Sen. Ted Kaufman (D-Del.) worked behind the scenes on Supreme Court nominations for much of the last three decades, as an adviser and chief of staff to then-Sen. Joe Biden (D-Del.). Biden, for part of that time, organized the confirmation process as chairman of the Senate Judiciary Committee. Now, as Biden’s successor and a member of the Judiciary Committee, Kaufman will have the chance to question and vote on a nominee when the Senate weighs in on Judge Sonia Sotomayor.
Kaufman (pictured above) recently wrote about “judicial activism” for The National Law Journal. He also sat down to reflect on his experiences on Biden’s staff. What follows is a transcript of the interview edited for length and clarity.
NLJ: What stands out from your experience working on these nominations?
Kaufman: When he was up for chief, Rehnquist came in for the courtesy call. Senator Biden was over with the counselor to the president negotiating when the hearings were going to be, and so I said to Rehnquist, “You know, we can reschedule with him. The senator called and said, ‘Look I don’t know how long I’m going to be over here. Just tell the justice that we can reschedule this.’” And Rehnquist said, “You know, I’d really like to find out when the hearing’s going to be, so if you don’t mind, can I stay here?” So I got to spend like over an hour sitting with Rehnquist, essentially making small talk.
NLJ: Was he annoyed that he had to wait?
Kaufman: No, because we told him, “You don’t have to wait.” He was pleased that he was going to find out when his hearings were. And so we sat and talked, and the two things that came out of it that were interesting to me were, first, I was actually convinced after talking to him that he was not sure about whether he was accomplishing anything as a justice, whether being a justice was really that important.
NLJ: What did he mean by that?
Kaufman: He just said that, “I don’t know how much real impact I have on what’s happening.” It was a long conversation, but the bottom line was, “I’m not sure how much impact I have”—which I’ve used time and time again to tell people that say, “You know, I don’t know if I can make a difference.” If a justice of the Supreme Court’s not quite sure what kind of difference he’s making, then maybe you ought to question whether you’re making a difference, do you know what I mean? And the second thing he said, which I’ve used again and again talking to people, was how lonely it was being a Supreme Court justice. Most of his friends were lawyers, and he said lawyers were hesitant to talk to him because he was on the Supreme Court and most lawyers he knew had cases that could potentially come before the Supreme Court. He said, “When I was an attorney, I would have given anything to be able to spend a week thinking about the theory of the law. Now, I’d give anything to be back for a week and just be a regular attorney.”
NLJ: Which previous confirmation process is comparable to what Sotomayor is experiencing?
Kaufman: I think Scalia. There was a consensus, and there was the ethnic piece to it. A number of prominent Italian Americans—Dennis DeConcini, but primarily Mario Cuomo—said, “We have great pride in the fact that this was the first Italian American on the Court.” And it really cut across party lines.
NLJ: Do you think she’ll get a unanimous vote like Scalia did?
Kaufman: No, I don’t think she’ll get a unanimous vote. The real question is, does she have a chance to lose or not? She’s pretty much got that covered. She isn’t someone who’s going to change the direction of the Court. And then, finally, unless something comes out that we don’t know about, she’s competent, she has integrity, and she has experience. That’s kind of the way it was with Scalia. And the fact that she’s a Hispanic American makes it very different for some folks—how they have to take that into account and how they’re going to vote.
NLJ: Obviously, the intensity of this process has changed in the last 30 years. What has that meant for the people who work behind the scenes?
Kaufman: The big difference was, after Bork, the process became like the Super Bowl. I can remember the Thomas nomination, and we were having a meeting, and the press secretary came in and said, “I just was down with NBC, and they’re going on Desert Storm footing.” Now I picture these guys putting on their boots.
NLJ: Biden’s staff found out earlier than most about Anita Hill’s allegations against Clarence Thomas. What was your role?
Kaufman: I was called by, I think it was Senator Leahy’s staff, and they said, “Would you come to a meeting?” And they said, “This has been faxed to us. It’s basically a charge that Clarence Thomas had sexually harassed the person who sent the fax.” And basically we said, “We can’t do anything about this unless the person will come forward.” It was pretty clear that this woman had something to say. If it was true, it was a major factor, but until she was willing to identify herself and say, “I’m willing to make this charge” or somebody came forward with this charge, then she really couldn’t do much with it.
NLJ: What was your reaction to the fax? Did you know immediately the impact that it could have?
Kaufman: Yeah. You could tell this was really, really incendiary and had to be handled very, very carefully. We had to protect his rights, we had to protect her rights. It’s the Judiciary Committee—a bunch of lawyers—and so everybody said, “We have to protect her rights. We can’t put pressure on her. We’ve got to protect Clarence Thomas’ rights. And so this is what we have to do, and here’s the process with which we can go forward.”
NLJ: Clarence Thomas, of course, pushed back hard against the Judiciary Committee. Was Senator Biden chastened by that?
Kaufman: The toughest thing about these Supreme Court nominees for a chairman or ranking member or someone associated with them is the judgmental thing. He did not like the role of being judgmental. But he knew what Clarence Thomas would do, and Clarence Thomas knew that we’d handled this properly. That was part of the process. Gallup did a poll after the Thomas hearings were over and Senator Biden got very high marks for fairness, which is what our major objective was.
NLJ: Senator Biden was in a difficult position for Robert Bork’s nomination, because he had made a statement not long before supporting Bork and because he was running for president. What complications did that cause from your perspective?
Kaufman: We looked at Bork as just an incredible opportunity. Biden was just beginning to break out in the polls in Iowa. There was an article I remember in The New York Times that had a picture of Bork and Biden face-to-face, and they said “the first primary.” So people right away put it into a presidential context. It wasn’t us. But our basic feeling was, he really knew how to do this, he had been through the Supreme Court hearings before, he’s going to do a good job, so this is going to be a positive thing for our campaign. But here’s the problem: It consumes you. We were supposed to have a meeting and go through the whole preparation for the Iowa debate. We spent the whole day at his house working on Bork. And we got on the plane to fly out there, and people on the plane were talking about Bork.
NLJ: I have to think that staff, at some point when they’re watching these hearings, thinks, “Maybe I could be up there, too.” Were you ever thinking that?
Kaufman: It’s hard to say never because I was here 36 years, but it isn’t part of my pattern in life. I can picture myself catching the football for the winning game. I could see climbing Mount Everest. But I never thought about being a senator—it wasn’t a logical extension of what I was. I really liked the role I had.
NLJ: But you were already writing the questions for Senator Biden, right?
Kaufman: I was very involved. I was sitting in on the final meetings on Alito and Roberts and the rest of them, helping to do the questions. Though, I must say that I got very down on searching for The Question. I just think that this idea of gotcha questions—total waste of time. Because after Bork, every single nominee has a get-out-of-jail-free card. You just say, “Look, it’s going to be in court.” So the idea that you’re going to find a gotcha question in there, that’s just not something I’m going to spend a lot of time on.
Photo by Diego M. Radzinschi