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Sen. Paul Simon
Sen. Paul Simon
Advice and Consent
ISBN: 0915765985
Advice and Consent
An insider's view of the Supreme Court appointment process chronicles the Senate's role in confirmation proceedings since the George Washington administration, suggesting that the president discuss potential nominees with the Senate before submitting his final choice.
—from the publisher's website
Advice and Consent
Program Air Date: September 20, 1992

BRIAN LAMB, HOST: Senator Paul Simon, author of "Advice and Consent," you say in the opening pages of your book the only quarrel you have with the publisher is the title of the book. How come?
PAUL SIMON, AUTHOR, "ADVICE AND CONSENT": There was a book by Allen Drury, "Advise and Consent," not quite the same, and we have a subtitle on ours. I felt too uncomfortable. It was too close to the other title. But as you know, authors don't choose the titles to their books. The other thing I found out that I did not know is that book titles are not copyrighted, so that I could write a book and call it "Gone With the Wind," and it is perfectly legal to do so. I don't think it should be, but that's the reality today.
LAMB: What's the difference between "advise and consent" and "advice and consent?"
SIMON: One letter and, of course, the Constitution says advice and consent. Strictly speaking, this is the phrase from the Constitution, though the Senate advises. We advise, even though that's not the word in the Constitution.
LAMB: You've written 13 books.
SIMON: This is my 13th.
LAMB: When was the first one written?
SIMON: The first one was written in 1964.
LAMB: About?
SIMON: I was elected to the state legislature and went to the state historical library and said I'd like to get a book about Lincoln's years in the state legislature. They said there is no such book. I didn't believe them. I went through all the Lincoln books. There was nothing. I wrote to Carl Sandburg and Allan Nevins, who were then the big Lincoln historians, and said, "You ought to write a book about Lincoln's years in the state legislature." They wrote back to me and said, "You ought to write a book about it," and I did, so I've been writing books ever since.
LAMB: You say you still pound these books out on a manual typewriter?
SIMON: On an old Royal typewriter. That's correct.
LAMB: Did you write every word of this book?
SIMON: I wrote every word in that book. Well, obviously I have quotes in there, but that is my product. It is not ghost-written.
LAMB: What was the purpose of this one?
SIMON: The purpose is to give some perspective, so that we can learn from what has happened in our history. I think that your viewers would agree, whichever side they were on, that the Clarence Thomas hearing did not go as well as it should have. The Robert Bork hearing did not. How can we in the Senate do better? What does history show us? How can the president do better? What does history show us?
LAMB: When did you first think about writing this book?
SIMON: Well, I was thinking about it as I was going through, preparing myself for the two hearings -- and more than these two hearings. I had asked about having a book that does basically what this does, and then frankly, the publisher, Joel Joseph of National Press Books, came to me and suggested it. The combination of his suggestion and a low-level interest in doing this combined, and I went ahead and did it.
LAMB: One of the first surprises -- and the audience can see this if I hold this book up this way -- one half of this hasn't got anything to do with Clarence Thomas or Anita Hill or Robert Bork. It's all about history.
SIMON: That's correct.
LAMB: What were you trying to do?
SIMON: Trying to see what had happened and also to illustrate that the fights that we have had, while they're different because they're on national television and national radio, but we've gone through these fights over and over again. When Ulysses Grant nominated George Williams to be chief justice, there were financial scandals involved. We didn't have televised hearings, obviously, in Ulysses Grant's day, but we have through our history rejected one out of five Supreme Court nominees -- one out of four in the last century -- and as you look at it, we should have rejected more. But by and large, the process has worked. The Senate has done a pretty good job in screening candidates. We've let some through that shouldn't have gone through, but those who wrote our Constitution in 1787 really knew what they were doing when they set up the process.
LAMB: The first year that the Senate allowed the public to watch a debate over a nomination was what?
SIMON: It was just a half a century ago. When you say the Senate watched it, that's literally what it means. On the floor of the Senate we did not permit reporters or the public to see the debate on a Supreme Court nominee because the feeling was that we would speak more candidly. Well, obviously what happened was the reports leaked out, and so finally that was opened. Then the Judiciary Committee hearings were opened. We just gradually turned around, and the process now in terms of being open is a good one with one exception that I mention in the book, and that is when there is a serious charge like sexual harassment. Then I think we should have a closed-door session where the senators are not playing to the television cameras, where we seek the truth and then report to the Senate. I use this example in the book, and that is, let's say that we have a nominee for the court, and someone says, "This person 10 years ago embezzled $100,000." Do we immediately go on national television with that, or do we have a closed-door hearing and get the FBI to investigate and then make a judgment there and report to the Senate? I think in that kind of a situation, where there is a serious charge, that ought to be closed until at some point we open it and report to the Senate. But everything else -- what their beliefs are on church-state relations, on the abortion issue, on capital punishment, you name it -- those ought to be opened to the public.
LAMB: When did you first hear that there was a sexual harassment charge against Clarence Thomas?
SIMON: I was on the floor of the Senate. I think this was two days before our vote in committee. I say I "think" because in retrospect all of these things became much more significant than they seemed at the time. Senator [Ted] Kennedy mentioned to me just as I was leaving the Senate floor -- he said, "There is a woman who has made a charge of sexual harassment." And then, I think it was the next morning, Senator [Joseph] Biden cornered Senator Howell Heflin of Alabama and Senator Herb Kohl of Wisconsin and myself and said he had received this charge -- an affidavit -- from a woman, he had asked the FBI to check it out, but that the woman wanted to keep it confidential. All three of us agreed that he had handled it properly.
LAMB: How unusual was it for Senator Biden to get the three of you in a clump and say, "This is what's going on"?
SIMON: Well, getting the three of us in a clump might be a little unusual, but we will occasionally have charges made against someone because it is not uncommon that we'll have a nominee for a federal judicial spot up and he was a lawyer on another side for someone, or whatever the charge is, someone comes up with a charge probably two-thirds of the time, or maybe higher, without any substance due. But we learn about it, we keep these things confidential, and when an investigation shows there is no substance to it, we forget about it and the public doesn't know about it.
LAMB: You say it was two days before you had the vote on the floor or in the committee?
SIMON: In the committee.
LAMB: You already had the hearings on Clarence Thomas.
SIMON: We had the hearings on Clarence Thomas. We divided the Clarence Thomas thing. We didn't know we were dividing it at the time, but it was divided into the pre-Anita Hill portion, and we had the vote at the end of that, and then about 10 days later, then we had the Anita Hill portion of the hearing.
LAMB: You say when you recommend in the back what should be done in the future that there should be a delay in the Senators' public comments about how they feel about these nominees?
SIMON: Yes. I think as individual members of the Senate we should not rush to judgment whether we're for or against a nominee until all the evidence comes in. It's a very easy thing. Clarence Thomas came in with Senator Danforth into my office and into a majority of offices in the Senate. He's a very likable person and we have a high regard for Jack Danforth, and so it's an easy thing to say, "I'll be with you," or to get on the floor and make a statement saying, "I'm for Clarence Thomas," because public opinion polls were clearly in support of him, as they were throughout the whole thing.
LAMB: When Senator Danforth brought Clarence Thomas by to see you, you had already had a history of voting for and against the man.
SIMON: That is correct. I voted against him when he was up for renomination for chairmanship of the Equal Employment Opportunities Commission. It was clear to me that he had not tried to live up to what the law required, and so I voted against his renomination. Then he was up for the appellate court, and I felt he had the basic ability to be a good judge, though there was some talk at the time that he might become a nominee to the U.S. Supreme Court. I said at the time I was not at all sure I would vote for him for the United States Supreme Court if he should be nominated.
LAMB: Did you say at any time between that point -- when you met with him in your office and that floor gathering of Senator Biden and others -- how you were going to vote? Did you know at that time how you were going to vote?
SIMON: I was pretty sure at that point. When he first came in, I was not sure. I had concerns on the basis of what he had done at the EEOC. But I chair the subcommittee on Africa, and on the way back from Africa -- I had plenty of time flying from South Africa to Washington, D.C. -- I read some 800 pages of his opinions and speeches he had written and some other things, and I was pretty well set, while I didn't make any announcement, on voting against him at that point.
LAMB: Go back to that meeting you had with Senator Biden. When he told you that they had this complaint, what did you do then?
SIMON: I did nothing other than I told two key members of my staff, Susan Kaplan and John Krisvenia, and I said, "This has to be treated in confidence." They're the two on my Judiciary Committee staff. I said, "This has to be treated in confidence. There is a woman who has made a sexual harassment charge, and you should be aware of it in case you pick up other things." Then Susan came in and said, "The woman who is making this charge wants to talk to you on the phone," and she told me that Anita Hill wanted to talk to me. I don't even know if at that point I'd heard her name before. I called her, even though obviously as a member of the Senate you cannot return most phone calls. I called her really to find out, is she a person of substance or is she kind of off the wall?

I came away first with the feeling that she was a person of substance who was really struggling with this thing. She asked me whether I had read the affidavit, and I said no, I had not. She wanted me to do so. She also asked me if I would distribute it to all the members of the Senate and keep her name and the information confidential. I said there is no way you can distribute that to 100 senators and keep it confidential. I said, "You have to make a very difficult decision whether to go public on this or not, and it will so change your life that I don't want to advise you one way or another on whether or not you should go public." But clearly she was struggling. She felt the committee and the senators ought to know the information. She did not want to surface publicly on the matter.
LAMB: Why did she pick you to call, of all the 14 members of the committee?
SIMON: I do not know, and that's a question if you get Anita Hill on the program sometime, you'll have to ask her.
LAMB: In the book you talk about the fact that later on at the White House there was a person that leaked, in your opinion, the fact that you were accused of leaking the whole story in the first place.
SIMON: Yes, and I'm more specific on it. Boyden Gray, the counsel to the president, is very clear because he told several reporters this, that I was the person who leaked the information. I first knew of the charge -- John McLaughlin has his show, and in the middle of his show he said, "I've learned from the White House that they believe Paul Simon is the person who leaked the story." I called John immediately after I heard it.
LAMB: You know, the McLaughlin Group said that you were the leaker.
SIMON: Yes, only John was the one who said it. When I heard about it -- I didn't happen to watch that show -- I called him and I said, "I'm not the person who leaked it. I don't know who did, but I just don't operate that way." And then, of course, we had a Senate investigation where the person hired worked for the FBI and made a report to the Senate. I'm making it fairly clear that I was not the person, and some people have hinted at who the person -- some magazines have printed the name, as a matter of fact. But the report itself did not name the person.
LAMB: I can remember, I think it was a Sunday morning that the National Public Radio report first came out. Am I correct about that?
SIMON: That is correct.
LAMB: Going back that week, when did you first hear about it? Was it that week?
SIMON: You mean that it was going public or that I first heard the information?
LAMB: That you first heard the information.
SIMON: I first heard the information about 10 days or 12 days prior to that, because we voted, as I recall, on a Friday, and that would have been a Friday 10 days before that Sunday, and the previous Wednesday or so I first heard about the charge.
LAMB: Your vote was 7 to 7 in the committee?
LAMB: So this nomination was ready to come to the floor, because you had voted to send it to the floor even though you had voted on a tie basis.
SIMON: That is correct. I might add, and this was one of the reasons that the White House pointed to me. I think another was I'm a journalist by background, and they thought, well, this is kind of a natural. But in the committee we voted 7 to 7 on the motion to send his name out favorably. Then the vote was to report him out without recommendation, and the vote on that was 13 to l. I was the one who voted against sending him out without recommendation. I always vote against that motion, whether it's on a bill or it's on a nominee. I think the committees ought to function, and if the majority of the committee doesn't believe a bill or a person is meritorious, then the name shouldn't go to the floor of the Senate.
LAMB: When did you first get some sense that this story was going to get public?
SIMON: I was at a Board of Regents meeting and a college homecoming combination at a small, liberal arts college in Nebraska that I attended, Dana College in Nebraska. When my wife was with me, we checked into the motel, and there was a message, "Nina Totenberg is trying to reach you." This is on the Friday before the Sunday. I called her, and it was very clear from her questions that she had the affidavit. I think here you have to distinguish between the affidavit and the FBI report. To my knowledge, no reporters ever had the FBI report.
LAMB: What is an affidavit?
SIMON: An affidavit is simply a sworn statement by someone to certain facts, to whatever they may be. But the affidavit is not a crime, in terms of the law -- to leak the affidavit. I think it is unethical, but it is not a crime.
LAMB: So in other words, Anita Hill had signed a piece of paper or a statement saying, "This is the way I feel about it," and submitted it to the committee.
SIMON: Yes, and it's not so much how she feels about it, but what had happened to her.
LAMB: Her version of what had happened to her.
SIMON: That is correct.
LAMB: What is an FBI report?
SIMON: And then after Joe Biden received that affidavit from Anita Hill, then he asked the FBI to check into it. The FBI did a very -- and I'm not critical of the FBI here because all these things are happening very rapidly -- they did a very cursory -- they had, I assume, about a one-hour chat with her and checked with one other person, and they gave us that report. I knew that Nina Totenberg, on the basis of her conversation with me, had the affidavit.
LAMB: Just for purposes of showing how your book deals with all of this from a historical point of view, 100 years ago would we be able to have this chat? Would this have happened 100 years ago?
LAMB: Why?
SIMON: First of all, everything was done in secret. For example, in the book I go into what the Judiciary Committee did on George Williams, who was then the attorney general who was nominated by Grant to be the chief justice. When I requested of the archives the Judiciary Committee notes on that, as far as we know I'm the first person to ever request those Judiciary Committee notes. No one at that point, more than a century ago, knew what the Judiciary Committee was doing.
LAMB: They were done in secret?
LAMB: Where were they kept, or where are they kept?
SIMON: They're kept in the archives now.
LAMB: The United States Archives.
SIMON: The United States Archives on Seventh and Pennsylvania here.
LAMB: Who can go in and get those?
SIMON: Well, there are certain things that are sealed with time. There will be public officials who will say, "My records are available until after my death, " or "20 years after my death," or whatever. But over a period of time, you gradually release certain documents. For example, the Watergate papers gradually are becoming public more and more.
LAMB: But you were the first person to ever ask for these secret papers from, what, 18 ...?
SIMON: I wish I could remember the exact date, but it would be the late 1860s or early 1870s.
LAMB: That's 1874.
SIMON: Okay.
LAMB: What did you learn from those papers?
SIMON: I learned that they went through the same kind of difficulty -- that George Williams was involved in some improprieties in terms of financial management, that he had mixed public funds and his personal funds, and that the Judiciary Committee was very much concerned about this. Ultimately, they requested President Grant to withdraw the nomination.
LAMB: Did he do it?
SIMON: Well, he asked someone else in his cabinet to go to George Williams and ask that his name be withdrawn. But for all practical purposes, the president really forced his hand on that.
LAMB: By the way, in history which president did the poorest with nominees?
SIMON: Well, John Tyler, probably, in terms of numbers of nominees.
LAMB: Rejected?
SIMON: He had five nominees. I think it's five rejected, but it may be four rejected and one approved, or five rejected and one approved.
LAMB: You say in the book that William Howard Taft had the most influence of any person in history on the appointment process.
SIMON: That is correct, with the possible exception of George Washington, who appointed the first court. But William Howard Taft dominated the court, first of all. He not only dominated the court, but as a former president he talked to Warren Harding, he talked to Calvin Coolidge, he would submit lists of possible nominees and talk to them. There's no question that in terms of the numbers of people on the court, William Howard Taft had more influence than anyone else has had, with the possible exception of George Washington.
LAMB: You say that it probably will never happen again that you'll have a president who will then become Chief Justice. How come?
SIMON: It just strikes me as unlikely, though maybe if Bill Clinton is elected he will appoint George Bush, but I doubt it; or that George Bush would appoint Ronald Reagan. It's a very unlikely scenario that someone who is a former president would want to become Chief Justice. Now, we have had people in history who, besides Taft, probably would have taken it, but it takes a very unusual set of circumstances.
LAMB: Just for the fun of it, if Bill Clinton were elected president, he would be, I think, 54 when his term -- eight years -- were up. If he served for eight years he would still be young enough to be chief justice.
SIMON: He would be, but I would be surprised. Bill Clinton is very much an activist kind of a person. I think there are a lot of other things that he would probably be interested in doing more than Chief Justice, but I don't want to speak for Bill Clinton on that.
LAMB: We talked about television; that would not have happened 100 years ago. Radio wouldn't have happened. It wasn't open at all. What else would have been different 100 years ago compared to the way the court is done now?
SIMON: Well, the pressure groups, and that gets to be one of these phrases we use that shows disrespect. But pressure groups are the PTA -- they're good people -- they're good guys and bad guys. But pressure groups, because they didn't know about it, there was not this instantaneous knowledge. Right now if Clarence Thomas or Robert Bork speaks to me in the Judiciary Committee hearing, people in Seattle, Washington, and Miami, Florida, as well as in Paris, France, know about it the same time I know about it, while in a previous period it took a long time for people to get the information, and you didn't have groups that were organized to take a great influence in this.
LAMB: Would the nominee have testified before the Judiciary Committee, and, by the way, was there a Judiciary Committee 100 years ago?
SIMON: One hundred years ago there was a Judiciary Committee, but nominees did not testify. Now, in the case of George Williams, for example, he was asked to testify, but declined to testify. Then we gradually moved to the point -- Harlan Stone was the first to testify. He was nominated by Calvin Coolidge. It's interesting, incidentally, when I mention this that we have had some liberal nominees from conservative presidents and the other way around -- conservative presidents who have nominated liberal justices. But Harlan Stone, who would have to be classified as a liberal on the court, was picked by Calvin Coolidge. Harlan Stone as attorney general had been following through on an investigation of Senator Burton Wheeler of Montana, and that did not please the members of the Senate, particularly the Senate Judiciary Committee, and so he was brought up. But he handled himself very, very well. That really started the precedent, though we have not had the days of hearings in those days that we have today.
LAMB: Of the 106 or 107 members of the court in history, if you had to pick four or five of all the ones you've studied -- sit around the table, have dinner with them, talk about life -- who would you pick?
SIMON: Well, if I can shift your question just a little bit: who were the great justices? There were some very colorful people that would be interesting.
LAMB: I'll make a deal with you. Do both.
SIMON: All right. The great justice is clearly John Marshall. He really established the primacy of the court. When our Constitution was written, it was very unlikely that they thought the Supreme Court would ever say a bill passed by a Congress and signed by the president would be unconstitutional. That evolved, and that's where the Marbury v. Madison decision really established that. He was clearly a dominant person. Chief Justice [Roger] Taney, who was appointed by Andrew Jackson, was a great justice except -- and it's a major exception -- the Dred Scott decision of 1857. That decision really precipitated and caused the Civil War.
LAMB: You say he was the first Catholic?
SIMON: He was the first Catholic, also, on the court.
LAMB: And that was in the middle 1800s -- 1858.
SIMON: Yes. He was appointed by Andrew Jackson.
LAMB: And it took almost 75 years to get a Catholic on the court. Was that something that was hard to do? You go on to talk about the first Jewish member of the court.
SIMON: Yes. Each of these is a barrier. There are those who oppose, but usually not publicly oppose, for that reason. But there's no question that was a barrier. [Louis] Brandeis, when Woodrow Wilson was president, was the first Jewish member of the court. But Brandeis wrote that his opposition primarily centered in the fact that he was considered a radical by some. He thought it was his political views rather than his religion and ethnic background that was the main cause of the opposition.
LAMB: We've got two of the five at the table. You've got John Marshall and Roger Taney and who else?
SIMON: I would put Brandeis there. I think Oliver Wendell Holmes.
LAMB: Junior.
SIMON: That's right. Justice [Benjamin] Cardozo, appointed by Herbert Hoover.
LAMB: He was also Jewish?
SIMON: He was.
LAMB: They had two Jewish members at the same time?
LAMB: Was that a problem then?
SIMON: It was raised. As a matter of fact, one of the worst appointments that was ever made was done by Woodrow Wilson. He also made one of the greatest appointments. Justice [James] McReynolds, who was prejudiced against Jews and blacks and women and Catholics -- he had a whole series of prejudices -- actually went to Herbert Hoover and said, "You shouldn't have two Jews on the court." So there was opposition.
LAMB: On both pages on Justice McReynolds, I've underlined for a lot of reasons some of the things that he said. How did he ever survive? Let me see if I can find something here. You quote him, saying that Justice McReynolds sent a note to Taft. This is, I guess, an invitation that he had been given to a tribute to Justice Brandeis when he retired, and he says, "As you know, I'm not always to be found when there is a Hebrew abroad, therefore my inability to attend must not surprise you." If that were said today, what would happen to him, even if he is a justice?
SIMON: I don't think he would be impeached, but it would cause a great controversy. These are obviously not public statements that he made, but his prejudice was widely known.
LAMB: You write, "He had a huge poster of a naked woman over his bed. When women attorneys approached the bench to speak to the justices, he walked out."
SIMON: Yes. He also believed that if a woman wore fingernail polish or lipstick it showed that she was a woman of loose morals. He was an incredible figure on the court.
LAMB: You've got quotes: "Smoking makes me sick." I don't even want to repeat some of the stuff that he said about African-Americans. Where did you find all this stuff?
SIMON: Digging through the records. I enjoy digging through records and going through biographies and finding these little gems that do make history colorful.
LAMB: There were a couple that I noticed, and I underlined them. You put a bibliography or notes at the end of each chapter. Charles Warren was one and there was another one. I can't remember the name, but two that you quoted a lot. How did you decide what books to find to quote from?
SIMON: I got a hold of everything that I could find in this field, and the Library of Congress was very helpful. Libraries are a great source of information. I have found over the years that librarians love to work with authors, and Bob Gee particularly, at the Library of Congress here, who was very, very helpful to me.
LAMB: Where did you go to write the book?
SIMON: What I do, and my wife will tell you, is that I socially isolate myself. What you have to do when you're writing a book and you also have to serve in the Senate, you have to say that every spare moment when you're writing a book just has to be devoted to this. And then I occasionally pick a weekend where I do nothing but write. We went off for a week to the coast in January when it was cold and there weren't very many people out there, and Jeanne, my wife, whom you know, went over the Judiciary Committee notes, which of course in those days were all written by hand. She did that while I pounded away on the manuscript.
LAMB: I think you and your wife, in the history of this program which has been on the air about four years, the only time we've had a man and wife team with two different books. She wrote a book about what?
SIMON: About her campaign experience. She said she didn't realize how difficult it was to write a book. She said, "I'll never write one again." She may be persuaded at some point.
LAMB: Isn't she a lawyer?
LAMB: And you're not.
SIMON: I'm not.
LAMB: And you're one of two that are not lawyers on the Judiciary Committee, and what's that like? How can you be on that committee without being a lawyer?
SIMON: I don't think it's a problem any more than being on the floor of the Senate. I deal with the law all the time. I write laws all the time. It's never been a problem for me.
LAMB: Was there ever a restriction on the Judiciary Committee that you had to be a lawyer?
SIMON: I don't know. At one point, when Senator Byrd called me -- I had requested after my election, or really prior to my election, to serve on the Labor and Human Resources Committee which deals with education, and then Senator Byrd called me and said, "Would you like to serve on the Judiciary Committee?" I had not requested it. I told him I was not a lawyer, and he said, "I don't think that makes any difference, but let me check." He came back and said that's not a requirement, and so I've been on the Judiciary Committee and enjoyed it.
LAMB: We'll come back to that in a second. We've got Chief Justice Marshall, Chief Justice Taney, Louis Brandeis at that table.
SIMON: Oh, Oliver Wendell Holmes Jr.
LAMB: Is there one other one?
SIMON: Justice Cardozo. I think Earl Warren belongs at that table.
LAMB: Did you ever know him?
SIMON: I had met him a couple of times. He wouldn't have known me if I walked down the street and met him. Two other recent figures on the court that I think stand up well, and that's Justice [William] Brennan and Justice [Harry] Blackmun.
LAMB: Why those two?
SIMON: I just think what they have done. Justice [John Paul] Stevens maybe should be. You know, I keep adding names of people I'd like to have around that table. I think what they have shown, and one of the things that I think is important on the court, they have shown a sensitivity to those who are the least powerful in our society. It becomes very easy in government, whether you're in the United States Senate or you're in the White House or you're on the Supreme Court, to be influenced by the powerful and the wealthy. When you go to a Washington cocktail party, you're not meeting any unemployed people. It is important for those who sit on the court to be sensitive to those who have struggled in life. Justice Brennan, Justice Blackmun and Justice Stevens have had that sensitivity.
LAMB: Now, I assume that around the table of those that were either characters or not the best, you would put Justice McReynolds around that table?
SIMON: McReynolds, clearly. He was very colorful. I don't know that I would like his company very often, but he was very colorful -- no question about it.
LAMB: Who else?
SIMON: Oh, we had a number of very colorful characters. I think that John Rutledge who didn't make it -- well, he made it at one point, and then resigned to become chief justice for the South Carolina Supreme Court, and then was nominated by George Washington to be Chief Justice. He was also, obviously, a very colorful character.
LAMB: You quote somewhere in the early part of this about the early court battles. Did he come close to committing suicide?
SIMON: Yes. He tried to commit suicide after the Senate rejected him.
LAMB: Was he originally a recess appointment?
SIMON: Yes. We've had 16 recess appointments.
LAMB: Would you explain how that works?
SIMON: Yes, and this has not happened in recent history. The most recent was Justice [Felix] Frankfurter. What happens is, if there is a vacancy -- let's say that we go out on Oct. 2. That's the tentative schedule, but I don't believe it's going to happen. But we go out on Oct. 2. Let's say that on Oct. 10 that Justice Blackmun or Justice Stevens or any one of the members of the court would resign, the president of the United States has the authority to make a recess -- an interim -- appointment until we get back into session. So Rutledge served on the court as a recess appointment as Chief Justice, in addition to his earlier service on the court, and then the Senate rejected him. It was the only rejection that George Washington had. George Washington generally did a very good job. He was careful about it. It's one of the lessons that you can learn from history -- do this thing carefully, not quickly. Do it thoughtfully. George Bush nominated Clarence Thomas five days after the vacancy occurred, and said, "This is the best person in the nation for the job." You compare that to Gerald Ford, for example. Gerald Ford followed the Constitution by consulting with Senators. George Bush did not. Gerald Ford contacted people around the nation and said, "Who would be the best possible person to put on the court?" and then he submitted 20 names to the American Bar Association for their evaluation. George Bush submitted one. But I'm departing from George Washington. George Washington generally did things very, very carefully. This was true of all of his appointments, not just to the court. On the court he took special pains, with two exceptions: one was John Rutledge, whom he appointed quickly, and the other was Justice [Samuel] Chase who ended up being the only member of the court tried for impeachment.
LAMB: Would you put him around that table? Was he a character?
SIMON: Well, he was a character. If you're looking for entertainment, I guess he would fit around that table.
LAMB: In history, which president -- you mentioned Grant earlier -- but which other presidents did a terrible job? At some point you make a point in your book that the weak presidents had strong appointments and the strong presidents had weak appointments.
SIMON: Frequently this was the case. Calvin Coolidge, for example, is not regarded generally as a strong president, but his appointment of Harlan Stone is regarded as clearly a superior appointment. Woodrow Wilson is regarded as one our stronger presidents. His appointment of McReynolds, we were talking about, was probably the worst appointment ever made by any president to the court.
LAMB: Twenty-nine years.
SIMON: He was there 29 years -- 29 terrible years for the other justices. They had a hard time getting along with him.
LAMB: You make a point early in your book that your colleague from Illinois, Alan Dixon, a senator, was possibly or probably defeated in the primary because of his vote on the Clarence Thomas issue. How did he vote?
SIMON: He voted for Thomas.
LAMB: And you voted against?
SIMON: Yes. He would not have had primary opposition but for that vote, and so I don't think that there is any question that vote defeated him.
LAMB: Did it surprise you? Did you and Senator Dixon talk about that vote?
SIMON: We talked about it some, and his defeat surprised me. His vote did not surprise me. I endorsed him. I've had a good working relationship with Alan Dixon, though I hasten to add that Carol Mosley Braun, who defeated him, was a co-chair of my campaign for reelection in 1990, and I'm doing everything I can to be of assistance to her now.
LAMB: We were talking earlier about Anita Hill, and as we meander through this history book here we had gotten to the point where the National Public Radio report by Nina Totenberg and the report in Newsday by Tim Phelps had been published. You had voted to send the nomination to the floor. How did you feel when you got that call at your school and you were being interviewed about the Anita Hill thing? Did you sense that it was going to be the storm that we eventually got?
SIMON: I thought we were headed for a storm, and I immediately said -- I was asked by both Nina Totenberg and Tim Phelps whether we should delay the vote that was then scheduled for Tuesday, just a few days later, and I said we should delay the vote. At this point I was the only person, and for about a 24-hour period, saying that we should delay the vote. But I sensed that we were heading toward something that was going to have a major impact on the nation. I had no idea how much of an impact, I have to add.
LAMB: When did you first know that this was going to be something that -- I saw a figure that 85 percent of the country watched some part of it.
SIMON: I can't tell you precisely, but after we were in the hearing for a while, it became apparent that we had something huge on our hands in terms of public attention. That played a role in the Thomas nomination, because on Friday Anita Hill testified. Friday is a limited television audience. Saturday Clarence Thomas testified -- a much larger audience. People who saw only one of the two believed the one they saw, whichever one that was. I think that was a factor in public opinion being on his side -- only one of the factors -- and the public opinion being on his side I think was clearly a factor in some of the votes in the Senate.
LAMB: You say that Senator Richard Bryan from Nevada changed his vote because of television and because of this statement that Clarence Thomas made about not watching?
SIMON: Yes. He made clear that he had studied this thing, and he and Senator [Harry] Reid and Senator [Joseph] Lieberman from Connecticut -- Reid and Bryan are both from Nevada -- and it is to their credit; it is not an easy thing to take a public stand one way and then reverse yourself, and yet all three were willing to do that. It showed great courage.
LAMB: Did you ever talk about it behind the scenes with Chairman Biden and others, the impact of television during the hearings themselves?
SIMON: Oh, yes, we talked about it because this thing gradually escalated in our minds. We were aware of what was going on and that the public was paying attention.
LAMB: Did it ever seem like it was out of control to you?
SIMON: I can't say it ever seemed like it was out of control. I think we were in control of the situation, but it was unplanned. If we had charted this thing and had any idea of the visual impact of all of this, we would have, for example, balanced Anita Hill and Clarence Thomas more in terms of when they were to appear and that sort of thing.
LAMB: A number of places in the book you say that the White House had instructed Clarence Thomas to do thus and so, or told him this is the way you ought to -- how did you find that out? How do you learn that stuff?
SIMON: Obviously, as you may guess from reading the book, I had some sources that I don't acknowledge in the book, so that there are people in the White House who talked to me about how things happened.
LAMB: What about from the Democratic side? Did you all caucus and meet and have a plan? At the same time I want to ask you about the White House. Were there people watching the lights on the board and taking polls during this time and checking the audience?
SIMON: Well, polls were being taken. I don't know if the White House was taking any polls, but they were aiding the candidate. The White House always does this. I don't criticize them for that. We met, but there was no clear plan. The one thing, though, a lot of people didn't understand -- I got letters from people, obviously, on both sides, criticizing me for defending her too much and others for not defending her enough. Each of us had five minutes during the Anita Hill portion of this, except for our designated questioners. On the Democratic side that was Senator Heflin and Senator [Patrick] Leahy plus the chairman. On the Republican side it was Senator [Orrin] Hatch and Senator [Arlen] Specter.
LAMB: You say that you and Senator Dixon in your Chicago office got 57,000-plus telephone calls around this issue ...
SIMON: On one day.
LAMB: ... which is more than you got on the whole Gulf War.
SIMON: That is correct.
LAMB: Why do you think that many people tried? What was it about this issue that caused them to call?
SIMON: I think people felt they understood it. They could put themselves into her position or his position, and they saw this. For example, we had a great many people who contacted us who said, "If she were telling the truth, she would have been more emotional." They've seen enough soap opera, and they know these are the reactions. And if I were a TV producer-director developing the scenario, I would have had her emoting more. But that wasn't her nature, and I don't think it reflects at all in terms of whether or not she was telling the truth. I have a chapter in there on who told the truth, and I think while public opinion is still that Clarence Thomas told the truth, I think the evidence is pretty overwhelming that Anita Hill told the truth.
LAMB: In that chapter on who told the truth, you had this particular point, and I'll read it and get your answer to why were you so specific. "She could have invented a better story," you say. "If she were creating a story, she could have had him fondling her, she could have had him explicitly asking her to go to bed with him. The fact that she did not tell these things as a part of her story lends it credibility." If that were the case, how come so many people believed him?
SIMON: Well, I think it was in part the emotion of it. I think it was in part that many more people saw him on television. I think those were factors, though it is interesting that a poll done by the National Law Review of trial judges, while the public was 2-1 that he was telling the truth, trial judges, who have been through a great many witnesses over their years, 2-1 believed her story.
LAMB: You have a foreword by Lawrence Tribe. Who is he, and why did you use him in the foreword?
SIMON: He is a professor of the Harvard Law School and is a scholar in Supreme Court history and in the actions of the court. I have frankly been very much impressed by Larry Tribe over the years and was pleased that he was willing to do the introduction.
LAMB: The most cynical person listening to this would say, "Well, of course Larry Tribe would write this because he wants to be a Supreme Court justice." The reason I bring that up is that the last sentence in his introduction is, "This book by one of the Senate's most thoughtful members is a step toward making that honorific appropriate once again." I just bring that up because, you know what I'm talking about.
LAMB: He's got a reputation -- people who don't like him say all of this activity is just because he wants to be on the court with a liberal president.
SIMON: Well, I would love to see him on the court. That one, obviously, is up to Bill Clinton, but I have to add, I don't think his writing an introduction to my book aids that cause.
LAMB: Tribe says, "Stealth nominees," and he argues, "The court and the nation cannot afford any more stealth nominees." Do you think there will be any more? Explain what he means by stealth nominees.
SIMON: Yes. I can't remember whether he specifically names Justice [David] Souter there, but Justice Souter was a person who was almost as blank a slate as you could get in terms of his views. He had written very few opinions and only wrote one article in his whole life, a tribute to a New Hampshire Supreme Court justice who had died. Larry Tribe is concerned -- and Judge Bork has expressed this, too -- that we move toward getting people who simply are devoid of any real ability and any real background. I think if we look just for people who are neutral on everything, then there is a danger that we move in that direction. I would add, I think that's one of the mistakes. I think that's one of the areas that caused great concern for me on Clarence Thomas before the Anita Hill matter, and that was that he simply wasn't candid with us on his views on things. He was trying to become a little more the stealth nominee.
LAMB: Lawrence Tribe says, "It is not that the nominees have been the unfair victims of televised witch hunts or high-tech lynchings, but that the Senate has been too supine and deferential to the administration and its hand-picked nominees." He's very critical, Mr. Tribe is, of the Senate itself. Do you accept that criticism?
SIMON: I think the criticism is a justified one. I think as you look back over the history, we should have rejected more nominees than we have.
LAMB: He also says, "This current Supreme Court is one of the least philosophically diverse courts in American history." Do you agree with that?
SIMON: I agree with that also, and I think it is unfortunate. I think you should try to get balance. When people say, "When you have a conservative Republican president you're going to have conservative Republican nominees," the reality is that, for example, on the current court, Justice [Byron] White is one of the conservatives, nominated by John F. Kennedy. The two liberals on the court are Justice Blackmun and Justice Stevens, nominated by Richard Nixon and Gerald Ford. You can go back through history and find case after case. In general, presidents have tried to get some balance on the court, picked more in their own philosophical mood, but they have not tried to shape the court as much as has happened in recent years.
LAMB: Your first political job was what?
SIMON: My first political job was state representative in the Illinois General Assembly.
LAMB: What year?
SIMON: In 1954 I was elected and took office in 1955.
LAMB: What were you doing at the time?
SIMON: Publishing a newspaper.
LAMB: In what city?
SIMON: In the little town of Troy, Ill., about 20 miles from St. Louis.
LAMB: Did you own that newspaper?
SIMON: Well, the bank and I owned the newspaper, yes.
LAMB: How long did you keep it?
SIMON: Well, I kept it until 1966, and I gradually acquired other newspapers. Then in 1966 I knew I was going to run for statewide office. I had determined in my own mind I was going to do that, and so I sold my newspapers to make myself free to do that.
LAMB: Lieutenant governor?
SIMON: I became the lieutenant governor of Illinois then.
LAMB: For how long?
SIMON: For four years.
LAMB: Then what?
SIMON: Then I ran for governor unsuccessfully in 1972; then in 1974 I was elected to the House and I've been here on the Washington scene ever since.
LAMB: You were how many terms in the House?
SIMON: I was five terms in the House, 10 years in the House, and then I ran against Senator [Charles] Percy and defeated him. That was eight years ago.
LAMB: Is the Senate what you expected it to be?
SIMON: I pretty much knew what the Senate was going to be. I enjoy the Senate. It's a place where you can get things done; where sometimes, like on this, we didn't do as good a job as we should have done. And there are frustrations. I see things that really need to be done. I see people who contribute to campaigns having much more influence than they should in terms of what public policy should be. I think one of the fundamental reforms we need is campaign finance reform.
LAMB: As you point out in the book, you don't have to be a lawyer to be on the court, but there has never been anyone that's not been a lawyer.
SIMON: That is correct. Justice [Hugo] Black said that we ought to have at least one non-lawyer on the court. Interesting. He's the only person I think who has ever made that observation.
LAMB: If Bill Clinton were elected and he said, "Paul Simon, I'd love to have you as the next nominee on the Supreme Court," what would you say?
SIMON: First of all, I think it's very unlikely that he would do that. I would have to at this point say no. Maybe this shows my excessive partisanship, but the governor of Illinois is a Republican governor, and I don't think I would want to turn one vote over to the Republicans in the Senate. I'm not one who is, I think, generally excessively partisan, but I think I owe the people in my party and my state that that seat should stay in the Democratic hands.
LAMB: This is what the book looks like, and it's called "Advice and Consent: Clarence Thomas, Robert Bork and the Intriguing History of the Supreme Court's Nomination Battles" by Senator Paul Simon. Thank you very much for joining us.
SIMON: Brian, it's always good to be with you.
Copyright National Cable Satellite Corporation 1997. Personal, noncommercial use of this transcript is permitted. No commercial, political or other use may be made of this transcript without the express permission of National Cable Satellite Corporation.