy on Alito was to play to those 14 and to make it effectively impossible to filibuster the nomination. There was still so much nerve damage, I think, from the nuclear option fight that people were just not willing to do it. That’s number one. 

Number two—and the Senator gave a speech recently in which I had a minor hand—I think the hearing process is really broken. My own view—and this has been my view since Souter—is that what needs to happen is that the committee, at a minimum, needs to have a rule under which each Senator can submit five questions to a nominee in writing in advance. And they have to supply their answers in writing before the hearing so that you actually have a substantive record. Because it’s very hard to prepare Senators who have a day job to go into the minutiae of judicial doctrine. It’s very hard. With Bork it was easy because he was pinned down on everything. But you got to have a record. Without that, it’s—as Muhammad Ali, who came by to see the Senator when I was there, did to George Foreman—it’s just a rope-a-dope. The nominees just run around, and it’s very hard to pin them down.

I think that Alito was a failure of political will. The Democrats did not do a particularly good job of questioning him, generally speaking. There’s no truth to the notion that the Senator made Mrs. Alito cry. It’s fabrication. I think she started to cry when Lindsey Graham asked her a question, as I recall. So he made her cry. But I don’t know whether that was a gambit on their part or not. I have no reason to believe that it was. Obviously it was an emotional time. Nobody likes to see their partner buffeted. I think Alito is going to be a disaster. 

Ironically Senator Kennedy chaired his confirmation hearing to the third circuit, and I handled it for him. But [Bill] Bradley and [Frank] Lautenberg were for him for the third circuit, and so we let it go. I knew for years how conservative Alito was. One of my best friends from childhood was on the third circuit with him, and I had a pretty good sense of it. I think he’s going to be terrible, so the Senator was absolutely right. 

But I think, again, one of the consequences of this nuclear option thing was that Reid felt the need to keep the moderates from speaking out before the hearings. The quid for that quo was muzzling Senator Kennedy and other liberals about the nomination. I thought Reid’s message to the caucus, and I was involved contemporaneously in these discussions, was Keep your powder dry. And I think that that inhibited Senator Kennedy. 

The only way to beat one of these nominees is to start on day one, make the argument forcefully from the beginning, Here is what is at stake—do the kind of opening statement that Kennedy did at Georgetown on Bork, to really lay out the case. You’re going to take some hits in doing that. Nowadays you’ve got 24-hour cable TV talk, and they’re going to be saying bad things about you if you’re a politician, if you have the guts to step out in that way. But I don’t think there’s any other way to do it. It is a mass education challenge, and if you cede the floor to the proponents of the nomination all the way up to the hearings, you’re done. 

It’s the same thing that happened with Thomas in some ways, because people felt reluctant to go after Thomas. Because the NAACP and other groups had not yet taken a position, the White House was able to sell him to the American people without any countervailing debate. Folks were too restrained too early on Alito, and I told that to people at the time.

And what about Roberts? We’ve heard that he was perhaps a tougher person to defeat because he had spent a good part of his life preparing for this.

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Thanks. Gregg, do you have anything else?

We usually talk about Senator Kennedy’s passion, especially toward civil rights, other issues. It’s sometimes broached, where does he actually get this? This is a man who grew up in enormous privilege. Where does he get that passion?

Where does it come from? Well, first, just by way of personal disclosure, my parents were both refugees from the Holocaust, so mine comes from that. I think it’s two things with the Senator. I did hear him many times talk about NINA, No Irish Need Apply, in Boston. And I think that while he probably didn’t experience it directly much, if at all, he certainly heard about it from his grandparents. He related that to me many times.

I think the second thing is that—and there’s no question it was the unfinished business of his brother’s Presidency, absolutely none. It was the fundamental issue of that time. No question that the confrontation with the Soviets was huge. But at least from a legislative perspective, I don’t think there’s any doubt that when his brother was killed, that was the unfinished business. There’s no second place on that. I think that he gave his maiden speech in the Senate on that issue. The commitment is real. 

Bobby [Kennedy] embraced [Cesar] Chavez. The Senator, when he came to the Senate, dealt with the braceros, dealt with the squalor in which immigrants were treated. He was a young man, in his early 30s. I think that that burned into him. And maybe also being a ninth kid. In some ways, you got to take your share of abuse when you’re the ninth kid. I don’t think he’s probably owned up to that, but that can certainly make you, I imagine, fight for the underdog.

Okay. Yes, thanks a lot, Jeff. This was great.

Good.

Thank you.